Delhi High Court
Nand Lal & Anr. vs State on 26 February, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: January 14, 2010
Judgment delivered on : February 26,2010
+ CRIMINAL APPEAL NO.104/1997
NAND LAL & ANR. ....APPELLANTS
Through: Mr. K.B. Andley, Sr. Advocate with Mr. M.L. Yadav, Advocate
Versus
STATE ..... RESPONDENT
Through: Mr. Sunil Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. The instant appeal is directed against the impugned judgment dated 17.02.1997 convicting the appellants under Section 302 read with Section 34 IPC for committing the murder of Smt. Sita (hereinafter referred to as the 'deceased') and also the consequent order on sentence dated 19.02.1997, vide which the appellants have been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- each, in default of payment of which to undergo RI for a period of three months each.
2. Briefly stated, case of the prosecution is that on 21.04.89 at about 10:35 am, Head Constable Akhilesh Jha, PW9 informed Police Station Shakarpur on wireless that a lady has been set on fire at N-44, Ramesh Park, near Jagat Ram Park. The information was recorded as DD No.8A (Ex.PW3/A) at the Police Station Shakarpur and copy of the DD report was sent to SI Yashpal, (PW19) for verification. On the receipt of DD report, SI Yashpal, (PW19) reached at the spot of occurrence along with Constable Om Prakash, PW3 and found one lady in burnt condition lying unconscious in a room of House No.N-44, Ramesh Park. SI Sehastra Bahu, (PW5) also reached at the spot along with two Constables. A PCR van also arrived and the injured lady was removed to LNJP Hospital. On inspection of the spot, SI Yashpal found some burnt clothes, a matchbox containing few matchsticks, a matchstick, few broken glass bangles, a "Taveez" and lid of a plastic can. The Investigating Officer also found one plastic can without the lid containing about one ltr. Kerosene oil lying under the staircase in the said room on which the lid found near the body of the deceased fitted. He took all those articles into possession vide memo Ex.PW3/B.
3. The deceased Sita, was taken to LNJP Hospital by PCR, where she was attended to and her MLC was prepared by Dr. Ram Anuj Bansal, PW4. As per the MLC Ex.PW 4/A, the patient Sita herself gave the history of having been set on fire after pouring kerosene oil over her body by her husband and Devar. The Doctor found that there was no history of unconsciousness/vomiting/fit. The general condition of the patient was very poor, but she was responding to oral commands. Her pulse rate was 120/mt and RR as 22/mt and she was smelling of kerosene oil. She had suffered almost 100 per cent burns. The Doctor advised Tetanus Toxoid injection and referred the patient to the Burns Ward for detailed examination and further treatment.
4. The Investigating Officer along with PW5 and other staff, after inspection of the spot of occurrence, reached at the hospital and collected the MLC of the deceased Sita. She was declared fit for making statement. SI Yashpal, PW19 recorded her statement Ex.PW5/A, which was also witnessed by PW5 SI Sehastra Bahu. In the said statement, the deceased is alleged to have stated that a day earlier, her son Pawan Kumar had consumed Nirma (detergent) and for that reason, her husband and brother-in-law Bankey Lal got angry and gave her beating. In the morning of fateful day also, her husband and brother-in-law Bankey Lal quarrelled with her. After the quarrel, Bankey Lal left the house and thereafter her husband poured kerosene oil over her and set her on fire.
5. SI Yashpal appended his endorsement Ex.PW9/B on the said statement of the deceased and sent it to the Police Station for the registration of the case, on the basis of which formal FIR was registered. During investigation photographs of the spot of incident were taken from various angles and the scaled site plan was got prepared. Appellants Nand Lal and Bankey Lal were arrested. SDM Shakarpur was also informed about the incident, who reached at LNJP Hospital, but the patient at that time was unfit for statement. On the night intervening 21-22.04.89, Sita died in the Hospital and the information regarding her death was conveyed to the Police Station by the Duty Constable, LNJP Hospital, which was recorded as DD No.20A. Inquest proceedings were conducted by the SHO, Inspector Balbir Singh and the dead body was sent for post mortem. On conclusion of the formalities of investigation, the appellants were challanned and sent for trial for the offence of murder punishable under Section 302/34 IPC.
6. The appellants, on being charged under Section 302/34 IPC, pleaded innocence and claimed to be tried.
7. Prosecution examined 19 witnesses to bring home the guilt of the appellants. The prosecution case is essentially based upon the dying declarations made by the deceased.
8. The appellants, when examined under Section 313 Cr.P.C., denied the entire prosecution case and claimed that they have been falsely implicated in this case. Both of them claimed that they had left for their shop in the morning of 21.04.89 at about 6:00 am from where they were called by the Investigating Officer to their house and later on falsely implicated in this case.
9. Before adverting to the submissions made by counsels for the parties, it would be useful to have a look upon the testimony of some important witnesses.
10. PW1 Ganga Prasad is the father of the deceased. He is a hostile witness and he has not supported the case of the prosecution. He has testified that his daughter Sita was married to Nand Lal in 1976 and she was never tortured or harassed by the appellant Nand Lal. In his cross-examination by the learned defence counsel, he stated that his daughter Sita was an emotional as well as hot-headed lady.
11. PW2 Hiral Lal Gupta is the elder brother of the appellant Nand Lal. He had identified the dead body of the deceased on 22.04.89. In his cross-examination by the defence, he also stated that the deceased Sita was a short-tempered lady and used to pick up quarrel on the slightest pretext.
12. PW4 Dr. Ram Anuj Bansal was posted at the Casualty of LNJP on 21.04.89 and he attended to the deceased and prepared the MLC Ex.PW4/A. He deposed that the patient Sita (deceased) herself gave the history of having been set on fire after pouring kerosene oil over her body by her husband and Devar and that at the relevant time though the general condition of the patient was poor, she was conscious and was responding to the oral command and her body was smelling of kerosene.
13. PW6 Dr. George Paul, Associate Professor, Department of Forensic Medicine, MAM College is the Autopsy Surgeon, who conducted post mortem examination of the dead body of the deceased Sita on 23.04.89 at 12:15 pm. On examination, he found following external injuries on the body:
"1. Epidermal i.e. superficial burns were present all over the body except outer back parts and back and back of top of scalp region, a transverse band along the lower front part of chest just below the breast region (corresponding to the strap of brassier) upper and middle outer front part of left thigh and thin transverse band across the middle front and back of abdomen just above the umbilicus region as well as both soles. Cuticle was peeled off at places with the base showing reddening especially at margins with blackening present in the unpeeled areas. Scalp hair were singed and burnt in front and top of scalp and both temple regions, the rest of areas were signed at tips and showed a faint smell of kerosene-were preserved for chemical analysis. Eye-brows, eye lashes axillary and public hair were signed and burnt. The approximate area of burns being between 85 to 86 per cent.
2. Stitched cut opon drip wound 1.5 cm. on the lower inner front part of right ankle."
14. On internal examination, he found the stomach contained little bile stained liquid material. The intestines were normal with other internal organs congested. The trachea showed a thick coat of plenty of soot particles on its walls mixed with mucous, the walls being slightly congested.
15. The Doctor opined that the cause of death was due to shock from extensive burns. All injuries were ante-mortem. He proved his report as Ex.PW6/A.
16. PW19, SI Yashpal is the main Investigating Officer, who recorded the dying declaration of the deceased and PW5, SI Sehastra Bahu was present along with him during the inspection of the spot of occurrence as well as the recording of the statement of the deceased.
17. The learned Trial Court, on appreciation of the evidence, found the dying declaration made by the deceased in presence of PW4 Dr. Ram Anuj Bansal reliable and convicted the appellants on the strength of the said dying declaration.
18. Case of the prosecution is essentially based upon the purported dying declarations made by the deceased. There are two dying declarations in this case. First dying declaration is purported to have been made by the deceased in presence of Dr. Ram Anuj Bansal, PW4 wherein she, while giving history of her burns, stated that she had been set on fire by her husband and Devar after pouring kerosene oil over her body. The second dying declaration is the statement Ex.PW5/A purportedly made by the deceased in presence of PW19, SI Yashpal and PW5, SI Sehastra Bahu.
19. Learned Senior Advocate, on behalf of the appellants has submitted that so far as the dying declaration Ex.PW5/A is concerned, it has been rejected by the learned trial Judge as unreliable. Thus, we are left with only one dying declaration Ex.PW4/A. In that regard, learned Senior Counsel for the appellants has submitted that the dying declaration on the MLC Ex.PW4/A is purportedly proved by Dr. Ram Anuj Bansal. Learned Senior Counsel drew our attention to his application under Section 311 Cr.P.C. dated 22.12.93 and the order of the court dated 22.12.93 allowing the appellants to further cross-examine Dr. Ram Anuj Bansal. Learned Senior Counsel submitted that despite of said direction of the learned trial Judge, the prosecution failed to produce Dr. Ram Anuj Bansal for further cross-examination and closed the evidence on 28.06.95. This implies that the appellants have not been given adequate opportunity to test the veracity of the testimony of PW4 Dr. Ram Anuj Bansal by cross-examining him and as such his testimony cannot be read in evidence as a proof of the said dying declaration. Learned Senior Counsel added that once it is shown that the prosecution has failed to prove the purported dying declaration made in presence of Dr. Ram Anuj Bansal, there is no evidence left on record to establish the guilt of the appellants.
20. Another submission on behalf of the appellants is that even if the MLC Ex.PW4/A is assumed to be proved, then also it is highly improbable that the deceased was in a fit physical and mental state to make a coherent dying declaration. Learned Senior Counsel has drawn our attention to the MLC and submitted that as per the MLC, the deceased had suffered almost 100 per cent burns, therefore, it can be safely inferred that she was in acute pain and trauma and not in a position to give a coherent dying declaration. In support of this contention, he has also drawn our attention to the testimony of PW19, SI Yashpal, who deposed that on reaching at the spot of occurrence he found the deceased lying in unconscious condition. PW5 SI Sehastra Bahu has also deposed to similar effect. Learned counsel for the appellants has submitted that if the deceased was unconscious at the spot of occurrence, it is highly improbable that she could have gained consciousness at the hospital and was in a position to give a coherent dying declaration.
21. Learned counsel for the State has countered this argument by submitting that Dr. Ram Anuj Bansal is an independent witness, who had no axe to grind with the appellants and, therefore, there was no reason for him to falsely record on the MLC that the history was given by the patient. It is not uncommon that a person who losses consciousness because of some injury or trauma regained consciousness after some time. Therefore, it is possible that on her way to the hospital, the deceased regained consciousness. He further submitted that PW4 Ram Anuj Bansal was produced as a witness in the court on 28.10.91 and he was tendered for cross-examination by the appellants. Not only this, he was cross-examined on behalf of the appellants by Dr. P.L. Behl, as such, it cannot be said that the appellants have been deprived of an opportunity to cross-examine the witness only because PW4 Dr. Ram Anuj Bansal could not be produced in the court despite of an order under Section 311 Cr.P.C. because of his non-availability, and for that prosecution cannot be faulted. As regards the second contention, learned counsel for the State has submitted that just because the patient had suffered 100 per cent burns, it cannot be inferred that she was not in position to speak. Whether a patient after suffering serious injuries like 100 per cent burns would be in position to speak and make a dying declaration would depend upon patient's physical condition, capacity to tolerate pain and trauma and willpower. Thus, learned counsel for the State has concluded that there is no reason to disbelieve the testimony of Dr. Ram Anuj Bansal, PW4, who has firmly proved the dying declaration made by the deceased in his presence and urged us to dismiss the appeal.
22. We have carefully considered the rival contentions and perused the material on record.
23. The learned Trial Court has rejected the testimony of PW5 SI Sehastra Bahu and PW19 SI Yashpal regarding the dying declaration Ex.PW5/A. Thus, we are left with the dying declaration purportedly to have been made by the deceased in presence of Dr. Ram Anuj Bansal. From the record, it is obvious that Dr. Ram Anuj Bansal was examined by the prosecution on 28.10.91 as PW4 before the examination of PW5 SI Sehastra Bahu and PW19, SI Yashpal, who in their testimony were categoric that when they reached at the spot of occurrence, they found the deceased lying unconscious condition. This version definitely is in conflict with the content of the MLC wherein Dr. Ram Anuj Bansal recorded that the patient was conscious and responding to the oral commands. Perusal of the application u/s 311 Cr.P.C. of the appellants dated 22.12.93 show that the appellants sought permission to recall and cross examine PW4 Dr. Ram Anuj Bansal to seek clarification on above subject and the Learned Trial Judge accorded permission to promote the ends of justice vide order dated 22.12.93, which order was not challenged by the prosecution. After that the trial went on and ultimately, prosecution evidence was closed on 28.06.95. It is not that during said period, Dr. Ram Anuj Bansal was not available in the hospital or that he had left the service without any forwarding address. Perusal of the trial court file reveals that the summons for production of Dr. Ram Anuj Bansal for appearance as a witness in the court pursuant to order dated 22.12.93 were received back unserved on flimsy grounds, such as the PA to the Doctor refused to accept the summon because of lack of sufficient time, which reports clearly indicate that no sincere effort was made by the prosecution to serve Dr. Ram Anuj Bansal with the summons and to produce him in the court for further cross-examination, despite of the fact that he was very much available in the hospital. From above circumstance, it is obvious that despite of the order of the learned Trial Court , Dr. Ram Anuj Bansal was not produced for further cross-examination, which in our considered view, has deprived the appellants of their valuable right to properly cross-examine the witness and has resulted in a greave prejudice to the defence.
24. Further, as per the MLC Ex.PW4/A, the deceased had suffered 100 per cent burns. As per the testimony of PW5 SI Sehastra Bahu and PW19, SI Yashpal, the deceased was found in unconscious condition at the place of occurrence before she was sent to the hospital in a PCR van. Considering the fact that the deceased was unconscious at the spot and she had also suffered 100 per cent burns, there is a strong possibility that she was not in position to speak and give a coherent dying declaration. Further, on perusal of record, it transpires that so far as dying declaration Ex.PW5/A is concerned, it was recorded by the Investigating Officer at the hospital and sent to the Police Station for the registration of case at 12:25 am. Ex.PW19/B is the endorsement of the Investigating Officer at the back of the said purported dying declaration wherein he has mentioned that he recorded the statement of the deceased Sita after the patient was declared fit for statement by the Doctor. In this statement, deceased Sita has implicated her husband alone for pouring kerosene oil over her and setting her on fire, whereas in the MLC Ex.PW4/A, the deceased has implicated both her husband and brother-in-law. The contradiction in the two dying declarations, which are supposed to have been recorded one after the other, also raise a grave doubt about the correctness of the dying declaration Ex.PW4/A. Thus, under the circumstances, we do not deem it safe to convict the appellants on the sole strength of the dying declaration Ex.PW4/A.
25. In view of the above, we find it difficult to sustain the conviction of the appellants under Section 302/34 IPC and acquit them, giving them the benefit of doubt.
26. The appellants are on bail. Their bail bonds and surety bonds are discharged.
27. The appeal is disposed of accordingly.
AJIT BHARIHOKE, J.
FEBRUARY 26, 2010 A.K. SIKRI, J.
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