Ashok Kumar & Anr. vs State
2010 Latest Caselaw 563 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 02nd February, 2010

+                          CRL.A. 339/2008

        ASHOK KUMAR & ANR.                          ..... Appellants
                     Through:            Mr.Vijay Babbar, Advocate

                      versus

        STATE OF NCT OF DELHI                     ..... Respondent
                      Through:           Mr.M.N.Dudeja, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                           Yes
     3. Whether the judgment should be reported in the Digest?Yes

PRADEEP NANDRAJOG, J. (Oral)

1. Six accused; the husband, the mother-in-law, the

elder brother of the husband, the wife of the elder brother of

the husband and the two sisters of the husband of the

deceased, Bharti were charged for the offence punishable

under Section 498-A/34 IPC. Four of them, the husband, the

mother-in-law, the elder brother of the husband and the wife of

the elder brother of the husband of the deceased were also

charged for the offence punishable under Section 302/34 IPC

pertaining to the death of Bharti, who admittedly suffered burn

injuries in her matrimonial house at around 3:00 P.M. on

28.04.2002. As a result of the burn injuries she died on

05.05.2002.

2. Disbelieving the testimony of Krishan Lal PW-6,

Shanti Devi PW-13 and Sunil Kumar PW-15, father, mother and

brother of Bharti pertaining to dowry demands and cruelty

towards the deceased by the family members save and except

the appellants as also disbelieving the testimony of Krishan Lal

pertaining to the alleged dying declaration made by the

deceased to him and accepting the statement Ex.PW-1/A of

Bharti as made to Sh.V.Valte, SDM of the area (PW-14) on

29.04.2002, all the accused, save and except accused Ashok

Kumar the husband of the deceased and Kaushalya Devi, the

mother-in-law of the deceased have been acquitted. Ashok

Kumar and Kaushalya Devi have been convicted for the

offences punishable under Sections 302/498-A/34 IPC, vide

judgment and order dated 25.03.2008 and vide order on

sentence dated 28.03.2008, for the offence of murder, they

have been sentenced to undergo imprisonment for life. For

the offence punishable under Section 498-A IPC, the two have

been sentenced to undergo imprisonment for a period of two

years.

3. Arguing the appeal today, learned counsel for the

appellants Sh.Vijay Babbar Advocate has restricted

submissions to the appellants being convicted for the offence

of murder, stating that he does not challenge their conviction

for the offence punishable under Section 498-A IPC inasmuch

as the two have already undergone the imprisonment for a

period much in excess of two years.

4. Briefly noted, the prosecution attempted to prove

the dying declaration made by the deceased with reference to

the testimony of Krishan Lal, father of the deceased who

claimed that when his daughter regained consciousness on

29.04.2002, she had disclosed to him that the appellants as

also Anita, sister-in-law of the deceased, her brother-in-law

Shyam Lal and Shyam Lal's wife Gayatri Devi had participated

in the commission of the crime i.e. had set her on fire. In

direct conflict with the testimony of Krishan Lal was the

statement Ex.PW-1/A of the deceased made to Sh.V.Valte, the

SDM of the area who appeared as PW-14. In the said

statement, circumstances and cause of her death as disclosed

by Bharti are as under:-

              "Q.     What is your name?
               A.     My name is Bharti Rani.

               Q.     Are you married?
               A.     Yes, I got married to Ashok Sharma about
                      1½ years ago. I got one child, a girl about
                      three months old.

               Q.     Are you happy after marriage?


                A.     No, soon after marriage I was harassed by
                      my husband and mother-in-law. I was
                      often beaten and kept in the verandah
                      outside the house. They kept demanding
                      for more dowry. Pappu (Jeth), Gayatri
                      (Jethani), Usha and Anita (both nanads)

influenced my mother-in-law and husband to demand dowry.

Q. How did you get burnt?

A. Yesterday, at about 3.00 P.M., my mother-

in-law poured k. oil over my body near the kitchen and my husband burnt me with matches. Someone informed the police, who took me to the hospital."

5. The defence relied upon the MLC Ex.PW-18/A of the

deceased which contained an endorsement by the doctor that

the history of burn injuries sustained by Anita were as a result

of explosion of LPG gas stove. Noting that the husband of the

deceased was present by her side and had brought her to the

hospital, the learned trial Judge has disbelieved the

endorsement on the MLC Ex.PW-18/A of the deceased giving

an additional reason; that at the spot no damaged or exploded

LPG gas stove was found.

6. The purported dying declaration sought to be

proved through the testimony of the father of the deceased

has been disbelieved by the learned Trial Judge noting that as

told to the police by Krishan Lal, his daughter has only told him

that her mother-in-law had poured kerosene oil on her and her

husband had set her on fire, but while deposing in court he

stated that his daughter told him that her husband had caught

her. Accused Usha and Anita were present. Her mother-in-law

sprinkled kerosene oil on her and when she tried to run away,

her husband closed the door of the room and that her husband

set her on fire.

7. In view of the improvements made by Krishan Lal

while deposing in court and ascribing role to persons whom he

has not named when his statement was recorded by the

police, the learned Trial Judge has disbelieved the testimony of

Krishan Lal.

8. With respect to the dying declaration Ex.PW-1/A

which was proved through the testimony of scribe of the

statement; namely Sh.V.Valte PW-14, SDM of the area, the

learned Trial Judge has held that the same inspires confidence

and is sufficient to nail the guilt of the husband and the

mother-in-law of the deceased.

9. The veracity of the dying declaration Ex.PW-1/A was

questioned before the learned trial Judge with reference to the

site plan Ex.PW-10/A.

10. The learned trial Judge has discussed the argument

of the defence with reference to the dying declaration and the

site plan which is as under:-

"Learned Defence counsel has argued that the dying declaration recorded by SDM is perse contradictory in regard to the place of incident. It has been submitted that as per the dying declaration Ex.PW-1/A the spot of incident is near the kitchen, whereas the injured was found on the first floor. Prosecution has placed on record the site plan prepared by the IO as well as the site plan prepared by PW-10 Tirath Singh. Both the site plan indicate that the kitchen is on ground floor, whereas the injured was found on the first floor in the burnt condition. The site plan Ex.PW-2/A has added to the confusion. Note No.1 on site plan Ex.PW-10/A has shown the place of occurrence on first floor. In support of its contention Ld. Counsel for the accused has cited Shaikkh Bakshu & Ors. Vs. State of Maharastra VI (2007) SLT 373. In this case there were two dying declaration and there was contradiction in respect of the alleged place of occurrence. According to the deceased the occurrence took place in the bed room however, as per pachnama no burn marks were found in the bed room. Rather the burn marks were found in the kitchen. In this case the Apex Court rejected the dying declaration on the ground that it was not reliable.

I have gone through the judgment. With entire humility at my command I consider that the abovesaid case can be respectfully distinguished on the facts and circumstances of the present case. In this case there were two dying declarations recorded in the span of around one hour. The first dying declaration was allegedly recorded at around 6 PM, whereas the information was received at around 6.30 P.M. There were other glaring contradictions also which surfaced in the

prosecution case. In the present case, the deceased only stated in her dying declaration that Smt.Kaushalya Devi poured kerosene oil over her body near the kitchen. Thereafter, the deceased continued to say that her husband burnt her with matches. If this sentence is read as a whole, it does not indicate that the victim was burnt near the kitchen. The photographs proved on record undoubtedly indicates that the burn marks were also found on the first floor. In this regard we have also to understand the topography of the house. The perusal of site plan Ex.PW-10/A indicates that the staircase is just near the kitchen and it opens near the room at first floor. There is a possibility that after the kerosene oil was poured on victim she might have run to save her life on the first floor and then on the first floor she was burnt. Unfortunately, the victim is not before us and only she could have actually told that what had happened at that time. In absence of any direct evidence, the court has to look for the prevailing circumstances. In the present case if we go through the testimony of prosecution witnesses there is nothing to suggest that the deceased was tutored in any manner. The credibility of the dying declaration can also be ascertained from the fact that deceased did not name other relatives of her husband regarding whom she made the allegations of instigating her husband and mother-in-law for the demand of dowry. Had there been any possibility of tutoring, nothing would have stopped the deceased to take the name of other relatives of the husband..."

11. Learned counsel for the appellants and the State

have debated on the issue with reference to the dying

declaration Ex.PW-1/A and the site plan Ex.PW-10/A.

12. Whereas, learned counsel for the appellants has

urged that if there was a possibility as opined by the learned

trial Judge (possibility as noted in the underlined portion

extracted from the impugned decision hereinabove) that

kerosene oil was poured upon the deceased when she was just

near the kitchen on the ground floor and she ran up to the first

floor and entered the bed room of her house when she was set

on fire in the said room, there was also an equal possibility

that whatever happened was in the room on the first floor and

if that be so, the narration of the incident by the deceased as

recorded in Ex.PW-1/A would be incorrect.

13. Counsel urges that it is settled law that if any

blemish is found in a dying declaration, then the principle of

law that a dying declaration does not require any

corroboration is not applicable.

14. With reference to the dying declaration of Bharti, it

is to be noted that she has narrated the circumstances of her

death in extremely brief language. She has simply stated that

at about 3.00 P.M. her mother-in-law poured kerosene oil over

her body near the kitchen and her husband burnt her with a

matches.

15. Bharti does not say that after she was set on fire

she ran up the stairs up to her bed room. Bharti does not say

that after kerosene oil was poured on her she ran upstairs up

to her bed room and that she was set on fire in the said room.

16. At this stage, we may straightaway note the site

plan to scale Ex.PW-10/A. The site plan shows that the

matrimonial house of the deceased has ground floor and a first

floor. The kitchen is on the ground floor. Towards the eastern

wall of the kitchen is the staircase leading up to the first floor.

Towards further east is the toilet. The door of the kitchen

opens onto the compound abuting the kitchen in the northern

side. The room on the first floor is adjoining the landing of the

staircase on the first floor and is just above the kitchen on the

ground floor. Five spots have been marked in the site plan.

The same are as under:-

"No.1 Shows the place of occurrence and one half burnt match-stick was recovered by the police.

No.2 Shows the place from where Kurta was recovered.

No.3 Shows the place from where Salwar was recovered.

No.4 Shows the place where kerosene was sprinkled by the accused Ashok Kumar on Bharti Rani.

No.5 Shows the place from where lamp was recovered."

17. It would be important to highlight that a burnt

match stick has been shown recovered from the spot No.1

which is the space between the landing and the door of the

room on the first floor. The burnt Kurta and Salwar of the

deceased have been shown recovered from the spot No.2 and

3, which spots are in the room on the first floor of the house.

Spot No.5 is the slab of the kitchen wherefrom the lamp was

recovered. Spot No.4 is on the compound just at the door of

the kitchen and is the stated place where kerosene is sprinkled

upon the deceased.

18. With respect to spot No.4 it assumes importance to

note that nothing incriminating has been lifted from the said

spot. It is apparent that spot No.4 has been shown by the

Investigating Officer on his own assumption, for the reason

nobody pointed out the said spot as the one where kerosene

oil was statedly sprinkled on the deceased. It is obvious that

since the deceased stated that her mother-in-law poured

kerosene oil on her near the kitchen the learned Investigation

Officer has opted to show the said spot at serial No.4.

19. From the fact that a burnt match-stick was

recovered from the spot No.1 which is just outside the door of

the room on the first floor, a reasonable presumption would be

that the deceased was engulfed in flames not on the ground

floor but on the first floor moreso for the reason no burnt

pieces of cloth or ash have been recovered on the staircase or

outside the kitchen from spot No.4 till the staircase. Had the

deceased was set on fire outside the kitchen one would have

found either ash or burnt pieces of cloth anywhere between

spot No.4 and spot No.1.

20. The deficiency in a complete narration of what

happened at the spot in the dying declaration of the deceased

has resulted in the receiver of the facts speculating as to what

could have happened. The learned trial judge has speculated

in the following words: "There is a possibility that after the

kerosene oil was poured on victim she might have run to save

her life on the first floor and then on the first floor she was

burnt".

21. It is settled law that the moment, in a criminal trial,

to resolve issues, a Court has to speculate, the benefit of

reasoning has to be in favour of the accused as long as a

reasonable reasoning flows out of what can be speculated

upon. We may clarify that it is not within the province of a

court to speculate or enter into surmises, but if while

reasoning on an issue, it becomes necessary to infer the

existence of a fact which presumably may exist, rival view

points of a fact which may be presumed have to be kept in

mind and a fact which may be presumed in favour of the

accused has to be preferred.

22. The site plan Ex.PW-10/A is clearly indicative of the

fact that Bharti suffered burns somewhere on the first floor

and the said spot could be either inside the room where spots

2 and 3 are shown or it could be at spot No.1 on the first floor.

23. The MLC of the deceased shows that her husband

i.e. Ashok had accompanied her to the hospital.

24. The MLC Ex.PW-16/A of Ashok prepared at the same

hospital shows the following burn injuries on his hand:-

(i) Charred RT. hand distal 1/4th of palmer aspect and

palmer side of four fingers excluding thumb. Distal

¾ of dorsum of hand and almost whole of dorsal

side of medial four fingers.

(ii) Multiple blisters of 2 x 3 cm on the dorsum and

palmar side.

25. It is apparent that Ashok has attempted to stamp

out the fire on his wife. The burn injuries on his right hand are

not superficial. There is charring on the right hand and

multiple blisters thereon.

26. The learned Trial Judge has wished away the said

evidence by recording: "Merely because the accused Ashok

suffered burn injuries on his hand entire story of the

prosecution cannot be thrown out. It cannot be ruled out that a

person after setting on fire would certainly try to do something

to show that he rather tried to save his wife."

27. We may note that when they were examined under

Section 313 Cr.P.C. the appellants stated that the deceased

set herself on fire.

28. The learned Trial Judge, before whom the decision

reported as Shaikkah Bakshu & Ors. vs. State of Maharashtra

VI (2007) SLT 373, (the equivalent citation being 2007 (11)

SCC 269) has observed that the ratio of the said decision was

not applicable as it could be distinguished on account of the

reason that in said case two dying declarations were recorded

within a span of around 1 hour and the Court found material

differences in the two.

29. Having perused the decision in Shaikkah Bakshu's

case (supra), we note that 3 reasons have been given by the

Supreme Court to disbelieve the dying declaration of deceased

Rubina (the victim in the said case). Firstly, the possibility of

Rubina being tutored. The second of material discrepancies in

the two dying declarations made by her within a span of one

hour. Lastly; to quote: "According to the deceased, the

occurrence took place in the bedroom. It is to be noted that

no mark of burn injury was noted in the bedroom, and they

were noticed in the kitchen. The High Court noted, even if the

spot of occurrence has not been correctly stated by the

deceased the same is of no consequence. That certainly has

effect on the credibility of dying declaration, contrary to what

the High Court observed."

30. Though a site plan is not treated as a substantive

evidence, but the evidentiary value thereof cannot be slighted,

for the reason a site plan throws light on the scene of the

crime and sometimes assumes importance as in the instant

case.

31. There is a indeed a handicap with reference to the

cursory dying declaration made by the deceased when she

does not disclose the exact place where she was burnt. She

does not state that she ran up the stairs. Her only statement

that kerosene oil was thrown on her near the kitchen, seen in

light of the site plan, creates considerable confusion as to what

exactly happened at the spot.

32. The conduct of Ashok Kumar of attempting to douse

the fire on his wife and removing her to the hospital has to be

factored in the decision.

33. That Ashok was present in the company of his wife

has not only been admitted by him but is proved

independently when we look at the MLC of the deceased which

shows that Ashok removed his wife to the hospital as also

when we look to the MLC of Ashok which shows his right hand

charred and full of blisters.

34. The learned Trial Judge has discussed the

evidentiary value of Ashok's MLC Ex.PW-16/A by stating that it

could not be ruled out that a person, after setting on fire

another person would try and do something.

35. Let us take the reasoning of the learned Trial Judge

to its logical conclusion. It means that Ashok, after setting fire

to his wife suddenly realized the negative moral worth of his

act and the good in him surfaced or he simply created a drama

to try and save his wife. Yes, this could be a probability. But,

it is equally possible that on seeing his wife on fire, Ashok

proceeded to save his wife. It is in this context it assumes

importance to note that the burn injuries on the right hand of

Ashok are not superficial burn injuries. His right hand has got

charring and blisters. This suggest his earnestness in rescuing

his wife and not an act of simple drama.

36. Yet again, at the second stage, while writing the

judgment we have found ourselves in an area where two

possibilities are emerging.

37. We see no escape from the situation that the

inchoate and brief facts in the dying declaration Ex.PW-1/A

compel us to hold that a benefit of doubt needs to be granted

to the appellants.

38. Before concluding we may note that where there is

evidence of a motive to falsely implicate innocent persons in a

dying declaration, the rule of prudence requires the Court to

look for some corroboration to the dying declaration.

39. The motive for the deceased to inculpate innocent

persons has emerged in this case. In that, we find that in her

dying declaration, though not relatable to the incident and

relatable to the past, the deceased has not only inculpated her

husband, her mother-in-law; the only two persons with whom

she used to reside in her matrimonial house, but even the

elder brother of her husband and the wife of the elder brother

who lived in a different house as also the two married sisters

of her husband. It assumes significance that the father of the

deceased, while trying to prove a dying declaration made to

him by his daughter, inculpated the brother-in-law and two

sisters-in-law of the deceased, who were not even present in

the house when the crime was committed.

40. The appeal is allowed insofar as the appellants have

been convicted for the offence punishable under Section

302/34 IPC. The appellants are acquitted of the charge of

having murdered Bharti.

41. Maintaining the conviction and sentence of the

appellants for the offence punishable under Section 498-A/34

IPC, we dispose of the appeal setting aside the impugned

judgment and order dated 25.3.2008 convicting the appellants

for the offence of murder. We set aside the sentence of

imprisonment for life for the said offence.

42. At this stage, learned counsel for the appellants

informs that the mother-in-law of the deceased namely

Kaushalya has died. Thus, we bring the curtains down by

recording that the appeal insofar as the conviction of appellant

No.2 is concerned stands abated.

43. Appellant Ashok Kumar is acquitted of the charge of

murder. Since the appellant Ashok Kumar is still in jail we

direct that the present decision be sent to Superintendent,

Central Jail, Tihar with a direction that Ashok Kumar shall be

released if not required in any other case for the reason Ashok

Kumar has undergone a sentence much in excess of 2 years

i.e. the sentence which he has to serve for his being convicted

for the offence punishable under Section 498-A/34 IPC.

44. The bail bond and surety bond furnished by

appellant No.2 Kaushalya Devi are discharged.

PRADEEP NANDRAJOG, J

SURESH KAIT, J FEBRUARY 02, 2010 'nks/dk'