Moolwati & Ors. vs State
2010 Latest Caselaw 658 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved On: 3rd February, 2010
                     Judgment Delivered On: 5th February, 2010

+                  CRL.APPEAL NO.44/2005

       MOOLWATI & ORS.                       ......Appellants
               Through:       Mr.B.S.Sharma with
                              Mr.Sureshan, Advocates

                              Versus

       STATE                                 ......Respondent
                   Through:   Mr.M.N.Dudeja, A.P.P.


       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 the Reporter or not?      Yes

     3. Whether the judgment should be reported in the
        Digest?                                   Yes


PRADEEP NANDRAJOG, J.

1. As noted in the MLC Ex.PW-17/A of Geeta, she was

got admitted by her mother-in-law Moolwati at G.T.B. Hospital

on 11.8.1992 at 10.25 AM. Geeta was suffering extensive burn

injuries, being 90%. She was not oriented and hence not fit for

statement.

2. Information was received at Police Station Seema

Puri pertaining to Geeta receiving burn injuries and having

been brought to the hospital. ASI Dharam Pal PW-18

accompanied by Const. Vijay Kumar went to the hospital and

obtained MLC of Geeta as per which she was unfit for

statement. As deposed to by ASI Dharam Pal he sent the

information of Geeta being admitted at G.T.B. Hospital in a

burnt condition to the office of the Sub-Divisional Magistrate of

the area and proceeded to the matrimonial house of Geeta at

No.1/819, Khera Village. He picked up pieces of burnt cloth

from the kitchen of the house as also a bottle emitting smell of

kerosene and an electric heater from the kitchen and recorded

said fact in the seizure memo Ex.PW-5/A and deposited the said

articles in the Malkhana. Further, as deposed to by him, on

12.8.1992 he went to G.T.B.Hospital where he found Geeta to

be fit for statement and he recorded the statement Ex.PW-18/A

of Geeta who informed that she was residing at House

No.1/819, Khera Village and that her husband used to trouble

her for dowry. A few months ago a settlement was arrived at

pursuant whereto she started residing with her husband but

dowry demands continued. On 11.8.1992 at around 9.30 AM

she went to the kitchen to heat milk for her child and while

sitting when she was stirring sugar in the milk, her mother-in-

law threw kerosene at her back from behind and her husband

set her on fire. As she ran out, her brother-in-law Yogesh

caught her and the other brother-in-law Sanjay poured water

on her. She yelled. Neighbours gathered. They took her to

Geeta Nursing Home where they refused to admit her. Her

mother-in-law brought her to G.T.B.Hospital. On the statement

at the portion encircled Ex.PW-6/A he obtained a certification

from Dr.Navneet Kaur PW-6 regarding Geeta‟s fitness. As

deposed to by ASI Dharam Pal PW-18 and Dr.Navneet Kaur PW-

6, Dr. Navneet Kaur also signed the statement Ex.PW-18/A at

the portion encircled Ex.PW-6/A thereon when Dr. Navneet Kaur

appeared as a witness of the prosecution.

3. One would have expected ASI Dharam Pal PW-18 to

have immediately made an endorsement beneath the

statement Ex.PW-18/A and have the same sent to the Duty

Officer for FIR to be registered under Section 307 IPC for the

reason the statement Ex.PW-18/A shows the commission of a

cognizable offence of an attempt to murder. He did not do so.

4. Geeta died around noon of 13.8.1992. This

information was received at the police station. ASI Dharam Pal

immediately proceeded to the office of the S.D.M. where he got

recorded the statement of Mahavir Singh the father of Geeta

before the S.D.M. and making an endorsement Ex.PW-18/B

beneath the said statement got registered an FIR under Section

304-B/498-A/34 IPC. Unexplainably, ASI Dharam Pal did not

bother, while making his endorsement, to refer to the

statement Ex.PW-18/A which he claims to have recorded on

12.8.1992.

5. It is apparent to the reader of the present judgment

that the central issue which we need to discuss is whether

Ex.PW-18/A i.e. the statement of Geeta was at all recorded on

12.8.1992 as claimed by ASI Dharam Pal or whether the same

is a fabricated document.

6. But, before grappling with the question which arises,

we note that after the FIR was registered SI Krishan Kumar PW-

14 took over the investigation and went to the site and with the

assistance of ASI Dharam Pal prepared the site plan Ex.PW-14/A

listing therein the place where the kitchen was situated in the

house and the spots within the kitchen wherefrom he lifted

pieces of burnt cloth, being points „B‟ and „C‟; the place where

he lifted an empty bottle which was smelling of kerosene,

marked as „D‟, as also spot marked „E‟ wherefrom he picked up

the electric heater.

7. It may be noted herein that no stove, much less a

kerosene stove was lifted from the spot and that when ASI

Dharam Pal was cross-examined no suggestion was given to

him that he did not pick up the kerosene stove from the

kitchen.

8. SI Krishan Kumar not only recorded the statements

of various witnesses but even collected a complaint Ex.PW-1/A

made by the deceased to the Crime Against Women Cell. He

also collected a Panchayati compromise Ex.PW-1/B dated

9.2.1992 as per which Geeta and her husband had agreed for

Geeta to return to her matrimonial house. He also took

possession of a letter Ex.PW-1/C written by the deceased to her

father.

9. At the trial Dr.Navneet Kaur PW-6 stated that the

endorsement Ex.PW-6/A on the statement of Geeta was made

by her on 12.8.1992 and that whatever was stated by the

injured was correctly recorded by ASI Dharam Pal.

10. ASI Dharam Pal deposed having recorded the

statement Ex.PW-18/A of the deceased. He deposed that he

effected the recoveries as entered into the Memo of Recovery

Ex.PW-5/A. He also proved a writing Ex.PW-18/C addressed by

him to the Duty Officer bearing the date 14.8.1992 with an

over-writing over the date 14th to convert it into 13th.

11. Since something turns on Ex.PW-18/C, we may note

its contents. While addressing the same to the Duty Officer,

ASI Dharam Pal has written that on 11.8.1992 on receipt of

information from the hospital that Geeta, wife of Satya Prakash,

resident of 1/819, Khera Village was admitted by her mother-in-

law at 10.25 AM he went to G.T.B. Hospital and collected

Geeta‟s MLC who was unfit for statement. On 12.8.1992 the

doctor certified Geeta fit for statement. He tried to contact the

S.D.M. by personally going to his office and over the telephone

but could not meet him. He recorded the statement of Geeta.

On 13.8.1992 Geeta died.

12. Since learned counsel for the appellants had not

disputed that through the testimony of Mahavir Singh PW-1 and

the documents Ex.PW-1/A, PW-1/B and the letter Ex.PW-1/C it

stands established that the deceased was being harassed by

her husband and mother-in-law in her matrimonial house, we

are not noting the testimony of Mahavir Singh and the contents

of the three documents. But we note the argument of learned

counsel for the appellants, being that, the Panchayati faisla PW-

1/B is dated 9.2.1992 i.e. about six months prior to the date of

incident. Learned counsel urged that with the Panchayati

settlement all disputes were over and there is no evidence that

after February 1992 the deceased was harassed on account of

dowry by the appellants.

13. The exhibits seized from the kitchen on the date

when Geeta received burn injuries were sent for forensic

examination and as per the report Ex.PW-16/A, kerosene was

detected on the burnt clothes and the bottle which were lifted

from the kitchen by ASI Dharam Pal.

14. With respect to the statement Ex.PW-18/A, three

persons namely, Yogesh, the brother-in-law of the deceased,

Smt. Moolwati, the mother-in-law of the deceased and Satya

Prakash, the husband of the deceased were sent for trial.

15. Believing the testimony of ASI Dharam Pal and

Dr.Navneet Kaur, the learned Trial Judge has held that Ex.PW-

18/A is the dying declaration of the deceased and in view of her

statement it was apparent that appellant No.1 Moolwati and

appellant No.2 Satya Prakash i.e. the mother-in-law and the

husband of the deceased have joined together to set her on

fire. As regards Yogesh, the learned Trial Judge has held that

from the statement of the deceased it could be that Yogesh

caught her to rescue her or it may be otherwise. Thus, benefit

of doubt has been given to Yogesh. Learned Judge has noted

that there was no allegation of dowry harassment against

Yogesh. Learned Judge has further held that as stated by the

deceased the moment Yogesh caught her the other brother-in-

law Sanjay doused the flames by pouring water on her. Thus, it

could be that Yogesh caught the deceased to facilitate Sanjay

dousing the fire on her.

16. The reasoning given by the learned Trial Judge qua

Yogesh is sound and we concur with the same.

17. Qua the appellants, the only issue which needs to be

decided is whether the statement Ex.PW-18/A was made by the

deceased or whether the same was fabricated.

18. As noted above, the fulcrum of the argument of

learned counsel for the appellants was that if the statement

was indeed recorded as claimed on 12.8.1992 the FIR ought to

have been got registered immediately inasmuch as the

statement revealed the commission of a cognizable offence.

That the FIR was registered on 13.8.1992 and that too on the

statement made by the father of Geeta before the S.D.M. was

highlighted to urge that it was obvious that even till the time

when the FIR was registered no such statement existed.

Learned counsel urged that it is a case of the deceased either

committing suicide or receiving accidental burns in the kitchen.

19. It may be noted that when examined under Section

313 Cr.P.C. appellant Moolwati simply admitted that Geeta

suffered burn injuries and died on 13.8.1992. She did not state

as to in what manner Geeta suffered burn injuries. When

examined under Section 313 Cr.P.C. appellant Satya Prakash

stated that he was not in the house and does not know how

Geeta suffered burn injuries. With respect to the statement of

Moolwati we may note that as per Geeta‟s MLC Ex.PW-17/A

Moolwati had brought Geeta to G.T.B. Hospital.

20. Men may lie, but circumstances do not lie. Who

says dead bodies cannot speak. They do.

21. The dead body of Geeta has spoken through the

post-mortem report Ex.PW-11/A which has been proved at the

trial by Dr.N.K.Aggarwal PW-11 who conducted the post-

mortem on Geeta‟s dead body on 14.8.1992. He has noted

therein the following ante-mortem injuries:-

"Sufficient to deep burn present all over the body except front abdomen, back of abdomen, perineal area and medial aspect of both thighs, covering an area of 80-85% of total body surface area............"

22. Now, where a person commits suicide and pours

kerosene oil on the body, the front portion of the body would

be soaked in oil and not that the rear portion of the body would

be soaked in oil and the front would be unaffected by the oil.

Further, as noted in the decision reported as 1999 SCC (Crl.)

352 Pavan Kumar Paras Nath Tiwari Vs. State of Gujrat a strong

indication of a person committing suicide by fire is to look at

the palms. If the palms are not burnt they would suggest that

the victim has made no attempt to stamp out the fire which

would mean that the person concerned had desired to be

burnt. But, when a person is set on fire the first reaction is to

try and stamp out the fires using the hands i.e. the hands

receiving burn injuries.

23. The injuries on the person of the deceased Geeta

show extensively being burnt at the upper portion of the back

and the hands. The front abdomen and at its back i.e. the

lower back portion of the deceased was unaffected by the fire.

24. The statement Ex.PW-18/A tells us that according to

Geeta she was sitting and mixing sugar in the milk when her

mother-in-law threw kerosene on her. Interestingly the back of

the abdomen has not been affected by the burns. Do they not

tell us that Geeta was sitting and that the kerosene did not

trickle to the lower back? We think they do.

25. The burn injuries on Geeta rule out her committing

suicide.

26. The argument that Geeta was accidentally burnt has

to be thrown into the dustbin for the reason no kerosene stove

was lifted from the kitchen. An electric heater has been lifted

from the kitchen and as noted in the memo Ex.PW-5/A. No

suggestion has been given to ASI Dharam Pal during cross-

examination that there was a kerosene stove in the kitchen

which he did not lift.

27. Dealing with the argument advanced by learned

counsel for the appellants and as noted above, it is unfortunate

that ASI Dharam Pal has acted negligently in not ensuring that

immediately after he recorded the statement Ex.PW-18/A he

got the FIR registered. His laxity has been explained by him

not only when he deposed in Court but even with reference to

his writings Ex.PW-18/C, contents whereof have been briefly

noted in para 11 above. It is apparent that ASI Dharam Pal was

a lowly placed officer. In Delhi, serious crimes are investigated

by Sub-Inspectors and Inspectors. He was not well-versed with

the procedures of law. Aware of the fact that Geeta was

married in April 1990 and the crime had been committed within

a year and a half of the marriage, he went about chasing the

S.D.M. for the reason when a woman dies an unnatural death

within seven years of her marriage, as per rules notified in

Delhi, the inquest has to be by the S.D.M. of the area

concerned. As recorded by him in Ex.PW-18/C he could not

contact the S.D.M. and by that time 13th arrived and Geeta

died. Only after Geeta died could he get in touch with the

S.D.M. and he dutifully produced Geeta‟s father before the

S.D.M. and got recorded his statement Ex.PW-1/E and after

making an endorsement thereunder forwarded the same for FIR

to be registered.

28. Dr.Navneet Kaur PW-6 has got nothing to do with

the police. She is a doctor at G.T.B. Hospital and we see no

reason why she would be telling a lie.

29. We return a finding that the statement Ex.PW-18/A

is the truthful dying declaration of Geeta. We find substantial

corroboration to her dying declaration when we notice the

injuries sustained by her as recorded in her post-mortem

report. The injuries show that Geeta was sitting when kerosene

oil was thrown at her back and she was set on fire. The FSL

report Ex.PW-16/A show that residues of kerosene were

detected on the burnt clothes lifted from the spot. Geeta

catching accidental fire is completely ruled out since no

kerosene stove was found in the kitchen and on the contrary an

electric heater was the instrument for heating and cooking

food.

30. The argument that with the Panchayati faisla in April

1992 everything came to an end is not accepted by us for the

reason within hardly four months of the community decision,

Geeta had been burnt.

31. We find no merit in the appeal.

32. The appeal is dismissed. Appellant No.2 is still in

Jail. Appellant No.1 has been granted bail on 11.8.2006. Thus,

we cancel the bail bond and surety bonds furnished by

appellant No.1 and direct that she should surrender to suffer

the remaining sentence.

33. Copy of this order be sent to the Superintendent,

Central Jail, Tihar for being made available to appellant No.2.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE FEBRUARY 05, 2010 rk