Satish Kumar Gulati vs State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 801 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on : January 13, 2010
                              Judgment delivered on: February 11, 2010


+     CRIMINAL APPEAL NO.100/1997

      SATISH KUMAR GULATI                           ..... APPELLANT
                  Through:           Mr. Gagan Chhabra, Advocate

                     Versus

      STATE (GOVT. OF NCT OF DELHI)          ..... 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?                 Yes

2.    To be referred to the Reporter or not ?             Yes
3.    Whether the judgment should be
      reported in Digest ?                                Yes


AJIT BHARIHOKE, J.

1. This appeal is directed against the judgment dated 11.02.1997 in

Sessions Case No.248/94 arising out of FIR No.102/92, P.S. Seema Puri

convicting the appellant for the murder of his wife Shashi Gulati for the

offence punishable under Section 302 IPC and the consequent order on

sentence of the even date.

2. Briefly stated, the investigating agency in the instant case was

put into motion by a telephone call received from an unknown person

at the police control room informing that acid has been thrown on a

lady at Flat No.L-72-B, Dilshad Garden by her husband. The police

control room conveyed said information to the Police Station Seema

Puri and it was recorded as DD No.21A (Ex.PW8/B) at 5:10 am on

26.03.1992. On the receipt of said information, SI Tej Singh, PW20

proceeded to the place of occurrence along with Constable Mahak

Singh, where he found that the injured had already been removed to

GTB Hospital by a PCR van. SI Tej Singh, PW 20 reached at the

hospital where Shashi Gulati (hereinafter referred to as "deceased")

and her son Deepak Gulati were found admitted. SI Tej Singh collected

their respective MLCs Exhibits PW17/A and PW17/B, which disclosed

that both of them had suffered acid burn injuries. Both the deceased

and Deepak Gulati were declared fit for statement and SI Tej Singh

recorded the statement Ex.PW17/C of the deceased and sent it to the

police station along with his endorsement for the registration of the

formal FIR.

3. In her statement Ex.PW17/C, the deceased stated that her

husband suspected her character and often ill-treated her. She was,

therefore, fed up and wanted to seek a divorce. On the relevant day at

about 4:00 am, the appellant woke her up and started quarrelling.

After a short while, the appellant left on the pretext of going to fetch

milk. Thereafter, while she was lying on the bed, the appellant again

came and threw acid on her from a jug saying "Mein Aaj Tuje Khatam

Kare Deta Hun". She also stated that her son Deepak Gulati was lying

on a nearby sofa and some of the acid drops fell on him as well. On

hearing her screams, some neighbours collected. Thereafter, a PCR

van came and removed her to the hospital.

4. We may note that initially the FIR was registered under Section

307 IPC, but the offence was converted under Section 302 IPC after the

receipt of information by DD No.7A (Ex.PW20/G) about the death of the

deceased Shashi Gulati on the same day.

5. The appellant also suffered some acid burns and he was brought

to the hospital by Constable Mahinder Singh, PW19, where he was

medically examined. His MLC is Ex.PW21/A.

6. From the hospital SI Tej Singh again came to the spot of

occurrence. He requisitioned the photographer and the crime team.

Photographs of the spot were taken. Rough site plan Ex.PW20/B was

prepared. SI Tej Singh found one pillow, a bed-sheet, a steel jug and a

plastic glove of the right hand besides salwar-shirt of the deceased in

burnt condition, which were seized vide memo Ex.PW2/B.

7. The appellant Satish Gulati was brought to the police station at

around 1:20 or 1:30 pm on the same day. He was interrogated and

formally arrested at the police station. The appellant made a

disclosure statement Ex.PW20/D and pursuant to the disclosure, he led

the police party to a hub of stones lying in the corner near the window

of Flat No.71-A and got recovered one empty bottle of acid without lid

with label "Vasakha Singh and Sons, Chowk TIlak Bazar, Delhi-6, Acid

Sulphuric Technical 6.50 ML", which was taken into possession vide

memo Ex.PW20/E. On the same day, the appellant also led the police

party to shop No.149, Khalsa General Store and pointed out the same

as the shop from where he had purchased the bottle of acid and the

shop owner Rich Pal Singh identified him as a person who had

purchased a bottle of acid on 25.03.92. We may note that Rich Pal

Singh was examined as PW3, but he turned hostile and did not support

the case of prosecution.

8. The dead body of the deceased was sent for post mortem and

the post mortem examination revealed that the deceased had suffered

superficial to deep burns covering 45 to 50 per cent surface area.

Cause of death was shock due to aforesaid anti-mortem burn injuries.

In the opinion of the Doctor, the burns on the person of the deceased

were likely to have been caused by a corrosive chemical (sulphuric

acid). On 10.04.92, the relevant exhibits seized from the spot and the

bottle of acid recovered at the instance of the appellant were sent to

CFSL for chemical examination.

9. Statements of relevant witnesses were recorded during

investigation and on completion of investigation, charge sheet against

the appellant was submitted in the court.

10. The appellant was charged for the offences punishable under

Section 302 IPC for having committed murder of his wife Smt. Shashi

Gulati and under Section 307 IPC for having attempted to commit

murder of his son Deepak Gulati. The appellant pleaded innocence

and claimed to be tried.

11. Before adverting to the arguments advanced by the respective

parties, it would be useful to have a look on the evidence of material

witnesses.

12. PW1 Deepak Gulati, son of the deceased, who also sustained acid

burn injuries in the occurrence has not supported the case of the

prosecution so far as throwing of acid on the deceased by the

appellant is concerned. Instead, he has placed the blame for the

occurrence on Rakesh by stating in his cross-examination that when he

got up due to burning sensation on his nose, eyebrow, shoulder and

forearm, he noticed Rakesh outside the window and he immediately

cried "Mummy, Rakesh". He also stated that his father also got up and

asked "what has happened" and immediately hugged his mother, as a

result of which he also sustained burn injuries on both his arms. He

was cross-examined by learned APP with the permission of the court

and confronted with his statement Ex.PW1/A purportedly given under

Section 161 Cr.P.C. to the Investigating Officer.

13. PW2 Gul Chaman (Mool Chand) and PW11 Rakesh Kumar were

examined by the prosecution to prove the dying declaration purported

to have been made by the deceased in their presence. They, however,

turned hostile and did not support the case of prosecution. PW3 Rich

Pal Singh was examined by the prosecution to prove the purchase of a

bottle of acid by the appellant from his shop on 25.03.92. He,

however, turned hostile and failed to support the case of prosecution.

Similarly, PW4 Raman Pawa, who was examined to prove the purchase

of plastic gloves by the appellant from his shop failed to support the

prosecution case.

14. PW5 Raj Kumar Chadha and PW15 Gulshan Kumar Chadha are

brothers of the deceased. They were examined by the prosecution to

prove that things were not going well between the appellant and the

deceased. PW17 Suresh Chand, Record Clerk, GTB Hospital and PW21

R.S. Sharma, Record Clerk, GTB Hospital have proved the MLCs of the

deceased, injured Deepak Gulati as also the appellant, prepared by Dr.

S. Sinha. The other witnesses are the Investigating Officers and the

police officials who participated in investigation at one stage or the

other.

15. On conclusion of prosecution evidence, the appellant was

examined under Section 313 Cr.P.C. with a view to afford an

opportunity to him to explain the incriminating circumstances

appearing in evidence against him. The appellant claimed to be

innocent. He explained that few days before the incident, he had

objected to the visit of one Rakesh, PW11 to his house and on this, the

deceased told him that she could leave anyone, but not Rakesh and

thereafter Rakesh went away after warning that he would not spare

the appellant. He further explained that said Rakesh was living in the

flat adjoining to his flat and that the balcony between the said two flats

is so small that it can be scaled easily by anyone. On the crucial night,

he was sleeping in the house along with his wife and children. All of a

sudden, he awoke due to cries of his son Deepak as also his wife. On

seeing the condition of the deceased, he hugged her because he

wanted to extinguish the burns, as a result of which he also sustained

burn injuries on his arms. He further explained that thereafter he tore

off the clothes of his wife and asked Deepak to take care of her and left

to call a Doctor. As it was early hours of the morning, he could not find

any Doctor and when he returned after some time, he came to know

that his son and wife had been removed to the hospital, so he also

went there. Later on, he was detained and falsely implicated by the

police after letting off the real culprit Rakesh. According to him, he

came to know from his son that he had seen Rakesh at the window of

the flat after he had woken up from feeling burning sensation due to

corrosive action of the acid. Thus, in the nutshell, claim of the

appellant is that he is innocent and actually it is Rakesh who threw

acid on the deceased.

16. The learned Trial Court, on appreciation of evidence on record,

found the appellant guilty of causing death of the deceased by

throwing acid upon her and convicted him under Section 302 IPC.

17. At the outset, we may note that the only eye witness examined

by the prosecution to establish the guilt of the appellant, namely, PW1

Deepak Gulati, son of the deceased, has not supported the case of

prosecution. He was declared hostile and was cross-examined by the

learned APP. During cross-examination, he was confronted with his

earlier statement Ex.PW1/A recorded by the Investigating Officer under

Section 161 Cr.P.C., but he denied the prosecution case. Though, on

perusal of the MLC Ex.PW17/A, it transpires that that the deceased was

brought to the hospital by ASI Tyagi of PCR and the MLC records

"alleged history of burn by accused", yet it is not clear as to who gave

the aforesaid history to the Doctor Sh. S. Sinha, who examined the

patient and prepared the MLC. The MLC has been proved by leading

secondary evidence by examining the Record Clerk, Suresh Chand,

who deposed that MLC Ex.PW17/A is in the hand of Dr. S. Sinha, who

had left the service of the hospital and whose present whereabouts

were not known. Be that as it may, the fact remains that because of

non-examination of Dr. S. Sinha, it is not clear as to who gave the

history of injury sustained by the deceased at the time of preparation

of MLC. As such, the aforesaid observation on the MLC cannot be

taken as the dying declaration made by the deceased. Thus, it is

apparent that the case of the prosecution is essentially based upon the

dying declaration Ex.PW17/C purported to have been made by the

deceased in presence of the Investigating Officer, PW20 SI Tej Singh.

18. Since the case is based upon the dying declaration, it would be

useful to have a look on the law relating to the dying declaration.

19. In the case of Nallapati Sivaiah Vs. Sub-Divisional Officer,

Guntur, A.P. 2007 V AD(Cr.) (S.C.) 45, the Hon‟ble Supreme Court

while discussing the issue of evidentiary value of dying declaration,

inter alia, observed thus:

"18. It is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in asmuch as there could be any number of circumstances which may affect the truth. This court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.

19. It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is a thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be last to give untruth as he stands before his creator. There is a legal maxim "Nemo Moriturous Praesumitur Mentire" meaning, that a man will not meet his maker with lie in his mouth. Woodroffe and Amir Ali, in their treatise on Evidence Act state : "when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross-examination are dispensed with.

20. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition - mentally and physically - to make such statement."

20. In the case of Smt. Paniben vs. State of Gujarat AIR 1992

S.C. 1817, Hon‟ble Supreme Court has summed up the principles

governing dying declaration as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.)376; (1976) 2 SCR

764.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav) (1985) 1 SCC 552: 1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati Devi v. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164.

(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra Reddy v. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) 1981 Supp. SCC 25 : 1981 SCC (Cri.) 645 : AIR 1982 SC 1021.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581.

(vii Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617.

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself

guarantees truth. (Surajdeo Oza v. State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519."

21. The legal position which emerges from the aforesaid

pronouncements is that a conviction can be based solely upon a dying

declaration, but before placing reliance upon the dying declaration the

Court must be satisfied that the dying declaration is authentic, truthful

and reliable. In another words, the prosecution has to establish that

the dying declaration in question was, in fact, made by the deceased

and that it was reliable and true narration of the circumstances which

led to the death of the deceased. While appreciating the dying

declaration, the Court is under obligation to scrutinise it carefully to

ensure that it is not the result of tutoring, prompting or imagination

and that the deceased was in fit state of mind when he or she made

the dying declaration. It is essential that dying declaration, before it is

acted upon, must inspire confidence of the Court that it is beyond

suspicion.

22. Learned counsel for the appellant has taken us through the

evidence on record and the impugned judgment and submitted that

the conviction of the appellant rests solely on the dying declaration of

the deceased Ex.PW17/C purported to have been made in presence of

SI Tej Singh, PW20. He submitted that the learned Trial Court has

erred in relying upon the dying declaration Ex.PW17/C, ignoring the

fact that it does not satisfy the test of authenticity, truthfulness and

reliability on various counts.

23. Appellant‟s first challenge to the dying declaration Ex.PW17/C is

that as per the MLC Ex.PW17/A and the post mortem report of the

deceased Ex.PA, the deceased had suffered acid burn injuries to the

extent of 40 to 50 per cent of body surface area, including the face.

Learned counsel submitted that having suffered such injury, it is highly

improbable that the deceased could have been in a position to speak

and make a coherent and concise dying declaration. Learned counsel

further submitted that even if for the sake of argument, it is assumed

that the deceased was in a position to speak, then also from the MLC

Ex.PW17/A and the death summary of the deceased Ex.PB, it is

apparent that the treatment of the deceased was started immediately

and she was given Tetanus Toxide, Pethadine and Phenargan

injections, which drugs do have a tendency to temporarily impair the

mental capacity of the patient by making him/her drowsy and on some

occasions, the patient even goes into stupor. Thus, it is submitted that

in view of the fact that the deceased was administered injections

Pethadine/Phenargan, it cannot be safely said that she was in a

position to make a clear, concise and cohesive declaration regarding

her plight.

24. Learned counsel for the State, refuting the argument, has

submitted that just because the deceased had suffered 40 to 50 per

cent acid burn injuries, it cannot be inferred that she was not capable

of making the dying declaration to the Investigating Officer. He has

drawn our attention to the MLC of the deceased Ex.PW17/A, wherein

the attending Dr. Shri S.Sinha has recorded the history as "H/O Acid

burn by husband". He also recorded that patient was conscious,

oriented and all vitals were functioning. From the above, learned

counsel for the State has urged us to infer that the deceased was in a

position to make a statement at the relevant time, which she actually

made also before Dr. S. Sinha.

25. At the outset, we may note that Dr. S. Sinha, who prepared the

MLC Ex.PW17/A has not been examined by the prosecution and the

MLC has been proved by way of secondary evidence by examining a

Record Clerk of the hospital who was conversant with the hand-writing

and signatures of Dr. S. Sinha. Therefore, it cannot be conclusively

said as to who gave the history of burn injuries of the deceased to the

Doctor and under what circumstances this history came to be recorded

on the MLC. However, the fact remains, as apparent from the MLC as

well as the post mortem report, that the deceased had suffered 40-50

per cent acid burns on various parts of the body, including the face.

This, by itself, cannot be taken as a circumstance to conclude that the

deceased was not in a position to speak or make a coherent and

concise dying declaration. Whether a person would be able to speak

and make a declaration after sustaining such injuries depends upon

the physical constitution, power of tolerance and will power of the

person concerned. PW20, SI Tej Singh, has categorically stated that on

reaching the hospital, he obtained the MLC of the deceased and

recorded the statement of the deceased Ex.PW17/C after she was

declared fit by the Doctor concerned. Though Dr. S. Sinha has not

been examined by the prosecution, but the fact remains that his

signatures, in token of attestation of the dying declaration, are there

on the dying declaration Ex.PW17/A. SI Tej Singh, PW20 is an

independent public servant who had no axe to grind with the appellant,

therefore, we find it difficult to accept that he fabricated or falsely

recorded the dying declaration of the deceased Shashi Gulati. As

regards the second limb of the argument that the deceased was under

the influence of drugs like Pethadine and Phenargan, we do not find

any merit in the argument. It is true that drugs like

Pethadine/Phenargan sometimes make a patient drowsy, but it takes

time before the patient starts feeling the effect of the drug. From the

MLC, it transpires that the patient was brought to the hospital on

26.03.92 at about 4:45 am. DD No.21A (Ex.PW8/B) regarding the

incident was recorded at 5:10 am and copy thereof was given to SI Tej

Singh, who immediately left for the spot of occurrence. At the spot, as

per SI, Tej Singh, PW20, he found that the deceased had been taken to

the hospital. Therefore, he straightaway went to the hospital and

collected the MLC of the deceased and recorded her statement in

presence of the Doctor. The Rukka, as per the record, was sent to the

Police Station for registration of the case on 26.03.92 at 6:50 am,

which implies that the statement of the deceased was recorded prior to

6:50 am because on the aforesaid statement, SI has appended his

endorsement also. SI Tej Singh, in his cross-examination, has stated

that it took him about 20 to 25 minutes to record the statement of the

deceased, which means that he started recording the statement of the

deceased somewhere around 6:00 am in the morning, i.e., after about

1:15 hours from the admission of the deceased in the hospital. In our

view, in such a short span of time, Pethadine/Phenargan could not

necessarily have impacted the mental capacity of the deceased.

Further, on perusal of the statement Ex.PW17/C, it transpires that it

was recorded in presence of the Doctor, who also attested the

statement. The fact that the dying declaration of the deceased was

recorded in presence of the Doctor by itself means that she was fit for

making statement, physically as well as mentally. Otherwise, the

Doctor would not have permitted the Investigating Officer to record her

statement. Thus, we do not find much merit in the submission of the

appellant.

26. The next submission on behalf of the appellant is that the

authenticity of the dying declaration Ex.PW17/C is suspect because it is

purported to have been signed by the deceased in English in an

unstable hand in capital letters, whereas the deceased was in a habit

of signing in Hindi. In support of this contention, learned counsel has

drawn our attention to four notices Exhibits D1 to D4 typed on postal

inland covers purported to have been signed by the deceased in Hindi.

The appellant in his statement under Section 313 Cr.P.C. has explained

that those notices were drafted and signed by Shashi Bala Gulati and

those notices Exhibits D1 to D4 were not despatched in the hope that

the brothers and widow of pre-deceased brother of the deceased would

give a share to the deceased in her parental property. In support of

this contention, learned counsel for the appellant has drawn our

attention to the relinquishment deed Mark „X‟ which has been

purported to be signed by the deceased in Hindi.

27. In our view, much significance cannot be attached to the above

argument because one cannot ignore the fact that the deceased had

suffered serious acid burn injuries and she must be in acute pain and

trauma. Under these circumstances, if she was not able to sign in

Hindi and she appended her signatures in capital letters in English, it

cannot be taken a circumstance to suspect the genuineness of the

dying declaration, particularly when there is nothing on the record to

show any reason as to why the Investigating Officer and the Doctor

concerned would join together in falsely implicating the appellant.

28. The next submission challenging the authenticity of the dying

declaration is that it is uncorroborated and instead it is belied by the

testimony of PW1 Deepak Gulati, son of the deceased, who also

suffered acid burn injuries in the occurrence. Learned counsel has

drawn our attention to the testimony of PW1 Deepak Gulati, who

deposed to the effect that on the fateful night, his mother was sleeping

on a diwan on the room and he was sleeping on a sofa lying nearby.

His father and his younger brother were sleeping in the kitchen. He

also stated that when he woke up due to burning sensation on his

nose, eyebrows, shoulder and forearm, his mother was crying. His

father also got up and enquired as to what had happened and hugged

his mother and as a consequence his father, i.e., the appellant also

suffered burn injuries. This witness in his cross-examination deposed

that his attention was diverted towards the window and he saw PW

Rakesh, their neighbour, on the other side of the window in the balcony

in track suit and shawl. Learned counsel has submitted that aforesaid

version of PW1 Deepak Gulati gives an impression that it was Rakesh

Kumar who had thrown acid on the deceased and not the appellant.

He also submitted that the above referred version of PW1 Deepak

Gulati is consistent with the defence theory to the effect that since the

appellant did not like said Rakesh visiting his wife and told him to leave

his house, Rakesh was nursing a grudge against him and in order to

take revenge, he threw acid on the deceased assuming that the person

sleeping on the diwan was the appellant and not the deceased.

29. We do not find any merit in this contention. PW1, Deepak Gulati

is a hostile witness and he resiled from his earlier statement made

under Section 161 Cr.P.C. to the police. PW1 Deepak Gulati was only

14 years old when his statement was recorded in the court. Therefore,

he being a minor and dependent upon the appellant, had every reason

to depose falsely with a view to save his father. As such, we are not

inclined to place any reliance upon his testimony. It may not be out of

place to mention that in her declaration Ex.PW17/C, the deceased had

stated that the appellant threw acid upon her from a jug. PW20, SI Tej

Singh has deposed that on inspection of the spot of occurrence, he

found a pillow, a bed sheet, a steel jug, a plastic glove of right hand

and salwar suit of the deceased, which were seized vide memo

Ex.PW2/B. Recovery of the jug from the spot of occurrence does

corroborate the dying declaration of the deceased, who had stated that

her husband had thrown acid upon her from the jug. Not only this, the

aforesaid jug, when sent for chemical analysis to CFSL, gave positive

test for traces of sulphuric acid. This circumstance corroborates the

dying declaration and lends an assurance of correctness and

truthfulness of the dying declaration and rules out any possibility of the

defence theory that PW Rakesh had thrown acid with a view to take

revenge being true.

30. We may note that as per the MLC Exhibits PW17/A, PW17/B and

Ex.PW21/A of the deceased, her son Deepak Gulati and the appellant

respectively, all three of them were admitted in hospital with acid burn

injuries by the police officials. No relative or friend of the deceased

was present there in the hospital when the statement of the deceased

Ex.PW17/C was recorded. Therefore, any possibility of the dying

declaration being the result of prompting, tutoring or influence is ruled

out.

31. In view of the circumstances discussed above, we find no

infirmity in the impugned judgment convicting the appellant on the

basis of the dying declaration Ex.PW17/C of the deceased.

32. The appeal is without merit. It is accordingly dismissed.

33. Appellant is on bail. His bail bond and surety bond are cancelled.

Appellant be taken into custody and sent to Jail to undergo remaining

sentence.

AJIT BHARIHOKE, J.

FEBRUARY 11, 2010                              A.K. SIKRI, J.
pst