Mohan vs The State (Delhi Admn.)
2010 Latest Caselaw 211 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                             Reserved on: 10.12.2009
%                                                        Date of decision: 15.01.2010


+                               CRL. A. No.1 of 1997

MOHAN                                                ...APPELLANT
                                Through:        Ms. Meena Chaudhary Sharma,
                                                Advocate.


                                          Versus


THE STATE (DELHI ADMN.)                                    ...RESPONDENT
                   Through:                     Mr. Pawan Sharma, APP.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                   No

2.        To be referred to Reporter or not?                    No

3.        Whether the judgment should be
          reported in the Digest?                               No


SANJAY KISHAN KAUL, J.

1. The appeal is directed against the impugned judgement dated

26.9.1996 convicting the appellant for offence under Section 302

of the IPC for setting his wife, Veena (deceased), on fire and the

order of sentence of the even date sentencing him to undergo RI

for life and to pay a fine of Rs.500.00 and in default to pay fine to

undergo RI for one (1) month. The conviction is based on dying

declaration of the deceased.

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2. The case of the prosecution is that in the night intervening the

1st/2nd March 1990 at about 2:30 a.m. the appellant came to the

police station at Shahdara and lodged a report to the effect that his

wife was preparing tea on the stove and in that process had got

burnt. The appellant informed that his brother-in-law, Kishan Lal,

PW-11, had taken the deceased to GTB Hospital. The information

given by the appellant was recorded as DD No.18-A (exhibit PW-

9/A) and was marked to S.I. Mahender Singh, PW-13, who along

with the appellant and Constable Sukhbir Singh, PW-6, reached

GTB Hospital. On arrival it was found that the deceased had not

been admitted to the hospital. S.I. Mahender Singh, PW-13,

thereafter went back to the spot where he met Constable Brahm

Singh, who handed over to him DD No.20 (exhibit PW-9/B) and it

was informed to him that the deceased had been taken to JPN

Hospital while Constable Brahm Singh had remained at the spot to

safeguard it. S.I. Mahender Singh went to JPN Hospital and

collected the MLC (exhibit PW-2/A) and informed the SHO who

also reached the Hospital. The SHO directed that the SDM should

be called. Shri B.S. Rana, PW-5, who was the SDM came to the

Hospital and recorded the dying declaration of the deceased. In

the dying declaration it is recorded that as per the deceased the

appellant had come at around 2:00 a.m. from the duty and wanted

to have sexual intercourse with her but because she was on fast

and was a believer of peer baba she declined the overture of the

appellant. On this the appellant got angry and poured kerosene oil _____________________________________________________________________________________________

on the deceased and lit the clothes with matchstick and set her on

fire which caused the burn injuries. On hearing the shouts of the

deceased, her brother came and removed her to JPN Hospital. The

deceased has also stated that the appellant was not properly

behaving with her for the last two-three years and had started

disliking her. This dying declaration is exhibit PW-5/A, which

was duly attested by the SDM and on which an endorsement was

made by the SHO which is exhibit PW-13/A. The same was sent

to P.S. Shahdara at 6:00 a.m. for registration of the case. The FIR

was registered as exhibit PW-1/C. The appellant was arrested and

his personal search was conducted. Information was thereafter

received vide DD No.9-A that the deceased had passed away. Her

body was sent for postmortem. The Sub-Inspector took over the

possession of the iron stove, matchbox and the burnt razai (quilt).

The kerosene was also picked up from the floor with the help of

cotton and was taken into possession (exhibit PW-6/C). A site

plan was prepared as exhibit PW-13/B. The draftsman prepared

the site plan on 12.3.1990 as exhibit PW-7/A. A total of 17

witnesses were produced by the prosecution in their support.

3. The case of the prosecution is based on dying declaration recorded

of the deceased by the SDM. The brother-in-law of the appellant,

PW-11, however, turned hostile as he resiled from his earlier

statement that the deceased had informed him about the appellant

setting her on fire while she was being taken to the hospital by

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PW-11 in the three-wheeler scooter to the hospital. In cross-

examination he claimed ignorance as to how his sister caught fire.

4. Dr. Vikas Mahajan has appeared as PW-17, who declared the

deceased fit for statement at 4:53 a.m. whereafter the deceased was

admitted to the burns ward. PW-5 has corroborated that he had

called the doctor who had declared the patient fit for statement

before the dying declaration was recorded by PW-5. The

testimonies of PW-5 & PW-17 are at tandem.

5. In the statement made under Section 313 Cr.P.C. the appellant

claimed he was falsely implicated in this case and that his wife

(the deceased) has burnt herself. The appellant claimed that he

was sleeping at that time and after knowing of the incident of

burning tried to put out the fire and in that process even his hands

were burnt.

6. The defence also produced three witnesses in support of its case.

Dayawati, DW-1, deposed that when she went to the house of the

appellant, the appellant was asking the deceased as to why she set

herself on fire and the deceased had stated that because she was a

TB patient she was frustrated and wanted to die. DW-1 further

deposed that the deceased was treated by Dr. Rajinder Pal at

Shanti Nursing Home and that she used to go with her to the

hospital for treatment. DW-1 claimed that the appellant took the

deceased to Shanti Nursing Home whereafter it was advised that

the deceased should be taken to LNJP Hospital. She has further

stated the deceased remained unconscious till she died and no one _____________________________________________________________________________________________

spoke to her. Babu Ram, DW-2, claims to have heard the voice of

the daughter of the deceased whereupon he rushed to the house of

the appellant and was informed by the daughter that the deceased

had set herself on fire. The appellant was making preparation to

take the deceased to the hospital and on reaching Shanti Nursing

Home she was administered an injection and was removed to Irwin

Hospital. He further stated that the deceased remained

unconscious throughout her stay in the hospital. Sobna, DW-3,

claimed that she was sleeping with her mother on the fateful night

when her father knocked at the door and upon this her mother

opened the door. The appellant (father) told the deceased that he

was tired and also to warm the food but the appellant slept without

having food. The deceased thereafter went to the latrine to ease

herself and after coming from the latrine she poured kerosene oil

on herself set herself on fire. The deceased is stated to have

informed her daughter, DW-3 that she had to do this and then the

appellant wrapped a quilt around the deceased and removed her to

the hospital.

7. A material aspect in the present case, in our considered view, is

that the testimonies of the defence witnesses are contrary to the

evidence brought on record not only by the prosecution but is also

contrary to the stand of the appellant. In the report initially made

to the police station the appellant had claimed that while making

tea his wife had suffered burns. In his 313 Cr.P.C. statement he

claimed that his wife had set herself on fire. It is not the case of _____________________________________________________________________________________________

the appellant that he went with his wife to the hospital but that his

brother-in-law went with his wife (the deceased) while he had

gone to the police station. Thus, the testimonies of the defence

witnesses to the effect the appellant went with the deceased to the

hospital is clearly false and an endeavour to protect the appellant.

This is also the finding of the trial court. DW-2 in his cross-

examination had admitted that he did not go to the burn ward nor

had the SDM come in his presence. Similarly DW-1 admitted that

she knew the appellant for the last 20-22 years and had reached the

spot when the incident had already taken place. DW-3 is clearly

trying to save the father.

8. If the theory put forward by the appellant is to be believed, the

case is one of suicide on account of frustration of suffering from

TB by the deceased. However, no material has been brought on

record from any hospital nor has any doctor been examined to

substantiate this plea.

9. On the other hand, the case of the prosecution is one of homicide

supported by a dying declaration. A dying declaration is

sacrosanct as it is the last words on the lips of the deceased before

he/she makes peace with the maker. The dying declaration is,

thus, given a greater sanctity even though the opportunity of cross-

examination to the suspect is not available. The principles

underlying a dying declaration have been set out in a recent

judgement of this Court in Crl. A. No.207/2009 titled Sukhdev

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Singh Vs. State & connected matter decided on 25.9.2009 wherein

it was observed as under:

"25. It is also not in doubt that the dying declaration made by a person on the verge on the death has a special sanctity as the person is most unlikely to make any untrue statements in the shadow of impending death. This is the reason why a dying declaration is given special weightage as per Section 32 of the Indian Evidence Act, 1872 as „truth sits on the lips of a dying man‟. Simultaneously, it cannot be lost sight of that, in case of a dying declaration, the accused does not have an opportunity to cross-examine the witness. The dying declaration can be the sole basis of conviction if it inspires full confidence of the court and the rule of corroboration is merely a rule of prudence as observed in Muthu Kutty and Anr. v.State (2005) 9 SCC

113. In the facts of the case, the doctor had not certified the condition of the declarant but the testimony of the doctor who was present when the dying declaration was recorded came to the assistance of the prosecution."

10. In the present case the doctor has stepped into the witness box to

affirm the certificate given by him of the proper medical condition

of the deceased to give the statement which has been recorded by

the SDM. There is no reason to disbelieve this dying declaration.

Not much weight, however, be given to the earlier statement of

PW-11, the brother-in-law of the appellant since he turned hostile.

The story of the appellant admitting the deceased to the hospital is

not borne out from any record.

11. We may note that the trial court has rightly considered the

additional fact of a wrong information being given by the appellant

to the police that his wife is taken to GTB Hospital by his brother-

in-law to delay access of his wife to the police.

12. We are unable to accept the contention of the learned counsel for

the appellant that in the present case the dying declaration needs _____________________________________________________________________________________________

any corroboration from a third party. Learned counsel has laid

great emphasis on the absence of any evidence to show the nature

of treatment given to the deceased at the Shanti Nursing Home as

also the failure to examine the doctor who had recorded the MLC.

However, what is material in the present case is that the conviction

is based on the dying declaration of the deceased and her fitness to

make the dying declaration is certified by PW-17 who appeared in

the witness box to confirm the same. We are of the view that in

view of the dying declaration the appellant cannot take advantage

of his brother-in-law, PW-11, turning hostile.

13. A further plea advanced by learned counsel for the appellant was

that it was improbable that the appellant can dare to burn the

deceased in a single room where the child was present. The fact,

however, remains that the deceased deposed of the appellant being

under the influence of alcohol and the refusal by the deceased to

have sex with the appellant enraged him and caused him to commit

the horrendous act of setting her on fire. We have already noticed

that the defence has produced no material for the theory of suicide

on account of suffering from TB by the deceased.

14. A plea sought to be advanced by learned counsel for the appellant

was that the appellant himself had suffered burns on the hands.

There is admission to this effect by PW-13. The dying declaration

of the deceased clearly points out that the accused sprinkled

kerosene oil on her and setting her ablaze with the help of a

_____________________________________________________________________________________________

matchbox, he placed a quilt on her and in that process injuries on

the hands of the appellant are quite probable.

15. We find that the case against the appellant of having set his wife

on fire has been proved beyond all reasonable doubts and the

appellant cannot escape the consequences of the heinous act. The

trial court has correctly appreciated the evidence on record.

16. The appeal is accordingly dismissed. The bail bond and surety

stand cancelled. The appellant to surrender forthwith failing

which the trial court should take steps to take the appellant into

custody.

SANJAY KISHAN KAUL, J.

JANUARY 15, 2010                                            AJIT BHARIHOKE, J.
b'nesh

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