Shish Pal vs The State
2010 Latest Caselaw 400 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI



                              CRL.A. NO. 108/1997


                         Judgment reserved on: January 14, 2010
                         Judgment delivered on: January 25, 2010
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SHISH PAL                                           . . . APPELLANT
                          Through :       Mr.Gurbaksh Singh,
                                          Advocate.


                                VERSUS

THE STATE                                          . . .RESPONDENT
                          Through:        Mr. Pawan Sharma, Standing
                                          Counsel.


CORAM :-
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE


1.   Whether Reporters of Local newspapers 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 the Digest?            Yes


AJIT BHARIHOKE, J.

1. This appeal is directed against the judgment of the Additional

Sessions Judge dated 6th February, 1997 in Sessions Case No.

29/1996, FIR No. 19/1994, Police Station Dabri, holding the

appellant guilty of the offence of murder of Ms. Malka punishable

under Section 302 of the Indian Penal Code and also the

consequent order on sentence dated 7th February, 1997 vide which

the appellant was sentenced to undergo rigorous imprisonment for

life and also to pay a fine of Rs.1000/- and in default of payment of

fine to undergo rigorous imprisonment for a further period of six

months with benefit of Section 428 of the Code of Criminal

Procedure.

2. Briefly stated, case of the prosecution is that Ms. Malka

(hereinafter called „the deceased‟) was married to the appellant

and they were living at WZ-810A, Near Shiv Temple, Palam Colony,

New Delhi. It is alleged that on the evening of 9th January, 1994 at

about 7.00 p.m at the above referred house, the appellant and the

co-accused Raj Kumari (could not be arrested during investigation),

in furtherance of their common intention committed murder of the

deceased by pouring kerosene over her and setting her ablaze.

3. The information about the said incident was conveyed to Police

Station Palam Colony vide DD No.35 (Ex.PW8/A). We may note

that in the said DD report it was mentioned that someone had

informed that a tenant of house no.WZ-810A, near Shiv Mandir of

Village Palam has set herself afire after pouring kerosene on her

person and her condition was quite serious. A copy of the DD

report was handed over to the ASI V.P. Singh (PW8) for verification

and he left for the spot of occurrence along with constable Bhoop

Singh, where he found that the injured Ms. Malka had been

removed to the hospital by her husband. On this, he contacted

police post Palam Colony. By that time the injured had already

been admitted in Safdarjung Hospital and an intimation in that

regard was conveyed to the police post Palam Colony by the duty

constable posted at Safdarjung Hospital, which information was

recorded as DD NO.41 (Ex.PW14/A). SI Ved Singh instructed PW8

to stay at the spot of incident and told that he was going to the

hospital.

4. SI Ved Singh on reaching Safdarjung Hospital obtained the MLC of

the deceased Ms. Malka (Ex.PW18/A) on which Dr.Pradeep Tandon

(PW18) had recorded the history, as given by the patient, of

sustaining the burn injuries when her husband and sister-in-law

had caught hold of her and poured kerosene over her and set her

on fire. The patient was declared fit for statement by Dr.S.Dass at

10.15 p.m. and SI Ved Singh recorded her statement, Ex.PW16/A

wherein she disclosed that her jhethani Raj Kumari (wife of the

elder brother of the appellant) and her husband were responsible

for her plight. She disclosed that kerosene oil was poured on her

person by her jhethani Raj Kumari whereas she was set ablaze by

the appellant. Since the statement given by the deceased

disclosed the commission of a cognizable offence, SI Ved Singh

appended his endorsement Ex.PW19/A to the said statement and

sent it to the police station for registration of the case through

constable Jai Ram at 10.25 p.m. On the basis of the said

statement, which was also attested by Dr.Sri Ram Chander Dass,

PW17, a formal FIR was recorded at the police station at 11.10

p.m. and a DD report no.33A was also recorded regarding the

registration of the FIR at the police station.

5. An intimation about the incident was also sent to the area SDM and

his services were requisitioned for recording the dying declaration.

The SDM, however, reached the hospital at 12.15 a.m. on the night

intervening 9th and 10th January, 1994, and by that time the

condition of the deceased had deteriorated and she was declared

unfit for statement. Later, the deceased expired at 1.05 a.m. on

the same night.

6. The Investigating Officer visited to the spot of occurrence from the

hospital. On inspection of the spot, he found one stove Ex.P1, Tava

Ex.P2, clothes Ex.P3, match box Ex.P4, another match box Ex.P5,

burnt match stick Ex.P6, broken pieces of bangles Ex.P7 and a quilt

Ex.P8, lying there, which were seized. A rough site plan of the

spot was also prepared and the Investigating Officer got the scene

of occurrence photographed. On conclusion of the necessary

formalities of investigation, a charge sheet under Section 302/34

IPC was filed against the appellant, showing his co-accused Raj

Kumari as an „absconder‟.

7. The appellant was charged for the offence punishable under

Section 302 read with Section 34 IPC. He claimed to be innocent

and sought to be tried.

8. In order to bring home the guilt of the appellant, prosecution has

examined as many as 19 witnesses. There is no eye witness to the

occurrence. Conviction of the appellant is based solely on two

purported dying declarations made by the deceased. The first

dying declaration is stated to have been made in presence of

PW18 Dr. Pradeep Tandon, who was the first Doctor to examine the

patient and who prepared the MLC of the deceased. The second

dying declaration is stated to have been made by the deceased in

presence of the Investigating Officer, i.e., her statement

Ex.PW16/A, which formed basis for the registration of the case.

The prosecution did examine PW1 Khushi Ram, PW2 Chhattar

Singh and PW3 Indrawati, the brothers and sister-in-law of the

deceased to establish the motive for the crime, but all three of

them failed to support the case of the prosecution and turned

hostile.

9. The defence taken by the appellant in his statement under Section

313 Cr.P.C. is that the deceased committed suicide and the

appellant was not even present at the time of incident. In support

of his defence, the appellant examined his landlord Prem Singh,

DW1, who stated on oath that the appellant was his tenant. On

09.01.94 at around 7:00 or 7:30 pm, the appellant was sitting with

him in his room and they were watching TV. In the meanwhile, the

other tenant Satte came and informed that some smoke was

emanating from the room of the appellant. On this they went to

the room of the appellant and found that the door was bolted from

inside. When they knocked at the door, the deceased opened the

door and she was in flames. He extinguished the flames by

wrapping a quilt around her. DW1 further stated that he informed

the PCR and the appellant removed his wife to the hospital in an

ambulance. He further stated that his statement was recorded by

the police on the same night.

10. Learned counsel for the appellant has submitted that law relating

to the dying declaration is well-settled. The prosecution, in order

to succeed in a case based upon dying declaration, is not only

required to firmly establish that the dying declaration was actually

made by the deceased, but it has also to establish that the

statement was truthful. Learned counsel submitted that in the

instant case, from the testimony of DW1 Prem Singh which finds

corroboration from the DD No.35 (Ex.PW8/A) which is the first

information of the incident received by the police, it stands

established that the deceased actually has committed suicide.

Therefore, the truthfulness of the dying declaration, which is

uncorroborated, comes under cloud. Thus, he has urged us to

extend the benefit of doubt to the appellant. In support of this

contention, learned counsel for the appellant has relied upon the

judgments of Hon‟ble Supreme Court in the matters of Khushal

Rao V. State of Bombay, AIR 1958 SC 22 and Paniben vs.

State of Gujarat, (1992) 2 SCC 474 as also the judgment of

coordinate Bench of this Court in the matter of Geeta and Anr.

vs. State, 163 (209) Delhi Law Times 268.

11. Learned counsel for the State has argued in support of the

impugned judgment. He has submitted that the incident took

place on 09.01.94 at around 7:00 pm and the deceased reached at

the hospital as per the MLC Ex.PW18/A at 8:10 pm. As per PW18

Dr. Pradeep Tandon, the deceased herself gave the history of her

burns and stated that she was set on fire by her husband and her

sister-in-law Raj Kumari after pouring kerosene on her. Learned

counsel for the State has submitted that admittedly at that time,

no friend or relative of the deceased was present. He further

submitted that PW18 Dr. Pradeep Tandon is an unconcerned

person who had no axe to grind with the appellant. Further when

the MLC was recorded, even the Investigating Officer was not

present. Therefore, there is no reason to suspect the correctness

of the dying declaration. He has advanced similar arguments

regarding the dying declaration Ex.PW16/A recorded by the

Investigating Officer, SI Ved Singh, PW19. Thus, he has submitted

that the learned trial Judge has rightly relied on the dying

declaration to convict the appellant.

12. We have considered the rival contentions and perused the record.

13. Even if the above referred dying declarations are taken to be

correctly recorded, then also in order to succeed in this case, the

prosecution is required to establish that the above referred dying

declarations made by the deceased were truthful. It is the case of

the prosecution that motive for the crime was the extra-marital

affair of the appellant with his sister-in-law Raj Kumari (absconding

co-accused), which was objected to by the deceased. That being

the case, a possibility cannot be ruled out that the deceased,

because of the aforesaid reason was so depressed that she

decided to commit suicide and in order to take revenge on the

appellant and his co-accused Raj Kumari, she named them as the

persons responsible for her burn injuries in her statements made to

PW18 Dr. Pradeep Tandon and the Investigating Officer, SI Ved

Singh, PW19.

14. As per the case of prosecution, the first intimation regarding the

incident was received at the police post Palam Colony, New Delhi

on 09.01.94 at 7:22 pm., vide DD No.35 which is proved on record

as Ex.PW8/A, which, inter alia, reads thus:

"Time : 19-22 hrs

At this time, 4.80, informed through wireless that a tenant of H.No. WZ-810-A, near Shiv Mandir of Village Palam had set herself afire after pouring kerosene oil on his person and the condition is quite serious. From HC, Satya Pal, 217 PCR. On receipt of the wireless information a report to that effect was entered in the Roznamcha."

15. If this DD report is to be believed, then the deceased obviously has

committed suicide. DW1 Prem Singh in his testimony has

categorically stated that at the time of incident, appellant was

sitting with him in his room and watching TV and they went to the

spot of incident when his other tenant Satte came and informed

that smoke was emanating from the room of the appellant and

when they reached there, they found the room bolted from inside

and on their knocking at the door it was opened by the deceased,

who was already in flames. DW1 also stated that he conveyed the

aforesaid information to the police. Thus, a possibility cannot be

ruled out that DW1 Prem Singh is stating the truth and that he

conveyed said information to the police, which came to be

recorded as DD report Ex.PW8/A. DW1 Prem Singh also stated that

he extinguished the fire on the person of the deceased by

wrapping a quilt around her body. His aforesaid version also finds

corroboration from the fact that on inspection of the spot of

occurrence, the Investigating Officer did find a quilt lying there.

Under these circumstances, one cannot be sure of the correctness

of dying declarations/statement of the deceased pertaining to the

cause of her fatal injuries made in presence of Dr. Pradeep Tandon-

PW18 or to SI Ved Singh- PW19. In our view, there is a strong

possibility that on being fed up with the extra-marital affair of the

appellant with his sister-in-law, the deceased, who was the wife of

the appellant might have taken recourse to the extreme step of

committing suicide and with a view to punish them, she blamed

them for her burn injuries, which ultimately proved to be fatal.

16. In Khushal Rao V. State of Bombay, AIR 1958 SC 22, the

Supreme Court summarized the principles with regard to dying

declarations as under:

"16......(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

17. In the matter of Paniben vs. State of Gujarat, (1992) 2 SCC

474, the Supreme Court has summed up the principles governing

dying declaration as under:

"18. (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(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.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

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

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks 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.

(x) Where the prosecution version differs from the versions as given in the dying declaration, the said declaration cannot be acted upon." The same position has been reiterated in subsequent decisions of the Supreme Court including that of Vikas v. State of Maharashtra: I (2008) DMC 692 (SC) = II (2008) CCR 280 (SC) = IV (2008) SLT 95 = (2008) 2 SCC 516."

18. In the matter of Geeta and Anr. vs. State, 163 (209) Delhi Law

Times 268, a coordinate Bench of this Court has, inter alia,

observed thus:

"24. The law with regard to dying declarations is quite well settled. It is an established principle that a conviction can be based solely upon a dying declaration. But, before this can be done, the dying declaration must be established to be authentic and correct as well as truthful. Insofar as the authenticity and correctness of the dying declaration is concerned, the prosecution has to establish that the dying declaration in question was, in fact, made by the person who lost his life. Even where it can be established that the statement, which purports to be the dying declaration of the deceased, was in fact made by the deceased, the prosecution has also to establish that the statement was truthful. Of course, it is normally presumed that a dying person in his last moments does not utter any falsehood. But that does not rule out the possibility that in some cases this may not be the position. There may be instances where out of hate or spite a person may falsely implicate his enemy, even in his dying moments. It is also quite possible that the person making the dying declaration is under the influence or control of someone else and out of fear or other reasons,

he may make a false statement prior to his death. There is also a possibility that a person, in order to save his honour and the honour of his family, who would survive him, may make statements which are not entirely correct or truthful. There is also a possibility that the person making the dying declaration is under some medication or because of his precarious condition is suffering from hallucinations and, therefore, the statements he makes at that point of time may be far removed from the truth. It is only when all these circumstances are ruled out and the court is of the belief and opinion that what the dying declaration states is truthful, can a conviction be based upon it without seeking corroboration. A dying declaration must always pass the scrutiny by the Court because, after all, it is merely hearsay evidence and it is admissible and relevant only because the person who made the declaration is no longer alive and cannot be produced before Court for testifying. At the same time, the courts need to exercise caution in relying upon dying declarations because the maker of the statement is not before it and nor does the defence have an opportunity to cross- examine him. Thus, while there is no rule of law which suggests that a conviction cannot be based solely upon a dying declaration, the courts, as a rule of prudence, look for other corroborative material. If the dying declaration is of such a stellar and unimpeachable quality that it fully inspires confidence of the Court, there is nothing to prevent the Court from relying solely on such a dying declaration and on basing a conviction thereupon. But, the emphasis must be on the quality of the dying declaration. If the dying declaration is suspicious or suffers from some infirmity, then it should not be acted upon without any corroborative evidence."

19. Applying above enunciated principles of law to the aforesaid facts

of this case, in particular the testimony of DW1, who is a natural

witness being the landlord, and DD report Ex.PW 8/A, we are of

the view it is not safe to rely upon the dying declarations

purportedly made by the deceased in presence of PW18 Dr.

Pradeep Tandon and PW19 SI Ved Singh in absence of independent

corroboration. We may note that even the brothers and sister-in-

law of the deceased, i.e., PW1 to PW3 have not supported the

case of prosecution.

20. In view of the above discussion, we do not find it safe to sustain

the conviction of the appellant solely on the basis of the dying

declaration of the deceased. We are of the view that this is a fit

case in which the benefit of reasonable doubt should be extended

to the appellant. We accordingly accept the appeal and set aside

the impugned judgment of conviction and consequent order on

sentence. The appellant is acquitted giving him benefit of doubt.

21. The appellant is on bail. His bail bond and surety bond are

discharged.

AJIT BHARIHOKE, J.

JANUARY 25, 2010                      A.K. SIKRI, J.
sk/pst