Shakuntala & Anr. vs State
2010 Latest Caselaw 436 Del

R-30

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                           Date of Decision: 27th January, 2010


+                           CRL A 633/2004


        SHAKUNTALA & ANR.                ..... Appellants
                Through: Mr.Rajesh Mahajan, Advocate


                                   versus


        STATE                                      ..... 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 the Reporter or not?               Yes

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

PRADEEP NANDRAJOG, J. (Oral)

1. Appellants Shakuntala and her son Sushil Kumar

have been convicted for the offence of having murdered

Sheela (wife of Sushil Kumar) by setting her on fire at around

5:15 PM on 28.3.1991 in the residential room of her

matrimonial house bearing No.281, Purani Dakkhaane Wali

Gali, Chota Bazar, Shahdara.

2. In returning the verdict of guilt, the learned Trial

Judge has held that the deceased Sheela who was brought to

GTB Hospital at around 6:25 PM on 28.3.1991 made a dying

declaration to Dr.R.K.B.Chaudhary who had examined Sheela

and as recorded by the doctor on the MLC Ex.PW-8/A she was

burnt after kerosene oil was poured on her by her mother-in-

law. The learned Trial Judge has further held that the

statement Ex.PW-17/A of Sheela recorded by Insp.Dharamvir

Joshi PW-18 was the second dying declaration made by her

and the same records the fact that on the day of the incident,

at around 5:15 PM her mother-in-law quarreled with her. Her

husband gave her beating and broke her teeth. Her mother-in-

law poured kerosene oil on her and set her on fire. Lastly, the

learned Trial Judge has held that the third dying declaration

made by the deceased to her parents Malwati PW-1 (mother)

and Nathu Ram PW-9 (father), when they reached the hospital

on learning about their daughter being set on fire and as told

to them and narrated by them in Court also proved that Sheela

was burnt in her matrimonial house by the appellants.

3. Thus, we would be noting such relevant evidence as

has been brought to our notice which has a bearing upon the

vital question: Whether Sheela has truthfully stated the correct

facts about her death or whether she had some motive to

falsely state incorrect facts or there is any evidence which

destroys the dying declarations made by Sheela; or whether

the I.O. has conducted the investigation with oblique motive.

4. The law pertaining to dying declarations is clear. A

dying declaration which inspires confidence and is without any

blemish can form the basis of a conviction and does not

require any corroboration. However, if evidence is brought on

record which shows that truth could be somewhat different or

casts a doubt on the credibility of the dying declaration, in said

circumstance, unless corroborated, it would be unsafe to

sustain a conviction on a dying declaration. Further, if a

person has made more than one dying declaration, if there is

inconsistencies in the dying declarations, said fact has to be

treated as indicative of not inspiring the credibility of a

purported dying declarations.

5. As noted hereinabove, as recorded in the MLC

Ex.PW-8/A, Sheela was brought to GTB Hospital at 6:25 PM on

28.3.1991. She was having 100% burns. She was found to be

oriented and as recorded by Dr.R.K.B.Chaudhary the alleged

history of the injury was being burnt after kerosene oil was

poured on her by her mother-in-law.

6. Examined as PW-6, Dr.R.K.B.Chaudhary stated that

he was the author of the MLC. On being cross-examined he

stated: 'I do not remember if anything was disclosed by the

patient to me at the time of her medical examination'.

7. It may be noted that Dr.R.K.B.Chaudhary has not

disclosed whether what has been recorded by him in the MLC

was told by the patient herself or by somebody else.

8. Information of a lady being burnt was received at

the local police station and investigation was entrusted to

Insp.Dharamvir Joshi PW-18 who first went to the matrimonial

house of the deceased and therefrom to GTB Hospital, where

he found Sheela admitted in the casualty ward. He recorded

the statement Ex.PW-17/A after obtaining a certification on the

MLC by Dr.R.K.B.Chaudhary at 6:40 PM that the patient was fit

for statement. In the statement Ex.Pw-17/A Sheela stated that

she was a resident of House No.281, Purani Dakkhaane Wali

Gali, Chota Bazar, Shahdara, where she was residing with her

husband Sushil Kumar from the date she got married i.e. 30 th

October, 1990 and that her mother-in-law Shakuntala, along

with other family members were residing at House No.8/7,

Kesari Mohalla, Circular Road, Shahdara that her mother-in-law

used to often visit her and today evening had visited her. At

around 5:15 PM she had a quarrel with her mother-in-law upon

which her husband Sushil gave her a beating and broke her

teeth and her mother-in-law poured kerosene oil on her and

set her on fire.

9. Insp.Dharamvir Joshi PW-18 deposed that he

recorded the statement Ex.PW-17/A of Sheela and obtained

her thumb impressions at point A and B thereon. After making

an endorsement on the statement he sent the same for FIR to

be registered and summoned the SDM of the area. He

deposed that after returning to the spot he prepared the rough

site plan Ex.PW-18/B. He summoned a photographer who took

photographs. That the SDM conducted a site inspection the

next day on receiving information that Sheela had died.

10. On being cross-examined he stated that when he

reached the place of the incident he found the door of the

window of the room was open. To the specific question: 'It is

put to you that from the photographs at the scene the bolting

device of the door of top and bottom from inside were in

removed condition?' He answered: 'It is incorrect that none of

the kundi was broken. However, the broken device bottom

size was little loose and the top bolt was lightly bent.' On

being cross-examined whether the SDM had handed over any

report to him and whether he had mentioned said fact in his

case diary, he stated that he did not want to go through the

case diary. At that stage learned defence counsel showed

photocopy of a paper alleging that it was the copy of the case

diary. The learned APP objected to the witness being cross-

examined with reference to what was recorded in the inner

case diary. The Court recorded that it could see, if required,

the case diary. PW-18 thereafter stated that after seeing the

case diary he was in a position to state that the SDM had

handed over a report to him and the contents thereof were

noted by him in the case diary except one word qua which he

had left a gap.

11. We may note here and now that the said gap

relates to serial No.1 of the inspection report of the learned

SDM, where in the inspection report Ex.PW-16/A, against serial

No.1 it is recorded: '1. No incriminating document/suicide note

was found at the spot'.

12. We may further note here and now that the first

word 'No' is overwritten. In a different pen, upon the original

word which can possibly be read as 'In' or 'One'. We shall be

dealing with this aspect of the matter a little later.

13. Sh.K.K.Siam PW-16, the SDM concerned stated that

when he went to the spot he found no incriminating

document/suicide note. The door appeared to have been

locked from inside at the time of the incident. The main door

had two locks and their appearance at the time of his visit was

as shown by him in his inspecting note Ex.PW-16/A.

14. On being cross-examined he admitted that there

was a overwriting on Ex.PW-16/A and that the overwriting was

on the first word at entry vide serial No.1 in the inspection

report. To the question whether the word 'One' had been

changed into 'No' by overwriting, he stated that the initial

word written by him was 'In' and that he later on corrected the

same by writing 'No'.

15. To the question what was the need to mention that

he did not find any suicide note or incriminating document (for

the reason one normally mention what one finds and not what

does not find) he stated that in some cases he found suicide

notes and for said reason he wrote that in the instant case he

found none.

16. The photographer who was summoned to the spot

i.e. the place where Sheela suffered burn injuries appeared as

PW-14 and stated that photographs Ex.P-1 to Ex.P-7, negatives

whereof are Ex.P-8/1 to Ex.P-8/7 were taken by him.

17. We may note that the photograph Ex.P-1 pertains to

the door of the room where Sheela suffered burn injuries. It

shows that 2 latched are extended across the edge of the door

evidencing that the same were locked and the door had to be

pushed open.

18. Being relevant it is to be noted that vide serial No.4

on Ex.PW-16/A, a fact referred to by Sh.K.K.Siam PW-16, it is

recorded: 'The main door has two locks and their appearance

at the time of my visit is as follows:-'. Thereafter, the door has

been shown by drawing a rectangle. A latch on the upper left

side door and a latch on the left side bottom have been

depicted in small rectangles and it has been recorded on both

latches that there are marks of forcible opening. We may

clarify that the said notation pertains to the part of latch which

is protruding beyond the boundaries of a door. The same

evidences that when locked, the portion of the latch which

projects beyond the boundary of the door and gets inserted on

the hinge affixed to the door frame has marks of forcible

opening.

19. Since Sheela died the next day, her body was sent

to the mortuary of GTB Hospital where Dr.L.K.Barua PW-13

conducted the post-mortem and prepared the report Ex.PW-

13/A, as per which the deceased died due to hypovonumic

shock following 100% burns. He noted smell of kerosene on

the scalp hair and the body.

20. It may be noted that in the post-mortem report of

the deceased and as deposed to by Dr.L.K.Barua he found no

injury on any part of the body except the burn injuries.

21. Relevant for us to note is the fact that neither in the

post-mortem report nor in the testimony of the doctor is the

fact that any tooth much less the teeth of the deceased

was/were broken or that there was any injury evidencing that

the deceased was beaten.

22. The parents of Sheela namely her mother Malwati

PW-1 and her father Nathu Ram PW-9 deposed that since her

marriage, their daughter was being harassed by her in-laws.

Her husband demanded money to start some work. On

28.3.1991 they learnt that Sheela was burnt. They went to

GTB Hospital where Sheela informed that Sushil Kumar had

beaten her and had broken her teeth and that her mother-in-

law had poured kerosene oil on her and set her on fire.

23. Malwati PW-1 has added a fact by stating that as

told by Sheela, her husband i.e. Sushil Kumar had caught hold

of Sheela when her mother-in-law poured kerosene oil on her

and set her on fire.

24. From the facts noted hereinabove the following

strikingly emerges:-

A. The post-mortem report of the deceased rules out

that the deceased was beaten and her tooth/teeth were

broken.

B. The photograph Ex.P-1 and the site inspection

report Ex.PW-16/A evidences that the door of the room in

which Sheela suffered burn injuries was latched and had to be

pushed resulting in the hinges affixed to the door frame

getting loose and leaving marks of forcible opening on the part

of the latches which protrude beyond the edges of the door at

the top and towards the left.

C. On the inspection note Ex.PW-16/A there is a

overwriting on the first word of the recording at serial No.1,

where either the word 'One' or the word 'In' has been changed

to 'No' and the entry at serial No.1 is made to read: 'No

incriminating document/suicide note was found at the spot'.

D. The investigating officer has deliberately, while

noting the contents of Ex.PW-16/A in the case diary omitted

two writings the first word of the entry at serial No.1 in the

note of inspection Ex.PW-16/A.

25. From the last two points noted hereinabove, it is

apparent that the investigating officer has not conducted a fair

investigation. Deliberately, the first word of the evidence

pertaining to the inspection note at serial No.1 has been

omitted to be noted in the case diary. This means that the

original writing of 'One' or 'In', being deliberately not recorded

by the investigating officer to enable him to give a direction to

the investigation as per his wishes and not to ascertain the

truth, cannot be ruled out.

26. Taking note of the said fact it assumes importance

that Ex.PW-16/A i.e. the note for inspection is suggestive of the

fact that the main door was latched inside and had to be

pushed open. This suggests that Sheela had locked the door

from inside. The fact that Sheela claims to have been beaten

by her husband and her tooth/teeth broken, soon preceding

her burning, is falsified from her post-mortem report,

indicates a motive on the part of Sheela to nail her husband

and her mother-in-law, who probably were troubling her for

dowry.

27. The cumulative circumstances aforentoed casts not

only a serious doubt in the fairness of the investigation and

preparation of contemporaneous records but even a doubt

whether Sheela has been telling the truth; requiring the

appellants to be granted the benefit of doubt.

28. The appeal is allowed. The impugned judgment

and order dated 12.8.2004 is set aside. The appellants are

acquitted of the charge of having murdered Sheela.

29. Since the appellants are in jail, copy of this order be

sent to the Superintendent Central Jail Tihar for necessary

action and to be made available to the appellants.

30. Needless to state, if not required in custody in any

other matter, the appellants shall be released forthwith.

PRADEEP NANDRAJOG, J.

SURESH KAIT, J.

JANUARY 27, 2010 mm