Delhi High Court
Gurcharan vs State on 8 January, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 08th January, 2010
+ CRL. A. No. 643/2003
GURCHARAN ..... Appellant
Through: Ms. Rakhi Dubey, Advocate
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Advocate
CRL. A. No. 638/2003
ARUN ..... Appellant
Through: Mr. Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Advocate
CRL. A. No. 845/2003
RAMPAL ..... Appellant
Through: Mr. Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Advocate
CRL. A. No. 123/2004
GEETA & ORS. ..... Appellants
Through: Mr. Bhupesh Narula, Advocate
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Advocate
CRL. A. No. 596/2003
ASHOK KUMAR ..... Appellant
Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 1 of 36
Through: Mr. Bhupesh Narula, 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 Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
PRADEEP NANDRAJOG, J. (Oral)
1. The name of the deceased is Kamlesh. The
relationship of the accused person with Kamlesh may be
noted.
2. Gurucharan Singh, the appellant in Crl.A. No.643/03
is her husband. Bal Saroop and Chandi, who died during trial,
were her father-in-law and mother-in-law respectively. Arun,
the appellant in Crl.A.No.638/03 is the younger brother of
Gurucharan Singh. Geeta, the appellant No.1 in
Crl.A.No.123/04 is the wife of Arun. Rani and Nirmala,
appellants No.2 and 3 in Crl.A. No.123/2004 are the sisters of
Gurucharan Singh. Rampal and Ashok Kumar, the appellants
of Crl.A.No.845/04 and Crl.A.No.596/04 respectively are the
husbands of Rani and Nirmala respectively. Manju, acquitted of
all charges framed against her by the learned trial judge is the
sister-in-law of Kamlesh being the wife of the real brother of
Kamlesh.
3. The husband, parents-in-law of Kamlesh, her two
sisters-in-law (nanads) and their respective husbands i.e. the
two nandois of Kamlesh, her younger brother-in-law, his wife
and her sister-in-law Manju i.e. 10 persons were accused in FIR
No.171/99, PS Mansoravar Park under Sections 498-
A/302/109/34 IPC. Four of them; namely Gurucharan, his
younger brother Arun, Arun‟s wife Geeta and Nirmala, the
sister of Gurucharan, were accused in FIR No.149/99 PS
Bhajanpura under Sections 498-A/406/506/34 IPC.
4. We note that both afore-noted FIRs were clubbed
for trial and charge under Section 302/34 IPC were framed
against Gurucharan Singh, Arun, Geeta, Rampal, Rani, Ashok
Kumar, Nirmala, Chandi and Bal Saroop. Manju was charged
for having committed the offence punishable under Sections
302/109 IPC. All of them except Manju were charged for
having committed the offence punishable under Section 498-
A/34 IPC. Gurucharan and his parents were charged for the
offences punishable under Section 406/34 IPC. Charge under
Section 506/34 IPC was framed against Bal Saroop, Chandi,
Gurucharan, Arun and Geeta Devi.
5. Kamlesh and Gurucharan were married on
22.04.1990. Unfortunately, the marriage turned turbulent
after about 3-4 years and reached a crescendo in the year
1997 when on 13.01.1997 Kamlesh addressed a
communication Ex.PW-9/A to the Crime Branch, Women Cell,
Nanakpura informing that her husband, her parents-in-law, her
devar Arun, his wife Geeta, her nanad Smt.Nirmala used to
harass her for dowry and was compelled to leave her
matrimonial house and live with her parents.
6. Surprisingly, in her further complaint she started
inculpating Manju, the wife of her deceased brother who was
residing with her i.e. Manju‟s father as an instigator. We note
that Manju had lodged a complaint with the police for dowry
harassment in which she had named her husband, her parents-
in-law and her sister-in-law Kamlesh alleging that Kamlesh
used to instigate her brother i.e. Manju‟s husband to harass
Manju to compel Manju‟s parents to give dowry.
7. On a complaint filed by Kamlesh FIR No.149/99 PS
Bhajanpura for the offences punishable under Sections 498-
A/406/506/34 IPC was registered against Chandi, Bal Saroop,
Gurucharan, Arun, Geeta and Nirmala on 20.03.1999.
8. With the intervention of family friends, the marital
discord between husband and wife i.e. Kamlesh and
Gurucharan was resolved and Kamlesh who had left her
matrimonial house returned with an assurance that she would
not be troubled. Unfortunately, the return journey of Kamlesh
to her matrimonial house proved dangerous for her.
9. On 13.07.1999 at around 7.00 A.M. Kamlesh
suffered burn injuries in her matrimonial house and she was
taken to GTB hospital by Saraswati, the wife of the elder
brother of Gurucharan. It be noted that Saraswati and her
husband reside in the neighbourhood where the matrimonial
house of Kamlesh was situated.
10. Information being given at the concerned Police
Station i.e. PS Mansarovar Park of a lady being burnt, SI
Aishveer Singh PW-25 accompanied by Ct.Narender and
Ct.Ramesh Kumar reached the hospital and collected the MLC
Ex.PW-22/A of Kamlesh who was found admitted in the
casualty in a burnt condition. The Sub Divisional Magistrate of
the area Sh.Prakash Chand PW-19 was requested by SI
Aishveer Singh to reach the hospital. This information was
conveyed to Sh.Prakash Chand at around 9.00 A.M. on
13.07.1999 and he reached the hospital at around 10.15 A.M.
At point „A‟ on the MLC Ex.PW-22/A, Sh.Prakash Chand
obtained the certification pertaining to the fitness of Kamlesh
from Dr.Sanjay Kapil PW-22 and proceeded to record the
statement Ex.PW-19/A of Kamlesh.
11. The statement Ex.PW-19/A of Kamlesh is in
question-answer form and has been scribed in Devnagri script.
The translated version of the statement reads as under:-
"Q. What is your name?
A. Kamlesh.
Q. Name of your Husband?
A. Gurucharan.
Q. How many years since you got married?
A. 9 years.
Q. How did you get burnt?
A. In the morning, my mother-in-law Chandi, father-in-
law Bal Saroop, sister-in-law (Nanad) Rani, sister-in-law
(Nanad) Nirmala, brother-in-law (Nandoi) Ashok Kumar,
brother-in-law (Nandoi) Ram Pal, brother-in-law (devar)
Arun, Devrani Geeta wife of Arun and husband
Gurucharan, gave me beatings. Thereafter, when I went
to my room to sweep the floor, all of them followed me
into the room and my sisters-in-law (nanad and devrani)
caught hold of me. My husband rushed out and brought
kerosene oil in a plastic can and spilt it over me. My elder
sister-in-law Rani then set my saree on fire by lighting a
match stick. Both my Nandois (brothers-in-law), my
parents-in-law and my devar and devrani caught hold of
me and by doing so they prevented me from running
away. This incident took place at 7:00 AM in the
morning. My bhabhi Manju who resides in Uttam Nagar is
also an accomplice in the incident. She used to tell the
others to finish off the daily duels at once. Even last
evening she had visited our house.
Q. Who brought you to the hospital?
A. My jethani Saraswati, brought me to the hospital in
a rickshaw.
Q. Why have you been burnt?
A. They burnt me because of inadequate dowry.
Q. What all did they demand for dowry?
A. My mother-in-law and sister-in-law demanded
house and land from me.
Q. What does your father do?
A. He does labour work. The land belongs to my
grandfather, it must be some 100-200 yards in area.
Q. When did you get married?
A. 12.4.1990.
Q. What was the dowry given in your marriage?
A. All that could be given as per our means was
given."
12. After recording the statement Ex.PW-19/A and
obtaining the left toe impression of Kamlesh thereon for the
reason her hands were affected by the burns, Prakash Chand
handed over the statement to SI Aishveer Singh PW-25, who
made an endorsement Ex.PW-25/A beneath the statement and
directed Ct. Narender to go and get registered the FIR.
13. Saraswati, the sister-in-law of Kamlesh who had
removed Kamlesh to hospital met SI Aishveer Singh in the
hospital and he recorded her statement under Section 161
Cr.P.C. and proceeded to the spot where Kamlesh had received
burn injuries in the company of Saraswati i.e. he went to the
matrimonial house of Kamlesh and with the assistance of
Saraswati prepared the rough site plan Ex.PW-25/B. He
summoned photographer Ashok PW-10, who took six
photographs Ex.PW-10/1 to Ex.PW-10/6; negatives whereof are
exhibited as Ex.PW-10/7 to Ex.PW-10/12 of the house where
Kamlesh suffered burn injuries. At the spot, SI Aishveer Singh
lifted a torn match box, burnt match sticks, two semi burnt
match sticks, burnt pieces of clothes, plastic bottle and a
plastic tin can as recorded in the seizure memo Ex.PW-21/A.
14. Kamlesh could not survive and died at around 4:15
AM on 14.7.1999 i.e. she died the next day after she suffered
the burn injuries.
15. The dead body of Kamlesh was sent to the
mortuary of Maulana Azad Medical College where Dr.Yogender
Bansal conducted the post-mortem and prepared the report
Ex.PW-20/A opining that the death was due to burn shock
consequent to burn injuries. He noted that no smell of
kerosene was present over the body. He preserved the scalp
hair of the deceased and handed over the same to the
investigating officer so that the same could be subjected to
forensic examination pertaining to the presence of any
inflammable material on the scalp hair.
16. SI Mukesh Kumar PW-11, a draftsman was taken by
SI Aishveer Singh to the matrimonial house of Kamlesh on
26.7.1999, where with the assistance of SI Aishveer Singh he
prepared the site plan to scale Ex.PW-11/A.
17. In the site plan he marked the spots „A‟ to „I‟ as
under:-
"A. Shows the place where Smt.Kamlesh W/o
Gurcharan was stated to be burnt.
B. Shows the place where burnt clothes, were lying.
C. Shows the place where burnt saree, was lying.
D. Shows the place where burnt cloth/ash, were lying.
E. Shows the place where burnt ash, were lying.
F. Shows the place match sticks, were lying.
G. Shows the place where match box, was lying.
H. Shows the place where „plastic dibba‟ having
kerosene oil smell, was lying.
I. Shows the place on table where plastic bottle
having kerosene oil smell, was lying."
18. Since much turns on the site plan in the context of
the credibility of the dying declaration i.e. the statement
Ex.PW-19/A recorded by Shri Prakash Chand PW-19, it would
be useful if we pen profile the site plan to scale Ex.PW-11/A.
19. The house i.e. matrimonial house of the deceased is
divided into six near equal rectangular portions. Back to back
three rectangular portions are at the rear of three equal
rectangular portions in the front. The three rectangular
portions in the front consist of one rectangle, being a room,
towards the western boundary of the plot. It opens into an
open space having a tin shed covering half space forming the
rectangular block in the centre. Point „G‟ has been marked in
this place from where the match box was lifted. Towards the
east is the third rectangular block consisting of a store towards
the south and a bathroom towards the northern side. Point „B‟
has been marked in this bathroom where burnt clothes were
lifted as recorded in the site plan.
20. The three rectangular portions at the rear towards
the northern boundary of the plot, consist of a living room
towards the western boundary and in this room point „E‟ has
been marked where from burnt cloth was lifted.
21. The centre rectangular space consists of three
portions. Two portions abutting the northern boundary of the
plot are the two kitchens. The remaining space is covered by
sheets and has been shown as a verandah. Points „G‟, „H‟ and
„I‟ have been marked in the said central rectangular block.
Point „G‟ is at the door connecting the room on the third
rectangular block towards the eastern boundary. From this
spot a match box was lifted. Spot „H‟ and „I‟ are at the door of
one out of the two kitchens, being the kitchen abutting the
room where the spot „E‟ has been marked. From the said two
spots i.e. spot „H‟ and „I‟, a plastic can and a plastic bottle were
seized as recorded in the site plan.
22. The most important to be noted is the description of
the third rectangular block at the rear, abutting the northern
boundary, in which spots „A‟, „D‟ and „F‟ have been marked.
About 1/3rd portion thereof towards the front is the landing of
the staircase where from the flight of steps lead up to the first
floor above. Remaining portion admeasures 262 cm x 280 cm.
This would mean 9‟3" x 8‟6" = 80 sq.ft. (approximately). In
this room a diwan measuring 125 cm x 186 cm, an iron box
measuring 110 cm x 63 cm, and a table measuring 46 cm x 92
cm and a small dressing table, measurement whereof has not
been noted, are lying along the walls of the room. In the
remaining floor area, points „A‟, „D‟ and „F‟ have been marked,
which as per the site plan are; Point „A‟ being the place where
Kamlesh was burnt, Point „D‟ being the place where from burnt
cloth and ash were lifted and point „F‟ being the place where
from match sticks were lifted.
23. With reference to this room, where Kamlesh was
statedly burnt, as noted above, the total area of the room is
approximately 80 sq.ft. out of which approximately 45 sq.ft.
space has been consumed by the diwan, the iron box, the
table and the dressing table in the room; meaning thereby, the
vacant remaining floor area is about 35 sq.ft.
24. At the trial, Prakash Chand PW-19 who had
recorded the statement Ex.PW-19/A of Kamlesh proved the
said statement and stated that he had scribed the same. He
stated that he obtained the certification of fitness pertaining to
Kamlesh from the doctor on duty before recording the
statement. Dr.Sanjay Kapil PW-22 who had treated Kamlesh
and had prepared her MLC Ex.PW-22/A not only proved the
MLC but additionally proved that the certification at point „A‟
on the MLC was in his hand. Thus, the prosecution
successfully established that Kamlesh was fit for statement
when her statement Ex.PW-19/A was recorded.
25. Needless to state, in respect of the offence
punishable under Section 302 IPC, the learned Trial Judge has
relied solely on the said statement of Kamlesh, for the reason
independent thereof, there is no other incriminating evidence
against the accused pertaining to Kamlesh being burnt. We
clarify that the other evidence pertains to Kamlesh being
troubled for dowry and said evidence would be noted by us
while dealing with the issue of motive and the charge
pertaining to the offence punishable under Section 498-A IPC.
26. We may note at this stage that the various exhibits
which were seized at the spot by SI Aishveer Singh as recorded
in the seizure memo Ex.PW-21/A as also the scalp hair of
Kamlesh were sent to the Forensic Science Laboratory to
ascertain whether any kerosene oil or any other inflammable
material could be detected thereon. The report submitted by
the Senior Scientific Examiner, which we note has remained
unexhibited at the trial, but is available at page 551-552 of the
Trial Court Record, records that no inflammable oil or residues
thereof could be detected on any of the exhibits i.e. burnt
cloth pieces and burnt material, the plastic bottle and the
plastic container as also the broken match box pieces and the
burnt match sticks which were lifted from the spot. No
inflammable oil or residue thereof could be detected on the
scalp hair of Kamlesh.
27. To prove dowry demand and subjecting Kamlesh to
cruelty on account of non fulfillment of the dowry demand, the
star witnesses of the prosecution at the trial were Rajesh
Kumar PW-4, the brother of Kamlesh; Bhim Singh PW-9, the
father of Kamlesh and Satyawati PW-23, the mother of
Kamlesh.
28. Briefly noted, all three deposed that Kamlesh was
subjected to extreme harassment on account of dowry
demand by her in-laws. The parents-in-law and Gurucharan,
the husband of Kamlesh were specifically indicted by all as the
prime demanders of dowry. Arun, Geeta and Nirmala were
also named by them with instances when the said three acted
against Kamlesh. Specific instances when Gurucharan
demanded money as also when he gave beating to Kamlesh on
account of dowry demand not being met were highlighted by
the parents and brother of Kamlesh. The three witnesses
highlighted that Kamlesh used to tell them that her husband,
her in-laws, her devar Arun, her devarani Geeta and her Nanad
Nirmala used to specifically harass her on account of not
bringing adequate dowry. The complaint Ex.PW-9/A dated
13.1.1997 made for the first time by Kamlesh to a statutory
authority was proved by Bhim Singh PW-9 who identified
Kamlesh‟s signatures on the complaint. All three stated that
when they met Kamlesh in the hospital after she was burnt,
she told them that all the persons charged for the offence of
murdering Kamlesh were involved in Kamlesh being burnt and
that the role of each was as per the statement Ex.PW-19/A
made by Kamlesh before the learned Sub Divisional
Magistrate.
29. We need not note any other evidence as learned
counsel for the parties concede that the fate of the instant
appeals would rest upon the view which would be taken by this
Court pertaining to the statement Ex.PW-19/A made by
Kamlesh to Prakash Chand PW-19, the Sub Divisional
Magistrate of the area concerned. Additionally, with respect to
the other offences of which the accused were charged, counsel
concede that the issue needs to be decided with reference to
the testimony of the parents and the brother of Kamlesh; the
contents of her complaint Ex.PW-9/A made to the Crime
Against Women Cell on 13.1.1997.
30. Vide impugned judgment and order dated
15.7.2003, noting that Chandi and Bal Saroop, the parents-in-
law of Kamlesh died during the trial, her husband Gurucharan,
both Nanads i.e. Rani and Nirmala, their husbands i.e. Ashok
Kumar and Rampal, her devar Arun and devarani Geeta have
been convicted for the offence punishable under Section
302/34 IPC. Manju, the bhabhi i.e. the wife of the deceased
brother of Kamlesh has been acquitted of the offence
punishable under Section 302/109 IPC for the reason there was
no evidence of her abetting the crime. The sole statement in
the dying declaration Ex.PW-19/A of Kamlesh that even Manju
was an accomplice has been found to be insufficient evidence
to convict Manju; obviously for the reason Manju was not
stated to be present in the house when Kamlesh suffered burn
injuries.
31. Pertaining to the offence punishable under Section
498-A/34 IPC; noting that the parents-in-law of Kamlesh were
dead, Gurucharan, Arun, Geeta and Nirmala have been
convicted for the offence punishable under Section 498-A/34
IPC. The sole surviving accused pertaining to the offence
under Section 406/34 IPC i.e. Gurucharan, the husband of
Kamlesh, has been acquitted. All accused charged for the
offence punishable under Section 506/34 IPC have been
acquitted.
32. Pertaining to the convictions for the offence
punishable under Section 302/34 IPC, all accused so convicted
have been sentenced to undergo imprisonment for life. The
four accused who have been convicted for the offence
punishable under Sections 498-A/34 IPC have been sentenced
to undergo imprisonment for three years and pay a fine in sum
of Rs.1,000/-; in default of payment of fine to undergo rigorous
imprisonment for one month.
33. With respect to the statement Ex.PW-19/A of
Kamlesh, a perusal of the impugned judgment shows, that two
points have been urged before the learned Trial Judge to
impress upon the Court that the statement Ex.PW-19/A could
not be believed. It was firstly urged that in view of the fact
that Kamlesh was severely burnt it is highly improbable that
she would have been fit when Prakash Chand PW-19 reached
the hospital to record her statement. It was highlighted that
as per Dr.Sanjay Kapil, who had initially treated Kamlesh, he
had treated her only for about 15 minutes. It was pointed out
that the learned Sub Divisional Magistrate had concluded the
recording of the statement at 10:55 AM as stated by him. It
was thus urged that it was doubtful whether the statement in
question, was the one which was made by Kamlesh. It was
urged that the Sub Divisional Magistrate has colluded with the
parents of Kamlesh who had reached the hospital by the said
time, to record a false version.
34. The second point urged before the learned Trial
Judge, noted in para 33 of the impugned decision, is that as
per Kamlesh‟s statement, 9 people had taken part when she
was burnt. It was urged that Kamlesh being the 10th person in
the room, with reference to the dimensions of the room in
Ex.PW-11/A, it was impossible that Kamlesh was set on fire as
stated by her. It was highlighted that the vacant floor space in
the room was merely 35 sq.ft. in which 10 persons could
barely squeeze in and it was just not possible for 6 to catch
hold of Kamlesh and the others to set her on fire and that too
when none received even the faintest of burn injury. In this
connection, as a limb of the same argument, it was urged that
as per Kamlesh, after her husband threw kerosene oil on her
and Rani set her saree on fire, her two nandois, her parents-in-
law, her devar and devarani i.e. 6 persons caught hold of her
thereby preventing her from running away was belied from the
two facts. Firstly that none of the said six persons had any
burn injuries on them. It was urged that had 6 persons
continued to catch hold of Kamlesh when she was set on fire
they would have suffered, if not more, at least superficial burn
injuries. This not being so, it was obvious that none of them
had participated in the crime as claimed by Kamlesh.
Secondly it was urged that the site plan Ex.PW-11/A lists the
points „A‟ to „I‟ where Kamlesh was burnt; burnt clothes, burnt
ash, burn match sticks, match box and plastic can and bottle
respectively were lifted. With reference to the said places
where burnt clothes and ash were lifted, it was highlighted
with reference to the site plan that it is apparent that having
received burn injuries at point „A‟, being the room in the 3rd
rectangular portion of the house as shown in the site plan, it is
apparent that Kamlesh ran to point „E‟ which was the room
opposite the open court yard as also to point „B‟, where in the
bath room, burnt clothes were lifted. It was thus urged that it
is apparent that on catching fire, Kamlesh ran helter skelter
and was not prevented from running as stated by her in her
statement Ex.PW-19/A.
35. On the issue of Kamlesh being fit for statement, in
the light of the testimony of PW-22 and the certification on the
MLC of Kamlesh as also the testimony of Prakash Chand, the
learned Trial Judge has returned a finding that the same
establishes that Kamlesh was fit for statement at 10:25 AM
when the learned Sub Divisional Magistrate commenced
recording her statement and that she continued to remain in a
fit condition till around 11:00 AM when the learned Sub
Divisional Magistrate completed the recording of her
statement Ex.PW-19/A.
36. Mr.Bhupesh Narula, learned counsel for the
appellants assisted by Ms.Rakhi Dubey made some attempt to
urge to the contrary while arguing the appeals, but noting the
testimony of PW-22; the MLC Ex.PW-22/A of Kamlesh gave up a
the challenge to Kamlesh‟s consciousness when her statement
Ex.PW-19/A was recorded.
37. We thus concur with the view taken by the learned
Trial Judge that there is sufficient evidence to hold that
Kamlesh was fully conscious when her statement Ex.PW-19/A
was recorded and that whatever she spoke was correctly
recorded by the learned Sub Divisional Magistrate who had no
motive to falsely record something not spoken of by Kamlesh.
38. Noting that there was evidence of Kamlesh being
harassed for dowry, the learned Trial Judge has held that the
motive for the crime was established i.e. non-fulfillment of the
lust of the accused to satisfy the desire for wealth flowing to
them from the parents of Kamlesh and hence the foundation
for the crime. Referring to various decisions of the Supreme
Court that a dying declaration needs no corroboration if the
Court is satisfied that the maker of the dying declaration was
conscious when the statement was made, the learned Trial
Judge has held that there was nothing on record to disbelieve
the statement Ex.PW-19/A. The result is the conviction of the
appellants for the offence punishable under Section 302/34
IPC.
39. Before proceeding to analyze the evidence
pertaining to the statement Ex.PW-19/A a glaring fact which
has been ignored by the learned Trial Judge needs to be noted.
In the statement Ex.PW-19/A Kamlesh has stated that her
Bhabhi Manju was also an accomplice in the incident. The
learned Trial Judge has ignored the fact that Manju had lodged
a complaint against her in-laws and her late husband in which
she had inculpated Kamlesh as an accomplice. It is apparent
that Kamlesh has used the unfortunate incident of her being
burnt to settle scores with Manju meaning thereby that the
consciousness of Kamlesh was used by her to seek vengeance
on whomsoever she so desired. Another glaring fact to be
noted is that Rani and Nirmala i.e. the two married sisters of
Gurucharan reside with their husbands in their own
matrimonial house, address whereof was furnished by the
investigating officer in the challan filed. Keeping into account
that Kamlesh received burn injuries in her matrimonial house
at 7:00 AM on a Tuesday i.e. a working day, the probability or
otherwise of said four persons i.e. the nanads and the nandois
of Kamlesh in the matrimonial house of Kamlesh required a
microscopic examination. In view of the past acronym a
possible motive did exist for Kamlesh to falsely implicate
innocent members of the family of her husband.
40. Having perused the decision of the learned Trial
Judge, we note that after noting the contentions urged that it
was not possible for 10 people to fit into the room where
Kamlesh suffered burn injuries and the fact that the burnt
pieces of clothes and ash were lifted from three different
rooms in the house, shows that Kamlesh ran helter skelter and
was not held down as claimed by her, we find that the learned
Trial Judge has failed to deal with the said submission in the
manner it was expected to be dealt with. The learned Trial
Judge has brushed aside the submission by recording:
'However, as per the dying declaration, 9 persons had entered
the room, not to stand there comfortably but to commit the
offence. Hence, this does not refute or negate version of the
deceased, nor render it as factually incorrect or impossible'.
41. In offences inviting extreme penalty of
imprisonment for life or death, it is expected that every point
urged would be dealt with by razor sharp precision and sound
logical reasoning and not on the ipsit dixit of a Judge.
42. We refer once again to the pen profile of the room
in which Kamlesh was set on fire. We refer to paras 19 to 23
herein above. The room in which Kamlesh received burn
injuries, ad-measures 9‟3" x 8‟6" i.e. approximately 80 sq.ft. It
has a diwan ad-measuring 125 cm x 186 cm, an iron box ad-
measuring 110 cm x 63 cm, a table ad-measuring 46 cm x 92
cm and a small dressing table, measurements whereof have
not been recorded. The said four articles are kept along the
walls of the room. It is apparent that of the 80 sq.ft. area in
the room, approximately 45 sq.ft. place has been consumed by
the said four articles, leaving unoccupied only 35 sq.ft. of floor
area.
43. The normal cage of a lift ad-measures 6‟ x 6‟ i.e.
has an area of 36 sq.ft. Experience tells us that if 10 adults
enter such a space, no space is left for free movement of
hands. Everyone has to stand erect.
44. Is it possible that 9 persons squeeze themselves
into an area of 35 sq.ft. and set on fire Kamlesh, the 10th
person inside the room, in the manner claimed by Kamlesh? If
yes, is it possible that none of them suffered even minor burn
injuries?
45. We refer back to the statement of Kamlesh which
we have noted in para 11 above. She claims that when she
was in her room sweeping the floor, all accused, 9 in number,
followed her. Her nanand and devrani caught her. Her
husband rushed out and brought kerosene oil in a plastic can
and spilled it over her. Her elder sister-in-law Rani set her
saree on fire. Her nanad, her parents-in-law, her devar and
devrani caught her and by doing so prevented her from
running away.
46. If this is the manner in which Kamlesh was burnt, it
is apparent that there was jostling inside the room with
Kamlesh attempting to ward off the assault and she being
pinned down and even after she was set on fire, she was
continued to be caught hold of.
47. Thus, the learned Trial Judge has totally gone off, at
a tangent, when the argument urged before the learned Trial
Judge has been negated, by holding that 9 persons had
entered the room not to stand their comfortably, but to
commit the offence. The learned Trial Judge lost sight of the
fulcrum of the argument, which was that 10 persons cannot
even comfortably fit into the 35 sq.ft. area; what to talk of 9
committing the offence in the manner alleged by Kamlesh.
48. It is obvious that the learned Trial Judge has been
swayed by emotions and has rendered emotive conclusions
and not reasoned conclusions, as are required by law.
49. It is highly improbable that in the vacant space ad-
measuring 35 sq.ft., 9 persons could have participated in the
commission of the crime as claimed by Kamlesh and none of
them would receive even the slightest burn injury.
50. That Kamlesh has run helter skelter in her house
shows that her statement that she was prevented from saving
herself and even after she was set on fire 6 accused continued
to catch hold of her, is prima facie belied from the scene in the
house. The scene in the house tells its own story of truth. The
story told is that Kamlesh ran from the spot „A‟ where she was
set on fire or caught fire, to spot „B‟, „C‟ and „D‟. The said
spots are in three different rooms. It is obvious that Kamlesh
was not pinned down to any particular place.
51. As noted above, another very important fact has
been lost sight of by the learned Trial Judge; probably for the
reason the attention of the learned Trial Judge was not drawn
to the said fact. The said fact is that Kamlesh received burn
injuries at 7:00 AM. The accused Rani and Nirmala are the
sisters of her husband. They were married when the crime
took place. Their husbands are Rampal and Ashok Kumar.
52. We note that there is no evidence led by Rampal or
Ashok Kumar as to where they were residing. But being the
sons-in-law of the family it is expected that they would not be
residing in the same house in which the deceased was
residing.
53. The site plan Ex.PW-11/A shows that the
matrimonial house of the deceased had only 3 living rooms, a
store, a bathroom and two kitchens with sufficient open space
inside the house. It is difficult to believe that the husband of
Kamlesh and Kamlesh herself, her parents-in-law, her devar
and his wife as also her two married sisters-in-law (nanads)
and their husbands would be living in so less accommodation.
54. Truth, it is said, has an insidious habit of oozing out.
The memo of parties of the impugned judgment, which we
note is a reflection of the charge sheet filed, shows Rampal as
resident of House No.234, Mallu Pura, Muzzafar Nagar, UP. His
wife Rani is also shown as a resident of the said house. Ashok
Kumar has been listed as a resident of House No.236, B-Block,
Kachhi Colony, Gagan Vihar, Loni, Ghaziabad. His wife Nirmala
is shown as a resident of the said house. Thus there is
evidence on record to show that Rampal, his wife Rani as also
Ashok Kumar and his wife Nirmala were not residing in the
same house as that of deceased Kamlesh.
55. Now, it assumes further importance that the date
13.7.1999 happens to be a Tuesday. It is highly improbable
that the married nanads of Kamlesh and their husbands would
travel all the way to Kamlesh‟s matrimonial house before 7:00
AM to commit the crime. We note that there is no evidence
that the two married daughters with their husbands had
stayed overnight in the house where the deceased was
residing with her husband and her in-laws.
56. The four-fold facts i.e. (i) the nandois and nanads of
Kamlesh being residents of different houses situated far away
from the matrimonial house of Kamlesh and would not be
expected to be in Kamlesh‟s matrimonial house before 7:00
AM on 13.7.1999; (ii) the fact that only 35 sq.ft. space area
was available in the room where Kamlesh caught fire makes it
highly improbable that 9 persons participated in the
commission of the crime as claimed by Kamlesh; (iii) that
Kamlesh ran helter skelter establishes her not being pinned at
a single spot and (iv) no kerosene or residue thereof being
detected on any of the burnt clothes or any other material
lifted from the room makes it highly improbable that Kamlesh
was set on fire in the manner claimed by her.
57. We concede to the submission urged by learned
counsel for the State that all the accused have falsely stated
when questioned under Section 313 Cr.P.C. that the deceased
caught accidental fire, for the reason the place where Kamlesh
was set on fire or caught fire is not the kitchen outside whereof
the plastic can and the plastic bottle have been seized, but is
the room where she probably slept with her husband. The
question of Kamlesh catching accidental fire in the said room is
totally ruled out.
58. But we do not know as to who did what! Having
found serious improbability in the version of Kamlesh we have
no other material on which we can segregate the role of the
accused.
59. Before proceeding further, we may note that there
is evidence of Kamlesh having a grouse against each and
every member of the family. We note that she was an accused
in a complaint lodged by her Bhabhi Manju and that is the
reason why she has even inculpated Manju whose involvement
is obviously an act of vengeance. There is thus evidence that
Kamlesh used the unfortunate incident to give vent to her
motive and implicate even innocent persons against whom she
bore a grudge.
60. In the decision reported as 2006 (3) SCC 161 P.Mani
Vs. State of Tamil Nadu the Supreme Court cautioned that
where a motive surfaces for false implication in a dying
declaration, the eyebrows of the Court should rise and should
not fall unless independent corroboration is found to a dying
declaration. It was highlighted that where motive for false
implication is found it would be unsafe to sustain a conviction
on an uncorroborated dying declaration.
61. The fact that married sisters-in-law and their
husband who were not even residents of the same house have
been inculpated in an offence which took place at 7 O‟ clock in
the morning, coupled with the fact that it is difficult to expect
that 9 persons could have acted in the manner as claimed by
Kamlesh in a small area of 35 sq.ft. and lastly on account of
the fact that Kamlesh has used the unfortunate incident to
make a motivated statement, we are compelled to hold that in
the absence of any corroborative evidence it would be unsafe
to rely upon the statement Ex.PW-19/A i.e. the dying
declaration of Kamlesh.
62. In the decision reported as AIR 2005 SC 97 State of
Maharashtra Vs. Sanjay D. Rajhans the evidence established
that the wife died not an accidental death. The version given
by the wife in her dying declaration inculpating her husband
i.e. her death being homicidal was found to be improbable.
Her husband who was present by her side gave a version of
the wife dying a suicidal death, which was found to be equally
false. The Supreme Court concluded, in para 17, that where
the version of homicide set up by the prosecution as well as
the version of suicide set up by the accused (both) appear to
be highly improbable and do not inspire confidence in the light
of the Court to believe either version, the Court is left with no
option but to return a verdict of not guilty by giving the benefit
of doubt to the accused.
63. This takes care of the submission advanced by
learned counsel for the State that the version of the accused
that the deceased caught accidental fire in the kitchen is false
and hence an adverse inference needs to be drawn against
them.
64. It is true that at 7:00 AM family members are
expected to be in the house and for said reason one may
possibly hold that the in-laws of the deceased, her husband,
her brother-in-law and sister-in-law were present in the house.
It is equally true that none of them came to the rescue of the
deceased. But, it would not be permissible for us to draw an
inference of guilt against the said 6 persons or any of them, for
the simple reason, may be one, may be two, may be three or
may be all participated in what may have happened. We
cannot theorize or speculate. In this connection it is important
to note that the site plan Ex.PW-11/A shows two kitchens in the
house suggestive of the fact that two messes were being run,
meaning thereby there is some evidence that probably
Kamlesh and her husband were conceptually living separate
from the parents-in-law, the brother-in-law and his wife of
Kamlesh.
65. We reiterate that the law declared by the Supreme
Court in Sanjay D. Rajhans‟s case (supra) requires benefit of
doubt to be extended to the husband, the brother-in-law
(devar), his wife and the parents-in-law of the deceased (who
have since died).
66. We clarify: where the version of the prosecution
becomes doubtful and no other clear version emerges, it would
not be permissible for a Court to render speculative reasoning
based on the moral worth of the conduct of the accused. We
hasten to add a caveat. If there is otherwise unimpeachable
incriminating evidence, conduct of a person as an
incriminating evidence can be put in the weighing scales, to
ascertain where the scales rest.
67. It is settled law that such dying declarations which
inspire confidence are sufficient, on proof of the dying
declaration being made, to sustain a conviction. But, where a
doubt arises in the mind of the Court with respect to the
contents of a dying declaration or where the dying declaration
does not inspire confidence and especially where there is
evidence of a motive to falsely implicate the accused persons,
it would be unsafe to return a finding of guilt on the basis of
such dying declarations, and in such cases, it would be the
duty of the Court to look to some corroborative evidence and if
none is found, to give benefit of doubt to the accused.
68. As regards the commission of the offence
punishable under Section 498-A IPC, against such of the
accused who have been convicted, having perused the
testimony of PW-4, PW-9 and PW-23 i.e. the parents and the
brother of the deceased as also having perused her complaint
Ex.PW-9/A made to the crime against Women Cell on
13.1.1997, we are satisfied that the prosecution has
satisfactorily brought home that Kamlesh was physically
beaten and was treated with mental and physical cruelty on
account of dowry demands by her parents-in-law, her husband,
her devar as also her devrani and one nanad Nirmala. The
conviction of said four persons for the offence punishable
under Section 498-A IPC cannot be faulted.
69. Thus, we dispose of the appeals setting aside the
conviction of the appellants for the offence punishable under
Section 302/34 IPC. We dismiss the appeals filed by
Gurucharan, Arun, Geeta and Nirmala pertaining to their
conviction for the offence punishable under Section 498-A/34
IPC. We sustain their convictions for the offence punishable
under Section 498-A/34 IPC and maintain the sentence
imposed on them.
70. We note that Gurucharan is still in jail. We note that
Arun was admitted to bail when he had served a sentence of 5
years and 1 month. Geeta was admitted to bail when she had
served a sentence for 5 years and 2 months. Nirmala was
admitted to bail when she had suffered a sentence of 6 years
and 6 months.
71. Each one of them having served a sentence in
excess of the maximum period prescribed i.e. of 3 years, we
hold that as a result of dismissal of the appeals filed by
Gurucharan, Arun, Geeta and Nirmala pertaining to their
conviction for the offence punishable under Section 498-A/34
IPC, Arun, Geeta and Nirmala need not suffer further sentence
by surrendering. As regards Gurucharan, he having remained
in jail for nearly 10 years we direct that he shall be set free,
unless required in some other case.
72. Bail bonds and surety bonds furnished by
appellants Arun, Geeta, Rampal, Rani, Ashok Kumar and
Nirmala stand discharged.
73. Copy of this order be sent to the Superintendent,
Central Jail, Tihar for release of Gurucharan and to be made
available to Gurucharan.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
JANUARY 08, 2010
'nks/dharmender/mm'
