Delhi High Court
Jai Prakash vs State on 11 March, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision :11th March, 2010
+ Crl. A. No. 760/2007
JAI PRAKASH ..... Appellant
Through: Ms.Charu Verma, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, APP
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 appeal has been reaching for hearing for the
last two days and Ms.Anu Narula, learned counsel for the
appellant has not been appearing to argue the appeal. Today
also, learned counsel does not appear. We have requested
Ms.Charu Verma, Advocate who is present in court and is on
the panel of Delhi High Court Legal Services Committee to
assist us.
2. Learned counsel has consented to render
assistance to the court.
3. We express our gratitude to learned counsel and
appoint her as an Amicus Curiae on behalf of the appellant.
The fee of learned counsel is fixed in sum of Rs.7500/- to be
paid by the Delhi High Court Legal Services Committee.
4. Vide impugned judgment and order dated
27.09.2007, while acquitting the appellant and his brothers of
the offence punishable under Section 498-A IPC; further
acquitting the brothers of the appellant for the charge of the
offence punishable under Section 302 IPC, the appellant has
been convicted for the offence of having murdered his wife.
5. Appellant's mother, Smt.Kalawati who was accused
No.4, died during trial and hence proceedings against her
abated.
6. It is not in dispute that late Leelawati was married
to the appellant and she suffered burn injuries in her
matrimonial house at around 10:30 P.M. on 16.01.1995. That
the appellant was with his wife and even he suffered burn
injuries and both were removed to Ram Manohar Lohia
Hospital by ASI Suresh, In-charge of the PCR van, are facts
which are not in dispute being even noted on the MLC of the
appellant and his wife.
7. The conviction of the appellant has been sustained
with reference to the testimony of SI Narain Singh PW-6 and
the testimony of Sh.Virender Kumar PW-9, posted as the SDM
of the area, both of whom claimed that Virender Kumar
recorded, in his own hand, the statement Ex.PW-4/A of
Leelawati i.e. the deceased. As per the said statement,
Leelawati implicated the appellant as the person who poured
kerosene oil on her and then set her on fire.
8. With reference to the police officers who reached
the house and deposed that the floor of the room where
Leelawati suffered burn injuries was washed, the learned trial
Judge has found further incriminating evidence in the form of
the accused having attempted to destroy the evidence. Lastly,
as deposed to by SI Narain Singh PW-6, the appellant refused
to make any statement to him when SI Narain Singh found him
admitted at the hospital, has been held to be indicative of the
guilt of the appellant.
9. At the outset we may note that the manner in which
the learned trial Judge has recorded evidence leaves much to
be desired, for the reason there is utter confusion with respect
to Ex.PW-4/A.
10. We note that Leelawati's mother, Smt.Shakuntala
was examined as PW-4 and while deposing as PW-4 she stated
that her statement Ex.PW-4/A was recorded by the learned
SDM. The said statement has been scribed two days after
Leelawati died and Sh.Virender Kumar PW-9, the SDM
concerned, was on leave on said day. Sh.Vijay Kumar PW-10
was the Link SDM and it was he who recorded the statement of
Shakuntala. When SI Narain Singh PW-6 appeared as a
witness he deposed that he was the officer who went to the
spot and therefrom to the hospital, since DD No.63-B
pertaining to a lady being burnt was assigned to him, he
reached the hospital and called the SDM who recorded the
statement Ex.PW-6/A of Leelawati. Unfortunately, the exhibit
mark put on the statement of Leelawati is Ex.PW-4/A. Thus,
two statements, one of Leelawati and the other of her mother
have been given the same exhibit mark.
11. The confusion surfaced, but unfortunately the Judge
did nothing to rectify the error, when Virender Kumar PW-9
stated that he scribed Leelawati's statement Ex.PW-4/A in his
own hand but later on went on to state that the statement
Ex.PW-4/A was scribed by Sh.Vijay Kumar, SDM. It is apparent
that the witness attempted to clarify that one out of the two
statements Ex.PW-4/A was scribed by him and the other with
the same exhibit mark was scribed by Sh.Vijay Kumar. We
would have expected the learned trial Judge to have corrected
the error by exhibiting Shakuntala's statement as Ex.PW-6/A
for the reason PW-6 had referred to the said statement and in
his statement referred to it as Ex.PW-6/A, but on the document
the exhibit mark put was Ex.PW-4/A.
12. Be that as it may, on the question whether
Leelawati's statement Ex.PW-4/A needs to be believed as a
credible statement, we find that her mother Shakuntala
admitted during cross-examination that before the SDM met
her daughter, she had spoken to her daughter. She further
admitted that after the SDM recorded the statement of her
daughter he told her that her daughter was repeatedly
changing her statements. It assumes significance to note that
on the MLC Leelawati the history of the burns suffered by her
is of catching fire accidently. It also assumes significance that
the back portion of Leelawati is unaffected by fire; the burn
injuries are on the front of the body.
13. It is apparent that Shakuntala had accessed her
daughter Leelawati before the learned SDM met Leelawati.
14. Murari Lal PW-1, the father of Leelawati stated that
when he and his wife met their daughter in the hospital, his
daughter told him that her husband Jai Parkash, her mother-in-
law Kalawati, her brother-in-law Ramesh and sister-in-law
Santosh had burnt her.
15. There is an apparent contradiction in what Murari
Lal has deposed qua the dying declaration of the deceased
and what has been scribed in the statement Ex.PW-4/A as also
what has been deposed to by Shakuntala.
16. No doubt the learned SDM claims to have honestly
written what Leelawati told him, but we cannot ignore that
according to Shakuntala, mother of Leelawati, the SDM had
told her that her daughter was repeatedly changing her
statements.
17. That the appellant never left the company of his
wife and evidenced by his MLC is the fact that his hands were
superficially too deeply burnt, evidencing attempt made by
him to rescue his wife. That water was found spilt on the floor
is possibly the result of the appellant dousing the flames on his
wife by pouring water thereon.
18. It may be true that the appellant volunteered to tell
nothing to the police at the hospital, but two pieces of
evidence pertaining to his conduct which leans towards his
innocence i.e. of attempting to douse the flames on his wife by
his own hands and not flee, more than outweigh the negative
conduct.
19. Noting the fact that in the dying declaration of the
deceased it has been recorded that the appellant had set her
on fire; noting that same is the version of mother of the
deceased as claimed by her that her daughter told her so, a
variation with respect to what PW-1 claims his daughter having
told him; coupled with the fact that Shakuntala has
categorically admitted that the SDM told her that her daughter
was repeatedly changing her statements, we are of the opinion
that in the facts and circumstances of the instant case benefit
of doubt has to be given to the appellant, more so for the
reason, Leelawati had spoken with her mother before the SDM
recorded her statement. Lastly, we may note that on the MLC
of Leelawati with reference to the history of the alleged burns,
it has been recorded that the patient caught fire accidently.
20. The appeal is allowed. The impugned judgment
and order dated 27.09.2007 convicting the appellant is set-
aside. Giving appellant the benefit of doubt, we acquit him of
the charge framed against him.
21. Since the appellant is in Jail, we direct that a copy
of this decision be sent to the Superintendent, Central Jail
Tihar for necessary action.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
MARCH 11, 2010
'nks'
