Delhi High Court

Rahis vs State on 5 May, 2010

Author: Pradeep Nandrajog

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision : 5th May, 2010

+                           CRL.A. 454/2010

         RAHIS                                     ..... Appellant
                        Through:   Mr.V.Madhukar, Advocate and
                                   Mr.Jayendra Sevada, Advocate

                                   versus

         STATE (NCT) OF DELHI                     ..... 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?
     3. Whether the judgment should be reported in the Digest?

PRADEEP NANDRAJOG, J. (Oral)

1. With reference to the testimony of Mst.Hajjan PW-1;

the testimony of SI Prakash Roy PW-9 and the statement

Ex.PW-1/A recorded by him and as made by deceased

Rizwana; and lastly the testimony of Sh.A.K.Passi and the

statement Ex.PW-3/A recorded by him and as made by

Rizwana, the learned trial Judge has returned a finding that the

prosecution has successfully established that deceased

Rizwana made three dying declarations to the cause and

circumstances of her death and in each statement she

inculpated her husband, the appellant Rahis; holding further

that the burn injuries on Rahis stood explained not as the

result of his attempting to save his wife but as the

consequence of his attempting to prevent his wife from

dousing the flames on her, as deposed to by Mst.Hajjan PW-5;

vide impugned judgment and order dated 19.11.2009,

appellant Rahis has been convicted for the offence of having

poured kerosene oil on his wife with the intention to burn her

in the early hours of the morning on 30.07.2007 and thereafter

set her on fire as a result of which she died, thereby

committing an offence punishable under Section 302 IPC.

2. In para 25 of the impugned decision, the learned

trial judge has held that the dying declarations are consistent

and made after short interval immediately after the deceased

suffered burn injuries and hence inspire confidence. In para 26

it has been held that the dying declarations do not suffer any

infirmity and there is no evidence that the deceased was

tutored.

3. D.D.No.35-A, Ex.PW-9/A, has been recorded at PS

Gokalpuri Delhi at 5:44 AM on 30.07.2007 recording firstly that

a lady had set herself on fire in a house in street

No.1,Mustafabad, Tirpal Factory; immediately followed by the

narrative therein that a lady has been set on fire in House

No.66/11,Street No.1, Old Mustafabad.

4. The information aforesaid has been recorded at the

police station on being relayed through police control room

where a PCR call was made by somebody and hence the

nearest PCR van was rushed to the place of the incident. ASI

Karan Singh incharge of PCR Van No.36 rushed Rizwana as

also her husband Rahis to GTB hospital, a fact recorded on the

MLC Ex.PW-11/B of the appellant and the MLC Ex.PW-11/A of

Rizwana. On both MLCs it is recorded that ASI Karan Singh of

36 PCR Van had brought the two to GTB Hospital Shahdara.

5. Dr.Ravinder Singh Junior Resident at GTB hospital

attended to Rizwana and prepared the MLC Ex.PW-11/A

recording therein that Rizwana was brought to the hospital at

6:40 AM on 30.07.2007 and that she was conscious and

oriented as also fit for statement. He recorded her B.P. as

100/70 mm/Hg and her pulse at 110 per minute. He further

recorded that neither her left thumb nor her right thumb

impression could be taken on the MLC as the impressions

thereon were not traceable. After giving emergency and

immediate medical treatment to Rizwana he referred her over

to the surgical department.

6. Simultaneously, Dr.Avinash Jivan Taggi examined

the appellant recording therein that he had been admitted at

GTB hospital at 6:35 AM by ASI Karan Singh. On the MLC

Ex.PW-11/B he recorded that appellant had burns over both

arms covering 15% to 18% of the body surface area.

7. As deposed to by SI Prakash Roy PW-9, DD No.35-A

was entrusted to him for investigation and he left the police

station accompanied by Const.Anil. On reaching House

No.66/11, Gali No.1, Old Mustafabad, Delhi, they learnt that

Rizwana had been removed along with her husband to GTB

hospital in a PCR Van. He inspected the spot and called the

crime team. He seized a kerosene plastic dabba and sealed

the same as recorded in seizure memo Ex.PW-8/D. Two beat

constables reached the spot and he directed them to guard

the spot. Accompanied by Const.Anil he reached GTB Hospital

where he found Rizwana admitted for treatment having 90% to

95% burns and declared fit for statement and thus he recorded

the statement Ex.PW-1/A of Rizwana and took the thumb

impression on the statement at point „X‟. One Dr.Ram Millan

PW-1 was present when he recorded Rizwana‟s statement,

who appended his signatures at point „Y‟ beneath the

statement. SI Prakash Roy passed on the information for an

Executive Magistrate to be sent and very soon Mr.A.K.Passi the

Executive Magistrate (PW-3) came to the hosptial and

recorded Rizwana‟s statement Ex.PW-3/A. He thereafter got

the FIR registered. Since the appellant was at the hospital

under treatment SI Prakash Roy arrested him as recorded in

the arrest memo Ex.PW-8/A. At the spot SI Prakash Roy

summoned the crime team and got photographed a room

where he found evidence of somebody being burnt i.e. burnt

clothes, sheet etc. being found. This was the room in which he

had picked up a plastic can as recorded in the memo Ex.PW-

8/D.

8. Rizwana could not survive and information thereof

was received from the hospital on 06.08.2007 when DD.No.5B

was recorded at the police station. Insp.Prakash Roy

immediately went to the hospital, seized the dead body of

Rizwana and sent it to mortuary. Inquest papers were filled up.

Body was got identified and post-mortem was conducted. The

doctor preserved the scalp hair of the deceased and handed

over the same to him. Dr.Juthika Dev PW-4 conducted the

post-mortem and opined that death was due to septicemia

shock due to anti mortem burn injuries as recorded on the

post-mortem report Ex.PW-4/A. Relevant would it to be note

that no soot particles were found or detected in the trachea of

the deceased.

9. Sh.A.K.Passi PW-3, Executive Magistrate Seelampur,

deposed that he received telephonic call through SI Prakash

Roy at 7:30 AM on 30.07.2007 about a lady being admitted at

GTB in burnt condition. He reached GTB hospital at around

9:30 AM. SI Prakash Roy met him there. He found Rizwana at

the hospital and the doctor had certified her for statement. He

recorded her statement Ex.PW-3/A and after that Rizwana put

her thumb impression on the same at point „X‟.

10. Mst.Hajjan PW-5 deposed that deceased Rizwana

accompanied by the appellant and her sister had come to her

House No.66/11, Gali No.1, Old Mustafabad, Delhi a day prior

to the incident as they wanted to take a room on rent. Next

day evening at about 7:00 PM she i.e. Rizwana came alone,

she i.e. Mst.Hajjan enquired as to where her husband was.

Rizwana stated that her husband had another wife and had

given everything to the other wife and had asked her for

taking a room on rent. She gave a room on rent to her. At

about 9:00 PM appellant came. The two wanted to spend the

night in her house. Since there was no electricity in the room

which she had let out, she requested them to sleep at the roof

and gave assurance that she would make necessary

arrangement for electricity to be supplied in their room on the

next day and thereafter went to sleep after locking the main

door. The next morning at about 5:00 AM she opened the door

and saw deceased coming out of the toilet. The deceased

asked her for key telling her that her husband had gone for

Pheri. Thereafter she went to offer Namaj outside her room in

the veranda. Deceased kept the key near her as she was not

allowed to speak during Namaj. Thereafter she saw the

deceased come out of her room in burning condition. She

enquired as to what had happened. Deceased replied that her

husband had burnt her. Rahis, husband of the deceased was

standing behind her. She told Rahis as to why has he done an

act which may put everyone into a problem but he kept

standing. Rizwana ran towards the toilet. Rahis did not move

to save her. Thereafter Rizwana turn towards her room and

when she passed by Rahis, he pushed her. Mohalla people

gathered. Somebody called the police. Rahis could not escape

as the main gate was closed. The police took both Rizwana

and her husband. (It is apparent that there is a typing

error while recording the examination-in-chief of

Mst.Hajjan where it is recorded that the deceased

asked her for key telling her that her husband had gone

for Pheri. The witness must have said that the

deceased asked her for key telling her that her husband

has to go for Pheri. Otherwise, the later part of her

statement that when she saw the deceased in flame

she saw her husband behind her would be in conflict.)

11. Relevant would it be to note that Hajjan made

considerable deviations from what she had told the

investigating officer and as recorded in her statement Ex.PW-

5/A under Section 161 Cr.P.C. On being confronted by the

contents of her previous statement she denied having told the

police that she heard noise from the room of the deceased and

saw Rahis setting fire to Rizwana whose clothes were drenched

with kerosene oil or that she saw, much less told, that Rahis

threw the kerosene oil container. She denied having seen or

told the police that Rizwana had caught hold of the hand of

Rahis who was trying to run away from the room.

12. Let us now pen down, after translating, the

statement Ex.PW-1/A as also the statement Ex.PW-3/A made

by Rizwana and recorded by SI Prakash Roy and A.K.Passi

respectively.

13. Both statements are in vernacular and hence we

translate the two. Ex.PW-1/A reads as under:-

"Statement of Rizwana, W/o Rahis, R/o House of Hajjan, Gali No.1, Old Mustafabad, Delhi aged 30 years.

I reside at the above noted address as a tenant since last two days and for 4-5 months prior thereto was residing with my mother and before that at the house of Babu Builder at Gali No.20, House No.251, Old Mustafabad. In said house I was residing with my husband Rahis. I got married to Rahis S/o Sabu about 4 months ago. This was his second marriage. From his first marriage, 3 children were born to him. About a month ago the first wife of Rahis named Ruksana had come to him and the two started living together in a house in Gali No.14, Mustafabad which was taken on rent, but Rahis kept on visiting me but later on stopped visiting me. Today night my husband Rahis came to me and spent the night with me. A minor altercation took place between the two on the issue of his first marriage and children and finding an opportunity Rahis poured kerosene oil on me in the morning and set me on fire. I cried. People from the neighbourhood came and somebody rang up the number 100. Police came and removed me to GTB Hospital"

14. It be noted that beneath the statement Ex.PW-1/A

the right thumb impression has been taken but without any

ridges of the thumb being visible. The thumb impression is

more like a blog. At point „Y‟ signatures of Dr.Ram Millan

stand appended.

15. The statement Ex.PW-3/A reads as under:-

"Statement of Rizwana, W/o Rahis R/o House of Hajjan, Gali No.1, Old Mustafabad, Delhi aged 30 years.

I reside at the aforenoted address as a tenant since last 2 days and before that I was residing with my mother. I was married to Rahis S/o Sabu about 3-4 months ago. About a month ago the first wife of Rahis named Ruksana came to Rahis and the two started residing in a house in Gali No.14, Mustafabad. 3 Children born to his first wife were also with her. After his first wife returned Rahis stopped visiting me. Yesterday i.e. on 29.7.2007 at around 10:00 PM Rahis came to me and spent the night with me. A minor altercation ensured between us on the issue of his first wife and children. Today morning when I was sleeping on a charpai (cot) in my room my slumber was broken and as I opened my eyes I saw Rahis pouring kerosene oil on myself and before I could yell for help he set me on fire. He attempted to flee but I caught his hands and cried for help. Somebody rang up the police. Police came and removed me to the hospital."

16. The notation made beneath the statement Ex.PW-

3/A by Sh.A.K.Passi records that he recorded the statement at

10:00 AM. The right thumb impression has purportedly being

taken. The same is a faint blog; ridges whereof are totally

invisible.

17. In the two statements Ex.PW-1/A and Ex.PW-3/A

Rizwana has not stated that in the morning when she got up

she went to the toilet and on return met the landlady

Mst.Hajjan and requested her for the key of the main gate to

be handed over to her as her husband had to go out for pheri.

In the two statements made by her, it is apparent that all of a

sudden her husband threw kerosene oil on her and set her on

fire. It assumes significance to note that there is a variation

inter se the two statements, for the reason in her statement

Ex.PW-1/A she does not state that her slumber was broken

when her husband threw kerosene oil on her. In the statement

Ex.PW-3/A she so states. Further, in the statement Ex.PW-1/A

she does not state that she was sleeping on a cot in her room.

In the statement Ex.PW-3/A she so states. The statement

Ex.PW-1/A, meaningfully read, shows that an altercation took

place between the husband and wife in the morning on the

issue of Rahis‟s first wife returning to him. In her statement

Ex.PW-3/A it is stated with clarity that the altercation took

place the previous night and that next day morning when she

was sleeping Rahis poured kerosene oil on her and at that

point of time her sleep was broken.

18. It is apparent that the manner in which Hajjan PW-5

has deposed to the events and circumstances of a dying

declaration, nothing of that kind finds reflected in the two

statements Ex.PW-1/A and Ex.PW-3/A. In no statement does

Rizwana say that her landlady had come and to the landlady

she had made any dying declaration.

19. Apart from the differences in the two statements

Ex.PW-1/A and Ex.PW-3/A noted by us hereinabove, it is further

relevant to note that the place where she was set on fire has

not been disclosed by Rizwana in the statement Ex.PW-1/A but

has been disclosed in the statement Ex.PW-3/A where it is

recorded that when she was sleeping on her charpai in the

room when her husband threw kerosene oil on her and set her

on fire.

20. The photographs Ex.PW-7/A to Ex.PW-7/D show

burnt clothes inside a room. The 4 photographs show the

entire room and no cot can be seen by us in the photographs.

Burnt clothes can be seen by us in the said 4 photographs.

21. It is apparent that Rizwana was not sleeping on any

cot as claimed by her in her statement Ex.PW-3/A. It is an

admitted fact that the appellant had burn injuries extending

over both hands and his forearms. 15% to 18% of the body

area was affected by the parents. When examined under

Section 313 Cr.P.C. the appellant stated that he was on the

terrace when he heard noise and as he came down he saw

Rizwana burning. He tried to douse the fire and in the process

sustained burn injuries on his chest and arms.

22. It assumes importance to note that the date of the

incident is the early morning of 30.7.2007. The month of July

is a hot and humid month in the city of Delhi. It also assumes

importance that Hajjan PW-5 has deposed that since there was

no electricity in the room and since the same was taken on

rent just 2 days prior she had requested Rizwana and the

appellant to sleep on the terrace. Thus, there is every

probability that the two slept on the terrace and at some point

of time Rizwana came to the room taken on rent, the room

where she admittedly got burnt.

23. The question would be, whether Rizwana

committed suicide or the appellant set her on fire.

24. The plastic container stated to be the one having

kerosene as also the scalp hair of the deceased was sent for

forensic examination and as per the FSL Report, not even

formally proved by tendering, but available at page 277 to 303

of the Trial Court Record, show that no residue of either petrol,

kerosene or diesel could be detected on either the scalp or the

plastic container in question.

25. Absence of any inflammable oil on the scalp hair

may be explainable as the result of less oil being thrown and

hence no traces of residue of inflammable oil detected therein

but it assumes importance that even in the container no traces

of any kind of inflammable oil were detected.

26. The manner in which PW-5 has deposed to the

dying declaration made by Rizwana is not reflected in

Rizwana‟s statement Ex.PW-1/A and Ex.PW-3/A. Further, as

noted hereinabove there are discrepant statements by

Rizwana in her two statements Ex.PW-1/A and Ex.PW-3/A. It

assumes importance that no charpai is to be seen in the

photographs Ex.PW-7/A to Ex.PW-7/D and this belies a

substantial content of Rizwana‟s second dying declaration

Ex.PW-3/A. It is also important to note that save and except

one certification on the MLC of Rizwana that she is fit for

statement at 6:40 AM there is no second certification of her

being fit at 9:30 AM or 10:00 AM. This was the time when

Rizwana‟s statement Ex.PW-3/A was recorded.

27. As held in the decision reported as 2007 (3) JCC

2355 Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka

where there are more than one dying declarations made by

the deceased, extra care has to be taken to see as to which

dying declaration inspires confidence and the one which

inspires confidence has to be accepted. If none inspires

confidence, each has to be discarded. In the same decision, in

para 7, it was held that inconsistencies in the dying

declarations is a relevant factor while placing reliance

thereupon. It was held that since the deceased had taken

different stands in different dying declarations, none could be

safely relied upon. It is settled position that discrepant or

mutually contradictory statement in successive dying

declaration rouse suspicion.

28. In the decision reported as 2006 (2) SCLAE 482

P.Mani Vs. State of Tamilnadu, in para 14, it was observed as

under:-

"14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which even conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors: physical and mental condition of the deceased is one of them."

29. In the decision reported as AIR 1958 SC 22 Khushal

Rao Vs. State of Bombay, the Supreme Court spoke as under;

pertaining to dying declarations:-

"17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis

of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact the Court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."

30. Needless to state if there is motive emerging for

the maker of the dying declaration to falsely implicate

somebody, even same has to be factored in the decision

making process.

31. Now, the motive for Rizwana to falsely implicate the

appellant is surfacing, being her dejection, anger or hatred for

the appellant who after getting married to her 3-4 months

back chose to return to the company of his first wife.

32. Keeping in view the totality of the circumstances as

aforenoted, which unfortunately have been glossed over by

the learned Trial Judge, we are of the opinion that the

appellant is entitled to, if not more, the benefit of doubt.