Naresh vs State Of Nct Of Delhi
2010 Latest Caselaw 2545 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment delivered on: May 12, 2010


+      CRIMINAL APPEAL NO.975/2009

       NARESH                                        ....APPELLANT
                      Through:   Mr. Dhananjay Kumar, Advocate

                           Versus

       STATE OF NCT OF DELHI                .....RESPONDENT
               Through: Mr. Lovkesh Sawhney, APP

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

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?


AJIT BHARIHOKE, J.(ORAL)



1.     This appeal is directed against the impugned judgment dated

03.11.2003 in Sessions Case No.9/08 FIR No.175/03 P.S. Sangam Vihar

convicting the appellant for the offences punishable under Section 302

IPC and Section 498A IPC and the consequent order on sentence.


2.     Briefly stated, case of the prosecution is that Sonia (deceased)

was married to the appellant about a year and a half prior to the

occurrence.         She got a payment of Rs.20,000/- from her earlier



Crl.A.No.975/2009                                               Page 1 of 6
 husband in the divorce proceedings.      On 08.04.2003, the appellant

demanded money from the deceased and when she declined to pay,

the appellant got enraged and he set the deceased on fire after

pouring kerosene oil over her in DDA Flat No.243, Tigri, Khanpur. It is

also the case of prosecution that shortly after the marriage, the

appellant had been harassing and ill-treating the deceased.


3.     The learned Additional Sessions Judge, on conclusion of the

evidence on behalf of the State as well as the appellant and after

hearing the parties, found the appellant guilty for murder of the

deceased and also for treating her with cruelty within the meaning of

Section 498A IPC and accordingly convicted the appellant under

Section 302 IPC as also under Section 498A IPC. The conviction of the

appellant under Section 302 IPC is based upon the purported dying

declaration of the deceased recorded by the SDM.       There is no eye

witness to the occurrence.


4.     The main plank of the argument of the appellant is that the dying

declaration relied upon by the learned Additional Sessions Judge does

not pass the test of reliability. Learned counsel also argued that from

the MLC of the deceased, it is apparent that she was taken to the

hospital by her mother Ms. Nirmala Mehta. Therefore, a possibility of

the dying declaration being the result of tutoring or influence by the

mother cannot be ruled out.




Crl.A.No.975/2009                                               Page 2 of 6
 5.     The law relating to dying declaration is well settled.   Supreme

Court in the matter of Munnu Raja Vs. State of M.P., 1976 SC 2199

held that is neither a rule of law nor of prudence that a dying

declaration cannot be acted upon without corroboration.          In yet

another case i.e. State of U.P. Vs. Ram Sagar Yadav, AIR 1985 SC

416, Supreme Court held that if the court is satisfied that dying

declaration is true and voluntary, it can base conviction on it without

corroboration.      From the above judgments, it is obvious that an

accused can be convicted on the basis of dying declaration alone but

the rule of prudence demands that the court should satisfy its

conscience by looking into the accompanying circumstances before

acting upon the dying declaration. In the instant case, learned counsel

for the appellant has challenged the correctness and reliability of the

dying declaration and he has also raised a contention of possibility of

the dying declaration being the result of tutoring or undue influence.

Therefore, need for some corroboration assumes importance.           The

Investigating Officer, ASI Daya Nand (PW14) has testified that on a

second visit to the spot of occurrence, he met the appellant who had

reached there. The appellant was having fire burns on his hands as

well as his face. When ASI Daya Nand asked for the cause of those fire

burns, the appellant confessed that he had demanded money from the

deceased and when she declined to oblige, he set her on fire after

pouring kerosene upon her.       On perusal of the statement of the

appellant under Section 313 Cr.P.C., we find that above referred



Crl.A.No.975/2009                                               Page 3 of 6
 incriminating evidence was not put to the appellant for seeking his

explanation, which creates a technical problem in appreciation of

evidence.


6.     Recording of statements of the accused under Section 313 (1)(b)

of the Code of Criminal Procedure is an important component of a

criminal trial. The object of this provision is to give an opportunity to

the accused to answer each and every piece of incriminating evidence

adduced and relied upon by the prosecution. It is obligatory on the

part of the Trial Court to examine the accused for that purpose and if

such an opportunity is not afforded the incriminating piece of evidence

available in the prosecution evidence which was not put to the accused

in his examination under Section 313 Cr.P.C. cannot be relied upon

against the accused to hold him guilty.         In this case also, the

incriminating evidence that the Investigating Officer noticed fire burns

on the hands and face of the accused on the date of occurrence has

not been put by the learned trial Judge to the accused in his

examination under Section 313 Cr.P.C. This lapse on the part of the

learned trial Judge has tied our hands inasmuch as we cannot take into

account aforesaid incriminating evidence which is material for just

adjudication of the appeal.


7.     In view of the above, question is what is the effect of said lapse

committed while examining the accused under Section 313 Cr.P.C.?

Whether or not the above referred irregularity committed by the



Crl.A.No.975/2009                                                Page 4 of 6
 learned trial Judge in examination of the appellant under Section 313

Cr.P.C. is curable? In our considered view, the aforesaid irregularity can

easily be cured by further examining the appellant under Section 313

Cr.P.C. in order to afford him an opportunity to explain the above

referred     incriminating   evidence   appearing   against   him   in    the

prosecution evidence. This will not cause any prejudice either to the

accused or to the prosecution as it would satisfy the requirement of

Section 313 Cr.P.C. and ensure that the matter is decided not on mere

technicality but on merits of the evidence produced against the

appellant and achieve the ends of justice.


8.     We have two options to cure the above irregularity. We may re-

examine the appellant under Section 313 Cr.P.C. in relation to the

aforesaid incriminating evidence which was not put to him during trial

or we may remand the case back to the concerned court for further

examination of the accused under Section 313 Cr.P.C. in relation to the

above referred incriminating evidence.         We are refraining from

exercising the first option mainly for the reason that in recent past we

have come across several cases in which the statements of the

accused persons have been recorded by the courts below in casual and

perfunctory manner and we feel such a course will send a message to

the courts below to be careful in analysing the evidence before

proceeding to examine an accused under Section 313(1)(b) of the

Code. Otherwise also, we deem it appropriate that the Trial Court itself

should examine the appellant under Section 313 Cr.P.C. and appreciate


Crl.A.No.975/2009                                                   Page 5 of 6
 the evidence on record in the light of the explanation having been

given by the accused as such a course will not affect the right of

appeal of the accused.


9.     In view of the above, we set aside the impugned judgment of

conviction and remand the case back to the concerned Additional

Sessions Judge who passed the impugned judgment irrespective of his

present posting with the direction that he shall examine the appellant

in accordance with the letter and spirit of Section 313 Cr.P.C. by

putting all the incriminating circumstances to him to afford him an

opportunity to explain the incriminating evidence appearing against

him and on the basis of said explanation he shall re-appreciate the

evidence and decide the case afresh.


10.    Appeal is disposed of accordingly.




                                                  A.K. SIKRI, J.

AJIT BHARIHOKE, J. MAY 12 , 2010 pst