Sanjay Babloo vs State(Govt. Of Nct Of Delhi)
2010 Latest Caselaw 5049 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment reserved on: October   06, 2010
                                Judgment delivered on: November 02, 2010


+      CRIMINAL APPEAL NO.6/2005

       SMT. BISNO                                          ....APPELLANT
                Through:               Mr. R.S. Malik, Advocate with Dr. R.S.
                                       Telhan, Advocate

                              Versus

       STATE(GOVT. OF NCT OF DELHI)          .....RESPONDENT
               Through: Mr. Pawan K. Bahl, APP


                                          WITH

       CRIMINAL APPEAL NO.12/2005

       SANJAY @ BABLOO                      ....APPELLANT
               Through: Mr. R.S. Malik, Advocate with Dr. R.S.
                        Telhan, Advocate

                              Versus

       STATE(GOVT. OF NCT OF DELHI)          .....RESPONDENT
               Through: Mr. Pawan K. Bahl, APP


                                           AND

       CRIMINAL APPEAL NO.13/2005

       MANOJ KUMAR                                         ....APPELLANT
               Through:                Mr. R.S. Malik, Advocate with Dr. R.S.
                                       Telhan, Advocate

                              Versus

       STATE(GOVT. OF NCT OF DELHI)          .....RESPONDENT
               Through: Mr. Pawan K. Bahl, APP


Crl.A. Nos.6/2005, 12/2005 & 13/2005                                 Page 1 of 15
         CORAM:
        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.

1. These appeals are directed against the judgment and the order

on sentence in Sessions Case No.37/04 FIR No.163/95 P.S. Mangol Puri

respectively dated 10.12.2004 and 15.12.2004 whereby the appellants

have been convicted and sentenced for the offences punishable under

Sections 498A and 304B IPC read with Section 34 IPC. Appellants, for

the offence under Section 304B IPC have been sentenced to undergo RI

for the period seven years, besides fine of `1,000/-, in default to

undergo SI for the period of 30 days and for the offence under Section

498A to undergo RI for the period of one year, besides fine of `500/-, in

default to undergo SI for the period of 15 days.

2. Briefly stated, case of the prosecution is that appellant Manoj was

married to Sunita @ Sonu (hereinafter referred to as "deceased") on

22.12.1991. After the marriage, the deceased Sunita started living

with her husband and in-laws, namely, her father-in-law Mohinder

Singh(since expired), mother-in-law Bisno and brother-in-law Sanjay at

S-721, Mangol Puri, Delhi. The appellants were not happy with the

deceased for bringing insufficient dowry and for that reason, they used

to taunt her and subject her to harassment and cruelty. They even

raised demand for fridge and cooler and threatened to kill her due to

non-fulfilment of their demand. On 14.03.1995 at about 8:30-9:00 am,

the appellants allegedly quarrelled with the deceased in her

matrimonial home on account of non-fulfilment of their demand for

dowry and compelled her to set herself on fire. Under the pressure of

the appellants, the deceased, after pouring kerosene oil on herself

alighted herself and sustained burn injuries. She was removed to DDU

Hospital at about 10:00 am, where her MLC was prepared. After the

medical examination, she was referred to RML Hospital, where she

ultimately breathed her last on 17.03.1995.

3. On 14.03.1995 at about 9:35 am, wireless operation, P.S. Mangol

Puri informed the duty officer that Constable Ganesh of PCR has

conveyed an information that one lady has died due to burn injuries at

S-721, Mangol Puri near bus stand. This information was recorded as

DD No.14A(Ex.PW6/A) and copy thereof was sent to ASI Om Prakash for

verification. On the receipt of DD report, ASI Om Prakash along with

Constable Umed Singh reached at House No.721, Mangol Puri. He

found one blue colour plastic can lying in the front room of the side of

the house, which was smelling of kerosene. There was kerosene oil on

the floor and some burnt clothes were lying there. No eye witness was

available at the spot and on inquiry, ASI Om Prakash found that the

injured lady has been taken to some unknown hospital. In the

meanwhile, information regarding the admission of the deceased in

burnt condition at DDU Hospital was received at the Police Station vide

DD No.15A, which was also referred to ASI Om Prakash. On the receipt

of said DD report, ASI Om Prakash reached at DDU Hospital and

collected the MLC of injured Sunita. She was declared fit for statement

by the Doctor. ASI Om Prakash recorded her statement Ex.PW6/C,

wherein she stated that she was married to the appellant Manoj on

22.12.1991 and she had a son aged three years. She also stated that

her mother was residing as a tenant in a house at Sultan Puri. Her

husband Manoj, mother-in-law and father-in-law used to say that her

mother was bad woman and they used to taunt her that she has not

brought anything in her dowry and they also used to make demand for

fridge and cooler from her. She further stated that on the previous

night, her husband quarrelled with her and threatened to kill her and

he did not allow her to leave the house. She claimed that on the

fateful morning of 14.03.1995 at about 9:30-10:00 am when her

mother-in-law and father-in-law had left for duty, her husband started

quarrelling with her and he threatened to kill her by setting her on fire.

On this, she poured kerosene oil on her and set herself on fire. Her

husband Manoj did not try to put off the fire and kept on abusing her.

She further claimed that she had set herself on fire because of

harassment at the hands of her husband Manoj, mother-in-law Bisno

and father-in-law Mohinder.

4. ASI Om Prakash is alleged to have informed SDM Punjabi Bagh

about admission of the deceased in DDU Hospital in burnt condition.

The SDM, on the receipt of said information, visited the Hospital and

recorded the statement of injured Sunita (Ex.PW3/B). In the said

statement, Sunita claimed that she was married to the appellant Manoj

three and a half years back. She further stated that her husband and

mother-in-law used to taunt her for bring insufficient dowry. She also

stated that in the morning of 14.03.1995, she was present in the house

along with her husband, brother-in-law and mother-in-law, besides her

child. In the morning, her husband, mother-in-law and brother-in-law

pressurised her to pour kerosene oil over herself and set herself on fire

and on this she set herself on fire.

5. After the registration of the FIR, ASI OM Prakash arrested the

accused persons. On 17.03.1995, Sunita died in RML Hospital. SDM

was informed about her death, who conducted inquest proceedings.

Post mortem of the body of the deceased was got conducted and the

report was obtained. On completion of investigation, the appellants

and the deceased Mohinder were challaned and sent for trial.

6. The learned Additional Sessions Judge charged the appellants as

well as late Mohinder Singh for the offences punishable under Section

498A and 304B IPC read with Section 34 IPC. The appellants as well as

Mohinder Singh pleaded innocence and claimed to be tried.

7. In order to bring home the guilt of the appellants, prosecution

examined eight witnesses in all. Though the prosecution had cited

parents of the deceased Sunita, namely, Randhir Singh and Savitri Devi

as witnesses to prove the dowry demand and consequent harassment

to the deceased, but both of them could not be examined as they had

left the given address without any forwarding address.

8. The appellants as well as the other co-accused late Mohinder

Singh were examined under Section 313 Cr.P.C. to explain the

incriminating evidence appearing against them. They denied the

prosecution evidence in totality and claimed that they had never

harassed or tortured the deceased in connection with dowry demand

and the deceased had suffered accidental burns while cooking food on

the stove. No witness was examined in defence.

9. The learned Additional Sessions Judge, on consideration of the

evidence, relying upon the dying declarations of the deceased i.e.

Ex.PW5/A purportedly by recorded by Dr. Nabarun Moitra of DDU

Hospital at the time of preparing the MLC, Ex.PW6/C recorded by the

Investigating Officer, ASI Om Prakash and Ex.PW3/B recorded by the

SDM PW3 Virender Kumar, found the appellants guilty of the offences

punishable under Section 498A/34 IPC as well as Section 304B/34 IPC

and convicted them on both the counts and sentenced them

accordingly vide order dated 15.12.2004.

10. In order to bring home the guilt of the appellants under Section

304B IPC, the prosecution is essentially required to prove the following

ingredients:

(a) That the deceased was a married woman and she died within seven years of her marriage;

(b) That her death occurred due to burns or bodily injury or otherwise than under normal circumstances;

(c) That there was a demand for dowry and soon before her death, the deceased was subjected to cruelty or harassment; and

(d) That such cruelty or harassment was caused by the husband or relatives of the husband of the deceased.

11. In order to establish the guilt of the appellants under Section

498A IPC, the prosecution is required to establish that the deceased

was subjected to cruelty by her husband or the relative of the husband

as defined in the Explanation to Section 498A IPC, which reads thus:

"498A. Husband or relative of husband of a woman subjecting her to cruelty.

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section, "cruelty" means-

"(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand".

12. It is not disputed that the deceased was married to the appellant

Manoj on 22.12.1991 and she died an unnatural death by burning

within seven years of her marriage on 17.3.1995.

13. It is also not disputed that the other three appellants namely

Mohinder Singh (since deceased), Bisno Devi and brother-in-law Sanjay

@ Babloo are relatives of the husband of the deceased Manoj, being his

parents and brother.

14. In order to establish that the deceased was subjected to

harassment and cruelty by the appellants for and in connection with

any demand for dowry, the prosecution is heavily relying upon the

three purported dying declarations of the deceased. It may be noted

that there is no other evidence on record to prove the necessary

ingredients of the offences.

15. The first dying declaration as per the case of the prosecution is

the statement of the deceased made to Dr. Nabarun Moitra at the time

of preparation of her MLC Ex.PW5/A. The MLC has been proved by way

of secondary evidence by Dr. N.Z.Farooqi (PW5), who has identified the

hand-writing and signatures of Dr. Nabarun Moitra, wherein Dr.

Nabarun Moitra has endorsed "C/o Allegedly suicidal burns today. Pt.

says she was compelled to immolate herself because of mental stress

from her in-laws and husband as she had not brought adequate

dowry".

16. The second dying declaration as per the prosecution was

recorded by PW6 ASI Om Prakash in presence of Dr. Nabarun Moitra on

14.03.1995 itself, which statement is also the basis for registration of

the case. In the said statement, it is recorded that the husband of the

deceased namely Manoj and her mother-in-law and father-in-law used

to taunt her that she has not brought anything in her dowry and they

used to pressurize her to bring a fridge and a cooler from her parents.

On the night preceding the date of incident, her husband Manoj

threatened to kill her and did not permit her to go out of the house. In

the morning of 14.03.1995 at about 08.30-9.00 a.m. after her mother-

in-law and father-in-law had left for duty, her husband started

quarrelling with her and threatened to kill her by setting her on fire.

On this, she poured kerosene over her and alighted herself. Her

husband Manoj did not try to put off the fire and kept on abusing her.

She also told the Investigating Officer that she had set herself on fire

because of the harassment caused to her by her husband Manoj,

mother-in-law Bisno and father-in-law Mohinder.

17. The third dying declaration is claimed to have been recorded by

SDM PW3 Virender Kumar and it is proved as Ex.PW3/B wherein the

deceased has purportedly stated that in the morning of the fateful day,

she was present at her house. Her husband, brother-in-law and

mother-in-law were also present, besides her child. Her husband and

mother-in-law used to taunt her persistently for bringing insufficient

dowry and used to say that what dowry could be expected from the

people who were living in rented accommodation. She also stated that

in the morning, her husband forced her to pour kerosene oil over her

and alight herself and on being compelled by above three persons, she

immolated herself. She clarified that apart from her husband and

mother-in-law, third person was her brother-in-law. When the SDM

confronted her that she had told the doctor that she had immolated

herself, she clarified that at that time, she was not under her complete

senses, actually, she was forced by her husband that she should pour

kerosene oil over her and alight herself and he had threatened "Mai

tere bhaiyon ko uthwa dunga".

18. Learned Shri R.S. Malik, Advocate appearing on behalf of the

appellants has submitted that the learned Additional Sessions Judge

has committed a grave error in finding the appellants guilty of charges

under Section 498A IPC and Section 304B IPC solely on the basis of the

purported dying declarations of the deceased without seeking any

independent corroboration. He contended that as per the case of the

prosecution, there are four dying declarations, the first being in the

form of the history given by the deceased to the Dr. Nabarun Moitra at

the time of preparation of the MLC Ex.PW5/A, the second dying

declaration being the statement of the deceased Ex.PW6/C made to the

Investigating Officer in presence of Dr. Nabarun Moitra, third dying

declaration being the statement of the deceased Ex.PW3/B recorded by

the SDM on 14.03.1995 and the fourth dying declaration being the

history recorded by the concerned Doctor in the death summary

Ex.PW7/B of the deceased. Learned defence counsel contended that

the learned trial court has failed to appreciate that aforesaid four dying

declarations are inconsistent and at variance with each other.

Therefore, it is not safe to place reliance upon the same without

independent corroboration, which is lacking in this case. Learned Shri

R.S. Malik, Advocate further contended that the learned trial court also

failed to take note of the fact that the deceased Sunita, as per the MLC,

had sustained hundred per cent burns on her person and in that

situation, she could not have been in a fit physical and mental state to

make a clear and concise statement regarding the cause of her death.

Learned counsel further submitted that the dying declarations are not

reliable for the reason that though the deceased stated that she

poured kerosene over her and alighted herself, yet neither as per the

MLC Ex.PW5/A nor the post mortem report, smell and traces of

kerosene were found on the body of the deceased, which circumstance

makes the dying declaration doubtful, as such, possibility of deceased

having accidentally suffered burns while working on stove cannot be

ruled out, particularly when the stove was found at the spot. Thus,

learned counsel for the appellants has strongly urged for acquittal of

the appellants.

19. Learned APP, on the other hand argued in favour of the impugned

judgment. He contended that the learned Trial Judge has rightly

convicted the appellants on the charges under Section 498A and

Section 304B IPC on the strength of the three dying declarations of the

deceased which are consistent regarding the dowry demand and

harassment of the deceased in connection with the dowry demand

which compelled the deceased to immolate herself. Learned APP

contended that non-production of the parents of the deceased as

witnesses during trial is of no consequence for the reason that they

could not be produced during trial as they had left the given address

without giving any forwarding address. Therefore, prosecution cannot

be blamed for their non-production in the witness box.

20. The learned Additional Sessions Judge has dealt with the dying

declarations of the deceased in Para 31 of the impugned judgment,

which is reproduced thus:

"31. In the present case, the dying declarations referred to above, the deceased Sunita has consistently made a statement that she immolate herself as she was compelled to do so by her husband and her in-laws i.e. accused persons for non fulfilment of their illegal demand of dowry. While making the above dying declarations, her parents were not present with her and therefore, there is no possibility of her being tutored qua the accused persons by her parents before making the dying declarations under reference. These dying declarations were recorded by three different officers, first by a doctor, second by the Investigating Officer and last by the SDM and no enmity against any of these officers has been alleged or proved to have recorded a false and fictitious dying declaration. In other words, there is no iota of evidence on record to suggest that the above three dying declarations were not made voluntarily and truthfully. On this point, I am supported by a judgment of Supreme Court titled as Kanak Singh Raj Singh Vs State of Gujrat, 2003 Cri L.. Pg. 855."

21. I am unable to agree with above finding of the learned Additional

Sessions Judge. First dying declaration in the form of history of burn

injury is claimed to have been made in presence of Dr. Nabarun Moitra.

Prosecution has failed to examine Dr. Moitra to prove that said history

was given by the patient herself. Therefore, in my view, purported

dying declaration on MLC Ex.PW5/A is not proved. Otherwise also,

failure of the prosecution to produce Dr. Nabarun Moitra as a witness

has deprived the appellants of their valuable right to cross-examine

him and bring out the true facts on record, as such much reliance

cannot be placed upon the purported dying declaration on the MLC

Ex.PW5/A. Learned APP has contended that much significance cannot

be attached to non-production of Dr. Moitra as a witness for the reason

that he was not available as he had left the service. I find no merit in

this contention because if the prosecution was really interested in

producing Dr. Moitra as a witness, they could have checked the

personal file of Dr. Moitra to find out his permanent address to locate

him.

22. Thus, we are left with two dying declarations, one recorded in

presence of the Investigating Officer ASI Om Prakash(Ex.PW6/C) and

the other recorded in presence of the SDM, Shri Virender Kumar

(Ex.PW3/B). On careful reading of the above dying declarations, it is

apparent that the dying declarations are contradictory and inconsistent

with each other. In the dying declaration Ex.PW6/C, the deceased had

stated that her husband quarrelled with her on the previous night and

threatened to kill her. In the morning also, her husband was

quarrelling with her. She stated that by around 8:30-9:00 am, her

mother-in-law and father-in-law had left the house for their duty and

her husband quarrelled with her and threatened to kill her by burning

and on this she poured kerosene on her and alighted herself. This

version in the dying declaration Ex.PW6/C is at variance with the dying

declaration Ex.PW3/B made by the deceased before the SDM wherein

she had improved upon her earlier version and introduced the

presence of her mother-in-law, father-in-law and her brother-in-law in

the house at the time of incident. Her version regarding the incident is

also contradictory because in the dying declaration Ex.PW6/C, the

deceased stated that her husband was quarrelling with her and

threatened to kill her by burning and she reacted by pouring kerosene

on her and alighted herself, whereas in the subsequent dying

declaration made in presence of the SDM, the deceased changed her

version and stated that in the morning, she was compelled by her

husband, mother-in-law and brother-in-law to immolate herself. Above-

noted variations in two dying declarations of the deceased are not

reconcilable. Therefore, I do not find it safe to place reliance upon the

dying declarations in absence of any other independent corroborative

evidence. It is pertinent to note that as per the MLC Ex.PW5/A, the

deceased was brought to the Hospital by her husband on 14.03.1995 at

about 10:00 am i.e. within about an hour of the incident. This

circumstance also goes in favour of the appellants because if they had

intention to kill the deceased, the husband would not have immediately

taken the deceased to Hospital for treatment.

23. No doubt, there is always a reason behind an act committed by a

person. Committing of suicide by the deceased by immolating herself

does raise a suspicion that the deceased was not happy with her

matrimonial life. This suspicion, however, cannot be a substitute for

the proof of the dowry demand or subjecting the deceased to

harassment and cruelty i.e. the requisite ingredients which constitute

the offences under Section 498A and Section 304B IPC. Thus, under

the circumstances, I find it difficult to sustain the conviction of the

appellants on the aforesaid counts, based upon uncorroborated dying

declarations of the deceased which are inconsistent with each other.

24. In view of the discussion above, I accept the appeals and set

aside the impugned judgment and order on sentence. The appellants

are acquitted of the charges under Section 498A and 304B IPC, giving

them benefit of doubt.

25. The appellants are on bail. Their bail bonds and surety bonds

stand discharged.

26. Appeals are disposed of accordingly.

(AJIT BHARIHOKE) JUDGE NOVEMBER 02, 2010 pst