Delhi High Court
Diwan Singh vs State on 14 September, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 797/2001
% Date of Decision: 14.09.2010
Diwan Singh .... Appellant
Through Mr. S. Khan, Advocate
Versus
State .... Respondent
Through Mr. Jaideep Malik, APP
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
ANIL KUMAR, J.
*
1. The appellant, Diwan Singh, husband of deceased Smt. Mansa
has challenged his conviction under Section 498A and Section 302 of
Indian Penal Code by order dated 6th June, 2001 and his sentence
under Section 302 of IPC for imprisonment for life and a fine of Rs. 50/-
and in default to undergo rigorous imprisonment for seven days and
under Section 498A of IPC for three years and a fine of Rs. 100/- and in
default to undergo a further rigorous imprisonment for seven days by
order dated 11th June, 2001. Both the sentences were ordered to run
concurrently and benefit of Section 428 of Crl. Procedure Code was
given to him.
2. The present appeal was admitted on 5th November, 2001 and on
16th September, 2005, after undergoing incarceration for about seven
years, the appellant's sentence was suspended and he was released on
bail on furnishing a personal bond in the sum of Rs. 10,000/- with one
surety of like amount. The appellant was also directed to report to the
SHO of the concerned Police Station on 7th day of every alternative
month by the said order.
3. The appellant was married to deceased Smt. Mansa in February,
1992 and on 20th September, 1992 she was admitted to Safdarjung
Hospital by her sister-in-law Urmila, DW-1 after she was taken there in
the police van. The intimation about the burning of the deceased Smt.
Mansa was given by the husband of the owner of the house, Smt. Vani
Anand, PW-1 in whose house on the 5th Floor, the deceased was
residing with her husband and Smt. Urmila, her sister-in-law (wife of
the elder brother of the appellant) who was the maid in the house.
4. On the intimation of the incident, a DD entry No.4A dated 20th
September, 1992 was recorded at 10:27 AM which has been proved as
Ex. PW 2/A stipulating that ASI Amar Singh, PCR has been intimated
that at Manikshaw Road in House No. 11/97, a stove had burst and
one person had died on the spot. The DD Entry also incorporated that
after recording the report in "Roz Namcha" the investigation was
handed over to SI Surjan Singh, (Pw 13) who had gone to the spot on
motorcycle with another constable Virender Singh, PW-11.
5. In the Safdarjung Hospital, a Medico Legal Report was recorded,
which was exhibited as Ex. PW 7/1 dated 20th September, 1992, at
11:00 AM incorporating the time of arrival as 11:00 AM, the name of
sister-in-law Urmila, DW-1 and ASI Sohan Lal 5133 PCR, Police
Station, Delhi Cantt. and further stipulating "alleged history given by
the patient that her husband locked her up in the room, put kerosene
oil on her and set her ablaze and ran away".
6. The IO Surjan Singh, PW-13 allegedly recorded a dying
declaration of the deceased Smt. Mansa at 11:30 a.m. after seeking
permission to record the statement which was exhibited as Ex. PW
13/1, which is signed by IO Surjan Singh, PW-13 with the endorsement
of Dr. Savita, PW-7 stipulating Smt. Mansa fit for statement, however,
attestation by Dr. Savita is of 11.30 PM. It also has another
endorsement of another Doctor declaring Smt. Mansa as fit for
statement, however, the other Doctor had not been examined.
7. The dying declaration is not only in the hand writing of the
Investigating Officer but it is also in his language and allegedly bears
the right thumb impression of the deceased at Ex. 13/2. The alleged
dying declaration is not in the question answer form nor appears to be
in the language of deceased but is in the language of the Police Officer,
PW-13 and states that the deceased stated that she was living at 11/97,
Manikshaw Marg, Delhi Cantt. and her age is 21 years. She allegedly
stated that she had no child from the marriage which took place six
months back. It is further stated that her husband harassed her and
had asked her to bring Rs.5000/- from her parents. Since she could
not bring the said amount, therefore, her husband poured kerosene oil
and burned her and thereafter ran from the house. She stated that her
sister-in-law brought her in the burned condition in the police van to
the hospital and she was burned by her husband after pouring
kerosene oil and therefore, legal action should be taken against him.
The said dying declaration recorded by the Investigating Officer, PW-13
though has a fitness certificate by doctor at 11:30 AM who was not
examined, however, on a separate application, another fitness had been
endorsed by Dr. Savita, PW-7 at 11.30 AM which was exhibited as Pw
13/1. The attestation by Dr. Savita on the alleged dying declaration Ex.
PW-13/2 is, however, of 11:30 PM and there is an over writing in the
numeral 11.
8. The prosecution case before the Trial Court was that on 20th
September, 1992, a wireless message was received at 10:27 AM that a
stove had burst at House No. 11/97, Manikshaw Marg, Delhi Cantt.
and one person had died and the information was recorded in DD Entry
No. 4A (Ex. PW-2/A) and its copy was handed over to SI Surjan Singh
(PW-13) who along with constable Virender Singh (PW-11) reached the
place of occurrence. At the place of occurrence, the police personnel
came to know that the injured had been removed to Safdarjung Hospital
and therefore, constable Om Prakash was left on the spot and SI Surjan
Singh went to Safdarjung Hospital. He ascertained the condition of the
injured and also obtained the fitness certificate of the injured for
making the statement. Her statement (Ex. PW-13/2) was recorded by
PW-13, SI Surjan Singh in his own language and it also allegedly bears
the thumb impression of the deceased. Endorsement (Ex. PW-13/3) was
made by the Investigating Officer and the statement was sent to Police
Station where FIR (Ex. PW 2/B) was registered. Rough site plan was
also prepared (Ex. PW 13/4) and MLC (Ex. PW-7/1) had also been
collected.
9. The injured, however, did not survive and died of burn injuries at
4:00 PM on the same date, 20th September, 1992 and the information
was communicated to Police Station, Delhi Cantt. and was recorded in
DD-10A. SI Surjan Singh, PW-13 intimated the SDM Sh. H.C. Gaur,
PW-8, who conducted inquest proceeding Ex. PW-8/1 and recorded the
statements of Shyam Lal, PW 4/A and Smt. Rukmani Devi, PW 5/A,
father and mother of the deceased. Post mortem was conducted and
the report is Ex. PW 1/A. The husband Diwan Singh was arrested and
the mother of Diwan Singh, Smt. Harpyari had surrendered later on.
Both the accused were charged under Section 498A/34 of IPC and the
appellant was charged under Section 302 of IPC. Both the accused had
pleaded not guilty. The prosecution had examined 14 witnesses to
substantiate the charges and the accused had examined one witness
Smt. Urmila Devi, sister-in-law (wife of the appellant's brother) as
DW-1 who had taken the deceased to the Hospital but whose statement
under section 161 of Cr.P.C was not recorded. The Trial Court
acquitted Smt. Harpyari of charge under section 498A of IPC giving the
benefit of doubt, however, the appellant has been convicted under
Section 498A and 302 of IPC.
10. The Trial Court relied on dying declaration Ex. PW 13/2, though
it noted the cuttings/overwriting in the dying declaration and also
observed that the cuttings and over writing has not been explained by
the prosecution, however, considering that the fitness certificate was
granted by the Doctor, still relied on the same.
11. During trial the statement of the father of the deceased, PW-4
was recorded on 5th September, 1994 and was deferred to 6th
September, 1994 on which date cross-examination was partly recorded
and was deferred on account of time. On 6th September, 1994, the case
was adjourned to 4th October, 1994 and 5th October, 1994, however, the
cross-examination could not be recorded as presiding officer was on
leave and thereafter the father (PW-4) expired on 28th January, 1995
and so his cross examination could not be concluded. The Trial Court
ignored the statement of PW-4 as he had admitted in the cross-
examination that the demand was not communicated to him by his
deceased daughter but that his wife had told him about the demand of
Rs. 5,000/- by the in laws of her deceased daughter and he had not told
anyone about the alleged demand, i.e., the persons who got his
daughter married or any other person. Regarding the statement of
Rukmini Devi, PW-5, the Trial Court held that her examination-in-chief
was recorded on 5th September, 1994 and the cross-examination was
deferred as a prayer was made to cross-examine both the father and the
mother on the same date. PW-5 thereafter appeared on 13th February,
1998 but on that date, she was not cross-examined and later on the
cross-examination was again prayed pursuant to an application for
recalling PW-5 on 31st October, 2000 which application was declined.
However, it was allowed by the High Court by order dated 3rd January,
2001, but later on it had transpired that PW-5, mother of the deceased
had also died on 31st December, 1999. Before the date on which the
application for recalling PW-5 was filed the witness had died and the
Trial Court had held that it was inconceivable that the appellant was
not aware about the death of his mother-in-law and therefore, the
application to recall PW-5 was malafide and therefore, the statement of
PW-5 was not ignored and considered though she was not cross
examined.
12. Regarding the fitness of the deceased to make a dying declaration,
the Trial Court held that occurrence had taken place at 10:10 AM and
the deceased was admitted to hospital at 11:00 AM and since the
fitness was given at 11:30 AM, therefore, she was fit to make a
statement. The Trial Court also noticed the Medico Legal Report (Ex.
PW-7/1) which was proved by PW-7, Dr. Savita but no question was put
to her in the cross-examination and consequently, no benefit could be
given to the appellant. The Trial Court had however, noted that the
endorsement that the deceased was fit for statement made on Ex.
PW13/2, the alleged dying declaration, has not been proved. However
as the fitness of the deceased was endorsed on an application which
was filed by the IO Surjan Singh, which was exhibited as Ex. PW-13/1,
therefore the dying declaration has been relied on.
13. According to the Trial Judge, endorsement on the Rukka, which
is the statement of Mansa was made at 11:45 a.m. and the FIR (Ex. PW-
2/B) was registered at 12:50 pm and Devinder Kumar(PW-2) has not
been cross-examined with regard to the registration of the FIR and
therefore, it could not be said that FIR was not registered on the basis
of the statement of deceased Mansa or that it was not recorded at the
time on which it purports to have been recorded. The statements of
PW-7 Dr. Savita and IO Surjan Singh (PW-13) have been believed on the
ground that there was no reason for them to frame the appellant as
they were not having any enmity with the accused.
14. The hypothesis propounded on behalf of the appellant about the
accidental death by bursting of a stove has been negated on the ground
that marriage had taken place just six months before and the death of
the deceased was not natural. Reliance was also placed on the
testimony of Dr. G.K. Choubey (Pw2) deposing that the smell of
kerosene oil was present in the scalp hair. It was assumed by the Trial
Court that unless the kerosene has been poured over her or the stove
had been at such a place so as to fall on the head of the deceased,
kerosene could not be in her scalp hair. According to the learned Trial
Judge, there was no injury on the head of the deceased and had the
stove fallen on the head of Mansa, there should have been at least some
scratches, abrasion and haematoma on her head.
15. DD No. 4A (Ex. PW 2/A) incorporating that at the concerned
address one stove had burst and one person has died has not been
relied on the ground that it is not a substantive piece of evidence and
the person who informed the police control room had not been
examined and it is not clear as who had intimated the police control
room about the bursting of stove and death of one person.
16. The Trial Court also held that investigating officer did not find
bursting of any stove at the place of occurrence and no one had died on
the spot and therefore, this information cannot be connected with the
occurrence in question. Referring to Plan Ex. PW 13/4, it has been held
that no suggestions were given to the IO that the kerosene oil had been
kept on the shelves and the testimony of Urmila, DW-1, sister-in-law of
the appellant has been disbelieved on account of the fact that she is the
sister-in-law (wife of the appellant's brother) and will be an interested
witness.
17. The Trial Court also took the CFSL report as admissible under
Section 293 of Crl. Procedure Code though it was not tendered by the
public prosecutor but since the document was admissible, therefore, it
was exhibited as Ex. C-1 and relied on it to infer that scalp hairs and
clothes were found to have the presence of kerosene residual. In the
circumstances, dying declaration of Mansa, deceased was held to be
reliable and it has been held that possibility of accidental death can be
ruled out.
18. The learned counsel for the appellant has contended that the
dying declaration exhibited Pw 13/2 cannot be relied on and could not
be the basis of conviction of the appellant. According to him the dying
declaration is in the language of the Investigating Officer and not the
language of the deceased; it is not in question answer form; it has an
endorsement by another doctor which was also given at 11:30 AM
which doctor has not been examined, rather an attestation of Dr.
Savita, PW-7 has been obtained on the alleged dying declaration at the
11.30 PM. Time of attestation as 11:30 PM also has an over writing
which has not been explained nor it has been explained as to how
attestation could be at 11.30 PM when the deceased had died at 4.00
PM. The learned counsel has further contended that if the fitness was
given on the alleged application Ex.PW 13/1 at 11.30 AM by Dr. Savita
why the fitness of another doctor was taken on the alleged dying
declaration Ex. Pw 13/2 at 11.30 AM and why that doctor has not been
examined nor any explanation given as to why that doctor could not be
examined. He has submitted that if the fitness had been given by Dr.
Savita on the application and fitness on the alleged dying declaration Ex
Pw 13/2 by another doctor, then why the attestation was to be made by
Dr. Savita at 11.30 PM.
19. The learned counsel for the appellant has asserted that though
Trial Court has noted that the fitness on the alleged dying declaration
has not been proved, however, on the basis of fitness on the application
Ex. Pw 13/1, the alleged dying declaration has been believed holding
that the Investigating Officer and doctor did not have any enmity with
the appellant. It is submitted that the Investigating Officer is interested
in the success of case investigated by him and in view of apparent
lacunas it could not be inferred that he did not have any interest so as
to implicate the appellant and therefore alleged dying declaration
allegedly recorded by him could not be relied on. The learned counsel
relied on (1976) 3 SCC 104, Munnu Raja & Anr. Vs State of M.P.
20. The learned counsel for the appellant has contended that the
hypothesis of bursting of stove which is recorded in DD entry Ex.PW
2/A has been deliberately undermined by the prosecution by not
examining the husband of PW1, Smt. Vani Anant who had categorically
stated that her husband had rung up the police. The statement of Pw1
in this regard is as under:
"...... Mansa was living in my servant quarter with my maid
servant. On 20.9.1992 my servant Urmila finished her
morning chores by 10.AM and thereafter she went to
servant quarter, as father of the Urmila had come. Within
10 minutes Urmila came back rushing and told me that her
sister in law Mansa was dead. I along with my husband
rushed to the servant quarter and there we saw Mansa
lying badly burnt. Immediately my husband rang up to
the Police. After some time Police came there and removed
Mansa to hospital and sealed servant quarter.
21. It is contended on behalf of the appellant that the said DD entry
could not be ignored on the ground that it is not a substantive piece of
evidence and that the person who informed the police control room van
has not been examined and it is not clear as to who had intimated the
police control room. It is contended that the observation of the Trial
Court is contrary to the evidence on the record and in the
circumstances the observation and inferences of the Trial Court are
unsubstantiated and cannot be sustained.
22. On behalf of the appellant it is further asserted that the facts
established against the accused should be consistent only with the
hypothesis of the guilt of the accused and should not be explainable on
any other hypothesis nor should it be susceptible of any other rational
explanation. It is submitted that just after the incident the owner of the
house had intimated the police, the deceased was removed to hospital
by the maid servant Urmila, DW-1 wife of the brother of the appellant,
husband of the deceased and the room was sealed. The photographs of
the place of incident were taken which are exhibited PW 10/2 to PW
10/7 which show clearly that the stove had burst which photographs
have not been taken into consideration and ignored by the Trial Court.
Rather the Trial Court on its own assumptions has held that unless
stove had been at such a place so as to fall on the head of the deceased,
kerosene could not be in her scalp hair. It has been assumed that since
there was no injury on the head of the deceased, had the stove fallen on
the head of Mansa, there should have been at least some scratches,
abrasion and haematoma on her head. According to the learned counsel
Mr.S.Khan the hypothesis of bursting of stove could not be ruled out on
such assumptions as have been drawn by the Trial Court. Relying on
Photographs PW 10/2 and PW 10/6 it is submitted that the stove was
lying on the floor of the room and the kerosene had leaked from it. The
burner of the stove was bent which fact was also noticed by the Trial
Judge and noted in the proceedings. Reliance has also been placed on
the statement of Urmila Devi (DW-1) whose testimony, according to the
learned counsel for the appellant, could not be ignored as it remained
unimpeachable, regardless of the ground that she is related to the
appellant. It is asserted that no cogent reason has been given for not
recording her statement under section 161 of the Crl. Procedure Code.
This relevant evidence has not been taken into consideration to
completely rule out the hypothesis of bursting of stove and in the
circumstances, the findings of the Trial Court are based on surmises
and ignoring relevant evidence, hence conviction of the appellant cannot
be sustained.
23. According to Mr. Khan, learned counsel for the appellant, if the
stove was lying on the floor with the burner of the stove bent, the
kerosene must have escaped from the stove with force on account of
pressure in it and must have sprayed the deceased from head to toe in
front. This according to him explains, as to why the small area of the
back remained un-burnt which has been established from the
testimony of PW-7 Dr. Savita. Relying on the photographs the learned
counsel for the appellant has contended that from Ex. PW 10/2, it is
clear that the washer of the burner which controlled the flame of the
stove, can be seen lying at a distance from the stove which could be
only on account of bursting of stove at the base of burner which tilted
or bent the burner and in the process the washer of the burner would
have flown away. The Photographs relied on by the Learned counsel are
as under:
Exhibit Pw 10/2 shows the tilted burner and the flame washer
which is ordinarily on the top of the burner of the stove to control the
flame and localize it, lying on the left near the wall away from the stove.
According to the learned counsel for appellant this important piece of
evidence has not been considered by the Trial Court nor any rational
explanation for ignoring these factors have been given by the
prosecution so as to negate completely the possibility of bursting of
stove and the deceased getting burnt on account of kerosene bursting
out from the stove at great pressure in case the burner of the stove was
found bent. According to him the kerosene leaking from the stove has
not been explained by the prosecution which is apparent from the
photographs. The leaking kerosene is bluish in color which is the color
added to kerosene to prevent adulteration of kerosene. According to him
ruling out bursting of stove by the Trial Court on the ground that it had
not fallen from the shelf as no injury was on the head of the deceased is
based on assumption of the Trial Court that the stove must be on the
shelves in the kitchen and that had there been bursting of stove it
would have flown from the shelf and would have fallen on the head of
the deceased, which is nothing but assumption and on the basis of
such assumption, the appellant cannot be convicted.
Ex. Pw 10/6 showing leaking kerosene having blue color.
24. On behalf of the appellant it is also contended that the post
mortem report and other documents do not show that despite 98%
burns on the deceased, her hands especially her fingers and thumb
were not burnt and therefore, she could have put her thumb impression
on her alleged dying declaration Ex PW 13/2 which was allegedly
recorded by the Investigating Officer, PW 13. It is stated that only a
portion of the back of the deceased remained unburnt and if the thumb
and fingers had remained un-burnt, the post mortem report would have
indicated so. In the circumstances it is contended that no reliance can
be placed on the alleged dying declaration and the appellant could not
have been convicted on the basis of the same. The learned counsel for
the appellant has also relied on 1977 Crl.L.J 4404, State of Orissa Vs
Parasuram Naik in which dying declaration recorded by the Doctor was
disbelieved despite the fact that the Doctor allegedly had no enmity with
the accused and would not have implicated the accused ordinarily.
25. Per contra the learned Additional Public Prosecutor has defended
the judgment convicting the appellant on the same grounds which have
been noted by the Trial Court. He has submitted that the judgment
convicting the appellant is neither unsustainable nor perverse nor has
any such illegality which is liable to be corrected or on the basis of
which the judgment convicting the appellant is liable to be set aside.
26. It is no more res integra that if some material is on record
consistent with the innocence of the accused which may reasonably be
true, even though it is not positively proved to be true, the accused
would be entitled to acquittal. It also cannot be disputed that if two
views are possible on the evidence adduced in the case, one pointing to
the guilt of the accused and the other to his innocence, the view which
is favorable to the accused should be adopted. Reliance for this can be
made on Shivaji Sahabrao Bobade Vs State of Maharashtra, (1973) 2
SCC 793 where the Supreme Court had held so.
27. The probability of bursting of stove has been disbelieved by the
Trial Court on the assumption that unless the stove had been on a shelf
located in the kitchen at a higher level and hit the deceased on
bursting, she would not have had kerosene on her head. Absence of any
head injury or scratches or abrasion has also been factored to rule out
the bursting of stove. The view is based on misconception that on
bursting, the stove would move from its position. The bursting of stove
also connotes spilling of contents, fuel of the stove with force. This is
apparent from the photographs proved by the prosecution that the stove
was not an ordinary stove with a wick only but it had the facility of
pumping of air in the device which forces the fuel to escape from the
narrow nozzle in the burner at a great force and as the top of the burner
is very hot, the fuel coming out from narrow nozzle with a great force
burns in a controlled manner. The flame is also localized, with a round
washer which is placed on the top of the burner. This cannot be
disputed that in the device, stove, if there is any other opening other
than the nozzle of the burner, the fuel would escape with great force
and jet of the escaping fuel will drench any object which would come in
front of it. The trial Court had noticed during the trial and had also
incorporated on record when the stove was produced in evidence that
its burner was bent. From the photographs proved by the prosecution,
two of which have also been produced hereinabove, it is visible that the
burner of the stove had been bent. The bent burner of the stove is
demonstrative of the situation in which the fuel would have come out
from the stove with a great force from the base of the burner from where
it had bent. In the circumstances, any person in front of the stove
would be sprayed with the fuel or would be drenched with fuel except at
the back of the person. In contradistinction if the fuel is poured over the
head of a person, it will flow down in front and at the back of such a
person. To rule out the spraying of fuel as the consequences of bent
burner of the stove, the prosecution should have got it examined from
an appropriate expert, which has not been done nor there is any
rational and cogent explanation for the same. In case the deceased was
indeed doused with kerosene by the accused; the pattern of fallen
kerosene from the body of the deceased would have been different from
stream of kerosene flowing out from the stove with a bent burner
through which the kerosene must have flowed out. The photographs
clearly show that the kerosene had flowed out of the stove. These
factors have not been satisfactorily answered by the prosecution.
28. From the evidence on record it is clear that the husband of Smt.
Vani Anant, owner of the house immediately after the incident on
getting the information from their maid Urmila, DW-1 had visited the
site with her husband and after coming from there to their rooms,
husband of Smt. Vani Anant had called the police on the basis of which
DD entry no.4A dated 20th September, 2002 must have been recorded
stipulating that at the relevant address a stove has burst and one
person has died. This important evidence in the facts and
circumstances could not be ignored on the ground that it is only a DD
entry and the informant of this DD entry is not known. The prosecution
has failed to explain as to why the husband of Smt. Vani Anant was not
examined in the facts and circumstances. The prosecution has also
failed to explain the ramification of bent burner and the kerosene
flowing out of it. These circumstances are susceptible of rational
explanation of bursting of stove and the deceased catching fire and are
consistent with the innocence of the appellant. If the circumstances are
capable of any other hypothesis, then the appellant is entitled for
benefit and cannot be convicted of murdering his wife. If the evidence
on record is reasonably capable of two inferences, the one in favor of the
accused must be accepted. The inculpatory facts must be incompatible
with the innocence of the accused and incapable of explanation, upon
any other reasonable hypothesis with that of the guilt of the accused as
had been held by the Supreme Court in State of U.P Vs Ashok Kumar
Srivastava, (1992) 2 SCC 86.
29. Next is the alleged dying declaration of the deceased allegedly
recorded by the Investigation Officer. The prosecution has not even tried
to give any explanation as to why it wasn't recorded by the Magistrate
and what were the circumstances, that the alleged dying declaration
had to be recorded by the Investigating Officer. In Balak Ram v. State of
U.P.(1975) 3 SCC 219 the Apex Court had held that though the dying
declaration was alleged to have been recorded by Investigation Officer
but in absence of any explanation as to why it was not recorded by a
Magistrate in the usual course, High Court treated the statement of the
deceased to be one recorded under section 161 of Cr. P.C and not a
dying declaration. Though in the referred case the dying declaration was
not signed by the deceased, however, even in the present case it has not
been fully established that the dying declaration was thumb marked by
the deceased. PW 7 Dr. Savita who had allegedly attested the dying
declaration at 11.30 PM though it was allegedly recorded at 11.30 AM
did not depose that in her presence the dying declaration was thumb
marked by the deceased after it was read over to her by the
Investigating Officer. Rather she deposed that fresh burns involved the
entire body except the small area on back. She did not state that the
thumb of the deceased was burnt to the extent that the mark could not
be given from it. The post mortem report Ex. PW 8/1 also does not show
that the thumbs of the deceased were not burnt or despite burns on the
thumb, impression could be obtained from the thumb. In Mannu Raja
Vs State of M.P, (1976) 3 SCC 104 in para 11 at page 108 the Supreme
Court had held that the Investigating Officers are interested in the
success of investigation and the Investigation Officer himself recording
a dying declaration during the course of investigation ought not to be
encouraged. The prosecution has failed to divulge any details as to why
the Magistrate could not record the alleged dying declaration.
Admittedly the deceased was admitted at 11.00 a.m and was alive for
couple of hours before succumbing to burns. There is no explanation as
to why the dying declaration could not be recorded in question answer
form, in order to reflect as to what was asked and what was answered
by the deceased. This is also to be noticed that the dying declaration
which is copiously worded or neatly structured excites suspicion for the
reason that it bears the traces of tutoring or incorporating such facts
which may not have been told by the deceased. From the dying
declaration Ex PW 13/2 it is apparent that it is the language of the
Investigating Officer and not the language of the deceased.
30. Though it is not necessary that the fitness of the person giving
the dying declaration should be recorded on the dying declaration itself
and it can be given separately on any application filed by the
Investigating Officer or any other concerned person, however, in this
case a fitness certificate has been given on the dying declaration by one
doctor at 11.30 AM which doctor has not been examined. Another
Doctor has attested the dying declaration at 11.30 PM though the
deceased had died at 04.00 PM. If the fitness certificate had been given
on the alleged dying declaration by some other doctor why at the same
time, 11.30 AM, an application seeking fitness of the deceased was
requested by the Investigation Officer from Dr. Savita, who has also
given the fitness certificate at 11.30 AM on the alleged application Ex
PW 13/1. If two Doctors have given fitness certificate at the same time
they must be present with the patient and must have examined her,
then why they would give fitness certificate on two separate documents
at the same time. These anomalies had to be explained by the
prosecution. It was for the prosecution to establish that the alleged
dying declaration was thumb marked by the deceased in the presence of
Dr. Savita or another Doctor who had given the fitness certificate, as
two fitness certificates and an alleged dying declaration were signed at
11.30 AM. If one doctor has not been examined and even his name or
his where abouts are not disclosed and no explanation given as to why
he could not be examined and if Dr. Savita as PW 7 has not deposed
that the deceased had thumb marked the alleged dying declaration in
her presence, not cross examining Dr. Savita by the appellant will not
help prosecution in establishing the veracity of the alleged dying
declaration so as to rely on the same.
31. For the reasons, the alleged dying declaration, Ex. PW-13/2
allegedly recorded by the Investigating Officer cannot be relied on, for
the similar reasons the alleged dying declaration, Ex. PW-7/1
incorporated in the Medico Legal Report also cannot be considered to be
credible and cannot be relied for convicting the appellant for allegedly
murdering his wife, Mansa by allegedly pouring kerosene over her and
running away from the house. From the facts and circumstances, it has
been inferred that the deceased got the burns from bursting of stove
which must have led to Kerosene oil spurting out from the stove and
drenching the deceased and burning her and not on account of pouring
of kerosene by the appellant on his deceased wife.
32. The learned counsel for the appellant has relied on (1997) Crl.
Law Journal, 4404, State of Orissa v. Parshuram Naik, where the dying
declaration recorded by the doctor was not relied on. In Parshuram
Naik (supra) though the doctor had certified that the deceased was
conscious, however, it was not certified that she was in her full sense
and having regard to the facts and circumstances, the Supreme Court
had not relied on such dying declaration. In the present case at 11.00
a.m. the Medico Legal Report was recorded, where it was also
incorporated that the patient was locked up in a room and kerosene oil
was poured on her and she was set ablaze. The same doctor has
attested another alleged dying declaration Ex PW 13/2 at 11.30 PM
which was allegedly recorded by the Investigating Officer at 11.30 a.m.
Why she had attested the alleged dying declaration at 11.30 PM has not
been explained by her and her testimony has not been relied on. From
the other facts and circumstances, also it is apparent that it has not
been established that the kerosene oil was poured on the head of the
deceased and thereafter she was set ablaze. From the evidence on
record including the photographs it has to be inferred that stove in the
room of the deceased had burst which had led to bending of the burner
which fact was also intimated to police resulting into recording of DD
entry 4A dated 20.9.1992 that the stove has burst in the concerned
house and one person has died. From the testimony of owner of the
house, it is apparent that this information must have been given by the
husband of PW 1 Smt. Vani Anant, however, for the reasons best known
to the prosecution this important witness had not been examined by the
prosecution.
33. In Laxman v. State of Maharashtra, (1993) 9, SCC 562, it was
held that a dying declaration is made in extremity when the party is at
the point of death and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man is induced by the
more powerful consideration to speak only the truth. However, it was
further held that notwithstanding these circumstances great caution
must be exercised in considering the weight to be given to the dying
declaration on account of existence of many circumstances which may
affect the truthfulness of a dying declaration. In Dalip Singh and others
v. State of Punjab, (1979) 4 SCC 332, it was held by the Supreme Court
that although a dying declaration recorded by a police officer during
course of the investigation is admissible under Section 32 of the Indian
Evidence Act in view of the exception provided in Sub Section (2) of
Section 162 of the Code of Criminal Procedure, 1973, it is better to
leave such dying declaration out of consideration until and unless the
prosecution satisfies the Court as to why it was not recorded by a
Magistrate. In the present case, there is no attempt by the prosecution
to disclose any facts as to why dying declaration could not be recorded
by a Magistrate though after admission of the deceased at 11.00 a.m.,
the deceased was in the hospital till 4.00 p.m. when she had
succumbed to her burn injuries. This has not been established as to
when deceased had become medically unfit or unconscious to give her
statement after at 11.30 a.m. when the alleged dying declaration was
recorded by the investigating officer which has not been found to be
credible. In the present facts and circumstances, the alleged dying
declaration in the Medico Legal Report also has to be considered with
circumspection. In these facts and circumstances, the appellant is not
liable to be convicted on the basis of alleged dying declarations which
are not consistent with the other facts and circumstances, and cannot
be considered to be credible.
34. Regarding the alleged demand of Rs.5,000/- by the appellant, the
trial court has not relied on the statement of PW-4, Sh.Shyam Lal,
father, as he did not have any personal knowledge about the demand
being made by the appellant through his deceased daughter as this fact
was disclosed to him by his wife, Smt.Rukmini Devi, PW-5 and he had
no personal knowledge about it. The cross-examination of this witness
also could not be concluded as the dates for which the matter was
adjourned, either the Court was on leave, or for some other reasons.
The matter had also been adjourned subsequently for which the
appellant cannot be blamed. Thereafter before the cross-examination
could be concluded, the father of the deceased, Sh.Shyam Lal, PW-4
had died. In the circumstances on such a statement the appellant
cannot be implicated for the alleged demand of Rs.5000/- which has
not been established. The mother, Smt.Rukmini Devi, PW-5 also could
not be cross-examined as on the date her examination-in-chief was
recorded, the cross-examination was adjourned on the ground that the
remaining cross-examination of the father, Sh.Shyam Lal, PW-4 and
mother, Smt.Rukmini Devi, PW-5 was to be conducted on the same
date. The trial court found the request for cross-examining the father
and the mother on the same day justifiable and therefore had adjourned
the matter on 5th September, 1994. There after the Court proceedings
on 13th February, 1998 reflects that Smt.Rukmini Devi, PW-5 was
present but she was not cross-examined. However, from the
proceedings, it is not clear whether the husband, PW-4 was present on
that date or not, as the trial court by order dated 5th September, 1994
had allowed the request on behalf of the appellant to cross-examine
PW-5, the mother of the deceased and the remaining cross examination
of PW-4, the father of the deceased on the same date. Since despite the
order permitting the appellant to cross-examine the father and mother
of the deceased on the same day, the mother was not cross-examined,
an application was filed on 31st October, 2000 for the cross-examination
of PW-5, mother of the deceased.
35. The application was, however, dismissed by the trial court. A
petition was filed on 31.10.2000 in the High Court challenging the order
of the dismissal of the application for recalling PW-5, mother of the
deceased. The High Court had allowed the application of the appellant
by order dated 3rd January, 2001. Before the High Court, it was not
disclosed that PW-5 had already died on 31st December, 1999, and
therefore, the application to cross-examine PW-5 was allowed by the
High Court by order dated 3rd January, 2001. If it was not disclosed by
the prosecution before the High Court that PW-5, Smt. Rukmini Devi
had already died on 31st December, 1999, the trial court could not
impute anything adverse or malafide intentions on the part of the
appellant on the assumption that he must have been aware about the
death of his mother-in-law. The inference of the trial court that the act
of the appellant is malafide and PW-5, Smt.Rukmini Devi could not be
cross-examined on account of malafide intentions on the part of the
appellant cannot be sustained, nor on the basis of same, it can be held
that the appellant had demanded Rs.5,000/- for the purchase of
Scooter from his deceased wife, which amount the deceased wife had to
obtain from her parent. The finding of the trial court in the facts and
circumstances are unsustainable. If the statement of father, Sh.Shyam
Lal, PW-4 and mother, Smt.Rukmini Devi, PW-5 cannot be considered
as they could not be cross-examined, the charge against the appellant
under Section 498A of the Indian Penal Code cannot be established. In
the circumstances the charge under section 498A of IPC is liable to be
set aside and the appellant is not liable for conviction for the said
charge. In any case the appellant has already undergone imprisonment
for 5 years 11 months and 19 days and he had become entitled for
remission of 11 months and 15 days as in October, 2004 and his
sentence had been suspended by order dated 16th September, 2005 and
he had been ordered to be released on bail on furnishing a personal
bond of Rs.10,000/- with one surety of like amount.
36. For the foregoing reasons, the order of conviction dated 6th June,
2001 convicting the appellant under Section 498A of the Indian Penal
Code cannot be sustained and the order of sentence dated 11th June,
2001 awarding rigorous imprisonment for 3 years under Section 498A
of Indian Penal Code and a fine of Rs. 100/- and in default to undergo a
further rigorous imprisonment for 7 days and rigorous imprisonment
for life under Section 302 of Indian Penal Code and to pay a fine of
Rs.50/- and in default to undergo further rigorous imprisonment for 7
days cannot be sustained. Therefore for the forgoing reasons the order
of conviction dated 6th June, 2001 and order of sentence dated 11th
June, 2001 are liable to be set aside.
37. Consequently, the order of conviction dated 6th June, 2001 and
order of sentence dated 11th June, 2001 are set aside and the appellant
is acquitted of the charges under Section 498A and 302 of the Indian
Penal Code. The appellant is on bail pursuant to order dated 16th
September, 2005 on his furnishing a bond of Rs.10,000/- and one
surety of the like amount. Since the appellant has been acquitted of
charges against him the bail bond of the appellant is discharged and
the surety of the appellant is also discharged in the facts and
circumstances.
ANIL KUMAR J.
September 14, 2010 SURESH KAIT J.
'rs/VK'
