Ashrafi Devi vs State Of Delhi
2011 Latest Caselaw 3894 Del

          *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment delivered on 11.08.2011

+      CRL.A. 324/1997


ASHRAFI DEVI                                           ...    Appellant


                                    - versus -

STATE OF DELHI                                         ...    Respondent

Advocates who appeared in this case:

For the Appellant         : Mr R.K. Bali
For the Respondent        : Ms Richa Kapur

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

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

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest? Yes

BADAR DURREZ AHMED (ORAL)

1. This appeal is directed against the judgment dated 29.08.1997 delivered

by the learned Additional Sessions Judge, Shahdara, Delhi in Sessions Case

No. 225/1996 arising out of FIR No. 93/1984 registered at police station

Seelampur under Section 302 IPC. The appeal is also directed against the order

on sentence dated 30.08.1997. By virtue of the impugned judgment, the

appellant Ashrafi Devi has been found guilty of having committed the offence

punishable under Section 302 IPC by causing the death of her daughter-in-law

Smt. Dev Wati (who was married to her son Babu Ram) on 30.03.1984. By

virtue of the impugned order on sentence, the appellant was sentenced to

undergo imprisonment for life and was also fined a sum of ` 1000 and, in

default thereof, she was to further undergo rigorous imprisonment for six

months.

2. The charge against the appellant was that on 30.03.1984 at about 6 a.m.,

she caused the death of her daughter-in-law Smt. Dev Wati by setting her

clothes on fire after pouring kerosene oil on her, in her house No.C-18/1,

Chauhan Bangar, Seelampur, Shahdara, Delhi and thereby committed an

offence punishable under Section 302 IPC. The appellant pleaded not guilty

and consequently the case was put up for trial.

3. From the impugned judgment, it is apparent that the appellant was

convicted for the offence punishable under Section 302 IPC on account of the

fact that the trial court found the oral dying declaration allegedly made by Smt.

Dev Wati to her brother PW-1 (Satnam Singh) as well as the dying declaration

allegedly made to the Executive Magistrate PW-12 (D.B. Kubba) to be reliable.

The learned Additional Sessions Judge also found that the said two dying

declarations did not suffer from any inherent improbability or infirmity and

therefore relying on the said dying declarations, both verbal as well as in

writing, the trial court came to the conclusion that the prosecution had

succeeded in establishing that it was the appellant who had caused the death of

Smt. Dev Wati.

4. The learned counsel appearing on behalf of the appellant challenged the

findings of the learned Additional Sessions Judge and, in particular, the finding

that the so-called dying declarations made to PW-1 (Satnam Singh) and PW-12

(D.B. Kubba) were reliable and did not suffer from any infirmity. It was his

contention that these dying declarations were not of a stellar quality and without

any corroboration, the same could not be relied upon for convicting the

appellant. He also pointed out that PW-13 (Inspector Bhim Singh), who was

the Investigating Officer in the said case, was not presented for cross-

examination and, therefore, his entire testimony in chief had to be ignored as no

opportunity had been given to the defence to cross examine the said witness.

The learned counsel for the appellant further pointed out that the MLC in

respect of Smt. Dev Wati (Exhibit PW-8/A) indicates that her time of arrival at

the LNJP hospital was 6.35 a.m. on 30.03.1984. He also pointed out that there

is an endorsement as regards the alleged history of burns which indicates that

the burns were accidental. He also submitted that she was brought to the

hospital by her husband Babu Ram.

5. The learned counsel for the appellant drew our attention to an

endorsement indicating that the patient was unfit for statement and that the

endorsement was made at 7.45 a.m. on 30.03.1984 by one Dr. Y.L. Narayana.

There is another endorsement below that which indicates that the patient is fit

for giving statement and the same has been made by one Dr. G.S. Janardhan.

He submitted that there is no time or date mentioned in the second endorsement.

Furthermore, the said endorsement has not been proved inasmuch as neither the

doctor (Dr. G.S. Janardhan) had been produced as a witness nor has his

signature been proved by anybody else.

6. The learned counsel appearing for the appellant also submitted that PW-

12 (D.B. Kubba), who was the Executive Magistrate who allegedly recorded the

dying declaration of Smt. Dev Wati, has also not indicated or certified that Smt.

Dev Wati was in a fit state of mind when he recorded her statement. He further

submitted that the original dying declaration has not been produced by the

prosecution and only a carbon copy (Exhibit PW-13/A) has been presented in

evidence. Consequently, the learned counsel for the appellant submitted that

neither the alleged oral dying declaration made to PW-1 (Satnam Singh) nor the

alleged dying declaration (Exhibit PW-13/A) recorded by PW-12 (D.B. Kubba)

could be relied upon inasmuch as it was not at all clear as to whether Smt. Dev

Wati was in a fit state of mind to have made the alleged statements. He further

submitted that apart from the dying declarations, there is no other evidence to

implicate the appellant and since the dying declarations are themselves doubtful

in character, the benefit of doubt must go to the appellant and she should be

acquitted of all charges after setting aside the impugned judgment and order on

sentence.

7. We have also heard learned counsel for the State.

8. PW-1 (Satnam Singh) is the brother of the deceased Smt. Dev Wati.

According to him, on 30.03.1984, a man had come to his house in the morning

and told him that his sister Dev Wati had been burnt by her in-laws. He, of

course, did not remember the name of that man. He further stated that he, along

with his grandfather and maternal grandfather, went to Irwin hospital (LNJP

Hospital) where his sister had been removed. He further stated in the

examination-in-chief that he met his sister, who was alive at that time and she

was alone on the bed. According to him, she told him that her mother-in-law

had burnt her after pouring kerosene oil on her. He further stated that thereafter

the police came there and his statement was recorded by the police in the

hospital and the same is Exhibit PW-1/A and that it has been signed by him and

it is correct. In his cross examination, he has again confirmed the fact that he

does not know the address of the man who had come to inform him that his

sister had been burnt. He, however, indicated that that person had told him that

his sister had been burn by her in-laws and did not tell him anything else. In

cross examination, he further revealed that the appellant Ashrafi Devi and Babu

Ram (husband of the deceased Smt. Dev Wati) had met him in the hospital and

that he had reached hospital at 7 a.m. He also stated that he had met an

Inspector of police from police Seelampur at about 8/ 8.15 a.m when he was

coming out after seeing his sister. He further stated in cross-examination that

there was no nurse or doctor or anybody else in the ward when his sister told

him that she had been burnt by her in-laws.

9. From the aforesaid testimony of PW-1 (Satnam Singh), it appears that, if

PW-1 (Satnam Singh) is to be believed, he arrived at the hospital at 7 a.m. on

30.03.1984 and that thereafter he went to the ward where his sister had been

placed. Outside the ward, he met the appellant Ashrafi Devi and also her son

Babu Ram. According to the said witness, there was nobody else in the ward

and that his sister was lying on the bed and it is only when he was coming out at

about 8/8.15 a.m., that he met the Inspector of police station Seelampur. At this

juncture, we may point out that the MLC (Exhibit PW-8/A) carries an

endorsement that the patient is unfit for the statement and the said endorsement

was apparently made at 7.45 on 30.03.1984 by Dr. Y.L. Narayana. Thus, if the

endorsement in the MLC is to be believed, the doctor, namely, Y.L. Narayana

must have examined Smt. Dev Wati just prior to 7.45 a.m. on 30.03.1984 and,

therefore, the statement of PW-1 (Satnam Singh) to the effect that there was

nobody else in the ward other than his sister, who was lying alone on the bed,

cannot be believed.

10. Furthermore, if the endorsement in the MLC is to be believed, then Smt.

Dev Wati was unfit for making a statement at least at 7.45 a.m. According to

PW-1 (Satnam Singh), he was coming out of the ward at about 8/8.15 a.m.

when he is said to have met the Inspector from police station Seelampur. This

also belies the testimony of PW-1 (Satnam Singh) that his sister Smt. Dev Wati

had made an oral dying declaration to him inasmuch as all that his sister told

him or could tell him because of her precarious condition was that she was

burnt by her mother-in-law after pouring kerosene oil on her. Such a statement

does not take much time as it is just one sentence. It is obvious that the

duration between 7.45 a.m and 8.15 a.m. would have been sufficient for

making such a statement. However, at that point of time, as noted in the MLC,

the patient, i.e., Smt. Dev Wati, was clearly unfit for making a statement. It is

for these reasons that the testimony of PW-1 (Satnam Singh) with regard to the

alleged dying declaration made by his sister Smt. Dev Wati cannot be believed

and relied upon. The learned Additional Sessions Judge failed to appreciate

these facts and, therefore, his conclusion with regard to the reliability of the

alleged oral dying declaration made to PW-1 (Satnam Singh) is erroneous.

11. There is another aspect of the matter and that is PW-2 (Vidya Wati), who

is the mother of the deceased Smt. Dev Wati, has stated in her examination-in-

chief that she met her daughter in hospital, but she was unconscious and did not

talk to her and that she died on the next day. In her cross-examination, it has

been elicited from her that she had gone to the hospital at about 7.30/8 a.m. and

that she had accompanied Saudan and Satnam Singh (PW-1) at that time. This

clearly negates the testimony of PW-1 (Satnam Singh) insofar as the alleged

oral dying declaration is concerned.

12. We now come to the other alleged dying declaration, that is, Exhibit PW-

13/A, which is a carbon copy of the dying declaration said to have been

recorded by PW-12 (D.B. Kubba), who is an Executive Magistrate. Exhibit

PW-13/A has been recorded in question and answer form. In response to the

question - How did you get the burns?, the deceased Smt. Dev Wati is said to

have answered as under:-

"My mother-in-law set me on fire early in the morning by pouring K. oil on me. I cried. My husband and my father-in- law were sleeping at that time. My husband woke up and he along with other neighbours extinguished the fire. I was brought to the hospital by my husband."

13. The said statement is alleged to have been recorded at 3.30 p.m. on

30.03.1984. Apart from the other legal infirmities with regard to this so-called

dying declaration, there is also the statement of PW-2 (Vidhya Wati), which we

have already referred to above wherein she has stated that when she met her

daughter in hospital she was unconscious and she died on the next day. There

is no statement made by her to the effect that her daughter ever gained

consciousness between the time she arrived at the hospital and the time when

she died the next day. This also casts serious doubts on the correctness of

Exhibit PW-13/A.

14. Furthermore, as per Chapter XIII-A of Volume III of the Delhi High

Court Rules and Orders, dying declarations are to be recorded in a particular

manner. Rule 3, 4, 5 and 8 read as under:-

"3. Fitness of the declarant to make the statement should be got examined- Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the

declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting or the attendance of the Medical Officer, the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considred it impracticable or inadvisable to wait for a doctor's attendance.

4. The statement of the declarant should be in the form of a simple narrative- The statement, whether made on oath or otherwise, shall be taken down by the Judicial Magistrate in the form of a simple narrative. This, however, will not prevent the Judicial Magistrate from clearing up any ambiguity, or asking the declarant to disclose the cause of his apprehended death or the circumstances of the transaction in which he sustained the injuries. If any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the question also the answers which he receives. The actual words of the declarant should be taken down and not merely their substance. As far as possible the statement should be recorded in the language of the declarant or the Court language.

5. Signatures or thumb impression of the declarant to be obtained in token of the correctness of the statement- At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb- impression in token of its correctness unless it is not possible to do so. The dying declaration shall be placed in a sealed cover and transmitted to the Judicial Magistrate having jurisdiction to deal with the case to which it relates.

8. Fitness of the Declarant to make a statement to be certified by the Judicial Magistrate or other officer concerned - The judicial Magistrate or other officer recording a dying declaration shall at the conclusion of the dying declaration certify that the declarant was fit to make a statement and it contained a correct and faithful record of the statement

made by him as well as of the questions, if any, that were put to him by the justice recording the statement. If the accused or his counsel happens to be present at the time the dying declaration is recorded, his presence and objection, if any, raised by him shall be noted by the Judicial Magistrate or the officer recording the dying declaration, but the accused of his counsel shall not be entitled to cross-examine the declarant."

15. It will be seen from the aforesaid extract that Rule 3 requires that the

'Judicial Magistrate' should satisfy himself that the declarant is in a fit

condition before he starts recording the statement. But, in the present case, we

find that there is no such certificate given by PW-12 (D.B. Kubba) nor is there

any doctor's certificate indicating that Smt. Dev Wati was fit for making a

statement at 3.30 p.m. on 30.03.1984. The only semblance of a certificate is

the endorsement on the MLC (Exhibit PW-8/A) to the effect that the patient is

fit for giving a statement and that endorsement had allegedly been made by Dr.

G.S. Janardhan, who, as we have already pointed out above, was neither

produced as a witness nor was his signature got proved through some other

witness. In any event, there is no time or date alongside the said endorsement

in the MLC (Exhibit PW-8/A). Thus, there is no evidence of any doctor having

certified that Smt. Dev Wati was fit for making a statement at the time when

her statement was allegedly recorded by PW-12 (D.B. Kubba). Interestingly,

even PW-12 (D.B. Kubba), when he came to the witness stand, has not stated

that when he recorded Smt. Dev Wati's statement, he had satisfied himself that

she was fit for making a statement.

16. Rule 3 also prescribes that if the condition of the patient was such that it

was not possible to obtain a doctor's certificate prior to the Magistrate

recording the dying declaration, then such reasons must be indicated in the

dying declaration itself or at least the Magistrate should have stated so during

his deposition before court. He should have indicated as to why he felt it

necessary to record the statement of Smt. Dev Wati without waiting for the

doctor's certificate as regards her fitness to give such a statement. This is also

absent in the present case.

17. Rule 4 of the said Rules requires that the dying declaration should be in

the form of a simple narrative and that the actual words, as far as possible,

should be recorded and, that too, in the language of the declarant. We find that

this rule has also not been followed inasmuch as the so-called dying declaration

has been recorded in a question and answer form and in English which was not

the language of the declarant.

18. Rule 5 has also not been followed in this case as the thumb impressions

have not been taken nor is there any indication that the statement was read out

to the declarant. There is also no evidence that the dying declaration was

placed in a sealed cover and transmitted to the Judicial Magistrate having

jurisdiction over the matter.

19. Rule 8 has also been violated in the sense that no fitness certificate has

been given while recording the dying declaration.

20. For all these reasons, the so-called dying declaration (Exhibit 13/A) is

also of a very doubtful character and cannot be relied upon or form the sole

basis of conviction. It is well-settled that though a conviction can be based

solely on the basis of a dying declaration, this can only be done when the dying

declaration is established to be authentic and correct as well as truthful. As

regards the authenticity and correctness of the dying declaration, the

prosecution has to establish that the dying declaration in question was, in fact,

made by the person who lost his/her life and that it had been faithfully

recorded. Even where it can be so established, the prosecution has further to

establish that the statement was truthful.

21. In the present case, even the authenticity and correctness of the dying

declarations has not been established by the prosecution and the same remains

shrouded in doubt, therefore, this is not one of those dying declarations which

can be made the sole basis of conviction.

22. PW-3 (Mukesh Kumar), who is a neighbour, has also stated that Smt.

Dev Wati was unconscious at 5- 5.30 a.m. and remained unconscious all the

way to the hospital. PW-3 is the person who took Smt. Dev Wati in a three

wheeler to the hospital. PW-4 (Mohd. Tahir), who is also a neighbour, stated

that she was unconscious shortly after she received the burn injuries. All these

factors go to indicate that Smt. Dev Wati, soon after she received her burn

injuries, slipped into unconsciousness and, in all probability, did not recover

her consciousness at all till she died the next day at 5 a.m.

23. The result of the aforesaid discussion is that the so-called dying

declarations made to PW-1 (Satnam Singh) and PW-12 (D.B. Kubba) cannot

be relied upon. The learned Additional Sessions Judge fell into error in relying

upon the same and thereby convicting the appellant for the offence punishable

under Section 302 IPC and, consequently, in sentencing her for life

imprisonment as also in imposing a fine upon her. The impugned judgment

and / or order on sentence are set aside and the appellant is acquitted of the

charge against her. Her bail bonds are cancelled and her sureties stand

discharged.

The appeal stands allowed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J AUGUST 11, 2011 KB