Delhi High Court
Naresh Kumar vs Kalawati & Ors. on 25 August, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl Rev. P.No.138/1996
% Judgment reserved on :12th July, 2011
Judgment delivered on:25th August, 2011
NARESH KUMAR ....... Petitioner
Through: Mr.Rajender Singvi &
Mr.K.L.K. Gautam, Advs.
Versus
KALAWATI & ORS. ....... Respondents
Through : Mr.Ramesh Gupta, Sr. Adv
with Mr.Sunil Sethi, Adv
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
SURESH KAIT, J.
1. Vide the instant petitioner the petitioner has
challenged the judgment dated 30.11.1995 passed by the
learned Additional Sessions Judge whereby, both the
accused persons were acquitted for the offence under
Section 498A/302/34 Indian Penal Code, 1860, in case FIR
No.439/1991, Police Station Hari Nagar, by giving them
benefit of doubt.
2. Being aggrieved by the aforesaid judgment of the
Trial Court, petitioner has filed the instant revision petition
before this Court. The same was disposed-of vide order
dated 12.09.2001 without going into any of the grounds
because of the fact that none appeared on behalf of the
petitioner. With the help of ld. amicus curie, the instant
petition was dismissed.
3. Being aggrieved by the aforesaid order of this
Court, the petitioner challenged the same before the Hon'ble
Supreme Court by filing a Special Leave Petition. The
Supreme Court vide its order dated 25.02.2009 had set aside
the order passed by this Court and remitted the matter back
for a fresh disposal in accordance with law.
4. I note that in the matter, before the Trial Court,
there were two accused persons, one was Jethani (sister in
law) of the deceased and another was the husband of the
deceased. The present revision petition has been filed by
brother of the deceased, on whose complaint the FIR was
registered.
5. Vide judgment dated 30.11.1995, the Trial Court,
after going through the evidence and the submissions of the
counsel, acquitted both the accused persons.
6. The brief facts of the case are that; On
17.09.1991 deceased Rekha Rani Jain was admitted in
Safdarjung Hospital in burnt condition. She made statement
in the presence of ASI Lal Singh and the said statement was
attested by Dr.Anant Sinha. The occurrence was reported by
Constable Sushil Kumar on 17.09.1991, who was posted as
Duty Constable at Safdarjung Hospital. He gave the
information to the PCR. The said information was transmitted
to police station, on receipt of the information; ASI Lal Singh
went to Safdarjung Hospital, where, he recorded the
statement of Smt.Rekha Rani Jain. On her statement, case
was registered against both the aforesaid accused persons.
7. During investigation, statements of witnesses
were recorded. Smt.Rekha Rani Jain was medically examined
however; she succumbed to her injuries on 18.09.1991.
Shri HC Gaur, SDM was also contacted for recording the
statement of Smt. Rekha Rani Jain. He reached
Safdarjung Hospital at 11:15 PM on that day, by that time
Smt. Rekha Rani Jain expired at 11:00 PM on that day. After
the investigation and completion of the formalities, challan
against the accused persons under Section 498A/302/34 IPC
was filed.
8. The prosecution examined as many as 25
witnesses in support of its case. PW-14 and PW-17 were
given up by the prosecution.
9. PW-20 Ct.Sushil Kumar was posted as duty
constable at Safdarjung Hospital on 17.09.1991 gave the
information to the PCR.
10. PW-13 SI Pishori Lal of PCR informed the SHO,
police station Hari Nagar about the admission of the injured.
11. PW-12 HC Surender Pal who was posted at police
station Hari Nagar, on 17.09.1991, as Wireless Operator. He
received the wireless message and recorded the message in
DD No.22A.
12. PW1 HC Daya Kishan, duty officer at police station Hari
Nagar received wireless message at 06:05PM about the
information of injured Smt.Rekha Rani Jain with 95% burn
injuries. He informed SHO, police station Hari Nagar, the
same was recorded in DD No.22A. The same has been
proved by this witness as Ex.PW1/A.
13. On the same day, at night about 09:30PM, ASI Lal
Singh sent rukka to the police station, through Constable
Ravinder Kumar. On the basis of which formal FIR Ex.PW1/C
was got recorded by him. He also recorded DD No.62B at
about 11:45PM, regarding the death of Smt.Rekha Rani Jain.
14. PW-25 ASI Lal Singh took over the investigation
on receipt of DD No.22A. He reached Safdarjung Hospital
and collected the MLC of the injured Smt. Rekha Rani Jain.
She was declared fit to make statement by Dr. Anant Sinha,
thereafter, recorded the statement of the injured which is
Ex.PW19/D. He reached at the place of occurrence along
with SHO at H.No.BE-253, Hari Nagar, New Delhi.
15. Crime team and the photographer were found
present; at the place of occurrence photographs and the
statement of Smt. Rekha Rani Jain was sent to the police
station with endorsement Ex.PW1/B.
16. Site plan Ex.PW25/A was prepared at the spot.
From the place of occurrence two-three burnt match sticks,
one match box containing match sticks, some broken
bangles, and two pieces of cloth smelling kerosene oil with
the help of cotton at the spot, burnt paint from inside the
door were taken into possession. They were sealed in
separate parcels. Statement of Babu Lal and Joginder Lal
were also recorded, which are exhibited as Ex.PW25/B and
Ex.PW25/C.
17. The inquest proceedings were conducted by the
SDM on the dead body of deceased Smt. Rekha Rani. In
cross-examination, by ld. counsel for accused, Mr. R. K.
Naseem, he had admitted to have collected the MLC from
the burn ward and not from the casualty ward. This witness
has also deposed that he did not remember whether he had
obtained the certificate of fitness for making statement by
the deceased on the MLC or on any other document,
however, he has admitted that the certificate of fitness was
given by Dr. Anant Sinha. He has also admitted that the
doctor who gave certificate of fitness for statement was also
present at the time recording of dying declaration. He had
admitted that the endorsement Ex.PW25/DB was not by Dr.
Anant Sinha, but by some other junior resident doctor. He
has also admitted that the endorsement at point A on
Ex.PW19/D was not by the doctor who had written the
endorsement Ex.PW25/DB.
18. PW-16 is Constable Satish Kumar, who reached at
the spot with photographer and took the photographs of the
place of occurrence. He stated that due to some defect in
the camera, those photographs could not have been
developed and the negatives were washed out.
19. PW-10 W/ASI Rajender Kaur had associated with
the IO of the case. She went along with the SHO to the
house of accused Kalawati, wherefrom, she was arrested.
On interrogation and she made disclosure statement
Ex.PW10/B. They recovered canni Ex.P10 containing the
kerosene oil on the instance of accused Kalawati. In the
cross-examination, she has admitted that the house in which
the occurrence took place was surrounded by other
residential houses and other family members.
20. PW-23 Shri HC Gaur, SDM, having jurisdiction of
police station Punjabi Bagh, received the information on
17.09.1991 from the SHO, police station Hari Nagar. He
deposed that he reached at burn ward of Safdarjung Hospital
at 11:15 PM, but the patient had already expired at about
11:00PM. He had testified that Smt. Rekha Rani had given
the statement to the doctor on duty and the doctor
examined the dead body physically in ward No.22, Bed
No.20 of Safdarjung Hospital. He conducted the inquest
proceedings and proved the facts given by him as
Ex.PW23/A. He recorded the statement of Smt. Chander Kali
Jain, elder sister of the deceased, which is Ex.PW4/A. The
same was endorsed by him as Ex.PW23/B, so the case was
ordered to be converted to Section 302 Indian Penal Code,
1860 and direction was given to the SHO to investigate the
case further.
21. In the cross-examination, he has specifically
denied that the statement of the deceased was not recorded
by Dr. Anant Sinha in his presence, but it was told to him
that Dr. Anant Sinha had recorded the statement of the
deceased, which might have told by Smt. Chander Kala Jain
and Naresh Jain.
22. PW-19 is Shri Narinder Pal Singh, Record Clerk of
Safdarjung Hospital New Delhi. He brought the record of MLC
Ex.PW19/C, which he has identified to be in the handwriting
of Dr. Anant Sinha along with the death summary
Ex.PW19/B and death report Ex.PW19/C. He also testified
the statement Ex.PW19/D attested by Dr. Anant Sinha.
23. In cross-examination, he has denied that all these
documents were signed or attested in his presence.
24. PW-24 Inspector V.P.S. Rana, the then SHO, police
station Hari Nagar took over the investigation on
18.09.1991. He interrogated accused Kalawati and he gave
directions to SI Dharampal for investigation under his
supervision.
25. PW-21 SI Dharam Pal, who interrogated accused
Kalawati in the presence of SHO and W/ASI Rajinder Kaur.
Accused Kalawati made disclosure statement, wherein she
admitted that she was not happy with her Devrani
Smt.Rekha Rani Jain. On 17.09.1991 when Rekha was
preparing tea in the kitchen, she poured kerosene oil on her
and lit fire with a matchstick and closed the door thereafter.
She further disclosed that she could get recovered the
'canni‟ from which the kerosene oil was thrown from the
'perchhatti‟ of the house.
26. In the cross-examination, he had denied the
suggestion that the 'canni‟ containing the kerosene oil was
planted upon the accused during investigation.
27. PW-9 was Dr. Arvind Thergaonkar, Safdarjung
Hospital, New Delhi, who conducted the post mortem on the
dead body of Smt. Rekha Rani Jain on 18.09.1991 and found
the following injures on her person:-
External Examination:-
"1. Cut down wound (surgical) was present on
lower end of right leg;
2. Dermo epidermal burns, superficial
toe deep in nature present all over the body
except front of lower abdomen and pubic region.
The total percentage of burn area was about
95%. The area of blackening of skin was present
on fact and front of chest. The area of redness
was present on front of thighs and front of both
fore-arms. Hair brunt and singed on scalp eye
brows, eye lashes and axillae. The pubic hairs
were intact. Blisters were seen on front of
thighs. The smell of kerosene was present on
scalp hair and were preserved and sent for CFSL
examination. No marks of violence/signs of
struggle were seen on the body.
Internal Examination:-
Scalp, skull and brain, no effusion of blood was
seen the scalp. Skull, vault and base show no
fracture. Brain was congested. Neck and thorax
trachea showed soot particles, neck structures
were intact. Lungs were congested. Heard N.A.D.
Abdomen and pelvis stomach was empty. Liver,
spleen, kidneys all were congested. Bladder,
pelvis, NA.D. Uterus was empty."
The doctor who conducted the post mortem has opined
the death was due to shock consequent upon about 95%
ante-mortem burns. Time of death was about 13 hours. He
proved his report as Ex.PW9/A.
28. PW-22 is Inspector Devender Singh of Crime
Branch, who proved the scaled site plan Ex.PW22/A.
29. PW-7 Shri Babu Lal & PW-8 Shri Jogender Pal are
the neighbours of accused Kalawati and Mahipal. The both
the aforesaid witness have not been supported the case of
the prosecution. They were declared hostile by the
Additional Public Prosecutor. Their evidences are of no use
either to the prosecution or to the accused persons.
30. Now, I shall discuss the relevant witnesses. PW-3
Smt. Kamla Devi, who is the mother of the deceased Rekha
Rani, has deposed that her daughter was married to accused
Mahipal about 03 years ago. Whenever her daughter came
to her house, she complained about her husband Mahipal
having illicit relations with his Bhabi, but every time her
daughter was advised that everything would be settled in
due course. Further stated that the accused Mahipal,
husband of the deceased used to taunt and demand for
more dowry. Her daughter used to tell her that she had
been given beatings several times at the instance of her
Jethani. Her daughter was treated as obstacle between the
relationship of Mahipal and Kalawati. Her daughter was killed
by pouring kerosene oil by accused Kalawati, the Jethani of
deceased.
31. In cross-examination of this witness it was
revealed that deceased Rekha was the sister of PW-4 Smt.
Chander Kali and had graduated from Delhi University; PW-4
was issue-less, so the deceased Rekha Rani was brought up
by her. She also admitted that Rekha Rani was married of by
her at Delhi, she also testified that her daughter was tensed
due to the suspicion that the accused persons had illicit
relations with each other. Her daughter had written letters
about the relationship between the accused persons many a
times, but no such letter was handed over to the police.
She did not lodge any report to the police station or before
any Court about the sexual relations of the accused persons.
32. PW-4 Smt.Chander Kali, who is the sister of Rekha
Rani Jain (deceased), states that before marriage, Rekha
Rani was living with her. This witness had deposed that
deceased Rekha Rani used to complain about her Jethani
accused Kalawati who used to abuse her and also complain
about her husband Mahipal. Due to the behaviour of
accused Kalawati, Rekha Rani was meted out bad behaviour
and she was harassed. Rekha Rani was not happy with her
in-laws and she used to tell her about the incidents in her
in-laws house as and when she used to come to her. Further
deposed that the statement of PW-4 Smt. Chander Kali was
recorded in the hospital by the SDM which is Ex.PW4/A. This
witness has also stated that when she came to hospital to
see her burnt daughter, she was told by gestures and by
raising of her hands that she was burnt by her Jethani.
Further stated that her Jethani had asked Rekha Rani to
prepare tea and when she was doing that the accused
Kalawati poured kerosene oil on her and lit a match stick, set
her ablaze and closed the door of the kitchen. Further she
deposed that she was informed about the burning of her
sister by some neighbours on telephone.
33. This witness further stated that the accused
Kalawati as well as accused Mahipal, husband of deceased
used to make demand for dowry. It is stated that accused
Mahipal had four brothers, whose names are Jai Kanwar,
Maman Chand, who are elder to him. They are married and
are living with their children. Mahipal has one younger
brother, whose, name is Satish.
34. In cross-examination, she admitted that she
visited the in-laws house of Rekha Rani only once, i.e., after
7-8 months of her marriage. Rekha Rani did not lodge any
complaint about the ill-treatment received from the
accused persons. She made only one complaint that accused
Mahipal had illicit relationships with accused Kalawati and
further made demand of dowry which made her sister
mentally depressed. The statement made by her before the
SDM Ex.PW4/A was not read over to her by the SDM. The
statement got confronted by ld. counsel for the accused that
the fact of demand for dowry has not been stated in the
statement Ex.PW4/A. She further admitted in her cross-
examination that this fact was not stated by her to the police
that her sister Rekha Rani had told about the burning by her
Jethani in which statement was recorded by the police at
Safdarjung Hospital on 17.09.1991.
35. PW-6 Ram Niawas Jain was the mediator in the
marriage of deceased Rekha Rani and accused Mahipal. He
stated that marriage was performed with pomp and show
and everything was given in the marriage. He stated that
PW-5 Naresh Kumar told him that accused Mahipal was in
criminal alliance with his Bhabi and it was also told to him
that accused Mahipal had demanded Rs.10,000/-. He advised
Naresh Kumar that by paying Rs.10,000/- Rekha could live a
happy life. On 14.10.2009 he was called by Naresh Kumar at
his house at Rohini where accused Mahipal was also present
there and in his presence Rs.10,000/- were paid to him by
Naresh Kumar. Accused Mahipal had promised that he would
now keep Rekha Rani happy. During December 1990, PW-5
Naresh Kumar again told him that Mahipal had demanded
Rs.10,000/- more. During February 1991, accused Mahipal
asked him to get Rs.10,000/- from Naresh Kumar to which he
refused. Mahipal continued his demands and he used to
harass deceased Rekha Rani.
36. In the cross-examination, he stated that he came
to know about the burning of deceased on 18.09.1991. He
had admitted that he was the brother-in-law of PW-5 Naresh
Kumar. After coming to know about burning of deceased, on
18.09.1991, he and his wife did not visit the hospital but
they went to Rohini to PW-5 Naresh Kumar. He had also
asserted that PW-5 Naresh Kumar paid Rs.10,000/- in his
presence to accused Mahipal at the house of PW-4 Smt.
Chander Kali. When payment of Rs.10,000/- was made to
accused Mahipal, PW-4 Smt. Chander Kali was also present.
He had admitted that deceased Rekha Rani used to make
complaints about the illicit relations of Mahipal and Kalawati.
Due to this she was mentally perplexed. He had admitted
that he never visited the in-laws of Rekha Rani nor had made
any inquiry about the criminal alliance between accused
persons. He had admitted that he did not witness this
incident with his own eyes and that this information was
given to him by others.
37. PW-5 is Shri Naresh Kumkar, who received the
information on 17.09.1991, and along with his sister
PW-4 Smt. Chander Kali reached Safdarjung Hospital. He
deposed that they had spent more than their capacity in the
marriage of deceased and that his sister used to make
complains that her husband Mahipal was having illicit
relations with the wife of his (Mahipal) elder brother and on
making/raising objections; she used to get beaten up. It was
also told that she was harassed for dowry and the demand of
money was usually raised by accused persons. He further
stated that his sister told him that she was a hurdle between
both the accused persons and she had overheard talks
between the accused persons that hurdle must be removed.
His sister was burnt by the accused persons. On reaching the
hospital, his sister told him before her death that she went to
kitchen for preparing tea for the accused Kalawati and she
poured kerosene oil upon her which was thrown from behind.
The doors of the kitchen were closed from outside, therefore,
she got seriously burnt. She raised an alarm, but the doors
were shut tight. His statement Ex.PW5/A was recorded. Even
after the marriage of his sister, accused Mahipal demanded
Rs.10,000/- as dowry which was paid to him in the presence
of PW-6 Shri Ram Niwas Jain. Thereafter, Rs.10,000/- were
again demanded, which was denied. On 14.10.1990,
Rs.10,000/- were paid to accused Mahipal. He has stated
that he is a partner in the business with his brother-in-law
Mahabir Prasad Jain, at Delhi.
38. In the cross-examination, he has confirmed that
the payment of Rs.10,000/- was made to accused Mahipal on
14.10.1990. On 17.09.1991, when, he reached the house of
his sister Chander Kali, he came to know about this incident.
He along with his brother-in-law Mahabir Prasad Jain went to
the house where he met with the police. He and his sister
PW-4 Smt. Chander Kali remained in the Safdarjung
Hospital till 11:00 PM. He came to know about the
relationship of accused Mahipal and accused Kalawati by his
sister after 1½ month of marriage of deceased Rekha Rani
Jain. He has ascertained in his cross-examination that this
complaint was made to him by his sister Rekha Rani since
the date of marriage and continued till her death. He did not
lodge any complaint with the police about the harassment to
his sister and demand of more dowry. He has also stated
that his elder sister PW-4 Smt. Chander Kali Jain had no child
of her own and also admitted that till the death of his sister
Rekha Rani, she did not get impregnated. He had denied
that his sister was examined by Vohra Nursing Home for
pregnancy test or for test of some muscle piece for not being
able to conceive. The suggestion has been denied by this
witness that he was not present at Delhi on 17.09.1991 or
18.09.1991 and that fact of illicit relationship or demand of
dowry or money is false.
39. PW-14 Inspector VPS Rana has conducted the
investigation of the present case. He had deposed that on
17.09.1991 this case was registered under Section 307 IPC
by PW-25 ASI Lal Singh and when the injured succumbed to
her injuries at Safdarjung Hospital it was converted to
Section 302 IPC. Accused Kalawati made disclosure
statement Ex.PW10/B in which she stated about the
occurrence and the 'canni‟ containing kerosene oil was
admitted by her and the 'canni‟ admitted to have been kept
on 'Perchatti‟ of her house near latrine. She pointed out the
perchatti and the canni which was recovered and taken into
possession by the police vide memo Ex.PW10/C. He recorded
statement of PW-5 Naresh Kumar Jain, and PW-3 Smt.
Kamla Devi on 19.09.1991 and statement of PW-4 Smt.
Chander Kali on 20.09.1991 and supplementary statement of
PW-5 Naresh Kumar Jain on 20.09.1991.
40. This witness had admitted that he did not collect
any additional evidence except the disclosure statement
given by the accused. In fact he did not find any evidence.
The kerosene oil canni was lying on the perchatti and was
visible while standing in front of perchatti and the same was
taken out by the accused herself. There was no other article
on the perchatti. As regards to the harassment and demand
of dowry, he inquired about 10-12 persons from the locality,
but nobody came forward to support the allegations.
41. The statements of the accused persons were
recorded under Section 313 Cr.P.C. They have stated
themselves to be innocent and falsely implicated by the
police, but have not led any defence evidence.
42. Ld. counsel for accused argued before the Trial
Court that the case of the prosecution was that Smt. Rekha
Rani died of burn injuries caused by pouring kerosene oil by
the accused Kalawati. Accused have taken a stand that Smt.
Rekha Rani committed suicide. There is no witness to the
occurrence. The case of the prosecution rests only on
circumstantial evidence. It is admitted by both the sides that
deceased Smt. Rekha Rani was tensed due to the illicit
relations between the accused persons, but so far as the
demand of dowry and more money is concerned, the same
has been denied by the accused persons.
43. Further argued, the circumstances showing that
deceased Smt. Rekha Rani might have committed suicide for
the reason that she was tensed and depressed due to the
illicit relationship between the accused persons, which has
been admitted by PW-3 Smt. Kamla Devi, PW-4 Smt.
Chander Kail, PW-5 Naresh Kumar Jain and PW-6 Ram
Niwas Jain. It was also admitted that PW-4 Smt. Chander Kali
was issueless, same was the fate with deceased Rekha Rani
that she was medically examined for pregnancy test, but she
could not get pregnant.
44. On this account, ld. counsel for accused has
further argued that because of this fact, deceased Smt.
Rekha Rani was depressed and committed suicide. She was
obsessed with the idea that there was no charm for her in
this world. So it can be safely said that she had committed
suicide.
45. Further, ld. counsel for accused persons argued
before the Trial Court that the entire case depends upon the
declarations made by the deceased to the witnesses, before
the Investigating Officer and before the doctor. The
statement Ex.PW1/A is an information received from duty
constable posted at Safdarjung Hospital, wherein, it was
stated that Smt. Rekha Rani had received burnt injuries to
the extent of 95% and was admitted to Safdarjung Hospital.
She made statement that she was burnt by her husband. In
this statement, there is no demand of dowry or harassment
by her husband. This statement cannot be considered as a
declaration by the deceased, so the same cannot be relied
upon.
46. Ld. counsel for accused persons has further
pointed out that another statement as per argument of
Additional Public Prosecutor is MLC Ex.PW19/A. In this MLC it
is stated that the patient Smt.Rekha Rani was preparing tea
and her husband's elder brother's wife came from behind,
threw kerosene oil over her and closed the door of the room,
the patient has been married for the last 17 months. This
MLC has neither been signed nor is there any thumb
impression marked by Smt. Rekha Rani, so there is a
contradiction in the statement as per the MLC and as per
Ex.PW1/A. In the MLC Ex.PW19/A, the husband has not been
involved. In the statement Ex.PW1/A accused Kalawati has
not been involved. In this MLC it was nowhere stated that
patient was fit to make statement. Reliance has been placed
on another statement Ex.PW19/D, this statement was
recorded by ASI Lal Singh on 17.09.1991. In this statement,
Smt.Rekha Rani Jain had involved her Jethani Kalawati. She
has not named her husband or husband's brother. No
fitness certificate was given before taking her statement; no
time was mentioned at which this statement was recorded.
This statement is also contrary with the earlier statements.
The doctor in question has not been examined in Court;
therefore, no reliance can be placed on his evidence.
47. Further, ld. counsel for accused argued before the
Trial Court that before the arrival of HC Gaur, SDM, Smt.
Rekha Rani was already dead. ASI Lal Singh had recorded
statement of Smt. Rekha Rani in the Safdarjung Hospital
which is Ex.PW19/D and is only attested by Dr. Anant Sinha
with no certificate in regard to her being fit to make a
statement or not. PW-5 ASI Lal Singh has admitted in his
cross-examination that the endorsement at point A on
Ex.PW19/D is not by the doctor who had written
endorsement Ex.PW25/DB as "the patient was fit to make
statement was made by Dr. R. Chandra". The
endorsement is dated 17.09.1991 at 07:55 PM. Even the
statement Ex.PW19/A is not going to solve the real
controversy. There is no mention of a name of any person
in this statement.
48. It has been further argued by the ld. counsel for
the accused that when all the declarations made by the
deceased whether oral or in writing are contradictory to each
other, then no reliance can be placed upon them.
Accordingly, accused persons must get the benefit of doubt
and relied upon the case reported as 1986(1) RCR 184 at
page No.192, paras 25 to 28 as under:-
"Added to these features, the time of the
statement has not been indicated in the
document PW17 must have known that the
time aspect was very important feature in a
document of this type. Ordinarily a document
as valuable as a dying declaration is supposed
to be foolproof and is to incorporate the
particulars which it is supposed to contain. No
justifying reason has been given as to why the
time was not noted.
26. The summary of History sheet Ex.PW1770
indicates that a pethidine injection was given
to Sudha at 10:00 PM and the doctor
prescribed repetition of it every 8 hours.
Judicial notice can be taken of the fact that
after pethidine is given the patient would not
have normal alertness. Appropriate care was
not taken at the trial stage to cross-examine
DW1 with reference to this aspect. We are
inclined to agree with the counsel for the
appellants that the certificate of DW1 that
Sudha was in a fit condition to make a
declaration cannot be given full credit. This
Court ponted out in Khusal Rao Vs. State of
Bombay AIR 19 8 SC 22 that a dying
declaration stands on the same footing as
another piece of evidence and has to be
judged in the light of surrounding
circumstances and with reference to the
principles governing the weighing of evidence
that a dying declaration which has been
recorded by a competent magistrate in the
proper manner, that is to say in the form of
question and answers, and as far as
practicable, in the words of maker of
declaration, stands on a much higher footing
than a dying declaration which depends upon
oral testimony which may suffer from all the
infirmities of human memory and human
character, and that in order to test the
reliability of a dying declaration, for example,
whether there was sufficient light if the crime
was committed at night, whether the capacity
of the man to remember the facts stated, had
not been impaired at the time he was making
the statement, by the circumstances beyond
his control that the statement has been
consistent throughout if he had several
opportunities of making a dying declaration
apart from the official record of it, and that
the statement had been made at the earliest
opportunity and was not the result of tutoring
by interested parties.
27. In Dalip Singh Vs. State of Punjab 1979
SC, this Court has pointed out :-
"We may also add that although a dying
declaration recorded by a police offer during
the course of the investigation is admissible
under Section 32 of the Indian Evidence Act in
view of the exception provided in sub S.2 & of
S 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 or by a
doctor. AS observed by this Court in Mannu
Raja Vs. State of Madhya Pradesh (1976) 2
SCR 764: AIR 1976 SC 2199 the practice of
investigating officer himself recording a dying
declaration during the course of investigation
ought not to be encouraged ............
28. We also find that under the relevant
Rules applicable to Delhi area, the
investigating officer is not to scribe the dying
declaration. Again, unless the dying
declaration is in question and answer from it is
very difficult to know that what extent the
answers have been suggested by question
put; what is necessary that the exact
statement made by the deceased should be
available to the Court. Considered from these
angles the dying declaration in question is not
acceptable. The High Court obviously lost
sight of all these aspects when reversing the
conclusion of the trial court with regard to the
document and agreeing to act upon it."
Sudha was in a fit condition to make a
declaration cannot be given full credit.
49. Ld. counsel for the accused further argued that in
view of above cited case law, no reliance can be placed on
each of the declarations which are contradictory to each
other. The declarations suffered from material discrepancies.
They are not consistent with each other, particularly the
statement recorded by the Investigating Officer who was not
competent to do so, as discussed above. So, all these
declarations are disbelieved and rejected.
50. He has asserted that deceased Smt. Rekha Rani
Jain has committed suicide; circumstances appearing from
the prosecution case suggest so. She was issueless; she was
also tense and depressed for the same reason, she
suspecting illicit relations of her husband with her jethani.
Her elder sister Smt. Chander Kali was also issueless. This
circumstance may also be in her mind to be in the state of as
oppressed, suppressed and depressed. In the situation, he
had further relied upon the judgment of this Court, reported
as 1995 JCC 280 at page No.293, which reads as under:-
"The victim of suicide may also be the
victim of self expectations that have not been
fulfilled. The sense of disappointment and
frustration may have much in common with
that experienced. However, for some people
a critical moment arrives when the
discrepancy is experiences as too glaring and
painful to be tolerated. It something was to
go it may be the person himself, not the
perhaps excessively high standards by which
the judgment has been made.... Warren Breed
and his colleagues found that a sense of
failure is prominent among many people who
take their own lives."
51. Ld. counsel for accused persons has pointed out
another circumstances in the case is that the broken pieces
of bangles, partly burnt clothes and partly burnt cloth in
burnt scraps from the door of the kitchen, concrete material
of the floor were all sent to CFSL for chemical analysis and
the report is Ex.PW24/B. Result of the analysis is that Ex.3 to
Ex.8 do not show presence of kerosene oil/kerosene residue.
From this angle the present case cannot be a case of burning
by pouring of kerosene oil. So, it is held that that deceased
committed suicide. The accused are entitled to acquittal
when the accused have brought reasonable and probable
defence against the evidence of the prosecution. They are
not required to prove their innocence, but they have had
probable and reasonable defence. The doubts in the
prosecution story about dying declarations recorded have
not been removed. Dr. Anant Sinha was not examined to
prove his endorsement as fit to make statement. Even with
the opportunities given to the prosecution side through
complainant, when the application was filed for this purpose
to re-summon Dr. Anant Sinha. The complainant failed to
disclose the correct address of Dr. Anant Sinha, accordingly
it was held that it will serve no purpose.
52. Keeping the above discussion into view, the Trial
Judge has acquitted both the accused persons giving them
benefit of doubt.
53. Learned counsel for the petitioner has argued on
the following points:
I) There is no finding on Section 498A IPC whereas there
are sufficient evidence for the cruelty being committed
against the deceased for demanding dowry.
II) The ld. counsel has drawn the attention of this Court to
the fact that the trial judge has passed no order on
application for furnishing address of Dr. Anant Sinha.
III) There is interpolation in the date of judgment i.e. from
July 30, 1995 to November 30, 1995.
IV) The trial judge has pronounced the judgment on the
same date in the afternoon.
54. On the other hand, ld. counsel for the respondent
submits that the prosecution could not prove its case,
therefore, after the acquittal of the respondents, the State
preferred not to challenge the same and no revision has
been filed by the State against the judgment of the trial
court. He further submits that in revision this Court has
limited powers and cannot re-appreciate the facts.
55. Ld. counsel for the respondent further submits that the
issue of pronouncing the judgment on the same date is not a
manifest error of the procedure, therefore, the petition
cannot take benefit of the same.
56. On the application Ex.25/DA moved by the IO for
furnishing the address of Dr. Anant Sinha who recorded the
statement of the deceased. The ld. counsel for the
respondent has drawn the attention of this Court to order
dated 25.11.1995 passed by the trial judge which is re-
produced as under:-
"25.11.1995.
Present: Addl. P.P. for State.
Both the accused on bail with counsel Shri.
R.S. Naseem, Advocate.
Statement of the accused under section
313 Cr.P.C. not ready. From the complainant
side application for summoning the
prosecution witness Dr. Anant Sinha filed
stating therein that Dr. Anant Sinha is
available. Earlier on the summons sent to Dr.
Anant Sinha received back with the report that
Dr. Anant Sinha has left the services of the
hospital and is not traceable. Now the
applicant through this application has pressed
that he will produce Dr. Anant Sinha. The
prosecution has already closed the
prosecution evidence. In the interest of
justice, it is necessary that best evidence
available should be examined. If at any stage
the prosecution has neglected to produce the
said witness Dr. Anant Sinha, then the court is
not expected to follow the prosecution as it is,
when the court has to be effective at its own
level. So Dr. Anant Sinha is hereby ordered to
be summoned. Dasti summons be given to the
applicant through the prosecution. The case
is now fixed for 28.11.1995. It may be clear
that if the witness is not produced on the said
date it shall be presumed that the applicant is
trying to prolong the matter and in the
absence of the witness the statement of the
accused shall be recorded under section 313
Cr.P.C."
57. The ld. counsel for the respondent has drawn the
attention of this Court to page 393 of the trial court record
wherein the application dated 25.11.1995 was forwarded by
the learned trial judge and on that date Naresh Kumar Jain,
brother of the deceased, had given an undertaking in writing
that if he could not produce Dr. Anant Sinha in the Court on
28.11.1995 then he would not move any application for the
evidence of Dr. Anant Sinha. However, thereafter another
application dated 28.11.1995 was moved and the same was
not forwarded by APP and the same was dealt with by the
learned trial judge by its order dated 28.11.1995 as under:-
"28.11.1995
Present:Addl. P.P. for State with Naresh
Kumar, sister of the deceased.
Both the accused on bail with counsel Shri
R.K. Naseem.
Summons of Dr. Anant Sinha received
back un-served. Naresh Kumar again moved
an application for summoning of Dr. Anant
Sinha, i.e., the attesting witness of the dying
declaration. There is no mention of the place
of posting of Dr. Anant Sinha and the
applicant is trying to prolong the matter by
moving such application. Hence the
application is rejected.
Statement of the accused u/s 313 Cr.P.C.
recorded. No defence. Arguments heard for
about four hours. Now to come up for
arguments on behalf of Addl. P.P. and order
on 30.11.1995."
58. The ld. counsel for the respondent has drawn the
attention of this Court towards the MLC, wherein, on the
extreme right of the MLC, Dr. Anant Sinha is written but
there is no signature of Dr. Anant Sinha and the prosecution
could not produce any record with regard to Dr. Anant Sinha
declaring the injured fit for statement, therefore, the
statement recorded by the police officer, declaring the
injured fit for statement is not relevant at all.
59. Further ld. counsel for the petitioner has drawn the
attention of this Court to Ex.PW12/A whereby duty constable
Sushil Kumar at Safdarjung Hospital informed SI Pishori Lal
on telephone that Rekha Rani w/o Mahipal, age 21 years, r/o
BE-253, Hari Nagar, New Delhi has been got admitted by her
husband in 95% burnt condition.
60. I have also given the attention on the interpolation on
the date of the judgment and observed that the trial judge
has cut the month July and made it November 30, 1995. I
have gone through the order sheet of the trial court and find
that up to 28.11.1995, the proceeding before trial was going
on and even on 30.11.1995 the learned counsel for the
accused had argued the case as is evident from the order
sheet dated 30.11.1995. Therefore, aforesaid interpolation
from July to November has no relevance.
61. Additionally, PW-24 Insp. V.P.S. Rana stated in his
cross-examination that the message contained in DD No.22A
dated 17.09.1991 was received by him through wireless. He
has admitted that D.D. No.20A speaks that deceased was
burnt by husband. He has denied that he collected any
evidence to test DD No.22A as false or true.
62. About the harassment or demand of dowry
articles PW-24 Insp. VPS Rana has admitted in the cross-
examination that he enquired 10-12 persons from the
locality but nobody came forward in support of allegations.
63. In addition, in hospital, if presumed, stated that
she was burnt by her husband. There was no allegation f
demand of dowry or harassment by her husband. PW-20
Sushil Kumar, also supported this version. On MLC Ex.PW-
19/A, no signature or thumb impression of deceased Rekha
Rani obtained. In MLC, husband has not been named. In the
statement Ex.PW19/A, accused Kalawati has not been
involved. In statement recorded by ASI Lal Singh, the
deceased has involved her „Jethani‟ accused Kalawati. She
has not named her husband. No where is it recorded in the
MLC that the patient was fit to make a statement. No one
has certified anywhere that the patient was fit for making
statement all that the medical records show is the 95% of
burnt injuries. PW-5 ASI Lal Singh has admitted in his cross-
examination that the endorsement at point 'A' on Ex.PW19/D
is not by doctor who had written endorsement Ex.PW25/DB.
64. I find no discrepancy in the judgment passed by
the learned trial judge. Therefore, I am not inclined to
interfere with the judgment passed by the trial judge. I
concur with the same.
65. Accordingly, Criminal Revision Petition
No.138/1996 is dismissed.
66. No order as to costs.
SURESH KAIT, J
August 25, 2011
Mk/RS
