Delhi High Court
Satish Kapoor vs State on 18 July, 2011
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 08.07.2011
PRONOUNCED ON: 18.07.2011
+ CRL.A. 80/1998 & CRL. M.A 9325/1999
SATISH KAPOOR ..... Appellant
Through: Sh. K.B. Andlay, Sr. Advocate with Mr. M. Shamikh, Advocate.
versus
STATE ..... Respondent
Through: Sh. Lovkesh Sawhney, APP.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE G.P. MITTAL
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
1. This judgment will dispose of an appeal against the judgment and order of the learned
Additional Sessions Judge (ASJ) dated 29.01.1998 and 31.01.1998. The impugned judgment had
convicted the appellant for the charge of having committed the offence punishable under Section
302 read with Section 498A IPC. The appellant was sentenced to undergo life imprisonment for
the offence under Section 302 IPC and also 5 years' rigorous imprisonment with fine in respect
of the offence under Section 498A IPC. In addition, he was directed to pay the fine of `
1,00,000/-, in default of which he was to undergo further rigorous imprisonment for three years
in respect of the offence punishable under Section 302 IPC.
Crl.A.80/1998 Page 1
2. The prosecution alleged that on the night of 01.07.1992, the Appellant's wife, Sunita was
doused with kerosene and set on fire by him. The prosecution further alleged that the Appellant
and the other two accused, i.e. his mother, brother and sister-in-law used to harass and ill-treat
the deceased for bringing insufficient dowry, and used to make demands. It was alleged that the
deceased was rushed to the hospital in the car owned by a neighbour. The prosecution relied on
the testimonies of several witnesses (PWs-3, 4, 7, 9 and 12), to establish its allegations. In
addition it, relied on a dying declaration (Ex. PW-14/B) made by the deceased at 11.28 pm the
same day, i.e. 01.07.1992. The victim, Sunita subsequently died around 5 AM. The prosecution
also relied upon another dying declaration (Ex. PW-12/A), recorded at 02.12 AM in the early
morning of 02.07.1992. That statement was recorded by the concerned Sub-Divisional
Magistrate (SDM), PW-32.
3. The appellant and the other accused were arrested, and after completion of investigation,
charged with committing offences punishable under Sections 302 read with Section 498A IPC.
They denied the charges and claimed trial. The prosecution examined 32 witnesses in support of
its allegations and also relied on several exhibits, including two dying declarations made by the
deceased. The Trial Court, after considering these materials, concluded that the appellant was
guilty as charged, and sentenced to undergo life imprisonment and imprisonment for five years
in respect of the two offences. The Court acquitted the other accused of all charges.
4. Sh. K.B. Andley, learned senior counsel for the Appellant urged that the Trial Court fell
into an error in believing the prosecution story. It is urged that the impugned judgment heavily
relies upon the so-called two dying declarations alleged to have been made by the deceased, both
of which lack credibility. It was urged that the prosecution alleged that the deceased was
admitted at DDU Hospital by Satish; she was in a badly burnt condition. Relying upon the
Medico-legal Certificate (MLC) (Ex. PW-14/A), it was revealed that the deceased Sunita was
admitted in the hospital at 11.25 pm and her statement was allegedly recorded by PW-14 at 11.28
PM - an entirely incredible circumstance. Learned counsel emphasized that the MLC revealed
that the patient had extensive burn injuries and her pulse was about 120 per minute. Learned
counsel highlighted that the MLC also revealed, significantly, that Sunita's blood pressure (B.P.)
was unrecordable. It was argued that even though PW-14 mentioned that the patient was fit to
Crl.A.80/1998 Page 2
make a statement, such an endorsement was absent in the document styled as dying declaration
(Ex. PW-14/B). Learned counsel argued that besides it was highly improbable that with
extensive burn injuries and an non recordable B.P., the patient could have been certified as fit
and oriented to make the statement as was alleged.
5. Learned senior counsel next submitted that the MLC clearly reflects in endorsement at
12.20 AM that the patient was unfit for any statement - presumably on account of medication
and treatment given at the DDU Hospital. If these facts were kept in mind, the prosecution story
that a further dying declaration was made to the SDM (PW-32) in RML Hospital was utterly
unbelievable. It was submitted that if the prosecution allegations were to be taken at the face
value, when the injured was in a critical condition, battling for her life, and was virtually in a
coma and had been declared unfit to make a statement at 12.20 AM, she was removed to a
hospital 20 kms away from the one she was originally taken to, where a second dying declaration
was recorded. Learned counsel emphasized that like in the case of the alleged so-called first
dying declaration, Ex. PW-20/A too does not reflect the satisfaction of the person recording it
that the injured Sunita was either conscious or in a mentally fit condition to make any statement.
Learned counsel also emphasized that the patient's fitness to record the dying declaration was
not certified by any doctor and no such evidence was produced in Court.
6. Questioning the prosecution version about the alleged cruelty meted out to the deceased
and the sequence of events which led to Sunita suffering the burn injuries, learned senior counsel
argued that the Trial Court failed to notice that the appellant himself had suffered burns in his
hands to the extent of 9% - a fact noticed in the MLC (Ex. PW-14/C). It was further argued that
the MLC (Ex. PW-14/A) did not reveal the presence of anyone except the appellant. In these
circumstances, the Trial Court's findings vis-à-vis the neighbours having seen the deceased being
taken to the hospital cannot be sustained.
7. Sh. Lovkesh Sawhney, learned APP submitted that the impugned judgment does not call
for interference. It was argued that there is no improbability in the two dying declarations relied
upon by the Trial Court. Elaborating on the submission, it was argued that PW-14/A revealed
that the patient was admitted to the DDU Hospital at 11.25 PM and her statement was almost
Crl.A.80/1998 Page 3
immediately recorded as Ex. PW-14/B. Learned counsel relied upon the testimony of PW-14 to
say that the injured was fit for making a statement - a circumstance recorded by him in Ex. PW-
14/A (MLC). In these circumstances, submitted learned APP, there was no further obligation to
prove the capacity of the injured, having regard to her condition. Being a doctor, who had
attended to the patient and had also recorded the statement made by her, there was no reason for
PW-14 to have deposed falsely. Learned APP also argued that the distinction between fitness and
fitness to make a statement, made on behalf of the appellant, is artificial. He relied upon the
decision reported as Laxman v. State of Maharashtra 2002 (6) SCC 710.
8. Learned counsel urged that so far as the second dying declaration, recorded by PW-32
was concerned, the testimony of PW-11, in the cross-examination itself established that the
injured was transferred to RML Hospital. In the meanwhile, that witness, i.e. SDM (PW-32) had
been intimated; he reached the RML Hospital and proceeded to record the second dying
declaration. Learned counsel argued that both the dying declarations clearly implicated the
appellant; he further urged that the endorsements of MLC (Ex. PW-14/A) was also proved as Ex.
PW-32/C, and proved by PW-32. Learned APP contended that the SDM had no axe to grind and
had no motive for deposing falsely.
9. Dealing next with the appellant's submission with regard to the testimonies of the other
witnesses, the prosecution urged that each one of them, i.e. PW-3, 4, 7, 9 and 12 were
neighbours. A joint reading of their testimonies revealed that Sunita used to complain about her
ill-treatment by the appellant and his relatives. She cried-out for help, saying "Bachao Bachao"
on 01.07.1992. On hearing this, PW-3, 4, 7, 9 and 12 went near her house. Her house, which was
locked, had to be forced open. She was found to be in a burnt condition. These witnesses also
deposed that some of them made sure that Sunita was taken to the hospital and forced the
appellant to accompany her. Commenting on the appellant's submission, impeaching the
credibility of these witnesses, learned APP urged that there is no hard and fast rule that the
names of all those who accompany an injured or a patient in such circumstances necessarily has
to be reflected in the MLC. The Court, he submitted, has to consider the probability of the
circumstances deposed by them and in order to rely on their testimony, satisfy itself that they are
truthful. Judged from this perspective, there was nothing incredible in regard to what they
Crl.A.80/1998 Page 4
deposed about the circumstances surrounding the burning incident and how Sunita was taken to
the hospital.
10. Learned APP argued lastly that the findings in the impugned judgment are not based
solely on the uncorroborated dying declarations, but also on the entirety of the circumstances
which were spoken about by other witnesses. The testimonies of the two doctors - who were
independent witnesses also cannot be lightly discarded. Having regard to the totality of these
facts, he argued the Trial Court's findings ought not to be interfered with.
11. PW-3 mentioned that he resided in the house adjoining that of the Appellant (and the
deceased); he heard Sunita crying "bachao-bachao" from their house. On trying to go there, the
deceased told him that the appellant had poured kerosene and set her ablaze. The appellant had
closed the main entrance; he was asked to open it, but he tried to avoid, saying that the key was
unavailable. He was forced to open the lock; others in the locality including two women helped
in keeping Sunita in the car, and the appellant was forced to accompany her though, he was
unwilling to do so initially. This witnesses' deposition was corroborated by PW-4, to whom
Sunita informed that she had been burnt, after the Appellant poured kerosene over her. She also
stated that the house lock was broken and that the appellant tried to flee but was forced to
accompany the deceased to the hospital. Her son, and the son of another lady Channan Devi took
the deceased to the hospital. Her house was at a distance of 50 yards from the deceased's house.
She was confronted with her previous statement, where she had not said that the appellant's
house was forced open. PW-7, also stated that she saw the deceased taken out, and that she was
crying "JALA DIYA, JALA DIYA" and saying that her husband had set her afire. She too
deposed that the Appellant tried to flee, but was asked to accompany Sunita to the hospital. PW-
8 corroborated that he heard noise, and went out of the house, and saw the appellant dragging his
deceased wife. Others raised an alarm, asking Satish to open the grill entrance; PW-3 brought his
car, and the deceased was taken to the hospital. The deceased said that she had been set on fire
by the Appellant, though he denied it. This witness was also aware that the deceased was first
taken to DDU hospital, and later to RML Hospital. He went to both the places. PW-9 is Channan
Devi; she mentioned about hearing cries, and going out of her house, finding that the gate of the
deceased's house was locked, Sunita standing on the other side of the gate; she was burnt, and
Crl.A.80/1998 Page 5
water had been poured over her. The deceased was in an almost naked condition. Sunita told that
she had been burnt by her husband. Satish was asked to open the entrance, and he did that later.
12. The appellant's counsel tried to cross-examine and impeach the credibility of these
witnesses on certain details such as when their statements were recorded and by confronting
them with statements made by them under Section-161 Cr.P.C. However, in all material
particulars, these witnesses stood by their prior statement and corroborated the following events:
(i) A commotion took place on 1.7.1992 made the Appellant's neighbours to go out
of their houses and reach his residence.
(ii) These witnesses found the main entrance shut and the deceased Sunita had come
out of the house.
(iii) The deceased stated that kerosene oil had been poured on her and she was set
ablaze by the appellant.
(iv) The appellant initially evaded opening the gate saying that he had misplaced the
key. However, it was later opened by him.
(v) The deceased was taken by two neighbours in their car to the DDU Hospital.
(vi) The appellant tried to avoid accompanying the deceased but was forced to go with
her to the hospital.
(vii) PW-8 went to DDU Hospital and later to the RML Hospital.
13. The appellant's counsel tried to discount the testimonies of these witnesses contending
that their names were not recorded in the MLC PW-14/A. This Court is of the opinion that the
prime utility of an MLC is to record the medical condition of the patient or the injured even
while mentioning the time when he or she was admitted. The document invariably contains a
column where the name or identity of the person(s) accompanying the injured are written. In
this case, the appellant's name is found in the MLC. However, the mere circumstance that the
names of others who had accompanied the appellant and the deceased were not mentioned, while
she was admitted to the hospital, cannot persuade the Court to discredit their testimonies. The
Appellant did not suggest to anyone of the witness that he alone took the deceased to the
hospital. Indeed the testimony of PW-3, PW-8 and PW-9 as to the mode of transport i.e. a
Crl.A.80/1998 Page 6
Maruti car which belonged to PW-3 - being used to take the deceased to the hospital was left
unchallenged in the cross-examination. Under these circumstances, the Court finds the
appellant's contention on this score unsubstantial. Significantly all witnesses testified uniformly
about Sunita clearly stating that she was doused with kerosene oil by the appellant and later set
ablaze by him. The witnesses also consistently deposed that the Appellant initially tried to avoid
opening his entrance grill gate but later did so and was even reluctant to accompany the deceased
to the hospital. These aspects assume significance because they are vital surrounding
circumstances which have to be borne in mind without considering the credibility of the dying
declarations relied upon by the prosecution in the present case.
14. The first dying declaration recorded by PW-14 i.e. Ex.PW-14/B, was at 11:28 PM. The
appellant had tried to highlight that the time is inherently improbable because the deceased had
concededly reached the hospital only at 11:25 PM (a fact revealed by Ex.PW-14/A, MLC).
Learned counsel had further urged that the veracity of the dying declarations is further
undermined by the circumstances that the patient had a very high pulse rate i.e. 120 per minute
and that her blood pressure was unreadable. These, coupled with the extensive injuries i.e.70-
80% burns suffered by her, rendered the deceased incapable from making a coherent dying
declaration. In this regard, PW-14 who recorded the dying declaration deposed to having
examined the deceased on 1.7.1992 and also given the endorsement Ex.14/C i.e. that the patient
was fit to make the statement. On a specific question, in cross-examination, the witness denied
the suggestion that in the documents there was no reference for fitness of statement and on the
other hand made a positive statement that she was conscious and fit for statement. He further
deposed that no injection was administered to make a person fit for giving statement and that this
could be true even in the case of 80% burns. He also denied the suggestion that the deceased's
scalp hairs did not smell of kerosene. The witness stated that the deceased was given Portewine
Phenargan injection which was a sedative and that this had effect for 1-2 hours. PW-14 also
affirmed that the deceased had at 11:28 PM told him that the Appellant her husband had set fire
to her after pouring kerosene oil.
15. The Appellant's contention that having regard to the overall medical condition of the
deceased, it was improbable that she was in conscious or fit to make the statement, has to be
Crl.A.80/1998 Page 7
considered in the context of PW-14's deposition. Not only was he the medical expert in the case
but also a senior officer working as CMO in the DDU Hospital at the relevant time. Although,
he deposed that the deceased was injected with certain sedatives, and was not clear whether that
was done before or after the dying declaration was made, he clarified that the sedatives wear out
within about an hour or so. The Appellant besides cross examining this witness about the nature
of injury and whether the deceased was in a fit and conscious condition to state as she did, did
not impeach PW-14's credibility in any other manner. The Appellant significantly did not
challenge this witness in any manner by putting to him that the nature of burns coupled with an
unrecordable blood pressure and high pulse improbablized the deceased making a coherent or
clear dying declaration or much less a statement. On the other hand, PW-14 has clearly deposed
about the patient being conscious and fit to make a statement; he has also supported the dying
declaration recorded by him as Ex.PW-14/C. The previous view favoured by the Supreme Court
in the context of dying declarations which per se did not record that patient was either fit or
conscious to make the statement appears to have been that the Doctor or a person recording it
had to also satisfy himself about such a fact and note it in writing, on the dying declaration.
However, the correctness of that view was later doubted. Consequently, in the larger five
Judges Bench ruling in Laxman's case, the Court clarified that so long as the witness who
records a dying declaration stating that the injured person who made it was in a conscious and fit
state to make it (a statement) which was eventually recorded, its credibility cannot be discarded
merely because the document does not expressly contained any such endorsement. In view of
this settled legal position, the appellant's argument in this regard is unmerited and is, therefore,
rejected.
16. The second dying declaration i.e. Ex.PW-20/C, in this case, was recorded by the
concerned SDM i.e. PW-32. Significantly this document is in questions and answers form. The
statement was recorded at 02:10 AM on 2.7.1992 in RML Hospital. In answer to the second
question i.e. how the deceased was injured, she clearly stated that her husband, Satish had poured
kerosene oil over her and set her ablaze. The Appellant's counsel tried to discount the testimony
of PW-32 by saying that the document PW-20/B, cannot be relied upon since the Doctor on duty
did not witness it. The Appellant also sought to urge that the prosecution's case about
Crl.A.80/1998 Page 8
transferring the deceased from DDU Hospital to RML Hospital situated 20 Kms away and the
second dying declaration being recorded at 02:10 AM is unbelievable. As far as this aspect is
concerned PW-11 has deposed that the injured Sunita was taken to RML Hospital from DDU
Hospital. There is no doubt that MLC PW-14/A bears an endorsement that the patient was unfit
to make a statement at 12:20 AM. However, the subsequent endorsement about the patient
being fit for making statement was proved as Ex.14/D. Furthermore, the SDM in this case i.e.
PW-32 recorded the second dying declaration at 02:10 AM on 02-7-1992.Having regard to these
facts and the further circumstance that the traffic during the wee hours of the morning is very
light and the incident occurred sometime in 1992 (when Delhi roads were not as congested as
they are today), the Court does not find anything unbelievable or improbable in the injured
Sunita being taken to RML Hospital particularly when she was referred to Surgery - as
mentioned in Ex.PW-14/A, the MLC.
17. No doubt, Courts have to be circumspect while basing their findings in returning a
conviction of accused in criminal case, - entirely on a dying declaration. The Court has to be
satisfied not only that the dying declaration was made in the manner alleged but also that the
possibility of tutoring or manipulation by interested parties did not exist when the statement of
the injured was recorded. Added to it is the further requirement that the injured's statement
should have been voluntarily and truthfully made. In the present case, two independent
witnesses i.e. PW-14 and PW-32 recorded the dying declarations which consistently implicated
the Appellant. Each of these witnesses did not have any motive to falsely implicate or involve
the Appellant. The latter has also not shown that any influence was brought to bear on the said
two witnesses nor in any manner he has impeached their credibility as independent and impartial
witnesses. Added to this, are the circumstance of at least 5 witnesses, all of whom had no
relationship with the deceased and were neighbours of the Appellant and the deceased, testified
about his culpability. They were informed by the deceased about the incident i.e. the Appellant
pouring kerosene over her and setting her ablaze. Therefore, in the present case, the Trial Court
did not base its conclusions merely on one or both the dying declarations but also on the other
supporting evidence as well as the surrounding circumstances, all of which unerringly pointed to
the Appellant's guilt.
18. For the above reasons, this Court is of the opinion that the Appellant's contentions are
insubstantial. The appeal is, therefore, unmerited and has to fail. The Appellant shall present
Crl.A.80/1998 Page 9
himself before the concerned Trial Court on 10.08.2011 and surrender to serve the remainder of
the sentence. The Registry shall forthwith transmit the Trial Court's record for appropriate
follow up and action. The appeal is dismissed in the above terms.
(S.RAVINDRA BHAT)
JUDGE
JULY 18, 2011 (G.P. MITTAL)
JUDGE
Crl.A.80/1998 Page 10
