Upender Sahni vs State
2011 Latest Caselaw 1432 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Reserved on : 3rd March, 2011
                                                Date of Decision: 11th March, 2011
+    CRL. A. 39/1998

        UPENDER SAHNI                              ...APPELLANT
                               Through: Mr. Sumeet Verma, Amicus Curiae.
                                     Versus
        STATE                                      ...RESPONDENT
                               Through: Mr. Jaideep Malik, APP for the State.
        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE MR. JUSTICE G.P.MITTAL

      1. Whether reporters of local papers may be
         allowed to see the Order?                                  Yes
      2. To be referred to the Reporter or not?                     Yes
      3. Whether the Order should be reported
         in the Digest?                                             Yes
                               JUDGMENT

G.P. MITTAL, J.

1. This Appeal is directed against the judgment dated 06.09.1997 and the order on sentence dated 10.09.1997 whereby the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code ('Code') and was sentenced to undergo imprisonment for life and to pay the fine of `5,000/- or in default, to undergo Rigorous Imprisonment for a further period of one year.

2. A short question falls for consideration in this case. Whether the statement made on the MLCs Ex.PW-1/A, PW-1/B and PW-22/A of the three deceased, namely, Vasanti, Ambika Devi and Kanti, can be said to be dying declarations, if so, whether the same were voluntary and truthful?

3. The facts of the case leading to the appellant's prosecution have been detailed in Para 2 to 9 of the impugned judgment, the same are extracted hereunder:-

"2. The case of the prosecution, in short, is that Upender Sahni was addicted to liquor. He had a meager income which was inadequate for the needs of the family. So his wife Ambika Devi disliked his drinking habits. On 31.7.95 at about 11.20 P.M. he returned to his residence at B-63, Matiyala Extension. Ambika Devi served him food but did not speak to him. He tried to engage her in conversation but she did not respond. Her indifference infuriated the accused. He poured kerosene oil on her and also on his two daughters namely Kanti and Basanti and set them all ablaze.

3. After the incident Ambika Devi and her two daughters were taken to Deen Dayal Upadhaya Hospital. Ambika and Basanti were examined there by Dr.Sanjay Rohatgi (PW-1). Kanti, the other daughter, was examined by Dr.N.Moitra (PE-22)

4. Dr.Sanjay Rohatgi prepared MLC Ex.PW-1/A after examination of Basanti. This MLC shows that Basanti was admitted in the hospital at 0.15 a.m. on 1.8.95 with deep to superficial burns all over the body. She was conscious and well oriented. The case history is given by the doctor in these words " Patient states that her father poured kerosene oil over her and set it fire."

5. The MLC Ex.PW 1/B, which was prepared by Dr.Sanjay Rohatgi after examination of Ambika Devi, shows that she was brought to the hospital at 0.25 a.m. on 1.8.95. She was also conscious and well oriented. Deep to superficial burns were observed all over the body except dorsum of feet. The MLC bears this history "The son of patient states that his father poured kerosene oil over his mother and set it fire."

6. The MLC Ex.PW 22/A shows that Kanti was brought to the hospital at 0.10 a.m. on 1.8.95. She was conscious, very drowsy." The doctor observed burns all over body except part of both legs and right forearm. Dr.N.Moitra noted the case history on the MLC in these words "Alleged H/o burns. Patient says that her father poured kerosene on her and set her on fire. Rather also allegedly set her sister and mother on fire."

7. Basanti and Kanti, the two unfortunate daughters of the accused, were referred to JPN Hospital and there both expired on 1.8.95. Const. Mitender Kumar (PW 2), who was on duty in JPN Hospital, informed the police

station about their death. After inquest proceedings, the autopsy was conducted on their bodies by Dr. Lalit Kumar (PW18). He submitted the reports Ex.PW 18/A and PW 18/B. In both cases he expressed the opinion that the burns were antemortem; recent in duration and caused by fire. The cause of death was burn shock consequent upon burn injuries.

8. Ambika Devi, the wife of the accused, was referred to RML Hospital. There she expired on 2.8.95 and duty constable Narender Singh (PW-19) informed the police station. ASI Lal Chand (PW 10) took the dead body of Ambika Devi from RML Hospital to the mortuary and there on 5.8.95 Dr.Ashok Jaiswal (PW9) performed the postmortem on her body. Dr.Jaiswal (PW 9) expressed the opinion that the burns were antemortem, caused by flame and involving 90% of the body surface. The death was due to hyopolmic shock consequent to burns. The postmortem report is Ex.PW9/A.

9. The further case of the prosecution is that accused Upender Sahni absconded after the occurrence. He was nabbed in the area of P.S. Ashok Vihar on the night intervening between 3rd and 4th August, 1995. SI Ramesh Chand (PW 4) who apprehended the accused, prepared injury sheet Ex.PW 4/B and sent him for medical examination. Dr. Rachna examined the accused and prepared MLC Ex.PW1/C. She did not find any external injury. On 4.8.95 itself the accused was produced in the court and there he was transferred to the custody of SI Swadesh Parkash, the IO of this case. At that time, the accused was wearing the red shirt Ex.P-1 which was a little burnt on the right side. After conclusion of investigation he was set for trial for the murder of his wife and daughters."

4. In order to establish its case, the prosecution examined 22 witnesses. PW-

5 Lalan Kumar (appellant's son) and PW-11 Jai Parkash (appellant's neighbour), were claimed to be eye witnesses to the burning of Vasanti, Kanti and Ambika. In his statement as PW-5 Lalan Kumar disclosed that his mother was caught on fire accidentally. He deposed that while his mother tried to pick up a kerosene oil tin placed over the loft, it overturned on her and she (his mother), caught fire from the stove kept in the room.

He further claimed that when his sisters Kanti and Vasanti tried to save their mother, they also caught fire.

5. Similarly, PW-11 Jai Parkash, a neighbour of the appellant deposed that when he reached the house of the appellant, he saw Ambika, Vasanti and Kanti in flames.

6. Both, PWs 5 and 11 denied that they were witnesses to a ghastly crime.

PW-5 was allowed to be cross examined by the learned Additional Public Prosecutor (APP) for the State. This witness denied that his father had picked up a can of kerosene oil after reaching the house. He denied about the frequent quarrels between his mother and father on account of his father's drinking habits. He denied that on that day, his father returned home and asked for food or that his mother did not respond and merely kept food before his father without uttering anything. He denied that his father protested why his mother had not responded to him. He further denied that his father picked up a can of kerosene oil and poured kerosene on his mother Ambika and sisters Kanti and Vasanti. The witness was also confronted with his statement, however, nothing fruitful could be brought in the cross examination of this witness which could help the prosecution.

7. Similarly, when PW-11 Jai Parkash did not support the prosecution version; he was permitted to be cross examined by the learned APP for the State. He deposed not having made any statement to the police except disclosing his address. He denied that Lalan had gone to him and informed him that his father had poured kerosene oil on his mother and sisters and was threatening to set them on fire. He also denied that when he reached the house of the appellant, the appellant set his wife and daughters on fire in his presence. This witness was confronted with his statement purported to have been made by him to the police. He again denied that any such statement was made by him.

8. PW-1 Dr. Sanjay Rohtagi had recorded brief history at the time of admission of Vasanti and Ambika, whereas PW-22 Dr. N. Moitra recorded the brief history at the time of admission of Kanti.

9. Brief history given by all the three patients (deceased) pointed out an accusing finger towards the appellant as the person responsible for setting his wife and two daughters afire.

10. Learned Additional Sessions Judge (ASJ) disbelieved PWs 5 and 11 and he found history recorded on the MLCs Ex.PW-1/A and PW-22/A to be dying declarations of Vasanti and Kanti. He also drew support from the history given on the MLC Ex.PW-1/B of Ambika Devi by her son. The learned ASJ found the appellant's abscondance after the incident and him being found to be wearing the burnt shirt at the time of his arrest on 04.08.1995, to be additional circumstances pointing towards his guilt. The learned ASJ disbelieved the appellant's version that he had been apprehended while he had gone to see his wife and daughters in Deen Dayal Upadhyay (DDU) Hospital and later, falsely implicated in the case. He convicted the appellant under Section 302 of the Code and sentenced him as stated earlier.

11. The appellant was granted an interim bail for 45 days by order dated 27.07.1999. As per the order, the appellant was expected to surrender on 21.11.1999. He, however, failed to surrender and was declared a Proclaimed Offender by order dated 16.07.2002 of the learned ASJ.

12. Mr. Sumeet Verma Advocate was appointed as Amicus Curiae, to represent the case on behalf of the appellant and assist this Court.

13. We have heard Mr. Sumeet Verma, learned Amicus Curiae and Mr. Jaideep Malik, learned APP for the State and have perused the record.

14. A dying declaration is admitted into evidence as an exception to the rule of hearsay evidence. It is believed that when a person is on the verge of

his death, he does not have any motive to tell falsehood and for this reason the requirement of oath and cross examination is dispensed with, in a case of dying declaration. Since an accused does not get an opportunity to cross examine a person who has died after making a statement in relation to the circumstances of his death, the Court insists that the dying declaration should be of such a nature so as to inspire full confidence of the Court and it should be true and voluntary. The Court also has to be sure that the statement is not a result of tutoring or a product of an imagination. In 'Paniben v. State of Gujarat', 1992 (2) SCC 474, the Supreme Court summed up the tests to be kept in mind as laid down in various judgments as under:-

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of M.P

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P.v. Ram Sagar Yadav, Ramawati Devi v. State of Bihar).

(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor).

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.).

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.).

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu).

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar).

(ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State).

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)."

15. Thus, dying declaration, if true and voluntary can form the basis of conviction of an accused without any corroboration.

16. Mr. Sumeet Verma, learned Amicus has drawn our attention to the MLCs Ex.PW-1/A, PW-1/B and PW-22/A of the three deceased persons and to the testimony of PW-15 ASI Ram Singh. It is argued by learned Amicus that PW-15 ASI Ram Singh had accompanied SI Swadesh Parkash from Police Post Matiyala to the spot at 11:20 P.M. He deposed that on receiving information they reached the spot within two minutes. The IO stayed at the spot for about 2/3 minutes and then he proceeded to the hospital. It is urged that DDU Hospital is close by and SI Swadesh Parkash might have reached the hospital in another 15-20 minutes. As per MLCs Ex.PW-1/A, PW-1/B and PW-22/A, all the three injured were taken to the hospital and were admitted by Head Constable Diwan Chand. As per MLC Ex.PW-22/A, Kanti was examined first in time (by Dr. S. Moitra) at 12:10 A.M. whereas, Vasanti and Ambika were examined by Dr. Sanjay Rastogi at 12:15 and 12:25 A.M. in the night respectively. It is canvassed that HC Diwan Chand has not been examined by the prosecution for the reasons best known to it. Had he been examined, he would have thrown some light about the condition of the three injured and as to how the alleged brief history was recorded on the three MLCs by the two doctors.

17. It is contended that from the testimony of PW-15 it is clear that IO must have reached the hospital well before 12:10 A.M., and in all probability the brief history was not given by the patients, but the same was recorded at the behest of SI Swadesh Parkash. It is thus argued that the brief history recorded in the three MLCs therefore, cannot be taken into consideration, particularly, when it was not specifically recorded (in the MLCs) that the patients were fit to make the statement. Rather, MLC Ex.PW-22/A records the patient to be "very drowsy". The BP and Pulse of the three patients was not recorded. Thus, there is nothing on record to suggest that the patients were fit to make the statements.

18. SI Swadesh Parkash was examined as PW-23. He deposed that on receipt of copy of DD No.24 (Ex.PW-16/A) he reached the place of occurrence along with ASI Ram Singh and Constable Baljit Singh. He found burnt clothes, one plastic can containing kerosene oil, one dark coloured button and other articles at the spot. He was informed that the three injured had already been taken to the hospital by PCR. He left ASI Ram Singh to preserve the spot and proceeded to DDU hospital.

19. When cross examined, the witness deposed that he remained at the spot for about 15 minutes. When he reached the hospital, the doctors on duty in the Casualty declared the injured ladies "unfit for statement". No suggestion was given to the IO that he had reached DDU hospital before arrival of the three injured in the hospital. It was also not suggested that he or any other police official had given the brief history to the doctor. No motive has been suggested to the IO (who is a public servant) to manipulate the record at the threshold of the investigation. Thus, we do not find much substance in the contention raised, on behalf of the appellant, that the IO had reached DDU hospital before admission of the three injured or that the IO had given the brief history.

20. Let us go to the three MLCs one by one. Ex.PW-1/A is the MLC of Vasanti. Dr. Sanjay Rohtagi recorded, "patient stated that her father has poured kerosene oil over her and set at fire". Dr. Sanjay Rohtagi found the patient to be conscious, well oriented. Smell of kerosene oil was found to be present. The Pulse/BP could not be measured due to oedema.

21. Similarly, on the MLC Ex.PW-1/B of Ambika Devi, it is recorded that "son of the patient states that his father poured kerosene oil over his mother and set at fire". Ambika was also found to be conscious and well oriented.

22. On the MLC Ex.PW-22/A of Kanti, Dr. N. Moitra recorded, "alleged history of burns; patient says that her father poured kerosene on her and set her on fire, father also allegedly set her sister and mother on fire". She was found to be "conscious but very drowsy".

23. As observed by us earlier, PW-5 Lalan Kumar son of Ambika Devi, has not supported the prosecution version. He was declared hostile to the prosecution. Since nothing fruitful came out in his cross examination by the APP for the State his testimony stands effaced and cannot be used for any purpose. The alleged statement of the son of Ambika Devi on MLC Ex.PW-1/B, therefore, could not have been used for the purpose of corroboration on the statements of the patients recorded on Ex.PW-1/A and PW-22/A.

24. It is argued by Mr. Sumeet Verma that immediately after admission of the patients, they had been declared unfit to make the statement by the Surgeon who had attended to them. The fact that the Pulse and BP were not recordable is indicative of the fact that, the patients were not in a fit state to make the statement. Moreover, on the MLC Ex.PW-22/A of Kanti it is recorded that the patient was very drowsy which again shows that she was absolutely not in a fit state of mind to make the statement.

25. Admittedly, the three injured were admitted with extensive burn injuries.

On the MLCs Ex.PW-1/A and PW-1/B it is recorded that the Pulse and BP could not be taken on account of oedema. Thus, it cannot be said that the Pulse and BP were not recordable. On MLC Ex.PW-1/A, it is clearly stated that patient (Vasanti) was conscious and well oriented.

26. PW-1 Dr. Sanjay Rohtagi was mainly cross examined with regard to the identity of the son of Ambika, and a simple suggestion was given to the doctor that Vasanti was not in a position to make any statement which was denied by him. In Sher Singh and Anr. v. State of Punjab, 2008 (4) SCC 265, it was held that if the person recording the dying declaration is satisfied that the deceased was in a fit state of mind, there was no requirement of the doctor's certificate regarding fitness of the deceased to make the statement. The requirement of certificate from the doctor is only a rule of caution. In this case, brief history of Vasanti is recorded by a doctor himself and since the doctor had mentioned on the MLC that the patient was conscious and well oriented and entered the witness box to say that the patient was fit to make the statement, there cannot be any doubt about the veracity of his statement. The statement made by Vasanti was spontaneous; no other relative was present as to give any scope for any tutoring. The dying declaration is crisp and clear to the effect that she was set on fire by her father after kerosene oil was poured over her. Thus, there is no doubt that the brief history on Ex.PW-1/A is a dying declaration of deceased Vasanti. The same is true and voluntary. The same can be relied upon without any corroboration.

27. In the statement on the MLC Ex.PW-22/A while giving the brief history, Kanti said that her father had poured kerosene oil on her and set her on fire. She also stated that her sister and mother were also set on fire by her father. In this case, the patient has been found to be conscious, but very drowsy.

28. Dr. N. Moitra PW-22 when cross examined, deposed that the patient was declared unfit for statement by the Surgeon on duty. He did not declare her unfit for statement. He added that in spite of the observations that the patient was very drowsy and her Pulse rate and BP were not recordable, he must have thought that the patient was fit to give a quick history of the case. It is not in dispute that brief history of Kanti was taken before the treatment was started. It has been urged by Mr. Sumeet Verma, learned Amicus that the testimony of the doctor in cross examination is based on presumption, as he has used the word, "he must have thought that the patient was fit to give a quick history of the case". In our opinion, no fault can be found with the view of the doctor. Dr. N. Moitra was an impartial person attending to the patient at the relevant time. If he had any motive, he could have easily recorded that the patient was well oriented, but he did not do so.

29. In Jayaraj v. State of Tamil Nadu', (1976) 2 SCC 788; it was observed that, "... when the deponent was in severe bodily pain, and words were scarce, his natural impulse would be to tell the magistrate, without wasting his breath on details, as to who had stabbed him." It was observed that, "the very brevity of the dying declaration, was an index of its being true and free from the taint of tutoring".

30. Once Kanti was found to be conscious by Dr. N. Moitra and she had revealed the name of the person responsible for setting her, her sister and her mother on fire, it cannot be said that Dr. N. Moitra had proceeded on any presumption regarding the fitness of Kanti.

31. We are of the view that the brief history on the MLC of Vasanti Ex.PW-

1/A and the brief history given by Kanti on the MLC Ex.PW-22/A are in the form of dying declarations. They corroborate each other and unequivocally prove, that it was the appellant who had poured kerosene oil on Vasanti, Kanti and Ambika and had set them ablaze.

32. The dying declarations of Ambika and Kanti are corroborated by the conduct of the appellant in absconding immediately after the incident. In his examination under Section 313 Cr.P.C., the appellant had taken up the plea that he was arrested from RML hospital, when he visited there to see his wife and daughters who were lying there in burnt condition. He was kept in the Police Station and was falsely implicated in the case.

33. A perusal of the testimony of PW-23 SI Swadesh Parkash shows that no such suggestion was given to this witness in his cross examination. Thus, this explanation offered by the appellant cannot be accepted. It is, therefore, established that the appellant had absconded after the incident which is an additional circumstance to corroborate the dying declarations recorded on Exs.PW-1/A and PW-22/A.

34. In view of the foregoing discussion, we are of the opinion that the conclusion reached by the learned ASJ is reasonable and well founded. There is no error or infirmity in the impugned judgment. The Appeal is without any merit; it is accordingly dismissed.

35. We place on record our appreciation for the valuable assistance rendered by the learned Amicus, Mr. Sumeet Verma.

36. A copy of this order be sent to the Trial Court as well as to the DCP concerned to ensure that the appellant is arrested to serve the remaining sentence.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 11, 2011 vk