Vinod Kumar vs State
2011 Latest Caselaw 1567 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Decision : 18th March, 2011

+                          CRL.A.48/1999

        VINOD KUMAR                           ..... Appellant
                 Through:      Mr.Sumeet Verma, Advocate.

                               Versus

        STATE                                  .....Respondent
                    Through:   Mr.Pawan Sharma, Standing
                               Counsel (Criminal).

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?
     3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)

1. Disbelieving the testimony of Kalawati PW-1, a neighbour; that of Manoj PW-2, son of the deceased and that of the appellant; also that of Kanta PW-3, cousin of the deceased and a neighbour and Mahadev PW-14, another neighbour of the deceased who deposed in Court that being annoyed with the appellant, the deceased set herself on fire, and believing the dying declaration Ex.PW-12/E of the deceased and the testimony of ASI Mahmood Ali PW-15 who had recorded the said dying declaration, vide judgment and order dated 15.9.1998 the appellant has been convicted for the offence of having murdered his wife, late Veena Rani. Vide

order on sentence dated 19.9.1998, the appellant has been sentenced to undergo imprisonment for life.

2. It is not in dispute that the appellant had removed his wife in a burnt condition to Baqai Hospital, Dallupura Road where she was admitted on 5.7.1990 at 11:35 PM and was examined by Dr.Noimoi Nuddin Baqai PW-8, who prepared the MLC Ex.PW-8/A of Veena Rani, noting therein that as per the patient, who was brought to the hospital by her husband, she disclosed the history of her being burnt as a result of kerosene poured on her and set on fire by her husband and as per the husband and relatives/neighbours accompanying the two, Veena Rani had set herself on fire.

3. On information being given to the concerned police station, ASI Mahmood Ali PW-15 took along with him copy of DD No.26 which was recorded at 12:50 in the mid-night, and reached Baqai Hospital and learnt that Veena Rani was not firt for statement. He returned to the police station and went back to the hospital next day morning at 10:30 AM, where the doctor, vide endorsement Ex.PW-15/C on the MLC of Veena Rani, declared her fit for statement and thus he recorded the statement Ex.PW-12/E of Veena Rani who disclosed that she was residing with her husband at 13/351 Trilokpuri and her husband was in business of selling construction material. That she was married 10 years ago as per Hindu custom. They were blessed with a son aged 8 years. At 11:00 PM on 5.7.1990 her husband returned home after work and when she asked him to eat dinner he responded by saying that he would not eat food cooked by her and got angry. That after their

marriage her husband used to trouble her and his behaviour towards her was not good. Often he used to fight with her. During course of the quarrel in the night, in anger, her husband threw kerosene oil on her and set her on fire which was witnessed by her son who was present in the house. Her shrieks of „bachao-bachao‟ attracted people from the neighbourhood. She doused the flames on her body by pouring water on herself by using a bucket lying nearby. Thereafter her husband brought her to the hospital and got her admitted. That her husband intended to kill her and she wants legal action to be taken against him. The statement bears the signatures of Veena Rani at the point Mark „A‟.

4. It is apparent that an FIR for an offence punishable under Section 307 IPC was registered against the appellant.

5. Veena Rani lived on and unfortunately died on 17.7.1990. As per post-mortem report the immediate cause of death was septicaemia. The post-mortem report Ex.PW-12/A describes the condition of the dead body of Veena Rani and in our opinion is a very vital document to resolve the deadlock of what actually happened. As per the appellant and as per the 4 stated eye-witnesses, the deceased got angry when her husband on returning home at 11:00 PM did not eat dinner prepared by his wife informing her that he had already taken dinner at his mother‟s house. This infuriated Veena Rani who poured kerosene oil on herself and set herself on fire. The rival version would be the stated dying declaration of Veena Rani.

6. The post-mortem report records that the scalp hair was partially burnt and the right side of forehead had first degree burns; the face and front of neck had second and third degree burn; right shoulder and right arm were burnt; left shoulder upto finger of nails had second and third degree burns; left side of chest and abdomen had third degree burns. Part of back of chest had third degree burns. Front side of both lower limbs had third degree burns.

7. The FSL report Ex.PW-16/B records that kerosene residue could be detected only in a plastic can and on no other exhibit.

8. What does the post-mortem report of the deceased tell us? Much.

9. It tells us that the inflammable material was thrown on the body of the deceased from the front right side of the deceased. If a person throws a liquid from a can, it splashes out and drops in the form of a stream which is narrow at the top and broadens as it goes down. The burn injuries suggest that the splash of the inflammable material on the deceased has traversed her body from the right side of the forehead and has diagonally gone down, covering the face and the neck and thereon proceeding towards the left side of the body evidenced by the left side of the chest and the left abdomen receiving second and third degree burns. Both lower limbs had burns on the front. It is true that the right shoulder and right arm was also burnt but this is the obvious result of the deceased, instinctively taking action to stamp out the flames by using her forelimbs. If the deceased were to commit

suicide, she would have poured kerosene on her scalp and the front and the back of the body would have been equally soaked in kerosene and hence receiving burn injuries.

10. Men may lie, but dead bodies do not.

11. That apart, if the deceased were to commit suicide, why would she create a hue and cry by yelling „bachao- bachao‟ as claimed by the 4 stated eye-witnesses, who we note have deposed contrary to their statements recorded during investigation under Section 161 Cr.P.C.

12. The burn injuries on the deceased and her flames being doused by water being poured on her coupled with her husband removing her immediately to the hospital; events preceded by a verbal quarrel between the two as per the dying declaration of the deceased probablize the fact that during heated arguments resulting from the appellant refusing to eat dinner and the deceased being angry at his having taken dinner in his mother‟s house led the two to a stage where overcome by anger and to teach the deceased a lesson and not intending that his wife should die, the appellant threw a small quantity of kerosene oil on his wife and lit a matchstick, but immediately realized that the act done by him has escalated disproportionately threatening the life of his wife. He immediately doused the fire by using a bucket of water and removed her to the hospital.

13. The facts of the instant case come very close to the facts noted in the decision of the Supreme Court reported as 2000 SCC (Cri.) 86 Kalu Ram vs. State of Rajasthan in which, in para 7 and 8 the Supreme Court observed as under:-

"7. But then, what is the nature of the offence proved against him? It is an admitted case that the appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to light the matchstick. When she failed to do so he collected the matchbox and ignited one matchstick but when the flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all that the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder.

8. We therefore alter the conviction from Section 302 IPC to Section 302 Part II IPC. Both sides conceded that the appellant is continuing in jail. We impose a sentence of rigorous imprisonment for seven years on him. It is for the jail authorities to count whether the period he had already undergone would be sufficient to complete the period of sentence imposed by us and if so, the jail authorities shall release him from jail. Otherwise he will continue in jail until completion of the period of seven years of imprisonment. The appeal is disposed of accordingly."

14. We find that the learned Trial Judge has not kept in proper perspective the contents of the post-mortem report of the deceased and has not juxtaposed them with the dying

declaration of the deceased, contents whereof we accept as truthful save a minor blemish of the deceased stating that she herself poured water on self; greater probability being that the appellant, immediately realizing his folly, doused the flames using water in a bucket, and hence warranting corrective action to be taken.

15. We are also influenced by the fact, ignored by the learned Trial Judge that though the burns were severe, they were not life threatening and but for septicaemia which set in, the deceased would have survived; suggestive of a fact that a small quantity of kerosene oil was thrown at the deceased.

16. We dispose of the appeal altering the conviction of the appellant from the offence punishable under Section 302 IPC to that of an offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC and noting that when he was admitted to bail, the appellant had undergone a sentence of 7 years and 3 months and had earned a remission of 1 year and 9 months, we sentence him to undergo imprisonment for the period already undergone.

17. In view of the aforesaid, the bail bond and surety bond furnished by the appellant when he was admitted to bail stand discharged.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE MARCH 18, 2011/dk