Delhi High Court
Mohinder Kumar vs State on 2 May, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20th April, 2011
Judgment Pronounced on:2nd May, 2011
+ CRL.A.No.96/1999
MOHINDER KUMAR ...Appellant
Through: Mr.Bhupesh Narula, Advocate
versus
STATE ...Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Crl.).
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.
1. Vide impugned judgment and order dated 6.2.1999,
appellant Mohinder Kumar, husband of deceased Seema has been
convicted for the offence punishable under Section 498-A IPC and
Section 302 IPC. As per the order on sentence dated 10.2.1999, he
has been sentenced to undergo imprisonment for life and pay fine in
sum of `1,000/- for the offence punishable under Section 302 IPC
and to undergo RI for 1 year and pay fine in sum of `500/- for the
offence punishable under Section 498-A IPC.
2. The conviction has been sustained on the evidence of
the last dying declaration made by Seema which has been accepted
by the learned Trial Judge as trustworthy and to which the learned
Trial Judge has found corroboration with respect to the scene at the
site/place of the incident.
3. The journey of the instant case commenced, when on
29.2.1992 at 22:07 PM, Lady Ct.Anju PW-1, on duty at the Police
Control Room, received telephonic information from one Satish
Kumar informing that a person has set his wife on fire at Gali No.41,
Sant Nagar, Burari. The said information was conveyed by her over
the wireless to the local police station i.e. PS Timarpur where it was
recorded vide DD No.41-A, Ex.PW-9/B proved at the trial by HC
Kanhiya Lal PW-9.
4. DD No.41-A was entrusted to ASI Rohtas Singh PW-15,
who proceeded to the place of incident where he was informed that
Seema was removed to J.P.N.Hospital and thus he proceeded to the
hospital where he found Seema admitted and unfit for statement
and thus he collected the MLC Ex.PW-11/A of Seema and requested
the SHO to send a Sub-Divisional Magistrate to the hospital.
5. Simultaneously when aforesaid was happening, Seema
was taken to the hospital by her sister Reena PW-21, a fact which
finds corroboration from the MLC Ex.PW-11/A, proved at the trial by
the record clerk of the hospital Sh.A.R.Mehta PW-11 since the doctor
who wrote the MLC had left the hospital, wherein it is recorded that
the patient was brought to the hospital by her sister Reena. The
doctor concerned recorded on the MLC the history of the burns
suffered by Seema in the following words: „Alleged H/o sustaining
burn injuries when the stove on which she was cooking food got
burnt‟. It also stands recorded, with respect to the identity of the
person who gave the history of the burns, : „Informant - Pt. herself.‟
It stands recorded on the MLC that Seema had suffered 100% burns.
Unfortunately, whether the burns were first, second or third degree
burns have not been recorded.
6. It is obvious that the condition of Seema was fairly
precarious. Seema was carrying a baby in her womb and at 7:45
AM the next day i.e. 1.3.1992, after the baby was aborted, Seema
gained consciousness and was declared fit for statement at 9:30
AM, upon which Kishan Kumar the Sub-Divisional Magistrate PW-13,
recorded Seema‟s statement Ex.PW-13/A in Devnagri script;
translation whereof reads as under:-
"A year ago I was married to Sh.Mohinder. After marriage
we were living happily and peacefully. Since last two
days my husband was away from the house. Last night
at about 9:00 PM when I was cooking food the burner of
stove burst and my clothes caught fire. My neighbours
came to my rescue and doused the fire and informed my
sister Reena about the incident who immediately took me
to the hospital. This is only an accident which took place
due to the explosion of the stove burner. Nobody is
responsible for this accident. I was never harassed by my
husband for dowry or any such demands. Nobody is
responsible for this accident and I do not wish to make
any criminal complaint against anybody."
7. The SDM also recorded Reena‟s statement Ex.PW-13/DA
and which we find is in Devnagri script; translation whereof reads as
under:-
"My husband works in Mehfil Restaurant, Vijay Cinema,
Delhi. Today while I was watching television in my house,
at about 8:45 PM, son of the landlady of my sister came
rushing to my house and told me that my sister has
caught fire. At that time my husband was not at home. I
rushed to the house of my sister where she was lying in a
burnt condition and crying in pain. With the help of her
neighbours I took my sister to the Hospital. My sister got
married to Mohinder 6 years ago in Delhi and has a 5
year old son from the wedlock. My sister‟s husband,
Mohinder works in the Railways and for the last two days
was away from the house. On asking my sister as to how
she sustained burn injuries, she told me that while she
was cooking food on the stove its burner burst as a result
whereof she caught fire. No one is to be blamed for the
accident as she got burnt because of the stove burner
bursting."
8. ASI Rohtas Singh PW-15 proceeded to the matrimonial
house of Mohinder and Seema and lifted therefrom a stove Ex.P-1 as
also burnt pieces Ex.P-2 of a saree.
9. It may be highlighted that Seema and her sister Reena
have spoken at least one lie in unison. The lie pertains to Seema
telling the SDM that for the last two days her husband was away
from the house and Reena also so stating. The appellant i.e.
Seema‟s husband, was very much in the house evidenced by the
fact that as recorded in Ex.PW-14/A proved through the mouth of
the author thereof, Dr.D.Sharma PW-14, the appellant got himself
admitted at Central Hospital, Northern Railway on 1.3.1992 at about
11:20 AM with burn injuries on the left and right wrist as also the
forearms and absconded on 10.3.1992 at 8:00 AM from the hospital.
Indeed, it would be relevant to note that when examined under
Section 313 Cr.P.C. the appellant stated:- „I am innocent. I had got
good relation with my wife and this has been vouched by my in-laws
and sister-in-law in their statements before the SDM. My wife was
preparing food and I was sitting outside. The stove inflamed as the
result of which her saree got burnt. I immediately went in and
rescued her as a result of which my hands were burnt. This was all
accidental.‟
10. Seema lived on. As per the prosecution on 2.3.1992 she
desired to make another statement to the Sub-Divisional Magistrate
and as per the prosecution on being certified fit for statement the
learned SDM recorded her statement Ex.PW-13/C at 12:40 PM on
3.3.1992.
11. Since there is a controversy on Seema‟s fitness being
certified, it may be noted at the outset that relevant documents
pertaining to her being fit for statement were not filed along with
the challan and during trial an application was filed under Section
311 Cr.P.C. read with Section 173(5) Cr.P.C. to file documents
evidencing Seema being fit for statement, which application was
allowed and two sheets i.e. two documents were taken on record
purporting to be two applications submitted to the doctor at JPN
Hospital Delhi on 2.3.1992 and 3.3.1992 on which certifications
pertaining to Seema being unfit and fit for statement have
purportedly been issued. Record shows that application Ex.PW-15/C
which is in Devnagri script was filed, not recording the time of it
being filed on 2.3.1992, and there are two certifications recorded
thereunder which have been proved as Ex.PW-17/A with the
signatures of one Dr.Anju Bharti at point „A‟ and point „B‟ on Ex.PW-
17/A. The application Ex.PW-15/C (translation) reads as under:-
"To
The Doctor
J.P.N.Hospital, Delhi
It is requested that permission may be granted
again to record statement of Smt.Seema, W/o
Mohinder, R/o Gali No.39/40, Sant Nagar, Burari
Delhi, who on 29.2.1992 was admitted in your
hospital in a burnt condition.
Thanking you."
12. The two endorsements beneath Ex.PW-15/C, which
as noted herein above have been exhibited as Ex.PW-17/A
bearing signatures of Dr.Anju Bharti at point „A‟ and point „B‟
record as under:-
" Pt. is fit for statement. She is oriented in time, place
and person.
Sd/-
(DR.ANJU BHARTI)
WD-26, LNJP
2.3.1992 11:50 PM
Pt. is unfit for statement. She is not oriented in time,
place and person.
Sd/
(DR.ANJU BHARTI)
WD-26, LNJP
3.3.1992 01:30 AM"
13. The second application Ex.PW-15/D in Devnagri
script, translation whereof reads as under:-
"To
The Doctor
J.P.N.Hospital, Delhi
It is requested that permission may be granted
again to record statement of Smt.Seema, W/o
Mohinder, R/o Gali No.39/40, Sant Nagar, Burari
Delhi, who on 29.2.1992 was admitted in your
hospital in a burnt condition.
Thanking you."
14. Beneath Ex.PW-15/D are 3 endorsements by way of
certification, together exhibited as Ex.PW-17/B, bearing
signatures of Anju Bharti at point „A‟ and „B‟ and one signature
of Dr.J.L.Meena at point „C‟, record as under:-
"Patient (Seema) is unfit for statement. She is not
oriented in time, place and person.
Sd/
(DR.ANJU BHARTI)
WD-26, LNJP
3.3.1992 01:30 AM
Patient (Seema) is fit for statement. She is oriented
in time, place and person.
Sd/
(DR.ANJU BHARTI)
WD-26, LNJP
3.3.1992 08:25 AM
Pt. conscious, well oriented to time, place and
person. She is fit for statement.
Sd/
Dr.J.L.MEENA
3.3.1992, 12:40 PM"
15. It may be highlighted that the first certification in point
of time, being the first beneath Ex.PW-15/C, records the time 11:50
PM and the date 2.3.1992. The second certification beneath Ex.PW-
15/C bears the time 1:30 AM and the date 3.3.1992. The first
certification beneath Ex.PW-15/D bears the date 3.3.1992 and the
time 1:30 AM. The second certification beneath Ex.PW-15/D records
the time 8:25 AM and the date 3.3.1992. The third certification
beneath Ex.PW-15/D records the time 12:40 PM and the date
3.3.1992. It may further be highlighted that apparently it is the
third certification afore-noted which prosecution relies upon as proof
of Seema being fit for statement when the SDM recorded her
statement Ex.PW-13/C.
16. A statement Ex.PW-13/C, stated to be made by Seema,
was thereupon recorded by Sh.Kishan Kumar, the Sub-Divisional
Magistrate concerned. Time noted is 12:40 AM. The same is in
Devnagri script. Translation whereof reads as under:-
"A year ago I was married to Mohinder. After marriage
my husband used to harass and beat me and doubted my
character. He accused me of having illicit relations with
my brother-in-law (Jija). A day or two before the incident
my husband had beaten me. On 29.2.1992 my husband
returned home from Laxmi Nagar in a drunken condition
and asked me to serve him food. I told him to take the
food himself as I was not feeling well upon which he got
angry and poured kerosene oil on me from a can lying in
the house and after setting my clothes on fire he ran
away. On hearing my cries my landlady came and
doused the fire and informed my sister, Munni about the
incident. My sister brought me to the hospital. My
husband is responsible for my condition and I want legal
action against him. My statement recorded by you on
1.3.1992 was a lie as I feared that if I stated the truth the
doctors would not give me proper medical treatment."
17. Seema lived on for another 2 days and died on 5.3.1992
at 5:15 PM and thereafter the Sub Divisional Magistrate went to the
house of the deceased and recorded the statement Ex.PW-3/A of the
landlady Shashi Bala PW-3 wherein she stated that the deceased
and her husband were her tenants for the last 1 ½ months and that
they lived happily together. On the date of the incident i.e.
29.02.1992 the appellant returned home at about 8:45 PM in a
drunken condition and asked Seema to serve him food. Seema
refused and told him to take the food himself. That appellant then
sat outside his room which was adjacent to her room. On the
request of the appellant she asked Seema to serve him food but
Seema refused. Thereafter she went inside her room to attend to
her children. After 10-15 minutes she heard the appellant shout
„Aag lag gayi‟ and on hearing the cries she came out and along with
the appellant entered his room where she saw Seema lying on a cot
and crying for help saying „Bachao Bachao‟. Appellant put a quilt on
her and ran away from the spot. She then poured some water on
Seema to douse the fire and sent her son to inform Seema‟s sister
about the incident.
18. Seema‟s dead body was seized and sent to the mortuary
of Maulana Azad Medical College where Dr.Satish Kumar conducted
the post-mortem and as per the post-mortem report Ex.PW-12/A
recorded that the dead body was burnt 98% and that cause of death
was septicemia consequent upon infected burns. He recorded that:-
Scalp hair singled and burnt in both temporal and frontal region.
Kerosene oil like smell observed at the time of post-mortem
examination. It be noted that the scalp hair and which we presume
would be from the temporal and frontal region were handed over to
the investigating officer for forensic examination.
19. For unexplainable reasons FIR Ex.PW-9/A for offences
punishable under Section 498A and Section 302 IPC against the
appellant was registered on 24.3.1992.
20. At the trial Shashi Bala PW-3, the landlady of the
appellant and Seema deposed that the appellant was a tenant in her
house and used to reside with his wife Seema. On 29.2.1992
appellant returned home at around 8:45 PM and after some time
requested his wife to give him food and she replied that she was
doing the needful. Appellant sat down on a chair outside his house
while his wife cooked food and caught fire. She raised an alarm.
She and the appellant went towards her. Appellant put his wife on a
cot and she threw water on her and sent her son Deepak to call
Seema‟s sister. Reena arrived at the spot.
21. At this stage Shashi Bala was declared hostile and was
cross-examined by the learned prosecutor and she denied having
told the police that the appellant was under influence of alcohol.
But admitted that when appellant demanded food from Seema she
retorted that he should take food himself and that the appellant had
complained to her that his wife was not serving him food. She
denied having knowledge of Seema refusing to serve food to the
appellant for a second time when appellant was sitting outside on a
chair. She admitted that she was busy with her children and that
her statement Ex.PW-3/A was recorded by the SDM on 5.3.1992, but
denied having told the SDM that for a second time Seema had
refused to serve food to the appellant. Towards the end Shashi Bala
contradicted herself with reference to appellant being drunk, first
denying having told the police that the appellant was under
influence of alcohol, she admitted that the appellant was under the
influence of alcohol.
22. It may be noted that on being cross-examined by the
appellant, for the first time Shashi Bala stated that Seema disclosed
that she got burnt due to stove. She stated that she never saw the
appellant quarrel with his wife Seema. It may be highlighted that
neither to the learned SDM nor in her examination-in-chief nor when
she was cross-examined by the learned Public Prosecutor Shashi
Bala disclosed said fact.
23. Reena PW-21 deposed in sync with her statement
Ex.PW-13/DA made by her to the SDM and thus we need not note its
contents. However, it needs to be highlighted that whereas in her
statement Ex.PW-13/DA she had stated that for the last two days
appellant was away from the house, on being cross-examined by
the appellant she stated that appellant had burns on his hands while
extinguishing the fire on Seema. She also deposed during cross-
examination that Seema gave the history of her being burnt to the
doctor who examined her.
24. Kishan Kumar PW-13, the SDM concerned deposed that
on 1.3.1992 he recorded Seema‟s statement Ex.PW-13/A and that
on the intervening night of 2nd and 3rd March 1992 he received
information that Seema wanted to make a statement and he went to
the hospital but since Seema was not conscious and was not fit for
statement he could not record her statement and that on 3.3.1992
he had again gone to JPN Hospital and recorded Seema‟s statement
Ex.PW-13/C and clarified that on the statement he wrongly recorded
the time 12:40 AM whereas it actually was 12:40 PM. He deposed
that the fitness Ex.PW-15/D was obtained at point „A‟ before he
recorded Seema‟s statement. That he passed the orders Ex.PW-
13/D for the case to be investigated, which order we note is dated
17.3.1992.
25. Relevant would it be to note that on being cross-
examined Kishan Kumar stated that applications Ex.PW-15/C and
Ex.PW-15/D were not in his handwriting and he was not aware as to
who had moved the said applications.
26. ASI Rohtash Singh PW-15 deposed of being entrusted
with DD No.14A and having collected Seema‟s MLC and on 1.3.1992
the SDM having recorded having Seema‟s statement and thereafter
lifting the stove Ex.P-1 and burnt saree pieces Ex.P-2 as entered in
the seizure memo Ex.PW-15/A. He deposed that on 1.3.1992 Seema
gave birth to a dead female child and that on 3.3.1992 Seema gave
statement to the SDM. That on 24.3.1992 the SDM directed FIR to
be registered and thus he got the FIR registered for the offence
punishable under Section 302/498A IPC.
27. It may be noted that as per the FSL report Ex.PW-22/C
the stove Ex.P-1 was opined to be in working condition and in its
tank 380 ml of kerosene was found and that kerosene residue was
detected on the burnt cloth pieces Ex.P-2. Kerosene residue was
detected on the scalp hair of Seema.
28. It would be apparent to a reader of the present
judgment that arguments advanced on behalf of the appellant were
that Seema made 4 dying declarations prior to the dying declaration
Ex.PW-13/C, which was the 5th in point of time. As per the appellant
first dying declaration made by Seema was to the landlady as
deposed to by the landlady, the 2nd in point of time was the dying
declaration made to her sister Reena as deposed to by Reena, the
3rd to the doctor who examined her who prepared the MLC and the
4th to Sh.Kishan Kumar when he reached the hospital on 1.3.1992
and all 4 were consistent that Seema suffered burn injuries when
the stove burst when she was cooking food. It was thus pleaded
that the 5th dying declaration had to be discarded being in
consistent with the first 4 consistent dying declarations. The second
contention urged was that the certification relied upon as proof of
Seema being fit for statement on 3.3.1992 when her 5 th dying
declaration was recorded was suspect and for which a 3 pronged
attack was made. It was firstly pleaded that the 2 sheets of paper
containing the application to the doctor requesting for certification
qua Seema‟s fitness i.e. Ex.PW-15/C and Ex.PW-15/D were
mysterious not only for the reason the scribe thereof remained
unidentified but also for the reason the said documents were filed
belatedly and additionally the reason that Seema‟s statement
categorically bears the time 12:40 AM when it was recorded and the
last certification where Seema was certified fit for statement records
the time 12:40 PM. The second plea urged was that surprisingly on
2 applications, Dr.Anju Bharti purportedly gave 2 certifications
recording the time 1:30 AM and certifying Seema being unfit for
statement. The time thereon is 1:30 AM i.e. the middle of the night.
It is followed by a certification time whereof is 8:25 AM that the
patient was fit for statement and it remained unexplained as to why
Seema‟s statement was not recorded at 8:25 AM. It was urged that
under the circumstances the 3rd certification bearing the time 12:40
PM recorded on the second application Ex.PW-15/D was highly
suspect. Lastly, as a further extension of the confusion created by
there being 2 applications Ex.PW-15/C and Ex.PW-15/D, author
whereof was a mysterious person and the fact that on 2.3.1992 at
11:50 PM Dr.Anju Bharti certified on the application Ex.PW-15/C that
the patient was fit for statement it was urged that if Anju had
desired to make another statement on 2.3.1992 and evidenced by
the fact that the first certification on Ex.PW-15/C records the time
11:50 PM and the date 2.3.1992 it is apparent that, if at all, the SDM
and the concerned police officer had reached the hospital and made
the application Ex.PW-15/C and having obtained a certification by
11:50 PM of Seema being fit it remained unexplained as to why
Seema‟s statement was not recorded at that point of time. It was
highlighted that interestingly enough Sh.Kishan Kumar the SDM
concerned categorically deposed that when the police told him of
Seema‟s desire to make another statement he went to the hospital
in the intervening night of 2nd and 3rd March 1992 but since Seema
was unconscious and not fit for statement he could not record
Seema‟s statement. This it was urged flies in the face of the first
certification recorded beneath Ex.PW-15/C wherein at point „A‟
Dr.Anju Bharti has signed noting the time 11:50 PM and the date
2.3.1992 while certifying Seema fit for statement. The third
contention urged was that if indeed Seema had made the statement
Ex.PW-13/C, the same was made on 3.3.1992 and there was no
reason why the FIR was not recorded immediately thereon. From
the fact that the FIR was registered on 24.3.1992 it was urged that it
was apparent that the said statement was fabricated later on and
ante-dated in point of time.
29. It is apparent as to what would be arguments for the
State. With reference to the FSL report Ex.PW-22/C wherein it was
noted that the stove was in working condition, contention urged was
that it was obviously a case where the stove did not burst and thus
the earlier stated dying declarations of Seema were obviously wrong
and the unfortunate lady stated wrong facts under some fear. That
kerosene oil was detected on the scalp hair of the deceased would
rule out Seema accidently catching fire while cooking on the stove
inasmuch as if Seema had accidently caught fire, no kerosene would
be detected on her scalp hair and the clothes she was wearing.
Most strongly put was the conduct of the appellant in not rescuing
his wife evidenced by the fact that the appellant did not remove
Seema to the hospital and the next day morning got himself
admitted at Central Hospital Northern Railway at 11:20 AM as
recorded in Ex.PW-14/A and that as further recorded therein the
appellant absconded on 10.3.1992 at 8:00 AM. The argument was
taken forward by urging that the appellant admittedly did not take
his wife to the hospital and absconded from the house when his wife
was on fire. Seema‟s first dying declaration recorded before the
learned SDM and Reena‟s statement wherein it stands recorded that
for the last 2 days the appellant was away from the house where
stated to be palpably false as the appellant was admittedly in the
house and had received superficial burn injuries on both wrists and
both forearms and wherefrom it was urged that it was apparent that
Seema and Reena were in all probability threatened by the
appellant. In a nutshell, the State very heavily relied upon the most
unnatural conduct of the appellant to infer his guilt. Debunking the
contentions urged on behalf of the appellant that Seema made 5
dying declarations, it was urged that the stated dying declaration
introduced by Shashi Bala the landlady was a palpable falsehood
inasmuch as Shashi Bala never told the SDM that Seema had told
her that she accidently caught fire while cooking food, nor did she
say so in her examination-in-chief. At the fag end of her cross-
examination she slipped in a stated dying declaration made by
Seema. It was urged that Reena for the first time introduced a
dying declaration while deposing in Court, a fact which we find is
wrong for the reason in her statement to the SDM Reena has
disclosed that her sister told her of having caught fire accidently,
but yet in spite thereof it was urged as aforesaid. The third stated
dying declaration as per the MLC was refuted by urging that it was
nowhere recorded that the history of the burns was given by the
patient herself, an argument which is patently incorrect on the
factual aspect, for the reason the MLC records that the informant
about the history of the burns was patient herself. It was thus urged
that there were only 2 dying declarations, the first being the
statement Ex.PW-13/A and the second being the statement Ex.PW-
13/C. The delay in registration of the FIR was explained by urging
that the SDM took time to complete the investigation and pass the
necessary orders on 17.3.1992.
30. The learned Trial Judge accepted the arguments of the
State and rejected those of the appellant and the reasoning is to be
found in paragraphs 38, 39, 40, 42, 50 and 54 of the impugned
judgment and hence we note the same.
31. The rival versions pertaining to how many dying
declarations were made by Seema and which one had to be
accepted has been discussed by the learned Trial Judge in paras 38,
39, 40 and 42 of the impugned decision, relevant portions whereof
read as under:-
"38. To my view, the contention of Ld.Counsel for the
accused is not well founded, particularly because the said
statements are not corroborated by any other evidence
whereas the second dying declaration Ex.PW-13/C stands
corroborated by other material and cogent evidence. As
far as the first alleged dying declaration by deceased to
PW-3 Shashi Bala is concerned, I do not find that she
made any dying declaration to said Smt.Shashi Bala at
any point of time. She admitted that her statement
Ex.PW-3/A was recorded by the SDM on 5.3.1992 but
surprisingly she nowhere stated in her entire statement
before the SDM that Smt.Seema ever disclosed to her
that she sustained burns due to the bursting of the stove
burner. She simply stated that too in the last line of her
cross-examination that Seema disclosed to her that she
had burns due to stove. This is the only one sentence in
her entire statement which appears to have been taken
as dying declaration by Ld.Counsel for the accused.
39. The second oral dying declaration made as per the
contention of Ld.Counsel for the accused, was made to
Smt.Reena by the deceased Smt.Seema. Smt.Reena, the
sister of the deceased, has been examined as PW-21.
She nowhere stated in her entire chief-examination that
her sister ever told her as to how she sustained injuries.
However, in her cross-examination she deposed that
when she had gone to the house of her sister,
Smt.Seema, on receipt of information from the daughter
of her landlady, her sister on her enquiry told her that she
was burnt as the stove was highly inflamed suddenly and
she caught fire as she was wearing a nylon saree. She
also admitted in her cross-examination itself that her
statement Ex.PW-13/DA was recorded by the Magistrate.
Now as per her statement Ex.PW-13/DA, which has been
got exhibited by Ld.Defence Counsel, in her cross-
examination, it is nowhere found mentioned that her
sister told her that she was burnt as the stove was highly
inflamed suddenly and she caught fire as she was
wearing nylon saree; rather the said statement contained
some different and contradictory facts. As per her
statement Ex.PW-13/DA, made before the SDM, she
stated that when she asked about the reason about her
burns Smt.Seema told her that when she was making
food the burner of the stove burst suddenly and she
caught fire. This contradictory version, therefore, shows
that, in fact, no dying declaration was ever made by
Smt.Seema to her sister Smt.Reena.
40. The third dying declaration, as claimed by
Ld.Counsel for the accused, is the alleged history of
Smt.Seema, the injured, recorded in her MLD Ex.PW-11/A
by the doctor. No doubt, it is mentioned in the MLC that
there is alleged history of sustaining burn injuries, when
the stove, on which she was cooking food, got burst, but
this too cannot be termed as a dying declaration of
Smt.Seema. As per this MLC Smt.Seema, the patient was
brought to hospital by Smt.Beena, her sister. Normally
the history of the patient is either explained by the
person who brings the patient to the hospital or the
patient himself reveals the fact to the doctor on his
asking. In the instant case, the doctor, who prepared the
MLC, has not been examined though the MLC has been
proved through the record clerk. So it is not clear
whether the alleged history was given by the patient or
Smt.Reena, who had brought the patient to the hospital.
In the absence of any such clarity it cannot be said that
Smt.Seema ever made any statement to the doctor.
Even otherwise as per the alleged history of the patient
recorded in MLC Smt.Seema sustained burn injuries when
the stove, on which she was cooking food, got burst. It
means the version put forth before the doctor in the
hospital was that the stove was burst because of which
Smt.Seema sustained burn injuries."
xxx
"42. Now for consideration there remains two dying
declarations Ex.PW-13/A and PW-13/C, both recorded by
PW-13 Krishan Kumar, the SDM on 1.3.1992 and
3.3.1992, respectively. Like the oral, so called dying
declarations, discussed above, the first dying declaration
Ex.PW-13/A made by Smt.Seema, the deceased to the
SDM on 1.3.1992 also cannot be relied upon as the same
consist of some omissions and commissions. In this dying
declaration also Smt.Seema stated to the SDM that when
she was cooking food the stove‟s burner suddenly burst
and her clothes caught fire. This clinching part of her
statement does not sound to reason particularly because
it is not corroborated by any other evidence. It is so,
because the prosecution nowhere relies upon the fact
that Smt.Seema ever sustained burns due to fire by the
bursting of stove or its burner. In the instant case, the
scalp hair of the deceased Smt.Seema, which were
preserved and sealed by the doctor, who conducted the
autopsy, as is evident from the post-mortem report
Ex.PW-12/A and were sent for chemical analysis to rule
out kerosene oil, to CFSL. Similarly, the stove P-1 and
pieces of saree P-2 were also sent to CFSL for analysis
and opinion. The scalp hair and the pieces of saree P-2
on physico chemical method of analysis show the
presence of kerosene residual as per the CFSL report
Ex.PW-22/B. Similarly, the stove P-1, on scientific
examination, did not reveal any sign of bursting and the
same was in norm al working order, as is evident from
the CFSL report Ex.PW-22/C. These clinching pieces of
evidence corroborate the version of Smt.Seema the
deceased, made in her second dying declaration Ex.PW-
13/C, so recorded by PW-13 Shri Krishan Kumar, the SDM,
on 3.3.1992. Therefore, under the circumstances I am of
the considered view that he second dying declaration
Ex.PW-13/C recorded by PW-13 Krishan Kumar, SDM on
3.3.1992 is reliable, convincing and inspires confidence."
32. The debate between the parties pertaining to
Seema‟s fitness when her dying declaration Ex.PW-13/C was
recorded has been discussed in para 50 and thus we note the
same. It reads as under:-
"50. Ld.Counsel for the accused also argued that
PW-13 Kishan Kumar, the SDM, did not obtain the
fitness certificate from the doctor before recording
statement of Smt.Seema, the deceased. According
to him, the endorsements regarding the patient as fit
for statement Ex.PW-17/A&B were subsequently
procured and placed on record much later after filing
of the challan in the Court of the Magistrate. A
perusal of record shows that the endorsements
regarding the fit for statement Ex.PW-17/A&B were
given by the concerned doctors from time to time
and that the said documents were placed on record
with due permission of the Court. The filing of these
two documents and for summoning the doctors
permission was sought by the prosecution by way of
moving application under Section 311 Cr.P.C. as well
as under Section 173(5) Cr.P.C. After hearing the
parties Smt.Aruna Suresh, the then Presiding Officer
allowed the application holding that the filing of the
documents, i.e. Certificate of Fitness for statement of
Dr.Meena and Dr.Anju Bharati dt. 2-3-92 and 3-3-92
and the examination of these witnesses was very
much necessary for proper disposal of the case on
merits and it was found that it was not only in the
interest of the prosecution but in the interest of the
accused as well. This order dt. 18-4-94 has not been
challenged till date. So the documents, i.e. the
certificates for fit for statement of the patient
Smt.Seema given by the doctors vide these two
documents cannot be said to have been procured
and filed on record with some ulterior motive,
particularly when the accused had every opportunity
to test and challenge the same. Therefore, as far as
the admissibility of these two documents are
concerned that again cannot stand to any challenge.
Ld.Counsel for the accused also argued that the
dying declaration of Smt.Seema Ex.PW-13/C reveals
that the same was recorded by PW-13 Krishan
Kumar, SDM on 3-3-92 at about 12:00 a.m. and that
this is not practically possible as the certificate for fit
for statement of the patient was given on 3-3-92 at
1:30 a.m. This, to my view, is not a discrepancy at all
but a fact that the time inadvertently noted as 12:40
a.m. instead of 12:40 p.m. PW-13 Krishan Kumar,
SDM explained in his examination-in-chief itself that
though the time mentioned in Ex.PW-13/C about the
recording of statement is 12:40 a.m. but on verifying
the record, the said statement, in fact, were recorded
by him at 12.40 p.m. on 3-3-92. No doubt the
doctors who gave certificate unfit or fit for statement
regarding the patient have not been examined but
the said documents Ex.PW-7/A&B have been clearly
proved on record through the concerned record clerk,
who identified their handwriting and signature and
stated that their present addresses were not known
having left the services of the hospital. So, these
documents were proved on record by the prosecution
by way of secondary evidence, which is admissible in
evidence. Apart from this, PW-13 Krishan Kumar,
SDM, stated in his cross-examination that before
recording the statement, the doctor confirmed that
injured Seema was fit for statement. Though he
admitted that he did not remember as to who
obtained the writing about the fitness of Smt.Seema
for making statement, but he stated therein that the
doctor wrote in his presence. He further stated in his
cross-examination that he satisfied himself while
making queries from Smt.Seema that she was able to
able to make a statement. He further clarified that
too in his cross-examination that he had enquired
from Smt.Seema as to what had prompted her to
make second statement and that she had relied that
she had an apprehension that if she would give the
correct statement she might not be given proper
treatment. He further confirmed that Smt.Seema
was quite stable when he recorded her statement.
33. The debate pertaining to the delay in registration of
the FIR has been discussed by the learned Judge in para 50 as
under:-
54. Ld.Counsel for the accused also tried to
persuade this Court that there was a considerable
delay in lodging the FIR and that there was ample
time for the prosecution to concoct a story. I do not
find any substance in this contention. The dying
declaration of Smt.Seema was recorded on 3-3-92
and she died in the hospital on 5-3-92 and since then
the enquiry remained with the concerned SDM, who
not only conducted the inquest proceedings but also
recorded the statements of various witnesses. It was
only on 17-3-92 when the then SDM passed the order
Ex.PW-13/D for the registration of the case. The then
SHO Shri R.C.Saini made his endorsement referring
the order to ASI Rohtas Singh, who thereupon made
his endorsement Ex.PW-15/B over the dying
declaration of Smt.Seema Ex.PW-13/C and got the
case registered. The FIR was recorded on the basis
of the same dying declaration Ex.PW-13/C which was
sent to the police by the SDM. So the delay in
lodging the Fir, if was stands automatically explained
because of the fact that the enquiries during this
period remained with the concerned SDM."
34. During argument of the appeal, Sh.Bhupesh Narula
Advocate urged that the learned Trial Judge has overlooked the
fact that as per the post-mortem report and the evidence on
record kerosene was detected on the scalp hair but pertaining
to the temporal and frontal region evidenced by the fact that it
was recorded in the post-mortem report: „Scalp hair singled
and burnt in both temporal and frontal region. Kerosene oil
like smell observed at the time of post-mortem examination.‟
Therefrom, counsel urged that what has happened could be
gathered. Explaining what could have possibly happened,
learned counsel submitted that the stove Ex.P-1 is the ordinary
stove used in India which consists of a tank in which kerosene
oil is poured and a pipe connects the burner to the tank. The
head of the pipe has a constriction and the said forms a head
which ends at the base of the burner. A hand operated pump
is attached to the tank of the stove and air is pumped into the
tank. This creates a pressure in the tank and due to which the
kerosene oil is pushed up the pipe. Sufficient pressure is
created so that as the kerosene oil on coming out of the head,
at the base of the burner, forms a spray, on the well-known
principle of physics that a liquid sprays as it comes out of a
constriction under pressure (a phenomenon well observed
during the festival of colours i.e. Holi when children use piston
(pichkari) to spray the coloured water on friends). The deft
hands strike a match on the matchbox and as the lit match is
brought near the burner, the kerosene oil which oozes out as a
spray and is virtually in vapor form catches fire. This is the
way a kerosene stove operates. It is observed that carbon
deposits at the nozzle i.e. the head of the pipe at the base of
the burner and due to which the aperture of the nozzle gets
constricted and virtually clogs the flow of kerosene outside and
the burner stops burning inasmuch as adequate kerosene oil is
not sprayed out. A pin is used to sweep the head of the nozzle
and this dislodges the carbon deposits and as a result the
constriction regains its original size and facilitates the
kerosene oil spray being formed. But here lies a danger and a
risk. As the pin enters the nozzle, the pressure is blocked and
it is observed that small quantities of kerosene leak out and
gets accumulated in a cap beneath the burner. The flame
goes off. The moment the pin is removed from the nozzle, oil
sprays out with force and since the burner is not lit the
kerosene may spray into the face of the person concerned,
which we note is position fairly close to the nozzle inasmuch as
the eye has to be focused very carefully on to the head of the
nozzle into which the pin has to be inserted to clean the carbon
deposits on the head of the nozzle. But since the burner is hot,
it is observed that suddenly the kerosene sprayed out catches
fire and since by then fair amount of kerosene vapor is around
the stove, a muffled bang sound is created: „Bhup‟. This is for
the reason a lot of kerosene vapor burns all of a sudden and
consumes the oxygen around and this creates a partial
vacuum resulting in the vacuum being filled up by air around
collapsing into the void i.e. the vacuum and hence the sound
„Bhup‟. Counsel urged that a lay man would call this
phenomenon by telling that the stove burst. Learned counsel
highlighted that the learned Trial Judge read, too literally, the
expression used by Seema that the stove burst as if she said
that the tank of the stove burst. Counsel highlighted that
whereas the learned Trial Judge was perhaps justified in
disbelieving any dying declaration made by Seema to Shashi
Bala for the reason Shashi Bala never claimed any such dying
declaration made to her till she slipped in one at the fag end of
her cross-examination by the accused, but the learned Trial
Judge was not justified in holding that Seema made no dying
declaration to Reena by holding that Reena never claim so
before. Counsel highlighted that in para 39 of the impugned
decision the learned Trial Judge has observed that there was a
contradiction in the manner Reena disclosed Seema‟s dying
declaration made to her while deposing in Court and as per her
statement Ex.PW-13/DA. Drawing our attention to Reena‟s
testimony in Court and the statement Ex.PW-13/DA learned
counsel urged that substantially same fact was told by Reena.
Learned counsel urged that had the learned Trial Judge
understood what was meant by the stove being burst and had
the learned Trial Judge taken note of the fact that only the
frontal and temporal hair of the scalp of Seema had kerosene
thereon, the learned Trial Judge would not have found any
conflict, which the learned Trial Judge has found, in the dying
declaration made by Seema to her sister Reena. Learned
counsel drew our attention to the recording on the MLC Ex.PW-
11/A wherein the doctor concerned has clearly written that the
patient herself had given him the information as recorded by
the doctor pertaining to the history of the burns suffered by
Seema and urged that the learned Trial Judge has overlooked
the same while forming an opinion in para 40 that since the
doctor concerned could not be examined, it was not clear
whether the history was given to the doctor by Seema or
Reena. With respect to the controversy pertaining to Seema‟s
fitness on the 2nd and 3rd of March 1992, with reference to the
reasoning of the learned Trial Judge as per para 50 of the
impugned decision, learned counsel submitted that the learned
Trial Judge ignored the well recognized distinction in law that
admissibility of a document is different than the proof of its
contents and highlighted that merely because vide order dated
18.4.1994 two sheets of paper proved at the trial as Ex.PW-
15/C and Ex.PW-15/D and Ex.PW-17/A and Ex.PW-17/B were
admitted in evidence, did not mean that the contents thereof
were proved. Counsel urged that the learned Trial Judge has
just not discussed the effect of the evidence through the
testimony of ASI Rohtas Singh and the testimony of Kishan
Kumar the learned SDM, both of whom stated that they do not
know who is the scribe of the applications Ex.PW-15/C and
Ex.PW-15/D. Learned counsel further urged that the learned
Trial Judge has simply not discussed as to what necessitated
two applications being filed seeking certification by the doctor
qua Seema being fit for a statement. Further, the learned Trial
Judge, as urged the counsel, did not even discuss the
testimony of Kishan Kumar who stated that in the intervening
night of 2nd and 3rd March he received information that Seema
wanted to make a statement and I went to the hospital but
since she was not conscious he could not record her statement
vis-à-vis the fact that there exists Anju Bharti‟s signatures at
point A on Ex.PW-17/A certifying Seema fit for statement at
11:50 PM on 2.3.1992. Thus, counsel urged that there was a
grave doubt to the genuineness of the certification relied upon
qua Seema being fit for statement. Learned counsel would
highlight that the reasoning of the learned Trial Judge in para
54 of the impugned decision is perverse. Counsel submitted
that where was the need for any investigation when Seema
would make the dying declaration recorded on 3.3.1992 and
the fact that she died on 5.3.1992 was all the more necessary
for the FIR to be registered promptly and the fact that the FIR
was registered on 24.3.1992 would impinge upon the purity of
Ex.PW-13/C i.e. the dying declaration purportedly made by
Seema on 3.3.1992. Learned counsel urged that the reason for
delay accepted by the learned Trial Judge that the learned SDM
had to conduct the inquest proceedings and record statements
of various witnesses is surmises and conjectures inasmuch as
we find that on 5.3.1992 the statement of the landlady Shashi
Bala was recorded and on 6.3.1992 the statements of parents
of Seema were recorded and there is no evidence that
thereafter any inquiry was made or completed. It was
highlighted that on 6.3.1992 even the post-mortem report was
available and body of Seema was handed over to her parents
for the last rites to be performed.
35. Sh.Pawan Sharma learned standing counsel for the
State urged that the conduct of the appellant was most
suspicious and incriminating. His running away from the house
and not removing Seema to the hospital was highlighted. That
not only Seema but even her sister Reena wrongly stated at
the first instance that appellant was away from the house for 2
days was highlighted by learned counsel to urge that it was but
apparent that the appellant was a terror for the two ladies or
had threatened them at the spot and this is the reason why in
her first statement Ex.PW-13/A Seema wrongly said that the
appellant was away from the house for the last two days and
even Reena in her statement Ex.PW-13/DA wrongly stated the
same. From the fact that both wrists and forearms of the
appellant had burns and not the palms, learned counsel urged
that two facts can be deducted therefrom. Firstly that the
appellant was near his wife when the unfortunate lady was in
flames and secondly that the appellant‟s hands were being
prevented by somebody to touch the body of Seema, an
inference which could be drawn by recreating the scene at the
time when Seema was burning: „As the hands were being
prevented to touch Seema the wrist and the forearms suffered
burn injuries‟. Counsel would highlight that this suggests the
fact that Seema resisted by using her palms to push away the
extended open palms of her husband or may be resisted the
hands of her husband by catching the wrists and thereby
resulting in both wrists and the forearms being burnt and the
palms being unaffected by the fire. With reference to a
plausible argument that as deposed to by Shashi Bala the
appellant doused the flames on his wife by covering her with a
blanket, and thus when he was so doing, may cause the burn
injuries on the wrists and forearms of the appellant, learned
counsel highlighted that there is no evidence of any burnt
blanket being found at the scene of the crime and that no
suggestion was made to ASI Rohtas Singh that when he went
to the house on the day of the occurrence he saw a burnt
blanket in the house. With reference to the stated controversy
pertaining to Ex.PW-15/C, Ex.PW-15/D and Ex.PW-17/A and
Ex.PW-17/B, learned counsel urged that the appellant never
confronted either ASI Rohtas Singh or Kishan Kumar the
learned SDM with reference thereto and thus Sh.Pawan
Sharma would urge that without giving an opportunity to the
two witnesses to render an explanation no argument could be
predicated with respect to the alleged controversy projected
by learned counsel for the appellant.
36. We propose to first deal with the issue of Seema‟s
fitness for making a statement on 3.3.1992 for the reason if it
is doubtful whether Seema was fit to make a statement on
3.3.1992, that would be the end of the statement Ex.PW-13/C
i.e. the incriminating dying declaration of Seema.
37. The reasoning of the learned Trial Judge is no doubt
faulty for the reason admissibility of a document is a different
issue vis-à-vis proof thereof. Merely because vide order dated
18.4.1994 the learned Trial Judge had permitted two additional
documents to be filed which were later on proved as Ex.PW-
15/C and Ex.PW-15/D as also Ex.PW-17/A and Ex.PW-17/B
would not mean that the contents thereof became immune to
a challenge qua proof thereof.
38. Dealing with the submissions urged by learned
counsel for the appellant as to why should the two applications
be made and that the author of the two applications is an
unknown person would not by itself be of any relevance for the
reason we find that on the application Ex.PW-15/C made on
2.3.1992 two endorsements have been recorded and signed by
Dr.Anju Bharti, which endorsements have been proved as
Ex.PW-17/A through the testimony of Hardayal PW-17 the
record clerk of LNJP Hospital who has deposed that the
endorsements and signatures on Ex.PW-17/A; signatures at
point A and B thereon are in the handwriting of Dr.Anju Bharti.
Relevant would it be to note that Hardayal has not been cross-
examined on the subject of proof that the endorsements are in
the handwriting of Dr.Anju Bharti and the signatures
thereunder are those of Dr.Anju Bharti. The first endorsement
bears the time 11:50 PM and the date 2.3.1992. The second
endorsement bears the time 1:30 AM and the date 3.3.1992. It
is the endorsements which are relevant for the reason what
requires to be established with reference to a dying declaration
of a person seriously injured is the person being fit to make a
statement and even if no application in writing is moved and at
an oral request the doctor gives a written endorsement on the
subject, it would be sufficient compliance with law. Thus, the
testimony of Hardayal which has not been challenged clearly
proves that indeed Dr.Anju Bharti made two endorsements as
follows:-
" Pt. is fit for statement. She is oriented in time, place
and person.
Sd/-
(DR.ANJU BHARTI)
WD-26, LNJP
2.3.1992 11:50 PM
Pt. is unfit for statement. She is not oriented in time,
place and person.
Sd/
(DR.ANJU BHARTI)
WD-26, LNJP
3.3.1992 01:30 AM"
39. The first endorsement would be in harmony with the
case of the prosecution that Seema desired to make a statement as
the said endorsement shows that at 11:50 PM Seema was fit for
statement. The second endorsement where Seema has been
certified unfit for statement at 1:30 AM i.e. in the middle of the
night finds corroboration from the testimony of Kishan Kumar who
has stated that in the intervening night of 2nd and 3rd March 1992 he
received information that Seema desires to make a statement and
that when he went to the hospital, Seema being declared unfit for
statement he could not record the statement and thus he could
record the statement the next day afternoon i.e. at 12:40 PM on
3.3.1992.
40. No doubt, the second application Ex.PW-15/D is also not
proved to be scribed by a known person, but the fact of the matter
remains that the three endorsements beneath the application, two
written and signed by Dr.Anju Bharti and the third by Dr.J.L.Meena;
the three endorsements collectively exhibited as Ex.PW-17/B with
Dr.Anju Bharti‟s signatures at point „A‟ and „B‟ thereon and
Dr.J.L.Meena‟s signatures at point „C‟ thereon have been duly
proved by Hardayal PW-17, the Record Clerk of JPN Hospital whose
testimony to said effect has not been challenged. The three
endorsements record as under:-
"Patient (Seema) is unfit for statement. She is not
oriented in time, place and person.
Sd/
(DR.ANJU BHARTI)
WD-26, LNJP
3.3.1992 01:30 AM
Patient (Seema) is fit for statement. She is oriented
in time, place and person.
Sd/
(DR.ANJU BHARTI)
WD-26, LNJP
3.3.1992 08:25 AM
Pt. conscious, well oriented to time, place and
person. She is fit for statement.
Sd/
Dr.J.L.MEENA
3.3.1992, 12:40 PM"
41. We may highlight that a visual comparison of the
writings of the 2 applications Ex.PW-15/C and Ex.PW-15/D are
in the same hand and are signed by some police officer of PS
Timarpur. The fact that the author of the applications has not
been examined and neither ASI Rohtash nor SDM Kishan
Kumar could throw light thereon is neither here nor there for
the reason the endorsements constituting the certifications
pertaining to the writings of Dr.Anju Bharti and Dr.J.L.Meena
have been duly proved.
42. The controversy as to why 2 applications were filed
is a useless controversy for the reason it may have happened
that after Dr.Anju Bharti had certified Seema fit to make
statement at 11:50 PM on 2.3.1992, when asked to re-certify
fitness at 1:30 AM on 3.3.1992 she may have asked for
another application to be made and when the second
application was being made, she had second thoughts and
made the second endorsement beneath the first recorded on
the application Ex.PW-15/C and since by that time the second
application was also drawn up, made the same endorsement
on the second application as well.
43. The matter can be looked at from another angle.
The four certifications of Dr.Anju Bharti are completely
irrelevant for the reason Seema‟s statement Ex.PW-13/C was
recorded on 12:40 PM on 3.3.1992 and the only relevant
certification would be the one given by Dr.J.L.Meena on
3.3.1992 at 12:40 PM. If at all the prosecution had to fabricate
a fitness certification pertaining to Seema, what was the need
to go round and round by recording 4 earlier certifications qua
fitness/unfitness of Seema to make a statement? The fact that
from time to time attempts were made to obtain Seema‟s
state of fitness makes it all the more natural for the two
documents to be genuine. It is true that the final Investigating
Officer who filed the charge-sheet was negligent in not
ensuring the said documents to be filed along with the charge-
sheet, but it is settled law that procedural lapses by the
Investigating Officer cannot be a ground to disbelieve a
relevant evidence if otherwise duly proved as required by law.
44. We conclude on the issue by noting that though not
argued during hearing of the appeal, a controversy was raised
inasmuch as Dr.J.L.Meena‟s certification qua Seema‟s fitness
records the time 12:40 PM and this is the time as deposed to
by Kishan Kumar the SDM when he recorded Seema‟s
statement Ex.PW-13/C, but on which the time recorded is
12:40 AM. We agree with the learned Trial Judge that the time
12:40 AM got incorrectly recorded and in proof of the error is
the fact that Kishan Kumar‟s testimony that when in the
intervening night of 2nd and 3rd March 1992 he reached the
hospital but could not record Seema‟s statement because she
was unfit to make a statement and thus the question of his
recording Seema‟s statement at 40 minutes past 12 in the
night does not arise.
45. No motive has been brought out for Kishan Kumar
to contrive or connive with the police officers to fabricate
documents. As observed by the Supreme Court in the decision
reported as 2010 (8) SCC 514 Lakhan vs. State of M.P. there is
no reason to doubt the credibility, unless there is evidence to
the contrary, of Sub Divisional Magistrates or Gazetted
Government Servant who record statements of injured which
ultimately are proved as dying declarations.
46. It is true that the learned Trial Judge has overlooked
a writing on the MLC of Seema that the patient herself gave
the information to the doctor of the cause under which she
suffered the burn injuries as also the fact that the learned Trial
Judge has given reasons contrary to facts pertaining to
testimony of Reena regarding Seema‟s stated dying
declaration made to Reena and indeed we find Reena having
told at the very first instance to the SDM that her sister told
her that she caught fire while cooking food and this is what
Seema told the doctor who examined her at the casualty of JPN
Hospital. But the question would arise whether there is any
credibility in the said statements of Seema or whether there is
evidence that the unfortunate lady told a lie, whether
deliberate or out of fear or compulsion.
47. The fact that Seema told the SDM who soon
reached the hospital that she accidently caught fire when the
stove burst as she was cooking food and that her husband was
away from the house for 2 days, a fact also deposed to by
Reena and which fact is a blatant lie shows that both Seema
and Reena were under some kind of a fear of the appellant
and deliberately told a lie that the appellant was not present in
the house. On the presence of the appellant in the house the
best evidence would be appellant‟s admission to said effect
when examined under Section 313 Cr.P.C., contents whereof
have been noted by us in para 9 above. Even Shashi Bala PW-
3 the landlady has deposed to appellant‟s presence in the
house when his wife got burnt. Further, as noted by us in para
23 above, contrary to her statement Ex.PW-13/DA made to the
SDM, while deposing in Court even Reena admitted appellant
being present in the house when Seema got burnt.
48. Thus, no credence can be given to the statements
made by Seema to the doctor who examined her as also her
first statement recorded by the SDM i.e. the statement Ex.PW-
13/A. There is unimpeachable evidence of fear resulting in a
deliberate lie stated by Seema in the 2 statements.
49. Having opined positively that Seema was fit for
statement at 12:40 PM on 3.3.1992, the question would arise
whether credence should be given to Seema‟s statement
Ex.PW-13/C which has been proved through the testimony of
the scribe thereof i.e. Kishan Kumar the SDM concerned.
50. As disclosed therein by Seema she gives a reason
why she mis-stated the correct facts at the first stage. She
misbelieved that by suppressing the truth she would get
proper medical treatment.
51. The presence of the appellant in his house when
Seema got burnt is a fact proved on the evidence as noted in
para 47 above and his conduct assumes great significance. He
did not accompany Seema to the hospital. He immediately ran
away from his house. For simple superficial burns on his wrist
and forearms he got himself admitted at Central Hospital
Northern Railway and being a railway employee managed to
remain admitted there till 10th March 1992 i.e. for 9 days and
then absconded from the hospital. The contemporaneous
conduct of the appellant is that of a fugitive who flees from
justice and shows the guilt in the mind of the appellant.
52. Conscious of the fact that the normal Rule of Law is
to treat conduct as weak evidence for the reason evidence
pertaining to conduct is presumptive evidence and by its very
nature presumptive evidence is weak evidence, but in the
facts of the instant case, the circumstances enwombing the
conduct of the appellant render the inference to be drawn
from the conduct to be inferred not on the normal Rule of Law
but on the Rule of Appreciation of Evidence that the
incriminating value of a fact may be enhanced with reference
to the circumstances enwombing the fact.
53. As Seema‟s husband the appellant would certainly
know that Seema was an expectant mother and if indeed
Seema caught fire accidently the normal conduct of the
appellant would be to rush his wife for medical aid not only to
save the wife but even the unborn child. That Seema told a lie
at the first instance that her husband was away from the
house for two days, shows that the appellant was Seema‟s
tormentor and so terrified or under fear was she that she told
a lie.
54. Agreeing with the possibility of the stove enflaming
as urged by learned counsel for the appellant and for which we
need not re-note the submissions as we have extensively
noted the same in para 34 above, but the question would be
whether the same is a mere argument advanced by learned
counsel for the appellant with reference to the fact that the
post-mortem report record scalp hair singled and burnt in both
temporal and frontal region.
55. In our opinion the argument is purely hypothetical
of a situation and is based upon the principle of the working of
the stove Ex.P-1. If indeed Seema was cooking food when the
stove enflamed in the possible manner as was argued by
learned counsel for the appellant; not that the stove literally
burst as understood by the learned Trial Judge, there would
have been a utensil to be found near the stove or on the stove
in which uncooked, semi-cooked or fully cooked food would be
found. No suggestion was given to ASI Rohtash Singh that he
saw a utensil with uncooked or semi-cooked or fully cooked
food and he deliberately did not record its presence on or next
to the stove which ASI Rohtash Singh picked up from the
house on the next day when Seema suffered burn injuries in
her house. That kerosene was detected only on the frontal and
temporal region of the scalp hair is explainable when kerosene
is thrown on a person from the front i.e. the person throwing
kerosene and the person on whom kerosene is thrown are face
to face. Thus, nothing turns thereon.
56. Though for reasons different than the ones given by
the learned Trial Judge and for the fact appellant‟s presence in
the house when Seema got burnt is a proved fact and that
Seema maintained initially that her husband was away from
the house for 2 days and so did Reena falsely state we have
evidence that the initial statements of Seema were wrong and
thus the same have to be discarded for said reason alone and
not the reason given by the learned Trial Judge who construed
Seema saying that the stove burst as literally to be
understood; we hasten to add that we are not to be read to be
understood as if we are accepting the bursting of the stove as
was urged by learned counsel for the appellant and as
recorded in para 34 above. We clarify that from the falsity in
the initial statements made by Seema pertaining to the
appellant not being in the house we are concluding that
Seema‟s initial statement were contrived by her either out of
fear or under the wrong belief disclosed by Seema in her
second statement recorded by the learned SDM.
57. We find credibility in Seema‟s statement Ex.PW-
13/C and more than that we can infer the guilt of the appellant
with reference to his contemporaneous conduct which we have
discussed fully herein above.
58. Undoubtedly there is a delay in registration of the
FIR, but we note that it is not a case where an eye witness has
been introduced by the prosecution. Shashi Bala and Reena
who were the two persons in close proximity of Seema when
she suffered burn injuries had at the very inception given a
version favourable to the accused and it is not that they gave
a different version to the police and deposed contrary to the
same, meaning thereby, no witness has been examined who
claims to be an eye witness and thus the issue of delay in
registration of FIR has to be considered only with respect to
Seema‟s dying declaration Ex.PW-13/C for the reason it is this
declaration which could be planted.
59. Vide Ex.PW-13/D Kishan Kumar the learned SDM
passed an order on 17.3.1992 for FIR to be registered and we
find that he has deposed that Mr.Z.U.Siddique conducted the
inquest proceedings i.e. some other Sub Divisional Magistrate
and he has categorically deposed that this was in his absence.
The cross-examination on the subject is very sketchy. Kishan
Kumar was the witness whom the defence had to cross-
examine on the issue of delay and having done a very cursory
cross-examination the obvious thing which has happened is
that Kishan Kumar has not got an opportunity to explain the
delay and thus we feel that in the peculiar facts of the instant
case the defence cannot get any mileage on this point and for
the additional reason lapses by the prosecution have to be
ignored if otherwise credible evidence surfaces at the trial.
60. The dying declaration of Seema Ex.PW-13/C
nowhere records of dowry harassment. She speaks about
appellant‟s ill-treatment towards her on the false allegation
that she was having illicit relationship with her brother-in-law
and thus we concur with the argument advanced and thus we
held that the appellant cannot be convicted for the offence
punishable under Section 498A IPC ingredients whereof would
be proof of subjecting the wife to cruelty of the kind as per
clause „A‟ or clause „B‟ of the Explanation i.e. such conduct
which is of such nature as is likely to drive the woman to
commit suicide or cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman or
harassment with a view to coerce the woman or any person
related to her to meet an unlawful demand for any property or
valuable security.
61. Maintaining the conviction of the appellant for the
offence of having murdered Seema and the relatable sentence
imposed thereon we dispose of the appeal acquitting the
appellant for having committed any offence punishable under
Section 498A IPC and quash the conviction relatable thereto.
62. Since the appellant has been admitted to bail we
cancel the bail bond and surety bonds furnished by the
appellant and direct him to surrender the remaining sentence
pertaining to the offence punishable under Section 302 IPC.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
May 02, 2011
mm / dk
