Akbari Begum & Ors. vs State
2011 Latest Caselaw 2636 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on 18.05.2011

+       CRL.A. 371/1997


AKBARI BEGUM & ORS.                                           ... Appellants


                                         versus


STATE                                                     ...     Respondent

Advocates who appeared in this case:

For the Appellant         : Ms Ritu Gauba
For the Respondent        : Ms Richa Kapoor

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED (ORAL)

1. This appeal is directed against the judgment and / or order dated 06.09.1997

passed by the learned Additional Sessions Judge, Shahdara, Delhi, in Sessions Case

No. 59/96 arising out of FIR No.162/94, registered under section 302/34 IPC, P.S.

Seelampur whereby the appellants have been held to be guilty of the offence

punishable under Section 302/34 IPC. The appellants are also aggrieved by the

order on point of sentence dated 9.9.1997 whereby each of the appellants have been

sentenced to life imprisonment and also to pay a fine of `. 5000/- each and, in

default whereof, to undergo RI for a further period of three months each in respect

of the said offence punishable under section 302/34 IPC.

2. The Charge against the appellants, namely, Akbari Begum, Salma Begum,

Shahida Begum and Rabia @ Indra was that on 31.3.94 at 6.30 pm at H. No. 905,

G. No. 30/6 Indira Chowk, Jafrabad within the jurisdiction of P.S. Seelampur, in

furtherance of their common intention, they committed the murder of Shahjahan,

w/o Sabu and thus caused her death and thereby committed an offence punishable

u/s 302/34 IPC. The appellants pleaded not guilty. Consequently, the trial took

place which culminated into the impugned judgment and order on sentence.

3. Akbari Begum is the mother-in-law of the deceased Shahjahan, w/o Sabu.

Salma Begum is the jethani (wife of the husband's elder brother) whereas Shahida

Begum is the devrani (wife of the husband's younger brother) and Rabia @ Indra is

the nanad (husband's sister). It may be pointed out that Rabia @ Indira was

already married at the time of the incident and was living separately and was in the

family way.

4. At the time of the alleged incident i.e on 31.3.1994, the deceased Shahjahan

had been married for over 15 years with Sabu @ Shahabuddin and was residing

peacefully in her matrimonial house with her husband and in-laws. Shahjahan was

taken to the G.T.B. hospital, Shahdara by the appellant Akbari Begum (her mother-

in-law) at about 7.30 p.m. on 31.3.1994 after she had received severe burn injuries.

As per the MLC, Ex. PW-7A, she had received about 90% burns. Though, initially

the MLC indicated 99% but, the same was subsequently over-written to read as

90% burns. The burns were stated to be all over her body except her head. She

was stated to be conscious and oriented. The MLC also indicated that there was an

alleged history of burns by in-laws.

5. The prosecution case is that the appellants are responsible for having burnt

Shahjahan by pouring kerosene oil over her and then lighting her by a burning

match stick. The prosecution case essentially rests upon an alleged dying

declaration, Ex. PW-8C which was allegedly recorded by ASI Jagbir Singh (PW-8)

in the hospital in the presence of Dr R.A. Gautam (PW-7), who was the Chief

Medical Officer. The prosecution sought to place reliance upon PW-3, Chamman

(Shahjahan's brother); PW-4 Mohd. Iqbal (another brother of Shahjahan); PW-5

Noorjahan (mother of Shahjahan); PW-6 Sabu (Shahjahan's husband); PW-7 Dr.

R.A. Gautam; PW-8 ASI Jagbir Singh, who was the investigating officer till the

death of Shahjahan; PW-11 Constable Ravinder Singh, who was the photographer;

PW-12 Dr. A.K. Tyagi, who conducted the postmortem examination; and PW-14

Constable Narender who accompanied PW-8 ASI Jagbir Singh to the hospital.

Reliance was also placed by the prosecution on the PW-2, Constable Om Prakash,

who accompanied PW-8 ASI Jagbir Singh, to the scene of the crime on receipt of

DD No.9 (Ex. PW-8A) at P.S. Jafarabad at 5.45 pm, to the effect that one woman

had put herself on fire (ek aurat ne aag laga lee hai). The return entry was DD-10,

Ex. PW-8/B, which was recorded by Constable Vijender Singh wherein it was

noted that the injured had been admitted in hospital by the mother-in-law of the

injured.

The English translation of the alleged dying declaration, Ex. PW-8C, reads

as under:-

"Smt. Shahjahan, w/o Sabu, aged 30 years resident of House No. 905, Gali No. 30/6, Indira Chowk, Jaffarabad, Delhi made the following statement:-

I reside at the aforesaid address along with my family. Today in the evening at about 6.30 p.m., I was cleaning rice while sitting in my house when the son of my sister in-law (nand) pushed my son Javed into a drain regarding which I complained to my mother in-law

Smt. Akbari that Phaddi, the son of my sister in-law (nand) pushed my son Javed into a drain whereupon my mother in-law instead, scolded me and on that the quarrel escalated. Thereupon my mother in-law Akbari, Jethani Salma, dewrani Shahida, sister in-law (nand) Rabia alias Indira jointly poured kerosene oil on me from behind and my mother in-law Akbari lit me with a match-stick as a result my entire body sustained burns. Appropriate action may please be taken against them.

I have heard the statement and the same is correct.

Thumb Impression

L.T.I. Shahjahan Attested Sd/- Jagbir Singh (In English) Assistant Sub-Inspector 31/3/94

Taken in my presence.

Sd/-

31.3.1994 (Doctor R.K. GAUTAM)"

The alleged dying declaration had been recorded in Hindi. Therefore, it would be

instructive to examine its transliteration, which reads as under:-

"Byan Ajaane Shahjahan, w/o Shabu, r/o Gali No. 30/6, House No. 905, Indira Chowk , Jaffarbad, Delhi Ba Umar 30 saal

Byan Kiya ki mein pata uprokt par seh parivar ke rehti hoon. Aaj waqt qarib 6/30 baje sham ko apne ghar mei baithe chawal been rahi thi toh mera ladka javed ko meri nanad ke ladke ne naley mei dal diya tha jo mainey apne saas akbari se kaha ki mere ladke javed ko nanad ke ladke faddi ne nalhey main dhakel diya hai jo mere saas ne mujhe hee ulta dhamka diya aur isi baat par baat bar gayi toh pechay se meri saas akbari jethani salma devrani sahahida nanad rabia urf indira ne

milkar mere upar mitti ka tail dal diya aur mere saas akbari ne mujhe machis ki tilli se aag laya di jis se mera sara shareer jal gaya inkey kilaf uchit karyawahee ki jayey. Byan sun lia theek hai"

6. The learned counsel for the appellants submitted that in so far as PWs 3, 4, 5,

6, who are the brothers, mother and husband respectively of the deceased

Shahjahan, are concerned, they have not at all supported the case of the

prosecution. On the contrary, the prosecution has treated them as hostile and they

were cross-examined by the learned Additional Public Prosecutor. She further

submitted that in view of this fact, the entire case rests upon the so called dying

declaration and the testimony of PW-7 Dr. R.A. Gautam and PW-8 ASI Jagbir

Singh. She submitted that the dying declaration cannot be made the sole basis of

the conviction in as much as there is no fitness certificate given by the Doctor

either on the dying declaration or just prior to the dying declaration. She also

submitted that the language of the dying declaration itself indicates that they were

not the exact words spoken by the deceased Shahjahan but closely resembled the

language of a police officer. It was, therefore, her case that the dying declaration

was not of a stellar quality and cannot be made the sole basis of the conviction.

She contended that courts have always doubted purported dying declarations

recorded by police officers and, that too, by an investigating officer, who is

interested in seeing that his case results in a conviction. For this purpose, she has

placed reliance on Gulam Hussain and another v. State of Delhi: AIR 2000 SC

2480. She also submitted that the fact that the deceased Shahjahan was taken to

hospital by the appellant Akbari Begum (mother-in-law of Shahjahan) is also a

circumstance which is consistent with her innocence. For this proposition, she

placed reliance on the following decisions:-

1. Meera v. State of Rajasthan: AIR 2004 Supreme Court 1879

2. State of Rajasthan v. Prithvi Raj: 1995 Supp (3) SCC 410

7. In support of the plea that the absence of a certificate of fitness rendered the

so-called dying declaration unsafe to base a conviction upon, the learned counsel

for the appellant placed reliance on Shaikh Rafiq & Anr v. State of Maharashtra:

AIR 2008 SC 1362, where, though there was a certificate, as no time was

mentioned the court took the view that the dying declaration could not be relied

upon, particularly also, because the Executive Magistrate had not been called. She

further submitted that in the present case, the injured Shahjahan Begum had arrived

at hospital at 7.30 p.m. on 31.3.1994 and had remained alive in the hospital till

12.30 a.m on 5.4.1994. Therefore according to her there was ample time and

opportunity for the police to have informed the Magistrate and to have taken him to

the hospital to record the statement of the injured. The fact that no such attempt

was made is also indicative of the doubtful nature of the dying declaration. She

also submitted with reference to Khurshaid Hussain Salihon Shah and Others v.

Emperor: AIR 1941 Lahore 368 (DB) and Muneer Khan & Ors. v. State of M.P.:

JT 2002 SC 399, that roping in of the all family members in the dying declaration

also causes a dent into the veracity of the contents of the alleged dying declaration.

8. Coming back to the present case, the learned counsel for the appellant

submitted that although PW-7 Dr. R.A. Gautam had written on the alleged dying

declaration that the same was - "taken in my presence", this cannot be regarded as

a substitute for a certificate of fitness which is essential to lend credence to the

dying declaration. For this purpose she placed reliance on the decision in State of

Karnataka v. Aslam @ Aslam Pasha: 2000 Crl. L.J. 1167. The learned counsel

for the appellant also submitted that the alleged dying declaration cannot be relied

upon because of another reason that although the injured remained alive for five

days after she was brought to the hospital, the services of the Magistrate were not

requisitioned by the police for recording the statement of the injured. For this

purpose she relied upon Keshav Ganga Ram Navge and another v. The State of

Maharashtra: AIR 1971 SC 953.

9. The learned counsel for the appellants also drew our attention to the

postmortem report is Ex. PW-12/A, where the opinion has been given by the

Doctor that the burns were ante mortem and were caused by "flame". She,

therefore, submitted that the opinion of the postmortem doctor is consistent with

the theory of an accident which has been propounded by the defence

10. Ms Richa Kapoor, the learned counsel for the State, on the other hand

submitted that the dying declaration which has been recorded by the police officer

in the presence of the Doctor can certainly be made the sole basis of the conviction.

She also submitted that Section 32 of the Indian Evidence Act 1872 does not state

that a dying declaration must be recorded by a Magistrate and the fact that the

Magistrate was not called for recording the statement of the injured, would not

enable us to throw away a dying declaration which is otherwise trustworthy and

reliable. She also submitted that as per the Forensic Science Laboratory Report,

the presence of kerosene oil was detected on the clothes which would indicate that

Shahjahan Begum's clothes were doused in kerosene oil. This would be consistent

with the dying declaration and would be totally contrary to the theory of accident

propounded by the defence. She also submitted that as per the photographs Ex.

PW -11/5,11/6,11/7, the stove shown therein does not reveal any darkening and this

clearly demonstrates that it is not the stove which caught fire and that the burns

were not accidental, but that the deceased Shahjahan Begum suffered the burn

injuries as indicated in the dying declaration. The learned counsel for the State also

submitted that as the defence has not even suggested it to be a case of suicide,

therefore since, according to her, it was not a case of accidental fire, the only other

possibility was homicide. She also submitted that the PW-8 ASI Jagbir Singh has

clarified why the Magistrate was not called by indicating in his testimony before

court that the condition of the injured Shahjahan was very serious and therefore

there was great urgency in recording her statement.

11. For all these reasons, the learned counsel for the State submitted that the

dying declaration (Ex.PW-8/C) was of a stellar quality and was wholly reliable

and, therefore, could be made the sole basis of the conviction de hors the fact that

PWs 3, 4, 5 and 6 had turned hostile before court.

12. Having heard learned counsel for the parties and having examined the

evidence in court in detail, we are clearly of the view that the case against the

appellants is not free from doubt. The sole basis of conviction by the trial court, in

the present case, is the dying declaration (Ex. PW-8/C). There are many infirmities

which surround this so-called dying declaration. The first infirmity is that the time

of recording of the dying declaration is not indicated. Secondly, although Dr R.A.

Gautam (PW-7) has made an endorsement on the said Ex. PW-8/C to the effect -

"taken in my presence" -, he has nowhere stated that the injured Shahjahan was fit

for making a statement. We have already noted the decisions relied upon by the

learned counsel for the appellants that such an endorsement cannot be a substitute

for a clear cut certificate of fitness. Thirdly, the MLC (Ex. PW-7A) carries a

statement to the effect-"fit for statement"-but there is no signature beneath that

endorsement nor is there any time or date given therein. So even if it is taken that

some doctor had written the said words-"fit for statement"-we cannot assume as to

when the patient Shahjahan was fit for making a statement. Was it on 31.03.1994

or some other day or time till her death on 05.04.1994 ? Fourthly, we also find that

both PW-7 Dr R.A. Gautam and PW-8 ASI Jagbir Singh had stated in court that the

condition of the patient Shahjahan was serious. However, it has not been indicated

as to how serious her condition was. Was it so serious that she could not have even

given her statement? This possibility cannot be ruled out. We may also point out

that from the death summary, Ex. PW-7D/A, it appears that Shahjahan Begum's

condition deteriorated in the night intervening 4/5.4.1994.

13. There are also contradictions between the testimony of PW-7 Dr. R.A.

Gautam and the facts which emerge from the other circumstances. For instance,

PW-7 Dr R.A. Gautam stated in his testimony before court that the MLC had been

written in his handwriting, whereas this contradicts his statement under Section 161

Cr.P.C. where he had stated that the MLC had been written under his direction by

his junior doctor. The junior doctor has not been produced before Court by the

prosecution. Interestingly, Dr R.A. Gautam (PW-7) had also testified that no

statement of his was recorded by any police official. However, he was confronted

with the alleged statement under Section 161 Cr.P.C. which had been recorded by

PW-8 ASI Jagbir Singh. Apart from this, Dr R.A. Gutam, who was in the casualty

ward, is stated to have been present when the purported dying declaration was

recorded. But, it is clear from the death summary (Ex. PW-7/DA) that Shahjahan

Begum was shifted from the Casualty Ward to Ward No.20, which is the Burns

Ward, at 7.53 p.m. and PW-8 ASI Jagbir Singh, in his testimony before Court,

stated that the statement of Shahjahan was recorded after 8 p.m, may be around

8.05 p.m. or 8.10 p.m. This also casts doubt on the dying declaration in as much as

it is alleged to have been recorded at a time when Shahjahan Begum had already

been shifted to Ward No.20 and was no longer available in the Casualty Ward,

where Dr R.A. Gautam was stationed!

14. We may also point out that PW-8 ASI Jagbir Singh, in his testimony has

stated that the left thumb impression of Shahjanah was taken on the dying

declaration, Ex. PW-8/C, in as much as her right thumb had been burnt but, PW-7

Dr R.A. Gautam, has stated that it was the right thumb impression of the Shahjahan

which was taken on Ex. PW- 8/C. We also note that, PW-8 ASI Jagbir Singh,

however, contradicted himself by stating, in his cross examination, which had been

conducted after a break of some time, that the right thumb of the deceased had not

been burnt.

15. There are other contradictions and inconsistencies in the testimony of PW-8

AIS Jagbir Singh, in as much as he has stated that there was no stove present in the

room where the deceased Shahjahan is stated to have got the burn injuries whereas

the evidence of the photographer and photos themselves clearly show that the stove

was lying in the room. PW-2 Constable Om Prakash, also gave the description of

the scene in which he has included the presence of the stove. PW-8 ASI Jagbir

Singh also stated that there was no crowd outside and inside the place of

occurrence. PW-14 Constable Narender, stated to the contrary. In fact, PW-14

Constable Narender has clearly stated that about 100 to 150 persons were present.

16. Apart from the fact that the dying declaration, Ex- PW-8/C, does not inspire

much confidence, there is also the important circumstance that none of the family

members of the deceased Shahjahan has supported the case of the prosecution.

PW-3 Chamman, who is the brother of the deceased stated that he had not seen his

sister alive after she had received the burn injuries. PW-4 Mohd. Iqbal (another

brother of the deceased), stated that he had asked his sister as to what happened.

She had simply said it happened all of a sudden. PW-5 Noorjahan, who is the

mother of the deceased, stated that her daughter did not tell her anything regarding

the involvement of the appellants present in the court. She stated that her daughter

had become unconscious. On the other hand, PW-6 Sabu, who is the husband of

the deceased Shahjahan, stated that she had told him that she caught fire on account

of the stove while she was preparing some food items.

17. Even the contents of dying declaration do not inspire much confidence in as

much as according to the said Ex. PW-8/C the incident took place because

Shahjahan's son had been pushed by her sister-in-law Rabia's son and that she had

accordingly complained to the mother-in-law Akbari Begum who instead of

controlling the situation scolded her and therefore a quarrel ensued. Thereafter, all

the appellants poured kerosene oil upon her from behind. Akbari Begum lit the

match stick. The incident of one small child being pushed by another small child

escalating into such a serious event also does not seem to be probable. In the same

light, we may also notice the fact that Ex. PW-8/C ropes in all the female members

of the house, which are the four appellants before us. We may also point out that

the language in which dying declaration is recorded is clearly not that of Shahjahan

but is that of a police officer.

18. For all these reasons, we cannot place reliance on Ex. PW-8/C which is the

main piece of evidence sought to be relied upon by the prosecution. The conviction

of the appellants in the absence of the PW-8/C cannot be sustained. Consequently,

the impugned judgment and order on sentence are set aside. The appellants are on

bail, therefore, their bail bonds are cancelled and the sureties stand discharged.

The appeal is allowed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J MAY 18, 2011 kb