State vs Ram Babu & Ors.
2012 Latest Caselaw 4947 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
2

+           CRL.L.P. No.197/2012 & Crl.M.A. Nos.4567-4568/2012

                                   Date of Decision: 23rd August, 2012


     STATE                                         ..... Petitioner
                           Through      Ms. Ritu Gauba, APP

                                   Versus


     RAM BABU & ORS.                                ..... Respondents

Through

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL (Oral)

Crl.M.A. No.4567/2012

1. For the reasons stated in the application, delay in re-filing the appeal

against acquittal is condoned.

This application is allowed.

Crl.M.A. No.4568/2012

2. For the reasons stated in the application, delay in filing the appeal is

condoned.

This application is allowed.

CRL.L.P. No.197/2012

3. The record of the trial court has been perused.

4. The instant petition has been filed under Section 378 of the Code of

Criminal Procedure praying for leave to appeal against the judgment dated

26th April, 2011 whereby the learned Additional Sessions Judge has acquitted

the respondents of the charges under Section 304-B/34 of the IPC and

302/34 of the Indian Penal Code (IPC). The learned Trial Judge has, however,

found the respondents guilty for commission of offence under Section 498-A

read with Section 34 of the IPC and sentenced them for the same. We may

note that we are not aware as to whether the respondents have assailed

their conviction under Section 498-A/34 of the IPC by way of the statutory

remedy of appeal available to them. We, therefore, make it clear that we

are, hereby, not adjudicating upon the merits of the conviction under Section

498-A/34 of the IPC hereby inasmuch as this issue is not before us.

5. Coming to the challenge laid by the prosecution with regard to the

acquittal of the respondents on the charge under Section 304-B/34 of the IPC

and 302/34 of the IPC, we find that the case against the respondents relates

to an incident in which Rajni, wife of Rinku-respondent no.2 herein, was burnt

on 24th December, 2007.

6. It is in the evidence of PW 20 SI Uma Dutt that on 24th December,

2007, he was on emergency duty from 8.00 a.m. to 8.00 p.m. in the Police

Station Mangol Puri when he received DD No.11A recorded by the police at

about 10.25 a.m. with regard to the incident. PW 20 reached the premises

along with Constable Yogender when he came to know that the lady had

already been removed to SGM Hospital. In the hospital, PW 20 SI Uma Dutt

has recorded Rajni's statement (Exh.PW 3/DB). It is not disputed before us

that as per the evidence led by the prosecution, this statement was recorded

in the presence of PW 3 Amit Kumar, who was a brother of Rajni as well as

the Chief Medical Officer-Dr. Manisha Tomar.

7. Ms. Ritu Gauba, learned APP has carefully taken us through the

testimony of PW 11 Dr. Manisha Tomar, an independent medical expert who

has deposed about the fitness of the deceased as well as the presence of PW

3 Amit Kumar at the time of recording Exh.PW 3/DB by the PW 20 SI Uma

Dutt. PW 11 - Dr. Manisha Tomar has also identified the signatures and

thumb impression of the deceased Rajni in the statement Exh.PW 3/DB and

the other present. The learned Trial Judge has carefully noticed that the

prosecution chose not to even prove the statement and the same was

proved on record in the cross-examination of the witness carried out by the

defence. In this statement, the deceased Rajni has voluntarily disclosed that

she had caught fire accidently while boiling potatoes on the gas in the

residential premises. It is also in evidence that at that time, Rajni's husband-

respondent no.2 was not present in the house and only her father-in-law-

respondent no.1 and mother-in-law-respondent no.2 were in the house.

8. Learned APP has staunchly contended that this dying declaration ought

not to be believed inasmuch as the deceased had given a second dying

declaration which was recorded at about 1.15 pm by PW 1- Shri Ranjeet

Singh, SDM on 24th December, 2007. This statement has also been carefully

noticed in the judgment impugned before us. The learned Trial Judge has

noticed that this statement was recorded in the Lok Nayak Jai Prakash

Narayan Hospital to which the deceased was transferred from SGM Hospital.

At the time of her shifting, the deceased Rajni was accompanied by her

father PW 6 Ravinder Gupta. It is also in evidence that at the time of

recording of statement, PW 6 Ravinder Gupta was present in the room.

9. Further close relatives have been observed on occasions to tutor or

influence victims to make statements in a particular manner. In this case,

there is evidence that there were family members and police official present

at 1.15 pm or thereafter when Rajni's statement was recorded by the SDM.

10. It needs no elaboration that the fitness of a person to make a dying

declaration is an essential concomitant to support its creditworthiness and to

support its admissibility and reliability. The second statement, which has

been proved on record as PW 1/A, bears the signatures of one Dr. Kanav. No

witness has been brought in the witness box to support the case of the

deceased at the time of recording of statement. In this background, the

finding of the learned Trial Judge that there was nothing to support that the

deceased was in a fit state of mind to have given the statement which has

been brought on record as Exh.PW 1/A is unassailable.

11. The learned Judge has also found that the SDM has recorded the entire

statement in first person except the last sentence. The allegation with

regard to having been burnt by in-laws is contained only in the last sentence

which inexplicably is in third person. This sentence is to the effect that Rajni

had told the SDM that her father-in-law and mother-in-law had burnt her. It

has been held by the learned Trial Judge that this interpolation was made at

the instance of the father of the deceased Rajni subsequent to recording of

her statement. We see no reason to disbelieve this finding. The finding of

the learned Judge with regard to the possibility of tutoring of the deceased

by the relatives also deserves no interference in the light of the evidence

which has been brought on record.

12. The presence of PW 6 Ravinder Gupta, father of the deceased at the

time the SDM recorded Rajni's statement is manifested from his deposition.

PW 6 has also stated that at the time of recording of statement Exh.PW 1/A,

PW 16 Uma Dutt was also present. This is, however, contradictory to the

statement made by PW 1 Ranjeet Singh, SDM, who denied the presence of

family members of the deceased. The testimony of the SDM as PW 1 is also

contradiction with the testimony of PW 20 in all material particulars with

regard to the manner and time in which he reached the hospital.

13. The learned Trial Judge has also relied upon the judgment of the

Supreme Court in Criminal Appeal No.3036/2007 titled Mohan Lal &

Ors. Vs. State of Haryana wherein the court had observed that if the

dying declaration was recorded by the judicial magistrate in the presence of

the mother and father of the deceased, this may get result of tutoring and

not free and voluntary one. In this case, the Supreme Court had also

observed that when there is more than one statement in the nature of dying

declaration, one first in point of time must be preferred. Of course, if the

plurality of dying declaration must be held trustworthy and reliable, it has to

be accepted.

14. The learned Trial Judge has also relied on the pronouncement of the

Supreme Court in Criminal Appeal No.1167/2006 titled as Pureerselvam

Vs. State of Tamil Nadu wherein it has been held that where there is more

than one statement in the nature of dying declaration, one first in time must

be preferred.

15. In Criminal Appeal No.828 of 2009 titled Raman Kumar Vs. State

of Punjab, the Supreme Court has held that if there are material

improvements made by mother and brother of the deceased in the Court in

respect of harassment and demand of dowry soon before the death of the

deceased and if prosecution has failed to rule out the possibility of accidental

death and could not establish that there was harassment meted out to the

deceased for dowry soon before her death, then it is not a dowry death.

16. In support of the finding that in the light of the evidence brought on

record, the first declaration made by the deceased deserves to be accepted.

The learned Trial Judge has relied upon the pronouncement of the Supreme

Court in AIR 1993 SC 374 Kamia Vs. State of Punjab wherein the

Supreme Court held that if one of the dying declaration indicating the

incident as independent, then conviction under Section 302 of IPC based on

one of the dying declaration implicating the accused is liable to be set aside.

The court held that the prosecutions are not being able to prove the offences

under Section 304-B/34 of the IPC and 302/34 of the IPC beyond reasonable

doubt against the respondents.

17. In the present case, Smt. Sudesh, the mother of the deceased had

appeared in the witness box as PW 2. She has made material improvement

in the statement recorded by the police and also attributed a dying

declaration as having been made by the deceased to her in the hospital. On

a close scrutiny of testimony of PW 3 Amit, brother of the deceased as well

as the testimony of PW 6 Ravinder Gupta, father of the deceased vis-a-vis

the testimony of PW 2 Sudesh, the learned Trial Judge has doubted the

presence of PW 2 Sudesh at the place.

18. We may also note that the statement attributed to the deceased by

the SDM is in material contradiction to the statement attributed by her

mother-PW 2 to the deceased. Exh.PW 1/A shows that the deceased made

no allegation of having been burnt by her husband. The statement

attributed by her mother-to the deceased by the PW 2 ropes in the husband

as well.

19. The evidence led by the defence on this aspect has been examined

and both DW 1 Urmila and DW 2 Kamla in answer to the query as to what

happened, had set up a plea that when she was boiling potatoes, the corner

of her saree caught fire.

20. We find that the learned Trial Judge has carefully analysed the entire

evidence on record and has concluded that the deceased was boiling

potatoes and a corner of her saree caught fire resulting in the burn suffered

by her while she was removing the utensils from the gas burners.

21. In the light of the above discussion, we find no infirmity with the

findings of the learned Trial Judge.

22. For all these reasons, the instant petition is without merit and is

dismissed.

(GITA MITTAL) JUDGE

(J.R. MIDHA) JUDGE

AUGUST 23, 2012 aa-f