Subhash vs State Of Nct Of Delhi
2012 Latest Caselaw 6582 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. A. 1090/2011

                                          Reserved on: 4th October, 2012
%                                  Date of Decision: 19th November, 2012

Subhash                                                   ....Appellant
               Through    Mr. G.B. Sewak, Advocate.

                     Versus

State of NCT of Delhi                                    ...Respondent
            Through       Mr. Sanjay Lao, APP.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P. GARG

SANJIV KHANNA, J.

The appellant Subhash stands convicted, under Section 302 of

the Indian Penal Code, 1860 (IPC), for having committed murder of his

wife Shashi Sharma, in Sessions Case No. 80/2010, arising out of FIR No.

561/2005, Police Station Sultan Puri. He has been sentenced to life

imprisonment and fine of Rs.10,000/-. In default of payment of fine, he

has to undergo rigorous imprisonment for three months.

2. It is undisputed that Shashi Sharma, wife of the appellant, was

admitted to Safdarjung Hospital with burn injuries, on 9th April, 2005.

Her MLC (Ex. PW14/A), recorded on 9th April, 2005, at 03.10 A.M,

mentions that she was brought to the hospital by her mother Kiran.

She expired on 9th April, 2005 at 15.00 Hrs. As per Post Mortem Report

(Ex. PW23/A), cause of death was shock, caused by ante-mortem

thermal burn injuries. The percentage of burn injuries, on the body,

was 95% and she had epidermal to dermoepidermal burns, all over the

body, except on parts of the scalp and pelvis. Dr. Alaxender (PW-23),

Sr. Special and Head of Department of Forensic Medicine, Safdarjung

Hospital, who had conducted the post mortem on deceased's body,

proved that the post mortem opinion (Ex. PW23/A) was written and

signed by him. He opined, before the court, that 95% burn injuries

cannot be caused by the accident mentioned, in the alleged history,

given in the MLC - Ex. PW14/A. For the sake of convenience we are

reproducing the said portion of the MLC below:-

"Alleged history of sustain accidental thermal burns when kerosene oil can which was kept at on top of almirah, where she was sleep, fell over her and a burning mosquito coil was kept there and her clothes caught fire and she sustained burns"

3. PW-23 similarly avers, in his report (Ex. PW23/C), where his

opinion was sought by Insp. Mohd. Iqbal (PW-24), regarding whether

the injuries mentioned in the Post Mortem Report support the alleged

history, given in the MLC.

4. Statement of PW-23, in the court, and his written opinion remain

uncontested. He was not subjected to any cross-examination.

However, this is not the sole ground to hold that, the present case, is

not one of accidental burns but rather a case where the appellant,

deliberately and intentionally, caused burn injuries by throwing

kerosene on his wife Shashi Sharma. It has been proved beyond doubt,

that the cause of death, as recorded in the aforesaid statement ( MLC

Ex. PW14/A) is incorrect and untrue.

5. Kiran (PW-3) was the deceased's mother who averred that her

daughter Shashi married, the appellant, in the year 1994 and had two

children- Karan and Arjun. The daughter's family resided at D-4/39

Sector 20, Rohini. The deceased Shashi often complained, to her

mother, that the appellant was an alcoholic who resorted to physical

violence against her. In the intervening night of 8th & 9th April, 2005 at

about 1.30 A.M., Arjun, the deceased's son, had called PW-3, on

telephone, and revealed that Shashi had received burn injuries and PW-

3 should immediately reach Brahm Shakti Hospital. PW-3, along with

her husband, reached Brahm Shakti Hospital and saw the burned body

of Shashi. Appellant Subhash was taking her to Safdarjung Hospital, on

a three-wheeler. PW-3 sat in that three wheeler scooter, with the

deceased and the appellant, while her husband Nand Kishore and son

Kamal reached Safdarjung Hospital, separately. Shashi was unconscious

in the auto and did not regain her conscious, at any later time. On 9th

April, 2005, in the evening, Karan and Arjun revealed to PW-3 that,

before the incident, the appellant had consumed liquor and had beaten

Shashi. Thereafter, the appellant poured kerosene on Shashi and set

her on fire. PW-3's statement to the police (Ex. PW3/A) bears her

signature and she stood by her stand, in the cross-examination. There

is no reason to disbelieve the statement. She vehemently denied that

Shashi had an accidental death. She reiterated that her cross-

examination was true and correct and she had not deposed a false

statement or had made a statement in anger. At the same time, we

cannot rely upon that portion of statement of PW-3, where she has

narrated what Karan and Arjun had told her, as that would amount to

hearsay.

6. The two children, Karan and Arjun, had appeared as PW-4 and

PW-17, respectively. PW-4 was aged about 12 years, when his

statement was recorded on 15th February, 2008. The Court first verified,

by putting forth few questions to PW-4, whether, in view of his age, he

was competent to be examined. In his examination-in-chief, recorded

on 15th February, 2008, he had affirmed that his father, the appellant

whom he identified in the court, consumed liquor. PW-4 disclosed that

his father had poured kerosene from a can, on his mother, and had set

her on fire. PW-4 professed that he had seen the incident. The

appellant tried to extinguish the flames when he realized that Shashi

was completely burnt. PW-4 went, outside the house, and called Vishal

(PW-10) and his mother was taken to the hospital by the appellant and

PW-10. PW-4 telephoned his grandmother, Kiran, and informed her

that his mother was being taken to Brahm Shakti Hospital. His

statement, was recorded under Section 164 Cr.P.C. on 13th April, 2005,

marked Ex PW4/A. He identified his signatures (on Ex. PW4/A) in Hindi

and English. In the cross-examination, conducted on 15th February,

2008, PW-4 denied being tutored by his maternal grandmother, though

he admitted that he was staying at his maternal grandparent's house.

In the cross-examination, interestingly, no direct questions, relating to

actual occurrence and that the appellant had not poured kerosene and

deliberately burnt Shashi, were put to him. PW-4 denied that his father

was implicated on the suggestion of his grandparents and that his

father, the appellant herein, had not burnt his mother.

7. PW-4 was recalled, for further cross-examination, on 29th

January, 2011, nearly three years after the date of earlier cross-

examination conducted on 15th February, 2008. By 29th January, 2011,

PW-4 was 15 years of age and he took a complete summersault, from

his previous statements. He purported that he and his younger brother

had slept, in the back room, by 9.00/9.20 PM, on the night of the

incident and the front room was not visible to them. In the intervening

night on 4th and 5th April, 2005, his father woke the two children up, at

12.30 or 1.00 A.M., and stated that their mother had received burn

injuries and was being taken to the hospital. PW-4 states that they

were asked to sleep in the house of Suman Aunty and he was not aware

about what had happened between his parents. He denied that there

was any quarrel between his parents and alleged that the police, when

his statement was recorded, had handed over a paper and had asked

him to narrate from that paper. PW-4 asserts, the police had

threatened him, and his brother, that they would be put behind bars, if

they don't depose accordingly and therefore, whatever he had stated

earlier, before the court, was tutored by the police. When PW-4 was

cross-examined, by the public prosecutor, he reiterated that his

statement in the court on 29th January, 2011 was correct and his earlier

statement, on 15th February, 2008, was false because the police had

threatened PW-4. However, PW-4 could not name any police officer,

who had threatened him, and agreed that he had not disclosed to the

Judge that he was being pressurized by the police. He admitted that his

statement, under Section 164 Cr.P.C., was recorded and signed by him

only after he had said that it was correct.

8. Statement of Karan (PW-17), recorded on 16th May, 2009. PW-17

averred that, on 8th April, 2005, his father came drunk to the house, at

late night, and started a quarrel with his mother. His father i.e. the

appellant asked his mother to leave and go to her parents' house, on

which, Shashi PW-17's mother, came out in the street, holding PW-17

by the hand. The father also came out and then dragged his mother

back to the house. PW-17 followed his parents to the room. His father

poured kerosene, from the can, on his mother and set her on fire.

When his mother was burning, she threw her chunni away and rubbed

her body on the wall, in order to extinguish the fire. In order to save

her, his father put a blanket over his mother. His father deliberately

got his hand and some of his body parts burnt, while hugging her. Some

boys, living near their house, were called and his mother was moved to

Brahm Shakti Hospital, on scooter. He telephoned his maternal

grandmother and informed that his mother has been moved to Brahm

Shakti Hospital. On the date of his examination, i.e. 16th May, 2009, PW-

17 was 12 years of age and, before he was examined, several questions

were put forth, to satisfy that the witness comprehends the questions

and can give rational answers. Thereafter, PW-17's cross-examination

was deferred and he was cross-examined after 11 months, on 6th April,

2010. Like PW-4, in his cross-examination on 29th January, 2011, PW-17

changed his stand obsequiously to save his father i.e. the appellant. He

purports that, on the day of the incident, his father had asked his

mother to warm the food and at that time PW-17 was not asleep. His

mother went inside the kitchen and, after few minutes, they heard his

mother crying. PW-17 rushed towards the kitchen and found that his

mother's body was in flames. His father tried to save his mother and,

hence, sustained burn injuries on his hand and belly. However, in cross-

examination, PW-17 admitted that his parents had quarreled, prior to

the incident. He was not aware as to where his mother was taken for

treatment and has stated that his mother was not set ablaze by his

father but had sustained burn injuries while warming the meal, on the

stove. According to him, his parents had a cordial relationship. He

denied that his statement was recorded by the police. He stated that

he had previously deposed before the court, at the instance of the

police, who had met him outside the court. On being re-examined by

the public prosecutor, PW-17 accepted that he had made a statement

before the Metropolitan Magistrate (PW21/C) on 13th April, 2005,

under Section 164 Cr.P.C. He denied the suggestion that he had

created a new story, at the instance of his Nani, to save his father. He

denied that he had stated incorrect facts and had disclosed correct facts

on 6th April, 2010. However, he accepted that he had not made a

written complaint, to any authority, that he had been tutored by the

police.

9. In such cases, where the witness has penchant for dithering in his

stand, his statement need not be disregarded and instead prosecution

can place reliance on the portions which give force to their submission,

provided that it is duly corroborated with evidence. This has been

expounded by the Supreme Court in Bhajju @ Karan Singh v. State of

M.P. 2012 (4) SCC 327:

"35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross- examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in- chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.

36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of

the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.

37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases:

(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat [(1999) 8 SCC 624 : 2000 SCC (Cri) 13] ,

(b) Prithi v. State of Haryana [(2010) 8 SCC 536 : (2010) 3 SCC (Cri) 960] ,

(c) Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] and

(d) Ramkrushna v. State of Maharashtra [(2007) 13 SCC 525 : (2009) 2 SCC (Cri) 427] ."

10. In Gagan Kanojia vs. State of Punjab (2006) 13 SCC 516, the

Supreme Court has held that part of the statement of a child witness,

even if tutored, can be relied upon, if the tutored part can be separated

from the untutored part, in case such remaining untutored part inspires

confidence. In such an eventuality the untutored part can be believed

or at least taken into consideration for the purpose of corroboration as

in the case of a hostile witness.

11. We have examined the statements of PW-4 and PW-17 and are

clearly of the view that the initial statements made by them should be

accepted, as they are the true and correct versions. The subsequent

statements, made by PW-4, when recalled for cross-examination on

29th January, 2011 and cross-examination of PW-17 on 6th April, 2010

do not represent the correct and true facts. In fact, there is a

contradiction in the statement made by PW-4 on 29th January, 2011 and

the cross-examination of PW-17 on 6th April, 2010. PW-4 in the cross-

examination on 29th January, 2011, has stated that he did not see

anything because he was asleep. Even the date mentioned by him is

incorrect. Similarly the time indicated by PW-4 as 12.30/1.00 A.M. is

wrong and does not match with the statement of PW-17. PW-17, on

the other hand, in the cross-examination had stated that he saw that

his mother had gone to the kitchen where she caught fire. This is

contrary to what had been stated in the MLC, that kerosene can fell on

the deceased and a burning mosquito coil was lying there which led to

accidental fire, burning Shashi. The statements of both PW-4 and PW-

17 were recorded, under Section 164 Cr.P.C., by Nirja Bhatia (PW-21)

Metropolitan Magistrate. Statements of Karan and Arjun, Ex. PW4/A

and PW20/B, have been proved by her. The two statements match and

confirm the statements made by PW-4, in the examination in chief and

cross-examination on 15th February, 2008 and examination in chief of

PW-17 on 16th May, 2009.

12. The appellant, in his statement under Section 313 Cr.P.C.,

accepted and admitted his presence in the house, on the night

intervening 8th & 9th April, 2005. He has stated that he had taken his

wife, with burn injuries, at about 1.30 AM to the hospital. The relevant

portion of the statement of the appellant under Section 313 Cr.P.C.

reads:-

"Q. 42 Have you anything else to say?

Ans. I am innocent. I have been falsely implicated in this case. On the day of incident I was sleeping and at about 12.30 a.m. I got up after hearing the cries of my wife, I saw that my wife was burning, I tried to extinguish the fire and due to that I also received burn injuries. Ultimately I succeeded in extinguishing the fire by wrapping the blanket around my wife. I took my wife to the Brahm Shakti hospital on the scooter of one Vishal and on the way to hospital my wife told me that she received burn injuries due to falling of kerosene oil and burning of mosquito coil clothes of my wife caught fire and she screamed due to burn injuries and I got up and tried to save my wife."

13. Dr. Abhishekh Sharma (PW-14), working as Senior Resident in

Safdarjung Hospital, had prepared the MLC (PW14/A). In the cross-

examination, he has stated that the patient Shashi had herself given the

alleged history, recorded in the said MLC, and at that time she was fit to

make a statement. MLC Report (Ex. PW 14-A) notes that the deceased

had suffered injury at 1.00 AM and the admission was at 3.10 A.M., on

the same date. However, it is pertinent to mention that it does not

record who had made the statement recorded therein.

14. Suman (PW-9), a neighbour, resided at D-4/24 Sector 20 Rohini,

Delhi. She deposed that the intervening night of 8th & 9th April, 2005, at

about 1.00 AM/1.30 AM, she heard cries of a male and a female.

Subhash, the appellant and their neighbour, knocked at Suman's door

and told her that his wife had received burn injuries. Subhash and her

son Vishal had taken Shashi to the hospital, on a two wheeler scooter.

Later, Vishal returned to the house and the two children had stayed in

PW-9's house from 1.30 AM to 8.00 AM of 9th April, 2005. Thereafter,

maternal uncle, of the two children, took them home. Vishal appeared

as PW-10 and made a similar statement that he, along with Subhash,

had taken Shashi to Brahm Shakti Hospital.

15. Constable Dalbir Singh (PW-11), had taken photographs (Ex.

PW11/A to PW11/E). The photographs, in question, contradict the

stand taken by the appellant. A bed is clearly visible in the photograph

PW11/A. The bed and the bed cover etc. thereon were not burnt. A

gas stove, next to the bed, is clearly visible. There are burn signs,

adjacent to the gas stove, but the stove was not burnt (see Ex. 11/E).

No almirah next to the bed is visible. A careful examination, of the

photographs, shows that personal belongings kept in the house did not

burn. Burning marks are confined to a particular spot, in the house.

The photographs contradict the defence plea that a kerosene can had

fallen and the deceased Shashi had accidently caught fire because

mosquito coil was burning.

16. ASI Chandan Singh (PW-13) has stated that he visited the

deceased, at Safdarjung Hospital, and collected her MLC Report. At

that time, the deceased was unfit for statement. Thereafter, he went

to the house of the deceased. It was open and nobody was there. He

observed smell of kerosene in the room and one yellow colour plastic

can was lying there. He found few burnt clothes and one burnt blanket

in the house. The goods were lying scattered. He recorded statement

of Kiran (PW-3), on this basis rukka was prepared and FIR was

registered. Thereafter, he recorded statement of Arjun and Karan.

Subsequently, the appellant made a disclosure statement (Ex. PW5/B)

and, on the basis of disclosure statement, one plastic can of yellow

colour was recovered from the park. In the cross-examination, he

clarified that he had not seen the plastic can of yellow colour in the

room. We may record that plastic cans are visible in the photographs

but they are of white colour. PW-13 has stated that he had forgotten

some facts in his examination-in-chief. He was recalled for further

cross-examination but there was nothing in his cross-examination to

dent or create doubt about the prosecution case. In the cross-

examination, he reiterated that no kerosene can was lying on the spot

and the yellow can was recovered on the basis of the disclosure

statement made by the appellant.

17. HC Bijender (PW-16) visited the spot i.e. the house No. D-4/39

Sector 20, Rohini and in the first room he found some burnt clothes, i.e.

shirt, baniyan, T-shirt and a blanket. Crime team was called and

photographs were taken. He did not find any eye-witness at the spot.

He remained at the spot, while the Investigating Officer had gone to the

hospital. The burnt items were smelling of kerosene and were seized.

Kiran's (PW-3) statement was recorded by the Investigating Officer.

18. HC Sunil (PW-20) was part of the investigating team, along with

ASI Chandan Singh and I.O. SHO Mohd. Iqbal. On identification, by

Nand Kishore (PW-5), the appellant was arrested at 6.10 A.M. vide

arrest memo (Ex. PW5/B). On the basis of the disclosure statement,

kerosene can, which contained some kerosene and smelled of it, was

found in the DDA Park, near the house (Seizure Memo Ex.PW5/D).

Disclosure statement of the appellant was recorded at 6.15 A.M., at the

spot, while sitting at the footpath.

19. Inspector Mohd. Iqbal (PW-24), the SHO and the Investigating

Officer, inspected the spot before the crime team reached. He has

stated that previous Investigating Officer, ASI Chandan Singh, had

partially completed investigation and had lifted few articles from the

spot i.e. burnt chunni, shirt, T-shirt and one blanket. He recorded

statement of Karan and Arjun, both sons of the appellant Subhash.

Statement of Nand Kishore (PW-5), father of the deceased, was also

recorded. Appellant Subhash was arrested at the pointing out of PW-5,

and on the basis of the statement of Subhash, the appellant, the

kerosene can was recovered from DDA park, seized vide seizure memo

Ex. PW5/D. PW-24 also proved the prosecution version and recognized

the plastic kerosene can, in the court. He has stated that, at the spot

where the incident occurred there were burn marks, on the wall and

the floor, and smell of kerosene was present.

20. There is no doubt that plastic can was recovered, in the early

morning on 9th April, 2005 at about 6.15 AM, at the instance of the

appellant. Recovery of the can is an important seizure. Crime team, as

noticed, had reached the spot immediately and they have not

mentioned regarding presence of any plastic can with kerosene. There

were no burn marks, in the kitchen and bathroom, as per Mohd. Iqbal

(PW-24). He averred that he could not record the deceased's

statement, because the Doctor told him that she was not fit for

statement.

21. Nand Kishore (PW-5), father of the deceased, had gone along

with his wife Kiran (PW-2) and son Kamal to Brahm Shakti Hospital and

to Safdarjung Hospital. His daughter Shashi was unconscious, when he

met her, and she was taken in three wheeler scooter to Safdarjung

Hospital from Brahm Shakti Hospital. On 10th April, 2005, Subhash was

arrested and, thereafter, on the basis of disclosure statement made by

him the kerosene can was recovered from the park. He has signed the

seizure memo Ex. PW5/D.

22. In view of the aforesaid discussion, we uphold the conviction of

the appellant under Section 302 IPC for having committed murder of his

wife Shashi Sharma. We also uphold the order of sentence of life

imprisonment with fine of Rs.10,000/-. We, however, modify direction

of the trial court and hold that in default of payment of fine, the

appellant will undergo simple imprisonment for two months.

23. The Child Welfare Committee is called upon and required to get

in touch with Karan and Arjun and take appropriate and required

measures as per law to ensure that they are properly educated, taken

care of and protected. Copy of this judgment will be sent to the Child

Welfare Committee. The appeal is disposed of.

(SANJIV KHANNA) JUDGE

( S.P. GARG ) JUDGE November 19th, 2012 kkb