Delhi High Court
State vs Kumari Mubin Fatima & Ors. on 29 January, 2013
Author: Gita Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 29th January, 2013
+ DEATH SENTENCE REF. 2/2012
STATE ..... Petitioner
Through : Ms. Ritu Gauba, APP.
versus
KUMARI MUBIN FATIMA & ORS. ..... Respondents
Through : Mr. Sumeet Verma, Adv. for
Gulbeg Ali.
Mr. Bhupesh Narula, Adv.
for Zulfikar Ali.
Mr. Ajay Verma with
Mr. M.L. Yadav, Ms.
Ananya Mitra and Mr.
Gaurav Bhattacharya, Advs.
for Mubin Fatima.
+ CRL.A. 474/2012
GULBEG ALI ..... Appellant
Through : Mr. Sumeet Verma, Adv.
versus
STATE ..... Respondent
Through : Ms. Ritu Gauba, APP.
+ CRL.A. 472/2012
ZULFIKAR ALI ..... Appellant
Through : Mr. Bhupesh Narula, Adv.
Death Sent.Ref.2/2012 Page 1 of 84
versus
STATE ..... Respondent
Through : Ms. Ritu Gauba, APP.
+ CRL.A. 473/2012
MUBIN FATIMA ..... Appellant
Through Mr. Ajay Verma with
Mr. M.L. Yadav, Ms.
Ananya Mitra and Mr.
Gaurav Bhattacharya, Advs.
versus
STATE ..... Respondent
Through : Ms. Ritu Gauba, APP.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
GITA MITTAL, J. (Oral)
1. By way of Death Sentence Reference No.2/2012, this court
is required to consider the legality and validity of the judgment
dated 17th March, 2012 whereby the respondents in Death
Reference no.2/2012 have been found guilty for commission of
offences under Section 302 read with Section 34 of the IPC as well
as order of sentence dated 26th March, 2012 whereby they have all
been sentenced to death penalty for commission of such offences
as well as payment of fine of Rs.5,000/- each and in case of
default, one month‟s rigorous imprisonment each.
2. The respondents have assailed the said judgment and said
order of sentence by way of the criminal appeals being
Crl.A.No.472/2012, Zulfikar Ali v. State; Crl.A.No.473/2012,
Mubin Fatima v. State; and Crl.A.No.474/2012, Gulbeg Ali v.
State. Inasmuch as the three appeals and the death reference arise
out of the same judgment based upon the same record and raise
similar questions of law and fact, we are taking them together for
consideration.
So far as reference to parties is concerned, for the purposes
of convenience, we are referring to the convicts as the respondents
in the present judgment.
Scope of consideration in a case of confirmation of sentence
3. The principles which would govern the consideration by us
of the impugned judgment as well as the sentence of death imposed
by the learned trial court on the respondents are well settled. We
may usefully refer the recent pronouncement of the Supreme Court
placed by Ms. Ritu Gauba, learned APP before this court which is
reported at (2012) 9 SCC 320, Kunal Majumdar v. State of
Rajasthan wherein the Supreme Court noticed the applicable
statutory provisions and laid down binding principles thus:-
"16. In a case for consideration for confirmation of
death sentence Under Section 366 (1) Code of
Criminal Procedure., the High Court is bound to
examine the Reference with particular reference to the
provisions contained in Sections 367 to 371 Code of
Criminal Procedure. Under Section 367, Code of
Criminal Procedure., when Reference is submitted
before the High Court, the High Court, if satisfied that
a further enquiry should be made or additional
evidence should be taken upon, any point bearing
upon the guilt or innocence of the convict person, it
can make such enquiry or take such evidence itself or
direct it to be made or taken by the Court of Sessions.
The ancillary powers as regards the presence of the
accused in such circumstances have been provided
under Sub-clauses (2) and (3) of Section 367, Code of
Criminal Procedure. Under Section 368, while dealing
with the Reference Under Section 366, it inter alia
provides for confirmation of the sentence or pass any
other sentence warranted by law or may annul the
conviction itself and in its place convict the accused
for any other offence of which the Court of Sessions
might have convicted the accused or order for a new
trial on the same or an amended charge. It may also
acquit the accused person. Under Section 370, when
such Reference is heard by Bench of Judges and if
they are divided in their opinion, the case should be
decided in the manner provided Under Section 392 as
per which the case should be laid before another Judge
of that Court who should deliver his opinion and the
judgment or order should follow that opinion. Here
again, under the proviso to Section 392, it is stipulated
that if one of the Judges constituting the Bench or
where the appeal is laid before another Judge, either of
them, if so required, direct for rehearing of the appeal
for a decision to be rendered by a larger Bench of
Judges.
xxx
18. We are, however, duty bound to state and record
that in a Reference made Under Section 366 (1) Code
of Criminal Procedure., there is no question of the
High Court short-circuiting the process of Reference
by merely relying upon any concession made by the
counsel for the convict or that of counsel for the State.
A duty is cast upon the High Court to examine the
nature and the manner in which the offence was
committed, the mens rea if any, of the culprit, the
plight of the victim as noted by the trial Court, the
diabolic manner in which the offence was alleged to
have been performed, the ill-effects it had on the
victim as well as the society at large, the mindset of
the culprit vis-à-vis the public interest, the conduct of
the convict immediately after the commission of the
offence and thereafter, the past history of the culprit,
the magnitude of the crime and also the consequences
it had on the dependants or the custodians of the
victim. There should be very wide range of
consideration to be made by the High Court dealing
with the Reference in order to ensure that the ultimate
outcome of the Reference would instill confidence in
the minds of peace loving citizens and also achieve the
object of acting as a deterrent for others from
indulging in such crimes."
4. The consideration by this court of the judgment and the
sentence imposed by the learned trial judge would abide by the
above principles.
5. As noticed above, three appeals filed by three convicts have
also been placed before us. So far as scope of consideration by an
appellate court in an appeal against the conviction is concerned, the
principles thereof have been laid down by the Supreme Court in a
judgment which has been reported as back as in AIR 1955 SC 807,
Atley v. State of Uttar Pradesh wherein the court held as follows:-
"5. It has been argued by the learned counsel for
the appellant that the judgment of the trial court being
one of acquittal, the High Court should not have set it
aside on mere appreciation of the evidence led on
behalf of the prosecution unless it came to the
conclusion that the judgment of the trial Judge was
perverse. In our opinion, it is not correct to say that
unless the appellate court in an appeal under Section
417, Criminal P.C. came to the conclusion that the
judgment of acquittal under appeal was perverse it
could not set aside that order.
It has been laid down by this Court that it is open to
the High Court on an appeal against an order of
acquittal to review the entire evidence and to come to
its own conclusion, of course, keeping in view the
well established rule that the presumption of
innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed by
the trial court which had the advantage of observing
the demeanour of witnesses whose evidence have
been recorded in its presence.
It is also well settled that the court of appeal has as
wide powers of appreciation of evidence in an appeal
against an order of acquittal as in the case of an appeal
against an order of conviction, subject to the riders
that the presumption of innocence with which the
accused person starts in the trial court continues even
up to the appellate stage and that the appellate court
should attach due weight to the opinion of the trial
court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping
those principles in mind, and comes to a contrary
conclusion, the judgment cannot be said to have been
vitiated. (See in this connection the very cases cited at
the Bar, namely, „Surajpal Singh v. The State‟, ;
Wilayat Khan v. State of Uttar pradesh‟. In our
opinion, there is no substance in the contention raised
on behalf of the appellant that the High Court was not
justified in reviewing the entire evidence and coming
to its own conclusions."
These well settled principles have guided our consideration.
Case of the prosecution
6. The instant case commences on an incident on the night
intervening 21st/22nd October, 2009. The place of occurrence is
cited as the First Floor of House No.B-22, Gali No.3, Chaman
Park, Near Bhagirathi Vihar, Delhi-110094, a property constructed
on a plot of 22 sqr.yrds.
Sub-Inspector Mukesh Kumar Jain (Draughtsman) who
appeared as PW-8 inspected the spot which allegedly was the first
floor (upper ground) of this property and prepared the scaled site
plan (Ex.PW8/A). PW-8 has stated that the passage for going from
one floor to another was only a bamboo ladder which was only
about 50 cms vide. There was therefore, no permanent or fixed
staircase even. The bamboo ladder going to the upper floors was
kept inside the house itself.
7. Perusal of the site plan - Ex.PW-8/A would show that the
property was one of a row of tenements built wall to wall with no
open space on any side. The properties were opening out on to the
narrow gali itself.
8. It is undisputed that the said property was owned by Gulbeg
Ali who was residing on the first floor (also referred to as the upper
ground floor) with his daughters Mubin Fatima and Chand Kiran.
The elder son of Gulbeg Ali, Sarfaraz was residing with his wife
Shama Praveen (deceased) and their two children on the second
floor. The ground floor was occupied by Gulbeg Ali‟s younger son
Zulfikar Ali and his family.
9. It is the case of the prosecution that on the 26th of October
2009 (Ex.PW13/A), at about 3:07:43 hrs, the Delhi Police Control
Room received information from the informant - „Shama Devi‟
from the phone no.„9312668396‟ giving her address as R-73, Gali
No.3, Brahmpuri, New Delhi-110053 that there was a „quarrel‟ at
Chaman Park, Gali No.3, B-22, Near Aksha Masjid. This
information was recorded by PW-13 - Woman Ct. Vinod Kumari
who has in the same report again noted that the incident related to a
„jhagra‟.
10. The receipt of this information has been established in the
testimony of PW-13 - Lady Ct. Vinod Kumari who filled-up this
information into the computer and dispatched it to the wireless
section wherefrom the information was transmitted to the PCR
vehicles, the concerned police station, etc. The police control room
record of the entire information regarding the occurrence in
question was proved as Ex.PW13/A on record.
11. The testimony of PW-13 is corroborated by PW-14 - Head
Constable Ravi Shankar Sharma who has stated that on the 22nd of
October 2009, he was on duty as incharge of the PCR vehicle
which was based at Pulia, Brij Puri, Near Bhagirath Vihar, Delhi.
While on duty at about 3:10 am, PW-14 received information on
his wireless sent from the control room to the effect that there was
a quarrel at B-22, Near Aksha Masjid, Gali No.3, Chaman Park,
Bhagirathi Vihar, Delhi. The witness has stated that he duly
recorded an entry with regard to the receipt of this information and
proceeded to the spot by PCR vehicle.
12. At the Police Station Gokulpuri, Delhi, on receipt of the said
information of the quarrel at the said house being House No.B-22,
Gali No.3, Chaman Park, Near Bhagirathi Vihar, Delhi-110094
from the police control room, DD No.40A was recorded at 3:10 am
on the 22nd of October 2009 as Ex.PW12/A.
This information was given to PW-16 ASI Sona Ram on the
mobile phone for taking appropriate action.
13. With regard to the situation at the spot, PW-14 HC Ravi
Shankar Sharma, incharge of the PCR, has disclosed that at the
spot, he found Gulbeg Ali, an old man was coming out of the house
followed by a lady in burning condition. PW-14 helped extinguish
the fire and put a blanket over the body of the said lady. PW-14
categorically states that Gulbeg Ali and his son Zulfikar Ali had
helped him in extinguishing the fire.
As per PW-14, when he interrogated the said lady, she had
replied that she was put on fire by her father-in-law, brother-in-law
(dewar) and sister-in-law (nanad).
14. At this stage, it is necessary to notice other contemporaneous
police documentation which has material bearing on the case. As
per the Delhi police control room report (Ex.PW13/A), the police
control room has recorded a report received from the PCR van at
03:27:57 hrs to the effect that „lady ne khud ko aag laga rakhi hai
Aag bujha di Laker GTB Hosp ja rahe hai jali avastha me baki
halat baad me‟ (which when translated reads as „Lady has set
herself alight. Fire has been extinguished. Being taken to GTB
Hospital in burnt condition. Rest of the condition later‟).
15. PW-14 - HC Ravi Shankar Sharma further disclosed that,
before reaching the spot, he had made a telephone call to the
mobile phone of the informer Shama Praveen, which was
mentioned in the information received at the control room. The
informant Shama Praveen had told PW-14 that he should reach the
spot soon as there was a quarrel at her house. PW-14 has
categorically stated that when he made the call to the informer, the
PCR van was only about 2 minutes away from the spot.
16. PW-14 - HC Ravi Shankar Sharma disclosed that not only
was Shama Praveen taken to the Guru Teg Bahadur Hospital but
Gulbeg Ali had also suffered burn injuries in the incident and was
taken to the hospital by the same PCR van.
17. As per the MLC no.A/4964/09 (Ex.PW15/A) of deceased
Shama Praveen, she reached the hospital at 4:00 am on the 22nd of
October 2009. The MLC was recorded by one Dr. Satish
Chandra, a Jr. Resident in the emergency ward. The doctor has
noted that CE examination of the patient showed that she had
suffered 100% burns all over the body; that the patient was
conscious and oriented though her pulse rate was high at 120 per
minute. The doctor was unable to record the blood pressure of the
patient because of extensive „skin stiffness‟. Given the condition
of the patient, a reference was sent to the surgery ward. One elastic
rope which was on the deceased was handed over to the duty
constable. The MLC notes that the patient had given a history of
burns by in-laws. A perusal of the MLC of the deceased
(Ex.PW15/A) shows that the deceased was referred to the surgery
ward (room no.149). There is no reference at all to the deceased
having been referred to or sent to the Burns ward.
With regard to the initial treatment administered to the
patient, it is noted that the patient was prescribed injection TT;
injection voveran; oxygenated.
18. The prosecution has also proved as Ex.PW15/B, the MLC
bearing no.C/4897/09 of Gulbeg Ali who was also taken to the
hospital by PW-14 - HC Ravi Shankar Sharma and was medically
examined at 4:20 am in the GTB Hospital. This MLC is also
recorded by Dr. Satish Chandra, Jr. Resident who has noted that
Gulbeg Ali had suffered 10% burns which involved both hands;
left thigh; and left knee. The doctor had recommended that the
patient be kept under observation in the hospital.
19. It now becomes necessary to examine the intervention of the
investigating officer in the matter. PW-16 - ASI Sona Ram has
stated that on 22nd October, 2009, he was on night emergency duty
at the police station when at about 00:15 am, a copy of DD no.40A
(Ex.PW12/A) was assigned to him to take action into the matter in
connection with a quarrel at the aforesaid House No.B-22, Gali
No.3, Chaman Park, Near Bhagirathi Vihar, Delhi-110094. PW-16
- ASI Sona Ram with Constable Sachin Yadav reached the spot
where he learnt that the injured Shama Praveen had already been
removed to GTB Hospital by the PCR officials. PW-16 inspected
the spot on the first floor of room in the said house and noticing
some incriminating evidence; he left Constable Sachin Yadav to
guard the spot while he proceeded to the hospital. In the GTB
Hospital at about 4:15 am, he collected the MLC of Shama Praveen
when it came to his notice that according to the MLC, she was fit
to make a statement. PW-16 has deposed that he informed the
Executive Magistrate on the phone that the incident had taken
place within seven years of marriage. It is in evidence that Shama
Praveen was married to Sarfaraz - PW-3 in around the year 2003-
04 and that they had two children from the marriage.
20. Reference at this stage may usefully be made to the
deposition of PW-10 - Shri P.K. Sofat, Executive Magistrate,
Seelampur, Delhi who claims to have arrived at the hospital at
about 7:00 am. PW-10 has stated that he met the injured Shama
Praveen, wife of Sarfaraz Hussain with the assistance of a police
official whose name he could not remember. The witness states
that the injured had been declared fit to make a statement and that
he recorded the statement (Ex.PW10/A) of the injured Shama
Praveen in the burns ward at about 7:50 am. PW-10 further states
that he obtained the right thumb impression of the injured at point
„A‟ on her statement. So far as the contents of the statement are
concerned, the witness testified that "whatsoever injured told to
him, same was recorded in her statement word by word by him.
The statement of injured is correct. I had read over the same to the
injured".
21. PW-10 - Shri Sofat has further deposed that after going
through the statement of the injured, he realized that action had to
be taken against the accused persons and therefore, he made an
endorsement addressed to the SHO, Police Station Gokulpuri to
take action as per the law. The witness delivered the statement -
Ex.PW10/A to a police official to hand over the same to the SHO
and left the GTB Hospital.
22. It appears that Shama Praveen could not recover and was
declared clinically dead at 2:20 am on the 23 rd of October 2009
(Ex.PW16/E).
23. The PW-16 - ASI Sona Ram, the investigating officer
informed the SDM about the death vide DD No.17A. Information
was also given to the police station Gokulpuri which was recorded
as DD No.27A at 3:50 am on the 23rd of October 2009
(Ex.PW7/A).
24. The SDM, Shri P.K. Sofat thereafter conducted inquest
proceedings and sent the body for post-mortem examination. The
post-mortem was conducted by Dr. Jyoti who was not available at
the time of recording of evidence. The post-mortem report dated
23rd October, 2009 was proved on record as Ex.PW16/E1 wherein
the doctor opined the cause of death as "shock as a result of
antemortem flame burn involving about 96% of the total body
surface area". It is important to note that as per the death
summary (Ex.PW16/E), the deceased was taken to the general
surgery emergency on 22nd October, 2009.
25. Inasmuch as, the entire edifice of the prosecution case rests
on the statement attributed to Shama Praveen claimed to have been
recorded by PW-10 - Shri P.K. Sofat, the same deserves to be
considered in extenso and reads as follows:-
"DDNo.40A Dated 22.10.09 PS Gokulpuri"
"Mein Shama Parveen patni Shri Sarfaraz Hussain nivasi makan
no.22 B Gali No.3 Chaman Park Johri Pur Delhi umar 26 saal ye bayan
karti hu ki mera vivah muslim reeti rivaz se panch baras pehle Delhi
(Brahmpuri) me hua tha mere do bachche hain ek ladka aur ladki. Main
apne sasural walon se alag dusri manzil par apne pati ke sath rehti hu
ghar jaydaad ke bantware ke sambandh me mere sasur va dewar se
jhagra hota rehta tha mere sasur mujhe aur mere pati ko property se
bedakhal karna chahte the isi baat par pehle bhi kai baar jhagra hua hai
dinak 21.10.2009 ko mere pati kaam par chale gaye the aur raat ko ghar
par nahi the aur akele bachchon ke sath apne kamre me so rahi thi waqt
kareeb 2.30 baje mera sasur Gulbeg Ali va dewar Zulfikar Ali mujhe
apne kamre me pehli manzil lay lastic ki rassi mere dewar ne mere gale
me bandh di aur nanad Mubin Fatima ne mujhe pakar aur sasur ne mitti
ka tel mujh par daalkar machis ki tilli jala jaan se marne ki niyat mujhe
aag laga di meri maut ka zimmewar mera sasur dewar evam nanad
uprokt honge.
Mein bayan apni marji se pure hosh hawaas evam bina kisi
dabav ke diye hain. Bayan parkar sun liye hain. Bayan sahi hai."
(Emphasis supplied)
Registration of FIR
26. According to PW-16 - ASI Sona Ram, at about 8:00 am, the
statement of the injured person was delivered to him by the
Executive Magistrate to take action into the matter as per law. The
witness - PW-16 has stated that he made an endorsement
(Ex.PW16/A) on the statement after registration of the FIR and
sent the same with Constable Sachin Yadav to the police station at
about 9:00 am. In this regard, our attention is drawn to the rukka
recorded by PW-16 - ASI Sona Ram at about 9:00 am on the 22nd
of October 2009 on the statement claimed to be recorded by PW-10
- Shri P.K. Sofat, Executive Magistrate disclosing commission of
offences under Sections 307/34 of IPC. The rukka was sent by
PW-16 to the police station through Constable Sachin Yadav.
Based on this rukka, FIR No.320/09 was registered under Sections
307/34 of IPC. DD No.3A was recorded at 9:20 am with regard to
the registration of the case.
Investigation
27. PW-16 - ASI Sona Ram states that he had made inquiries
from Shama Praveen but he did not record what she told him.
28. So far as the investigation into the case is concerned, PW-16
- ASI Sona Ram has stated that he had taken one sealed parcel
containing an elastic rope vide seizure memo - Ex.PW2/A which
was produced by lady Constable Karamveer from the hospital. He
proceeded from the hospital to the spot where he met Sarfaraz,
husband of the injured at the spot. PW-16 has proved the site plan
of the place of occurrence which was Ex.PW3/B prepared in his
presence which bears signatures of Sarfaraz as well as the police
officer. PW-16 directed the photographer constable Tarun Kumar
Sharma (PW-6) to take photographs. PW-16 - ASI Sona Ram and
constable Tarun Kumar Sharma (PW-6) visited the spot between
5:00 am to 5:30 am and took the photographs (Ex.PW6/A1 to
Ex.PW6/A11). The crime team which included Sub-Inspector A.S.
Yadav inspected the crime scene and advised PW-16 to lift
incriminating articles from the spot.
29. So far as the recoveries are concerned, PW-16 has deposed
that vide recovery memo dated 22nd October, 2009 (Ex.PW16/B),
he had seized burnt clothes of the injured; a match box of the make
„ship‟ containing two used match sticks; and an empty plastic
bottle of two litres having a red lid from which smell of kerosene
was coming. The witness deposed that he had also recorded the
statements of Sub-Inspector A.S. Yadav and Constable Tarun.
30. The judgment dated 17th of March 2012 rests primarily on
the finding that the accused persons had the motive for the crime
on account of a property dispute. It has based the conviction on the
finding that the deceased had made a voluntary and truthful
declaration (Ex.PW10/A) recorded by PW-10 - Shri P.K. Sofat in a
fit state of mind. The other statements attributed to the deceased
on the fateful night have not been considered material by the
learned trial judge. Both these findings have been staunchly
assailed by learned counsels for the convicts. We first take up for
consideration the challenge to Ex.PW10/A.
Fitness of the deceased
31. Mr. Bhupesh Narula, learned counsel has urged that she was
in a critical condition at the time of her admission at 4:00 am in the
GTB Hospital. Her condition was only deteriorating and she
expired on 23rd October, 2009 at 2:20 am. As per the death
summary, she had suffered 96% thermal burns which included
facial burns and respiratory burns with deep burns all over the
body. Her condition with passage of time could not have improved
and by 7:50 am when the SDM claims to have recorded her
statement, she would have certainly be more critical than when she
was admitted over four hours earlier when she was admitted to
hospital.
32. Mr. Bhupesh Narula, learned counsel has also drawn our
attention to the post-mortem report - Ex.PW16/E1 which recorded
that her lungs were congested and ademotus.
33. In this regard, Mr. Ajay Verma, learned counsel has placed
the relevant extract from Medical Jurisprudence and Toxicology by
Cox wherein it is noticed that in the survivor of burns, there may
be severe respiratory damage due to the inhalation of flame and
smoke which damage the lining of the larynx, trachea bronchi and
even deeper portion of the lung. This may itself lead to death from
respiratory insufficiency but may also be followed by severe,
sometimes fatal, respiratory infection. It is urged that in such burnt
condition the deceased would be really agitated as is evident from
her high pulse rate.
34. Learned counsels for the respondents strongly challenge the
fitness of the deceased to have made any dying declaration. It is
pointed out that PW-10 had admittedly neither taken medical
fitness of the deceased from any doctor nor verified the same in
any manner. It is pointed out that Ex.PW10/A contains no
evidence of her fitness.
35. Before dealing with this contention, we may touch upon the
well settled principles on the issue. The tests which a statement
attributed to a dead person has to satisfy before it is admissible in
evidence as a dying declaration under Section 32 of Evidence Act
are laid down in the landmark judgment of the Supreme Court in
AIR 1958 SC 22 Khushal Rao vs. State of Bombay which holds
the field. In this binding judicial pronouncement, the Supreme
Court conducted a review of the relevant provisions of the
Evidence Act as well as judicial precedents of the Supreme Court
as well as High Courts in India and laid down the principles thus :-
"16. On a review of the relevant provisions of the
Evidence Act and of the decided cases in the
different High Courts in India and in this Court,
we have come to the conclusion, in agreement with
the opinion of the Full Bench of the Madras High
Court, aforesaid, (1) that it cannot be laid down as
an absolute rule of law that a dying declaration
cannot form the sole basis of conviction unless it is
corroborated; (2) that each case must be
determined on its own facts keeping in view the
circumstances in which the dying declaration was
made; (3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker
kind of evidence than other piece of evidence; (4)
that a dying declaration stands on the same footing
as another piece of evidence and has to be judged
in the light of surrounding circumstances and with
reference to the principles governing the weighing
of evidence; (5) that a dying declaration which has
been recorded by a competent magistrate in the
proper manner, that is to say, in the form of
questions and answers, and, as far as practicable,
in the words of the maker of the declaration,
stands on a much higher footing than a dying
declaration which depends upon oral testimony
which may suffer from all the infirmities of human
memory and human character, and (6) that in
order to test the reliability of a dying declaration,
the Court has to keep in view the circumstances
like the opportunity of the dying man for
observation, for example, whether there was
sufficient light if the crime was committed at night;
whether the capacity of the man to remember the
facts stated had not been impaired at the time he
was making the statement, by circumstances
beyond his control; that the statement has been
consistent throughout if he had several
opportunities of making a dying declaration apart
from the official record of it; and that the
statement had been made at the earliest
opportunity and was not the result of tutoring by
interested parties."
(Underlining by us)
36. So far as the scrutiny which the court has to conduct and the
conclusion which could be drawn, based on a dying declaration is
concerned, in para 17, the court had observed as follows :-
"17. Hence, in order to pass the test of reliability,
a dying declaration has to be subjected to a very
close scrutiny, keeping in view the fact that the
statement has been made in the absence of the
accused who had no opportunity of testing the
veracity of the statement by cross-examination. But
once the court has come to the conclusion that the
dying declaration was the truthful version as to the
circumstances of the death and the assailants of
the victim, there is no question of further
corroboration. If, on the other hand, the court,
after examining the dying declaration in all its
aspects, and testing its veracity, has come to the
conclusion that it is not reliable by itself, and that
it suffers from an infirmity, then, without
corroboration it cannot form the basis of a
conviction. Thus, the necessity for corroboration
arises not from any inherent weakness of a dying
declaration as a piece of evidence, as held in some
of the reported cases, but from the fact that the
court, in a given case, has come to the conclusion
that that particular dying declaration was not free
from the infirmities referred to above or from such
other infirmities as may be disclosed in evidence in
that case."
(Underlining by us)
37. The issue of reliability of a dying declaration arose for
consideration before the Supreme Court in AIR 2007 SC 2020
State of Rajasthan vs. Wakteng. In this case, the dying declaration
was recorded two days after the occurrence. The doctor‟s
certificate about the mental state of the deceased was absent.
There was also no evidence as to why the magistrate could not be
called for recording the statement. The court held that such a
declaration would be unreliable. In para 15 of this pronouncement,
the Supreme Court observed thus:
"though great solemnity and sanctity is attached to the
words of a dying man because a person on the verge of
death is not likely to tell lie or to concoct a case so as to
implicate an innocent person however it cannot be
sufficiently emphasized that the court has to be careful to
ensure that the statement was not the result of either
tutoring, prompting or a product of the imagination. It
is, therefore, essential that the court must be satisfied
that the deceased was in a fit state of mind to make a
statement, had clear capacity to observe and identify the
assailant and that he was making the statement without
any influence or rancor. Once, the court is satisfied that
the dying declaration is true and voluntary, it is sufficient
for the purpose of conviction".
38. As noticed above, upon being satisfied with regard to the
admissibility of a statement attributed to a deceased, the court must
satisfy that the person making the declaration was conscious and fit
to make the statement. It is well settled that upon being so
satisfied, even an uncorroborated dying declaration can be the basis
for finding a conviction for murder. This proposition is
unassailable.
39. The Supreme Court had occasion to consider the entire
gamut of law relating to dying declarations; their admissibility and
relevance in the pronouncement reported at (2001) AIR SCW 2481
Smt. Laxmi vs. Om Praksh & Ors. In this case, the prosecution
was relying upon five dying declarations which included, firstly, a
statement alleged to have been made by the deceased to the ASI on
way from the residence of accused persons to the hospital;
secondly, a statement of the deceased to the attending doctor; a
third dying declaration alleged to have been made to the
magistrate; a fourth dying declaration made to the investigating
officer and the fifth declaration, alleged to have been made to her
brother. These five statements attributed to the deceased coming
from the mouths of different witnesses were not found worthy of
being accepted or acted upon as such dying declarations to base a
conviction thereon. It was held by the Supreme Court that none of
these statements could form the basis for conviction of the accused
persons, inter alia, for the reason that there was no medical
evidence to show that the deceased was in a fit state of mind and
physical condition to have made the statement at the relevant time
when it was recorded.
40. In Laxmi vs. Om Prakash & Ors. (supra), the Supreme
Court has pointed out that the admissibility of the dying
declaration rests on the principle of necessity. The principles
thereof have been culled out in the following terms in paras 28 and
29 of the pronouncement which shed valuable light on the issue
under examination in the present case and read as follows:-
"28. A dying-declaration not being a deposition in
Court, neither made on oath nor in the presence of
the accused and therefore not tested by cross-
examination is yet admissible in evidence as an
exception to the general rule against the
admissibility of heresay. The admissibility is
founded on the principle of necessity. The weak
points of a dying declaration serve to put the court
on its guard while testing its reliability and impose
on the court an obligation to closely scrutinise all
the relevant attendant circumstances. [see
Tapinder Singh Vs : State of Punjab
1970CriLJ1415. One of the important tests of the
reliability of the dying declaration is a finding
arrived at by the Court as to satisfaction that the
deceased was in a fit state of mind and capable of
making a statement at the point of time when the
dying declaration purports to have been made
and/or recorded. The statement may be brief or
longish. It is not the length of the statement but the
fit state of mind of the victim to narrate the facts of
occurrence which has relevance. If the court finds
that the capacity of the maker of the statement to
narrate the facts was impaired or the court
entertains grave doubts whether the deceased was
in a fit physical and mental state to make the
statement the court may in the absence of
corroborate evidence lending assurance to the
contents of the declaration refuse to act on it. In
Bhagwan Das vs State of Rajasthan -
[1957]1SCR854 the learned Sessions Judge found
inter alia that it was improbable if the maker of the
dying declaration was able to talk so as to make a
statement. This Court while upholding the finding
of the learned Sessions Judge held the dying-
declaration by itself insufficient for sustaining a
(SIC)con charge of murder. In Kako Singh @
Surendra Singh Vs State of M.P. 1982CriLJ986
: 1982CriLJ986 the dying declaration was refused
to be acted upon when there was no specific
statement by the doctor that the deceased after
being burnt was conscious or could have made
coherent statement. In Darshan Singh Vs . State
of Punjab : 1983CriLJ985 this Court found that
the deceased could not possibly have been in a
position to make any kind of intelligible statement
and therefore said that the dying declaration could
not be relied on for any purpose and had to be
excluded from consideration. In Mohar Singh and
Ors. etc. vs. State of Punjab: 1981CriLJ998 the
dying declaration was recorded by the
investigating officer. This Court excluded the same
from consideration for failure of the investigating
officer to get the dying declaration attested by the
doctor who was alleged to be present in the
hospital or any one else present".
(Emphasis supplied)
41. Mr. Sumeet Verma, learned counsel appearing for the
respondent - Gulbeg Ali has drawn our attention to the judgment of
the Supreme Court reported at (2007) 11 SCALE 477, Nallapati
Sivaiah v. Sub Divisional Officer, Guntur, Andhra Pradesh
wherein the court ruled thus:-
"28. In K. Ramachandra Reddy v. Public
Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri)
473 : AIR 1976 SC 1994] the Court having noticed
the evidence of PW 20 therein who conducted the
post-mortem that there were as many as 48 injuries
on the person of the deceased out of which there
were 28 incised wounds on the various parts of the
body including quite a few gaping incised injuries,
came to the conclusion that in view of those
serious injuries it was difficult to believe that the
deceased would have been in a fit state of mind to
make a dying declaration. It was also a case where
the Magistrate did not put a direct question to the
injured whether he was capable mentally to make
any statement. In the circumstances this Court
came to the conclusion that the Magistrate
committed a serious irregularity in "not putting a
direct question to the injured whether he was
capable mentally to make any statement". It has
been observed that even though the deceased
might have been conscious in the strict sense of the
term,
"there must be reliable evidence to show, in view
of his intense suffering and serious injuries, that he
was in a fit state of mind to make a statement
regarding the occurrence".
The certificate issued by the doctor that the
deceased was in a fit state of mind to make
statement by itself would not be sufficient to dispel
the doubts created by the circumstances and
particularly the omission by the Magistrate in not
putting a direct question to the deceased regarding
the mental condition of the injured.
29. In the case in hand before the actual recording
of Ext. P-8, dying declaration, the Magistrate (PW
7) did not seek and obtain any opinion and a
certificate or endorsement from the duty doctor as
to the physical and mental condition of the
declarant to give statement. The Magistrate did not
put any question as to whether the declarant was
making a voluntary statement and whether he was
in a fit condition to make the statement and
whether any sedatives had been administered.
xxx
35. In Laxman v. State of Maharashtra [(2002) 6
SCC 710 : 2002 SCC (Cri) 1491] a Constitution
Bench of this Court held: (SCC pp. 713-14, para 3)
"3. ... The court, however, has always to be on
guard to see that the statement of the deceased was
not as a result of either tutoring or promoting or a
product of imagination. The court also must further
decide that the deceased was in a fit state of mind
and had the opportunity to observe and identify the
assailant. Normally, therefore, the court in order to
satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up
to the medical opinion. But where the eyewitnesses
state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion
will not prevail, nor can it be said that since there
is no certification of the doctor as to the fitness of
the mind of the declarant, the dying declaration is
not acceptable. A dying declaration can be oral or
in writing and any adequate method of
communication whether by words or by signs or
otherwise will suffice provided the indication is
positive and definite. In most cases, however, such
statements are made orally before death ensues and
is reduced to writing by someone like a Magistrate
or a doctor or a police officer. When it is recorded,
no oath is necessary nor is the presence of a
Magistrate absolutely necessary, although to assure
authenticity it is usual to call a Magistrate, if
available for recording the statement of a man
about to die. There is no requirement of law that a
dying declaration must necessarily be made to a
Magistrate and when such statement is recorded by
a Magistrate there is no specified statutory form
for such recording. Consequently, what evidential
value or weight has to be attached to such
statement necessarily depends on the facts and
circumstances of each particular case. What is
essentially required is that the person who records
a dying declaration must be satisfied that the
deceased was in a fit state of mind. Where it is
proved by the testimony of the Magistrate that the
declarant was fit to make the statement even
without examination by the doctor the declaration
can be acted upon provided the court ultimately
holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of
caution and therefore the voluntary and truthful
nature of the declaration can be established
otherwise."
(emphasis supplied)
36. The Constitution Bench in its authoritative
pronouncement declared that there is no
requirement of law that dying declaration
must necessarily contain a certification by the
doctor that the patient was in a fit state of mind
especially when a dying declaration was recorded
by a Magistrate. It is the testimony of the
Magistrate that the declarant was fit to make the
statement gains the importance and reliance can be
placed upon declaration even in the absence of the
doctor provided the court ultimately holds the
same to be voluntary and truthful. The judgment
does not lay down a proposition that medical
evidence, even if available on record, as also the
other attending circumstances should altogether be
ignored and kept out of consideration to assess the
evidentiary value of a dying declaration whenever
it is recorded by a Magistrate.
37. The Constitution Bench in Laxman [(2002) 6
SCC 710 : 2002 SCC (Cri) 1491] resolved the
difference of opinion between the decisions
expressed by the two Benches of three learned
Judges in Paparambaka Rosamma v. State of
A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361]
and Koli Chunilal Savji v. State of Gujarat [(1999)
9 SCC 562 : 2000 SCC (Cri) 432] and accordingly
held that there is no requirement of law that there
should be always a medical certification that the
injured was in a fit state of mind at the time of
making a declaration and such certification by the
doctor is essentially a rule of caution and even in
the absence of such a certification the voluntary
and truthful nature of the declaration can be
established otherwise."
42. Mr. Sumeet Verma, learned counsel appearing for Gulbeg
Ali has also placed the pronouncement of the Supreme Court
reported at 2001( 3) SCALE 549, Arvind Singh v. State of Bihar
wherein also the prosecution case rested on a dying declaration
made to the mother of the deceased. In this case, the court
observed as follows:-
"17. Be it noted that the dying declaration herein has not
been effected before any Doctor or any independent
witness but to the mother who is said to have arrived at
the place only in the morning - the mother admittedly is
an interested witness: though that by itself would not
discredit the evidence tendered in Court but the fact
remains the Doctor's evidence considering the nature of
the burn posed a considerable doubt as to whether such a
statement could be made half an hour before the death of
the accused. It is not that the statement of the unfortunate
girl was otherwise not clear or there was existing some
doubt as to the exact words on the contrary the definite
evidence tendered is that there is clear unequivocal
statement from the daughter of the family that the
conjoint efforts of putting kerosene thereafter with
lighted match stick has resulted the burn injury. The
severity of the burn injury and its impact on the body
speaks volume by reason of the death of the deceased. It
is the reliance on such a dying declaration by the High
Court shall thus have to be scrutinised with certain
degree of caution.
xxx
20. Dying declarations shall have to be dealt with care
and caution and corroboration thereof though not
essential as such, but is otherwise expedient to have the
same in order to strengthen the evidentiary value of the
declaration. Independent witnesses may not be available
but there should be proper care and caution in the matter
of acceptance of such a statement as trustworthy
evidence. In our view question of the dying declaration to
the mother is not worth acceptance and the High Court
thus clearly fell into an error in such an acceptance. ...
xxx
24. ... There is no challenge by the State as against the
order of acquittal of other three accused person under
Section 304B as such we are not inclined to delve into
the matter as regards the involvement of the other three
persons but the appellant's explanation of stove-burst
being the cause of the event cannot be brushed aside. It is
undoubtedly a social and heinous crime to have the wife
burnt to death but without any proper and reliable
evidence, the law court can not by itself also justify its
conclusion in the matter of involvement of the husband;
Direct evidence may not be available but circumstantial
evidence with reasonable probity and without a snap in
the chain of events would certainly tantamount to a
definite evidence about the involvement but not
otherwise. What is the evidence available in the matter -
To put it shortly, there is none! The factum of burn injury
cannot be doubted and the subsequent unfortunate death
but that is about all. Why was the Investigation officer
not examined - No answers are forthcoming even at this
stage - but why not? Is it a lacuna? We need not dilate
thereon but the fact remains there is not a whisper in
regard thereto!"
43. It is therefore, well settled that it is not the satisfaction of the
person recording the dying declaration alone with regard to the
fitness of the persons to whom the same is attributed but the court
has to be satisfied that the person to whom the statement is
attributed, was actually in a fit state of mind and actually made the
statement which has been attributed to her.
44. In (2011) 4 JCC 2478, State v. Sanjay, the State had sought
leave to appeal against acquittal of the respondents inter alia on the
ground that the dying declaration recorded by the SDM was not
accompanied by his certification of the fitness of the deceased to
make the statement. The following observations of this court while
dismissing the State‟s petition shed valuable light on the challenge
by the respondents before us:-
"6. ... The Supreme Court held stated that there is no
obligation that the dying declaration must necessarily
contain a doctor's endorsement to the effect that the
patient or injured person is fit and in an oriented state of
mind to make a statement; as long as the person
recording it, is able to depose about it, and is credible and
trustworthy, the dying declaration can be said to have
been recorded in the circumstances, in a given case.
7. In this case, significantly, the Trial Court concluded
that the deceased had been declared fit to make the
statement at 11.30 AM in the morning, whereas the
declaration was recorded only at 03.00 PM and given the
severity of her burns, while she might have been fit to
make the statement at 11.30 AM, there was no
reassurance that she was fit to make it at 03.00 PM. The
SDM, it was held, therefore, should have obtained
certification as to her fitness right before he sought to
record her statement, at 3.00 PM. We find no infirmity or
misapplication of law in this approach. While a person,
with extensive burn injuries might be in a position to
make a statement or declaration, at the time, when she is
brought to the hospital, as long as she is conscious, the
longer the time taken in recording any statement, the
likelihood of the injured's mental condition deteriorating
is strong, given that in most cases, they are administered
sedatives to ease the pain and trauma. In such
circumstances, it would be reasonably expected that
before a dying declaration is recorded, the SDM or
responsible officer, assures that the patient indeed is in a
position to make a statement, and is conscious to do so.
The prosecution's failure to lend assurance was a serious
infirmity which cast a doubt on its version."
45. We may note that the facts in State v. Sanjay (supra) are
similar to the factual matrix placed before us.
46. Ex.PW10/A does not reflect any certification of the injured
person‟s fitness to make the statement. There is no document
accompanying the statement wherein medical information with
regard to the injured person‟s fitness to make the statement has
been given by a doctor. PW-10 has categorically stated that he had
not taken a fitness certificate of the injured from the doctor on the
paper upon which the statement of the injured was recorded. He
has volunteered that the fitness certificate was recorded by the
doctor on her medical papers and she was fit to make a statement
"as per my estimation". PW-10 has claimed that he put some
questions to the injured when he found her fit to make a statement.
He admits that he had not recorded any such questions put to the
injured on any paper. Such questions are not part of Ex.PW10/A.
The witness also states that the injured was feeling pain at the time
when he claimed to have recorded the statement. What were the
medical papers looked at by PW-10 remains a mystery.
47. PW-10 - Shri P.K. Sofat has at another stage stated that he
relied in declaration of the petitioner‟s fitness to make the
statement as recorded on her MLC. This MLC has been recorded
at 4:00 am in the morning. This witness claims to have recorded
the statement at about 7:50 am i.e. almost four hours after the
recording of the MLC. No questions appear to have been put to the
injured person which could establish her fitness to make the
statement. The above circumstances manifest that there is no
evidence which would show that the injured person was in a fit
condition to make the statement which has been attributed to her.
48. We also find that no record of the treatment given to the
injured person after she was taken to the hospital has been placed
or proved on record by the prosecution. A person who has suffered
100% burns and is suffering from muscle stiffness would be in
absolute agony and there is every possibility of pain killers and
sedatives having been administered to her. This factor renders it
even more essential that expert opinion with regard to the fitness of
the person to make a statement is taken immediately or
proximately before the recording of the statement. Certainly no
reliance can be placed on fitness taken four hours prior to the
recording of the statement of such injured person.
49. Dr. Satish Chandra, Jr. Resident in Guru Teg Bahadur
Hospital, Shahadara, Delhi-110095 who recorded the MLC was not
examined as a witness. Instead the Medical Superintendent, GTB
Hospital deputed Dr. Ravinder Singh, Chief Medical Officer who
was examined as PW-15. Dr. Ravinder Singh could merely
identify the writing and signatures of the junior doctor in „official
capacity‟ as a doctor had performed duty with him in the GTB
Hospital in those days. PW-15 has merely reproduced the contents
of the MLC in his oral deposition and has confirmed that the
patient was referred to the surgery department for further
management. PW-15 has stated that the doctors from surgery
department were called and had attended and taken the patient for
further management. Dr. Singh has categorically stated that his
deposition before the court was based only on what has been
recorded in the MLC (Ex.PW15/A and Ex.PW15/B) and that the
same were not prepared in his presence. The witness also stated
that the articles mentioned in the MLC - Ex.PW15/A (elastic rope)
had not been sealed by the concerned doctor in his presence. This
witness therefore had no personal knowledge about the condition
of the deceased or her fitness.
50. It is complained that as a result of the non-production of Dr.
Satish Chandra, Jr. Resident who scribed the MLC of the deceased,
the defence has been deprived of an opportunity to cross-examine
the doctor who has recorded the MLC with regard to his claimed
observations or the fitness of the patient to make any statement at
all or the correctness of the noting recorded by him on Ex.PW15/A.
51. Before us, the respondents have strongly assailed the fitness
of the patient to have made any kind of statement or the fact that
she was at all oriented. In this regard, our attention has been drawn
to the fact that even the MLC notes that she had suffered 100%
burns all over the body and that there was extensive stiffness of
skin while her pulse rate was 120 per minute.
52. Medical texts support the conclusion that it is not skin
stiffness, it is actually muscle stiffness.
53. Before this court, Ms. Ritu Gauba, learned APP for the State
has urged that the statement recorded by the Executive Magistrate
does not require medical certification and that the only requirement
of law is the satisfaction of the Magistrate of the fitness of the
maker of the statement. It has been contended that this satisfaction
was duly effected by PW-10. This submission is to be noted only
for the sake of rejection. In the instant case, the statement -
Ex.PW10/A does not support that the Executive Magistrate took
any steps for being satisfied about the fitness of the deceased.
There is no material at all that she was in a fit state of mind to give
the long statement which is attributed to her.
54. Ms. Ritu Gauba, learned APP for the State has drawn our
attention to chapter 13A relating to Dying Declaration of Volume
III of the Delhi High Court Rules. Rules 3,4,7 and 8 are relevant
and read as follows:-
"3. Fitness of the declarant to make the
statement should be got examined - Before
proceeding to record the dying declaration, the
Judicial Magistrate shall satisfy himself that the
declarant is in a fit condition to make a statement, and
if the medical officer is present, or his attendance can
be secured without loss of time, his certificate as to
the fitness of the declarant to make a statement should
be obtained. If, however, the circumstances do not
permit waiting or the attendance of the Medical
Officer, the Judicial magistrate may in such cases
proceed forthwith to record the dying declaration but
he should note down why he considered it
impracticable or inadvisable to wait for a doctor‟s
attendance.
4. The Statement of the declarant should be in
the form of a simple narrative - The statement,
whether made on oath or otherwise, shall be taken
down by the Judicial Magistrate in the form of a
simple narrative. This, however, will not prevent the
Judicial Magistrate from clearing up any ambiguity, or
asking the declarant to disclose the cause of his
apprehended death or the circumstances of the
transaction in which he sustained the injuries. If any
occasion arises for putting questions to the dying man,
the Judicial Magistrate should record the question also
the answers which he receives. The actual words of
the declarant should be taken down and not merely
their substance. As far as possible the statement
should be recorded in the language of the declarant or
the Court language.
xxx
7. Recording of a Dying declaration by a Police
Officer or Medical Officer - Where a dying
declaration is recorded by a Police Officer or a
Medical Officer, it shall, so far as possible, be got
attested by one or more of the persons who happen to
be present at the time.
8. Fitness of the Declarant to make a statement
to be certified by the Judicial Magistrate or other
officer concerned - The Judicial Magistrate or other
officer recording a dying declaration shall at the
conclusion of the dying declaration certify that the
declarant was fit to make a statement and it contained
a correct and faithful record of the statement made by
him as well as of the questions, if any, that were put to
him by the justice recording the statement. If the
accused or his counsel happens to be present at the
time the dying declaration is recorded, his presence
and objection, if any, raised by him shall be noted by
the judicial Magistrate or the officer recording the
dying declaration, but the accused of his counsel shall
not be entitled to cross-examine the declarant."
55. Learned counsel for the respondents have also placed
reliance on the above Rules which mandate the manner in which
the dying declaration is to be recorded. It was urged that in the
instant case, the SDM violated the Rules and proceeded in the
manner unknown to law.
56. There is no certification by PW-10 - Shri P.K. Sofat in the
instant case in compliance with Rule 8 as well. PW-10 has also
violated the mandate of Rules 3 and 4 aforenoticed.
57. The above discussion would show that clearly there is no
evidence at all that the deceased was fit to make a statement when
Ex.PW10/A was recorded.
58. The learned trial judge has therefore, erred in placing
reliance on the endorsement of fitness on the MLC - Ex.PW15/A
of the deceased. Firstly, the doctor who allegedly made such
endorsement was not examined. Secondly, even if the
endorsement of fitness at 4:00 am was correct, there was nothing
on record to show that the deceased remained fit even at 7:50 am
when PW-10 - Shri P.K. Sofat claims to have recorded the
statement.
Challenge to the language of the dying declaration
59. The PW-10 has deposed that he has recorded the statement
„word by word‟ and that the same took 15 to 20 minutes. It is
noteworthy that the investigating officer - PW-16 - ASI Sona Ram
has testified that the statement of the injured - Shama Praveen was
recorded by PW-10 on the „dictation of the injured/deceased - Smt.
Shama Praveen‟.
60. As the very name of the deceased suggests that the parties
involved were Muslim and, therefore, would be speaking in Urdu.
The SDM has claimed that he recorded the statement „word by
word‟. The statement finds use of words like „patni, niwasi, vivah,
pati, dinak, sambandh, evam, uprokt, jaan se marne ki niyat‟ are
not words used in common parlance even by a hindi speaking
person. These words would not be used by a Urdu speaking
person.
61. The tenor of the statement which records that the maker
giving „bayan‟ as well as the certification of the same statement
being voluntary, in full consciousness and without any kind of
pressure is not a statement which any lay person would make, let
alone one who has suffered 100% burns.
62. Mr. Sumeet Verma, Mr. Ajay Verma, Mr. Bhupesh Narula,
learned counsels representing the respondents in Death Reference
no.2/2012 (the appellants in the appeals) have drawn our attention
to the top of Ex.PW10/A. The document mentions the DD No.40A
as well as PS Gokulpuri thereon. PW-10 - Shri P.K. Sofat says
that he has mentioned the daily diary no.40A on Ex.PW10/A. PW-
10 has also stated that there was an overwriting in mentioning the
date on Ex.PW10/A which he had not initialled. However, PW-16
- Investigating Officer ASI Sona Ram has stated that the SDM has
mentioned the DD No.40A on the document but the date as well as
the name of the police station has been mentioned by him (PW-16)
on Ex.PW10/A - the statement attributed to the deceased.
63. Interestingly, PW-10 - Shri P.K. Sofat confirms that the
doctor estimated the injured having suffered 100% burns but in his
deposition, he challenges the same contending that it was not
correct according to his opinion.
64. Ms. Ritu Gauba, learned APP for the State strongly urged
that the deceased was removed to the GTB Hospital by PW-14 -
HC Ravi Shankar Sharma to whom she alleged that she had been
burnt by her in-laws. It is urged that such statement is also on the
MLC.
65. It is noteworthy that the learned trial court has relied upon
only the statement recorded by PW-10 as the dying declaration in
the instant case. Neither the last statement appearing on the PCR
Form - Ex.PW13/A nor the statement attributed to the deceased as
recorded on the MLC - Ex.PW15/A were rightly pressed as dying
declaration before the trial court. The learned trial judge has also
not relied upon statements attributed to the deceased by PW-3,
PW-14 or PW-16. In any case, we have commented upon the
reliability and evidentiary value thereof in our above discussion.
66. It is important to note also that it is in this MLC, recorded in
the hospital almost one hour after the incident, that for the first
time the deceased has attributed the responsibility of her condition
to her in-laws.
67. Our attention is drawn to the endorsement contained in the
form of the Police Control Room (Ex.PW13/A), more than one
hour later, at 04:27:32 hrs on the 22nd of October 2009, the
following contradictory report is recorded „Inj lady sama parveen
d/o sarfarsh r/o above age-26 years jiski sadi ko 5 sal huve hai 2
bache hai sasue, devar, v nnd ka name le rahi hai 100/- jali hui hai
add. sho moka hosp. me‟ (Translated, it reads : Injured Lady
Shama Praveen D/o Sarfaraz R/o above aged 26 years, who got
married 5 years ago, having two children blamed her father-in-law,
brother-in-law and sister-in-law. She is 100% burnt. In the
presence of Add. SHO in hospital).
68. We have noticed above, the three prior statements of the
deceased noted on the form of the Delhi Police Control Room. The
statement attributed by PW-14 as having been made by the
deceased attributing the culpability to her in-laws was more than
one hour after the incident while in the custody of the police and in
hospital and is shrouded in suspicion.
69. PW-3 - Sarfaraz while claiming absence from the scene has
attributed a statement having been made by the deceased to this
effect in his presence thereof. He discloses neither time nor place
of the statement. Given her first complaint to the police and the
first record on Ex.PW13/A at 3:07 am of a quarrel and then at
3:27:57 after the PCR van had reached, it is recorded that a lady
having self immolated herself, the third statement attributed to the
deceased blaming her in-laws is shrouded in suspicion. Even if
such statements were made the possibility of tutoring of PW-3
given the animosity nursed by him against his father and other
siblings for property, cannot be ruled out.
70. In para 118 of the trial court judgment, the learned trial
judge has recorded that the dying declaration recorded by PW-10
stood corroborated by the Police Control Form - Ex.PW13/A;
MLC - Ex.PW15/A; and the FSL report - Ex.PW17/3. We have
discussed in detail above that the Police Control Form does not
support the case of the prosecution or the dying declaration in any
manner. The doctor who is alleged to have endorsed the MLC -
Ex.PW15/A was not produced while the Forensic Science
Laboratory report does not support the prosecution.
71. In para 124 of the impugned judgment, the learned trial
judge has referred to the accused persons as caretakers of the
deceased who have acted "just to deprive her from property". We
are unable to find any factual basis for the same.
Place of recording Ex.PW10/A
72. There is important doubt urged by learned counsels for the
respondents on the recording of this statement as claimed by
PW-10 - Shri P.K. Sofat. This witness has repeatedly stated that
he reached the hospital at 7 o‟clock and recorded the statement of
the deceased in the „burns ward‟. The witness has categorically
stated that the police officials had taken him to the bed of the
injured in the „burns ward‟ of the GTB Hospital. The witness has
claimed that he contacted the doctor on duty in the „burns ward‟
for five minutes only. He reiterates that he did not visit any other
place except „burns ward‟.
73. Our attention has been drawn by learned counsels for the
accused to the categorical claim by Shri P.K. Sofat as PW-10 that
the injured person was in the burns ward; that he met the doctors in
this ward before recording her statement. It is urged that the
hospital records falsify the claim of PW-10. Our attention is drawn
to the following death summary (Ex.PW16/E) relating to Shama
Praveen recorded on 23rd October, 2009 by the doctor:-
"23/10/09 Pt. Shama Praveen age 26 y/f with CR-
No.-200925479053, MLC - Mo - a -
4964/9 was admitted in general surgery
emergency on 22-10-09 c alleged H/o
thermal burn and diagnosed as 96%
thermal burn c facial burn and
respiratory burn with deep burn all over
body. Pt. Immediately put on conservative
management O2 iv. fluids, w-antibiotics, iv
analgesic, and iv antacids Pt. was critical
as the time of admission. ICU,
ophthalmology referral were made. At
10.am pt. transferred to burn ward on
23-10-09. Pt. complained of restlessness
and cardiopulmonary resuscitation was
done. But despite of all efforts of
Medical, Paramedical and nursing staff
patient couldn‟t be revived and declared
clinically dead at 2.20 AM on 23.10.09."
(Emphasis by us)
Therefore, as per the death summary dated 23rd October,
2009 (Ex.PW16/E), the patient was critical at the time of her
admission. She was shifted to the Burns Ward of the GTB
Hospital only at 10:00 am.
74. The MLC - Ex.PW15/A shows that the patient was referred
to the surgical ward. The document proved on record establishes
that the injured was transferred to the burns ward only at 10:00 am
and not before. It is therefore, clear that PW-10 - Shri P.K. Sofat
is not even sure of the place where he met the deceased. PW-16
ASI Sona Ram has also stated that SDM reached the hospital at
about 7:00 am and recorded the statement in the burns ward. The
deceased was not in the burns ward at 7:00 am or at 9:00 am.
75. Before us learned APP for the State has submitted that the
statement of PW-10 to the effect that he recorded Ex.PW10/A in
the burns ward was a mistaken statement and deserves to be
ignored as it is only a matter of detail. Perhaps, if there were no
other circumstances casting doubt over the dying declaration, we
may have been persuaded by the learned APP to hold so.
However, we have noted above the several reasons which cast
doubt with regard to the recording of the dying declaration. It is,
therefore, not possible to agree with the learned APP.
76. Most importantly, this was not the case of the prosecution
before the trial court. A perusal of the impugned judgment dated
17th March, 2012 would show that in para 100, the learned trial
judge has also concluded that the dying declaration was recorded in
the burns ward. In our view, this finding ignores material
documentary evidence specially to the effect that the deceased had
not even shifted to the burns ward at 7:50 am where PW-10 - Shri
P.K. Sofat claimed to have recorded the statement. This finding is,
therefore, unsustainable.
77. As per the record of GTB Hospital, Shahadara, Delhi, the
injured had suffered thermal burns which were diagnosed as 96%
thermal burns with included facial burns and respiratory burns with
deep burns all over the body. The patient was critical at the time of
her admission. ICU as well as ophthalmology referrals were made.
The patient was transferred to the burns ward only at 10:00 am on
23rd October, 2009. While PW-10 - Shri P.K. Sofat claims to have
recorded the statement at 7:50 am, PW-3 - Sarfaraz Hussain has
stated that the SDM recorded the statement at 9:00 am.
Persons present when Ex.PW10/A allegedly recorded
78. As per PW-10 - Shri P.K. Sofat when he reached the bed of
the injured - Shama Praveen, no one was present near her. As
against this, PW-3 - Sarfaraz Hussain has stated that PW-16 - ASI
Sona Ram had recorded the statement of his wife (the injured
Shama Praveen) at GTB Hospital in his presence and that he had
read over her statement to his wife which was recorded by ASI
Sona Ram after 15 to 20 minutes of reaching the hospital when
ASI Sona Ram, two other police officials and he were present.
PW-3 has claimed that his elder brother-in-law Shamim Raja (PW-
4) was also present there at that time.
79. PW-3 - Sarfaraz Hussan has further stated that his wife‟s
statement was recorded after 9:00 am by the SDM in his presence.
PW-3 - Sarfaraz Hussain also states that ASI Sona Ram had
recorded the statement of his wife at the GTB Hospital in his
presence. PW-3 categorically stated that doctors had obtained the
thumb impression of Shama Praveen on her dying declaration in
his presence and that he had also put his signatures on some other
documents. PW-4 - Shamim Raja, PW-10 - Shri P.K. Sofat and
PW-16 - ASI Sona Ram do not make such a deposition. No such
statement with thumb impressions of PW-3 - Sarfaraz Hussain has
been placed before us.
80. PW-10 - Shri P.K. Sofat does not disclose the particulars of
the person who identified Shama Praveen to him. He is unable to
give the names of any doctor, nurse, police personnel or relatives in
the hospital. The respondents have doubted the testimony of PW-
10 on this short ground as well and submitted that PW-10 neither
visited the hospital nor recorded any statement of the deceased.
81. It is evident from the above discussion that the Executive
Magistrate, Shri P.K. Sofat (PW-10) has violated Rules 3 and 4 of
Chapter 13A of Volume III of the Delhi High Court Rules. There
is strength in the submission of learned counsel for the respondents
that the statement appears to be in the language of parlance used by
the police while recording statements and therefore, would support
the submission that the statement was not recorded by the PW-10
in the manner or circumstances as alleged.
82. Mr. Ajay Verma, learned counsel appearing in
Crl.A.No.473/2012 filed by Mubin Fatima and representing her in
the Death Reference no.2/2012, has urged at length that the
testimony of PW-10 - P.K. Sofat, PW-14 - HC Ravi Shankar
Sharma and PW-16 - ASI Sona Ram requires to be disbelieved. It
is contended that the above noticed circumstances cast
considerable doubt as to whether PW-10 at all visited GTB
Hospital. We may note that neither the police nor PW-10 have
produced any document which would support that he visited the
hospital at all.
83. The above discussion also shows that the time of recording
the statement; fitness of the injured person as well as the place
where the statement is claimed to have been recorded are all
doubtful. There is doubt even with regard to the persons present at
the time. PW-3 has stated that a statement was recorded by the
police officials. Looked at from any angle, the statement is not in
the language of the deceased.
Challenge to recoveries
84. As per the case of the prosecution, an elastic rope was tied
around the neck of the deceased by the accused Zulfikar Ali before
kerosene was poured over her and she was set alight.
85. We have set out hereinbefore the complete details of the
articles which were seized by the police from the spot. This
recovery in the very early hours of the 22nd October, 2009 was
effected in the presence of husband of the deceased, Sarfaraz
Hussain who has signed the recovery memo as a witness thereto.
86. The prosecution has sought to establish the recovery through
the testimony of PW-3 - Sarfaraz Hussain. The sealed parcels
were opened in the court when his statement was being recorded.
PW-3 has proved the recovery of rubber/elastic - Ex.P-1 which
was approximately 12 inch long stated to have been recovered
from neck of the deceased in the GTB Hospital. The second parcel
which was found sealed with the seal of the FSL, Rohini produced
by the MHC (M) was found containing one matchbox; some burnt
cloth pieces; having a 16 inch long electric wire and pieces of
broken bangles of sky blue and golden colour. When the matchbox
of the make „ship‟ was opened, it was found containing three used
matchsticks, 8 alive matchsticks, four broken pieces of bangles of
golden and sky blue colour which were collectively exhibited as
Ex.P-2. The prosecution has given no explanation with regard to
the discrepancy and as to how additional items which were not
mentioned in the recovery memo - Ex.PW16/B (that is the electric
wire; three, instead of two used matchsticks; broken pieces of
bangles).
87. It is important to note that PW-16 - ASI Sona Ram has
categorically testified that the matchbox (ship) had two used
matchsticks. There is also no mention of electric wire or broken
bangles either in his oral testimony or in Ex.PW1/B. The number
of used matchsticks has gone up from two to three and articles
added.
Forensic examination
88. It is in evidence that these recovered articles as well as
elastic rope allegedly found on the neck of the deceased were sent
to the Forensic Science Laboratory for a forensic examination.
89. The report dated 30th November, 2010 of the Forensic
Science Laboratory has been proved on record as Ex.PW17/B. Our
attention is drawn to the report of the forensic examination on the
following articles:-
"DESCRIPTION OF ARTICLES CONTAINED IN
THE PARCEL(S)/EXHIBIT(S)
xxx
Exhibit-„1‟ : Stretchable strip stated to be "plastic
thread".
Exhibit-„2‟ : One sealed cloth parcel sealed with the
seals of "SR". It was found to contain exhibits „2A‟ &
„2B‟ wrapped in a polythene.
Exhibit-„2B‟: One match box make SHIP
KARBORISED containing burnt & unburnt match sticks,
kept in a polythene.
Exhibit-„3‟ : One empty plastic bottle with cap.
Exhibit-„4A‟ : One partially burnt/torn kurta with dirty
stains.
Exhibit-„4B‟ : One partially burnt/torn pyajama with
dirty stains.
Exhibit-„5‟ : Bunch of hair."
90. The result of the forensic examination of these recovered
articles is as follows:-
"RESULTS OF EXAMINATION
On Chemical & GC examination, (i) Exhibits „3‟ and
„4A‟ were found to contain residue of Kerosene.
(ii) Residue of Kerosene/Petrol/Diesel could not be
detected in exhibits „1‟, „2A‟, „2B‟, „4B‟ and „5‟."
Thus as per the report of the laboratory, no kerosene was
found on plastic/elastic rope around the neck of the deceased; on
the hair of the deceased; partially burnt clothes of the deceased; or
on the matchsticks.
Improbability of prosecution case
91. Learned counsels for the accused persons have pointed out
that the impossibility of the incident having taken place in the
manner as projected before the trial court is manifest from the
claim of the prosecution that there was an elastic/plastic rope
around the neck of the deceased. As noticed above, the length of
such rope was barely 12 inch which would be much less than the
neck of the deceased person. Even if such rope was around her
neck as claimed, the prosecution has set up a case of the rope being
tied around the neck of Shama Praveen and kerosene being poured
before setting her alight. It is an admitted position that the injured
was excessively burnt when she was taken to the hospital. The
burns covered her face as well as chest area and all limbs. If the
rope had been around the neck of a person who was burning, such
plastic or elastic rope would have itself got burnt and damaged.
Both plastic and elastic are highly combustible substances. Plastic
has a very low burning threshold. The manner in which the plastic
has been recovered would by itself suggests that this rope was not
around the neck of the deceased at the time when she was burning.
92. On this aspect, we find that in the post-mortem report -
Ex.PW16/E1, the doctor has observed a ligature mark present on
the front of her neck to right side back of the neck having the total
length of 28 cms. The prosecution has not connected the rope
which was allegedly recovered with the ligature mark. It would be
difficult to use a rope of 12 inches to result in a ligature mark of 28
cms. (equal to about 12 inches). It remains a mystery as to how, if
the rope was actually around the neck of the deceased before she
was burnt, this elastic/plastic rope did not suffer any damage of
burning.
93. Learned APP for the State has submitted that there were
marks of the struggle on the body of the deceased which depicted
that homicide injuries had been imposed on her. Learned APP for
the State has urged that the presence of the plastic rope shows that
the accused tried to gag the mouth so that no cries of the victim
could be heard by the neighbours. There is no evidence to support
this. The above discussion would show that there is doubt that the
rope was around the neck of the deceased before she was set alight.
In this regard reference may be made to the testimony of PW-18 -
Dr. Meghali Kelkar who has stated that if ligature material is used
on the person of injured in burnt condition, ligature mark would
appear. Given the presence of public persons as well as arrival of
the police, it was for the prosecution to explain how such marks of
the rope appeared on the body of the deceased which they are
failed to do so.
94. No kerosene has been detected on the hair or clothes of the
deceased. The MLC also does not have any record of smell of
kerosene from the body of the deceased.
Improbability of the incident as alleged
95. We may now examine as to whether the offences could have
been committed in the manner made out in the dying declaration -
Ex.PW10/A. As per Ex.PW10/A, Gulbeg Ali and Zulfikar Ali
brought the deceased Shama Praveen to the room on the first floor;
Zulfikar Ali tied the elastic rope around the neck of Shama Praveen
and thereafter the third accused Mubin Fatima held her while her
father-in-law, Gulbeg Ali put kerosene oil on her and set her alight
with a matchstick.
96. Learned counsel for the respondent has drawn our attention
to the photographs (Ex.PW6/A1) to Ex.PW6/A11) taken by the
police of the scene of occurrence. We may note that these
photographs were put to the investigating officer - PW-16 ASI
Sona Ram who had confirmed that these photographs correctly
depicted the scene of the crime. Ex.PW6/A6 is a photograph
showing a bottle claimed to have been smelling of kerosene seized
from the spot from which kerosene was allegedly poured over the
deceased. This photograph also includes the photograph of the foot
of a child who is sleeping on a mat on the ground right next to the
bottle. The photograph - Ex.PW6/A7 of the same spot includes the
image of another child sleeping on the same mat with a similar
covering in the room. The photographs contain no sign of any
violence or an incident in which kerosene could have been poured
over a healthy adult and she could have been burnt in the room.
97. It is in evidence the Gulbeg Ali was staying with his
unmarried daughters on the first floor while Zulfikar Ali was
residing on the ground floor with one child. Only the deceased had
two children with whom she was residing. The photographs of the
room where the kerosene bottle has been found show that toys,
utensils and other articles are all lying in their places in intact
condition. There is no sign of any violence at all. It is a case of
prosecution that the photographs were taken at the earliest between
5:00 am to 5:30 am in the morning and there is no allegation of
tampering with the spot. It is, therefore, quite clear that the
deceased was not burnt in the circumstances which she has alleged
in the statement attributed to her or as sought to be established by
the prosecution.
98. Learned counsel has drawn our attention to the site plan of
the premises - Ex.PW8/A which would show that the total room
size of the first floor (including the area of the WC) was 208/228
cms. It included a WC of 67/90 cms. If the area of the WC was
taken out, space of barely about 5 feet x 7 feet is left out. The
photographs show that there was furniture and other articles in the
first floor room.
99. We have noticed in the opening of the judgment that the
property in question is a 22 sqr.ydrs. tenement in the Chaman Park,
Delhi. The property forms one in a row of similar tenements as per
the sketch of the area - Ex.PW3/B. The house has no open area
and access to the first floor (upper ground floor) as well as second
floor is by bamboo ladders. There is thus not even a staircase. The
width of the ladder as per the evidence on record is barely 50 cms.
Gulbeg Ali is stated to be 74 years of age while his son Zulfikar
Ali is also a grown up married adult of 27 years.
100. As per the site plan - Ex.PW8/A, the bamboo ladder going
to the first floor premises is shown to be of 169 cms length and 50
cms vide. It is alleged that Gulbeg Ali, father-in-law of the
deceased and Zulfikar Ali, her brother-in-law, first brought her to
the first floor from the second floor where she was set aflame. She
then came down through the ladder to the ground floor. Thus the
case of the prosecution was that the deceased came down the
ladder after she had been set aflame.
101. The incident involved three persons according to the
statement attributed to the deceased by the SDM. It is alleged that
Mubin Fatima, sister-in-law of the deceased held the deceased
while Gulbeg Ali pouring kerosene over her and set her aflame. It
is not the case of the prosecution that the hands and feet of the
deceased were tied. Any person would have responded violently to
an attempt to burn her by third parties. Given the past history of
disputes between the parties, certainly the deceased would not have
willingly come down with her father-in-law or brother-in-law. She
would also not have remained silent if efforts were made by a third
person to put kerosene over her. There is no evidence led of any
protest by the deceased. There is also no evidence of any kind of a
struggle by the deceased in either trying to free herself from the
clutches of Mubin Fatima if she had been held as alleged or of
trying to escape from the room. The prosecution case is that the
deceased was set alight in the same room where kerosene was
poured over her. There is no sign of anything burning in the room.
Most importantly that there is no explanation at all from the side of
the prosecution as to how two children continued to sleep in the
immediate proximity of such violence without being disturbed in
any manner.
102. If the deceased was burnt on the first floor and reached the
outside of the building while still burning and met PW-14, there
would have been some tell tale signs of burns. Other articles in the
room may have caught fire given the size of the room. The
bamboo ladder also remained intact.
103. As noticed above, there is not only no sign of violence in the
room but also nothing to show that the deceased has been set alight
in the room. No damage from the fire has been caused to the
bamboo ladder even. Even otherwise, it is difficult, if not
impossible for two persons to bring down another adult on this
ladder in the circumstances alleged without any protest from her
side.
104. There is evidence of several persons in the public having met
PW-14 - Ravi Shankar Sharma as well as PW-16 - ASI Sona Ram
but no neighbour has heard of any protest or noise except for the
noise when the deceased was burning.
105. It is also noteworthy that the bottle reflected in the
photographs wherefrom smell of kerosene was coming seized from
the spot was having small neck. If kerosene was poured on any
person of a bottle of such a small neck, it is inevitable that it would
have splashed on other articles or split on the floor. PW-14 - HC
Ravi Shankar Sharma and PW-16 - ASI Sona Ram claims to have
reached the spot at 3:30 am to 3:40 am. They make no mention at
all of finding any oil split on ground or anywhere else in the room.
106. The photographs show the bottle from which the smell of
kerosene was coming as lying in the room where the children of
the deceased were sleeping as well. The family of the deceased
resided on the second floor. The photographs of the first floor
show water cans lying in the premises. The photographs thus show
that no incident took place on the first floor.
107. It is left to imagination as to how Mubin Fatima held the
deceased while kerosene was being poured over her without any
kerosene spilling on to her clothes.
108. PW-3 - Sarfaraz was the only eye-witness to the occurrence
who has alleged that the incident took place on the ground floor.
Mr. Bhupesh Narula, learned counsel for Zulfikar Ali points out
that as per the alleged dying declaration and the prosecution, the
incident occurred on the first floor of the property. All these
circumstances completely belie the case of the prosecution.
109. The learned trial judge has also erred in holding that Gulbeg
Ali has not explained how and when the deceased came to the first
floor. The same is apparent from the testimony of PW-3 -
Sarfaraz, husband of the deceased detailed above.
Arrest of accused persons
110. PW-16 ASI Sona Ram has attempted to cast a doubt over the
conduct of Gulbeg Ali, his son Zulfikar Ali and daughter Mubin
Fatima after the incident. He has stated that he made a search of
the accused persons and "overpowered them from their Gali at
some distance from the spot on the pointing out of PW-3 - Sarfaraz
Hussain at about 7:30 pm on the 22nd of October 2009".
111. Surprisingly, this witness, the investigating officer states that
he was not even aware of the fact that Gulbeg Ali was removed to
the hospital by PW-14 - Head Contable Ravi Shankar Sharma and
that as per the MLC (Ex.PW15/B), he had also suffered 10% burns
and was kept under observation at the GTB Hospital. The accused
persons have alleged that they were arrested by PW-16 from the
GTB Hospital.
Explanation of the accused persons
112. It is an integral part of „fair trial‟ that the accused persons are
given an opportunity to render their explanation with regard to the
incriminating circumstances brought out against them. The statute
provides such opportunity under Section 313 of CrPC. In their
statements, the three accused persons have stated that they are
innocent and have been falsely implicated. Gulbeg Ali in this
regard has stated as follows:-
"I am quite innocent and have been falsely implicated in
the present case. I had been lifted from my house at
about 05:00 a.m. on 22.10.2009. On the intervening
night of 21st and 22nd, October, 2009, I woke up on
hearing the noise and noticed that deceased Shama
Praveen was crying and the smell of kerosene oil was
coming from her body, she was saying that today she
would get implicated all of us in the present false case
and in the meantime her husband also came but at that
time she had put herself on fire. I along with my son
Zulfikar tried to save her and in doing so I sustained burn
injuries. Someone had called PCR, which came and took
me and injured Shama Praveen to GTB Hospital and after
that my sons - Sarfraz and Zulfikar also came to GTB
Hospital. At P.S. police obtained my signatures on some
blank papers. My son Sarfraz so many times beaten my
daughters Mubin Fatima and Chandkiran. Only Sarfraz
along with deceased Shama Praveen used to quarrel with
me on claiming his share in the house, but, I always
advised them to give the same after getting marriage of
my other daughters and deceased Shama Praveen after
giving false statement got us implicated in the present
case. After the present case, since long I am in JC my
son Sarfraz along iwth Smt. Shahnaz and other took my
household goods by selling out my house. Now I have
got restered FIR No.36/2012 with Police Station
Gokalpuri against Sarfr az, Smt. Shahnaz and others u/s
420/34 IPC."
113. The other accused persons have deposed on similar terms.
In terms to question no.44, Zulfikar Ali has stated as follows:-
"I am quite innocent and have been falsely implicated in
the present case. I had been lifted from GTB Hospital at
5:00 a.m. on 22.10.2009. On the intervening night of 21 st
and 22nd, October, 2009, I woke up on hearing the noise
and noticed that deceased Shama Praveen was crying in
burnt condition and my father and sister were trying to
save her by extinguishing the fire and I also tried to save
the deceased Shama Praveen. Someone had called PCR,
which came and took my father and injured Shama
Praveen to GTB Hospital and after that I and my brother,
Sarfraz also went to GTB Hospital. At P.S. police
obtained my signatures on some blank papers. My
brother Sarfraz so many times beaten my sisters Mubin
Fatima and Chandkiran. Only Sarfraz along with
deceased Shama Praveen used to quarrel with my father
on claiming his share in the house, but, my father on
always advised them to give the same after getting
marriage of my sisters and deceased Shama Praveen after
giving false statement got us implicated in the present
case."
114. Mubin Fatima has rendered a similar explanation in the
following terms:
"I am quite innocent and have been falsely implicated in
the present case. I had been lifted from my house at
about 04:30pm on 22.10.2009. On the intervening night
of 21st and 22nd, October, 2009, I woke up on hearing the
noise and noticed that deceased Shama Praveen crying
and the smell of kerosene oil was coming from her body,
she was saying that today she would get implicated all of
us in the present false case and in the meantime her
husband also came but at that time she had put herself on
fire. My father tried to save her and in doing so he
sustained burn injuries. Someone had called PCR, which
came and took my father and injured Shama Praveen to
GTB Hospital and after that my brothers - Sarfraz and
Zulfikar also went to GTB Hospital. At P.S. police
obtained my signatures on some blank papers. My
brother Sarfraz so many times beaten me and my sister
Chandkiran. Only Sarfraz along with deceased Shama
Praveen used to quarrel with my father on claiming his
share in the house, but, my father on always advised
them to give the same after getting marriage of my other
sisters and deceased Shama Praveen after giving false
statement got us implicated in the present case."
115. It is noteworthy that the defence put suggestions on these
terms to the prosecution witnesses.
Available public witnesses not joined in the investigation
116. Learned counsels also submit that despite several public
persons being available, admittedly the police made no effort to
join them in the investigation or produce them during trial.
117. In this regard, our attention is drawn to the evidence of
PW-16 - ASI Sona Ram who has claimed that he made inquiries in
the neighbourhood of the spot and interrogated Babu Khan and two
other persons whose names he did not remember. These persons
had told the police that they had seen the injured Shama Praveen
and Gulbeg Ali being taken away by a PCR van to the GTB
Hospital. However, PW-16 had not recorded statements of these
persons. PW-16 has further stated that public persons had gathered
in front of house of the accused persons and had told the police that
the incident had occurred on the first floor but the police had not
recorded the statements of these public persons. At a later stage in
his evidence, PW-16 had stated that he had called public persons
from the vicinity including Babu Khan to join the proceedings of
sealing and seizing the articles from the spot. He claimed that no
public persons had joined investigations of the case at the spot at
the time of sealing and seizing. The investigating officer claims
that he made no inquiries from doctors whether Gulbeg Ali had
been shifted to some other place or hospital nor he made any effort
to record the statement of doctors. PW-16 - ASI Sona Ram has
stated that he had reached the spot at around 3:30 am on 22 nd
October, 2009 and he had inquired about the deceased having been
set aflame from Saleem Khan, Smt. Shehnaz and Babu Khan.
118. It is in the testimony of the investigating officer - PW-16 -
ASI Sona Ram that Shama Praveen succumbed to the burn injuries
on the 23rd of October 2009 and that FIR No.320/2009 was
originally registered under Sections 307/34 of the IPC. Section
302 of the IPC was added after the death on 23rd October, 2009.
Our attention is drawn to the statements under Section 161 of the
CrPC attributed to Sub-Inspector A.S. Yadav (PW-11) and
Constable Tarun Kumar (PW-6) as having been recorded on 22nd
October, 2009. It is pointed out that the investigating officer has
noted that the statements are dated 22nd October, 2009 yet the FIR
is stated to be one under Section 302 of the IPC. The submission is
that this fact establishes that the prosecution has concocted the case
against the accused persons.
119. No finger prints at all have been lifted from the kerosene
bottle which would have gone a long way in establishing the
culpability of the accused persons.
120. It is in evidence that apart from the three accused persons,
one Chand Kiran, another daughter of Gulbeg Ali was residing
with him. The police made no effort to join her in the investigation
or to ascertain from her the real facts. No member of the public,
which was admittedly present was joined in the investigation.
121. It is urged before us by learned counsel for the respondents
that the investigating officer deliberately did not record the
statements of these persons because their deposition supported the
defence and established their innocence.
Defence evidence ignored
122. It has been bitterly complained by learned counsels
appearing for the convicts that the learned trial judge has
completely ignored the defence evidence brought on record. Our
attention is drawn to the evidence led by the defence. The
prosecution has failed to examine these persons from the spot.
However, the defence examined two neighbours, namely, Mohd.
Usman and Babu Khan who have been referred to by the
investigating officer as well.
123. It is in the testimony of DW-1 - Mohd. Usman that he was
residing in front of the house of the deceased person on the 21 st of
October 2009. In the odd hours, he heard noise of the accused
persons. When he reached there, the deceased was crying that she
would implicate all the family members of the accused persons.
The witness stated that he saw the deceased was on fire but he was
unable to state as to who has set the deceased aflame. He stated
that the eldest son of Gulbeg Ali informed the police. In his cross-
examination by the learned APP, the witness stated that he had
heard quarrels between Sarfaraz and accused persons on the issue
of property four or five times earlier and he had intervened in the
matter earlier as well. The witness stated that Sarfaraz used to
demand his share from the house of his father. This witness has
explained that Sarfaraz was residing with his family consisting of
his wife and two children on the second floor of the house; Gulbeg
Ali with Mubin Fatima and his two other daughters were residing
on the first floor of the house and the ground floor was occupied by
Zulfikar Ali, his wife and his son.
124. DW-1 - Mohd. Usmaan has categorically stated that he had
reached the first floor of the house of the accused persons where he
had seen that the deceased was aflame. The witness clearly stated
that her husband PW-3 - Sarfaraz as well as all the accused persons
were also present there.
125. We may also note the testimony of DW-2 - Babu Khan who
corroborated the testimony of DW-1 to the effect that there was a
subsisting quarrel between Gulbeg Ali and his elder son Sarfaraz
on the issue of share in the property. Babu Khan has stated that the
deceased used to demand share of her husband from Gulbeg Ali in
his property and threatened to implicate her in-laws otherwise.
With regard to the incident on 21st October, 2009, the witness
stated that he had heard noise at about 3:00 am or 4:00 am from the
house of the accused persons and that he along with other mohalla
people reached the house of the accused. He saw that the deceased
was aflame and the three accused persons and other family
members were trying to put off the fire. As per this witness, police
officials came on the calling of Sarfaraz. The witness stated that he
had also reached the first floor of the house where the incident had
taken place. He corroborated DW-1 - Mohd. Usman‟s presence at
the spot. This witness had also stated that he had heard quarrel
about 100 times from the house of the accused persons after the
marriage of Sarfaraz who was Gulbeg Ali‟s elder son; and that
there were many complaints between the deceased and the accused
persons to the police. The witness denied the statement that
Sarfaraz was not present at the spot at the time of the incident.
The defence witnesses establish the presence of Sarfaraz
Hussain at the spot at the time of the incident and points towards
innocence of the respondents. The defence witnesses also establish
motive on the part of Sarfaraz and his deceased wife to falsely
implicate the respondents. This material evidence has been
ignored.
Testimony of PW-3 - Sarfaraz Hussain, son of Gulbeg Ali and
husband of the deceased - Shama Praveen
126. The conduct and testimony of PW-3 - Sarfaraz Hussain
makes interesting reading. He was first examined as PW-3 on the
16th of August 2010. Half way through his evidence, the learned
APP requested the court to declare him hostile and sought an
opportunity to cross-examine this witness. After commencing the
cross-examination, his further statement was deferred on the
pretext that the case property has not been received from the
Forensic Science Laboratory. This witness was thereafter not
examined for a period of almost one year till he was produced on
14th July, 2011 for his further cross-examination by the learned
APP. At the end of his cross-examination by the learned APP,
suddenly the witness stated that he wanted to volunteer a further
statement. He then volunteered a statement which was a complete
volte-face in a concerted effort to implicate his father - Gulbeg Ali,
brother - Zulfikar Ali and sister - Mubin Fatima in the commission
of the offence.
127. In his examination-in-chief on the 16th of August 2010, this
witness disclosed that on the 21st of October 2009, he was sleeping
in his house. At around 2:00 am, he heard noise of crying which
woke him. He found that his children (one son aged about 3 years
and daughter aged about 2 years) were sleeping while his wife was
missing. PW-3 claimed that he saw his wife on the ground floor
having kerosene oil on her body and a bottle of kerosene oil was
lying there. The witness categorically stated that his wife was
saying that she will kill herself and implicate her whole family. As
soon as PW-3 tried to go down to ground floor „she put herself on
fire‟. The witness claims to have put water upon her and that her
family members and his younger brother also woke up when she
cried. PW-3 also stated that he has made a call to 100 number and
PCR van came there and took his wife to GTB Hospital. In his
examination-in-chief, the witness corroborated the recovery of
articles but claims that they were recovered from the ground floor.
When cross-examined by the learned APP after having been
declared hostile, the witness denied having made any statement
dated 22nd October, 2006 in connection with the incident to the
police under Section 161 Cr.PC. He stated that he had married
Shama Praveen against the wish of his parents. The witness
admitted that he was having a property dispute with his family
members which included a civil case concerning the said dispute.
He denied that he was on duty at the time of the incident or that he
learnt about it and his wife admission in GTB Hospital later. The
witness also denied the suggestion by the learned APP that he had
told the police that in the hospital his wife told him that she had
been taken away at around 2:30 am by her father-in-law and
younger brother to their room or that his brother tied a plastic rope
around her neck while his sister - Mubin Fatima held her, his
father had poured kerosene oil and threw burning matchstick upon
her.
128. On the 14th of July 2011, the learned APP put the articles
claimed to have been seized from the spot to the witness.
Thereafter the witness stated he wanted to make a further statement
and made deposition completely contrary to his statement recorded
on 16th August, 2010. The witness deposed that his wife Shama
Praveen was beaten by his father - Gulbeg Ali, brother - Zulfikar
Ali, sister - Mubin Fatima four to five times before the present
incident; that his father was taken to the police lock-up of police
station Gokulpuri as his father has beaten his wife. So far as his
earlier statement given on 16th August, 2010 is concerned, PW-3 -
Sarfaraz stated that he had made the deposition on tutoring by the
previous counsel of the accused person and that he had written on a
paper (Ex.PW3/B) the dictation by the previous counsel of accused
persons of such deposition.
129. This witness now claimed that on 22nd October, 2009, he
was informed about his employer Sher Ali about the incident at
2:45 am when he was present on his job place in Gonda Chowk,
Delhi and that he had rushed to the GTB Hospital and met his wife.
The witness claimed that his wife had told him that the three
accused persons had put pressure on him not to go to Seelampur
Court as the matter was fixed for evidence there. This witness for
the first time stated that the wife told him that Zulfikar had tied her
neck; Mubin Fatima had caught hold her hands; and Gulbeg Ali
sprinkled kerosene and ablaze her.
130. The witness gives no time of his visit to the hospital. None
of the other witnesses mention the presence of PW-3 at the GTB
Hospital. If the deceased had actually made such a statement to
PW-3, then the same would have been on police record. It would
have been the basis of recording the FIR. It is not so.
131. It is in the evidence of PW-3 - Sarfaraz that his sister Chand
Kiran had lodged a complaint against him under Sections 107/151
of the CrPC on allegations of his beating her. PW-3 stated that he
had not beaten her but merely had "warned her not to meet his
brother-in-law, Tahir who was in JC during that period". PW-3 has
further stated that he was lodged in jail on the aforesaid complaint
under Sections 107/151 of Cr.PC. The witness Sarfaraz further
admitted the suggestion that he had beaten his sister Mubin Fatima
in the year 2009 on the accusation that she had beaten his wife
Shama Praveen 10 to 12 days before the present case.
132. It is also in the testimony of PW-3 - Sarfaraz that he was
having some property dispute with his family members which
included a civil case concerning the said dispute.
133. PW-3 has referred to a case pending in the Seelampur Court
details whereof having not been disclosed.
134. PW-3 - Sarfaraz has denied the suggestion that House No.B-
22, Gali No.3, Chaman Park, Delhi was not sold out at the time of
the statement. The witness admitted that the said property was
owned by his father. He later volunteered that the transaction
regarding the sale and purchase of the said house was completed
between his father Gulbeg Ali and one Sher Ali. The witness
claimed that he had received an amount of Rs.1,90,000/- as his
share in the sale consideration.
135. Mr. Ajay Verma, learned counsel further contended that
PW-3 - Sarfaraz, husband of the deceased has not spoken the truth
on 14th July, 2011 before this court. It is urged that the statement
of this witness that he testified on the lines suggested by an
advocate of the accused persons is absolutely false.
136. Learned counsels for the appellants have strongly urged that
PW-3 - Sarfaraz gave the true version of the occurrence in his
deposition on 16th August, 2010 when he stated that the deceased
had herself alight in a self-immolation bid with the intention of
falsely implicating her in-laws for the same. It is urged that he
turned turtle because of the dispute regarding sale of the property.
137. PW-3 has attempted to claim that the house was sold on 22nd
June, 2010 and that he had received this amount on 23 rd October,
2010. This fact is disputed by the accused persons.
138. Gulbeg Ali in the statement under Section 313 of the CrPC
has explained that he has been falsely implicated in the case and
arrested. He has further stated after the present case, since Gulbeg
Ali was in judicial custody, his son along with his wife Smt.
Shahnaz has taken his household goods and has sold his house.
139. We are informed by learned counsel for Gulbeg Ali that
Gulbeg Ali filed an application under Section 156(3) of the Cr.PC
resulting in the passing of an order dated 30th January, 2012 by the
Metropolitan Magistrate directing registration of FIR against
Sarfaraz. We are further informed that FIR No.36/2012 was
registered on 5th February, 2012 against Sarfaraz under Sections
420/34 of the IPC.
140. The above narration would show that having taken the
amount after selling the property, PW-3 - Sarfaraz completely
turned around on 14th July, 2011 and made the deposition against
his father, brother and sister.
141. Interestingly, the witness attributes neither threat nor fear or
undue influence of any kind by the previous counsel for testifying
on given lines on 16th August, 2010. On the contrary, it is a case of
the witness - PW-3 that he was inimical to the accused persons;
that there was several complaints and cross-complaints between
them including proceedings under Sections 307/151 of the Code of
Criminal Procedure and even a civil case pending. It is implausible
to say the least that such being the state of affairs between the
sides, PW-3 could have been persuaded by any person, let alone
the respondents or their lawyer, out of goodness of his heart or love
and affection for his father, brother or sister to make the first
statement which he did on oath in court.
142. PW-3 - Sarfaraz has made a false statement that he received
information of the incident at 2:45 am. There is affirmative
evidence that the incident took place at around 3:00 am.
143. It is also noteworthy that PW-16 - ASI Sona Ram has stated
that he met the husband of the deceased Shama Praveen on the spot
in the early hours of morning. PW-3 - Sarfaraz in his statement on
16th August, 2010 has also admitted his presence in the house at the
time of the incident. The same is corroborated by several other
pieces of evidence. Recoveries were effected in his presence from
the spot in the early hours. Both DW-1 - Mohd. Usman and DW-2
- Babu Khan have stated that Sarfaraz was present at the spot.
These statements would support the presence of Sarfaraz at the
spot at the time of incident and laying credence to the testimony
given by him on 16th August, 2010 as the truthful account of what
transpired. The same is also supported by the evidence of the
photographs which show that two sleeping children were present in
the room. It is noteworthy that PW-3 claimed to be engaged in the
work of nickel plating. It is urged that such work is taken during
the day hours.
144. We are persuaded to accept the submissions of learned
counsels for the respondents. In this regard, we find that PW-3 -
Sarfaraz had originally testified on 16th August, 2010. He
thereafter kept quiet for a period of almost one year till his further
examination was conducted on 14th July, 2011. Sarfaraz has placed
on record with regard to other complaints and litigations between
him and his father, brother and sister. Therefore, he is not a person
who did not have legal assistance or did not know court
proceedings. Before the trial court, PW-3 had the assistance of the
police as well as the prosecutor. His very silence till 14th July,
2011 would show that his testimony to the effect that he had given
an incorrect statement in his deposition on 16th August, 2010 at the
instance of an advocate for the accused persons is unreliable and
unworthy of any credence.
145. So far as PW-14 - HC Ravi Shankar Sharma is concerned, a
perusal of his cross-examination would show that he has made
considerable improvements in his prior statements under Section
161 of the Cr.PC by the investigating officer. He was repeatedly
confronted with different portions of court testimony vis-à-vis
statement under Section 161 of the Cr.PC (Ex.PWD/A). The
witness had not made any disclosures in Ex.PWD/A. The
omissions include the important circumstances as to the alleged
declaration made by the deceased implicating her father-in-law,
brother-in-law and sister-in-law for the commission of offence and
other important facts which were stated by him in court. Mr. Ajay
Verma, learned counsel for Mubin Fatima has drawn our attention
to the fact that his statement under Section 161 of the Cr.PC
(Ex.PWD/A) also makes a reference to Section 302 of IPC and it is
contended that clearly the statement was recorded after the
deceased had died.
146. We may note that PW-14 has proved the Police Control
Form - Ex.PW13/A which contains four statements attributed to
the deceased. The first two are telephone calls received at 3:07:43
hrs. The second report at 3:27:57 hrs is after the police reached the
spot refers to a self immolation bid by a lady. It is only after the
deceased had been admitted to GTB Hospital that at 4:27 am, the
allegation of burning surfaces for the first time. Such allegation is
also unsupported by any evidence of fitness of the deceased or any
other witnesses to the statement. The three prior statements are
supported by the other evidence on record.
147. There are several gaps in the case of the prosecution as
noticed above. One material factor established from the record of
the police control room is a fact that the deceased made a telephone
call at 3:00 am to the police control room complaining of a quarrel
at the premises. She made another phone call to the police within
three minutes thereafter, barely about two minutes before the
police reached there. The prosecution has set up a case that three
grown up adults were involved in the incident and were pitched
against one lady, i.e., the deceased. How would three persons bent
upon burning a lady to death, permit her to use her telephone to
call the police, not once but twice over? This story is implausible
to say the least.
148. Learned counsels for the respondents have suggested that the
unfortunate incident was a result of bad planning at the instance of
the deceased and her husband Sarfaraz who had set up a facade of
her being burnt at the hands of the respondents so as to falsely
implicate them in a criminal case because of the motive of
grabbing the immovable property owned by Gulbeg Ali. It is
submitted that for this reason, the deceased appears to have made
the first phone call to the police to seek the police action before
pouring kerosene over herself as is manifested from the statement
made by PW-3 - Sarfaraz on the 16th of August 2010 in court. She
confirmed that police was underway by the second telephone call
before setting herself alight. Learned counsel for the respondents
have suggested that the deceased least expected that she would
suffer burns of the nature or extent which would take her life in this
incident.
149. Learned counsel for the respondents have also vehemently
urged that the investigation in the instant case is shoddy and the
prosecution has failed to gather vital information and evidence
which would have established the innocence of the respondents. It
is contended that the prosecution failed to prove the call details of
telephone no.9312668396 and failed to produce the doctor who had
recorded the MLC. It is contended that the treatment chart of the
deceased was also not produced which would have established that
she had been administered sedatives and was not in a fit condition
to make any statement.
Motive and intention
150. So far as motive is concerned, it has been vehemently
contended by Ms. Ritu Gauba, learned APP for the State that the
respondents had motive to kill the deceased for the reason that she
had married Sarfaraz son of Gulbeg Ali against their will. This
motive however was not the case of the prosecution before the
learned trial judge. We may also notice that the marriage appears
to be more than four years old. Furthermore documentary evidence
was led with regard to the palpable animosity nursed by PW-3 -
Sarfaraz and the deceased against Gulbeg Ali and the other family
members on account of property dispute.
151. The prosecution attempted to establish the property dispute
as the motive for killing the deceased. The trial judge accepted this
suggestion. However, in drawing this conclusion, a material factor
has been completely lost sight of. The property was owned by
Gulbeg Ali. It was Sarfaraz, husband of the deceased who was
seeking his share therein. Mubin Fatima or Zulfikar Ali, the other
children of Gulbeg Ali were placed similarly as Sarfaraz. Shama
Praveen had no right or claim in or against the said property. If the
property dispute was the motive being nursed by the accused
persons, then killing Shama Praveen achieved no purpose at all
inasmuch as the claim of Sarfaraz would have survived and
subsisted. On the contrary, the evidence on record supports the
defence to the effect that the deceased had set herself aflame with
the intention of falsely implicating her father-in-law and his other
children with the intent to grab the property. Unfortunately, the
plan misfired and she suffered burns which led to her death.
152. Learned APP for the State has tried to suggest that Shama
Praveen (deceased) was married to PW-3 - Sarfaraz against the
wishes of the accused persons for which reason as well they had
put her on fire. This was not the case of the prosecution before the
trial court. Such a case was not even put to the accused persons.
Conclusion
153. It is well settled that dying declaration is a substantive piece
of evidence which can be relied on, provided it is established that
the same was made voluntarily and truthfully by a person who was
in a fit state of mind. If so made, conviction can be based on the
dying declaration. Medical evidence and surrounding
circumstances cannot be ignored and kept out of consideration by
the court placing exclusive reliance upon the testimony of a person
recording the dying declaration.
154. In the instant case, if the statements attributed to the
deceased are kept aside, there is no evidence at all to support the
case of the prosecution. There is no reliable evidence at all to
establish that the deceased was in a fit state of mind at the time of
making the statements attributed to her. Furthermore, the
respondents have examined witnesses in their defence who have
cast considerable doubt on the correctness of the case sought to be
established by the prosecution.
155. The unfolding of the evidence or the offence as suggested by
the prosecution are not supported by the spot inspection; the site
plan proved by the prosecution on record. The entire incident is
falsified by the photographs which have been taken by the police at
the spot very shortly after the alleged incident.
156. We have also noticed above that the prosecution has failed to
produce the members of the public who were available at the spot
when the incident took place. The doctors who examined the
deceased have not been examined.
157. It is settled law that if there is some material on record which
is consistent with the innocence of the accused which may be
reasonably true, even though it is not positively proved to be true,
the accused would be entitled to acquittal. In (1973) 2 SCC 793
Shivaji Sahabrao Bobade vs. State of Maharashtra, the Supreme
Court had stated that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to the accused
should be adopted.
Sentencing
158. Before parting with the case, it is essential to notice and
comment on the manner in which the learned trial court has
proceeded in passing the order on sentence. Our attention has been
drawn to para 129 of the judgment dated 17th March, 2012 wherein
the trial court has observed as follows:-
"129. Since it has been established that death of
deceased, helpless Shama Praveen had been caused by
extreme brutal act of accused persons while setting the
deceased under fire just to crush her voice for demanding
her rights. It is very shameful for a society where woman
including girls have been victimizing either inside or
outside the four walls of house which cannot be
permitted or allowed for anyone to cause death of any
person in such a cruel manner. Woman must be
respected everywhere. "Jahan istri ka samman hota
hai waha devta vaas karte hai".
159. It has therefore been observed in para 130 that a dying
declaration enjoys almost a sacrosanct status, as a piece of
evidence, coming as it does from the mouth of the deceased victim.
160. Thereafter while recording an order on sentence dated 26 th
March, 2010, the learned trial court has noted the following
factors:-
(i) Kumari Mubin Fatima is a young lady.
(ii) Zulfikar Ali is aged about 26 years at that time and was
having a responsibility of his wife and a minor child.
(iii) The convict Gulbeg Ali is an old age man.
(iv) All the convicts belong to a poor family.
(v) The convicts were not having previous convictions and had
crystal clear antecedents.
161. The order on sentence of death is premised on the learned
judges‟ view that convicts were involved in a murder of helpless
woman committed in an extreme brutal manner which stood
established by the dying declaration of the deceased. So far as the
motive was concerned, reference was made to litigation between
the deceased and accused person over the property. The brutality
of the crime was concluded from the „way of killing‟. The learned
trial judge has observed that „pain and suffering of the deceased
while burning could be felt‟. It was further observed that the
accused persons had been the „caretaker of the deceased and they
must have some alternative way to resolve the dispute in the family
and in order to crush the voice of the deceased with the common
intention set the deceased on fire‟.
162. The learned trial judge simply observed that the mitigating
circumstances for sentencing the accused persons are not sufficient
to consider for lenient view and that „faith of caretaker will be lost
and if the court keeps silence without any action then system of
justice delivery would be collapsed and that the brutal act of the
accused persons comes under the category of „rarest of rare cases‟.
We may observe that the judge has noticed the pronouncement of
the Supreme Court reported at (1980) 2 SCC 684, Bachan Singh v.
State of Punjab as well as (1983) 3 SCC 470, Machhi Singh v.
State of Punjab.
163. So far as the sentencing is concerned, we may refer to the
discussion by the Supreme Court in a recent judgment reported at
(2012) 11 SCALE 140, Sangeet & Anr. v. State of Haryana
wherein the court considered the entire gamut of judicial
pronouncements on the award of death sentences as well as the
sentencing policy and inter alia concluded as follows:-
"80. The broad result of our discussion is that a relook is
needed at some conclusions that have been taken for
granted and we need to continue the development of the
law on the basis of experience gained over the years and
views expressed in various decisions of this Court. To be
more specific, we conclude:
1. This Court has not endorsed the approach of
aggravating and mitigating circumstances
in Bachan Singh. However, this approach has
been adopted in several decisions. This needs a
fresh look. In any event, there is little or no
uniformity in the application of this approach.
2. Aggravating circumstances relate to the crime
while mitigating circumstances relate to the
criminal. A balance sheet cannot be drawn up for
comparing the two. The considerations for both are
distinct and unrelated. The use of the mantra of
aggravating and mitigating circumstances needs a
review.
3. In the sentencing process, both the crime and the
criminal are equally important. We have,
unfortunately, not taken the sentencing process as
seriously as it should be with the result that in
capital offences, it has become judge-centric
sentencing rather than principled sentencing.
4. The Constitution Bench of this Court has not
encouraged standardization and categorization of
crimes and even otherwise it is not possible to
standardize and categorize all crimes.
5. The grant of remissions is statutory. However,
to prevent its arbitrary exercise, the legislature has
built in some procedural and substantive checks in
the statute. These need to be faithfully enforced.
6. Remission can be granted Under Section 432 of
the Code of Criminal Procedure in the case of a
definite term of sentence. The power under this
Section is available only for granting "additional"
remission, that is, for a period over and above the
remission granted or awarded to a convict under
the Jail Manual or other statutory rules. If the term
of sentence is indefinite (as in life imprisonment),
the power Under Section 432 of the Code of
Criminal Procedure can certainly be exercised but
not on the basis that life imprisonment is an
arbitrary or notional figure of twenty years of
imprisonment.
7. Before actually exercising the power of
remission Under Section 432 of the Code of
Criminal Procedure the appropriate Government
must obtain the opinion (with reasons) of the
presiding judge of the convicting or confirming
Court. Remissions can, therefore, be given only on
a case-by-case basis and not in a wholesale
manner.
81. Given these conclusions, we are of the opinion that in
cases such as the present, there is considerable
uncertainty on the punishment to be awarded in capital
offences-whether it should be life imprisonment or death
sentence. In our opinion, due to this uncertainty,
awarding a sentence of life imprisonment, in cases such
as the present is not unquestionably foreclosed. More so
when, in this case, there is no evidence (contrary to the
conclusion of the High Court) that Seema's body was
burnt by Sandeep from below the waist with a view to
destroy evidence of her having been subjected to sexual
harassment and rape. There is also no evidence (again
contrary to the conclusion of the High Court) that
Narender was a professional killer."
164. On the same aspect, reference requires to be made to another
pronouncement of the Supreme Court reported at (2012) 12
SCALE 112, Oma @ Omprakash & Anr. v. State of Tamil Nadu.
In this judgment, the Supreme Court noticed certain prior judicial
pronouncements in the following terms:-
"50. In Lehna v. State of Haryana : (2002) 3 SCC 76 a
three-Judge Bench, after referring to the pronouncements
in Bachan Singh (supra) and Machhi Singh (supra),
ruled under what circumstances the collective conscience
of the community is likely to be shocked. We may
fruitfully quota a passage from the same:
"A convict hovers between life and death when the
question of gravity of the offence and award of
adequate sentence comes up for consideration.
Mankind has shifted from the state of nature
towards a civilized society and it is no longer the
physical opinion of the majority that takes away
the liberty of a citizen by convicting him and
making him suffer a sentence of
imprisonment. Award of punishment following
conviction at a trial in a system wedded to the rule
of law is the outcome of cool deliberation in the
court room after adequate hearing is afforded to
the parties, accusations are brought against the
accused, the prosecuted is given an opportunity of
meeting the accusations by establishing his
innocence. It is the outcome of cool deliberations
and the screening of the material by the informed
man i.e. the Judge that leads to determination of
the lis.
The principle of proportion between crime and
punishment is a principle of just desert that serves
as the foundation of every criminal sentence that is
justifiable. As a principle of criminal justice it is
hardly less familiar or less important than the
principle that only the guilty ought to be punished.
Indeed, the requirement that punishment not be
disproportionately great, which is a corollary of
just desert, is dictated by the same principle that
does not allow punishment of the innocent, for any
punishment in excess of what is deserved for the
criminal conduct is punishment without guilt."
(Emphasis added)
165. On the manner in which, the learned trial judge must
proceed, the Supreme Court observed as follows:-
"56. In Hindustan Times Ltd. v. Union of India and
Ors. : (1998) 2 SCC 242, a two-Judge Bench of this
Court referred to an article On Writing judgments,
by Justice Michael Kirby of Australia (1990) 64 ALJ
691) wherein it has been highlighted, apart from any
facet that the legal profession is entitled to have, it
demonstrated that the Judge has the correct principles in
mind, has properly applied them and is entitled to
examine the body of the judgment for the learning and
precedent that they provide and further reassurance of the
quality of the judiciary which is the centre-piece of our
administration of justice. Thus, the fundamental
requirement is that a Judge presiding over a criminal trial
has the sacrosanct duty to demonstrate that he applies the
correct principles of law to the facts regard being had to
the precedents in the field. A Judge trying a criminal case
has a sacred duty to appreciate the evidence in a seemly
manner and is not to be governed by any kind of
individual philosophy, abstract concepts, conjectures and
surmises and should never be influenced by some
observations or speeches made in certain quarters of the
society but not in binding judicial precedents. He should
entirely ostracise prejudice and bias. The bias need not be
personal but may be an opinionated bias."
166. Unfortunately, in the case in hand, the learned trial judge has
completely misdirected itself in convicting the appellants as well as
the order on sentence.
167. We may also notice a pronouncement of the Supreme Court
reported at (2012) 12 SCALE 407, Sandesh @ Sainath Kailash
Abhang v. State of Maharashtra wherein the court has noticed the
judgment of Sangeet & Anr. (supra). So far as the circumstances
which are required to weigh with the court while awarding the
death penalty is concerned, the principles laid down in this
judgment in para 24 read as follows:-
"24. We have already noticed that it is not possible to lay
down as a principle of law as to in which cases the death
penalty should or should not be imposed. The above
judgments are on their own facts, but one aspect that
certainly is stated in these judgments is the possibility of
the accused being reformed, he being young and having
no criminal involvement in similar crimes are relevant
considerations. In the present case the prosecution had
led no evidence to show that the Appellant was a
hardened criminal and there was no possibility of his
being reformed. There is also no evidence to show that
during the time when he was in jail, his conduct was
unworthy of any concession. It is a heinous and brutal
crime that the accused has committed, but other relevant
considerations outweigh it for the Court to state that the
present case is one that of rarest of the rarest of rare
cases."
168. In the case in hand, no evaluation of the aggravating and
mitigating circumstances effected. The learned trial judge has not
even considered the aspect of possibility of reformation of the
appellants while awarding the death penalty to the appellants.
169. In view of the above discussion, we have no hesitation in
holding that the impugned judgment dated 17 th March, 2012 and
order on sentence dated 26th March, 2012 are not sustainable in
law. The same are hereby set aside and quashed. The respondents
in Death Reference No.2/2012 who are appellants in
Crl.A.Nos.472/2012, 473/2012 and 474/2012 are hereby directed to
be set at liberty forthwith. The death reference is answered and the
Crl.A.Nos.472/2012, 473/2012 and 474/2012 are allowed in the
above terms.
GITA MITTAL, J
J.R. MIDHA, J
JANUARY 29, 2013
aj
