Shakuntala vs State (G.N.C.T. Of Delhi)
2013 Latest Caselaw 3011 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 3rd MAY, 2013
                                DECIDED ON : 17th JULY, 2013

+                         CRL.A. 1060/2011

       SHAKUNTALA                                      ....Appellant
               Through :        Mr.R.K.Dikshit, Advocate & Ms.Nandita
                                Rao, Advocate.

                                versus

       STATE (G.N.C.T. OF DELHI)                          ....Respondent
                 Through : Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. Shakuntala (the appellant) challenges correctness of a

judgment dated 03.01.2011 of learned Additional Sessions Judge in

Sessions Case No. 68/2009 arising out of FIR No. 480/2008 PS Jahangir

Puri by which she was held guilty for committing offence punishable

under Section 304 Part-I IPC. By an order dated 10.01.2011, she was

sentenced to undergo RI for seven years with fine ` 5,000/-.

2. Allegations against the appellant- Shakuntala were that on

the night intervening 25/26.09.2008 at about 01.30 A.M. she poured acid

on her husband Rattan Lal at jhuggi No. A-408, behind ITI, K Block,

Jahangir Puri. Daily Diary (DD) No.5B (Ex.PW-9/A) was recorded at PS

Jahangir Puri at 02.29 A.M. after getting information from Duty HC

Umed Singh, Babu Jagjivan Ram Memorial Hospital (in short BJRM

Hospital) that Rattan Lal's wife had poured acid on him and he was

admitted at BJRM Hospital. The investigation was assigned to ASI

Vijender Singh who with Const. Devender went to the spot. He recorded

Rattan Lal's statement in the hospital after declared fit to make statement.

In his statement (Ex.PX), Rattal Lal disclosed to the Investigating Officer

that at 01.30 A.M. his wife Shakuntala poured acid on him. He also

attributed motive for causing burn injuries with acid by her. ASI Vijender

Singh lodged First Information Report for commission of offence under

Section 326 IPC. Rattan Lal succumbed to the injuries on 28.09.2008.

Post-mortem examination was conducted on the body. During

investigation, statements of the witnesses conversant with the facts were

recorded. Shakuntala was arrested. The exhibits were sent to Forensic

Science Laboratory and report was collected. After completion of

investigation, a charge-sheet was submitted against the appellant-

Shakuntala for committing the offence under Section 304 Part-I IPC. She

was duly charged and brought to Trial. The prosecution examined sixteen

witnesses to prove her guilt. In her 313 statement, she pleaded false

implication. On appreciating the evidence and after considering the rival

contentions of the parties, the Trial Court, by the impugned judgment,

held the appellant guilty under Section 304 Part-I IPC and sentenced her.

Being aggrieved, she has preferred the appeal.

3. The appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon hearsay evidence. It ignored the vital

discrepancies and contradictions in the testimonies of the prosecution

witnesses without valid reasons. In her 313 statement, the appellant

specifically disclosed as to how and under what circumstances Rattan Lal

sustained burn injuries in the bathroom. However, the defence version was

not given any weightage. The Investigating Officer did not make sincere

efforts to record victim's statement under Section 164 Cr.P.C. by SDM/

MM. He did not associate doctors or nurses on duty while recording the

alleged dying declaration of the victim. It is unclear that the victim was in

a fit state of mind to make statement (Ex.PX). The prosecution witnesses

have given inconsistent version regarding lock put outside the jhuggi

where the incident occurred. Dying declaration recorded by the

Investigating Officer is not reliable and cannot be acted upon. The

prosecution did not establish appellant's motive to pour acid upon her

husband. Recovery of the articles is doubtful. The appellant did not flee

the spot and was present in the hospital. The mattress was not found burnt.

The source from where the acid was procured could not be established.

Learned APP for the State urged that testimony of PW-1 (Naveen), PW-3

(Chandu) and PW-10 (Islam) coupled with dying declaration (Ex.PX)

recorded by the Investigating Officer at the first instance are sufficient to

establish the guilt of the accused.

4. I have carefully considered the submissions of the parties and

have examined the relevant materials. It is not under challenge that Rattan

Lal and Shakuntala lived together at jhuggi No. A-408, K Block, Jahangir

Puri. It is also not in controversy that at the time of incident on the night

intervening 25/26.09.2008 only the victim and Shakuntala were present

inside the jhuggi. In her 313 statement, she admitted that on 25.09.2008

her husband Rattan Lal came at the jhuggi at night. She did not claim if

anybody else was present that night inside the jhuggi. It is also not

disputed that Rattan Lal sustained burn injuries due to acid on his body.

She however pleaded that on that night Rattan Lal came drunk at the

jhuggi and had sexual intercourse with her. After the sexual intercourse,

she went inside the bathroom to pass urine. Rattan Lal who was naked and

under the influence of liquor, came in the bathroom; tried to pull her and

abused her. In the process, the plastic can lying on the shelf in the

bathroom fell down and the acid fell on him. Rattan Lal kept abusing her

and tried to throw the acid on her. Some acid fell on her clothes. With

great difficulty, she managed to escape, came out of the jhuggi and went

to the police station after locking the door of the jhuggi from outside. She

was falsely implicated thereafter by the police. The defence was taken for

the first time by the appellant in her 313 statement only. No such question

was put in the cross-examination of any prosecution witnesses examined

before the Court. The appellant did not produce any witness from the

neighbourhood in defence to substantiate her defence. She alleged that the

appellant had come to the jhuggi that night after consuming liquor and

was under its influence when he sustained burn injuries. MLC (Ex.PW-

14/A) was made/ written when Rattan Lal went to BJRM Hospital on

26.09.2008 at 02.15 A.M. It (MLC) does not reveal if there was smell of

alcohol or the victim was under the influence of alcohol. No such

suggestion was put to PW-14 (Dr.Seema) in the cross-examination. PW-

15 (Dr.Amit Sharma) who conducted post-mortem examination on the

body also did not find any alcohol. It falsifies the appellant's plea that the

victim was under the influence of alcohol at the time of occurrence. When

the victim had sexual intercourse with her (the appellant) with her consent

as alleged, there was no occasion for the victim thereafter to follow her in

the bathroom where she had gone to pass urine and to pick up quarrel with

her without any apparent reason. She did not elaborate as to what had

prompted the victim to quarrel with her in the bathroom. She was

medically examined on 26.09.2008. MLC (on record) shows that no

injuries due to acid were found on her body. The defence version inspires

no confidence and deserves outright rejection. Had the victim sustained

injuries due to fall of acid accidently, natural conduct of the appellant

would have been to raise alarm and to take him to the hospital at the

earliest. She was not expected to close the door of the jhuggi and to run to

the police station as alleged. This conduct is quite unreasonable and

unjustified.

5. PW-10 (Islam) lived in a jhuggi adjacent to the appellant's

jhuggi and run a shop selling DVDs at C Block, Jahangir Puri. He

deposed that on the night intervening 25/26.09.2008 at about 01.30 A.M.

on hearing cries, he came out of the jhuggi and saw Rattan Lal coming out

of his jhuggi. He was naked and was shouting that his wife Shakuntala

had poured tejab on her. He then ran to BJRM Hospital. He was shouting

that his wife had locked him after pouring acid on him. He further

deposed that quarrels used to take place between the accused and her

husband and she suspected him (Rattan Lal) of having illicit relation with

other woman. In the cross-examination, he fairly admitted that acid was

not poured in his presence. He himself did not open the door of the jhuggi.

He came to know from others that the accused used to suspect her

husband having illicit relation with another woman. Over all testimony of

this witness reveals that from the victim himself, he came to know that

Shakuntala, his wife, had poured acid on him. Presence of the witness at

the spot being neighbour is quite natural and probable. It was natural for

him to come out of jhuggi after hearing the cries at odd hours. He saw

Rattan Lal running naked towards BJRM Hospital. Material facts deposed

by him remained unchallenged in the cross-examination. PW-3 (Chandu)

in his testimony also spoke about his presence that time. MLC (Ex.PW-

14/A) corroborates his version as Rattan Lal admitted himself in the

hospital at 02.15 A.M. PW-3 (Chandu) another witness living in the

neighbourhood also deposed on similar lines. He also stated that at about

01.30 - 02.00 A.M. on the night intervening 25/26.09.2008, he came out

of his jhuggi after hearing Rattan Lal's screams and saw that he (Rattan

Lal) was running out of his jhuggi and was naked that time. He had burn

injuries on abdomen due to acid and was shouting 'Shakuntala ne mere

uper tejab dal diya'. In the cross-examination, he admitted that the acid

was not thrown upon the victim by the appellant in his presence. He

elaborated that the police came at the spot at 03.00 A.M. and by the time

the injured had already gone to the hospital. Rattan Lal himself ran to the

hospital alone. He explained that he could not get any opportunity to help

him as he went running. In the absence of any prior animosity, the

credibility of this independent witness cannot be doubted. He had no

ulterior motive to falsely implicate the accused who was living with her

husband in his neighbourhood. His presence at the spot was not

challenged in the cross-examination.

6. The police machinery came into motion when PW-12 (HC

Umed Singh) informed on phone to the Duty Officer at PS Jahangir Puri

that one Rattan Lal was admitted in the hospital and had complained that

his 'wife' had poured 'tejab' on him. DD No. 5B (Ex.PW-9/A) records

this fact. It corroborates the version given by PW-3 and PW-10. PW-16

(SI Vijender Singh) recorded victim's statement (Ex.PX). MLC (Ex.PW-

14/A) reveals that at the time of admission the patient was conscious and

oriented. It is not in dispute that after sustaining burn injuries, the victim

had run towards BJRM Hospital and had got himself admitted. It is not the

appellant's case that the victim was unconscious or was not fit to make

statement. PW-16 (SI Vijender Singh) lodged First Information Report

under Section 326 IPC. Since the injuries sustained by the appellant were

not sufficient to cause death in the ordinary course of nature, it appears

that PW-16 did not consider it fit to record his statement under Section

164 Cr.P.C. from SDM. He made endorsement (Ex.PW-16/A) and lodged

First Information Report at 03.40 A.M. without inordinate delay. The

version given by the victim in Ex.PX cannot be suspected. SI Vijender

Singh had no ulterior motive to fabricate statement (Ex.PX). In Ex.PX, the

victim categorically named his wife Shakuntala to have poured acid upon

him as a result of which he sustained burn injuries on his body. He also

attributed motive to her for pouring acid. Rattan Lal succumbed to the

injuries and died on 28.09.2008. Post-mortem on the body was conducted

by PW-15 (Dr.Amit Sharma). Vide post-mortem report (Ex.PW-15/A) the

cause of death was opined as shock due to burn injuries consequent to

ante-mortem corrosive burns.

7. In 'State of Karnatka vs. Shariff', (2003) 2 SCC 473, the

Supreme Court categorically held that there was no requirement of law

that a dying declaration must necessarily be made before a Magistrate.

Hence, merely because the dying declaration was not recorded by the

Magistrate in the instant case, that by itself cannot be a ground to reject

the whole prosecution case. It is equally true that the statement of the

injured, in the event of his death may also be treated as FIR/ dying

declaration. The Court has to be on guard that the statement of the

deceased was not as a result of either tutoring or prompting or a product of

imagination. Once the Court is satisfied that the declaration was true and

voluntary, undoubtedly it can base its conviction without any further

corroboration. In this case, the deceased had no ulterior motive to falsely

implicate his wife and to exonerate the real culprit. There is no

inconsistency in the version narrated and deposed by PW-3, PW-10, PW-

12 & PW-16 regarding the complicity of the accused in the incident.

8. In 'Paras Yadav and ors. Vs. State of Bihar', (1999) 2 SCC

126, the Supreme Court held that lapse on the part of the Investigation

Officer in not bringing the Magistrate to record the statement of the

deceased should not be taken in favour of the accused. The Supreme

Court further held that a statement of the deceased recorded by a police

officer in a routine manner as a complaint and not as a dying declaration

can also be treated as dying declaration after the death of the injured and

relied upon if the evidence of the prosecution witnesses clearly establishes

that the deceased was conscious and was in a fit state of health to make

the statement.

9. Discrepancies/ contradictions highlighted by appellant's

counsel are not material to discard the prosecution case in its entirety. At

the time of occurrence, only the appellant and the victim were together

inside the jhuggi. It was imperative for the appellant to establish under

Section 106 Evidence Act as to how and under what circumstances, the

victim sustained burn injuries. The appellant's conduct is unreasonable.

Instead of taking him to the hospital without delay to provide medical aid,

she locked the door of the jhuggi from outside and allegedly went to the

police station. The appellant's false implication at PW-1 (Naveen)'s

instance as alleged is not believable. PW-1 (Naveen), victim's son from

the previous marriage lived separate with his 'mausi' at Bhalaswa Dairy.

He deposed that the appellant quarreled with his father on his providing

money for their maintenance. PW-1 (Naveen) or his relative were not

present at the spot and had came to know about the incident only after the

victim sustained injuries. There are no allegations that PW-1 (Naveen)

instigated the victim to make statement (Ex.PX). The findings of the

learned Trial Court whereby the appellant was convicted under Section

304 Part-I IPC are based upon sound reasoning and do not call for

interference and are affirmed.

10. The appellant was sentenced to undergo RI for seven years

with fine ` 5,000/-. She is to undergo SI for six months in default of

payment of fine. It is informed that she has no issue and is in custody from

the very beginning. Nominal roll dated 10th January, 2012 reveals that she

has already undergone three years, three months and thirteen days

incarceration as on 10th January, 2012. She also earned remissions for four

months and five days. Her over all jail conduct is satisfactory. She is not a

previous convict and is not involved in any other criminal case.

Considering the facts and circumstances of the case and the mitigating

circumstances, in the interest of justice, the order on sentence is modified

and the substantive sentence of the appellant is reduced to six years with

fine ` 2,000/- and failing to pay the fine to undergo SI for one month. She

will be entitled to benefit under Section 428 Cr.P.C.

11. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith.

(S.P.GARG) JUDGE JULY 17, 2013/tr