Mahender vs State
2013 Latest Caselaw 5035 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                             Judgment delivered on: November 01, 2013
+      CRL.A. 788/2011
MAHENDER                                                 ..... Appellant
                         Through:     Mr.Satish Bajaj, Advocate
                         versus
STATE                                                   ..... Respondent
                         Through:     Mr.Sunil Sharma, APP for the State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR
                      JUDGMENT

KAILASH GAMBHIR, J.

1. By this appeal filed under Section 374 of the Code of Criminal

Procedure 1973 (hereinafter referred to as Cr.P.C), the appellant seeks to

challenge the judgment and order dated 12.05.2011 and 13.05.2011,

respectively, passed by the Court of Ld. Additional Sessions Judge-

01(NW), Rohini Courts, Delhi, thereby convicting the appellant for

committing an offence under Section 302 of Indian Penal Code, 1860

(hereinafter referred to as IPC) and sentencing him to undergo rigorous

imprisonment for life along with fine of Rs. 10,000/- and in default

thereof to undergo further simple imprisonment for a period of one year.

2. One of the most horrifying forms of gender-based violence, a

growing phenomenon in India, is acid attack. Though acid attack is a

crime which can be committed against any man or woman, it has a

specific gender dimension in India. Most of the reported acid attacks have

been committed on women, particularly young women, for spurning

suitors, for rejecting proposals of marriage, for denying dowry etc. The

acid is used with malicious intent to take revenge, disfigure and harm the

person. Some men ego will not allow them to accept rejection and when

their advances are spurned they retaliate by throwing acid at the woman.

An acid attack is a terrifying experience. Acid melts human flesh and

even bones. It causes excruciating pain and terror. The victims are

left mutilated and scarred for the rest of their lives. Some suffer

permanent disabilities such as blindness and some victims even die as a

result of their injuries. The attacks are made possible by the easy

availability of cheap acids as cleaning fluid or for use in the cotton

industry. Dealing with this cruellest menace, the Hon‟ble Supreme Court

in a recent case of Laxmi vs. Union of India and Others reported in

2012(9) SCALE 291 directed the State governments and the Union

territories to make appropriate rules for the sale of acid in states and union

territories respectively. The Hon‟ble Apex Court also directed the

government to take appropriate measures for proper treatment, after care,

rehabilitation and payment of compensation to the victims of acid attack.

3. The case in hand also relates to one such unfortunate woman who

became the victim of such horrifying act at the hands of, none else than

her own husband, who could not bear her rejection. In the present case

deceased who became a victim of such barbaric act of the offender was

just 24 years of age and had a boy child, six years old, from her first

husband. She was attacked by accused when she had reached at a place

near Petrol Pump, Britannia Chowk, J.J. Colony, Shakurpur, Delhi. The

exact prosecution story as it unfolds in the chargesheet is as under:-

"On 29.02.2008 on receiving the DD No. 17A, IO SI Daya Chand along with Constable Amar Singh went to petrol pump, Britannia Chowk, J.J. Colony, Shakurpur where no eye witness or complainant met them. In the meantime, PCR control room informed that the injured was removed by PCR van Commander 21 to Bhagwan Mahavir Hospital. IO along with constable Amar singh reached the hospital and collected the MLC of injured Jyoti, w/o [email protected] Dabbu aged 24 years, r/o. G-23, J.J. Colony, Shakurpur, Delhi. Doctor had mentioned on the MLC alleged history of 75% acid burn and declared her unfit for statement and result on the nature of injuries as grievous. No eye witness met them at the hospital. IO prepared rukka on DD No. 17A and handed over the same to Constable Amar Singh for registration of FIR, who left the hospital. During the investigation, doctor handed over the burnt clothes of injured Jyoti, in a sealed parcel along with sample seal. In the

meantime Constable Amar Singh returned back to the hospital and handed over the copy of FIR and original Rukka to the IO. IO along with Constable Amar Singh Nath again went to the place of incident and took into the possession some burnt clothes lying at the spot, which were smelling like acid and turned it into clothes parcels and sealed and seized with the seal of DCS. IO prepared the site plan of the spot and informed the SDM about the incident. SDM, Model Town went to the LNJP hospital and recorded the statement of the injured Jyoti and made inquiries from her. Thereafter IO recorded the statement of the witness and tried to search the accused but the accused could not be traced. On 05.033333.2008, accused surrendered himself before the court. The court made inquiries from the police and remanded him to the police custody for one day. Thereafter he was formally arrested and send in the judicial custody where his disclosure statement was recorded. IO prepared the site plan at the instance of the accused and tried to search the acid bottle, which could not be traced. IO recorded the statement of witnesses and deposited the case property to malkhana. On 12.04.2008, IO received the information from the LNJP hospital that injured Jyoti has expired. The offence thereafter was converted from section 307 IPC to section 302 IPC and further investigation was handed over to Inspector Ajay Kumar. Thereafter on 13.04.2008 M.Z.Ansari, Executive Magistrate, Model Town reached the hospital and recorded the statement of the witness in respect to identification of dead body of Jyoti. Executive Magistrate prepared the inquest report and directed for the post-mortem of the deceased Jyoti and prepared scaled site plan of the spot through draftsman. After the completion of the investigation IO filed the charge sheet before the concerned court."

4. After supplying the copies of the charge sheet to the accused as per

law, case was committed to the Court of Sessions. Arguments on the point

of charge were heard and charge under section 302 IPC was framed

against the accused, to which he pleaded not guilty and claimed trial. To

prove its case, the prosecution had examined 23 witnesses. The statement

of accused was recorded by the learned Trial Court under Section 313

Cr.P.C. and the accused pleaded his innocence and false implication. The

accused also examined three witnesses in his defence.

5. Addressing arguments on behalf of the appellant, Mr. Satish Bajaj,

Advocate strongly contended that the dying declaration being a weak

piece of evidence, conviction of the accused cannot be sustained solely on

the basis of dying declaration. Counsel for the appellant also argued that

in the present case, the dying declaration was not recorded by the SDM

himself but by PW-18, SI Daya Chand and therefore, also the same loses

its credibility. Counsel for the appellant also submitted that the style and

the language used in the alleged dying declaration, resembles the pattern

as is normally used by the police in recording the statements of witnesses

under Section 161 Cr.P.C. and therefore, there remains no doubt that the

said dying declaration was first recorded by the police official and was

later signed by the SDM. Counsel for the appellant also argued that the

said dying declaration was not even recorded in the question and answer

form as per the mandate of Chapter 13-A of Volume -III of the Rules and

Orders of Delhi High court dealing with dying declarations and therefore,

the said dying declaration lacks its credibility. Counsel for the appellant

also argued that the appellant had never married the deceased and in fact

no evidence was produced on record by the prosecution to prove the

marriage of the appellant with the deceased. Referring to the deposition

of PW-16 ASI Nain Singh, counsel for the appellant also submitted that

the deceased was carried by him in his PCR van and on her way to

hospital, the deceased told him that she was having one child and for the

past six months she was contesting a divorce case against her husband.

The contentions raised by the counsel for the appellant was that the

deceased herself had admitted the factum of her marriage with Arun and

the said marriage of the deceased was still alive and therefore, the

allegation of the deceased that she was married with the appellant was

palpably false. Counsel for the appellant further argued that the learned

Trial Court has ignored the inherent contradictions in the statements of the

prosecution witnesses, like PW-18 who was the first person to visit the

spot and who took the rukka to the police station, in his deposition,

described the place of incident as house No.G-230, J.J. Colony,

Shakurpur, where-from he had also recovered the clothes of the deceased

in torn condition, and whereas the deceased and the other prosecution

witnesses disclosed Shakurpur Red Light, Ring Road near Petrol Pump

opposite Britannia, to be the place of the incident. Counsel for the

appellant also argued that the learned Trial Court committed a grave error

in not appreciating the fact that if the alleged incident, had occurred at

10.00 a.m. on the ring road outside the petrol pump then it is not possible

that at such a busy public place no independent witness was found by the

prosecution to support their case. In support of this argument counsel for

the appellant further stated that PW-8 also in his deposition confirmed this

fact by stating that there were 6-7 public persons present at the spot.

Counsel for the appellant also argued that the prosecution also failed to

collect any evidence to prove that the acid was found at the spot of the

crime or that any bottle was recovered from the accused from which he

had allegedly thrown the acid on the deceased. Counsel for the appellant

also argued that no motive was attributed against the appellant to commit

said crime and even in the dying declaration, the deceased stated that the

accused wanted to get divorce from her and she had agreed for the same

and therefore, she was called by the accused to go to the advocate for

filing divorce petition in the Tis Hazari Courts The contention raised by

the counsel for the appellant was that since no marriage had taken place

between the appellant and the deceased, the question of filling the divorce

petition to dissolve such marriage cannot arise. Counsel for the appellant

also submitted that in fact the deceased herself only poured the acid on her

so as to blackmail and pressurise the appellant to agree for the marriage

not realising that such act of her‟s would result into her death. Counsel for

the appellant also argued that the appellant had disclosed his entire

defence in his statement, recorded under Section 313 Cr.P.C., giving

complete details of his relationship with the deceased and how he was

being blackmailed by her and ultimately been falsely implicated in the

present case. Based on the above submissions, counsel for the appellant

submitted that the order passed by the learned Trial Court is not

sustainable in the eyes of law and therefore, the same be set aside. In

support of his arguments, counsel for the appellant placed reliance on the

following judgments:-

1. State of Rajasthan vs. Prithvi Raj reported in 1995 Supp (3) SCC 410

2. Akbari Begum and Ors. vs. State reported in 2011(3) JCC

3. Muneer Khan and Ors. vs. State of M.P reported in (2002) 9 SCC 523.

6. Countering the said submissions, Mr. Sunil Sharma, APP for the

State, submitted that the conviction of the appellant is based on the dying-

declaration of the deceased, which finds corroboration from her first

statement, proved on record as Ex. PW-12/A, made to PW12 who carried

the deceased in a PCR van to the hospital and had also transmitted the first

statement by the deceased to the police control room. The contention of

the learned APP was that in the very first statement, made by the deceased

to the In-charge PCR van, she had named the appellant responsible for

pouring acid on her and therefore, there is no reason to disbelieve the said

two dying-declarations made by the deceased which fully supports each

other. Leaned APP further submitted that each and every contention raised

by the counsel for the appellant in his final arguments has been dealt with

by the learned Trial Court and the reasoning given by the learned Trial

Court is based on sound principles of law and on proper appreciation of

material available on record. Learned APP also argued that the mere fact

that no public witness had come forward to support the case of the

prosecution would not create any doubt on the said two dying-declarations

made by the deceased which were further corroborated by the other

evidence proved on record by the prosecution. Learned APP also argued

that there is no reason to disbelieve the place of the incident just because

one of the prosecution witness, PW-18, erred in stating the correct spot of

the incident. Learned APP also submitted that it is a settled legal position

that minor discrepancies or variance in the statements of the prosecution

witnesses which do not go to the root of the case or which do not corrode

the credibility of the main witnesses, deserves to be ignored. Based on

these submissions, Learned APP for the State submitted that the learned

Trial Court has passed a well reasoned order and the same may not be

interfered by this Court in exercise of its Appellate powers.

7. We have heard learned counsel for the parties at considerable

length. We have also gone through the Trial Court record before taking a

final view in the matter.

8. The present case is primarily based on two dying-declarations of

the deceased. Firstly, when she was being taken to the LNPJ hospital and

secondly, when she gave her statement to the Sub-Divisional Magistrate.

In her statement made to the SDM, she had categorically stated that on

29th February, 2008 at about 8.30 a.m. Mahender gave a telephonic call to

her that at 10.00 a.m. both of them will go to Tis Hazari to meet their

lawyer who was to prepare divorce papers and for that the accused also

told the deceased to bring photo and certificate. The call was repeated by

Mahender at 10.30 a.m. telling the deceased to come at Telephone

Exchange, Ring Road Bus Stand with the papers and when she had

reached at the said place, Mahender- accused met her and started

enquiring as to why she was taking divorce from him, at which, she had

replied that since he had ruined her life after subjecting her to harassment,

therefore, she would not like to live with him. On this, she started looking

towards other side when Mahender had poured acid on her from a bottle

containing acid. She started crying and felt complete darkness in front of

her eyes. She could gain a little consciousness to find that she was brought

to the hospital by the police. In her this statement, she also disclosed that

she was residing with her parents and her first marriage had taken place in

the year 2001 with one Mr. Arun and there was a male child aged 6 years

born out of the said wedlock. She also stated that after two years of her

marriage with Mr. Arun, her marriage ended with divorce. She also stated

that on 28th September, 2005 she had married the present appellant

Mahender @ Dabbu in a Court and thereafter she started living with

Mahender in a rented accommodation. She also stated that just after one

year of marriage, Mahender started harassing her and had also thrown her

out of the matrimonial home. Thereafter she started residing with her

parents. She also stated that Mahender paid repeated visits to her and

extended threats by saying that he will physically eliminate her if she

dared to take any step to divorce him. She also stated that earlier

Mahender used to ask for the divorce but when she gave her willingness

then he started extending threats to kill her. A portion of the dying-

declaration is also in question-answer form. To a question whether she

was in her full senses?, she replied that she was in her full senses. She was

also put a question as to whether Mahender was carrying acid when she

had met with him? She replied stating that he was hiding acid in his

jacket in a cream colour bottle and he was also carrying divorce papers

which he got signed from her few days back. When questioned as to how

she knew that it was Mahender who has thrown acid at her? She replied

that when Mahender had thrown something at her then she saw that her

clothes and the papers, which she were holding in her hands, got burnt and

gradually her eyes got glued and thereafter she felt that Mahender had

poured acid at her. The deceased had clearly stated that she was the wife

of Mahender and her husband had poured acid at her.

9. The PCR Form-1 wherein the first dying-declaration recorded was

proved on record as Ex. PW-12/A1 in the deposition of PW-12 Head

Constable Devi Dutt, 2091, PCR, North West Zone, PCR, Delhi. PW-12

in his cross-examination stated that he had received a call from Mobile

No.9891847761 informing him that acid was thrown on a lady near Petrol

Pump, Britannia Chowk, J.J. Colony, Shakurpur, Delhi on 29th February,

2008 at about 11.08 a.m. This witness further stated that the said message

was transmitted to PCR van and a PCR van reached the spot at about

11.16 a.m. on the same day and then Incharge PCR van transmitted the

message to the Police Control Room that they were proceeding towards

hospital with the said lady. The said witness also deposed that after the

lady was admitted in LNJP Hospital, Incharge PCR van gave back

information to the Police Control Room informing that the injured had

informed him that her husband had poured acid on her. He also informed

the Police Control Room that doctor had disclosed that the injured had

received 75% burn injuries. There is no reason to disbelieve the statement

of PW-12 and the PCR Form No.1, proved on record as Ex. PW-12/A1,

which also records the first dying-declaration of the deceased. The

testimony of PW-12 also remained unrebutted as the defence did not

choose to cross-examine the said witness. Similarly, the second dying-

declaration which was recorded before the SDM and was proved on

record as Ex. PW-15/A in the deposition of PW-15 also remained

unchallenged as the appellant did not choose to cross-examine the said

material witness. PW-15 in his deposition categorically deposed about the

fitness of the victim to give her statement. He also deposed that her

statement was recorded in his presence and under his directions, on the

questions as were put by him to her. He also deposed that the deceased

Jyoti had put thumb impression at point „C‟ and had signed at point „D‟ on

Ex. PW-15/A. The defence utterly failed to rebut or challenge the

testimonies of the said two important witnesses, who proved on record,

the said two dying-declarations as Exs. PW-12/A and PW-15/A.

10. In the present case the appellant has made an attempt to impeach

the credibility of the said dying-declarations. The first contention raised

by the counsel for the appellant was that the dying-declaration (Ex-PW-

15/A) was recorded in a manner which resembles the style of police.

Noticeably, the SDM was candid that he did not record the dying

declaration himself. He was categorical that the said dying-declaration

was recorded in his presence and even he had put questions to her. The

question is whether a dying declaration can be discarded for this reason

alone? Section 32 Indian Evidence Act, 1872(hereinafter IEA) provides

that for a statement to be admitted as a dying declaration it is essential that

firstly, a person making the statement is no more alive and secondly, the

statement shall relate either to the cause of death or any circumstance of

the transaction which resulted into the death of the person. It is pertinent

to mention here that apart from these two essentials, the section has not

laid down any other essential, i.e. if the person making the statement is

dead and the statement relates to the cause of death, then it is admissible

as a dying declaration as per section 32 IEA, irrespective of the fact that it

is in oral or in writing or whether the person making the statement was or

was not in the fear of death at the time of making the said statement. The

law does not provide that a dying declaration should be made in any

prescribed manner or in question and answer form. Once the said two

essentials are complied, it must be borne in mind that the admissibility is

statutorily recognized in the terms of section 32 IEA. The settled legal

position is that the dying-declaration can be either oral or in writing and

the same can be made before any person. The principles governing the

dying-declaration were eloquently summed up long back by the Hon‟ble

Apex Court in the matter of Paniben vs. State of Gujarat reported in AIR

1992 SC 1817. The same were reproduced as under:

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where the eye-witness has said that the deceased was in a fit conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted."

11. The two-fold reason for its admission are, firstly, the necessity for

the victim being generally the only principal eye-witness to the crime, the

exclusion of the statement might deflect the ends of justice; and secondly,

the sense of impending death, which creates a sanction equal to the

obligation of an oath. The Hon‟ble Supreme Court in the matter of Muthu

Kutty vs. State by Inspector of Police, Tamil Nadu reported in (2005) 9

SCC 113 held as under:

"The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. These aspects have been eloquently stated by Lyre LCR in R. v. Wood Cock (1789) 1 Leach 500. Shakespeare makes the wounded Melun, finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis explain:

"Have I met hideous death within my view, Retaining but a quantity of life, Which bleeds away even as a form of wax, Resolveth from his figure 'gainst the fire?

What is the world should make me now deceive, Since I must lose the use of all deceit?

Why should I then be false since it is true That I must die here and live hence by truth?" (See King John, Act 5, Sect.4)

12. There is no requirement of law that dying-declaration must

necessarily be made to a Magistrate or even to a Police Officer as in

many situations the presence of either of them may not be feasible,

however, wherever it is possible keeping in view the facts and

circumstances of each case the dying-declaration should preferably be

recorded by the Magistrate and not by an IO or Police Officer himself.

As a matter of prudence, where the IO records the dying-declaration

himself, such dying declaration cannot be taken to be free from

suspicion, although it is not a rule of law..

13. However, reverting back to the facts of the present case, here the

statement of the deceased was recorded by the Police Officer not only in

the presence and direction of the SDM but also on the questions put by the

SDM. Although, we do not approve the mode adopted by the SDM while

recording the dying declaration of the victim, but merely because the IO

had penned down the said statement would not give any ground to the

appellant to raise any suspicion over the same.

14. A dying declaration as per section 32 IEA can be in any form,

however the Court has to see whether the dying declaration was actually

made. On this aspect there is no quarrel. It is not the case of the defence

that the deceased did not make the dying declaration Ex.PW-15/A. It is

also not the case of the defence that the prosecution has concocted the said

dying declaration or that the dying declaration penned down by the police

officer is not the true version of the declaration made by the deceased.

Further considering the fact that the defence itself did not cross-examine

PW-15 as well as PW-19, on the said aspect, we are not persuaded to give

any weightage to the contention raised by the counsel for the appellant

that since the same was recorded in a style identical with the style of

police can therefore the credence and credibility of the said dying-

declaration becomes questionable.

15. We cannot be oblivious to the fact that the SDM in his deposition

also stated that before recording the statement of the deceased, he had

consulted a doctor and the doctor had certified that the deceased was fully

conscious and in proper frame of mind at the time of making her

statement under section 32 IEA. As already said above, the testimony of

PW-15, SDM remained unchallenged and unrebutted as no question even

worth the salt was put to him by the defence in his cross-examination to

challenge his credibility and impartiality in recording the dying-

declaration of the deceased. The defence has to make out a very strong

case, otherwise, impartiality and independence of the Magistrate cannot

be easily questioned. The Hon‟ble Apex Court in Harjit Kaur Vs. State

of Punjab, 1999 (3) RCR (Cri) 700, took a view that Sub Divisional

Magistrate being an independent witness holding high position has no

reason to do anything which was not proper and genuineness of dying-

declaration recorded by him cannot be easily doubted and conviction

recorded on that basis cannot be faulted with. The germane portion of the

judgment is extracted below:

"Whatever impression could be taken was taken by the S.D.M. The medical evidence in this case does not disclose that she could not have put her thumb mark on the Dying Declaration. We fail to appreciate how this circumstance can create any doubt regarding the evidence of this witness or genuineness of the Dying Declaration. P.W. 7 was an independent witness and was holding a high position and had no reason to do anything which was not proper or correct. Except a bare suggestion made to him that the Dying Declaration was manufactured by him after her death, we do not find anything in his cross- examination as would create any doubt regarding truthfulness of what this witness has deposed. We fully agree with the finding recorded by the courts below that the Dying Declaration was voluntarily made by Parminder kaur and that it was correctly recorded by P.W.-7."

16. Further a dying declaration made by a person on the verge of his

death has a special sanctity. It is for this reason the requirements of oath

and cross-examination are dispensed with. It has been held by the apex

court in the matter of Narain Singh and Anr. Vs. State of Haryana

reported in AIR 2004 SC 1616 that:

"A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death."

17. In the light of the above legal position, there is no reason to

disbelieve the said dying-declaration made by the deceased, one before

Incharge, PCR van proved on record as Ex. PW-12/A1 and the other

dying-declaration made by the deceased before the SDM, proved on

record as Ex.PW-15/A. Both the said dying-declarations were made by

her truthfully and voluntarily without being tutored or prompted by any

person and there is no reason for this Court to raise any suspicion over the

same. The contention raised by the counsel for the appellant with regard

to his challenge to the said two dying-declarations has no merit and

deserve an outright rejection.

18. The next argument on which counsel for the appellant laid much

stress was that the appellant was never married to deceased and the

deceased‟s marriage with her previous husband Mr. Arun was still alive,

and therefore, the deceased describing the appellant as her husband in the

said two dying-declarations is palpably false and her such apparent

falseness renders the said dying-declarations as highly doubtful and

unreliable. Counsel for the appellant also argued that the prosecution

failed to collect any material to show that the deceased was divorced by

her previous husband and she got married with the appellant or any proof

to show that after such marriage they stayed together.

19. Undoubtedly, it is the failure on the part of the prosecution having

not collected any evidence to clearly establish the factum of marriage of

the deceased with the appellant or with regard to the fate of her previous

marriage with a person named Mr. Arun. However, this lapse on the part

of the prosecution cannot affect the credibility of the said two dying-

declarations made by the deceased unequivocally referring the appellant

as her husband.

20. PW1- Sukhram, father of the deceased, in his cross-examination

clearly stated that her first husband had left her and she was having a boy

child from that marriage. He also deposed that no divorce had taken place

and her daughter got married with the accused Mahender which was her

second marriage. He also deposed that her daughter was kept well for two

years by accused Mahender after her marriage but thereafter, the disputes

arose between them. PW2- Ms. Amarjeet Kaur, mother of the deceased, in

her examination-in-chief categorically deposed that it was the second

marriage of her daughter with the accused, Mahender and she was having

one boy child aged about 6-7 years from her first marriage. The deposition

of PW-2 remained unrebutted as she was not cross-examined by the

accused. In her dying-declaration made before the SDM, the deceased

categorically stated that she got married with the accused Mahender @

Dabbu on 28th September, 2005 and after the marriage she started residing

with him in a rented accommodation. She also gave a detailed narration of

facts as to how she was being subjected to harassment by her husband

Mahender and how she was called at the Telephone Exchange, Ring

Road, Bus Stand where acid was thrown at her by her husband, Mahender.

Thus it clearly establishes that the deceased and the accused had entered

into a matrimonial relationship.

21. Further in the present case this Court is not looking at as to whether

the first husband of the deceased had divorced her or not or in what

circumstances the present accused had married the deceased during the

subsistence of her first marriage. The legality and validity of the second

marriage of Mahender with the deceased is not an issue before this court.

It is not uncommon that many such marriages take place during the

subsistence of previous marriage of one of the party and in some rare

cases marriages are not dissolved by taking recourse to law but through

dubious methods of signing some stamp papers and getting the same

attested from a Notary Officer/Oath Commissioner. It is, therefore,

difficult to ascertain the validity of marriage in such cases.

22. However, after taking into account the testimonies of PW-1 and

PW-2 read in conjunction with the two dying-declarations made by the

deceased, there does not remain any iota of doubt that the accused was the

husband of the deceased and they had entered into matrimonial

relationship and started living together as husband and wife, though their

marriage may not be legal in the strict sense. Thus the question before the

court is whether the word husband as used in the dying declaration would

mean only a husband from a lawful marriage or any person who

ostensibly reside with a woman as her husband? We believe that it would

be inappropriate to construe the expression "husband" as only a person

who enters into a valid marriage and not a person who enters into a

marital relationship and under the colour of such proclaimed or feigned

status of husband subjected a woman to such cruel act. In the present case,

the strict interpretation of word "husband" in this case might result into

injustice to the deceased who became the prey of a barbaric act of the

offender, whereas the liberal interpretation will serve the ends of justice,

and according to the rule interpretation when strict interpretation defeats

the purpose of law and liberal interpretation serves the purpose of law,

then the liberal interpretation shall be followed. Thus the mere fact that

the marriage of the accused and deceased was not a legally valid marriage

would not help the accused to escape the liability in the present case. We,

therefore, do not find any force in the contention raised by the counsel for

the appellant that the deceased could not have married to the appellant

during the subsistence of her previous marriage.

23. Another contention raised by the counsel for the appellant was that

PW18- Constable Amar Singh, in his deposition described the place of

incident as House No.G-230, J.J. Colony, Shakurpur, Delhi while the

other police officials have described the place of incident as Shakurpur

Red Light, Ring Road near Petrol Pump opposite Britannia, and therefore,

this contradiction on the part of the PW-18 is enough to disbelieve the

story set up by the prosecution. This PW-18 in his examination-in-chief

did disclose the place of occurrence being House No.G-230, J.J. Colony,

Shakurpur, Delhi but none of the other witnesses have disclosed the said

place of occurrence and they were consistent and uniform in disclosing

the place of incident as Shakurpur Red Light, Ring Road near Petrol

Pump opposite Britannia. One of the first and prime witnesses of the

incident was PW-8 Sanjay. This PW-8 only telephoned at No.100 (PCR)

through his Mobile No.9891847761. He in his deposition clearly stated

that he saw one lady crying and when he reached the red light F Block

Shakurpur, he found that somebody had poured acid on the lady. He also

deposed that the police vehicle came within 15 minutes of his making call

and removed that lady from the spot. This telephone number of PW-8,

Sanjay, is also duly recorded in the original PCR Form No.1proved on

record as Ex. PW-12/A1. In this PCR Form also the place of incident is

disclosed as J.J. Colony, Shakurpur near Petrol Pump and ahead of

Britannia. PW16- ASI Nain Singh in his deposition also disclosed that he

had received information from the Control Room that one lady got burn

injuries as somebody had thrown acid on her at or near Shakurpur Red

Light, Ring Road near Petrol Pump opposite Britannia and on receiving

this information, he immediately reached the spot with the staff and saw

one lady lying there in a burnt condition. PW19- SI Dayachand in his

examination-in-chief also deposed that he had received D.D. No.17A on

29th February, 2008 in respect of the said incident that somebody has

thrown acid on a girl at Petrol Pump, Britannia, J.J. Colony, Shakurpur

and he along with Constable Amar Singh reached at the spot. In the light

of the said testimonies of these witnesses, there remains no dispute with

regard to the spot of the crime and one reckless and irresponsible

statement of PW-18 will not lead us to disbelieve the entire prosecution

version. The contention raised by the counsel for the appellant has no

force and the same is liable to be rejected out rightly.

24. Another contention raised by the counsel for the appellant was that

there was no motive which could be attributed to the appellant for

committing the said crime and in the absence of any motive on the part of

the appellant, his alleged act of throwing acid on the deceased should not

be believed. This contention raised by the counsel for the appellant is also

devoid of any force as motive on the part of the appellant is well reflected

in the dying declaration of the deceased proved on record as Ex.PW-15/A

The deceased in her dying declaration clearly stated that the appellant

used to threaten her even to the extent of physically eliminating her if she

dared to take divorce from him. Even before putting acid on her, the

appellant had again enquired from the deceased as to why she was

interested to take divorce from him, at which, the deceased explained that

since he had ruined her life, she was no more interested to live with him.

These statements are sufficient enough to show the state of mind of the

appellant and the reasons for his taking such step of pouring acid at the

deceased. We, therefore, do not find any force in the argument of the

counsel for the appellant that no motive was attributed by the prosecution

against the appellant for committing the said crime. Even otherwise as per

the settled legal position where positive evidence against the accused is

clear, cogent and reliable, it becomes immaterial whether motive on the

part of the accused has been proved by the prosecution or not. In the facts

of the present case, the said two dying declarations made by the deceased

are sufficient enough to nail the accused. Here, it would be worthwhile to

reproduce the following paragraph from the recent judgment of the Apex

Court in the case of Amitava Banerjee @ Amit @ Bappa Banerjee

Vs. State of West Bengal, reported in AIR 2011 SC 2913, as under:

"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty."

25. Dealing with the last contention raised by the counsel for the

appellant was that the prosecution failed to join any independent witness

although the alleged crime was committed at a busy public place.

Undeniably, there should always be an endeavour on the part of the

prosecution to persuade any member of the public to come forward to join

as a witness if any crime takes place in the presence of such a public man,

as the evidence of a public person being totally independent witness has

more reliability then other witnesses having some interests to support the

case of the prosecution. However, we cannot shut ours eyes to the fact that

very rarely public men come forward to give evidence. Due to lack of

proper safe guards for the witness protection, it is usually seen that people

are reluctant to join the investigation as a witness. In such scenario we

cannot give any weightage to the argument of the counsel for the appellant

that the prosecution story should not be believed because of non-joining

any public witness to prove the case of the prosecution. Here, it would be

worthwhile to reproduce the following paragraph from the recent

judgment of the Apex Court in the case of Gian Chand & Ors. vs. State

of Haryana reported in 2013(9) SCALE 544, wherein the Court dealt

with the issue of non-examining the independent witness:

"The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties".

26. It has also been held by the Hon‟ble Apex Court in the matter of

Girdhar Shankar Tawade vs. State of Maharashtra reported in AIR

2002 SC 2078, as under:

"It is well settled that dying declarations shall have to be dealt with due care and upon proper circumspection. Though corroboration thereof not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses may not be available but

there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence."

27. In the light of the aforesaid discussion we find our self fully

satisfied that the said two dying declarations were made by the deceased

voluntarily and truthfully, free from any kind of tutoring or prompting,

and they were duly recorded by the Incharge, PCR van and the SDM. The

learned Trial Court has rightly convicted the appellant for the offence

committed by him under Section 302 IPC.

28. There lies no merit in the present appeal. Hence, the order on

conviction and sentence dated 12.05.2011 and 13.05.2011 respectively

passed by the learned Sessions Judge is upheld. The present appeal

accordingly stands dismissed.

29. A copy of this order be sent to the concerned Jail Superintendent

for information and necessary compliance.

KAILASH GAMBHIR, J.

INDERMEET KAUR, J.

NOVEMBER 01, 2013 v