Jagbir Singh vs State
2013 Latest Caselaw 4641 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                Judgment reserved on :26.09.2013
                                Judgment delivered on :07.10.2013

+      CRL.A. 757/2010

       JAGBIR SIGH                                    ..... Appellant
                           Through:   Mr.M.C.Sharma, Advocate.

                           Versus


       STATE                                     ..... Respondent
                           Through:   Mr. Richa Kapoor, APP.


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

INDERMEET KAUR, J.

1 The appellant is aggrieved by the impugned judgment dated

06.04.2010 vide which he had been convicted under Section 302 of the

IPC for having committed the murder of his deceased wife Santosh by

burning her to death. Vide order of sentence dated 09.04.2010, he had

been sentenced to undergo life imprisonment and to pay a fine of

Rs.5,000/- and in default of payment of fine to undergo SI for six

months. He had separately been convicted for the offence punishable

under Section 506 of the IPC as well for which he had been awarded RI

for a period of two years.

2 Record shows that the accused Jagbir was employed as sweeper

in the CRPF. He was married to the deceased (Santosh) in the year

1999; at that time, he was unemployed but thereafter he got employment

in the CRPF. In the eight years of their married life, they did not share

cordial relations; it was only about four years prior to the date of the

incident that a panchayat was held and on the intervention of the said

panchayat, Santosh had gone back to reside with her husband. The

parties were living in their matrimonial home at RZ-40, Netaji Line,

Gopal Nagar-II, Najafgarh.

3 On 24.01.2008, information was received in the local police

station Najafgarh that a husband and wife had been burnt at the

aforenoted residence. This information was documented vide DD No.

50-A (Ex.PW-29/D)

4 On receipt of this information, SI Mahesh Soni (PW-29) along

with constable Ram Kumar (PW-21) reached the spot. On inquiry, it

transpired that the appellant and his wife had already been removed to

Safdarjung Hospital by the PCR. This was confirmed by constable

Meenakshi (PW-15) who was at that time posted on PCR duty.

5 The investigating team reached the hospital. The MLC of the

victim Santosh (Ex.PW30/D) was recorded at 09:30 PM by Dr.K.K.

Sharma. It has noted history of sustaining thermal burns when her

husband was trying to ignite a match stick for smoking; accidently a fire

erupted due to petrol leaking from the tank of the motorcycle as told by

the patient herself. Patient got burnt along with her husband. Patient is

unable to tell the cause of kerosene smell from her body; patient

brought to burn casualty by PCR van. The MLC had noted deep burns

on her face, neck, anterior trunk lower back both upper limbs and lower

limbs; 60% burns were recorded and the injuries opined to be

„dangerous‟.

6 The MLC of the appellant was also recorded on the same day. It

is Ex.PW-30/A. It also notes "Patient not giving proper history. Alleged

history of sustaining thermal burn when he was trying to ignite match

stick for smoking, accidently fire erupted out possibly due to nearby bike

leaking petrol tank told by the patient himself." Patient got burnt along

with his wife; unable to tell cause of kerosene smell from his body.

Patient brought to the casualty by PCR van. The MLC had noted deep

burns present on the face, neck and anterior trunk of both upper limbs.

40% burns were recorded and the injuries opined to be „dangerous‟.

7 Ex.PW30/D was treated as the first dying declaration of the

victim.

8 On 25.01.2008, the victim gave a second declaration to PW29

which was recorded in the daily diary Ex.PW29/DA. The victim did

not cast any aspersion upon the appellant even up to this stage.

9 Investigating team returned to the spot where the burnt clothes of

the appellant and the victim were taken into possession vide memo

Ex.PW-29/A. At the spot a partially burnt motor-cycle was also taken

into possession vide memo Ex.PW-29/B; it was noted that the petrol

pipe of the motor-cycle had been detached; from the inner room, a can

of kerosene oil was also taken into possession vide memo Ex.PW-29/A.

A broken lock and the handle of a hand-pump was separately taken into

possession vide a separate memo Ex.PW-29/C.

10 Crime team was summoned at the spot. Nine photographs were

taken by constable Ajmer Singh (PW-14) which included the

photograph of the plastic kerosene can lying in the room; burnt match

sticks were also photographed; out of the nine photographs taken, two

were washed off; positives of the remaining seven photos had been

proved as Ex.PW-14/1 to Ex.PW-14/7; negatives had been proved as

Ex.PW-14/8 to Ex.PW-14/16.

11 On 27.01.2008, PW-29 received a call from the hospital

informing him that the victim Santosh wanted to make a fresh statement.

The statement of the victim was recorded by PW-29 (Ex.PW-29/D). It

was in this statement that for the first time, the victim implicated the

appellant. The version of the prosecution is in fact hinged upon this

statement. Relevant would it be to extract this statement. It reads herein

as under:-

"I reside at my parental house alongwith my mother Chhoto Devi and husband Jagbir Singh. My marriage took place in year 1999. In the meanwhile, for about four years, there were differences between me and my husband, and after settlement took place in Panchayat, I alongwith my husband had been residing in my parental house.

On 24.1.08 in the afternoon, my mother left for matrimonial home of Rakesh at Rohtak. My husband Jagbir works as a Sweeper in CRPF, who came from his duty at about 6 p.m. in a drunken position and said to me, "You want to live with me." I said „Yes‟, then Jagbir took me to a big room and picked up a „can‟ of kerosene oil and poured kerosene

oil upon me. He poured more kerosene oil upon me and poured less kerosene oil upon him. The, I got myself free from the clutches of Jagbir and ran towards a small room, and he came to me after following me, and then he ignited a matchstick and threw it upon me, and immediately my clothes caught fire. After that when I, in order to save myself, ran towards main gate, he caught me from behind as a result, I fell down near a handpump, which was installed at the house. Thereafter, my husband brought out the pipe of petrol tank of the motorcycle, which was lying in the Chowk, as a result of which fire erupted near the motorcycle, and Jagbir also caught fire and when I raised hue and cry to save, then one boy namely Dinesh Jain, who resides in the neighbourhood, came inside by jumping the main gate and broke the lock placed inside the main gate with the help of „Hati‟ of the handpump. Then all the neightbourers saved me and Jagbir while burning. As my husband had extended threat to me, I could not give my statement on the ssame very day. My husband has tried to kill me by pouring kerosene oil upon me because of the reason that he illicit relations with his „Bhabhi‟ namely Babita. You have recorded my statement in presence of my mother Chhoto Devi and my „Jija‟ Vinod, which I have been read over and is correct.

(Santosh)"

12 It was on this statement that the rukka was taken at 04:30 PM on

the same day and the FIR under Section 307/506 was registered.

13 Unfortunately, the victim succumbed to her injuries after about

eight days. This was on 02.02.2008. On the death of the victim, the

FIR was converted from Section 307/506 of the IPC to Section 302/506

of the IPC.

14 The post-mortem of the victim was conducted by Dr. Prem

Kumar (PW-8). It was proved as Ex.PW-8/A; the post-mortem report

recorded 60% burns. Smell of kerosene was not found present. The

burnt areas on the body have been detailed in the ante-mortem external

injuries and reads as follows:-

"ANTE MORTEM EXTERNAL INJURIES : BURNT AREAS ON THE BODY: (Epidermal, dermal ) present on a face, neck, front of chest, upper 2/3, front of abdomen (R) forearm, Inner back of (R) arm, front and inner part (R), thigh patches and mid part, inner of (R) by extending to inner half back, inner and inner ½ feet (L) thigh. Patches back of (L) lefg, small patches, back of chest, back of abdomen , (R) hand , (R) wrist ,front of forearm (R) , small patches (R) arm. State of burn injuries granulation tissue Blacking ... infection on the involved area of burn.

Approximate percentage of burn injuries: 66% Other injuries: No other injury seen over the body."

The internal examination revealed as under:-

"INTERNAL EXAMINATION:

HEAD :SCALP AND SKULL: NAD BRAIN: NAD NECK: NASSO-LARYNGO-PHARYNX: NAD CHEST: LUNGS: Consolidated

TRACHEA AND BRONCHI: NAD HEART: NAD ABDOMEN: STOMACH: liquid ..... MUCOSAL WALL: NAD INTERSTINES-NAD, LIVER-NAD, SPLEEN-ENLARGED, KIDNEYS-SWOLLEN, MEDIALLY CONGESTION & PANCREAS- NAD:

PELVIS:BLEDDER- NAD UTERUS- NAD."

Cause of death was opined as septicemia and shock consequent to

the burn injuries.

15 The appellant was arrested by SI Kishore Pandey (PW-25) on

29.02.2008 vide memo Ex.PW-25/A; he was in the hospital at that time;

his arrest was made in the hospital. His personal search Ex.PW-25/B

was conducted.

16 Statement of the witnesses was recorded which included the

statement of the mother of the victim Chhoto Devi examined as PW-7.

The statements of the other near relatives of the victim which included

her brother-in-laws Vinod Kumar (PW-1), Raj Kumar (PW-18); aunt

Om Devi (PW-9), sisters-in-law Indrawati (PW-10) and Usha Devi

(PW-11), uncles Dharampal (PW-17), Balwan Singh (PW-19) and

Hukum Chand (PW-20), was also recorded. All the aforenoted witnesses

had in one tone deposed that the relationship between the appellant and

the victim was strained after their marriage; demands were made by the

appellant upon the victim; he used to harass the victim; all of them had

opined that the appellant was responsible for the death of the victim.

Dinesh (PW-24) was the first person who had heard the cries of the

victim and the appellant and had climbed the wall to enter their house

where he found both of them engulfed in a fire.

17 The evidence collected by the prosecution largely boiled down to

the dying declaration given by the victim to the Investigating Officer on

27.01.2008 implicating the appellant. This evidence coupled with the

medical evidence and the scientific evidence both of which had noted

smell of kerosene on the bodies and clothes of the victim and the

appellant had been relied upon by the trial Court to convict the

appellant. The trial Judge had also noted that the defence sought to be

set up by the appellant that he and his wife had got burn injuries because

of an accidental fire which had taken place when the appellant was

trying to smoke a bidi which aggravated from the leakage of petrol from

his motor-cycle was false.

18 On behalf of the appellant, arguments have been addressed at

length. Written submissions have also been filed. Submission being that

this is admittedly a case of circumstantial evidence; the whole thrust of

the prosecution is on the dying declaration upon which no reliance can

be placed as there were three dying declarations i.e. MLC of the victim

noted by the doctor on 24.01.2008; the second dying declaration was in

the form of the DD recorded by the Investigating Officer Ex.PW-29/DA

which was on 25.01.2008 i.e. one day after the first dying declaration

was recorded. In both these dying declarations no role has been

attributed to the appellant. It was only as an afterthought on 27.01.2008

that the third dying declaration was recorded where for the first time the

name of the appellant has surfaced. Submission being that this dying

declaration has also been recorded by the Investigating Officer without

obtaining any fitness from doctor. There is no explanation as to why the

SDM had not been called. The burn injuries suffered by the appellant

also cannot be ignored; his MLC has recorded 40% burn injuries

whereas the MLC of the victim has recorded 60% burn injuries and had

the intention of the appellant been to kill the victim, he himself would

not have sustained burn injuries to such a large extent. The so called

intent is clearly eliminated. It was only because of the accidental fire

which had taken place at the time when the appellant was trying to light

a bidi and which got aggravated by the petrol leakage from his motor-

cycle which had led to this incident; this is amply substantiated by the

40% injuries suffered by him. Further submission being that the

recovery of so called kerosene can from the spot is also liable to be dis-

believed for the reason that the only attesting witness to this seizure

memo (Ex.PW-29/A) was constable Ram Kumar (PW-21) who has

nowhere in his version stated that the can of kerosene oil was seized by

the Investigating Officer. Attention has been drawn to his version.

Submission being that he had been permitted to be cross-examined by

the learned public prosecutor but even in the cross-examination no

question had been put to this witness about the recovery of kerosene

can. On all scores, there are dents in the version of the prosecution for

which benefit of doubt has to accrue in favour of the appellant and he is

entitled to a consequent acquittal. To support his arguments, reliance has

been placed upon 2011 (2) JCC 804 Smt. Sudesh Sharma Vs. The State

& Anr.; submission being that where there are multiple dying

declarations and one contradicts the other, no reliance can be placed

upon any of them. Reliance has also been placed upon 2013 (2) JCC

1099 State Vs. Kumari Mubin Fatima & Others; submission being that

where there is no evidence to show that the deceased was in fact fit to

make a statement when the dying declaration was recorded and in fact

there being no fitness certificate appended to this dying declaration no

reliance can be placed upon such a version.

19 Learned public prosecutor has refuted these submissions.

Submission being that the dying declaration given by the victim is clear

and cogent; there was no reason for a dying women to have implicated

the accused but for the reason that he had in fact committed the murder;

her version has been fully supported by the medical evidence which is

the MLC of the victim which had noted kerosene smell both on the

bodies of the appellant and the victim as also on their clothes for which

no plausible explanation had been furnished by either of them; and this

has been recorded in their MLCs itself. Further submission being that

the scientific evidence which is the report of the CFSL had also detected

kerosene oil in the clothes of the victim and the appellant for which also

there is no explanation. Impugned judgment does not call for any

interference. The learned public prosecutor has placed reliance upon

AIR 2002 SC 2973 Laxman Vs. State of Maharashtra to support her

stand.

20 Record has been perused. We have also appreciated the

submissions of the learned counsel for the parties.

21 There are three dying declarations given by the victim. The first

dying declaration was made on 24.01.2008 at about 09:30 PM and this

was in the form of the history given by the patient to the doctor and

recorded in her MLC (Ex.PW-30/D). Details have been noted supra.

Admittedly in this dying declaration no role has been attributed to the

appellant. The patient who had given the history herself had got

recorded that because of accidental fire which had taken place when her

husband was trying to light the bidi and the leakage of petrol from the

petrol tank of their motorcycle had led to the incident. Burn injuries of

the victim were noted to be 60%. There were deep burns noted over the

face, neck, anterior trunk lower back both upper limbs parts of the body

as also the lower limbs evidencing thereby that the victim had sustained

injuries almost on every part of her body. This MLC had noted that the

patient was not giving a proper history and inspite of queries, the doctor

having noted the kerosene oil smell coming from her body as also from

her clothes but no explanation was furnished by either the victim or her

husband about this kerosene smell. This MLC (on the right hand corner)

has again noted dehydration and kerosene smell present in the body of

the patient.

22 The second dying declaration of the victim was recorded by the

Investigating Officer in his daily diary on 25.01.2008. The relevant

extract of this reads herein as under:-

"Time 01:31 P.M.. It is entered that I, the SI alongwith accompanying Ct. Ram Kumar have come to the Police Station after investigation vide DD No. 50-A, dated 24/01/08. On the receipt of the call, I reached the place of occurrence i.e. H.No. RZ-40, Mataji Line, Sultan Puri Road, (sic) School, Gopal Nagar, Najafgarh where many burnt clothes were lying in the gallery of the house. The seat of a passion motorcycle bearing Regn. No. HR-14B-1992 was found burnt and one burnt cream coloured jeans shirt was also lying behind the motorcycle. And one ladies‟ kurta, one cardigan, a salwar, shawl were lying burnt near the front wheel of the motorcycle. The foul smell of kerosene oil was coming from the whole house. The SHO arrived at the spot and after enquiry it was learnt that one Jabgir Singh lived in the house as „gharjamai‟ (son-in-law living at the in-laws‟ home) alongwith his wife Santosh and mother-in-law Chhoti Devi. The mother-in-law Chhtoi Devi had gone to the matrimonial home of ther younger daughter Rakesh at Rohtak. And as per the neighbourers, husband-wife were living all alone in the house and the motor cycle got fire due to the leakage of petrol form the motorcycle. Jabgir works as sweeper in CRPF. G-91 Mobile Crime Team was called on wireless. The photographs of the place of the occurrence were taken by the Crime Team and all the burnt clothes and the can of the kerosene oil which was kept near the drum in the interior room and a lot of kerosene which was also lying outside and on the floor were taken into the police possession as a piece of evidence by means of a memo. Thereafter, I, the SI reached S.J. Hospital after receiving the information where Jabgir s/o Sh. Devi Singh and Santosh w/o Sh. Jabgir Singh were admitted vide MLC Nos. 17608/08 and 17609/08 respectively. Jabgir was 45% burnt and Santosh

was 60% burnt. The doctor wrote in (sic...) that when Jabgir ignited the match-stick for smoking, the motor-cycle caught fire accidently as its petrol tank had been leaking. The patient was unable to tell the cause of kerosene oil smell from his body. Santosh Devi w/o Jabgir Singh deposed that I reside with my husband Jabgir and mother Chhoti Devi in the house. Earlier there had been some problem between me and my husband. I had got married in the year 1999. But for the last one year, I have been living with my husband happily. There is no such quarrel between us. Today on 24/01/08 my mother had gone to the matrimonial home of my younger sister Rakesh at Rohtak. My husband Jabgir came back in the evening form his duty as sweeper in CRPF. We have had our dinner and were preparing to go for sleep. I locked the gate while my husband was smoking "Bidi" near the motorcycle. All of a sudden, the motorcycle caught fire. Jabgir was trying to extinguish the fire and his clothes also caught fire. Both of us screamed and shouted for help. Our neighbours saved both of us by jumping the wall (of our house). No one has done this intentionally. You have recorded my statement and read over the same to me. I have heard the statement and the same is correct.

LTI of Santosh Devi Thereafter, the statement of Jabgir Singh s/o Lt. Sh. Devi Singh was recorded who also gave the aforesaid statement and Mrs. Chhoti Devi also deposed the same and told that there was no dispute between both of them and they were living together happily. Both the husband-wife had caught fire because of the catching of the fire by the motorcycle due to the smoking "Bidi" by Jabgir and leakage of petrol from the motorcycle. No one has intentionally done this. I do not suspect anyone. All the facts were apprised to the SHO and the call was held pending."

23 This was on the following day i.e. one day after the date of the

incident at 1.30 p.m. This dying declaration was also made to PW-29,

the Investigating Officer. In this dying declaration, also no role has been

attributed to the appellant. For a second time, it had been reiterated that

the victim had caught fire because of the accident suffered when her

husband tried to light a bidi and which got aggravated by the leakage of

petrol from his motor-cycle.

24 On 27.01.2008, the third dying declaration Ex.PW-29/D had been

recorded. Detailed version has been noted supra. It was in this statement

that the victim for the first time stated that on the fateful day i.e. on

24.01.2008 when her husband came home in the evening at 06:00 PM,

he being in an intoxicated stage had asked her whether she wishes to

stay with him; thereupon he picked up a „can‟ of kerosene oil and

poured kerosene oil on her body; he poured some kerosene oil upon

himself also; he lit a match stick as a result of which she caught fire; on

her attempt to run away from the room, her husband caught hold of her

from the back; she fell upon the hand-pump just outside the room;

thereafter her husband detached the pipe of the petrol tank of the motor-

cycle which was standing at the chowk outside as a result of which the

motor-cycle also got partially burnt; the appellant also sustained burn

injuries. Dinesh (PW-24) as also some other neighbours reached the spot

on hearing the crises of the appellant. She did not disclose the incident

earlier because of threats extended by her husband. The strained

relations between the couple and the intervention of the Panchayat

pursuant to which the victim had rejoined the appellant had also been

detailed; so also the reason for their discord, i.e. because the appellant

was having illicit relations with his Bhabhi Babita, PCR was informed

and she was removed to the hospital.

25     This is the gist of the third dying declaration.

26     This is also the most lethal evidence which the prosecution has

pitched against the appellant.

27     The law on dying declaration is clear. It is settled that a dying

declaration if after a careful scrutiny is found to be true and free from

inducement; being coherent and consistent, it would be sufficient in

itself even in the absence of corroboration to nail the accused. {See AIR

1958 SC 22 Khushal Rao Vs. The State of Bombay). It is not the number

of dying declarations which weigh with the Court. However if there is

plurality in the dying declarations and one is different from the other and

the inconsistencies are apparent and evident, the Court will be dissuaded

from relying upon such dying declaration.

28 A dying declaration cannot be put at the same pedestal as an eye-

witness account. It has to be treated with circumspection and care; this is

especially so as a dying declaration is admissible in evidence without

the right of cross-examination to the accused. The dying declaration

which is admissible evidence under Section 32 of the Indian Evidence

Act is the exception to the rule that hearsay evidence is inadmissible.

29 The law also does not provide that a dying declaration should be

made in any prescribed manner or in the form of questions and answers;

it may be in the narrative form also. It is also not necessary that the

dying declaration has to be recorded by a Magistrate and non-recording

of dying declaration by a Magistrate would not per-se be a ground to

dis-believe the version of the prosecution. {See 2006 Crl. LJ 4646

Balbir Singh and Anr. Vs. State of Punjab).

30 The question that has to be answered is whether this dying

declaration (Ex. PW-29/DA) which is the third dying declaration and

opposed to the earlier two dying declarations inspires confidence and

can be accepted.

31 Record shows that the first dying declaration was recorded within

less than an hour of the incident; it was in the presence of the husband of

the victim. It is a declaration which has been recorded by the doctor.

The MLC Ex. PW-30/A notes the name of the doctor as Dr.K.K.

Sharma, The said doctor has not come in the witness box; he had

apparently left the hospital. In his place Dr. Thakur Thussu (PW-30) had

come into the witness box and had identified the signatures of Dr. K.K.

Sharma. He was subjected to a cross-examination. In his cross-

examination, he has specifically stated that the smell of spirit and

kerosene is different; he had denied the suggestion that smell of

kerosene which was noted in the MLC (Ex.PW30/A) was wrongly noted

and it was the smell of spirit; he specifically stated that the smell of

kerosene is distinct from the smell of a spirit.

32 The second dying declaration Ex.PW-29/DA which was recorded

within a span of 14 hours from the first version also did not implicate

the appellant. The first two dying declarations were in fact consistent.

They had both spoken of the accidental fire pursuant to which the victim

had sustained injuries when her husband tried to light a bidi and the

petrol had leaked from his motor-cycle.

33 The victim and the appellant had been taken to the hospital in the

PCR. The husband was also 40% burnt. Kerosene oil both on the body

of the victim as also on the appellant as also on their clothes was noted

in their MLCs. No plausible explanation could be given by either of

them to the repeated queries put by the doctor as to why kerosene smell

was emanating from their bodies and clothes. The victim was in the

company of her husband. It is but natural that being in the emotional

and turbulent turmoil in which she was and her husband also being in a

burnt state his presence inhibited and prevented her from speaking the

truth to the doctor. This can be gathered from the fact that there are

question marks put in the MLCs by the doctor as to why no explanation

could be given by both of them about the presence of kerosene oil. The

second dying declaration which was recorded at 01:30 on the following

day was also probably for the same reason. Her husband was in the same

hospital. It was again recorded in his presence. This has been noted in

Ex.PW29/A. The victim was pre-empted from making a true disclosure.

She did have the courage to do so. Two days later i.e. on 27.01.2008,

she voluntarily informed the police that she wanted to make a statement.

This narration in Ex.PW-29/D is in the words of the victim and has been

recorded by the Investigating Officer. She has explained that she was

under threat from her husband.

34 In this context the testimony of PW-29 is relevant. He has on oath

stated that on 27.01.2008, call was received from the hospital which had

been documented in DD No. 20-B. This was to the effect that the victim

wanted to make statement. PW-29 reached the hospital along with the

Inspector and recorded the statement (Ex.PW-29/D) of the victim. He

has deposed that the statement as narrated to him by Santosh was

recorded. It was recorded in hindi, the language of the victim. The

disclosure being that the appellant had poured kerosene oil over her and

had burnt her with a match stick; she had not disclosed this incident

earlier because of the threats which had been extended to her by her

husband. In his cross-examination, PW-29 stated that he has received

DD No. 20-B on 27.01.2008 at 01:30 PM and he had reached the

hospital at 02:30 PM. At that time, the mother of the victim and her

brother-in-law i.e. PW-7 and PW-1 were both present in the hospital.

He has admitted that the victim was in the ward at that time; she was not

in the ICU; he had not moved any separate application for obtaining

opinion of the doctor about her fitness as in the MLC itself it has been

stated that the patient is fit for statement. He denied the suggestion that

Ex.PW-29/D was manipulated at the instance of PW-1 and PW-7.

35 Relevant would it be to note that this dying declaration was not

recorded by PW-29 on his own. He had received a phone call from the

hospital informing him that the victim wished to make a statement. This

was documented vide DD No. 20-B. It was only then that he reached the

hospital to record the statement of the victim. Patient was in the ward at

that time; this was the third day of her admission; at the time of her

admission (as is evident from the MLC) she was conscious, able to

speak and follow verbal commands. Her vitals i.e. her blood pressure

and pulse were also stable. The fact that she was in the regular ward and

not in the Intensive Care Unit (ICU) shows that her condition had not

deteriorated. PW-29 in all probability did not obtain a fitness from the

doctor before recording the victim‟s statement for this reason. This has

also been explained by PW-29 in his cross-examination wherein he

stated that he did not move a separate application for obtaining the

opinion of the doctor as the MLC itself had recorded that she was fit for

statement; moreover she was in the ward and not in the ICU. PW-29

had also explained that the SDM was not called because the marriage of

the parties having taken place in year 1999 and being more than seven

years old and only in cases of abnormal death, within seven years of

marriage that a Magistrate is summoned.

36 Relevant would it be to also point out that certain private

informations elicited in Ex.PW-29/D by the victim were in the personal

knowledge of the victim alone; these related to the intervention of the

panchayat; the fact that kerosene was poured by the appellant not only

upon the victim but also upon himself; he detached the petrol pipe of the

motor cycle standing outside in the chowk; she fell down on the hand-

pump; on hearing her cries, Dinesh Kumar their neighbour jumped the

wall to save her; her husband had illicit relations with his bhabhi Babita.

All these facts were in the know-how of the victim alone; it is also

relevant to state that up to this time, statement of the other relatives had

not recorded; they were recorded by PW-29 later on. This narration of

the victim in Ex. PW-29/A stood corroborated by their testimonies; as

such the suggestion that this statement was manipulated by the

Investigating Officer is patently incorrect. The victim had also explained

that she did not disclose the true picture earlier because of the threats

extended by her husband.

37 It is true that a dying declaration recorded by the Investigating

Officer should not be encouraged but under extenuating circumstances

as was so in the present case where the Investigating Officer noting that

the marriage was more than seven years‟ old did not think it a fit case to

summon the SDM, it was he himself who recorded this statement. His

version that this dying declaration was made in the presence of PW-7 &

PW-1 is also corroborated not only from their ocular testimonies but

also from the fact that Ex.PW-29/D has been attested by PW-7 & PW-1

as well. It is also not the case of the appellant that any tutoring was done

upon the victim pursuant to which she had made this statement. No such

suggestion has been given to PW-1, PW-7 & PW-29 on this count, this

is also not their defence. Defence projected by the appellant was that

this was an incident that when he tried to light his biri and the petrol

pipe had leaked.

38 The medical record (MLC of the victim) shows that she had been

admitted in the hospital with 60% burns. This was on 9.30 p.m on

24.01.2008. She was fully conscious and well oriented. She had

succumbed to her injuries five days later. Her mental faculties to make

a statement were never in challenge. It is not the defence of the appellant

that on 27.01.2008 when she had given her this statement incriminating

the accused, she was not of a sound disposing mind.

39 The fact that the declarant was fit to make a statement on

27.01.2008 in fact cannot be doubted.

40 PW-7 is the mother of the victim. She was in Rohtak at the time

of incident. She has on oath deposed that at 10:00 PM on the fateful day,

she has received a phone call informing her that the appellant had burnt

her daughter; phone call was received by her son-in-law Vinod. She

returned to Delhi on the same day; on the next day, she met her daughter

for hardly for one minute and being in a burnt condition, she came back.

Her daughter informed her that she wanted to make a statement to the

police pursuant to which the police in her presence and in the presence

of PW-1 recorded the statement of Santosh wherein she incriminated the

appellant and stated that he has poured kerosene oil on her and ignited a

matchstick and threw it upon her. PW-7 also stated that her daughter

told her that kerosene oil was kept in a small can behind a small

container which the appellant had sprinkled upon her; the victim also

told her that when she tried to run outside, he caught hold of her from

behind as a result of which she fell down and the motor-cycle which was

parked outside caught fire; the appellant had detached its petrol pipe. In

her cross-examination, PW-7 has admitted that she has no male issue

and her house at Najafgarh is in her name where the appellant and his

wife were living; she admitted that they have a gas connection; she

admitted that they have never used kerosene oil and in fact kerosene oil

was never kept at the house; the appellant must have purchased the

same. She denied the suggestion that Santosh had not made a statement

on 27.01.2008.

41 The brother-in-law of the victim was examined as PW-1. He was

in Rohtak at the relevant time. He has deposed that on 24.01.2008,

phone call was received that Santosh had been put on fire by the

appellant. He along with his mother-in-law (PW-7) reached Delhi where

they learnt that the appellant and the victim had been admitted in

Safdarjung Hospital. He deposed that about one or two days later,

Santosh made a statement before PW-29 and to another senior officer

and in the presence of his mother-in-law (PW-7) stating that the

appellant had put her on fire by pouring kerosene oil upon her. He

admitted that his mother-in-law does not have any son; he arrived in

Delhi on 24.01.2008 and stayed there till 28.01.2008. He denied the

suggestion that no statement was given by the victim on 27.01.2008 to

PW-29.

42 The other relatives of the victim i.e. PW-17, PW-18 and PW-19

had also reached the hospital after hearing about the incident. PW-17

Dharampal was the uncle-in-law of the victim. His version is that when

he went to the room of Santosh and made inquiries from her she

informed him that her husband had burnt her by pouring kerosene oil

upon her. PW-18 had also deposed on the same lines. PW-19, Balwan

Singh is the uncle of the victim. He is a witness who had reached the

place of incident on hearing cries of his niece. His version is that on

24.01.2008 he heard shrieks of Santosh; his house was at the backside;

there was a road in between. When he reached the house, he saw

appellant scratching on the neck of Santosh and saying that he will not

permit her to escape; at the hospital he was told by Santosh that she had

been burnt by her husband. PW-20 Hukum Chand is another uncle of

the victim. He also received a phone call on 24.01.2008 about the

incident. This phone call was received by his son Yogesh. He reached

the spot where he learnt that Santosh had been admitted at the hospital.

He reached Safdarjung Hospital where she met Santosh at the Hospital

and she told him that her husband had poured kerosene oil and burnt her

to death. PW-10 Indrawati is the sister-in-law of the victim. PW-11- is

also another sister-in-law. As per their version both of the them had

learnt that the appellant had burnt Santosh; they reached there; both of

them tried to extinguish the fire; the door was locked from inside; a

neighbour jumped over the wall; the appellant and the victim were taken

to the hospital. The neighbour who had removed the injured to the

hospital was Dinesh examined as PW-24. He has corroborated this fact.

43 This defence as set up by the appellant is palpably false. The

theory of petrol leakage has been answered by the victim herself in the

dying declaration. She has narrated that when she tried to flee from the

room, her husband caught her from behind and prevented her from

running out; she fell on the water pump outside the room; her husband

detached the petrol pipe from the motor-cycle. Although there is no

direct evidence on this point and there can also be none as what goes

inside the mind of a person is known only to that person but it appears

that the appellant at that point to save his skin and build up a defence he

detached the petrol pipe from the motor-cycle. The fact that this is a

bogus defence is also evident from the fact that MLC has positively

noted kerosene smell emanating from the bodies of the victim and the

appellant as also from their clothes as also the further noting that inspite

of repeated inquiries, there was no plausible explanation given by the

victim and the appellant on this count. PW-29 in Ex.PW29/DA had also

noted that the whole house was smelling of kerosene.

44 The recovery of the kerosene „can‟ from the spot as also the

clothes of the victim which had been sent for scientific examination and

the CFSL report (Ex PW31/A) opined that kerosene oil was detected on

the clothes of the appellant and of the victim further establishing that the

narration given by the victim in the dying declaration was a true and

correct narration. That is how and why kerosene was detected. PW- 30

the doctor, who had come into the witness box to answer the queries on

the MLC has also stated that there is a distinction between the smell of

kerosene and spirit. He denied the suggestion that kerosene oil was

wrongly noted in the MLC.

45 There is no explanation by the appellant on this score. Even on

repeated questioning to the learned counsel for the appellant, he was

devoid of any answer on this count. The observation that no kerosene

was noted at the time when the post-mortem was conducted was for the

obvious reason that the post mortem was conducted on 03.02.2008 i.e.

after 10-11 days from the date of the incident and the patient having

been treated in the hospital in this intervening period from 24.01.2008

up to 02.02.2008 (when she finally succumbed to her injuries) it was

obvious that it was for this reason that the kerosene could not be noted

in the post-mortem.

46 PW-21 was an attesting witness to the seizure of the kerosene

„can‟ which had been seized vide memo Ex.PW31/A. He had, however,

been silent on this recovery. However, silence by him on this point

would not score out the recovery. This recovery has been specifically

deposed to the Investigating Officer PW-29; the photographer (PW-14)

has also taken photographs of the scene of the crime; from the

photographs it is evident that kerosene can was present at the spot; in

fact PW-4 had specifically stated that he had taken the photograph of

kerosene „can‟ lying at the spot. PW-7 has also admitted that there was

no gas connection in their house. Why and who brought the kerosene to

the house and that too when PW-7 was away in Rohtak? It was no other

reason but the appellant having brought it for a specific purpose i.e. to

commit the aforenoted offence.

47 The site plan Ex.PW12/A has also been perused. The broken

handle and pump and the motor cycle parked outside the room had been

seized vide memo Ex PW-29/C. This has also been depicted in the

photographs. The photograph of motor-cycle shows that only the seat

had been partially burnt. If the defence as sought to be set up by the

appellant was true and there was leakage of petrol from its petrol tank,

there would not have been a partial burning of the seat alone. Moreover,

PW-1 has stated that the motorcycle was driven to the police station

meaning thereby that it was in a working condition.

48 There is no doubt that the appellant had suffered injuries. He

remained in the hospital for almost a month. His burn injuries were

40%. His MLC evidenced superficial burn injuries on his face, neck and

both upper limbs. The placement of these burn injuries in fact

corroborates the narration in the dying declaration (Ex.PW-29/D)

wherein the victim has explained when she was trying to flee; her

husband caught her from behind and tried to prevent her from running

out; that is how the burn injuries occurred on his face and his upper

trunk and upper limbs. The medical evidence thus corroborates this

narration in the dying declaration.

49 The landmark Constitution Bench judgment of the Apex Court on

a dying declaration reported as AIR 2002 SC 2973 Laxman Vs. State of

Maharashtra had noted that it is not necessary that a dying declaration

should be made in the presence of a Magistrate; the evidential value or

weight to be attached to such statement depends on the facts and

circumstances of each case; The deceased must be in a fit state of mind;

even without examination by the doctor such a declaration can be acted

upon provided the Court ultimately held the same to be voluntary and

truthful. The observations of the Apex Court are reproduced herein

below:-

"The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross examination are dispensed with. Since the accused has no power of cross examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting 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 look 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 in 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 is 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."

50 Tested on this anvil Ex.PW-29/D is true, accurate and a correct

depiction of facts; it is cogent coherent and inspires confidence.

Prosecution has been able to establish it case to the hilt.

51. Appeal is without any merit. Dismissed.

INDERMEET KAUR, J

KAILASH GAMBHIR, J OCTOBER 07, 2013 A