Jitender Singh vs State Of Delhi
2014 Latest Caselaw 1771 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment delivered on: April 02, 2014

+       CRL.A. 464/1999
        JITENDER SINGH                                 ..... Appellant
                        Through:      Mr.M.A. Rahman, Mr. Ali Abbas,
                                      Advocates
                          Versus

        STATE OF DELHI                                    ..... Respondent
                     Through:         Ms. Richa Kapoor, Additional Public
                                      Prosecutor for the State with Mr.
                                      Archit Singh, Advocate
        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MS. JUSTICE SUNITA GUPTA

                               JUDGMENT

KAILASH GAMBHIR, J

1. By this appeal filed under section 374 of Criminal Procedure Code,

1973 (hereinafter referred to as 'Cr.P.C.'), the appellants seek to challenge

the impugned judgment dated 28.05.1999 and order on sentence dated

29.05.1999 whereby the Appellant - Jitender Singh is convicted for

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

1860 (hereinafter referred to as 'IPC') and the appellant was sentenced to

undergo rigorous imprisonment for life and to pay fine of Rs.5,000/- and in

case of default, to undergo further rigorous imprisonment for a period of six

months.

2. The facts germane to the case of the prosecution are that -

That accused Jitender had thrown acid on his own mother, Smt. Maya Devi over some property issue. On 9.8.97 on receipt of DD no. 25B for enquiry, HC Sanjay Kumar alongwith constable Tarsem Singh went to the place of occurrence of the incident at House no. D-53 Indira Jheel, Friends Enclave, Sultan Puri, Delhi. Injured was removed to DDU hospital. No eyewitness was found at the spot. The police then went to DDU Hospital. The police then collected the MLC of injured Smt. Maya Devi. Since she was found fit to make statement, her statement was recorded. She stated in her statement that she stayed with her family at the aforesaid address. That her son used to quarrel with her quite often: that he used to ask her to get the house(property) transferred on his name or else he would throw her out of the house. She further stated that on that day at about 8.00 am while she was sitting at the door of her house, accused jitender said that 'mein tumhe aakhiri baar kehta hun ye ghar mujhe dedo, varna iska natija bura hoga.'She asked him to pay the debt that was due on them, he clearly barged away and blatantly conveyed that I won't pay a single penny. He then asked her' tujhe abhi maza chakhata hun' and filled a jug with tejab(acid) and poured it on his mothers head.She raised an alarm. Her son Satinder and husband came, jitender ran away from there. She was then removed to the hospital. Smt. Maya devi and her husband did put signatures on the statement. The same was attested by HC Sanjay Kumar. He prepared the endorsement and sent the same through Constable Tarsem Singh to the police station to get the FIR registered. FIR was registered u/s 307 IPC by the IO. Thereafter, the FIR was handed over to the SI, R.P.

Singh. He went at the spot and prepared a site plan, recorded the statement of the witnesses, seized the steel jug without handle and one black coloured can containing acid and deposited the same in the malkhana.

Accused was arrested during investigation. Unfortunately, Smt. Maya devi died on 11.9.97. Thereafter, inquest proceedings were conducted and the body was sent for post mortem. Thereafter, challan was filed Case was committed to court of sessions on 16.12.97. Accused was charged under section 302 IPC to which he pleaded not guilty and claimed trial.

3. To prove its case the prosecution examined as many as 9 witnesses.

After the completion of prosecution evidence, statement of the accused was

recorded under Section 313 of Cr.P.C. wherein the entire incriminating

evidence was put to him and in reply he pleaded innocence and false

implication.

4. On behalf of the Appellant - Jitender Singh, arguments were

addressed by Mr. M.A. Rehman, Advocate. The State was led by Ms. Richa

Kapoor, learned Additional Public Prosecutor.

5. Addressing arguments on behalf of the appellant Mr. M.A. Rehman,

Advocate submitted that there is not even an iota of evidence proved on

record by the prosecution against the appellant and yet the learned trial court

has found the appellant guilty for committing such a grave offence that too

against his own mother.

6. Learned counsel for the appellant further submitted that the entire

case of the prosecution is based on the testimonies of two eye witnesses and

also on the alleged dying declaration made by the deceased. On the

testimony of the two eye witnesses, counsel for the appellant submitted that

both these eye witnesses turned hostile and no cognizance can be taken of

the statement made by them under Section 161 of Cr.P.C. and thus, the very

genesis of the prosecution case stood demolished with the said two eye

witnesses turning hostile.

7. So far as the dying declaration of the deceased Maya is concerned,

learned counsel for the appellant submitted that the same was recorded by a

police official and as per the settled legal position, recording of dying

declaration by any police official has to be looked upon with suspicion and

doubts. Learned counsel for the appellant also submitted that the

Investigating Officer did not take any steps to requisition the services of a

Sub-Divisional Magistrate, who could be the only competent officer to

record the dying declaration of the deceased.

8. Learned counsel for the appellant further submitted that even the

Investigating Officer did not get certification of medical condition of the

deceased before recording her statement. Learned counsel further submitted

that the alleged dying declaration recorded by the Investigating Officer is

totally inadmissible in evidence and based on such an inadmissible

document, the appellant cannot be held guilty for committing such a serious

offence.

9. Learned counsel further raised a doubt about the presence of the

appellant at the spot i.e. at the residence at House No.D-53, Indira Jheel,

Friends Enclave, Sultanpuri, Delhi, as he was away to his in-laws house at

Ghumas Pur, Distt Farukabad and he returned back two days after the date

of incident. Learned counsel for the appellant further submitted that the

appellant was falsely implicated in the present case at the instance of some

of the creditors from whom his mother had taken certain loans. Besides

raising the aforesaid contentions on merits of the case, learned counsel for

the appellant laid much stress on the sufferings which the appellant and his

wife had already undergone due to incarceration of the appellant for a

period of about 7 years and upholding the judgment and order on sentence

will further ruin him and his entire family. Learned counsel for the appellant

pleaded for bestowing mercy as there is none else except him to support his

family and further incarceration of the appellant will put his wife and

children on the road to starvation.

10. Based on the aforesaid submissions, learned counsel for the appellant

urged that the impugned judgment of conviction and order on sentence

passed by the learned trial court be set aside.

11. Refuting the aforesaid submissions made by learned counsel for the

appellant, Ms. Richa Kapoor, Additional Public Prosecutor for the State

vehemently contended that the case of the prosecution is an open and shut

case even despite the fact that the two of the prime witnesses had turned

hostile. Learned APP further argued that the incident had happened at the

residence of the victim where the appellant was also residing and time was

around 8.00 a.m. in the morning on 09.08.1997 when the alleged quarrel had

taken place between the appellant and his mother. Learned APP further

submitted that PW-1 husband of the deceased and other son PW-2 -

Satinder Kumar were also present in the house and after the incident, the

victim was immediately rushed to the hospital by PW-1and PW-2. Learned

APP also submitted that matter was reported to the police vide DD no. 25B

at about 10.00 a.m. and immediately thereafter police had reached the

residence of victim and by that time, victim was already taken to the

hospital. Learned APP further submitted that at the hospital, HC Sanjay

Kumar (PW-5) recorded the statement of the victim on which the

endorsement was made by him and rukka was sent to the Police Station for

registration of the FIR. Submission made by the learned APP was that there

was no delay in the registration of FIR and therefore, there was no

possibility of false implication of the appellant either by the victim or the

other family members, as within such a short span of time , there arise

remote chances of any person to have cooked up a false story to implicate

the appellant. Learned APP further argued that PW-1 and PW-2 had turned

hostile although in their statements recorded under Section 161 Cr.P.C. they

had fully supported the same version as was narrated by the deceased in her

first statement and thus, it is quite evident it was later that these witnesses

thought to find a rescue for the appellant who is none else but their own

family member. Learned APP further argued that even despite the fact of

the said prime witnesses turning hostile, the dying declaration of the

deceased is a strong piece of incriminating evidence as against the appellant

and there is no escape route for the appellant to wriggle out from the same.

12. Learned APP further submitted that no mother would falsely

implicate his own son unless the crime is actually committed by him that too

in such a veracious manner and this is what had happened in the present

case. Learned APP further submitted that the victim was fully conscious and

her mental faculties were quite alive as per the MLC report proved on record

as Ex.PW-7/A and therefore, even in the absence of any medical

certification, one can find that the victim was absolutely medically fit to give

her statement to the Investigating Officer. Learned APP also submitted that

the said statement was also duly signed by the husband, although in his

cross-examination, he took a false stand of appending his signatures on

blank papers. Learned APP also argued that at the time of making the said

statement by the victim, the case against the appellant was registered under

Section 307 IPC and the Investigating Officer did not requisition the

services of the Sub-Divisional Magistrate under wrong notion that perhaps

the victim would survive. Learned APP also argued that the victim remained

in the hospital for about 15 days and during the said period, she almost

remained unconscious. Learned APP further submitted that mere fact that

that the said statement was recorded by the police official, the same by itself

would not be enough to disbelieve the last statement of the deceased even in

the absence of any certification by the doctor.

13. Learned APP further stated that plea of alibi was also taken by the

appellant in his answer to the last question put to him while recording his

statement under Section 313 of Cr.P.C., but no defence was adduced by the

appellant to prove that he was not present at the time of commission of the

crime and he was away from Delhi.

14. Based on the aforesaid submissions, learned APP for the State prayed

that the judgment and order on sentence passed by the learned trial court be

upheld.

15. We have heard learned counsel for the parties at considerable length

and given our thoughtful consideration to the arguments advanced by them.

We have also perused the records of the learned Trial Court.

16. The case in hand depicts the most gruesome and barbaric act of killing

a woman by throwing acid on her head by none else but her own son. It is

hard to fathom that one's own blood would commit such a ghastly act of

killing his own creator that too out of greed to get the property in his own

name. A mother who keeps a child for nine months in her womb, who

makes all the sacrifices and bears all the pain without any mope or anguish

to bring him to life cannot in her wildest dreams imagine that the same

child would one day devastate or ravage her sanctity in such a petrified

manner for his sheer crude motives, just for a mere property right. It shakes

the very basis of humanity, it kills the faith and emotional bonding borne in

the relationship of a mother and his son. It is a dismal truth that acid attacks

are quite common in our country, no wonder that any man or woman with

malicious intent to take revenge, disfigure and harm the person, commit

such a sick act, but committing such an offence with none else than your

own mother, tarnishes the very creation of the society as a whole. It causes

excruciating pain and terror. The victims are left mutilated and scarred for

the rest of their lives, and a few relent.

17. One such harsh reality was experienced by Smt. Maya Devi on the

morning of 09.08.1997 at 8 a.m., when the deceased was just sitting at the

door of her house, her son - the appellant herein started intimidating her to

transfer the house in his name or she would be made to face dire

consequences. The mother expressed her helplessness by saying that who

would pay the debts of the creditors and it was important that the same

should be satisfied first, she asked him to take responsibility, which

instigated his son and the appellant started abusing her, and to teach her a

lesson, he then poured acid(tezab) over her head. The mother started crying

and on her crying, her husband -Hodal Singh and son- Satinder reached and

on seeing them, the accused ran away. The victim was immediately taken to

the hospital by her husband and the son. The matter was reported to the

police vide DD No. 25B which was assigned to PW-5 HC Sanjay Kumar

who first went to the place of occurrence and not finding the victim there,

he then reached the DDU Hospital along with Constable - Tarsem Singh.

PW-5 Sanjay Kumar and Constable Tarsem reached the DDU Hospital at

11-1105 a.m. and after reaching the hospital they contacted the doctor who

attended the victim. MLC of the victim Maya Devi was collected by the said

officials and thereafter, they reached to the patient at about 11.35 a.m. when

HC Sanjay Kumar had recorded her statement which was proved on record

as Ex. PW-5/A. The said statement was endorsed by the Head Constable

Sanjay Kumar vide Ex.PW-5/B and FIR No. 735/97 was registered based

on the said first statement of the victim. At the end of her statement, victim

had appended her right thumb impression and this statement was also duly

signed by Hodal Singh, her husband. It was also attested by HC Sanjay

Kumar. On perusal of the endorsement as made by HC Sanjay Kumar on the

first statement of the victim, one finds that HC Sanjay Kumar had duly

referred to the MLC Report and the condition of the victim recorded in the

MLC, was satisfactory as she was fit to make a statement. The victim had

even duly heard her statement before affixing her thumb impression. This

dying declaration has been subject matter of the controversy before the

learned Trial Court and before this court as well. The main objection raised

by counsel for the appellant was that the police official is not a competent

person to record the dying declaration of the victim; the second contention

raised was that the police official did not requisition the services of Sub

Divisional Magistrate for recording the dying declaration of the deceased

and thirdly because the dying declaration was not certified by the doctor

about the fitness of the victim.

18. The learned Trial Court has very objectively and comprehensively

dealt with this issue and we do not have any kind of disagreement with the

reasoning given by the learned Trial Court. The learned Trial Court was

right in observing that at the time of recording the dying declaration of the

victim by the police officer, the victim was only a complainant and

therefore, the presence of the doctor was not required nor there was any

need to requisition the services of the Sub Divisional Magistrate. It is a

settled legal position that in all such cases, the same very statement which

was recorded as a complaint or statement under Section 161 Cr. P.C. can be

considered as a dying declaration if ultimately the victim does not survive as

a result of injury sustained by him/her. However, before accepting such a

statement of the victim as a dying declaration the same must strictly and

carefully be scrutinized to inspire full confidence of the court in its

truthfulness and correctness. So far as the facts of the present case are

concerned, there was no occasion for the Investigating Officer to have

requisitioned the services of SDM or to separately seek certification of the

doctor as the Investigating Officer had recorded the complaint of the victim

with an impression that she would survive. The litmus test in all such cases

is that whether the statement made by the victim inspires confidence of the

court or not and such an inspiration or satisfaction of the court also depends

upon the other surrounding circumstances proved on record in order to give

strength to such statement made by the victim.

19. The spontaneity with which the statement of the victim was recorded

by the Investigating Officer, i.e. immediately after she had reached the

hospital cannot be construed as a result of any kind of tutoring or prompting

of the victim. Another important question here is that as to who would tutor

the victim and with what motive? In the present case, the victim is none else

but the mother of the accused and the only person who had reached the

hospital along with the victim was none else but their own family members.

It is not the case of the accused that her mother was tutored or prompted by

his own father and brother or the HC Sanjay Kumar was derived by any

malice to falsely implicate the present appellant. The learned Trial Court is

right to observe that no suggestion was put to PW-5 Sanjay Kumar that he

had recorded the statement of the victim Ex.PW-5/A on his own or that he

was influenced by any extraneous considerations. The learned Trial Court is

also right in observing that the suggestion given in the cross-examination of

HC Sanjay Kumar that thumb impression of Smt. Maya Devi on Ex.PW-5/A

was obtained on a blank paper amounts to admission on the part of the

accused that thumb impression at point 'A' on Ex.PW-5/A was of the

deceased Smt. Maya Devi. Smt. Maya Devi was also found fully conscious

and oriented as per the opinion given by the doctor in the MLC proved on

record as Ex.PW-8/A and it was proved on record that the statement of the

victim was recorded by HC Sanjay Kumar after having obtained the said

MLC wherein her such condition was recorded. The said statement of the

victim was also duly signed by PW-1 Hodel Singh, father of the accused but

in his cross-examination he took a stand that his signatures were obtained on

blank papers by the HC Sanjay Kumar. The learned Trial Court is right in

observing that this false plea was taken by PW-1 Hodel Singh in order to

save the accused, his own son.

20. It's a trite law that once the court is satisfied that dying declaration

made by the victim was true and voluntary without being tutored or

prompted , the conviction of the accused undoubtedly can be based on such

a dying declaration even without further corroboration. The principles

governing dying declaration are fairly well settled. They were eloquently

summed up by the Hon'ble Supreme Court in the matter of Paniben vs

State of Gujarat, AIR 1992 SC 1817, which reads 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."

21. In Anil Kumar vs. State, 2014 I AD (Delhi) 531, the Hon'ble

Supreme Court held as under:-

"It will also be useful here to refer to the judgment of the Supreme Court in the case of State of Haryana v. Mange Ram & Ors, reported in MANU/SC/1125/2002 : AIR 2003 SC 558, wherein the Apex Court took a view that under Indian law, for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making his statement should be under the shadow of death. Relevant parts of the same is reproduced as under:-

That is not what Section 32 of the Indian Evidence Act says. That is not the law in India. Under Indian Law, for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death and should entertain the believe that his death was imminent. The expectation of imminent death is not the requirement of law.

16. The concept of dying declaration was also extensively discussed by the Constitution Bench of the Supreme Court in the case of Laxman v. State of Maharashtra, reported in MANU/SC/0707/2002 : 2002 6 SCC 710 wherein it was held as under:-

"The justice 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 promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration 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."

22. Applying the aforesaid settled principles to the facts of the present

case, we have no hesitation in affirming the view taken by the learned Trial

Court that the said dying declaration recorded by the Investigating Officer

and proved on record as Ex.PW-5/A was a genuine last statement made by

the deceased uninfluenced by any kind of prompting, tutoring or any other

external pressure and the same was also recorded when the Investigating

Officer had satisfied himself about the medical fitness of the victim from

the MLC.

23. The plea of alibi taken by the accused was not proved by him as no

evidence was led by him in this regard. The learned Trial Court is right in

discoursing that for proving a plea of alibi, the same must be proved with

absolute certainty so as to completely exclude the possibility of presence of

a person at the spot of the crime. No evidence was adduced by the accused

to prove that he was not present at that time of commission of crime.

24. The two prime witnesses, who later turned hostile were none else but

the father and brother of the accused and it is quite explicable as to why they

had turned hostile. Their initial statements recorded under Section 161 Cr.

P.C. were in complete conformity and consonance with the last statement

made by the victim and therefore, their position at the time when the crime

was committed and after the death of the victim had completely distorted.

After the death of Smt. Maya devi, it is quite palpable that they would try to

find a rescue for their family member who is well alive and has a family

comprising of one child and his wife, and most importantly who is none

other but her own son. Certainly, the father after having lost his wife would

not like to loose his son and this reason is sufficient to have made him

turned hostile at the time of his court deposition. However, we find the

other circumstantial evidence including the dying declaration made by the

deceased sufficient enough to do absolute justice at least to the soul of the

victim who was killed by her own son in such a brutal, inhuman and

barbaric manner. We do not see any reason to sympathise with a man, who

had the audacity to devastate his own creator, his mother. No doubt that

presently he has his wife and children to be taken care of, but we cannot be

oblivious of the fact that all the circumstances strictly support the malicious

and horrific intent of the accused and leave no iota of doubt that it was him

who committed the offence. It is solely the accused who created this destiny

for himself 17 years ago.

25. In the light of the above discussion, we do not find any illegality or

perversity in the judgment and order of sentence passed by the learned Trial

Court holding the appellant guilty for committing an offence punishable

under Section 302 IPC and awarding him sentence to undergo rigorous

imprisonment for life.

26. Finding no merit in the appeal filed by the appellant, the same is

dismissed.

27. The appellant is on bail. His bail bonds and surety bonds are

cancelled. He is ordered to be taken into custody forthwith.

28. A copy of this order be sent to Jail Superintendant for information.

29. It is ordered accordingly.

KAILASH GAMBHIR, J

SUNITA GUPTA, J APRIL 02, 2014 pkb