Banwari Lal vs State Of Delhi
2014 Latest Caselaw 547 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRL. APP. NO.371/1999

BANWARI LAL                                  ..... Appellant
                             Through:   Mr. Avninder Singh, Advocate.

                        Versus

STATE OF DELHI                               ..... Respondent
                             Through:   Ms. Rajdipa Behura, APP


%                            Date of Decision : January 29, 2014


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
HON'BLE MS. JUSTICE PRATIBHA RANI

                             JUDGMENT

: REVA KHETRAPAL, J.

1. The present appeal has been filed against the judgment of conviction under Section 302 IPC and the consequent sentence of simple imprisonment for life imposed upon the Appellant in addition to fine of ` 2,000/- and in default of payment of fine to undergo simple imprisonment for one year.

2. The criminal law machinery was set in motion at 10.18 p.m. on 25.3.1992 on receipt of DD No.17A (Ex.PW7/A) at Police Station Geeta Colony to the effect that information was received from PCR about the burning of a lady at a house near Rani Garden, Shiv Mandir. On the same day, at about 10.50 p.m., another information was

received from JPN Hospital given by the duty constable about the admission of Kiran, wife of Banwari Lal at the said hospital, which was entered in the roznamcha by the duty officer of Police Station Geeta Colony as DD No.18A (Ex.PW7/B). Copy of the said DD was handed over to Constable Madhu for onward transmission to Sub- Inspector Arun Kumar.

3. On receipt of DD No.17A, Sub-Inspector Arun Kumar, who was on emergency duty, along with Constable Adesh Kumar reached the spot at House No.127, Rani Garden where it was revealed that injured Kiran who had received burn injuries had been removed by her father Swaran (PW4) and neighbour Baldev Raj (PW2) to JPN Hospital. In the meantime, Head Constable Iqbal and Constable Prehlad Singh also reached the spot and leaving them to guard the spot, Sub-Inspector Arun Kumar along with Constable Adesh went to JPN Hospital, where he collected the MLC of the injured and recorded her (Kiran‟s) statement (Ex.PW23/A) after obtaining the opinion of the doctor (PW26) that the injured was fit for making statement. After recording the statement of the injured, Sub-Inspector Arun Kumar along with Constable Adesh came back to the spot where he found the crime team and the photographer. The SHO was also present at the spot. Sub-Inspector Arun Kumar made his endorsement on the statement of the injured Kiran, which is Ex.PW23/B and handed over the same to Constable Adesh for registration of the case, who took the same to the Police Station and got registered the case vide FIR No.83/92 (Ex.PW10/A). He then inspected the site and prepared the site plan (Ex.PW23/C) and

recorded the statements of witnesses including that of public witness Kasturi Lal (PW19), who had overpowered the accused and produced the accused before him. Seizure Memos (Ex.PW12/A to 12/D) were prepared after seizure of the articles at the spot and the articles were seized and sealed. Seal after use was handed over to Kasturi Lal. The accused was got medically examined in JPN Hospital for the burn injuries sustained by him.

4. On 26.3.1992, at about 11.50 a.m., the Investigating Officer Sub-Inspector Arun Kumar received copy of DD entry No.7A (Ex.PW8/A) through Constable Ashok regarding the death of Smt. Kiran. On receipt of the said information, he communicated the same to the SHO concerned, who, in turn, apprised the SDM. The SHO and the SDM Shri R.K. Mishra reached the mortuary where inquest proceedings were completed by the SDM and the postmortem got conducted (Ex.PW18/A). Apparently, at this point of time, the SDM directed that the case be converted from one under Section 307 IPC to one under Section 498A and 304B IPC. On the aforesaid direction of the SDM, Sub-Inspector Arun Kumar added Sections 302/304B and 498A IPC and informed the SHO in this regard. Further investigation was taken over by the SHO himself.

5. On 1.4.1992, on the direction of the SHO, SI Arun Kumar took child witness PW22 Bablu, son of the deceased, to the Court and got recorded his statement under Section 164 Cr.P.C. (Ex.PW21/B) through the Metropolitan Magistrate by moving an application in this regard (Ex.PW23/E). On 10.4.1992, the exhibits were sent to the CFSL on the direction of the SHO. Later on, on 5.6.1992, SI Arun

Kumar collected the scaled site plan and handed over the same to the SHO.

6. In order to substantiate its case against the accused, the prosecution examined as many as 26 witnesses and exhibited a large number of documents. From these witnesses, the material witnesses were PW2 Baldev Raj, neighbour of the deceased; PW3 Suresh, the brother of the deceased; PW4 Swaran, the father of the deceased; PW19 Kasturi Lal, by all accounts an independent witness residing in the neighbourhood and PW22 Bablu, the son of the deceased. The remaining witnesses were witnesses with regard to the investigation, the medical examination of the deceased and the accused and other formal witnesses.

7. The statement of the accused Banwari Lal was recorded under Section 313 Cr.P.C. The accused in his statement denied the prosecution case in toto and claimed innocence. He stated that his wife had died by receiving burn injuries from the stove at the time of preparing food. He also stated that his wife had not given any statement prior to her death and the statement of his wife had been "falsely prepared by the IO" for implicating him in the case. The accused, however, chose not to lead any defence evidence.

8. We have heard Mr. Avninder Singh, learned amicus curiae for the Appellant and Ms. Rajdipa Behura, learned Additional Public Prosecutor for the State and scanned the evidence on record with the assistance of the counsel for the parties.

9. Mr. Avninder Singh, the learned amicus curiae assailed the case of the prosecution on a number of grounds. He contended that

the authenticity of the dying declaration recorded by the Investigating Officer was highly questionable since the same was not signed either by the concerned doctor or by any other attesting witness. Further, no attempt had been made by the Investigating Officer throughout the night intervening 25th March and 26th March, 1992 to obtain the presence of the Magistrate for the purpose of recording the dying declaration. Still more damaging was the fact that the Investigating Officer who recorded the statement of the deceased, though he attested the dying declaration, did not state that the deceased was in a fit state of mind at the time of recording of her statement. Reference was made by Mr.Avninder Singh in this regard to the Delhi High Court Rules and Orders, Volume 3, Chapter 13-A. Our attention was specifically drawn to Rule 7 wherein it is stated that where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall be got attested by one or more of the persons who happen to be present at that time. In the present case, learned counsel contended that dying declaration was not attested by any of the persons present at the spot except the Investigating Officer, though admittedly the neighbour of the deceased Baldev Raj (PW2), the brother of the deceased Suresh (PW3) and the father of the deceased Swaran (PW4) were present at the time of the recording of the dying declaration. As a matter of fact, PW2 - Baldev Raj and PW4 - Swaran categorically stated that the doctor was present when the dying declaration was recorded, but PW26 - Dr. R.K. Srivastva contradicted this by stating that he was not present when the dying declaration was recorded.

10. Mr. Avninder Singh, learned amicus curiae referred to the decision of the Supreme Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC 465 in support of his contention that the non-examination of the doctor who was stated to have been present at the time of recording of the dying declaration is a significant factor which cannot be overlooked and that in such circumstances it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case so as to render the dying declaration worthy of inspiring confidence. He contended that the cumulative effect of the other evidence including the medical evidence and the totality of circumstances must be taken into consideration to assess the correctness of the dying declaration. In particular, he relied upon the following portion of the judgment in Nallapati Sivaiah (supra):

"46. It is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The evidence of the Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statement. It is for that reason non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said to have been present at the time of recording of both the dying declarations attains some significance. It is not because it is the requirement in law that the doctor who certified about the condition of the victim to make a dying

declaration is required to be examined in every case. But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case.

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52. The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration--be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording the dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.

53. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence."

11. Mr. Avninder Singh next referred to the decision of the Supreme Court in Chacko v. State of Kerala, (2003) 1 SCC 112. In the said case it was held that the Courts below had solely relied on the dying declaration without noticing the circumstances surrounding the dying declaration and there being no other evidence in support of the prosecution case, it would be unsafe to place reliance upon the dying

declaration to base a conviction. Paragraph 3 of the judgment was adverted to, which reads as under:-

"3. Having heard learned counsel for the parties and perused the records, we find it difficult to accept the prosecution case based on the dying declaration allegedly made by the deceased. As pointed out by the learned counsel for the appellant, it is very difficult to accept the prosecution case that the deceased who was of about 70 years, and had suffered 80% burns could make a detailed dying declaration after 8 to 9 hours of the burning giving minute particulars as to the motive, the manner in which she suffered the injuries. This, in our opinion, itself creates a doubt in our mind apart as to the genuineness of the declaration [see: Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : AIR 1976 SC 2199] (AIR para 6)]. Further in the absence of any certificate by a competent doctor as to the mental and physical condition of the deceased to make such a dying declaration, we think it is not safe to rely on the same. We are aware of the judicial pronouncements of this Court that it is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration. (See: Rambai v. State of Chhattisgarh [(2002) 8 SCC 83]) In the instant case it is not as if the doctor was not available. As a matter of fact, PW 3 who treated the deceased in the first instance was available at the time when the deceased allegedly made the dying declaration, still we find he has neither given a certificate as to the condition of the deceased nor has he attested the said document. That apart, a perusal of the dying declaration as per Ext. P-4

shows that the contents of the documents are so arranged so as to accommodate the space which is above the thumb impression which we think is not a normal way of recording a statement if the same was genuine. This is also a ground to suspect the genuineness of the document........"

12. Next, reference was made by learned amicus curiae to the judgment of this Court in Rajaram v. State of NCT of Delhi, 2013 (1) JCC 41, in which case 90% burns had been sustained by the deceased, and it was opined that though this Court was mindful of the position of law that certification or endorsement from a doctor about fitness of maker to make a statement is not necessary, however, when evidence exists suggesting the maker‟s inability to make a statement, a doctor‟s certification or endorsement, if not indispensible, is helpful to prove that the maker was, in fact, fit to make the statement. It was held that even though a certification apparently existed, the same did not stand adequately proved. The non-identification and consequent non-examination of the person who so certified the deceased to be fit for statement was, therefore, a vital gap in the prosecution case and the possibility that such certification was a fabricated one cannot be ruled out.

13. Reliance was also placed by Mr. Avninder Singh on the decision of the Supreme Court in Rafique alias Rauf & Ors. v. State of U.P., AIR 2013 SC 2272, and in particular, on paragraph 18 of the said judgment, which is as follows:-

"18. We also wish to add that as on date, there is no statutory prescription as to in what manner or the procedure to be followed for recording a dying

declaration to fall within the four corners of Section 32(1) of the Evidence Act. The presence of Magistrate; certification of the doctor as to the mental or the physical status of the person making the declaration, were all developed by judicial pronouncements. As has been repeatedly stated in various decisions, it will have to be found out whether in the facts and circumstances of any case the reliance placed upon by the prosecution on a statement alleged to have been made by the deceased prior to his death can be accepted as a dying declaration, will depend upon the facts and circumstances that existed at the time of making the statement. In that case it would mainly depend upon the date and time vis-à-vis the occurrence when the statement was alleged to have been made, the place at which it was made, the person to whom the said statement was made, the sequence of events, which led the person concerned to make the statement, the physical and mental condition of the person who made the statement, the cogency with which any such statement was made, the attending circumstances, whether throw any suspicion as to the factum of the statement said to have been made or any other factor existing in order to contradict the statement said to have been made as claimed by the prosecution, the nexus of the person who made the statement to the alleged crime and the parties involved in the crime, the circumstance which made the person to come forward with the statement and last but not the least, whether the said statement fully support the case of the prosecution."

14. It may be noted that in the aforesaid case the Supreme Court held that the reliance placed upon by the High Court upon the dying declaration was perfectly justified and there was no ground to differ from the same.

15. Mr. Avninder Singh also placed reliance upon the decision of the Supreme Court in Sharda v. State of Rajastha, (2010) 2 SCC 85, wherein one of the dying declarations (Ex.P18), that is, the third dying declaration of the deceased, recorded in the presence of the Executive Magistrate, which formed the sole basis of the order of conviction passed by the learned Sessions Judge and confirmed in appeal by the High Court, was held to be unsustainable in law by the Apex Court in the light of the fact that it was shrouded by many doubts and instead credence was given to Ex.D-3 and P-3, the earlier two statements of the deceased recorded by the police in the presence of doctors. It was held in Sharda (supra) that "the court has to be on guard that the statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration."

16. Reliance was also placed by Mr. Avninder Singh on the judgment in Ram Nath Madhoprasad and Ors. v. State of Madhya Pradesh reported in AIR 1953 SC 420, in which case it was held that the High Court was in error in basing the conviction of the appellants on the uncorroborated dying declaration of the deceased recorded by the Magistrate which was not only vague but which admittedly did not at all events, represent the whole truth. It was held that it is not safe to convict an accused person merely on the evidence furnished

by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making a declaration.

17. Apart from contending that the dying declaration in the case in hand should not have formed the basis of conviction of the Appellant, Mr. Avninder Singh contended that the reliance placed by the trial Court upon the testimony of the child witness Bablu (PW22) was wholly misplaced, as is evident from a bare reading of his testimony. He took us through the statement of the said witness recorded by the Metropolitan Magistrate under Section 164 Cr.P.C. to substantiate his aforesaid contention and relied upon the decision in Nirmal Kumar v. State of U.P., (1993) SCC (Cri) 289, to contend that the evidence of a child witness should be examined cautiously and courts should find some corroboration before it is relied upon. In the present case, the statement of the child witness was not recorded in the first instance, but the child was produced for the first time on 1.4.1992 for recording of his statement under Section 164 Cr.P.C. He also referred to the judgment rendered in State of U.P. v. Ashok Dixit and Anr., 2000 SCC (Cri) 579, and in particular, on paragraph 9 of the said judgment, which is as follows:

"9. The law is well settled that evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and is an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration

before it is relied on. (See Panchhi v. State of U.P. [(1998) 7 SCC 177 : 1998 SCC (Cri) 1561] )"

18. It was further contended that the prosecution case deserves to be discarded for a number of other reasons being

(i) PWs 2, 3 and 4 have contradicted each other as to whether they saw the deceased on fire or the fire was doused out when they saw her. The said PWs also contradicted each other as to who took the deceased to the hospital and on other aspects of the case.

(ii) As per the case of the prosecution, the seizure of the articles sent to the CFSL for forensic examination was effected on 26.3.1992 prior to the death of Smt. Kiran, yet a bare look at the seizure memos (Ex.PW12/A, Ex.PW12/B and Ex.PW12/C) shows that the seizures have been effected in case FIR No.83/92 dated 26.3.1992, under Sections 304B and 498A IPC. This is destructive of the whole case of the prosecution as evidently seizures were made after the SDM made his recommendation for conversion of the case from one under Section 307 to one under Section 498A and 304B IPC.

(iii) A look at the dying declaration shows that there is a gap of nearly 4 inches between the end of the dying declaration and the thumb impression affixed upon it by the deceased.

(iv) The prosecution story that the quarrel between the deceased and the accused took place on account of the fact that there was no food in the house is belied by the presence of undigested food in the stomach of the deceased as reflected in the postmortem report Ex.PW- 18/A.

(v) The burn injury sustained by the accused on his hand shows that the deceased caught fire while she was cooking and the accused sustained the burn injury on his hand in trying to extinguish the fire.

(vi) The only independent witness, namely, PW19 Kasturi Lal has not supported the case of the prosecution and as a matter of fact was altogether hostile to the prosecution‟s case.

(vii) The case was registered vide FIR No.83/92 under Section 307 IPC vide DD No.20A at 12.45 a.m. on 26.3.1992. This shows that as many as 19 DDs were recorded prior to the recording of DD No.20A at 12.45 a.m., which means that between 12 mid night and 12.45 a.m. 19 other DDs were received at police station Geeta Colony. It is inconceivable that such a large number of DDs were received within 45 minutes.

(viii) The next DD is DD No.7A pertaining to the death of Smt. Kiran, wife of Banwari Lal, which was recorded at 10.50 a.m. on 26.3.1992. It is strange that DD No.20A with regard to the registration of the FIR was recorded at

12.45 a.m. while DD No.7A with regard to the death of the deceased was recorded at 10.50 a.m.

19. In order to rebut the contentions of the learned amicus curiae, Ms. Rajdipa Behura, learned Additional Public Prosecutor for the State has taken us through the dying declaration of the deceased apart from submitting that the deceased had additionally made two oral declarations prior to her dying declaration reduced into writing by the Investigating Officer. We propose to advert to the said two oral dying declarations of the deceased at the appropriate stage. Suffice it to state at this juncture that Ms. Behura vehemently contended that implicit reliance could be placed by this Court upon the dying declaration of the deceased which was wholly trustworthy given the totality of the circumstances in which it was made. She submitted that it has come on record in the course of the statement of the Investigating Officer that the SDM was not available for the purpose of recording of the dying declaration of the deceased on the night of 25.3.1992 and hence the dying declaration was recorded by the Investigating Officer. There was no specific embargo to the recording of the dying declaration by a Police Officer and as a matter of fact it is settled law that a Police Officer who is statutorily empowered to investigate a case can record a dying declaration, and the dying declaration cannot be discarded only for the reason that it is recorded by a Police Officer. The dying declaration in question was recorded by the Investigating Officer Sub-Inspector Arun Kumar after obtaining the fitness certificate of the doctor at 11.20 p.m., that is, about 40 minutes after she was brought to hospital. PW26 Dr. R.K.

Srivastva has been examined by the prosecution with regard to the fitness certificate given by him and he in his testimony has clearly stated that he had examined her on 25.3.1992 and opined her to be fit to make a statement vide his endorsement on the MLC as Ex.PW26/A, which was in his handwriting.

20. Learned Additional Public Prosecutor submitted that there was nothing in the testimony of this witness (PW26) to show that the statement made by him was not worthy of credence. In this regard, she placed reliance upon the judgment of the Constitution Bench in Laxman v. State of Maharashtra, (2002) 6 SCC 710 to contend that a fitness certificate with every dying declaration has in any event become immaterial. In the said case, it was held that what is required to be seen is whether the person recording the dying declaration is satisfied that the person making the dying declaration is mentally fit and capable of making the same. She also placed reliance upon the decision of this Court in Dharambir and Anr. v. State, ILR (2011) 6 Del 686 in support of her contention that there is no universal rule that the dying declaration recorded by a Police Officer is unreliable. The Court has held as follows:-

"The superior courts have consistently held that the dying declaration, once it is found to be true and recorded while the deceased was in a fit state of mind to make the same, is sufficient to base conviction of an accused even without any corroboration."

21. Ms. Behura, learned Additional Public Prosecutor also drew our attention to a judgment of the Madras High Court in Philip Jeyasingh v. The Joint Registrar of Cooperative Societies and Ors.,

(1992) 1 LW 216; (1992) 2 Mad. L.J. 309 pertaining to the binding nature of precedents in the justice delivery system. In paragraph 14 of the judgment, reference is made to the case of Pritam Kaur v. Surjit Singh, AIR 1984 P&H 113 and the observations made therein. We reproduce hereunder the said paragraph of the judgment, which reads as under:-

"14. In Pritam Kaur v. Surjit Singh, Sandhawalia, C.J. presiding over a Full Bench traced the law of precedents in detail. Referring to the decisions of English Courts and the Supreme Court of India he observed,

„9. It would thus follow that once a precedent is held to be a binding one, then no deviation therefrom is permissible within the judicial polity except in the well accepted categories of cases enumerated hereafter in para 12 of this judgment.

10. It is equally necessary to highlight that the binding nature of precedents generally and of Full Benches in particular is the kingpin of our judicial system. It is the bond that binds together what otherwise might well become a thicket of individualistic opinions resulting in a virtual judicial anarchy. This is a self-imposed discipline which rightly is the envy of other Schools of Law. Because of the legal position here being axiomatic and well-settled it is unnecessary to elaborate the issue on principle.

11. Now apart from Full Benches and the precedents of the Superior Court, it would

appear that even judgments of the Benches of the same High Court in a limited way are binding in the sense that a judgment cannot be rendered contrary to the earlier decision of co-equal Bench. At the highest, an equivalent Bench can seek reconsideration of the same by a larger Bench.

12. From the above, it would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every veiled doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratios of the Full Benches are and should be rested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest, that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid the law directly contrary to the same. And, thirdly, where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a smaller Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in

these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well-accepted ones in which an otherwise binding precedent may be suggested for reconsideration.

(Emphasis supplied) xxxxxxxxxx

14. However, it is equally apt to elaborate what cannot be a valid ground for questioning or reconsidering, the law settled by a larger Bench. The very use of the word 'binding' would indicate that it would hold the field despite the fact that the Bench obliged to follow the same may not, itself be in agreement at all with the view. It is a necessary discipline of the law that the judgments of the superior courts and of larger Benches have to be followed unhesitatingly whatever doubts one may individually entertain about their correctness. The rationale for this is plain because to seek a universal intellectual unanimity is an ideal too Utopian to achieve. Consequently, the logic and the rationale upon which the ratio of a larger Bench is rested, are not matters open for reconsideration. Negatively put, therefore, the challenge to the rationale and reasoning of a larger Bench is not a valid ground for unsettling it and seeking a re-opening and re-examination of the same thus putting the question in a fix afresh.

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16. The argument aforesaid is plainly untenable on principle. If the ratios of larger

Benches and the judgments of superior courts were to be merely rested upon the quicksands of the ingenuity of the counsel to raise some fresh or novel argument (which had not been earlier raised or considered) in order to dislodge them, then the hallowed rule of the finality of binding precedent would become merely a teasing mirage. It seems unnecessary to elaborate this aspect because it is clearly concluded by binding precedent.............."

22. Referring to Rule 7 contained in Chapter 13A of the Delhi High Court Rules and Orders, Volume 3, learned Additional Public Prosecutor submitted that the words "so far as possible" in the said Rule are pertinent to the controversy at hand and make it abundantly clear that the requirement of the Rule is that where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall, so far as possible, be got attested by one or more of the persons who happen to be present at that time. We reproduce hereunder the said Rule:-

"7. Recording of a Dying declaration by a Police Officer or Medical Office - Where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall, so far as possible, be got attested by one or more of the persons who happen to be present at the time."

23. Ms. Behura further submitted that the child witness Bablu (PW22) had fully supported the case of the prosecution in his statement recorded by the Court, which was recorded after several questions had been put to him to assess his capability to depose in the

Court. This apart, the child witness had supported the case of the prosecution even in his statement under Section 164 Cr.P.C. recorded by the Metropolitan Magistrate, though at that point of time the witness was only 3-4 years of age. At the time of the recording of his statement before the Court, however, the witness was 10 years of age and was a student of 5th class and thus fully cognizant of the implications of his statement and its repercussions.

24. As regards the contradictions in the testimonies of the material witnesses, Ms. Behura contended that the said contradictions, if any, do not go to the root of the prosecution case and are superficial in nature. The prosecution witnesses had fully supported the case of the prosecution and minor deviations in their statements were bound to occur which are of no significance. Ms. Behura further contended that the so-called hostile witness PW19 Kasturi Lal had also supported the version of the prosecution though he was subjected to cross-examination by the learned Additional Public Prosecutor only on those aspects on which he was hostile to the prosecution.

25. In the context of the seizure memos (Ex.PW12/A to 12/C), she placed reliance upon the judgment of this Court in Crl. A. No.605/12 titled Rattan @ Ratan Singh v. State (Govt. of NCT of Delhi) decided on 24th January, 2013, wherein a somewhat similar contention was raised with regard to the manipulation of seizure memos. The relevant extract of the judgment is as follows:-

"20. It is true that the seizure memos Exs.PW-3/E and PW-3/F do contain the FIR number on the top left side. SI Balbir Singh (IO) duly proved the seizure memos. No explanation was obtained by the

defence counsel as to the presence of the FIR number thereon, particularly when the FIR had not come into existence by the time seizure memos were written. Thus, the contention raised on behalf of the State that the FIR number was subsequently mentioned by the IO for the purpose of the record is convincing and must be accepted. A similar contention was raised before the Delhi High Court in Ramesh Kumar Rajput @ Khan v. The State NCT of Delhi, Criminal Appeal No.755/2004, decided on 02.05.2008 where after referring to Radhey Shyam v. State of Haryana, JT 2001(3) SC 535 the learned Single Judge of this Court held as under:-

"15. In any event the law as explained by the Supreme Court is that the mere writing of the FIR number on the arrest and search memos cannot entirely falsify those documents. Significant among the decisions is Radhey Shyam v State of Haryana JT 2001 (3) SC

535.""

26. Before embarking upon the merit of the respective contentions of the parties, it is deemed expedient to reproduce the dying declaration of the deceased as recorded by the Investigating Officer, i.e., Sub-Inspector Arun Kumar (PW23), who reached JPN Hospital on receipt of DD No.17A. The dying declaration - Ex.PW23/A reads as follows:-

"Statement of Smt. Kiran, wife of Banwari Lal, resident of 127 Rani Garden, Shastri Nagar, Delhi and age 23 years only.

I reside at the abovementioned address and used to do the household work. Today, at about 9.30 pm

in the night, I was at my residence when my husband came to the house after three-four days in a drunken state. He started quarreling with me and gave me beatings and poured oil over me and lit the fire. He used to quarrel with me. When he came, he used to say that I was earning less and should earn more. When he lit the fire on me, my son was there. When I tried to run outside, my husband stopped me. I came outside. At that time, Kasturi Lal and my brother Suresh came there. My husband was telling me that don‟t take my name. My brother and neighbour Kasturi Lal extinguished the fire. My father and Baldev Raj took me to the hospital. I have heard the statement. It is alright."

27. It may be noted that the aforesaid dying declaration was recorded by the Investigating Officer after the declarant/deceased, Smt. Kiran, had been declared fit for statement at 11.20 p.m. on the same night, i.e., night of 25.3.1992. This was precisely 50 minutes from the time when she was brought to the casualty of JPN Hospital at 10.30 p.m. In the MLC, significantly, it is recorded by the concerned doctor, namely, Dr. Sanjeev Dikshit, who prepared the MLC, that as per the informant, Kiran, the alleged history was of being burnt after her husband (Banwari) set her on fire. The doctor has further recorded her statement that her husband had consumed alcohol. The doctor has also recorded that the patient had no history of unconsciousness and has gone on to record that the patient was "conscious" and "oriented", "Vitals maintained", "Smell of kerosene", "90% burns". Thus, it is clear from the MLC that the deceased Kiran had given her dying declaration to the doctor Dr. Sanjeev Dikshit, who has recorded the same after clarifying that the

informant was Kiran (the deceased) and that she was fully conscious at the time of giving her aforesaid dying declaration. We find no reason to disbelieve this MLC recorded by Dr. Sanjeev Dikshit, which was proved on record by PW13 Om Prakash, who stated that "This MLC was prepared by Dr.Sanjeev Dikshit" and that the present whereabouts of Dr. Sanjeev Dikshit were not available with the hospital concerned.

28. At 11.20 p.m., on the same night, Dr. R.K. Srivastva (PW26) declared that the injured Kiran, wife of Banwari Lal, was fit to make a statement. The said witness proved his endorsement on the MLC as Ex.PW26/A and in cross-examination reiterated that the patient was in the state mentioned by him as per his endorsement. It is true that PW26 Dr. R.K. Srivastva did not subsequently append his signatures upon the dying declaration (Ex.PW23/A) recorded by Sub-Inspector Arun Kumar, but that by itself does not appear to us to be reason enough to discard the dying declaration nor the fact that the dying declaration was recorded by the Police Officer instead of the SDM appears to us to be of any significance. PW23 Sub-Inspector Arun Kumar in his testimony categorically stated that the father and brother of Smt. Kiran/deceased were present there and in their presence he had recorded the statement of Smt. Kiran/deceased on which she put her RTI at point „A‟, which he attested vide his signatures at point „B'. This fact is corroborated by the testimony of PW3 Suresh, the brother of Kiran, who in his statement has stated that he and his father were present there when the statement of Kiran was recorded and her thumb impression affixed on the same. PW4 Swaran has also stated

that the statement of Kiran was recorded by the SHO at the hospital in his presence and in the presence of the doctor. PW4 also stated that Kiran had said that her husband Banwari Lal had set her ablaze. The right thumb impression of Kiran was got affixed on her statement. The statement of Kiran was recorded in his presence. No doubt, PW26, Dr.R.K.Srivastva in his cross-examination stated that he was not present at the time of the recording of the statement of Smt. Kiran, but conceivably, in our opinion, what PW4 Swaran meant when he said that the statement of his daughter Kiran was recorded in the presence of the doctor was that the doctor was present to opine her fit for statement. Then again, the Investigating Officer PW23 (SI Arun Kumar) has clearly stated that during the intervening night of 25th and 26th March, 1992 he had made efforts to contact the SDM, but he was not available. PW23 has also explained the gap of 4 to 5 inches between the last line of her statement and her thumb impression by stating that it had occurred as she had put her thumb impression in lying condition; writing pad had to be extended to her in that condition.

29. There is yet another dying declaration of the deceased which corroborates the dying declaration contained in her MLC (Ex.PW13/A) and the dying declaration recorded by the Investigating Officer (Ex.PW23/A). The said dying declaration is the oral dying declaration of Kiran/deceased. PW2 Baldev Raj in his testimony has referred to the said dying declaration by stating that when he saw Kiran (deceased) she was coming out of the room of her house in burning condition while accused Banwari Lal (identified by PW2)

was pulling her inside the room. Kiran was saying "Bhaiya ko bulao". Kiran used to refer to him as Bhaiya. When he reached the spot, Kiran pointed out towards the accused saying that he had burnt her and was saying "Mujhe Bachao". With the help of the father of the deceased and one or two other persons, Kiran was placed by him on the rear seat of the car and taken to JPN Hospital. PW3 Suresh, brother of the deceased has also deposed that on the way to the hospital his sister was saying that she was set ablaze by Banwari. When they (PW3, PW4, father of Kiran and PW2, Baldev Raj) reached the house of Kiran, the accused Banwari Lal was saying "Bhaagwan you yourself are burning, you do not name me for the sake of children". This part of the testimony of PW3 Suresh is corroborated by PW19 Kasturi Lal. PW19 though hostile to the case of the prosecution to the extent that he refused to identify the accused in Court, in the course of his cross-examination by learned Additional Public Prosecutor admitted that the husband of Kiran was requesting her (not to implicate him) by saying "Bhaagwan tu to mar hi rahi hai, apne bachchon ki khatir mujhe bachana. Agar koi puchhe to kehna ki tel maine (Kiran) hi dala hai aur aag lagai".

30. Thus, the three dying declarations of the deceased, i.e., her oral dying declaration made to PW2 and PW3, the dying declaration recorded in her MLC (Ex.PW13/A) and the dying declaration recorded by the Police Officer Sub-Inspector Arun Kumar (Ex.PW23/A) clearly and consistently point to the guilt of the accused. The said dying declarations, in our opinion, are buttressed by the request of the accused to the deceased not to name him in the

case as testified by PW3 Suresh and corroborated by PW19 Kasturi Lal. The three dying declarations of the deceased; the testimonies of PW2 Baldev Raj, an eye witness; PW3 Suresh, the brother of the deceased, PW4 Swaran, the father of the deceased and PW19 Kasturi Lal, an independent witness, are, in our opinion, sufficient to bring home the guilt of the accused. Additional evidence in the form of the evidence of the child witness PW22 Bablu is also forthcoming on the record, which is certified by PW21 Shri Pawan Kumar, Metropolitan Magistrate, Tis Hazari Courts as correctly recorded by him. In his statement under Section 164 Cr.P.C., PW22 Bablu has clearly stated that his father had struck a match to set ablaze his mother and in response to the question as to what had happened to his mother he said "gayi" (gone). In his statement made before the Court, PW22 Bablu, who was 10 years of age at that time, made a detailed statement to the effect that his father had set his mother on fire and his mother had died as a result thereof. He has categorically stated that his father had set his mother ablaze in front of him; that his mother had died sometime back when he was not yet studying in school. Now, he was in the 5th class. He also recollected that he had made his statement before the Metropolitan Magistrate. He narrated that he was in the same room in which his mother had been set on fire. It was night time and at that time he, his mother, his father and his younger sister were present in the room. After sometime, his maternal uncle had arrived at the spot. On the night of the incident, his father had gone out and when he returned there was a quarrel between his father and mother on account of the fact that there was no

roti in the house. He stated that his sister, who was younger to him was also present in the room at the time of the incident.

31. The aforesaid evidence of the child witness Bablu (PW22), in our opinion, further fortifies the case of the prosecution, which stands established by the three dying declarations of the deceased and the testimonies of the prosecution witnesses.

32. A look now at the testimony of PW19 Kasturi Lal which has been heavily relied upon by the learned amicus curiae to contend that the only independent witness was hostile to the prosecution. At this juncture, we deem it expedient to record that PW19 was not the only independent witness since PW2 Baldev Raj was also an independent witness who was in no manner related to the deceased, though happened to know her (the deceased) on account of the fact that the mother of the deceased (and at times even the deceased) used to work as maid servant in his house. We do not think this sufficient to discredit his testimony. Be that as it may, we find from the statement of PW19 Kasturi Lal, who also resided in the neighbourhood like PW2 Baldev Raj, that though he has not supported the prosecution case in its entirety, certain aspects of his testimony buttress the case of the prosecution. As per him (PW19), at about 9 or 10 p.m., he was present in his house when he heard a shor outside, upon which he went outside and found that the neighbours had gathered there including PW2 Baldev Raj. He saw that Kiran who used to work in the house of PW2 Baldev Raj was lying in a burnt condition in the gali in front of her house bearing No.127, Rani Garden, Shastri Park. She had moved into the said house three or four days prior to the

incident. The persons gathered there started beating a boy saying that he had burnt Kiran and he should be done away with. He disengaged the boy from the clutches of the crowd and made him sit beside him. It was dark at that time and as such he could not identify the boy. He did not enquire from the boy as to whether the persons gathered there were telling the truth or not about his having burnt Kiran. Then Baldev Raj (PW2) put Kiran in his car and took her to JPN Hospital. The PCR vehicle arrived and he (PW19) handed over the boy in his custody to the police, who took him away. The next day, he went to the hospital to enquire about Kiran and came to know about her death. The same day, i.e., on 26.3.1992, the police came to the house of Kiran and took into custody a plastic can and some burnt clothes. Other than this, no other proceedings took place in his presence. Ex.PW12/A, Ex.PW12/B and Ex.PW12/C bear his signatures at point „A‟. At this juncture, the witness was declared hostile and subjected to cross-examination by the learned Additional Public Prosecutor. In the course of his said cross-examination, he admitted that Ex.PW12/A, Ex.PW12/B and Ex.PW12/C were prepared at the spot in his presence though stated that this fact was not stated by him in his statement recorded by the police under Section 161 Cr.P.C. He denied that he had stated to the police that earlier also the accused used to beat his wife Kiran under the influence of alcohol and was confronted with his statement under Section 161 Cr.P.C. He denied that he knew the accused prior to 25.3.1992 as he was residing in his neighbouhood and that he could identify him. Significantly, however, he admitted that the husband of Kiran was requesting her not to name

him before the police by saying "Bhaagwaan tu to mar hi rahi hai, apne bachchon ki khatir mujhe bachana. Agar koi puchhe to kehna ki tel maine (Kiran) hi dala hai aur aag lagai".

33. It is clear from the aforesaid testimony of PW19 Kasturi Lal that though he, for reasons best known to him, refused to identify the accused, the prosecution version was not rendered defunct by him and as a matter of fact he fully supported the case of the prosecution. It is trite that insofar as the testimony of a hostile witnesses is concerned, that part of his statement which supports the prosecution version cannot be discredited. Thus, viewed apart from his statements as regards the identification of the accused, PW19 Kasturi Lal has in fact buttressed the case of the prosecution. We are, therefore, not in agreement with the learned defence counsel that the said prosecution witness has falsified the prosecution case.

34. As regards the minor contradictions contained in the testimonies of the prosecution witnesses which have been highlighted by the learned amicus curiae, it must be borne in mind that the testimonies of these witnesses were recorded much after the unfortunate incident transpired and in any event are not of such a nature so as to destroy the roots of the prosecution case. PW2 and PW3 both have stated that when they reached the spot, Kiran was burning and accused Banwari Lal was pulling Kiran inside the house. PW3 Suresh has also stated that he saw his sister/Kiran burning and the accused was dragging her (in burning condition) inside the house. Persons gathered there threw water on her and the fire was extinguished. According to the testimony of PW3 Suresh, fire on

the body of Kiran was put off by him, PW4 Swaran, his father and PW2 Baldev Raj. The contention of learned amicus curiae that this is contradictory to what was stated by PW2 Baldev Raj that Kiran was burning but people threw water on her and when he reached near Kiran the fire was extinguished does not appear to us to be of much significance. When such an event occurs, the perception of the persons witnessing the same is at times confused and hazy and may vary in minor details. Such details cannot be blown out of proportion so as to discredit their entire version.

35. Adverting to the contention of Mr. Avninder Singh with regard to the mention of the FIR number with Sections 304B and 498A IPC on the seizure memos for the offence registered initially under Section 307 IPC, it is on record that the FIR was recorded at 12.45 a.m. on 26.3.1992, the seizure memos were also prepared on the same day which is also the date on which the death of Smt. Kiran had taken place. It was on the same day that the SDM directed that the case be converted from one under Section 307 to one under Section 304B and 498A IPC. Thus, the mention of the aforesaid Sections with the FIR Number on the seizure memos can, in no manner, benefit the accused. In the case of Radhey Shyam v. State of Haryana, JT 2001 (3) SC 535, the Supreme Court has held that the mere writing of the FIR number on the arrest and search memos cannot entirely falsify those documents. In the case of Rattan @ Ratan Singh (supra), the aforesaid decision has been cited and followed. It was reiterated that mere mentioning of the FIR on the seizure memos would not mean that the memos were prepared after the FIR came into existence.

Reference was also made in Rattan's case to an earlier decision of this Court rendered in Ramesh Kumar Rajput @ Khan v. The State NCT of Delhi, Criminal Appeal No.755/2004, decided on 02.05.2008, in which case also the decision of the Supreme Court in Radhey Shyam was referred to and followed.

36. To conclude, we have no hesitation in holding that the entirety of the evidence on record unerringly brings home the guilt of the accused. It stands established on record that the accused who was habituated to quarrelling with the deceased for monetary reasons had set ablaze the deceased/Kiran in the house in which they resided with their children. The contention of the learned defence counsel that the said injuries were sustained by the accused in trying to put out the flames is apart from other reasons unbelievable on account of the fact that had the accused tried to save the deceased he would have sustained injuries on both his hands. Instead, the OPD card of the accused shows that he sustained burn injuries on one of his hands (right), part of right forearm and part of right leg to the extent of 6%. This could only have been sustained by him while attempting to drag the deceased (who was on fire) inside the room. Interestingly, in his statement under Section 313 Cr.P.C., the accused nowhere stated that he tried to save the deceased or extinguish the fire in any manner, instead contended that he had been falsely implicated by the Investigating Officer. The fact that kerosene oil residues were found on the exhibits, viz., plastic can without lid (Exbt. No.1), partly burnt chadar (bedsheet) and takia (pillow) marked as Exbt.No.3, burnt pant and shirt of the accused marked as Exbt.No.4, and broken mirror,

pieces of bangles, lipstick and sindoor, etc. marked as Exbt.No.5 further show that there was some kind of tussle between the accused Banwari Lal and the deceased Kiran. It also appears that the deceased was set on fire while she was sitting on the bed and not while she was cooking on the stove since it is not even the contention of the defence that either the bedsheet or the pillow were used for extinguishing the fire and in fact it is not even explained as to how the accused tried to save her from the fire.

37. For all the aforesaid reasons, we affirm the judgment of the learned trial court and the order on sentence. Consequently, the appeal stands dismissed.

38. Registry is directed to send the TCR alongwith copy of this order immediately.

39. Appellant is directed to surrender before the learned Trial Court within fifteen days from the date of this order to undergo the sentence awarded to him.

40. Copy of this order be also sent to the concerned Jail Superintendent with direction to report the compliance within one month from the date of this order.

REVA KHETRAPAL JUDGE

PRATIBHA RANI JUDGE January 29, 2014 km