Salim @Bhajju vs State
2014 Latest Caselaw 1377 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment reserved on:10.03.2014.
                                 Judgment delivered on:14.03.2014
+      CRL.A.202/2006

       SALIM @BHAJJU                               ..... Appellant
                    Through            None.

                          Versus
       STATE                                     .... Respondent
                          Through      Ms. Kusum Dhalla, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Present appeal has impugned the judgment and order of sentence

dated 08.03.2006 and 10.03.2006 respectively whereby the appellant

Salim has been convicted for the offence under Sections 306/498-A of

the IPC and has been sentenced to undergo RI for 5 years and to pay a

fine of Rs.3,000/- and in default of payment of fine, to undergo RI for

one year for the offence under Section 306 of the IPC; for the offence

under Section 498-A of the IPC, he has been sentenced to undergo RI

for three years and to pay a fine of Rs.3,000/- and in default of payment

of fine, to undergo RI for one year.

2 Nominal roll of the appellant had been summoned. As on

05.09.2007, he had undergone a sentence of about 2 years and about 4

months; he had been granted bail vide order dated 01.04.2008 on which

date, he had completed incarceration of about 2 years and about 11

months including the period of remission earned in that period.

3 Record shows that the present FIR has been registered on the

complaint of Smt. Shakila (PW-2), the mother of the victim Shabana

who had succumbed to her burn injuries. PW-2 had got her statement

recorded before the Investigating Officer (Ex.PW-2/A). She had stated

that Shabana who was her daughter married Salim about 10 years ago;

they have three children; Shabana used to work in kothis to earn

livelihood; Salim was a tailor by profession; Shabana told her that her

husband used to consume liquor and used to beat her. A complaint had

been lodged in the CAW cell, Seelampur; thereafter the parties who

were earlier living at Durga Puri shifted to Janta Colony, Welcome;

Najo, the sister of Salim and his mother were also living with them.

Shabana had disclosed that she had been beaten by Salim and he was not

giving her any money for the children. On 06.08.2005, she was

informed that her daughter had received burn injuries; she went to the

hospital where she was allowed to meet Shabana. Her daughter Shabana

was burnt and her face was swollen. Shabana informed her that she had

received these injuries as a lamp of kerosene oil had fallen upon her; on

re-questioning, Shabana told her the same fact but further added that she

should perceive what had happened. This version in Ex.PW-2/A was

reaffirmed by PW-2 on oath in Court.

4 In her cross-examination, PW-2 stuck to her stand; she admitted

that the children are living with Salim and Salim had also sustained burn

injuries; she reiterated that her daughter was conscious when she met

her.

5 The father of the victim Mohd. Rasid (PW-7) has deposed that his

daughter married to Salim according to Muslim rites about 10-12 years

ago; on 07.08.2005, he received information that his daughter received

burn injuries; she died on 11.08.2005; he stated that his daughter had not

told him anything about her life with Salim but she used to tell her

mother that she was harassed by her husband.

6 In his cross-examination, PW-7 had stated that a sum of

Rs.25,000/- had been demanded by Salim; his daughter was threatened

that if this money was not paid, Salim would divorce her; he stated that

during the stay of his daughter and son-in-law at their house, they

appeared to be happy; no complaint regarding any dispute or altercation

between the husband and wife had been made to the police either by

PW-7 or by his wife (PW-2). He admitted that after the stay of his

daughter and son-in-law, he did not visit his daughter's house nor she

did visit their house; his daughter and son-in-law had visited their house

at Nasbandi Colony about 5 years ago i.e. 2006 meaning that they had

come to their house sometime in February, 2001.

7 Nanhi (PW-1) is the sister of PW-7. She was living close to

Shabana and Salim; she admitted that Shabana and Salim had got

married 10-12 years back; she had deposed that Shabana used to visit

her house and complained about the behavior of Salim; 2-3 days prior to

her death, Shabana had visited her house at noon time and had stated

that Salim had given beatings to her and had left the house 7-8 days ago;

thereafter she came to know about the incident of Shabana having got

burnt. In her cross-examination, she admitted that on the date of the

incident, she was not present at her house; she had gone to Bhajanpura

where she has another house and since then she is living there. She

denied the suggestion that she is deposing falsely at the behest of other

family members.

8 A neighbor of the parties Subhash was been examined as PW-4.

He stated that on 05.08.2005 at about 11:30 pm, a fire had broken out in

the house of Salim and in the morning he came to know that Shabana

had been removed to the hospital and she had set herself on fire. This

witness had turned hostile. He was permitted to be cross-examined by

the learned public prosecutor. He admitted that Shabana and Salim had

been married 9-10 years ago; he denied the suggestion that on that day,

Shabana had shouted for help; he denied the suggestion that he has been

won over by the accused.

9 Apart from the testimonies of the aforenoted witnesses, testimony

of SI Mohan Singh (PW-8) is relevant. He had recorded (Ex.PW-8/F),

the statement of the victim on 07.08.2005; PW-8 has admitted that at the

time of recording of this statement, the victim (Shabana) was not fit for

statement; he did not make any application seeking opinion as to

whether she was fit for statement. He admitted that doctor was present at

that time but there is no endorsement of the doctor on this statement

(Ex.PW-8/F) endorsing this fact that Shabana was in fact fit to make

statement. He admitted that no doctor had attested Ex.PW-8/F; he

admitted that he spent 30 minutes in recording the statement of Shabana.

In fact in a part of the deposition, PW-8 has admitted that on

07.08.2005, Shakila, the mother of Shabana met him and at that time

Shabana was unconscious.

10 It is this document Ex.PW-8/F which has been heavily relied upon

by the trial Judge to convict the appellant. The Court had noted that this

was a credible dying declaration and although there was no endorsement

of the doctor and no fitness certificate was obtained for recording of

statement declaring the victim fit for statement but nevertheless the

Court had noted that this version of the victim recorded by PW-8 reveals

the true story and had thereafter gone on to base conviction on this

document.

11 Learned public prosecutor has placed reliance upon (2004) 9 SCC

257 Kulwant Singh & Others Vs. State of Punjab to support his

submission that a dying declaration does not require to be made in any

particular form; it is not necessary that it should be recorded in the

presence of a Magistrate; submission being that in a case where the

deceased had died even seven days after making the statement, it was

still held to be a 'dying declaration'. The dying declaration in the instant

case is also fully credible.

12 Ex.PW-8/F as noted supra was recorded by the Investigating

Officer. This is a statement under Section 161 of the Cr.PC. It is signed

by the Investigating Officer himself. This statement which has been

treated as a dying declaration has to be rejected for various reasons.

Apart from the fact that the Investigating Officer has blatantly and

candidly admitted that at the time when he recorded the statement

Ex.PW-8/F, the doctor was present and it was recorded in his presence

yet he did not take any endorsement of the doctor on this statement to

corroborate his presence; PW-8 has also admitted that he did not make

any application to the doctor to get her declared fit for statement before

he recorded this so called version of the victim.

13 The MLC of the victim Ex.PA shows that the patient had been

brought in for examination on 06.08.2005 at 12:50 AM with alleged

history of burns; she was conscious and oriented at that time; she has

suffered 70-80% burns which were almost on all parts including her

arms; her front face was also burnt; her entire back including the back of

her arms, her left thigh were also burnt. This is depicted from the

pictures drawn on the MLC. There is another endorsement on the left

side of the document showing that the patient was fit for statement on

06.08.2005. This fitness is admittedly dated 06.08.2005. Investigating

Officer has recorded the statement of the victim on 07.08.2005. The

victim had died on 10.08.2005. It is not the case of the prosecution that

the victim was slowly on the road of improvement; her condition was in

fact deteriorating; even presuming that she was fit for statement on

06.08.2005, why her statement had been recorded on 07.08.2005

without a fitness and especially when the patient had been admitted in

the hospital in the earlier morning hours (12:50 am) of 06.08.2005 with

70-80% burns and her condition slowly deteriorating and not improving,

it would be difficult to imagine that the patient was in fact fit, conscious

and oriented to give a statement which could then be treated as a dying

declaration.

14 The law on dying declaration is clear. It can be oral; it is also not

necessary that it has to be in writing; it may not even be signed by the

victim. However the circumstances of each case have been seen in the

background in which they have occurred before credence can be given

to such a document. This statement is even otherwise liable to be

discarded for earlier reason; reason being that the statement of the

mother of the victim was recorded on 07.08.2005; PW-8 has admitted

that at the time when he recorded this statement of the mother; it was in

the presence of the victim but the victim (Shabana) was unconscious at

that time. This was on 07.08.2005. When Shabana regained

consciousness has not been answered by the prosecution. This is

relevant for the reason that the mother of the victim had stated that she

had reached the hospital on 06.08.2005 and had spoken to Shabana at

which point of time, she was conscious; they had intermittent talks;

Shabana had disclosed that the incident was an accident with kerosene

oil falling upon her from the table lamp; even on repeated query,

Shabana gave the same reason for the accident but volunteered that her

mother could perceive the situation.

15 Thus what emanates from this evidence is that Shabana was

conscious on 06.08.2005 and had spoken to her mother and her mother

giving a version different from Ex.PW-8/F which is to the effect that it

was Salim who had goaded her to pour kerosene oil upon herself. These

are two versions i.e. version given by PW-2 in Court and the version

appearing in Ex.PW-8/F, the trial Court relying upon these conflicting

versions, for convicting the accused for an offence under Section 306 of

the IPC has committed a grave illegality.

16 For the offence under Section 306 of the IPC, abetment is an

essential ingredient. Abetment has been defined in Section 107 of the

IPC. The explanation contained therein is also relevant.

17 In AIR 1994 1 SCC 73 State of West Bengal vs Orilal Jaiswal the

Supreme Court had cautioned that the courts should be extremely

careful in assessing the facts and circumstances of each case for the

purpose of finding out whether the cruelty meted out to the victim had in

fact induced her to end her life by committing suicide. Merely allegation

of harassment without there being any positive action proximate to the

time of occurrence i.e. to the act of suicide, conviction under Section

306 of the IPC is not sustainable.

18 In the facts and circumstances of the instant case, what has really

weighed in the mind of the trial Court is document Ex.PW-8/F. It is this

document which has been relied upon by the trial Judge to hold that

Shabana had been goaded by her husband to commit suicide. This

document is wholly unreliable. The statement of the victim has been

treated as dying declaration but none of the parameters for recording of

a dying declaration were adhered to; in fact the Investigating Officer had

admitted that although the doctor was present at the time when he

recorded this statement yet he chose not to obtain his signatures or his

endorsement on this document.

19 There is every reason to discard Ex.PW-8/F. Moreover Ex.PW-

8/F is wholly contrary to the statement of the mother of the victim (PW-

2) on the basis of which the FIR had been registered. PW-2 had stated

that her daughter had hold her that it was because of an accidental fall of

the table lamp containing kerosene oil that she had sustained burn

injuries. This was reiterated on a re-questioning. It appears that the

imagination of the Judge had carried him a bit far and he chose to build

up a story and toe the version set up by the Investigating Officer who

appears to have recorded an alleged statement of the victim but there

appears to be no evidence to show that she was either conscious or

oriented to make such a statement; admittedly this version was recorded

on 07.08.2005 i.e. after the recording of the statement of PW-2 and PW-

8 admitting that at that time i.e. at the time when he recorded the

statement of PW-2, victim was unconscious. At the cost of repetition, it

is also not the version of the prosecution that the victim was improving

after 06.8.2005. Her condition was worsening every day till she finally

succumbed to her injuries on 10.08.2005. The judgment of Kulwant

Singh (supra) relied upon by the learned public prosecutor does not

come to his aid.

20 PW-7 was only a witness of hearsay; he has admitted that his

daughter had never disclosed about any cruelty meted out to her by

Salim; he and his wife had also not made any complaint about this

harassment meted out to their daughter; this is again in contrast with the

version of PW-2 who had stated that her daughter had made a complaint

in the CAW Cell. Nanhi (PW-1) the neighbor did not support the

version of the prosecution.

21 The fundamental rule of criminal jurisprudence is that the

prosecution must stand on its own legs. There is no doubt that for an

offence of abetment of suicide under Section 306 of the IPC; once the

initial threshold i.e. essential ingredients of the offence as contained in

Section 306 of the IPC have been established, the presumption

contained in Section 113-A of the Indian Evidence Act gets attracted

which is for the benefit of the prosecution. However, to avail of this

benefit, the initial threshold has to be crossed which has not been done

in the instant case. The conviction of the appellant under Section 306 is

illegal; it is accordingly set aside.

22 However the conviction of the appellant under Section 498-A of

the IPC does not call for any interference. As far as the ingredients of

Section 498-A are concerned, the cruelty to the woman by the husband

during substance of their marriage; and in this regard the testimony of

PW-2 has remained un-assailed. PW-1 has also corroborated the

version of PW-2 of Shabana deposing about the harassment which was

meted out by her husband; her husband used to take liquor and also not

providing her money for daily expenses. PW-7 was a hearsay witness,

his testimony may be ignored. Testimony of PW-4 is also liable to be

discarded.

23 In this background, conviction of the appellant under Section 498-

A of the IPC is maintained.

24 For the offence under Section 498-A of the IPC, the trial Judge

has sentenced the appellant to undergo RI for a period of 3 years and to

pay a fine of Rs.3,000/- and in default of payment of fine to undergo RI

for 1 year. As noted supra, the nominal roll of the appellant shows that

as on date, the appellant has undergone incarceration of 2 years and 11

months. Keeping in view the aforenoted background, while maintaining

the conviction of the appellant under Section 498-A of the IPC, the

sentence of imprisonment already undergone by the appellant shall be

the sentence imposed upon him for the offence under Section 498-A of

the IPC. Bail bonds of the appellant are cancelled. Surety discharged.

25     Appeal disposed off in the above terms.



                                       INDERMEET KAUR, J
MARCH 14, 2014
A