Delhi High Court
Raj Bala vs State on 8 May, 2014
$~3 to 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
(i) + CRL.A. 124/2002
RAJ BALA ..... Appellant
Through: Mr. Amit Sharma & Mr. Aditya
Bhardwaj, Advocates
Versus
STATE ..... Respondent
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor with SI Ajay
Kumar
(ii) + CRL.A. 125/2002
LAXMAN ..... Appellant
Through: Mr. Amit Sharma & Mr. Aditya
Bhardwaj, Advocates
versus
STATE ..... Respondent
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor with SI Ajay
Kumar
(iii) + CRL.A. 126/2002
SNEH & ORS. ..... Appellants
Through: Mr. Amit Sharma & Mr. Aditya
Bhardwaj, Advocates
versus
STATE ..... Respondent
Through: Mr. Vinod Diwakar, Additional
Public Prosecutor with SI Ajay
Kumar
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
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ORDER
% 08.05.2014
In the above captioned three appeals, appellants are the husband,
mother-in-law, sisters-in-law (nanad & jethani) of deceased who are
tried in FIR No. 276/1999, under Sections 498-A/304/34 of IPC,
registered at police station Dabri, Delhi and vide impugned judgment,
they have been held guilty for offence under Section 326/34 of IPC and
vide impugned order of 31st January, 2002 appellants have been
sentenced to rigorous imprisonment for three years with fine of `1,000/-
each with default clause.
Facts of this case are noted in detail in the opening paragraph of the
impugned judgment and need no reproduction. Suffice would it be to
note that appellant- Laxman was married with one - Manju on 21st April,
1998 and she had died on 13th May, 1999 due to 55% burn injuries
sustained on 18th April, 1999 at her matrimonial house. As per the
prosecution case, Manju (hereinafter referred as the „deceased‟) had
infact died in her parental house after being discharged from the hospital.
It is the prosecution case that on 18th April, 1999, at around 3:00 a.m.
(night), appellants had poured kerosene oil over Manju and her husband-
Laxman had put her on fire.
Prosecution relies upon dying declaration (EX. PW-4/A) and the
alleged history given by deceased to Dr.Devesh (PW-8). The alleged
history recorded in MLC (EX. PW-8/A) of deceased reveals that she had
disclosed to the doctor that she was set on fire by the appellants.
Prosecution had also got examined in evidence parents of deceased (PW-
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1 & PW-2) and husband's Uncle (PW-6) but their evidence does not
incriminate the appellants. This aspect has been taken note of by trial
court but while relying upon dying declaration (EX. PW-4/A) made to the
S.D.M. (PW-4) and the alleged history as given in MLC (EX. PW-8/1) of
deceased, trial court has convicted appellants for offence under Section
326/34 of IPC.
At the final hearing of these appeals, both sides submitted that
since in above captioned three appeals challenge to the common
impugned judgment is on identical grounds, therefore, these three appeals
can be heard together. Accordingly, these three appeals were heard
together and are being disposed of by this common order.
Learned counsel for appellants assails the impugned judgment and
order by contending that the dying declaration (EX. PW-4/A) and the
alleged history in MLC (EX. PW-8/1) purportedly given by deceased, is a
tutored version and infact the deceased had died accidentally by burning
while lighting a lamp. It was pointed out by learned counsel for
appellants that the in the night intervening 17th & 18th April, 1999, the
family of appellants were mourning, as father-in-law of deceased had
expired at 6:30 p.m. in the preceding evening and his dead body was
lying in the house of appellants and thus, there was no occasion for
appellants to have slapped the deceased or to have poured kerosene oil on
her and set her on fire. It was pointed out by learned counsel for
appellants that prosecution has failed to establish that due to dowry
demands, the deceased was subjected to cruelty or was burnt by
appellants. It was pointed out that appellants have been acquitted by trial
court for offence under Section 498-A of IPC and the said acquittal has
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attained finality.
It was contended by learned counsel for appellants that stand taken
by appellant-husband before trial court at the stage of recording of his
statement under Section 313 of Cr.P.C. has not been taken into
consideration by trial court. Attention of this Court was drawn to the
answer given to the last question put to appellant-husband while
recording his statement under Section 313 of Cr.P.C. It would be
relevant to advert to the stand taken by appellant-husband before trial
court. It reads as under:-
"Q: Have you anything else to say?
Ans: I am innocent. Manju has never been illtreated. No
demand of dowry had ever been made by us. The impression of
the toe on the MLC as well as the statement allegedly recorded
by the SDM are not of Manju. On the date of occurrence my
father Rampat had died at about 6.30 p.m. The name of my
wife was Saroj Yadav (prior to her marriage). She was a
graduate from Maitri College. The original documents to show
her educational qualification, her name and her being my wife
are Ex.-D1 to D-4. The parents of my wife used to reside in
Janakpuri and the distance between my house and the house of
parents of my wife was such that it could be covered in 5
minutes on motor cycle. After the death of my father, I had
intimated parents of Manju about death of my father. The
parents of Manju had come to my house to console me and my
other family members. Since the sun had already set, therefore,
it was decided by us that the cremation of my father shall take
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place on the next day. We had intimated our relations about
death of my father. A number of relations numbering around
25/30 had infact reached our house on the date of death of my
father (within few hours of his death). I and my wife were
residing separately in one room of house No. RZ 603. My
mother and my sister-in-law (bhabhi) used to reside separately
though in the same house. Food used to be prepared in the
same room in which I and my wife used to reside. Women folk,
who had come to console were sitting in one room. Manju was
also sitting with them in that room (other than my room). Men
folk were sitting in „angan‟. Some of the ladies had asked
Manju to go to kitchen i.e. my room to prepare tea. Manju had
gone to prepare tea. The bulb of my room had fused on that
day. She had lit the kerosene lamp which was without chimney
(the glass cover). All of a sudden her clothes caught fire
accidently from the kerosene lamp. In this manner she had
sustained the burn injuries. We had informed the parents of
Manju. They had also reached there within a short period/
time. Parents of Manju and Mausi of Manju had come to our
house on receipt of information of burning of Manju. All of us
had enquired from Manju as to how had she sustained to burn
injuries. She had told us including the parents and Mausi of
Manju that she had sustained the burn injuries accidently while
she was igniting the kerosene lamp. She was removed to
hospital by my uncle Jaya Singh, myself, parents of Manju and
her Mausi. First of all we had taken her to Chanan Devi
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Hospital. From there she was taken to Safdarjung hospital.
Mausi of Manju was instigating and inciting Manju and
whatever had been recorded by the doctor on duty in
Safdarjung Hospital, the same was told by Mausi of Manju and
not by Manju herself. The name of Mausi of Manju is Kailash."
Attention of this court was also drawn by learned counsel for
appellants to impugned judgment to point out that trial court has dealt
with the aspect of deceased being tutored by Smt. Kailash- her aunt, while
cryptically observing as under:-
„The presence of Smt. Kailash at the time of examination of
Manju by PW-8 is neither here nor there."
It was asserted by learned counsel for appellants that the aspect of
deceased being tutored by Smt. Kailash- her aunt, has been accepted by
trial court but still the alleged history given by deceased to doctor (PW-8)
has been erroneously relied upon by trial court. It was pointed out by
learned counsel for appellants that merely because deceased had
sustained burn injuries on upper portion of her body, it would not rule out
the probability of the said burn injuries being sustained by accidental fire
and trial court has erred in observing that the sustaining of burn injury by
deceased in upper portion of body rules out the accidental fire. Reliance
was place upon Apex Court decision in Muneer Khan & ors. Vs. State of
Madhya Pradesh (2002) 9 SCC 523 to contend that in a similar case, such
dying declaration was not relied upon in view of the fact that the ocular
version did not incriminate the accused. Thus, it is submitted on behalf
of appellants that afore-referred version of appellants is quite probable
and so, conviction of appellants for offence in question is unsustainable
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and deserves to be set aside.
Learned Additional Public Prosecutor for respondent-State
supports the impugned judgment and submits that even if parents of
deceased and uncle of husband of deceased have not supported the
prosecution case but still on the basis of the dying declaration (EX. PW-
4/1) and alleged history given in MLC (EX. PW-8/1) given by deceased,
appellants are liable to be convicted for the offence under Sections
304/34 of IPC and decision relied upon by appellants' counsel does not
advance their case and thus, these appeals are without substance and
deserve to be dismissed. Lastly, it was submitted that appellants ought to
have been convicted for the charged offence i.e. under Sections 304/34 of
IPC.
Upon hearing both the sides and on perusal of evidence on record
and impugned judgment, it would be appropriate to take note of the fact
that while entertaining these appeals, my brother K. S. Gupta, J. (as His
Lordship then was), had issued notice vide order of 26th April, 2002 to
appellants to show cause as to why their conviction under Section 326/34
of IPC be not altered to one under Section 304/34 of IPC.
At the time of final hearing of these appeals, learned counsel for
appellants had not addressed any meaningful arguments on the aspect of
show-cause notice being issued to appellants regarding alteration of their
conviction from one under Sections 326/34 of IPC to one under Sections
304/34 of IPC. The contentions advanced on behalf of appellants are on
the merits of this case.
Upon in-depth consideration of the evidence on record and the
impugned judgment, this Court is of the considered opinion that
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conviction of appellants for the offence under Sections 326/34 of IPC is
unwarranted on the face of it, as due to burn injuries sustained by
deceased in this incident, she had died within few days. The cause of
death is the burn injuries which ultimately proved fatal.
Finding the conviction of appellants for the offence under Sections
326/34 of IPC to be unsustainable, impugned conviction and order on
sentence is set aside and trial court is directed to rehear this matter in the
light of afore-noted submissions of appellants and to decide as to whether
appellants are liable to be convicted for the offence under Sections
304/34 of IPC or not. Such a course is being adopted because it cannot be
said that in a case of victim dying within few days of the incident,
conviction under Section 326/34 of IPC can be recorded. Since show-
cause notices to appellants have been issued by my brother K.S. Gupta,
J.(as His Lordship then was), while exercising revisional jurisdiction suo
moto, therefore, this Court is not deciding these appeals on merits to find
out whether appellants are liable to be convicted for the offence under
Sections 304/34 of IPC while exercising revisional jurisdiction of this
Court, as implied acquittal of appellants for the offence under Section
304/34 of IPC cannot be converted into conviction, even if this Court
finds appellants guilty of the offence under Sections 304/34 of IPC,
particularly when there is no appeal by the State or a petition by the
complainant/first informant of this FIR.
The above-captioned three appeals are accordingly disposed of in
aforesaid terms. Trial court record be remitted back forthwith. Appellants
are directed to appear before trial court on 24 th May, 2014 to submit to
the jurisdiction of the trial court by furnishing bail-bonds to the
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satisfaction of trial court to enable the trial court to hear appellants and to
expeditiously decide this FIR case on merits afresh. Trial court be
apprised of this order forthwith.
(SUNIL GAUR)
JUDGE
MAY08, 2014
r/s
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