Gurdayal Kohli vs State
2014 Latest Caselaw 5232 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :14.10.2014
                                   Judgment delivered on : 17.10.2014


+      CRL.A. 422/2006


       GURDAYAL KOHLI
                                                            ..... Appellant
                          Through        Mr.M.K. Vashisht, Adv.

                          versus
       STATE
                                                           ..... Respondent
                          Through        Ms. Fizani Hussain, APP

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 23.05.2006 and 27.05.2006 respectively wherein the

appellant Gurdayal Kohli stood convicted for the offence under Sections

304-B/498-A of the Indian Penal Code, 1860 (IPC). For the offence

under Section 304-B of the IPC, he had been sentenced to undergo RI

for a period of 10 years; for the offence under Section 498-A of the IPC

he had been sentenced to undergo RI for a period of three years and to

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

for a period of one month. The other two co-accused i.e. the brother and

mother of the appellant stood acquitted.

2 The nominal roll of the appellant reflects that as on the date when

he had been granted bail, he has suffered incarceration of about 2 years

including remission.

3 Record shows that the victim i.e. the deceased Kamlesh had been

married to the appellant on 10.12.1993. The unfortunate incident had

occurred on 07.08.1999. At that time, the parties had a 1- ½ year old

female child born out of their wedlock. The victim had been admitted in

the hospital with 60% burns; this was at 10:10 pm in the night of

07.08.1999. She had succumbed to her injuries in the morning at 05:10

am on 08.08.1999. Her cause of death was burns shock consequent to

burn injuries which post mortem report was proved by Dr.Yogender

Bansal (PW-7) as Ex.PW-7/A. Since the incident had occurred within

less than 7 years of marriage, inquest proceedings were ordered. The

SDM G. Sudhakar (PW-1) had recorded the statements of the relations

of the victim which includes her mother Shanti Devi (PW-2), her father

Mohan Lal (PW-3) and her brother Dalip Kumar (PW-4). It was on the

statement of PW-2 that the present FIR was registered.

4 Learned counsel for the appellant at the outset points out that the

ingredients of Section 304-B of the IPC necessarily entail four elements;

even presuming that the three ingredients i.e. death in circumstances

other than normal, within seven years of marriage and that there had

been dowry harassment have been established, the fourth ingredient i.e.

cruelty having been meted out to the victim „soon before her death‟ has

not been established.

5 The counter submission of the learned counsel for the State has

also been noted. She has in fact conceded to this position but has drawn

attention of this Court to the alleged dying declaration recorded of the

victim (Ex.PW-16/A) as also the noting made in the MLC as disclosed

by the patient herself (Ex.PW-12/A); submission being that these dying

declarations are not in consonance with the other evidence collected by

the prosecution which clearly establish the guilt of the accused. It is

pointed out that investigation had revealed smell of kerosene emanating

from the bed room and a kerosene lamp (kept in the open almirah) as

also burnt match sticks and some burnt clothes were also seized from the

room; submission being reiterated that this evidence is contrary to the

theory of an accidental fire having engulfed the deceased in the kitchen.

Thus the version in the dying declaration that the victim at that time was

cooking in the kitchen when the accident occurred is not in consonance

with aforenoted seized items which were recovered from the bed-room.

The dying declarations were given by the victim under pressure.

Submission being that the dying declarations although exonerate the

accused yet they cannot be relied upon in view of this aforenoted

controversy.

6 Record shows that DD No.69-B was received in Police Station

Sarai Rohilla at 10:10 PM giving intimation to the effect that a victim

with burn injuries had been admitted in the LNJP Hospital. SI Ashok

Kumar (PW-16) reached the hospital along with Constable Nandu

Kashyap (PW-14). The MLCs of the victim Kamlesh (Ex.PW-12/A) and

Gurdayal Kohli (Ex.PW-12/B) were collected. Ex.PW-12/A revealed

that the victim was admitted in the LNJP Hospital as a medico legal case

at 10:10 PM on 07.08.1999. The history (as disclosed by the patient

herself) was accidental burns received while cooking as the child

playing nearby had pushed her due to which it dashed the kettle and oil

spilled on the body of the patient and her clothes caught fire. The victim

was conscious and oriented at that time. She was declared fit for

statement in terms of Ex.PW-12/A and this position was affirmed on

oath by Dr.Arun Prashant Baxla examined as PW-12. He had on oath

deposed that he had examined the victim who had been brought in the

hospital with 60% burns and she had been declared fit for statement by

him as mentioned in the MLC; he had deposed that the history revealed

in the MLC was narrated by the patient herself. This narration of the

victim exonerated the accused; it had reported to be a case of accidental

fire.

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

Investigating Officer. This was proved as Ex.PW-16/A. This was written

in the hand-writing of the Investigating Officer and signed by the victim.

In this dying declaration, it was disclosed that while the victim was

preparing to cook food, in her attempt to pour kerosene oil in the stove

from a can, her 1-½ years old daughter gave her a push as a result of

which kerosene spilled on her clothes; she caught fire from the nearby

stove. Her husband had tried to save her by putting a „gadda‟ (mattress)

over her. She was first taken to the Bara Hindu Rao Hospital where she

was not given medical aid and then to the LNJP Hospital. The signature

of the victim at point „A‟ is in the handwriting of the deceased; the name

„Kamlesh‟ is decipherable, so also the date but the handwriting is shaky

and quivering, obviously for the reason that the victim was in a state of

mental and physical trauma; she had sustained 60% burn injuries. The

submission of the learned counsel for the State that the victim could not

have signed this statement considering the fact that her entire body was

burnt except for her front limbs is negatived by the post-mortem report

which had noted injuries on almost the whole of the body except the

front part of her legs; her skin was peeling of; palms were burnt but her

fingers were intact. Her quivering and shaky signature answers the

theory that since the palms of the victim were burnt, she was probably

not fit enough to hold the pen firmly to sign her name. There was also

no smell of kerosene on the body; the fact that the smell of kerosene was

not present on the body is indicative of the fact that it was not a case

where kerosene oil was poured over her body to kill her but in fact

supports the argument of the learned counsel for the appellant that this

could be a case where because of an accidental spilling of the oil only

some parts of the body of the victim had kerosene. The MLC of the

appellant (Ex.PW-12/B) shows that his hands had also been burnt; he

had also sustained 5% burn injuries.

8 The dying declarations Ex.PW-12/A and Ex.PW-16/A have been

penned down by the Investigating Officer. There is however no blanket

bar that such a piece of evidence could not be read. PW-12 in his ocular

version as also in the document (Ex.PW-12/A) testified that the victim

was fit for statement. There was no suggestion given to the Investigating

Officer that the victim was in fact not in a fit state of mind. This Court

also notes that Dr. Arun Prashant Baxla (PW-12) had certified the

patient to be fit for statement which was signed by him in the MLC

(Ex.PW-12/A). The victim was brought to the hospital at 10:10 PM. She

had expired at 05:10 a.m. on the following morning. There was an

intervening gap of seven hours. Her parents had reached the hospital at

about 02:30 am and this is clear from their testimonies. At that time, the

victim could not speak. It was obviously during this intervening gap i.e.

between 10:10 pm and 02:30 am that the dying declaration was

recorded. The victim at that time was conscious and oriented. This is

reflected in the MLC. There was also no reason for PW-12, a doctor

from a reputed government hospital, to have made a false statement. He

was also not cross-examined as to why he would have given a false

certificate. Thus there is no reason whatsoever to disbelieve the dying

declarations (Ex.PW-12/A and Ex.PW-16/A); both of them have

exonerated the appellant.

9 The statements of the parents of the victim were recorded by

PW-1 on 07.08.1999 itself. On oath Shanti Devi (PW-2-mother) of the

deceased had deposed that Kamlesh had got married to the appellant on

10.12.1993 and in the marriage whatever they could give according to

their capacity, they had given; after marriage, her son-in-law used to

beat her daughter after consuming liquor; her daughter disclosed to her

that the appellant was demanding money; on 07.08.1999, they were

informed that their daughter had been admitted in the Irwin Hospital;

she reached there where she saw her daughter admitted in burnt

condition and thus unable to speak; she died on 08.08.1999.

10 In her cross-examination, it was admitted that she had reached the

LNJP Hospital Burn Ward at 02:30 am; they were informed about the

incident by Ashok, the brother of the appellant.

11 Mohan Lal (PW-3) is the father of the victim. He deposed that he

had four children. His daughter had been married to the appellant. After

marriage, Kamlesh used to tell him that she was being harassed and ill-

treated by him but she did not tell who amongst her in-laws harassed

her. On the intervening night of 07.08.1999 and 8.08.1999, they

received intimation at 12:30 am that his daughter had received burn

injuries; they reached the hospital at 02:30 am; his daughter was unable

to speak at that time. His statement was recorded by the SDM. This

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

the learned public prosecutor. He admitted that his daughter was subject

to dowry harassment.

12 Dalip Kumar, the brother of the victim was examined as PW-4.

His testimony was based largely on what had been told to him by his

wife. His wife did not come into the witness box. This witness being an

hearsay witness was rightly rejected by the trial Court.

13 Before the trial Judge, what became relevant were the statements

of the parents of the victim, i.e. PW-2 and PW-3. Even presuming that

was a dowry demand and their daughter was being harassed on this

count, there is nothing in their evidence which could establish the

ingredient of „soon before death‟. Parties had admittedly been married in

1993. The incident had taken place in the year 1999 i.e. after the lapse of

six years. Parties had a 1- ½ year old daughter from this marriage. There

is not one whisper in the statements of the parents of the words that

"soon before her death" the victim was harassed on account of dowry.

14 There is no straight jacket formula of defining what is „soon

before death‟. It might be an unending process. It may continue from the

time of marriage up to the incident but this must necessarily come in the

evidence. There must be a connection between death and the dowry

related cruelty inflicted upon the victim. In fact, it must be the

immediate cause of death of the victim.

15 The site plan Ex.PW-16/D has been perused. This discloses that

there were three rooms in the accommodation where the parties were

living. Room No. 3 was the bed-room of the victim and the appellant.

The kitchen was immediately adjacent to room No. 3. There was no in

between gallery. In fact, the door of the room if open would straightway

lead into the kitchen. The site plan revealed that some burnt clothes and

match sticks were lying in the bed-room. A kerosene lamp was also

found in the almirah in the room. The statement of the victim in her

dying declaration that while she was cooking, the incident of fire had

taken place and process of cooking had started at the time when the

victim was preparing the stove by filling it with kerosene from the lamp

in the bed room, is an argument which cannot be straightway rejected.

Her statement in the dying declaration was that the „gadda‟ was used by

her husband in extinguishing the fire; the statement of the Investigating

Officer that the „gadda‟ was not found at the spot is falsified by the

photograph which shows a „gadda‟ lying in the bed room. A burnt bed-

sheet had also been seized vide seizure memo Ex.PW-14/A which bed-

sheet had been recovered at point „D‟ in the site plan Ex.PW-16/D. This

burnt bed-sheet was lying near the stairs and had probably fallen there at

the time when the victim was being taken to the hospital by going down

the stairs. The victim in the dying declaration might have made a

reference to the bed-sheet as a „gadda‟ (mattress).

16 Section 304-B of the IPC has certain essential ingredients; (a)

there are demand of dowry and harassment by the accused; (b) the

deceased had died in unnatural circumstances; (c) unnatural death

occurs within than seven years of marriage; (d) it should also be that

soon before her death, she was subjected to this cruelty and harassment.

As noted supra and conceded by the learned public prosecutor, the last

ingredient of „soon before death‟ is missing.

17 In this background in the absence of any such evidence, it would

be wholly unsafe to convict the appellant. The trial Judge has committed

a grave illegality in doing so. Not only is there a dying declaration from

the horse‟s mouth herself exonerating the accused, even otherwise there

is nothing in the version of PW-2 and PW-3 which could even remotely

be said to be within the ambit of „soon before death‟ to connect the

death of the victim with the cruelty inflicted upon her in relation to

dowry demands. There is no such evidence on record.

18 This Court has also been informed that the appellant has since re-

married. He has two children from the second marriage. The child from

the first marriage who was then 1- ½ years old has now attained the age

of 18 years and is in the custody of the appellant.

19 In this background, keeping in view the factual position as noted

supra, the impugned judgment is liable to be set aside. Benefit of doubt

must accrue in favaour of the appellant. Appeal is allowed. Appellant is

acquitted. Bail bonds cancelled. Surety discharged.

INDERMEET KAUR, J OCTOBER17, 2014 A/ndn