Ravi And Others vs State
2015 Latest Caselaw 5551 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Reserved on: 17.07.2015
%                                         Date of Decision:04.08 2015

+                             CRL.A. 46/2000
       RAVI AND OTHERS                                ..... Appellants
                              Through Mr. Ramesh Gupta, Sr. Advocate
                              with Mr. Anurag Jain, Advocate.
                                versus
       STATE                                          ..... Respondent

Through Ms. Aashaa Tiwari, APP along with Inspector Rajesh Kumar, P.S. Badarpur.

+                             CRL.A. 91/2000
       ASHOK KUMAR                                    ..... Appellant
                              Through Mr. Ramesh Gupta, Sr. Advocate
                              with Mr. Anurag Jain, Advocate.
                                versus
       STATE                                          ..... Respondent
                              Through Ms. Aashaa Tiwari, APP along
                              with Inspector Rajesh Kumar, P.S.
                              Badarpur.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R. K. GAUBA

R. K. GAUBA, J:

1. On conclusion of investigation into FIR No.403/1997 of PS Badarpur (hereinafter referred to as „the police station‟), report under Section 173 of the Code of Criminal Procedure („Cr.P.C.‟ for short) was filed on 12.9.1997 in the court of Metropolitan Magistrate seeking prosecution for offence punishable under Section 302/34 of Indian Penal Code („IPC‟ for short) of five accused persons viz. Prem (accused No.1),

Ashok Kumar (accused No.2), Ravi (accused No.3), Kamlesh (accused No.4) and Ramchand (accused No.5). It may be mentioned here that accused No.1-Prem (A-1), accused No.2-Ashok Kumar (A-2), accused No.3-Ravi (A-3) are sons of accused No.5-Ramchand (A-5). Accused No.4-Kamlesh (A-4) is the wife of Ganga Saran whose unnatural death is the subject matter of the case. Upon committal, the five accused were put to trial in the sessions case No.106/98 on the charge for offence punishable under Section 302/34 IPC on the allegations that they, in furtherance of their common intention, had caused burn injuries to Ganga Saran (hereinafter referred to variously as "the victim" or "the deceased") at 8.10 P.M. on 14.6.1997 in House No.B-22, Saurabh Vihar, Hari Nagar within the jurisdiction of the police station as a consequence of which he died during treatment in hospital on 15.6.1997. All the five were held guilty and convicted, as charged, by judgment dated 14.12.1999 passed by the Additional Sessions Judge, New Delhi. By order dated 16.12.1999, they were sentenced by the trial judge to undergo rigorous imprisonment for life with fine of ₹500/- each and in default of payment of fine to further undergo rigorous imprisonment for three months each.

2. Three criminal appeals were filed impugning the aforementioned judgment and order on sentence. Crl.A.No.30/2000 was preferred by A-5 Kamlesh. Crl.A.No.46/2000 was filed jointly by A-1 Prem, A-3 Ravi and A-5 Ramchand. Crl.A. No.91/2000 was preferred by A-2 Ashok.

3. A-4 Kamlesh had been released on bail pending hearing on her appeal. She jumped bail and her presence thereafter could not be secured. She having absconded, her appeal was taken up by another Division Bench (comprising HMJ Sanjay Kishan Kaul and HMJ Ajit Bharihoke) of this

Court and dismissed by judgment dated 19.11.2009, primarily for the reason that she had absconded and had not pressed her appeal.

4. A-5 Ramchand, one of the appellants in Crl.A.No.46/2000 died on 22.2.2014. On their application under Section 394 Cr.P.C., his legal heirs have been allowed to prosecute the appeal in his respect by order dated 13.01.2015.

5. The two criminal appeals captioned above have come up for consideration before this Court against the above backdrop.

6. Certain basic facts are indisputable and may be noted at the outset. Ganga Saran, the victim, aged about 38 years at the time of his death, was married to A-4 Kamlesh. The couple had four children, the eldest being daughter Anita (DW-4), followed by son Rohit (PW-7), and two younger children being daughters (named Sheetal and Neha, per the statement of A- 4 Kamlesh). One of the younger siblings is referred by PW-7 by the name of „Meeta‟.

7. Having regard to the proceedings recorded under Section 164 Cr.P.C. in the Court of Metropolitan Magistrate on 13.8.1997, DW-4 Anita was aged about 14 years, while PW-7 Rohit would be about 12 years old at the relevant point of time. The victim Ganga Saran was working as a clerk in the office of an advocate.

8. It appears that a residential property (1742/1, Kotla Mubarakpur, Delhi) had fallen to the share of the deceased by way of inheritance. It is common case of both sides that he and his wife had had differences and were living separate from each other for some time past. While Ganga Saran was living in the Kotla Mubarakpur house, his wife A-4 Kamlesh was living with the daughters in Saurabh Vihar area. The son PW-7 Rohit statedly was living with his maternal uncles.

9. Reference has come to two residential properties in Saurabh Vihar, one being house No.B-22 where the incident in question occurred and the other house No.C-84. It is not in dispute that both the houses are located opposite each other across the street. The site plan (Ex.26/D) prepared during investigation by SI Ram Sahai (PW-26), the first Investigating Officer („IO‟ for short) graphically confirms this fact. It is admitted case that A-4 Kamlesh was living with her three daughters in House No. B-22, Saurabh Vihar. The chargesheet itself showed that the other four accused were residents of House No.5, Molarband, New Delhi. There is material on record to show that the said house would be around one kilometre away from the house where the incident occurred.

10. It is further undisputed that the deceased accompanied by his son PW-7 Rohit in the afternoon had come at 2:30 PM on 13.08.2007 (as per statement of DW-4 Anita under Section 164 Cr.P.C. Ex.DW-4/A) to house No.C-22, where A-4 Kamlesh was living during those days (on rent). It is further beyond dispute that Ganga Saran received burn injuries in the said house around 8.15 PM on the same day. Information in this record came to be received from police control room („PCR‟ for short) in the police station at 8.22 PM vide DD No.36B (Ex.PW-15/A) recorded by Constable Balchari (PW-15), working as DD writer at the relevant point of time.

11. The medico legal report („MLC‟ for short) (Ex.PW-9/E) recorded by Dr. H K Sharma (PW-9) in the casualty of Safdarjung Hospital, New Delhi (hereinafter referred to as "the hospital") reveals that the victim was brought in the hospital at 9 PM on 14.6.1997 by head constable Dharampal (PW-8) of PCR with burn injuries all over body assessed as "100% deep burns". After the initial medical aid, he was sent to ICU for further treatment in terms of prescription (Ex.PW-9/DB). As per death summary

(Ex.PW-9/DA), he suffered cardiac arrest at 06.30 hours and was declared dead at 06.45 hours on 15.6.1997.

12. The dead body was subjected to post-mortem examination on 16.6.1997 by Dr. G K Chaubey (PW-10), whose report (Ex.PW-10/A) confirms that the death had occurred due to shock as a result 100% ante mortem deep burns.

13. In the above-noted facts and circumstances, there can be no doubt about the fact that the death of Ganga Saran due to burn injuries was an unnatural death. We shall examine the issue as to whether this death was homicidal or otherwise, in due course later in this judgment.

14. The fact that the deceased suffered burn injuries in a room of residential property No.B-22, Saurabh Vihar, New Delhi has been established by evidence which is beyond reproach. The first intimation about the incident had reached the police station through PCR. It referred to the said house, as shown in DD No.36B (Ex.PW-16/A). The word of PW- 26, the first IO, accompanied by Kishan Singh (PW-19) is on record to show that when they arrived at the said house, they had found tell-tale signs of burning in the form, inter alia, of one bottle with smell of kerosene oil (Ex.P-1) and five burnt match sticks (Ex.P-3) lying there. PW-19 was left at the place by the Investigating Officer, who himself proceeded to the hospital where PCR van had already shifted the victim. PW-8, the PCR official, confirmed that he had transported the victim in PCR van (Eagle-

10) from house B-22, Saurabh Vihar to the hospital. Inspector Nirmal Singh (PW-4), the police official in-charge of the crime team, had inspected the spot and prepared report (Ex.PW-4/A). It confirms that the room was smelling of kerosene oil and suggested, amongst others, the seizure of the bottle smelling of kerosene oil as found in the room, after the

place had been photographed. It may be added here that there is no mention in the police proceedings as to the status of clothes worn by the victim at the time he suffered the burn injuries. PW-8 (the PCR official) testified, that he had found the victim in naked condition and had put a blanket over him for the duration of the journey to the hospital. There is not even a whisper in entire evidence about burnt clothes or ashes.

15. The scene was photographed by PW-26. The photographs (Ex.PW- 26/DA-1 to 4) were brought on record during his cross-examination by the defence. The said photographs, the scaled site plan (Ex.PW-6/A) prepared by SI Madan Lal (PW-6) and the testimony of PW-26 collectively bring out that the house in question comprises of five rooms, one of which was in the occupation of A-4 Kamlesh, its dimensions being 15 ft x 10 ft. PW-26 conceded that there has been no investigation as to the occupancy of the other four rooms which, according to him, were "closed" at the time of his visit. Inside the room, there were three pieces of furniture lying including a bed (6 ft x 4 ft), a cot (6 ft x 3 ft) and a table. The place where the deceased suffered the burns was right in front of the door of entry into the room. The place was visible from the open courtyard in front where a hand pump was located. The bottle statedly smelling of kerosene oil, can be seen lying in the corner across from the entry door with some utensils. There were signs of burnt oil/slick on the floor. PW-26 conceded under cross- examination that neither articles of furniture nor the walls of the room had suffered any burn marks or oil spill.

16. Though the photographs do not show, and there is no reference to such effect in the crime team report (Ex.PW-4/A), as per the evidence of PW-19 and PW-26, the investigating officer had also seized eight pieces of glass bangle (Ex.P-2) from the scene of incident aside from seizure of the

bottle (Ex.P-1) and the match-sticks (Ex.P-3 collectively) vide separate seizure memos (Ex.PW-19/B and Ex.PW-19/A respectively).

17. The intimation about the burning having been logged vide DD No.36B (Ex.PW-15/A), the matter was entrusted for enquiry to PW-26 SI Ram Sahai. PW-26, after visiting the scene of incident, and leaving PW-19 there for guarding the scene, had proceeded to the hospital and collected the MLC. He moved application (Ex.PW-26/A) seeking permission of the medical officer for recording the statement of the victim. PW-9, the medical officer, who had examined the victim at the time of arrival at the hospital has proved his endorsement (Ex.PW-9/B) on the said application confirming that the victim was fit for statement at 10.45 PM on 14.6.1997. Though questions have been raised during the trial, and at the hearing on the appeal, as to the possibility of fitness of the victim for making a statement (this having regard to the fact that he had suffered 100% deep burns which, per the evidence of PW-8/PCR official, covered his lips), for the purposes of the present narrative, it only needs to be noted that after the said certification by the medical officer attending on the victim in the hospital, the IO examined and recorded the statement of the victim vide Ex.PW-26/B.

18. PW-26, during cross-examination, stated that he had started recording the statement of the victim after about 10 minutes of obtaining the certificate as to his fitness and it took him about 20 to 25 minutes to complete the said exercise. The rukka (Ex.PW-26/C), which would eventually form the basis of the FIR (Ex.PW-5/A), recorded by head constable Rajender Singh (PW-5) at 00:15 hours of 15.6.1997, was presented in the police station by PW26 himself.

19. Thus, it is clear that after the victim had been declared fit for statement at 10.45 PM on 14.6.1997, PW-26 proceeded to record his statement which would stand concluded around 11.30 PM. He then rushed to the police station and, after discussing the matter with the SHO, got the case registered for the offence under Section 307/34 IPC. Since the victim died the next morning, the case was converted for investigation into the offence under Section 302/34 IPC.

20. The MLC (Ex.PW-9/A) and the statement (Ex. PW-26/B) of the victim (forming the basis of the FIR) constitute the material presented by the prosecution as two dying declarations of the victim. In addition, the prosecution also rested its case on the evidence of PW-8 head constable Dharampal, the official (in-charge of the PCR vehicle). According to him, the victim had narrated to him the facts leading to the burning incident on the way to the hospital, which are also in the nature of his dying declaration.

21. As noted earlier, the deceased had come to the place of incident with his minor son PW-7 Rohit in the afternoon on same day. The investigating police states that PW-7 had seen the incident, involving his father being set afire by the five accused, from the terrace of the room across the open courtyard. PW-7 did not support the prosecution case as to the factum of he being an eye-witness or about the role attributed to the appellants. He denied that he had seen the incident in which his father received burn injuries. He deposed that he was on the terrace of House No.C-84 with his younger sister (Meeta) and had only seen his father coming out "in burning condition" from out of House No.B-22. He also stated that his mother i.e. A-4 Kamlesh was in the house of the neighbour Laxmi and had also come

and tried to extinguish the fire. He denied having seen any of the accused near his father at the stage when the latter had come out of House No.B-22.

22. It is trite that conviction can be based solely upon a dying declaration. It is more a rule of prudence, rather than a rule of law, that the court would look for other corroborative material if the dying declaration is of steller and unimpeachable quality fully inspiring confidence. Nothing inhibits the court from relying on it and returning a finding of guilty thereupon. But for being thus applied, the dying declaration must pass the muster of it being true and voluntary and free from the vice of tutoring, prompting or imagination. It must indicate that the declarant had the opportunity to observe and identify the assailant and was in a fit state to make the declaration. The court exercises caution because acceptance of such material is an exception to the rule of hearsay evidence. It is well settled that a dying declaration which is suspicious, or one suffering from infirmity, or differing in material from the prosecution version, would not be acted upon, unless other cogent evidence is available in its corroboration [Paniben v. State of Gujarat, (1992) 2 SCC 474; Laxmi v. State, 2001 (6) SCC 118 and P. Mani v. State of Tamil Nadu, 2006 (3) SCC 16].

23. Given the state of evidence of PW-7 Rohit noted earlier, the prosecution relied solely upon the three dying declarations. It would be proper to subject the said evidence to scrutiny in the chronology in which they are stated to have been made.

24. PW-8 head constable Dharampal, who had taken the victim to hospital after the intimation had been received telephonically in PCR at 8.10 PM on 14.6.1997 testified that on the way, upon enquiry, the victim had told him that he had been burned by his wife Kamlesh and by Ramchand and his sons Ashok Kumar, Ravi and Prem. Initially, PW-8

described the other persons as Jai chand and his sons. On cue from the prosecutor, he corrected himself to name the four accused by their respective names.

25. On careful scrutiny of evidence of PW8 in the light of facts and circumstances brought out during the trial, we are unable to place our trust in his word. He is the first police official who had arrived at the scene and come in contact with the victim since he was posted at the relevant point of time in PCR, it may not be ordinarily part of his duty to investigate a crime. But, he himself states that on the way to the hospital he had made inquiries from the victim as to the events leading to the burn injuries. If facts revealing the identity of the persons who were complicit in the incident had, indeed, come to his knowledge, it was his bounden duty to bring it immediately to the knowledge of the local police which was on its way for taking over investigation. He came forward for his statement U/s 161 Cr.P.C. two days later i.e. on 16.06.1997. During cross-examination, when questions were raised as the credibility of his version he made an attempt to improve his position by claiming that he had recorded the entire facts, which would include summary of his conversation with the victim during the transit, in the "call book" maintained in ordinary course in the PCR vehicles. He also claimed that after getting the victim admitted in the hospital, he had returned with the PCR van to its base in front of the police station and had narrated the facts in the office of PCR. He would not clarify as to whom he had given the said narration. He conceded that he had not given any report in writing to his senior officers.

26. If it were true that PW8 had made a record of the conversation he had had with the victim on the way to the hospital, the call book containing the said entry would be a document of utmost importance. There is nothing

in the statement U/s 161 Cr.P.C. of PW8 made before the IO on 16.06.1997 indicating existence of any such contemporaneous official record. No call book containing any such entry was offered as supportive evidence at any stage during the investigation or brought on record during or after the testimony of PW8.

27. In the above circumstances, only two possibilities can be assumed; one, that no such call book entry ever existed or, two, that the call book entry if produced would not be in a sync with the version of PW8. The non-production of the call book of PCR Van must, in these circumstances, lead to adverse inference. Given the discrepancies, we do not find it safe to act on the version of PW8, brought on record with delay of two days for which no explanation has even been offered.

28. The second piece of evidence relied upon as dying declaration is the MLC (Ex.PW9/A), testified to by its author Dr. H. K. Sharma (PW9). As per this document, when the victim was brought to the casualty of the hospital by PW8 at 09:00 PM on 14.06.1997, he (Ganga Saran) himself had told the medical officer that he had sustained the burn injury on being intentionally set afire with help of kerosene oil by "four persons related to his wife". The learned trial judge did not find this evidence to be reliable. He noted that the facts disclosed by the deceased before the doctor were "contradictory" to the dying declaration made by him earlier before the PCR official (PW8) and, later, before the IO (PW26). He, thus, excluded from consideration the version in the MLC observing that it was not a "complete statement".

29. We have rejected the evidence of PW8 about the dying declaration. We have reasons to doubt that the said part of the evidence was added to "pad-up" and strengthen the case against the accused persons. Indeed, if

the deceased had given to the PCR official the names of all the five accused as assailants, the history of assault given to the medical officer examining him in the hospital would not take the shape in which it is found in the MLC. The learned trial judge is correct, in our view, in his observation that the version in the MLC is contradictory to the one given to PW8 as also later to PW26. We feel, for reasons set out a little later, that the statement made to the medical officer by the victim in the hospital renders suspect even the statement made to the investigating officer. We agree with the conclusion of the trial court in rejecting the history recorded in the MLC, not because it was an incomplete statement but, because it renders the version of the victim at such stage of doubtful credibility. Having accused, at 09:00 PM (Ex.PW9/A), four persons related to his wife of causing burn injury, he changed his stance within two hours (Ex.PW26/B) to attribute a direct role in the burning to his wife and other four accused named in the FIR. It is inherent in the first version that his wife had not actively participated in the incident. The four persons related to the wife could not obviously be the present appellants who faced trial with her. It may be that an illicit connection is suggested but that would not make the four other accused relatives of A-4 Kamlesh. At best it would reflect the deceased‟s opinion and belief regarding the appellants and his wife. Certainly, blood relationship did not exist.

30. On careful analysis of facts and circumstances in entirety, we are not impressed even with the version in the FIR based on statement (Ex.PW26/B) made by the deceased before the IO sometime before midnight of 14/15.06.1997. We hasten to add that we do not doubt that such statement as incorporated in the document (Ex.PW26/B) was made by the victim before the investigating officer from the hospital bed. We

however, do not feel inclined to accept it as a truthful version so as to be treated as good evidence worthy of reliance. We set out hereinafter the reasons that impel us to reject this evidence as untrustworthy.

31. The history given in the MLC (Ex.PW9/A) to the medical officer is in sharp contrast to the improved version in the statement (Ex.PW26/B) before the IO. From the story of four assailants, the latter version sought to name five persons. As observed earlier, the individuals pointed out in the former would not be the same as those named in the latter. The statement before the IO is undoubtedly more elaborate than the history narrated to the medical officer. More serious and significant are the inherent material contradictious in the third dying declaration.

32. A careful reading of the version in the FIR gives the impression that the deceased had made exasperating and wearsome allegations while narrating it to the police officer. It reflects his mental state and bitterness towards the four appellants. He started out by attributing illicit relationship between his wife (A-4) and the son of his landlord (A-2 Ashok), stating that he had caught both of them in an objectionable state about 30-35 days ago. This, according to him, had happened when A-4 Kamlesh was living on rent in house No.C-84 as tenant of A-5 Ram Chander. The said incident had given cause for quarrel between him and his wife. He then went on to accuse his wife of being quarrelsome, not allowing him to come home and making several complaints before different authorities, even getting him arrested by the police on false accusations. He then proceeded to rope in the father (A-5 Ram Chander) and his three sons (A-1 Prem, A-2 Ashok & A-3 Ravi), suggesting illicit liaison between each of them on one hand and his wife (A-4 Kamlesh) on the other, claiming that he had seen them

together in objectionable state on several occasions. A-4 was residing in the property of A-5 Ram Chander, as a tenant.

33. We find the above assertion rather far-fetched and unpalatable. We notice from record that A-5 Ram Chander was a middle aged man (over 50 years old) with five grown up children. We are informed that he has two children elder to his three sons who faced this trial as co-accused. The three sons who were prosecuted were young and happily married, all living together in their own house, away from the property where A-4 was one of the several tenants in one of the five rooms. A-4 herself at that stage was a mother of four children. It is inconceivable that she would be involved in an illicit relationship with the landlord and his three sons, all at the same time. It is unbelievable that the middle aged landlord, and his three in their twenties, each involved in amorous relationship with the same woman (as alleged), to the knowledge of one another and, would come together and subject her husband to immolation, merely on her asking for such reasons and background as alleged by the deceased.

34. There is substantive material on record indicative of it being a case of suicidal self-immolation. As noted earlier, the first intimation, vide DD No.36-B (Ex.PW15/A), received through PCR, was about a man having set himself afire ("ek aadmi ne aag laga li hai"). The evidence of PW7 Rohit reinforces this to be the correct version. According to his evidence, his mother (A-4 Kamlesh) was in the house of a neighbour while the four other accused were nowhere near the area. His elder sister DW-4 Anita had given a statement to this effect before the Metropolitan Magistrate U/s 164 Cr.P.C (Ex.PW4/A) two months after the occurrence (on 13.08.1997). It is true that DW-4 Anita had been living with A-4 Kamlesh and there is likelihood that she would be inclined to help her mother out. But, there is

no explanation given by the investigating officer as to why he had chosen not to examine the eldest child of the couple. The version of DW-4 finds support from the evidence of DW-2 Gopari, a neighbour.

35. Concededly, A-4 Kamlesh was the occupant of the room where the deceased received the burn injuries. She was living there with her three daughters. There is no allegation of there being a physical scuffle involving her at the time of burning. In these circumstances, the finding of eight broken pieces of a bangle is inconsequential. The scene, as depicted in the photographs, does not show signs of any scuffle. If the victim had actually being surrounded by five persons, with murder on their mind, some resistance on the part of the victim was bound to occur and would leave the place in a disturbed state. Further, his cries for help would have aroused attention of the neighbours. The evidence of the persons present at the scene (including PW7 Rohit and DW-4 Anita) instead brings out facts contrary to what he stated. The testimony of these witnesses shows that the deceased had come out of the house, in a burning state, all alone.

36. In our view, the post-mortem report (Ex.PW10/A), read with the CFSL report (Ex.PX-1), strengthens the defence plea of it being a case of suicide. The scalp hair were found to have singed. The sample of the burnt scalp hair, when examined in CFSL, gave negative test for presence of kerosene hydrocarbon residue. This possibly could not be the case if an unlawful assembly of five had forcibly poured kerosene oil head downwards and set him on fire.

37. The deceased admittedly was not on cordial terms with his wife. His statement to the investigating officer from the hospital bed reflects he was nursing a grudge against her and the landlord in whose property she had taken accommodation on rent. The possibility of he having committed

suicide and then implicated the wife and others assisting her as perpetrators having illicit and illegitimate relationship with not one but all of them, i.e. the father and the three sons is too extreme and sculptured to be ignored. This affects the veracity of his statement.

38. For the foregoing reasons, we do not find the version of the victim given in his statement (Ex.PW26/B) to the IO, inspiring confidence and, thus, reject the same.

39. In above view of the evidence, the impugned judgment and order on sentence cannot be sustained. The same are consequently set aside. In the result, the appellants A-1 Prem, A-2 Ashok, A-3 Ravi and their late father A-5 Ram Chander stand acquitted, giving them benefit of doubt.

40. The appeals stand allowed accordingly.

(R. K. GAUBA) Judge

(SANJIV KHANNA) Judge AUGUST 04, 2015/vld/ss