Delhi High Court

Kamalkant vs The State Of Nct Of Delhi on 29 March, 2016

Author: S. P. Garg

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        RESERVED ON : 2nd MARCH, 2016
                        DECIDED ON : 29th MARCH, 2016

+                         CRL.A.1457/2014

      KAMALKANT                                     ..... Appellant
                          Through :    Mr.Gurmeet Singh and Ms.Azma
                                       Parveen, Amicus Curiae

                          VERSUS

      THE STATE OF NCT OF DELHI                            ..... Respondent

                          Through :    Mr.Vinod Diwakar, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 13.10.2014 of learned Addl.

Sessions Judge in Sessions Case No.37/2014 arising out of FIR

No.88/2009 PS Bindapur by which the appellant - Kamalkant was held

guilty for committing offence punishable under Section 304 Part-I IPC,

the instant appeal has been filed by him. By an order dated 15.10.2014, he

was sentenced to undergo RI for seven years with fine `10,000/-.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 09.03.2009 at around 09.30 a.m. at RZV-129, Bhagwati

Vihar, Uttam Nagar, the appellant along with his other family members

Ajay Singh, Kamlesh and Deepak Kumar (since acquitted) in furtherance

of common intention poured kerosene on the victim - Mamta resulting in

her death. Victim - Mamta was married to Kamalkant on 15.08.2008. It

was a love marriage against the wishes of her parents. After the marriage,

she lived at her matrimonial home for about two months. Thereafter, they

shifted to a rented accommodation at RZV-129, Bhagwati Vihar, where

the incident took place. Police machinery came into motion on getting

information on 09.03.2009 at around 09.10 a.m. from informer recorded

vide Daily Diary (DD) No.18A that his daughter has been set on fire by

her family members. Vide DD No.20A recorded at 09.40 a.m. Duty

Constable at DDU Hospital informed that Mamta had been admitted by

her husband in burnt condition in the hospital. The investigation was

assigned to SI Dilip Singh who along with Const.Rajesh went to the spot

and met the landlady - Anita who informed that the victim residing on the

2nd floor had got burn injuries and had been taken to the hospital by her

husband. The Investigating Officer went to DDU Hospital and came to

know that the victim had been shifted to Safdarjung Hospital. Application

(Ex.PW-5/A) was moved to record the victim's statement; she was

declared fit to make statement. PW-21 Sh. Manjeet Singh recorded her

statement. A case under Sections 498A/307 IPC was lodged by the

Investigating Officer. On 14.03.2009 on the intervention of Ms. Jyoti

Dharmendra, posted at Delhi Commission For Women, second statement

of the victim was recorded by PW-21 Sh.Manjeet Singh, SDM. Efforts

were made to find out the perpetrators of the crime. On 17.03.2009, the

appellant was arrested. The victim expired on 12.04.2009 in the hospital.

Post-mortem examination of the body was conducted. Statements of the

witnesses conversant with the facts were recorded. The other accused

persons were also arrested subsequently. Exhibits collected during

investigation were sent to Forensic Science Laboratory for examination.

On 25.05.2009 the investigation was entrusted to PW-19 (Insp.Payare

Lal). On 30.06.2009 the complainant Sodan Singh, along with his wife

Mithlesh joined the investigation and assisted the Investigating Officer to

prepare an extract of CD received by him through 'dak'. It contained the

statement of the victim recorded in the hospital. Upon completion of the

investigation, a charge-sheet was filed against the appellant and his family

members - Ajay Singh, Kamlesh and Deepak Kumar for commission of

offences under Sections 302/34/108/304B/498A IPC. The Trial Court

charged the appellant and his associates for committing offence under

Section 304 Part-I IPC. By an order dated 17.07.2012 in Criminal

Revision Petition No. 704/2009, this Court ordered to proceed under

Sections 302/34 IPC. Accordingly, a charge under Sections 302/34 IPC

was framed on 07.01.2013. In order to establish its case the prosecution

examined 29 witnesses and relied on various documents. In 313 Cr.P.C.

statements, the accused persons denied their involvement in the crime and

pleaded false implication. The Trial Court after considering the rival

contentions of the parties and on minute appreciation of the evidence

acquitted Ajay Singh, Kamlesh and Deepak Kumar of the charges. It is

relevant to note that State did not challenge their acquittal. The trial

resulted in appellant's conviction under Section 304 Part-I IPC. Being

aggrieved and dissatisfied, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have

examined the file. Admittedly, the victim was married to the appellant on

15.08.2008; it was a love marriage against the victim's parents who had

lodged complaint against the appellant for kidnapping her (Mamta). The

victim - Mamta was interested to marry and live with the appellant.

Document executed at the Police Station at pages 649 and 651 (of Trial

Court Record) reveals that the victim had given her consent to live with

the appellant. Both of them had thereafter, lived at the matrimonial home

for about two months. Since the relations with in-laws were strained, they

both started living in a rented accommodation where the incident took

place.

4. It is also not in dispute that on 09.03.2009 at around 09.30

a.m. Mamta sustained severe burn injuries on her body. She was

immediately taken by the appellant to DDU Hospital from where she was

shifted to Safdarjung Hospital. PW-20 (Dr.Rishi) medically examined

Mamta, aged around 30 years. On local examination, she was found to

have sustained burns over chest, abdomen, back and perineum, both

thighs, neck and face constituting about 85% - 90% burns (MLC Ex.PW-

20/A). She succumbed to the injuries on 12.04.2009. It is relevant to note

that the appellant had also sustained burn injuries in an attempt to rescue

her; he was also medically examined on 09.03.2009 at D.D.U. Hospital.

5. Undeniably PW-21 (Sh.Manjeet Singh) Tehsildar / Executive

Magistrate, Najafgarh, who was promptly informed about the occurrence

recorded victim's statement (Ex.PW-21/A) on 09.03.2009. Again on

receipt of a call from Delhi Commission For Women on 14.03.2009, he

recorded victim's statement (Ex.PW-21/B). PW-1 (Sodan Singh) -

deceased's father produced CD (Ex.P1). This CD on judicial record was

played on the personal laptop of the Presiding Officer on 12.11.2013 in

the Court. It contained recording of victim's dying declaration. To

ascertain its authenticity, the Presiding Officer ordered to send the CD to

Forensic Science Laboratory. Report Ex.PW29/A was subsequently

collected.

6. At the outset, it may be mentioned that the prosecution case

hinges entirely upon circumstantial evidence. There was no eye witness to

the incident. During investigation, statements of PW-7 (Ashok Kumar)

and PW-8 (Ramesh Kumar) were recorded under Section 161 Cr.P.C. in

which they claimed to have seen Ajay Singh, Kamlesh and Deepak

coming out of the rented accommodation where the victim lived in the

morning hours on 09.03.2009. They further informed that they had seen

smoke coming out from the said house that time. Their statements /

versions were rejected out-rightly by the Trial Court. No valid reasons

prevail to deviate from the findings recorded by the Trial Court in this

regard. PW-7 (Ashok Kumar) and PW-8 (Ramesh Kumar) were related to

the complainant. Their presence at the spot was highly unnatural and

improbable. They did not inform the police about the incident; they did

not go to the spot to verify if any fire had taken place in the rented

accommodation; they did not take the victim to the hospital. Their sole

motive was to implicate the appellant's family members which they

miserably failed to do so. PW-3 (Anita) is the landlady. She in her Court

statement deposed that at around 07.00 a.m. on hearing Mamta's cry, she

rushed towards the 1st floor. When she had taken two or three steps

upstairs, she saw Kamalkant bringing Mamta downstairs; she had

sustained burn injuries. She did not know anything more about that. She

was cross-examined by the learned Addl. Public Prosecutor after seeking

Court's permission. In the cross-examination, she denied if she had seen

Mamta burning and her husband pouring water on her. She denied the

suggestion that Mamta was telling the accused that he would have to save

her as he had put her on fire. The landlady did not claim if she had gone to

the spot.

7. Indisputably, three dying declarations of the victim have

surfaced on record. First dying declaration (Ex.PW-21/A) was

disbelieved by the Trial Court considering that it was made by the victim

being under pressure from her husband who had taken her to the hospital.

In this dying declaration (Ex.PW-21/A), Mamta had told that on the

previous night, she had applied kerosene on her body to get rid of her

pain. When in the morning she went to prepare tea and lit the stove, she

caught fire. This dying declaration seems unbelievable as nothing has

emerged on record if the victim was suffering from any severe disease to

apply kerosene on her body. No medical document has been placed on

record showing if any treatment taken by the victim in this regard had

failed. The Trial Court has rightly observed that inflamability of the

kerosene would subside within an hour or so if exposed to air. It was

highly improbable that kerosene applied at night on the body would catch

fire on the next morning resulting in severe burns covering almost the

whole body. Apparently, the victim who had performed love marriage

with the appellant did not wish to implicate him or anybody else at that

time.

8. The third dying declaration purportedly given by her is

recorded in CD (Ex.P1), the transcript of which is Ex.P1/X. The Trial

Court has suspected its authenticity. PW-1 (Sodan Singh) - victim's

father deposed that on 16.03.2009 when her daughter informed him that

there was some bungling in the recording of her statement, he brought a

videographer in the hospital and got her statement recorded through

videography. The said videographer handed over to him the CD (Ex.P1)

of the said recording. In the cross-examination, he disclosed that it had

taken more than an hour in getting the videography done. It was not

handed over to the police on the same day and he was not aware as to

when it was handed over to the police. He was unable to reveal the name

of the videographer, his address and shop number.

9. No reliance can be placed on this CD containing victim's

alleged dying declaration as the videographer who had allegedly prepared

it has not been produced and examined. The circumstances in which this

dying declaration was recorded are also doubtful as no permission was

taken from the doctor before recording it. It is unclear if she was mentally

fit to make any such comprehensive statement. No intimation was given

to the police before recording the dying declaration. It was not recorded in

the presence of any hospital staff. It cannot be inferred if the contents in

the statement were made by the victim with her free consent or she was

not under any influence or pressure from her parents. The detailed facts

mentioned in this dying declaration reflect that she was aware of day-to-

day activities / progress of the case and was irritated for not adhering to

the advice of her parents to investigate the case properly. She even

levelled allegations of partisan against the police officials and the doctors.

The contents of this dying declaration are entirely at variance with her

previous two dying declarations. No explanation has been offered as to

why there was major deviation from her earlier two versions.

10. Appellant's conviction under Section 304 Part-I IPC is

primarily based upon the second dying declaration (Ex.PW-21/B)

recorded on 14.03.2009. The circumstances in which this declaration

Ex.PW-21/B came into existence are suspect. Admittedly on 09.03.2009

PW-21 (Sh.Manjeet Singh), Executive Magistrate / Tehsildar had already

recorded the dying declaration (Ex.PW-21/A) at Safdarjung Hospital and

had taken her thumb impression over it. He had also recorded her father's

statement (Ex.PW-1/A) that time. In the said dying declaration, the victim

had exonerated the appellant. She did not speak about the presence of any

of her family members at the spot and did not assign or attribute any role

whatsoever to them. The victim's parents did not raise any objection at

that time about the authenticity and genuineness of the said statement

made by the victim. In his deposition, PW-21 (Sh.Manjeet Singh)

disclosed that after 3 or 4 days victim's father met and told him that

Mamta wanted to make another statement. He also received a call from

Women Commission in that regard. On 14.03.2009, he again went to

Safdarjung Hospital and recorded her statement (Ex.PW-21/B). PW-21

(Sh.Manjeet Singh) did not enquire from the victim as to why she

intended to make second dying declaration after recording her first dying

declaration on 09.03.2009. He even did not seek any permission from the

doctor to ascertain if the victim was physically and mentally capable to

make the statement. He did not try to inform the concerned Investigating

Officer / Police. Victim's father Sodan Singh did not move any specific

application to record her second dying declaration. PW-17 (Jyoti

Dharmendra) from Delhi Commission for Women informed that on

13.03.2009 victim's mother Mithlesh had approached her informing that

her daughter had not given complete statement before the SDM and her

statement should be recorded again. She then called the SDM and told

him to record victim's statement again. In the cross-examination, she

admitted that everything was verbal and no directions in writing were

given to the Executive Magistrate. This procedure followed by PW-17

(Jyoti Dharmendra) cannot be accepted as no complaint in writing was

received by her from the victim or her parents. She, on her own, had

without verifying the allegations by the victim's mother orally directed the

Executive Magistrate, a responsible Officer, to record the statement of the

victim again without informing the police / Court. PW-21 (Sh.Manjeet

Singh) was also not expected to follow the verbal directions. It is unclear

if the dying declaration (Ex.PW-21/B) was made by the victim with her

free consent voluntarily. Apparently, her parents were in her company in

the hospital from the very inception and were taking care of her. She

herself did not complain if the statement given by her on 09.03.2009 was

deficient and she wanted to make additional dying declaration. In the

statement (Ex.PW-21/B), she did not give any reason for changing her

previous version (Ex.PW-21/A). She did not claim if at that time, she was

under appellant's pressure or that the facts disclosed by her at that time

were incorrect. This dying declaration was apparently recorded when

victim's parents were present with her. So possibility of the victim to be

under the influence of her parents cannot be ruled out. It is so because

subsequently the victim's parents produced another dying declaration

contained in the CD (Ex.P1) where she improved her version and

implicated not only the appellant but his family members also.

11. Even if the facts disclosed in the second dying declaration

(Ex.PW-21/B) are taken as correct, in my considered view, these are not

sufficient to conclude that the appellant was guilty of committing offence

under Section 304 Part-I IPC. The victim herself had disclosed in this

dying declaration that the incident was an 'accident' and the appellant had

no 'intention' whatsoever to put her on fire. A quarrel had taken place

between her and the appellant on the previous day of the occurrence

forcing him to leave the house. It was the victim who brought him back to

the house at around 11.30 p.m. Again, on the next morning allegedly

there was an altercation between the two. Allegedly to put an end to all

the problems, the appellant poured kerosene on the victim when she was

preparing tea. In the dying declaration, no further overt act was attributed

to the appellant. He did not put the victim on fire; he did not instigate her

to commit suicide. He was not having any match stick to set her ablaze.

The appellant went to the bed and started packing/picking clothes with

intention to leave the house. Apparently, the victim had no intention to

put the victim on fire. It was only when the victim tried to snatch the

clothes from him, she was slapped and pushed as a result of which, she

fell on the gas inside the room and caught fire. Needless to say, the

appellant's had no intention whatsoever to push her on the fire with an

intention to burn her. His post-event conduct is quite natural. Soon after

the victim caught fire, he tried to extinguish it with the help of quilt; made

her to sit under a tap. After extinguishing the fire, he wrapped her in the

bed-sheet and immediately took her to the hospital. In the process, he also

sustained burn injuries. Obviously, he had tried his best to save the

victim. She also disclosed that it was an 'accident' and the appellant had

no intention like that. In my view, the contents of second dying

declaration do not establish commission of any offence of culpable

homicide.

12. On perusal of the record, it reveals that victim's parents at all

costs wanted the appellant and his family members to be implicated in the

case. They had lodged number of complaints levelling various allegations

before various authorities repeatedly. Since the victim had dared to marry

the appellant against her parents' wishes and it was an elopement with

consent, apparently, victim's parents were annoyed and did not approve

the appellant's action. They succeeded to implicate the appellant and his

family members by lodging various complaints. They relied upon

contradictory and conflicting dying declarations purportedly made by the

deceased.

13. In 'Mehiboobsab Abbasabi Nadaf vs. State of Karnataka',

2007 (13) SCC 112, Hon'ble Supreme Court held that conviction can

indisputably be based on a dying declaration. But, before it can be acted

upon, the same must be held to have been rendered voluntarily and

truthfully. Consistency in the dying declaration is the relevant factor for

placing full reliance thereupon. In this case, the deceased herself had

taken contradictory and inconsistent stand in different dying declarations.

They therefore, should not be accepted on their face value.

14. In 'Amol Singh vs. State of M.P.', 2008 (5) SCC 468, the

Supreme Court held :

"Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality

of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

15. Conviction on the basis of second dying declaration which is

in contradiction to the first and third dying declarations cannot be

sustained. There is no other material on record to show the complicity of

the appellant in the crime. Contents of the second dying declaration have

not been corroborated by any other independent source.

16. In the light of above discussion, conviction and sentence

recorded by the Trial Court are unsustainable and are set aside. The

appeal is allowed. The appellant shall be released forthwith if not

required to be detained in any other case.

17. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for

information / compliance.