Chander Singh vs The State Govt Of Nct Of Delhi
2018 Latest Caselaw 4012 Del

$~R-1.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                             Date of Decision: 17.07.2018

%     CRL.A. 29/2018

      CHANDER SINGH                                         ..... Appellant
                         Through:     Mr. Avadh Kaushik and Mr. Robin
                                      Singh, Advocates.
                          versus

      THE STATE GOVT OF NCT OF DELHI            ..... Respondent
                   Through: Ms. Kusum Dhalla, APP for State
                             with Ms. Priti, Advocate with Insp.
                             Sunil Kumar, PS-New Usman Pur.

      CORAM:
      HON'BLE MR. JUSTICE VIPIN SANGHI
      HON'BLE MR. JUSTICE I.S.MEHTA

VIPIN SANGHI, J. (ORAL)

1. The appellant has preferred the present appeal to assail his conviction under Section 302 IPC vide judgment dated 06.09.2017 rendered by the learned District & Sessions Judge, North East District, Karkardooma Courts, Delhi in SC No.44333/2015, titled State v. Chander Singh arising out of FIR No.112/2011, PS News Usmanpur under Section 302 IPC. He also assails the order on sentence, sentencing him to life imprisonment with fine of Rs.20,000/-. In default of payment of fine, he has been sentenced to two years simple imprisonment.

2. The facts of the case are that the prosecution alleged that on 11.03.2011 at about 11:00 p.m., the accused Chander Singh committed the murder of the deceased Smt. Farah - his grand daughter-in-law by pouring kerosene oil on her and setting her on fire at House No.D-6/2, Gali No.3, Vijay Colony, 3rd Pusta, Delhi.

3. The conviction of the appellant is primarily premised upon the dying declaration Ex.PW4/A made by the deceased as recorded before the SDM, wherein she, inter alia, stated that she had got married to one [email protected] Bobby about six months back. After the marriage, she started residing with her husband at their house along with her Dever, Nanad and Dadiya Sasur i.e. the appellant. Her Dadiya Sasur used to ask her to vacate his house. At about 11 pm, he talked about vacating his house by her and some altercation had taken place between her and her grandfather-in-law. Pursuant to this, in anger, he went inside the kitchen and brought one can full of kerosene oil and a match box and he poured kerosene oil upon her and burnt her. At the time of burning her, her younger brother-in-law Nitin and sister-in-law Kajal were present there and at that point in time, her husband was in the toilet. Immediately thereafter, she started raising her voice and her husband came to the spot. He also raised his voice and tried to extinguish the fire by pouring water. Upon this, people in the neighbourhood also came there and they tried to douse the fire due to which her husband had also received burn injuries in his hands. Thereafter, she was removed to the hospital. The Trial Court held the dying declaration to be consistent, free from anomalies, and reliable to convict the appellant.

4. Ld. Counsel for the appellant submits that the reliance placed by the

Ld. ASJ on the dying declaration in the facts of the present case is erroneous, since there are several factors which render it doubtful. The possibility of the same being tutored cannot be ruled out in the circumstances of the case. The said declaration is not consistent with the other evidences and circumstances brought on record.

5. Mr. Kaushik submits that the prosecution examined the husband of the deceased as PW-19. He deposed that on 11.03.2011, he was present in his house and had gone to toilet around 10:45 p.m. While he was in the toilet, he heard the noise of shouting. He came out of the toilet and went to the room of his house and saw that Farah was crying and her clothes were burning. He poured water on her. Many neighbourers from the gali collected there. He sustained injuries on his hands while saving Farah. He brought an auto and removed her to Lok Nayak Hospital. He also informed the mother of Farah. To a specific question - "Who burnt Farah?" he replied that "She herself set her on fire". He was, accordingly, declared hostile and cross examined by the prosecution. He denied the suggestions given to him during his cross examination by the prosecution.

6. Mr. Kaushik submits that the prosecution also examined the mother of the deceased Smt. Pappo as PW-6. He points out that PW-6 was not an eye witness to the incident. He submits that the testimony of PW-6 is unreliable, as she has testified contrary to the record. In her testimony, PW-6 stated that after few days of marriage, the accused Bobby and other family members i.e. Nitin - devar of the deceased etc. started harassing Farah to meet demands of the accused persons. She claimed that she had paid Rs.10,000/- on one occasion and Rs.5,000/- on another occasion. She stated

that her daughter was living in a state of terror and she would narrate her plight to PW-6. She claimed that few days prior to the date of the incident as well, certain incidents took place.

7. Ld. Counsel points out that the deceased did not claim harassment by any of the family members, or the accused, on account of dowry. The charge sheet was not filed either under Section 498A IPC, or under Section 304B IPC. No protest petition was filed by PW-6 to claim that the accused and the other family members viz. Vipin @ Bobby, Nitin etc. should be charged and tried for these offences.

8. Before proceeding further we may deal with this submission of Mr. Kaushik. We have perused the entire testimony of PW-6 and we find merit in the submission of Ld. Counsel for the appellant, that PW6 is not at all credible or reliable. We need not delve into the depth of her testimony, since it is apparent from her statement that she has sought to rope in the entire family- including the husband PW-19 Vipin who, as per the statement of the deceased, tried to save her and no role was attributed either to him, or to the other family members, namely, Nitin - her devar, and Kajal - her nanand (i.e. sister-in-law) by the deceased in her dying declaration recorded by the Ld. SDM.

9. With regard to the incident of 11.03.2011, PW-6 stated:

"On 11th of March at around 11:30 pm night Nitin came to my house and told me that Farah was not well and I then reached matrimonial home of Farah. I saw and found Farah with burn injuries on her body but then she was conscious and Farah told me that her Nanand Kajal and Chander Singh caught

hold of her (Farah) and Nitin poured kerosene oil over her and Bobby set her on fire. I then gave a phone call to my brother Jakir and Jakir arrived there. Myself and Jakir took Farah to GTB hospital in an autorickshaw. Farah died because of those burn injuries after nine days in the hospital". (emphasis supplied)

10. She further claimed that Nitin came to her house on 11th March at about 11:30 p.m. to convey the incident concerning her daughter. During her cross examination, contrary to her affirmative statement, she stated that she did not have any conversation with her daughter as she was unconscious. She stated that she and her brother got Farah admitted in GTB Hospital. This statement of PW6 is contrary to the MLC Ex.PW-12/A, which records that the patient was brought by her husband i.e.-Vipin. @ Bobby. If PW-6 had got the deceased admitted to the hospital, her name would have been mentioned in the MLC, and not that of Vipin @ Bobby the husband of the deceased. Her version/ statement would have been taken as a part of the history of the patient. However, that is not the case.

11. We may also note that the deceased was admitted to Lok Nayak Hospital and not GTB Hospital, as claimed by PW6. In her cross examination he again stated that "Till we got Farah admitted, Farah did not speak at all to us". This is contrary to her statement extracted hereinabove. She also reiterated that Farah got consciousness on the next morning around 11:00 a.m. when she narrated the incident to PW-6. Even her claim that the deceased gained consciousness only at 11.00 a.m. on the next day morning is belied by the fact that the doctor recorded at 1.30 a.m. on 12.03.2011, that the patient was fit for statement. According to PW-6, Farah stated that Chander Singh and Kajal caught held of her and Nitin had put kerosene on

her body and Bobby (i.e. her husband- Vipin) had lit her body on fire. She also stated that the thumb impression of Farah was taken on blank papers as she was not in a position to speak. However, the history given to the examining doctor was not that, even though, the deceased had herself narrated the history.

12. With regard to the statement recorded by the SDM, PW6 claimed that Farah had stated before the SDM that Chander Singh- the accused and Kajal-DW2 had caught hold of her, and Nitin had put the kerosene and Bobby-PW19 had set her on fire. This statement of PW6 is also contrary to the evidence brought on record. Ex. PW-4/A - which is the statement of the deceased Farha recorded by the Ld. SDM, does not record the version as PW-6 claims to have been narrated by the deceased to the SDM. The testimony of PW-6 is, therefore, clearly not credible.

13. It appears that the grieving mother of the deceased Farah - out of her anger and anguish, was intent on roping in and implicating the entire family, and not just the accused. Her testimony is full of serious contradictions and is not in accord even with the dying declaration (Ex. PW-4/A) of the deceased as recorded by the SDM, or the other independent evidence brought on record.

14. To raise a doubt about the independence of the dying declaration Ex. PW4/A, it has been argued by learned counsel for the appellant that the MLC shows that Dr. Sidharth had declared the patient to be „fit‟ for making her statement on 12.03.2011 at 01:30 a.m. The statement was, however, recorded around 10:00 a.m. on 12.03.2011 i.e. after a lapse of nearly 8 ½

hours. The submission is that there was a long time gap between the time when the deceased was declared „fit‟ for statement, and when it was actually recorded. During this period, PW-6 and other family members of the deceased had time and occasion to tutor and poison the mind of the deceased to falsely implicate the accused. Moreover, no fresh certificate was obtained from the doctor regarding the fitness of the deceased to make her statement/ declaration before the same was recorded.

15. We find merit in this submission of Mr. Kaushik. The dying declaration was recorded by the SDM PW-4 Vipin Garg on 12.03.2011 at about 10:05 am, even though she was found „fit‟ to record her statement on 12.03.2011 at 1.30AM. No fresh certificate was obtained from the doctor before recording her statement by the SDM, even though about 8 ½ hours had elapsed. Thus, it is questionable whether the deceased was „fit‟ to make her statement when the SDM PW-4 recorded it. Even if one were to proceed on the basis that PW4 need not have obtained such a certificate, at least he should have recorded his own satisfaction about her fitness. PW-4 has stated in his testimony that he might have reached the hospital around 9:30 a.m. He stated that he found Farah in a „fit‟ state of mind to make the statement. He further stated that he recorded the statement of Farah vide Ex. PW-4/A. He also states that "The victim was in a fit state of mind till I recorded this statement and concluded these proceedings. I recorded my certificate underneath this statement, which I separately "X" Ex PW-4/B". Pertinently, Ex. PW-4/B merely records "recorded by me at 10:05 a.m. on 12.03.2011 at LNJP Hospital, Delhi. Signed 12.03.2011". There is no certificate of fitness recorded in Ex. PW-4/B, as deposed by PW-4 SDM.

16. It is argued by Mr. Kaushik that, had the accused poured kerosene and lit the fire, the same would have been mentioned to the doctor while narrating the history, not only by PW-19 the husband, but also by the patient i.e. the deceased. However, that is not the case. The MLC Ex. PW-12/A records that the victim was brought by the husband Bobby. The history given was "alleged h/o. burn at home address at around 11:00 p.m. on 11.03.11 as told by patient and b/b" i.e. the person who has brought the patient, namely, Bobby the husband.

17. We find merit in this submission of Mr. Kaushik. The aforesaid endorsement shows that the patient/ deceased was in a state to narrate the history when she was brought to the hospital. She, however, did not state to the examining doctor that she was burnt by her grandfather-in-law after pouring kerosene. This omission on the part of the deceased to name the accused as the person who had set her on fire raises a doubt with respect to the truthfulness of her dying declaration, which was recorded next morning.

18. We also find merit in the submission of learned counsel for the appellant, that though it is not essential to establish the existence of motive for commission of the alleged murder, in the present case no motive has been proved. There is no history of any altercation between the appellant and the deceased brought on record, and it has not been shown that the acrimony was so intense as to lead the appellant to commit the murder of the deceased - his own granddaughter-in law.

19. Learned counsel further submits that the testimony of DW-2 Kajal has been brushed aside by the learned ASJ, even though she was present in the

house when the incident took place, and she also brought out the background in which the deceased Farha burnt herself. He points out that DW-2 Kajal has deposed that the accused was not even present in the house at that time. She had stated that the deceased had set herself on fire and that she was present at the place of occurrence. Her brother PW-19 came out from the bathroom. She and her brother had extinguished the fire in which her brother Bobby had received injuries. She and her brother had poured water on the deceased. She stated that the deceased was putting pressure on her grandfather i.e. the accused, to transfer the property in her name, but her grandfather refused to do the same and that the deceased extended threats that if property is not transferred in her name, she would falsely implicate him. She stated that after the incident, her grandfather had come home and other family members also arrived and the family members of the deceased were also informed about the incident. Her brother PW-19 and the family members of the deceased had taken Farah to the hospital and she later learnt that the deceased had levelled false allegations against her grandfather at the instance of her mother and brother. She exhibited her statement recorded under Section 164 Cr PC Ex. DW-2/A which was consistent with her statement in Court. She also stated that the younger brother Nitin was not present at that time as he had gone for his work in a disk jockey since that afternoon, and he had returned to the house next day morning.

20. DW2 is the granddaughter of the accused and the sister-in-law of the deceased. Therefore, her testimony has to be viewed with caution. That part of her testimony may be relied upon which is corroborated by other credible evidence. Thus, so far as she states that her brother PW19 was in

the bathroom when the deceased was put on fire (either by herself or by the accused); that he came out and tried to douse the fire, and; that he burnt his hands in the process, her statement is corroborated and is believable. From her testimony and the statement/ declaration made by the deceased, it also emerges that their definitely was an issue with regard to the right of the deceased to stay in the property. Thus, a property dispute was what appears to have triggered the incident be it a case of suicide, or that of homicide.

21. Learned counsel has also sought to place reliance on Rashid & Ors. v. State, GNCTD, 180 (2011) DLT 563, to submit that the dying declaration in the present case is not believable, since the same begins with the phraseology , namely, "mein bayan karti huin ke meri shaadi uprokt shri Bobby ke saath lag bag chhe mahine pehle hui thi ... ...". (emphasis supplied)

22. The submission that the use of words like "uprokt", and other words/ terminology, which are normally in use by the police while recording statement under Section 161 Cr.P.C. probablises the chance of the statement being manipulated at the instance of the police and the SDM.

23. In Rashid (supra), this Court held that the dying declaration of the deceased was not reliable, since the learned SDM had not recorded the same verbatim, as deposed by him. The court set out the transliteral version of the dying declaration, which was recorded in Hindi. The relevant extract from the judgment reads as follows:

"16.... .... The transliterated version of the said statement is as under:- "Byan ajaane shrimati Rashida w/o Rashida r/o Gali no.3, Rajiv nagar, bhalaswa dairy, Delhi ba umra 25 saal.

Byan kiya ki mein pata uprokt par apne pati va bachcho ke sath rehti hoon... ..."

17. We have purposely set out the transliterated version to show the clear falsity of the deposition of PW 13 ASI Hari Ram Sharma. According to this witness, the said statement was given by Smt. Rashida in her own words once and then again when he wrote the statement "line by line and word by word". A simple reading of the so-called dying declaration would indicate that it is not the language of an ordinary person but of the police officer himself. The expressions "pata uprokt" and "jo" and other similar expressions are commonly used by police officials in Delhi, particularly in recording Section 161 statements, as well as FIRs etc. We have serious doubts as to whether these were the words used by Smt. Rashida herself, if at all". (emphasis supplied)

24. Thus, the Division Bench did not believe the dying declaration in Rashid (supra) for the aforesaid reason. In the present case, the statement Ex. PW-4/A was recorded by the SDM in proceedings referable to Section 174-176 Cr PC. These provisions did not, strictly, get attracted when the statement of the victim was recorded because death had, obviously, not taken place when the statement was recorded. A perusal of these sections shows that there is no statutory obligation cast on the Police or the Magistrate as the case may be, to only record the verbatim statement of the injured/ concerned person- whose death may be imminent or highly probable. A dying declaration/ statement may contain relevant facts as to the cause of death of the person making the statement, or as to any of the

circumstances of the transaction which resulted in his/ her death, in cases in which the cause of that person‟s death comes into question (See section 32 of the Indian Evidence Act). However, there is no statutory prescription or regulation, even in Section 32 of the Evidence Act, on the manner in which the statement of the victim/ person may be recorded.

25. In Tehal Singh and Others v. State of Punjab, 1980(Supp) SCC 400, the dying declaration of the deceased was recorded by the Head Constable at the hospital in the presence of the medical officer. The Supreme Court had the following to say about a dying declaration in the light of Section 32 of the Evidence Act.

"5 ..... Apart from the fact that Section 32 of the Evidence Act does not require that a statement should be made in expectation of death, it is clear from the evidence that the condition of Harmel Singh was serious at that time....... Kulwant Singh stated in his evidence that he put questions to Harmel Singh and recorded the answers of Harmel Singh. No doubt he stated that he recorded what Harmel Singh stated "in his own way". It does not mean that he recorded something other than what Harmel Singh stated. All that it means is that the language was his but the substance was what Harmel Singh stated. We do not think that any infirmity is attached to the dying declaration on this account. The dying declaration undoubtedly contains a wealth of detail as argued by Dr Chitale. The details contained in any statement depend upon the capacity for observance of the person making the statement, the condition of the person at the time of making the statement, his anxiety to mention details and the manner in which questions are put and answers elicited. It may be that in certain situations the very wealth of detail in a statement attributed to a dying man may arouse suspicion. On the other hand the circumstances that a statement contains a wealth of detail cannot necessarily lead to the inference, that the

statement is a fabricated one......."(emphasis supplied)

26. In Bakhshish Singh v. The State of Punjab, AIR 1957 SC 904 the learned Additional Sessions Judge rejected the dying declaration, inter alia, on the ground that Head Constable who had recorded the statement/ declaration of the deceased, had admitted in his cross examination that the deceased gave his statement in Punjabi, but the same was recorded in Urdu. The Ld. ASJ observed that the form and the detailed account given in the statement was not the product of the creation of the deceased alone, but it was a "touched up" declaration of the deceased. The Trial Court, therefore, held that the dying declaration could not be regarded as the creation of the deceased, and no reliance could be placed thereon to convict the accused.

27. The High Court did not agree with the view of the Trial Court. It, inter alia, observed that Head Constable had no knowledge of the parties, nor had any interest in them. There was no reason why he should record the statement falsely or irregularly. The statement was recorded in the presence of the doctor who had also appeared as a witness. He had also stated that he did not allow any person to be present at the time when the statement was recorded. The High Court also rejected the objection of the learned ASJ that the deceased spoke in Punjabi, while his statement was recorded by Head Constable in Urdu. It was observed that the Court language is Urdu and the police generally records statement in Urdu, even if they are made in Punjabi language. The Supreme Court agreed with the view of the High Court. The Supreme Court, inter alia, observed as follows:

"8. Another reason given by the Additional Sessions Judge

for rejecting the dying declaration was that the deceased gave the narrative of events in Punjabi and the statement was taken down in Urdu. In the Punjab that is how the dying declarations are taken down and that has been so ever since the courts were established and judicial authority has never held that to be an infirmity in dying declarations making them inefficacious. As a matter of fact in the Punjab the language used in the subordinate courts and that employed by the Police for recording of statements has always been Urdu and the recording of the dying declaration in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant. This, in our opinion, was a wholly inadequate reason for rejecting the dying declaration.

9. .......... The dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by s. 32(1) of the Evidence Act and unless absolutely necessary to make a statement coherent or complete should not be included in the statement."(emphasis supplied)

28. Thus, the statement/ declaration recorded by the police/ Magistrate, which may ultimately turn out to be a dying declaration, may be recorded by the person recording the same "in his own way". There is no prescription that the same has to be verbatim, or that, apart from or other than the verbatim statement, the person recording the statement/ declaration cannot record the gist, or some part of the statement in a manner in which the person concerned- such as a police officer, may be used to recording statements generally. As noticed in Bakhshish Singh(supra), the statement may even be recorded in a different language than the one in which it is made. This exercise would necessarily entail use of vocabulary in the

transcription of the statement, which may not have been used by the maker of the statement. What is essential is that the statement is honestly and accurately recorded, capturing the true meaning and the purport of it.

29. In Srinivasa and Others v. State By Santebennur Police, (2005) 9 SCC 327, the Supreme Court was confronted with a situation where the deceased made her statement in Telegu language, whereas the Executive Magistrate had recorded the same in Kannada language. The Magistrate did not read or write Telegu language. It was, thus, argued that the dying declaration recorded by the Magistrate was not reliable. The Supreme Court rejected this contention of the convict/ appellant by observing as follows:

"5. We find no force in the contention raised by the appellants' counsel. PW 8 deposed before the court that he asked the questions in Kannada and PW 21 translated the same and explained it to deceased Sujatha and thereafter she gave the answers in Telugu and the answers were repeated by PW 21 and confirmed by the doctor who was present and who knew both Kannada and Telugu languages. It is also to be noted that the appellants had no case that PW 8 recorded the statement wrongly and no suggestion was put to this witness to show that PW 21 had in any way interfered with the truthful recording of the statement of PW 8........"

30. Thus, the dying declaration was recorded with the aid of a translator. Yet the Supreme Court was satisfied with its reliability, since the doctor- who knew both the language was also present and he confirmed the statement made by the deceased.

31. We may also take note of the judgment of the Gauhati High Court in Bhabanand Kakoti v. State of Meghalaya, 2008 Cri LJ 194. The appellant/

convict argued that the dying declaration of the deceased was not admissible in evidence as it did not reflect the exact words spoken by the deceased. He claimed that unless one is certain about exact words used by the deceased, no reliance should be placed on verbal statement of the witnesses and the oral declaration made by the deceased. The Division Bench placed reliance on Tehal Singh(supra), Bakhshish Singh(supra) and Srinivasa and Others (supra) and while rejecting this submission, observed as follows:

"21. There is no doubt that if the dying declaration is recorded in the words of the injured, it would be the best dying declaration. It however appears that exact words of the injured cannot be always insisted upon. It has been held by the Apex Court in Baksish Singh v. State or Punjab MANU/SC/0044/1957 : 1957CriLJ1459 that simply because the very words uttered by the injured are not reproduced, it is no reason to reject the dying declaration if the Court is otherwise satisfied that the dying declaration, as recorded, correctly reproduces what was stated by the injured. The Supreme Court in Tehal Singh v. State of Punjab MANU/SC/0188/1978 : 1979CriLJ1031 has held that the substance of the dying declaration written in the words of the writer attaches no infirmity. Relying on the law laid down in this case, the H.P. High Court in State of H.P. v. Gopi 1985 CriLJ 984 , has held that statement made in one language and recorded in another language is legal. In Srinivasa and Ors. v. State (2005) 9 SCC 327 the declarant and recorder of dying declaration were not speaking the same language. The dying declaration was therefore recorded with the help of a translator. The correctness of the translation was confirmed by the Doctor who knew both languages. In the circumstances, it was held by the Apex Court that the veracity of the dying declaration stands established.

21.1 It would be clear from the above that it is not the law that the exact words uttered by the injured need always be reproduced. Even a translated version, if the same is found to

be a correct version of the statement of the injured can be acted upon. In this view of the matter the contention that no reliance can be placed on the dying declaration since the exact words uttered by the injured have not been reproduced cannot be accepted.(emphasis supplied).

32. Thus, the Police Officer/ Magistrate concerned may record the verbatim statement, or he may also record the gist of it, if the circumstances are such that he/ she may not be able to record the verbatim statement.

33. Merely because PW-13 ASI Hari Ram Sharma (in Rashid (supra)) began recording the statement with a formal beginning- as extracted hereinabove, and merely because he may have used terminology and words which are commonly used while recording statements inter alia, under Section 161 Cr.P.C., in our view, was no reason to doubt the sanctity of the process by which the dying declaration is recorded. To record the opening sentence in the said statement, in a formal manner as is usual and customary, would not make the recording of the statement doubtful.

34. In the light of the aforesaid, we have serious doubt about the correctness of the view taken by the Division Bench of this Court in Rashid (supra). With due respect to the learned Judges, it appears that the aforesaid legal position was not brought to the notice of the Bench and was not considered by the Bench when it formed its opinion. The said decision does not indicate that PW13 ASI Hari Ram Sharma (in Rashid (supra)) claimed that even the formal opening of the declaration/ statement made by the deceased were the words of the deceased " line by line and word by word". In our considered view, it is the material part of the statement which should

be looked at and evaluated, rather than the formal opening sentences. The introduction of articles and prepositions which may traditionally be in use by the police and the Magistrates, by itself, would not be a reason to doubt the statement/ declaration. Thus, with utmost respect, we have serious doubts with regard to the correctness of the view taken by the Division Bench in Rashid(supra) and the same requires reconsideration.

35. Our doubt about the decision in Rashid (supra), however, does not persuade us to withhold our handle from deciding this case. This is for the reason that we have serious doubts about the dying declaration Ex. PW-4/A. The same was recorded after nearly 8 ½ hours of the deceased being declared „fit‟ for making her statement, and no fresh certification by the doctor was obtained prior to the statement being recorded. Even PW4 did not record the fitness of the deceased to give her statement/ declaration contemporaneously. The possibility of the deceased being pressurised and tutored by her mother PW-6 and other family members to implicate the accused cannot be ruled out. We have dealt with, hereinabove, contradictions in the testimony of PW6 in her examination-in-chief. She claimed that she spoke to the deceased, and that the deceased told her as to how she got burnt, and who burnt her. She claimed that the deceased attributed different specific roles to - not only the accused, but also to her husband PW19, Kajal DW-2 and Nitin. However, subsequently she claimed that she had not spoken to the deceased till the next morning. Her endeavour to distance herself from the deceased, even though the deceased was declared „fit‟ to make a statement at 1.30PM on 12.03.2011, and even though she was with the deceased throughout, is reflective of her attempt to

ward- off the defence of her pressurising or tutoring the deceased to implicate the accused. Coupled with it is the fact that while giving the history to the doctor, the fact that the deceased had been put on fire by someone else, had not been stated, even by the deceased.

36. The fact that there was an existing dispute with regard to the right of the deceased and her husband to reside in the property of the accused, in our view, afforded reason good enough for the deceased to implicate the accused.

37. On an overall view, we find PW-6 is the only witness who has supported the case of the prosecution, but she is not credible. Pertinently, PW-6 was not even present at the time of the site of the incident. PW-19 has turned hostile in material part. On the other hand, the sister-in-law of the deceased DW-2 has corroborated the statement of PW-19, that it was the deceased who set herself on fire. It is come in evidence that several other persons from the neighbourhood as well as relatives of the deceased/ including PW6 had reached the place of occurrence. None of them were examined by the prosecution, despite the fact that the deceased is claimed to have been conscious (as claimed by PW6 and as is evident from the MLC) when she was taken to the hospital. It is but natural that persons who would have met the victim, would have asked her a s to how she has come to suffer the injury. In our view, this failure on the part of the prosecution also raises a serious doubt about the version of the incident sought to be advanced by the prosecution.

38. We may also observe that there is no evidence brought on record to

show any scuffle or fight at the place of occurrence. Had the accused poured the kerosene on the deceased and lit the fire, one would have expected that there would be evidence of some commotion and spillage of kerosene. The crime team has not reported spillage of kerosene in the house. The dying declaration Ex.PW/A is not reliable for all the reasons stated hereinabove. Thus, the defence taken by the accused is probablised and in our view, he is entitled to the benefit of doubt. We are, thus, of the view that the charge against the appellant has not been proved beyond all reasonable doubt. We, accordingly, set aside the impugned judgment and the order on sentence and acquit the appellant.

39. We have seriously doubted the correctness of the Division Bench in Rashid (supra). In terms of the judgment of the Supreme Court in Central Board of Dawoodi Bohra Community & Ors. vs State Of Maharashtra & Anr, (2005) 2 SCC 673, we would have placed the matter for hearing by a Bench consisting of a larger quorum. However we are not inclined to do so, considering the fact that while rejecting the reliance placed by the appellant on Rashid(supra), we are, in any event, acquitting him as the dying declaration is not reliable for other reasons taken note of hereinabove.

40. The appeal stands disposed of accordingly.

VIPIN SANGHI, J

I.S.MEHTA, J JULY 17, 2018/sr