Delhi High Court
Girjesh @ Babloo vs State on 26 September, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th September 2018
Decided on: 26th September 2018
+ CRL.A. 497/2018
GIRJESH @ BABLOO ..... Appellant
Through: Mr. Adit S. Pujari and Ms.
Tusharika Mattoo, Advocates.
versus
STATE ..... Respondent
Through: Mr. Hirein Sharma, APP.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
Dr. S. Muralidhar, J.:
1. This appeal is directed against the judgment dated 18th December 2017
passed by learned Additional Sessions Judge-IV (North), Rohini Courts,
Delhi in SC No.57509/2016 arising out of FIR No.154/2014 registered at
PS Jahangirpuri convicting the Appellant for the offence punishable under
Sections 302 and 324 IPC. The appeal is also directed against the order on
sentence dated 11th January 2018 whereby, for the offence under
Section 302 IPC, he was sentenced to imprisonment for life along with
payment of fine of Rs.50,000/- and in default of payment of fine, to undergo
simple imprisonment („SI‟) for one year. For the offence under Section 324
IPC, he was sentenced to rigorous imprisonment („RI‟) for three years along
with payment of fine of Rs.5,000/- and in default of payment of fine, to
undergo SI for two months. The sentences were directed to run
consecutively.
2. The trial Court in effect, while convicting the Appellant for murdering his
wife, acquitted him of the offences of subjecting her to cruelty and causing
her dowry death. The trial Court, after noting that the two children born to
the Appellant and the deceased were, after her death, residing with their
grandfather at Gorakhpur in Uttar Pradesh, recommended to the Secretary of
the District State Legal Services Authority, North („DLSA‟) to award the
children compensation in terms of Section 357A Cr PC.
3. During the pendency of the present appeal, this Court directed the
Secretary of the Delhi State Legal Services Authority („DSLSA‟) to get in
touch with his counterpart in Uttar Pradesh, so that the Secretary of the
DLSA at Gorakhpur could be requested to visit the Appellant‟s children and
make arrangements with the local administration to ensure that their
education is not discontinued on account of their father‟s incarceration. The
Member Secretary of the DSLSA filed a report dated 13th August 2018 in
which inter alia he stated that the Secretary of the DLSA, Gorakhpur had
personally visited the house of the relatives of the Appellant, who confirmed
that the Appellant‟s daughter had been admitted in school and had received
free books and a school bag. As far as the daughter was concerned, she was
residing with her aunt and was four years old. She was likely to be admitted
into school next year.
The charge
4. The first charge framed against the Appellant was that his wife had on
2nd March 2014 at House No.H-4/429, Jahangirpuri, died due to burns
otherwise than under normal circumstances within seven years of their
marriage and shortly prior to her death, she was subjected to cruelty or
harassment by him in connection with the demand for dowry and he thereby
committed the offence punishable under Section 304B IPC. He was also
charged with having subjected the deceased to cruelty in order to meet his
unlawful demand of dowry thus committing the offence punishable under
Section 498A IPC. The third charge framed against the Appellant was that
he caused burn injuries to his six month old daughter with such intention or
knowledge that had that caused her death, he would have been guilty of
committing her murder and thus he committed the offence punishable under
Section 307 IPC.
5. The alternative charge framed against the Appellant was that he murdered
his wife Pushpa („the deceased‟) at around 9 pm on the above date and the
aforesaid place by pouring kerosene oil on her and setting her on fire and
thereby committed the offence punishable under Section 302 IPC.
The incident
6. Information was received at the Police Control Room („PCR‟) at 8:42 pm
on 1st March 2014 that at Block H, Jahangirpuri, in a jhuggi near the
dispensary, there was a fire involving a lady and a man, with both suffering
serious injuries. The caller was Zulfikar @ Jeetu (PW-14). The noting in the
PCR form (Ex.PX2) at 8:48 pm on 1st March 2014 was to the effect that a
lady, a man, and a child were injured and they were being taken to the
hospital. The further noting at 9:15 pm was that the fire had been doused.
7. The version of Malti (PW-13), a resident of jhuggi B-447 in the same
area, was that at 7:30 pm, she was returning home when she noticed that the
Appellant‟s jhuggi was on fire. Meanwhile, nearby residents also gathered
there and doused the fire by pouring water.
8. Zulfikar (PW-14) stated that he had returned home at around 7 pm after
attending to his duties as a tailor at Gandhi Nagar. He was present at the
third floor of his jhuggi when he heard a noise from the gali. He came
downstairs and saw many public persons outside the jhuggi of the Appellant.
He also noticed fire inside the jhuggi of the Appellant. He along with other
public persons doused the fire by pouring water. Thereafter, he made a call
at the 100 number from his mobile phone. He confirmed that in the fire, the
Appellant, the deceased, and their daughter had received burn injuries. He
stated, "When I entered inside the said jhuggi, smell of kerosene oil was
noticed by me".
9. HC Manoj Kumar (PW-15) was posted at the PCR and was in charge of
PCR van C-46. He received a call from Commander-1 regarding the fire at
the house of the Appellant at 8:45 pm. He along with the other staff of PCR
Commander-46 went to the spot. He noticed public persons bringing three
injured persons. He immediately took them to the BJRM Hospital. At the
hospital, PW-15 ascertained the names of the three injured persons.
10. The doctor who first attended to the injured at the BJRM Hospital noted
that the deceased had sustained 90% burns. According to PW-15, "the smell
of kerosene oil was coming from the body of the Pushpa. In my presence,
the concerned doctor had made enquiries from Pushpa and Pushpa was
pointing out towards accused Girjesh @ Babloo". PW-15 further stated that
Pushpa‟s brother Suraj (PW-11) also accompanied them to the hospital. PW-
11 informed PW-15 that about 15-20 minutes prior to the occurrence, the
Appellant had an altercation with the deceased and after settling the
altercation, PW-11 went to the house of his neighbour to watch television.
11. The right side column of the PCR form (Ex.PX2) notes that according to
the doctor, the lady had suffered 90% burns while the daughter had mild
burns and that from the body of the deceased the smell of kerosene oil
emanated. It was further noted in the PCR form that upon being asked, the
deceased pointed to her husband. It also noted that PW-11 had stated that
around 20-25 minutes prior to the incident, a fight had ensued between the
husband (i.e. the Appellant) and the deceased and that PW-11 had settled
that dispute and left.
12. PW-11 stated likewise in his deposition in the trial Court. He added that
the Appellant and the deceased had been married for over five years prior on
the date of the incident. Around four months prior to the incident, PW-11
began residing with them in the aforementioned jhuggi. PW-11 and the
deceased were natives of Assam. According to PW-11, the Appellant used to
consume liquor excessively and beat the deceased every day. When his
sister, i.e. the deceased, objected to this, the Appellant used to beat her
further. According to PW-11, the Appellant would also taunt the deceased
that her parents had not given him sufficient dowry in the marriage but on
the following morning he would say "Mein to aise hi majaak karta hoon".
13. According to PW-11, on the date of the occurrence, at around 9 pm, he
was sitting in the house of his neighbour Ram Raj. Before leaving the
Appellant‟s house, PW-11 had settled the quarrel between his sister and the
Appellant. He remained at the house of said neighbour for about 15-20
minutes and while returning, he noticed smoke coming from the house of his
sister. He tried to open the main door but it was bolted from inside. As he
was trying to break the door open, it was opened by the Appellant. Upon
entering the house, PW-11 noticed the deceased in flames. He noticed that
the daughter of the deceased, aged around 4-5 months, had suffered burn
injuries. PW-11 raised a hue and cry and public persons gathered there and
with their help, the fire was doused. He stated that he too accompanied the
injured to BJRM Hospital.
At the BJRM Hospital
14.The MLC of the deceased (Ex.PW-5/A) prepared at BJRM Hospital
shows that she was brought there at 9:15 pm on 1st March 2014 with an
alleged history of burns. Dr. Ronal Kori (PW-5) examined the deceased
there. She noticed that the deceased had suffered 90% burns due to which
even the thumb impression of the deceased could not be taken. No
identification mark could be found due to excessive burns. After medical
examination, PW-5 referred the deceased to the Senior Resident („SR‟)
(Surgery). She also opined that the deceased was fit for statement.
15. PW-5 also noticed that the five month old baby was suffering from
approximately 4% burns over the left knee bones and thighs. She too was
referred to SR (Surgery). This examination took place at 9:45 pm.
16. The SR (Surgery) at the BJRM Hospital, Dr. Narender (PW-10),
examined the deceased. He noticed that she was drowsy having suffered
approximately 95% burn injuries and that the smell of kerosene oil was
found present all over the body. It was PW-10 who referred the deceased to
LNJP Hospital. He also examined the infant child of the Appellant and the
deceased. He confirmed that the deceased had been declared fit for
statement between 9:15 pm and 9:30 pm. On cross-examination by counsel
for the accused, PW-10 stated, "There is every possibility that a patient who
had suffered approximately 95% burn injury is able to make a statement".
17. All three injured persons were shifted from the BJRM Hospital to the
LNJP Hospital for further treatment. The Appellant was examined there by
Dr. Rashmi Shrivastava (PW-6). She noticed that he had 25% burns. He was
discharged on 7th March 2014 with a discharge summary (Ex.PW-6/A).
Recording of dying declaration
18. SI Narender (PW-19) went first to BJRM Hospital and collected the
MLCs of the three injured persons. According to him, at BJRM Hospital, he
made enquiries from the deceased who told him that her husband had burnt
her by pouring kerosene oil over her and then set her on fire with the help of
a matchstick. PW-19 attempted to contact the concerned Sub Divisional
Magistrate but was not able to do. Thereafter, he contacted the Vinod Kumar
Dhatrawal (PW-1), the Tehsildar/Executive Magistrate of Model Town, and
briefed him about the facts of the case. By the time PW-1 reached BJRM
Hospital, the deceased and the Appellant had been referred to LNJP
Hospital. PW-19 then accompanied PW-1 to LNJP Hospital.
19. Dr. Ravi Kumar Meena (PW-17) was on 24-hour duty as a Junior
Resident in the Burns and Plastic Ward of LNJP Hospital. The statement of
the deceased was recorded by PW-1 on 1st March 2014 in the presence of
PW-19, PW-11, and PW-17. The said dying declaration (Ex.PW-1/A) was
hand written by PW-1. He noted the time of the recording as 11:15 pm at the
LNJP Hospital. The preamble to the dying declaration read as under:
"A call from Shri Narender Kumar, SI of PS Jahangir Puri was
received from his mobile (9953957894) at about 9.30 pm on
01.03.2014 informing therein that a woman named Ms Pushpa
has been burnt in her jhuggi at H-4, Jhuggi No.429, Jahangir
Puri. The IO Shri Narender Kumar informed that the victim is
taken to BJRM Hospital.
SHO Jahangir Puri was contacted who confirmed the incident
and requested to come to BJRM Hospital. I reached BJRM
Hospital at 10.30 pm and came to know that the victim has been
shifted to the LNJP Hospital. I along with IO Shri Narender
reached LNJP Hospital at about 11.10 pm at recorded the
statement of the victim Ms Pushpa Devi.
Particulars of the victim:
Name: Pushpa Devi wife of Shri Babloo resident
of Jhuggi No. 429, H-4, Jahangir Puri,
Delhi.
Age: 25 years
Child: A female baby of 6 months and a male
baby of about 3 years.
Parents: Father Shri Rajman Prasad
Colour: Fair
Height: 5‟2" (approx.)
Qualification: Illiterate
Date of Marriage: 5-6 years ago, as stated by the victim
Pushpa Devi."
20. Immediately following the above portion is the noting by PW-1 to the
effect that "the doctor on duty Dr. Ravi Kumar of BNP Ward of LNJP
Hospital stated that the victim can speak and statement can be recorded".
21. On this aspect, PW-17 was asked specifically and in his examination-in-
chief he stated as under:
"Before recording the statement of Smt. Pushpa Devi, I had
stated to Sh. Vinod Dhattarwal that the victim i.e. Smt. Pushpa
Devi could speak and her statement could be recorded."
22. PW-1 then recorded the statement of the deceased in a question-answer
form. The seven questions and answers thereto read as under:
"Q.1 Apka naam kya hai?
Ans. Pushpa Devi.
Q.2 Apke pati ka kya naam hai?
Ans. Babloo.
Q.3 Kahan rahti ho?
Ans. Jahangir Puri.
Q.4 Apko kisne jalaya?
Ans. Mere pati Babloo ne diyasalai se jalaya.
Q.5 Diyasalai se itna kaise jali?
Ans. Babloo ne pahle kerosene ka tail dala phir diyasalai se
jalaya.
Q.6 Isse pahle bhi Babloo aapse maar peet karta tha?
Ans. Haan, roz daroo pikar aata tha aur mujhe maarta tha.
Q.7 Apke pati ne kabhi dahej wagera ki maang ki thi kya?
Ans. Haan dahej bhi mangta tha tatha kahta tha ki tum sundar
nahi ho".
23. Below the above questions and answers, PW-1 made the following
noting:
"The victim is not able to put her signatures or thump
impression being burnt almost 95%.
The statement has been recorded in the presence of Dr. Ravi
Kumar who is on duty.
Victim‟s brother Shri Suraj Prasad son of Rajman Prasad also
resides with the victim."
24. He then noted that "on the basis of the statements made by the victim,
foul play cannot be ruled out. SHO Jahangir Puri is directed to initiate action
as per law".
Registration of FIR and investigation
25. PW-19 then discussed the contents of the statement with the Station
House Officer („SHO‟) Inspector J.P. Meena (PW-20) of PS Jahangirpuri.
The statement of PW-11 had been recorded by this time. After making an
endorsement thereon, the rukka (Ex.PW-1/C) was sent to the PS for
registration of the FIR.
26. PW-19 accompanied PW-1 to the place of occurrence. It was then
inspected by PW-1. Ct. Praveen, who was at the spot, informed PW-19 that
the crime team officials had visited the spot and inspected the place of
occurrence.
27. At this stage, it must be noticed that the crime team report
(Ex.PW-16/A) contains a noting to the effect that there was a plastic can
with kerosene found at the spot. There were burnt clothes and a matchbox.
28. PW-19 lifted exhibits from the spot. There were as many as 11 burnt
clothes which were wet. He kept the clothes in a brown bag and sealed said
bag. He also seized the plastic kerosene oil can, which still had some
kerosene oil in it. PW-19 also seized one wet matchbox with six
matchsticks, out of which two were burnt and four were not. He seized a
burnt piece of a saree lying on the floor near the bed. That saree was kept in
a polythene bag which in turn was kept in a cloth pulanda and then sealed.
The case property was deposited in the malkhana at the PS.
29. The deceased died at the LNJP Hospital on 2nd March 2014 at around
8:35 am. PW-19 then arranged to have the body shifted to the mortuary. On
5th March 2014, PW-19 accompanied by PW-20 and PW-1 went to the
mortuary where PW-1 prepared the inquest papers. Rajman Prasad (PW-12),
the father of the deceased, was also present at the hospital.
Post mortem examination
30. The post mortem examination of the deceased was performed by
Dr. Anju Rani (PW-9). The post mortem report (Ex.PW-9/A) noted the time
of death as 7:10 am on 2nd March 2014. As far as the general appearance is
concerned, it was inter alia noted that "black soot was present in both
nostrils". It was noted that the deceased had suffered 95% burns. The
hypostasis was not distinguishable due to the extensive burn injuries. The
probable time since death was three and a half days. The external
examination revealed the following two injuries:
"IX. EXTERNAL EXAMINATION
1. Dermo-epidermal burn injuries were present all over the
body involving head, neck, face, both palms and
genitalia; sparing front of lower abdomen below
umbilicus, adjacent area (if both inguinal regions, inner-
front of left upper thigh and both sales. A vertical Patch
of burn was present over right front of abdomen
connecting the area of upper abdominal burn to genital
burn. Superficial layers of skin over burnt area was burnt,
blackened and peeled off at places revealing red
erythematous base. Fluid filled blisters were present over
burnt area of both thighs at places. Skin of both hands de-
gloved completely leaving behind reddened base. Red
line of demarcation was present between burnt and
unburnt area of abdomen and thighs. Scalp hairs were
burnt and singed at places and were easily pluckable. No
smell of kerosene or any other volatile liquid present
Approximate area of burn is 95% of total body surface
area.
2. Lacerated wound, reddened, 1.2 cm x 0.5 cm x muscle
deep present over right side of forehead just above the
outer margin of right eyebrow. The margins of wound
were irregular and tissue bridges were present at the
base."
31. As far as the neck is concerned, while no extravasation of blood was
present in the neck vessels, it was noted that "trachea showed presence of
thick layer of soot in its lumen and mucosa was reddened". The opinion as
to the cause of death was given as under:
"Death in this case occurred as a result of shock consequent
upon burn injuries. All injuries are ante-mortem and are fresh in
duration. Injury no. 1 is caused by flames of fire and injury no.2
is caused by blunt force trauma."
32. It must be noted at this stage that in her cross-examination, PW-9 stated
that she observed no smell of kerosene or any other volatile liquid present.
She answered: "It depends upon the conscious state of patient as to whether
a patient who had suffered 95% burn injuries could make a statement".
According to her, "This fact has to be assessed by the examining/attending
doctor".
33. The Appellant was discharged from the hospital on 7 th March 2014, on
which date, PW-20 recorded the statements of the father and brother of the
deceased. On 8th March 2014, PW-20 along with Ct. Pawan Kumar went to
the house of the Appellant, interrogated him, and thereafter arrested him. He
was thereafter sent to judicial custody.
34. On 21st April 2014, PW-20 accompanied the draftsman Inspector
Manohar Lal and SI Narender to the place of occurrence and a scaled site
plan (Ex.PX-6) was prepared.
Forensic report
35. A charge sheet was filed by PW-20 on 18th May 2014. By that time, the
FSL result (Ex.PW-21/A) had not been obtained. That report authored by
Amit Rawat (PW-21) was made available on 30th June 2014. Four sealed
parcels had been sent to the FSL for examination. Ex.1 was a bunch of black
hair being the scalp hair of the deceased. Ex.2 was a damp, partially burnt,
and melted light brown unidentified cloth piece. Ex.3 was the kerosene oil
can. Ex.4 was a partially burnt dark grey coloured pant, one partially burnt
off-white coloured lower, one partially burnt and torn sky blue colour kid‟s
warm suit, a partially burnt multi-coloured towel, sky blue half sleeved
sweater, grey lower, light brown vest, and some other clothes. The report
stated that Ex.3 contained kerosene oil, whereas residues of kerosene could
not be detected on the Ex.1, 2, and 4. PW-21 was not subjected to any cross-
examination.
Appellant's statement
36. When incriminating circumstances were put to the Appellant under
Section 313 Cr PC, he denied that he used to consume excessive liquor and
beat his wife every day. He also denied taunting the deceased for not
bringing enough dowry. According to him, he was never in the habit of
consuming liquor. When the evidence of PW-11 was put to him, to the effect
that he used to treat the deceased with cruelty and complain about
insufficient dowry but on the morning of the next day he used to say "mein
to aise hi majak karta hoon", the Appellant stated, "I only used to say the
above words to my wife in ordinary manner". According to the Appellant,
no quarrel took place between him and the deceased 10-15 minutes prior to
the incident.
37. On the specific point of the Appellant himself opening the door and
PW-11 noticing the deceased in flames, and the Appellant and their daughter
also burnt, he stated as under:
"Ans. In fact an incidental fire took place in my house, while I
along with my minor child and my wife were present in our
house. At that time was sleeping inside my house, upon
noticing the said fire I woke up and saw my wife under flames
and the flames by that time had also went up to my minor child.
I immediately woke up and tried to save my wife and my minor
child. I had also received severe burn injuries while saving
them."
38. The Appellant admitted that all three of them were taken to BJRM
Hospital first and then referred to LNJP Hospital. He maintained that the fire
was accidental and that he had no fight with his wife. He denied any dying
declaration having been made by the deceased to PW-1. According to him,
PW-1 never visited LNJP Hospital. The Appellant also stated that his wife
was not in a position to make any statement and that "PW-1 had given false
directions to the concerned SHO". According to him, the PWs had falsely
identified the case property and he had been falsely implicated.
39. When asked what else he had to say, the Appellant answered as under:
"Ans. I am innocent and have been falsely implicated. In fact an
incidental fire took place in my house, while I along with my
minor child and my wife were present in our house. At the time
of incident, I was sleeping inside my house and my wife was
cooking food. While I was sleeping, I felt some smoke in my
jhuggi and accordingly, I woke up and saw my wife under
flames and the flames by that time had also went up to my
minor child. I immediately woke up and tried to save my wife
and my minor child. I had also received severe burn injuries
while saving them. I had a cordial relations with my wife and
in-laws and that is why I had called my brother-in law i.e. PW-
1 to my house for arranging job for him. Prior to the occurrence
to the present case, there was absolutely no complaint against
me by my in-laws either at my native village or at Delhi. My
wife had not made any statement/dying declaration before the
doctor, police or any other person. In fact, the same was
manipulated at the instance of PW-1 my brother-in-law."
Defence evidence
40. Five defence witnesses were examined. Usha Devi (DW-1) a resident of
H Block, Jahangirpuri. On 1st March 2014, at around 9 pm, she noticed that
the jhuggi of the deceased had caught fire. On hearing the noise raised by
the nearby residents, she went outside her own jhuggi and learnt about the
brother of the deceased and others going inside the jhuggi of the deceased
and noticing that the deceased, the Appellant and their daughter had been
burnt in the fire. According to DW-1, PW-11 was not present at the time of
the fire and arrived only one hour afterwards. By the time PW-11 reached,
the PCR officials had already removed the deceased, the Appellant and their
minor daughter to the hospital.
41. Kalawati (DW-2) was another resident of the locality according to
whom, at about 6 pm, she had gone to the house of the deceased as the latter
had called her there to see her daughter‟s throat. According to DW-2, she
asked the deceased as to why she had shredded a lot of coconut, on which
the deceased conveyed that she was going to prepare something. According
to DW-2, the deceased then asked her for kerosene oil and thereafter, DW-2
had given kerosene oil in a plastic bottle to the deceased. In her cross-
examination, she stated that the Appellant was like her son and she had
come to depose at the instance of his father. According to her, no police
official came to make any enquiries from her and when she went to the PS,
she was not heard.
42. Sangam (DW-3) too noticed the public having gathered inside the gali
and they were all saying that a fire had taken place in the jhuggi of the
Appellant. Ram Narayan (DW-4), another resident of the jhuggi, spoke
likewise.
Judgment of the trial Court
43. In the impugned judgment, the trial Court came to the following
conclusions:
(i) If the fire had been accidental, the natural conduct of the Appellant
would have been to put a blanket or pour water over his wife and call
the police and ambulance or at least seek the assistance of the
neighbours instead of letting her burn till her last breath. The
Appellant did not mention what steps were taken by him to save his
wife. Therefore, the defence story did not inspire confidence.
(ii) The testimony of DW-1 who was not present at the spot but arrived
later on was of no help to the Appellant. Likewise, DW-2 admitted
that the Appellant was like her son and that she did not approach any
police official or the Court to make a statement about having given
the deceased kerosene oil in a plastic bottle. Even otherwise, as per
the prosecution, what was found was a plastic can of kerosene and not
a plastic bottle.
(iii) DW-3 had deposed to events that took place after the incident, and he
admitted in his cross-examination that he was present inside his house
at the time of the occurrence. His testimony too was therefore not
helpful to the Appellant.
(iv) All the injuries were confirmed to be ante mortem in nature and fresh
in duration. Injury No.1 was caused by fire and Injury No.2 by blunt
force trauma. The act of setting fire itself showed the intention of the
Appellant to cause death or such bodily harm and injury as would be
likely to cause death.
(v) The statement of a dying person was sufficient to convict a person
even without corroboration. Reference was made to the decision in
Atbir v. Govt. of NCT of Delhi (2010) 9 SCC 1. The trial Court found
no reason for disbelieving the dying declaration made by PW-1 which
was duly supported by the testimonies of PWs 11 and 12 and the other
circumstantial evidence.
(vi) PW-11 in his cross-examination deposed that his sister used to cook
food on the gas stove attached with the gas cylinder and never used
kerosene for cooking. His testimony to the above effect remained
unchallenged. In any event, no kerosene stove was found at the place
of occurrence, although a kerosene oil can which still had kerosene in
it was recovered from the spot.
44. For all of the aforementioned reasons, the trial Court concluded that the
charges against the Appellant for the offences under Sections 498-A, 304-B
and 307 IPC were not proved. The trial Court, however, held the Appellant
guilty of the offences punishable under Sections 302 and 324 IPC. The trial
Court then proceeded to sentence the Appellant in the manner indicated
hereinbefore.
Submissions of counsel
45. Mr. Adit Pujari, learned counsel for the Appellant, focussed considerable
attention on the dying declaration and submitted that it was not reliable.
According to him, the record shows that there was soot in the trachea of the
deceased and it would have been virtually impossible, with black soot also
being present in the nostrils, for the deceased to have been in a position to
make an oral dying declaration.
46. According to Mr. Pujari, even PW-15 mentioned the fact that when the
doctor enquired from the deceased, she pointed to the Appellant. This
showed that the deceased was not in a position to speak. It is further
submitted, with reference to the Delhi High Court Rules concerning dying
declaration that it ought not to be recorded by the SDM putting leading
questions.
47. It was submitted by Mr. Pujari that there was no certification by PW-17
anywhere on the dying declaration about the fitness of the deceased to make
statement. Even according to PW-1, PW-17 refused to make an endorsement
and the only inference possible to be drawn was that the deceased was in
fact not in a position with 95% burns all over the body to make any
statement whatsoever. Reference was made to the decisions in Laxman v.
State of Maharashtra (2002) 6 SCC 710, Arvind Singh v. State of Bihar
2001 (3) SCALE 549, State v. Sanjay 2011 (4) JCC 2478 and State of
Rajasthan v. Wakteng AIR 2007 SC 2020.
48. Reference was also made to medical literature on hyperpyrexia which
stated that with 95% burns, the patient was likely to be in a delirious and
confused mental state. Mr. Pujari submitted the actual positioning of the
kerosene oil can from the photographs showed that the crime scene had been
tampered. The desiccated coconut in the tray was visible in the photograph.
It was, therefore, likely that the deceased was cooking. Although the
photographs showed the gas stove, the cylinder itself was not visible. It is
submitted that the Appellant himself suffering 25% burns was indicative of
the fact that he was in fact trying to save the deceased and his daughter and
there is no occasion for him to set the deceased on fire.
49. On the other hand, Mr. Hirein Sharma, learned APP, points out that the
rule on dying declarations permits putting leading questions to the injured
person for greater clarity. It is also pointed out that while PW-17 may not
have made an endorsement on the dying declaration but he clearly mentions
in his testimony advising PW-1 that the deceased was fit to make a
statement. He also referred to the deposition of PW-15 who noted that when
the doctor asked her, the deceased pointed to the Appellant. The PCR form
also had noted likewise. He submitted that the dying declaration in the
present case was clear and categorical and pointed unmistakably to the guilt
of the Appellant.
Reliability of the dying declaration
50. The law in relation to dying declaration has been fairly well settled. In
Laxman (supra), a Constitution Bench of the Supreme Court held that the
trial Court had to always been on guard "to see that the statement of the
deceased was not as a result of either tutoring or promoting or a product of
imagination". The Court had to decide that the deceased was in a fit state of
mind and had the opportunity to observe and identify the assailant. There
was no hard and fast rule that a dying declaration must necessarily be made
to a Magistrate and further, there is no specified statutory form for the same.
What evidentiary value was to be attached to such a statement depended on
the facts and circumstances of every case. The recording of the dying
declaration even without examination by the doctor can be acted upon
provided that "the Court ultimately holds the same to be voluntary and
truthful".
51. In Nalapatti Sivaiah v. Sub Divisional Officer, Guntur (2007) 15 SCC
465, the Supreme Court, after noticing the above decision of the
Constitution Bench in Laxman (supra) observed as under:
"36. The Constitution Bench in its authoritative pronouncement
declared that there is no requirement of law that dying
declaration must necessarily contain a certification by the
doctor that the patient was in a fit state of mind especially when
a dying declaration was recorded by a Magistrate. It is the
testimony of the Magistrate that the declarant was fit to make
the statement gains the importance and reliance can be placed
upon declaration even in the absence of the doctor provided the
court ultimately holds the same to be voluntary and truthful.
The judgment does not lay down a proposition that medical
evidence, even if available on record, as also the other attending
circumstances should altogether be ignored and kept out of
consideration to assess the evidentiary value of a dying
declaration whenever it is recorded by a Magistrate."
52. In Arvind Singh (supra), it was observed:
"20. Dying declarations shall have to be dealt with care and
caution and corroboration thereof though not essential as such,
but is otherwise expedient to have the same in order to
strengthen the evidentiary value of the declaration. Independent
witnesses may not be available but there should be proper care
and caution in the matter of acceptance of such a statement as
trustworthy evidence. In our view question of the dying
declaration to the mother is not worth acceptance and the High
Court thus clearly fell into an error in such an acceptance. ..."
53. The same position was reiterated in Wakteng (supra) thus:
"Though great solemnity and sanctity is attached to the words
of a dying man because a person on the verge of death is not
likely to tell lie or to concoct a case so as to implicate an
innocent person however it cannot be sufficiently emphasized
that the court has to be careful to ensure that the statement was
not the result of either tutoring, prompting or a product of the
imagination. It is, therefore, essential that the court must be
satisfied that the deceased was in a fit state of mind to make a
statement, had clear capacity to observe and identify the
assailant and that he was making the statement without any
influence or rancour. Once, the court is satisfied that the dying
declaration is true and voluntary, it is sufficient for the purpose
of conviction."
54. In light of the above legal exposition, in the present case, it is seen that
the medical evidence is consistent about the fitness of the deceased to make
a statement. This was recorded by PW-5 in the MLC at the very first
instance when she was taken to BJRM Hospital. This was also confirmed by
PW-10. Clearly, therefore, the fitness of the deceased to make a statement
between 9:15 and 9:30 pm was proved.
55. The deceased was then shifted to the LNJP Hospital where she was seen
first by PW-17. As noticed earlier, in his examination-in-chief, PW-17
confirmed that he had stated to PW-1 that the deceased "could speak and her
statement could be recorded". In his cross-examination, PW-1 also
confirmed about PW-17 telling him the same. In his cross-examination, he
stated that he had requested PW-17 to endorse the statement "but the said
doctor was reluctant to put his signature on the statement of victim Pushpa".
He, of course, admitted that he had not made any such endorsement to the
above effect himself on the dying declaration. He also did not obtain any
separate certificate from PW-17 regarding her fitness to make the statement.
When PW-17 was asked about this, he stated that generally they would state
in the MLC whether the victim was fit to make a statement but admits that
he did not put any signature on that day on the said statement. According to
him, "the concerned Tehsildar had not asked me to sign on the statement".
Although there might be some discrepancy on whether or not PW-17 in fact
refused to endorse the statement, he confirmed having told PW-1 that the
deceased was fit to make a statement. There was no particular interest of
PW-17 to falsely make a statement regarding the fitness of the deceased or
for that matter even PW-1 to be interested in recording any such false dying
declaration.
56. As regards the submission of counsel for the Appellant about the manner
in which the dying declaration was recorded, ideally PW-1 should have
simply asked the deceased, in the first instance, to tell him what had
happened. Instead, his very first question was "who set you on fire?" One
way of viewing this is a lack of objectivity on the part of PW-1 and
indicative of his prior knowledge that the deceased was set on fire by
someone. This might have raised doubts about the dying declaration.
However, in the present case, the fact that the deceased was set on fire was
already recorded in the BJRM MLC which must have been seen by the
SDM. It was noted that she was smelling of kerosene. It was already 11.15
pm when the dying declaration was being recorded. With time clearly
running out, the decision of the SDM to resort to recording the dying
declaration in a question and answer format was understandable.
57. PW-1 was subjected to extensive cross-examination. His answers reveal
that he had no particular interest in ensuring that the Appellant was found
guilty. Clearly, he had nothing to gain in recording a false dying declaration
of the deceased
58. This Court has perused the Delhi High Court rules and in particular
Chapter 13A which governs dying declarations. Para 3 thereof does envisage
a situation where the Magistrate may, without waiting for a medical officer,
proceed to record the dying declaration. However, the Magistrate in such
cases is expected to note down "why he considered it impracticable or
inadvisable to wait for the doctor‟s attendance". The Court is not persuaded
by the submission of counsel for the Appellant that in the instant case, PW-1
proceeded without such fitness being conveyed to him by PW-17.
59. Para 4 of Chapter 13A of the Delhi High Court Rules reads as under:
"4. The statement of the declarant should be in the form of a
simple narrative--
The statement, whether made on oath or otherwise, shall be
taken down by the Judicial Magistrate in the form of a simple
narrative. This, however, will not prevent the Judicial
Magistrate from clearing up any ambiguity, or asking the
declarant to disclose the cause of his apprehended death or the
circumstances of the transaction in which he sustained the
injuries. If any occasion arises for putting questions to the dying
man, the Judicial Magistrate should record the question also the
answers which he receives. The actual words of the declarant
should be taken down and not merely their substance. As far as
possible the statement should be recorded in the language of the
declarant or the Court language."
60. Learned APP is right in his submission that it is permissible, in terms of
the above provision, for the Magistrate to ask the declarant supplementary
questions to clear up any ambiguity. However, the Magistrate should in the
first instance attempt to record the statement "in the form of a simple
narrative". It must be remembered that the deceased here was already 95%
burnt. It is possible that due to hyperpyrexia, she was not in a position to
simply give a narrative except on being prodded by questions. The recording
of the questions and answers by PW-1 was in the presence of PWs 11, 19
and 17. They do confirm that the recording of the dying declaration was in
the question and answer form.
61. The Court is persuaded to conclude that on account of the inability of the
deceased to provide a simple narrative of what had transpired, it became
necessary for PW-1 to resort to recording the entire dying declaration in a
question and answer form. While it might have been better for PW-1 to have
first also recorded the fact that the deceased was not in a position to give a
simple narrative of her own except upon being asked, this by itself does not
detract from the genuineness of the dying declaration.
62. The medical evidence in the present case does not point to the inability
of the deceased to make a dying declaration notwithstanding her 95% burns
and notwithstanding that she may have been in a state of hyperpyrexia.
These are matters for expert evidence and in the present case all doctors
have consistently spoken about the possibility of a person with 95% burns
being able to give an oral dying declaration. Consequently, it is not possible
for this Court to ignore such medical evidence and to conclude that it is not
feasible for a person with 95% burns to give a dying declaration. Even the
presence of soot in the trachea may not automatically result in the person not
being able to speak at all. No specific question was put to either PW-17 or
PW-9 in this regard. This was indeed a matter for the opinion of an expert. It
cannot be substituted by the opinion of the Court.
63. Mr. Pujari also contended that the word „diyasalai‟ (match stick) used in
the dying declaration was not the language that a person who has suffered
95% burns would normally use. However, this Court cannot surmise solely
on the basis of the usage of that word that the deceased in fact did not make
any such dying declaration. If she had used the word „maachis‟ and PW-1
instead wrote „diyasalai‟, that by itself would not take away from the
veracity of the statement made when viewed as a whole. While indeed dying
declarations have to be taken down carefully and the actual words used have
to be written, it is not possible to second guess whether the deceased was in
a position to use such words or not.
64. Mr. Pujari referred to Godhu v. State of Rajasthan (1975) 3 SCC 241
wherein the Supreme Court made the following observation as regards
severability of a dying declaration in para 16 of its judgment:
"16. We are also unable to subscribe to the view that if a part of
the dying declaration has not been proved to be correct. It must
necessarily result in the rejection of the whole of dying
declaration. The rejection of a part of the dying declaration
would put the court on the guard and induce it to apply a rule of
caution. There may be cases where in the part of the dying
declaration which is not found to be correct is so indissolubly
linked with the other part of the dying declaration that it is not
possible to severe the two parts. In such an event the court
would well be justified in rejecting the whole of the declaration
There may, however, be other cases where in the two parts of
the dying declaration may be severable and the correctness of
one part does not depend upon the correctness of the other part.
In the last mentioned cases the court would not normally act
upon a part of the dying declaration the other part of which has
not been found to be true, unless the part relied upon is
corroborated in material particulars by the other evidence on
record. If such other evidence shows that part of the dying
declaration relied upon is correct and trustworthy, the court can
act upon that part of the dying declaration despite the fact that
another part of the dying declaration has not been proved to be
correct."
65. In the present case, the other evidence on record does persuade the Court
to rely upon that portion of the dying declaration which speaks of the
Appellant pouring kerosene over the deceased and setting her on fire and to
sever that portion which speaks of his demand for dowry. The decision in
the case of Satish Kumar v. State of Punjab JT 2002 (9) SC 286, as relied
upon by the learned counsel for the Appellant, concerned a case of two
dying declarations being recorded whereas in the present case, we are
concerned only with a single dying declaration. Therefore, the said decision
is distinguishable in its application to the facts of the present case.
Other circumstances corroborate the dying declaration
66. Having been satisfied as to the reliability of the dying declaration, this
Court now proceeds to examine the other evidence which corroborates what
was spoken to by the deceased.
67. That the deceased was in flames when the jhuggi door was opened by
the Appellant himself is spoken to by PW-11 as well as other neighbours
whose evidence has been adverted to. There was a kerosene can found in the
jhuggi which still had kerosene in it. The photographs do show the presence
of that kerosene can. It was seized, sent to the FSL. The presence of
kerosene in it has been confirmed in the FSL report. The absence of
kerosene residue found on the clothes and the scalp hair would not per se
negate the fact that kerosene was poured on the deceased and then she was
set on fire.
68. Nothing much turns on the answer given by PW-9, the doctor who
conducted the post mortem examination on 5th March 2014, that she did not
detect any smell of kerosene. It must be recalled that this was four days after
the incident. It is possible that by this time, the smell of kerosene was not
discernible. However, when the deceased was first taken to BJRM Hospital,
the doctor did notice the smell of kerosene. Even PW-15 appears to have
noticed it.
69. The presence of the matchbox with two burnt matchsticks further
corroborates the dying declaration to the effect that the Appellant first
poured the kerosene oil and then set the deceased on fire by using a
matchstick.
70. No doubt PW-11 was not present inside the jhuggi at the time the fire
started, but he came back soon thereafter. His presence at BJRM Hospital is
spoken to even by PW-19. There is nothing to doubt that PW-11 was present
soon after the fire started and joined the others in dousing the fire. PW-11
has spoken of the quarrel between the accused and the deceased shortly prior
to the deceased being found ablaze. The Court does not find him to be an
untrustworthy witness. PW-11 did not stand to gain by falsely deposing
against the Appellant. The children of the Appellant and the deceased are
now being looked after by the relatives of the deceased.
71. There is sufficient corroboration therefore, of the dying declaration made
by the deceased. It can safely form the basis for the conviction of the
Appellant and the trial Court was right in this regard.
Motive
72. That brings up the question of the motive for the commission of the
crime. The question that arises is whether the Appellant, even if he had a
quarrel with his wife, would go to the extent of dousing her with kerosene
and setting her on fire with the door locked from inside and then risking his
own safety by trying to appear that he was saving her and in that process,
suffering severe burns himself. In other words, would a person who has
intent of killing his wife actually suffer burn injuries himself?
73. It appears plausible to the Court that having set the deceased on fire after
his quarrel with her, the Appellant panicked when he realised the fire was
spreading and could harm his infant daughter as well. In that panic, when he
attempted to rescue his daughter he suffered burn injuries himself. It is
entirely possible that he realised his mistake too late and in the process,
injured himself as well.
74. The fact of the matter is that the evidence overwhelmingly points to the
guilt of the Appellant in pouring kerosene oil on his wife and setting her on
fire and letting her burn to such an extent that there was no hope of her
survival whatsoever. This is also, therefore, not a case where the Appellant
can take advantage of the fact that it was in the heat of passion as a result of
a sudden quarrel that he momentarily lost his senses and decided to kill his
wife. Clearly his reaction was vastly disproportionate to the alleged
provocation, if any, by his wife. In any event, there is no evidence at all that
he was provoked by his wife. If her objection to his constant drinking was at
all a provocation, then his reaction thereto was far too excessive to bring it
within the realm of any of the Exceptions to Section 300 IPC.
75. Learned counsel for the Appellant pointed out how the prosecution was
unable to bring home the charges against the Appellant for the offences
punishable under Sections 498A and 304B IPC and that what has been
spoken to in this regard by PW-11 must be disbelieved. While this may be
the case, it should also be noticed that to that extent, the dying declaration to
this extent was not disbelieved by the trial Court.
76. In the present case, the death due to unnatural circumstances was clearly
proved to be one of homicide. There was, therefore, no occasion to resort to
Section 304B IPC as regards the presumption of dowry death. The dying
declaration per se was sufficient to bring home the guilt of the Appellant for
the offence under Section 302 IPC.
77. The Court, therefore, does not see any advantage accruing to the
Appellant on account of his acquittal for the offences under Sections 304B
and 498A IPC. The prosecution has been able to prove beyond reasonable
doubt the guilt of the Appellant for the offence punishable under
Section 302 IPC, as far as the murder of his wife is concerned.
78. However, as far as the injury caused to his daughter is concerned, the
Court is not satisfied that the prosecution has been able to prove the
Appellant‟s guilt for the offence punishable under Section 324 IPC. As
noticed earlier, the injuries on the Appellant possibly occurred when he tried
to save his daughter from the fire. He is accordingly acquitted of that
offence.
Conclusion
79. For the aforementioned reasons, the Court affirms the conviction of the
Appellant and the corresponding sentence awarded to him by the trial Court
for the offence punishable under Section 302 IPC. The conviction of the
Appellant for the offence under Section 324 IPC and the corresponding
sentence awarded to him are set aside. The impugned judgment of the trial
and the order on sentence of the trial Court shall stand modified accordingly.
The appeal and the pending application, if any, are disposed of. The trial
Court record be returned forthwith together with a certified copy of this
judgment.
S. MURALIDHAR, J.
VINOD GOEL, J.
SEPTEMBER 26, 2018/mw
