* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 12.08.2011
+ CRL.A. 361/1997
SUBHASH CHAND SHARMA ... Appellant
- versus -
STATE ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr S. P. Singh Chaudhary
For the Respondent/State : Ms Richa Kapur
CORAM:
HON’BLE MR. JUSTICE BADAR DURREZ AHMED
HON’BLE MS. JUSTICE VEENA BIRBAL
1. Whether Reporters of local papers may be allowed to
see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported in Digest? YES
BADAR DURREZ AHMED (ORAL)
1. The present appeal has been preferred against the judgment dated
12.09.1997 delivered by the Additional Sessions Judge, Karkardooma
Courts, Shahdara, Delhi in Sessions Case No. 184/1996 which arose out of
FIR No. 227/1991 under Section 302 IPC registered at Police Station
CRL.A. No. 361/1997 Page 1 of 13
Bhajanpura. The appellant was charged for having committed the murder
of his wife Smt. Reeta, who was a teacher in a public school on the
allegation that he had burnt her alive in the intervening night of 16/17th of
May, 1991. They had been married for 7-1/2 years and they also had a
child by the name of Karan, who was six years of age at the time of the
occurrence. The learned Sessions Judge had found the appellant guilty of
the offence punishable under Section 302 IPC and, therefore, by a separate
order on sentence dated 15.09.1997, the appellant was sentenced to
rigorous life imprisonment and a fine of ` 5,000/- was also imposed and, in
default of the fine, he was to undergo one month of rigorous
imprisonment.
2. Thirteen prosecution witnesses were examined as well as one
defence witness. On going through the impugned judgment, we find that
the learned Sessions Judge mainly considered three dying declarations,
which are alleged to have been made by the deceased Smt. Reeta prior to
her death. The first was the one recorded in the MLC Exhibit PW11/A
where the alleged history was given by the patient herself. She had stated
that she had a quarrel with her husband in the evening and in the night she
CRL.A. No. 361/1997 Page 2 of 13
poured kerosene oil on herself and set herself on fire. The second dying
declaration referred to in the impugned judgment is Exhibit PW13/DA,
which is said to have been recorded by ASI Ramjit Singh of Police Station
Bhajanpura on 17.05.1991 wherein, once again, it is alleged that the
deceased Smt. Reeta had stated that she had prepared tea on the gas stove
in her house and when her husband had started taking tea, she poured
kerosene oil on herself and set her clothes on fire. It is also indicated in
the said statement that an altercation had taken place between her and her
husband over some domestic issue prior to the incident.
3. The third dying declaration, which has been referred to as
Exhibit PW7/A, is stated to have been recorded by PW7 B. P. Singh, who
is stated to be a Sub-Divisional Magistrate, although we find from the
testimony of PW7 himself that he was a Link Magistrate connected with
one Mr Mishra. The said dying declaration indicates that Smt. Reeta had
been commanded by her husband to pour kerosene oil on her clothes and
out of fear she poured kerosene oil on her lower clothes and immediately
thereafter, her husband came and lit a match stick and set her clothes on
fire and thereafter, she got burnt. She also stated that her husband had
CRL.A. No. 361/1997 Page 3 of 13
intentionally set her ablaze. In this statement (Exhibit PW7/A), she also
allegedly explained that the earlier statement made by her before the police
was given out of fear of her husband as he had warned her while carrying
her in an auto-rickshaw that in case she gave a statement against him, the
consequences thereof would be even worse. It is recorded in Exhibit
PW7/A that the earlier statement may not be treated as correct and the
statement which was being tendered by her on that date, that is,
“19.05.1991 at 10:35 pm” may be deemed to be correct.
4. The learned Additional Sessions Judge found the third dying
declaration, namely, Exhibit PW7/A to be credible and reliable and,
therefore, believing the same, rejected the earlier dying declarations and
convicted the appellant for the offence of having committed the murder of
his wife Smt. Reeta in the manner indicated above.
5. The learned counsel appearing on behalf of the appellant assailed the
authenticity and correctness of the so-called dying declaration Exhibit
PW7/A. He submitted that the said dying declaration was not recorded in
the manner prescribed by Chapter 13-A of Volume -III of the Delhi High
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Court Rules and Orders dealing with dying declarations. He further
submitted that Exhibit PW7/A does not inspire any confidence inasmuch
as the thumb impression of the deceased Smt. Reeta is barely visible,
whereas the thumb impression of the same Smt. Reeta on Exhibit
PW13/DA is clearly and distinctly visible. Thus, according to the learned
counsel for the appellant, there is a serious doubt as to whether the thumb
impression on Exhibit PW7/A was at all that of Smt. Reeta. Apart from
this, he has also pointed out several discrepancies in the manner in which
the said statement was recorded, which we shall refer to below.
Consequently, it was his submission that Exhibit PW7/A cannot be
considered to be an authentic and correct dying declaration of Smt. Reeta
and, therefore, the conviction cannot be based upon it. He further
submitted that insofar as Exhibit PW13/DA is concerned, the same was the
statement made by Smt. Reeta to DW1 ASI Ramjit Singh and there is
nothing which has been brought forth on behalf of the prosecution to assail
the authenticity of the said Exhibit PW13/DA. He further submitted that
the prosecution knew about the existence of this dying declaration but they
did not produce it before the court. It is for this reason that the defence
was left with no alternative but to produce ASI Ramjit Singh as a defence
CRL.A. No. 361/1997 Page 5 of 13
witness, who has come to the witness box and has proved the statement of
Smt. Reeta, which is Exhibit PW13/DA. Apart from this, the learned
counsel for the appellant also submitted that the MLC, which has been
proved by PW11 and has been exhibited as Exhibit PW11/A, also contains
the endorsement of the doctor who prepared the MLC to the effect that the
alleged history was given by the patient herself and that she had clearly
indicated that she had poured kerosene oil on herself and set herself on fire
after she had a quarrel with her husband in the evening. Thus, according
to the learned counsel for the appellant, upon examining the first two
dying declarations, that is, the one recorded in the MLC Exhibit PW11/A
and the other which is recorded in Exhibit PW13/DA, it is clear that the
appellant has not been implicated in these two statements. It is only in
Exhibit PW7/A that the appellant has been sought to be implicated. Once
Exhibit PW7/A is held to be unreliable, there is no evidence against the
appellant and he is entitled to be acquitted of all charges.
6. We have heard Ms Richa Kapur on behalf of the State. She
supported the judgment of the learned Sessions Judge and submitted that
the trial court had correctly relied upon the third dying declaration which
CRL.A. No. 361/1997 Page 6 of 13
clearly negates the earlier two dying declarations. She further submitted
that insofar as the dying declaration recorded in the MLC is concerned,
that was at a point of time when Smt. Reeta’s husband i.e., the appellant
herein, was present. This fact is clear from Exhibit PW11/A itself, where
it is indicated that she was brought by her husband. Therefore, according
to her, not much reliance can be placed on the statement given by Smt.
Reeta to the doctor, which has been recorded in the MLC. As regards the
second dying declaration, that is, Exhibit PW13/DA, she has stated that
this also cannot be relied upon because the same was recorded by DW1 at
1:05 am on 17.05.1991, whereas the fitness certificate, as per the
endorsement on Exhibit PW11/A, indicates that the same was given at 3
am. Furthermore, she has submitted that the third dying declaration which
was recorded by PW7 B. P. Singh was authentic and correct inasmuch as
she has clearly explained that she had made the earlier statement to the
police under fear and duress.
7. After having considered the arguments advanced by the counsel for
the parties and having examined the impugned judgment as also the
evidence on record, we are of the view that this case entirely hinges upon
CRL.A. No. 361/1997 Page 7 of 13
the veracity and authenticity of Exhibit PW7/A (i.e., the third dying
declaration). If the same is to be believed, then the prosecution could be
said to have established its case. However, if the same cannot be relied
upon, then it would cause a serious dent in the prosecution case and the
appellant would be entitled to get the benefit of the same.
8. The English translation of Exhibit PW7/A reads as under:-
“I reside at the above mentioned address and an employed as
a teacher in Adarsh Public Vidhya Niketan, Shiv Mandir Gali
Moujpur. My husband Sh. Subash Chand is employed as an
accountant in Chhabra Tube Company at Houz Qazi. My
marriage was solemnized with Sh. Subhash Chander about 7-
1/2 years back. I have a son aged 6 years. On 17.5.91 at
about 1.00 A.M my husband asked me to prepare tea and
bring the same. When I went inside the kitchen to prepare the
tea, my husband asked me to pour kerosene oil on my clothes
in threatening and menancing manner. Out of fear, I poured
kerosene oil on my lower clothes. Immediately thereafter my
husband came lighted a match stick and set my clothes on
fire. This I got burnt. About 10 days prior to the incident my
husband had demanded a sum of ` 10,000/- from my father
and I had refused to do so. My husband consumes wine and
even charas. Even on earlier occasion, he often used to beat
me severely under the influence of intoxication. I am a
teacher in a private school. My husband has intentionally set
me ablaze. Even prior to this incident my husband had
threatened to eliminate me. The earlier statements made by
me before the police was given out of fear and scare of my
husband as he had warned me while carrying me in a auto
rickshaw that in case I made statement against them, theCRL.A. No. 361/1997 Page 8 of 13
consequences thereof would be even more than this. My
earlier statement may not be treated as correct and the
statement which is being tendered by me today i.e. 19.5.91 at
10.35 p.m. may please be deemed to be correct. Two days
back my husband had threatened to eliminate my son, Karan.
L.T.I. Rita
Sd/- B.P. Singh S.D.M.
19.5.91″
Upon reading the above statement, we find that it has been indicated that
the said statement was recorded on 19.05.1991 at 10:35 pm. When we try
to verify this with the deposition of PW7 B. P. Singh, we find that the two
cannot be reconciled. This is so because PW7 revealed in his cross-
examination that the investigating officer had come to him before lunch on
19.05.1991 between 9 to 11 am. He further stated that he reached the
hospital at about 12/12:30 noon and that Smt. Reeta’s statement was
recorded within 15-20 minutes. This clearly shows that, according to
PW7, the statement of Smt. Reeta was recorded on 19.05.1991 between 12
to 1 pm at the latest. Whereas, the so-called dying declaration (Exhibit
PW7/A) itself indicates that the statement was recorded at 10:35 pm on
that date. Furthermore, according to PW7, the doctor had written that the
patient was fit for statement on the MLC and it is then that he recorded the
CRL.A. No. 361/1997 Page 9 of 13
said statement Exhibit PW7/A. Going by the deposition of PW7, the said
statement must have been recorded prior to 1 pm on 19.05.1991.
Therefore, the doctor’s endorsement that the patient was fit for statement
should also have been prior to 1 pm on 19.05.1991. However, when we
examine the MLC Exhibit PW11/A, we find that the endorsement on
19.05.1991 to the effect that the patient was fit for statement bears the time
of 10:30 pm. Therefore, this aspect also does not match with the
testimony of PW7.
9. We also observe that PW7 in his testimony stated that at the time of
recording the statement neither any doctor nor any nurse was present near
Smt. Reeta. However, PW13, SI Pratap Singh had stated that they met the
doctor before going to the bed of Smt. Reeta. Lady doctor, Chitra Lekha
had identified the patient Smt. Reeta and that the said doctor Chitra Lekha
along with other doctors were present in the ward. This also belies and
contradicts the testimony of PW7, who, as we have pointed out above,
stated that neither any doctor nor any nurse was present near Smt. Reeta at
the time when her statement was recorded.
CRL.A. No. 361/1997 Page 10 of 13
10. There is another reason as to why we cannot believe PW7 and that is
that he had in his testimony stated that while he was going to the hospital,
he had checked the file of the case in the vehicle. At that point of time, he
had seen only one statement of Smt. Reeta recorded by the police in the
police file and that was recorded in the hand of one Hari Om. We do not
find any such statement available on record. Only two inferences can be
drawn from the same. Either that PW7 never saw the case file and never
noticed the statement recorded in the handwriting of Hari Om or that a
statement had been written by one Hari Om and which has been held back
by the prosecution. Either way, this causes a serious dent in the
prosecution case.
11. Furthermore, PW7, as pointed out above, on the one hand, stated that
at the time when the statement was being recorded, there was no doctor or
nurse present and on the other hand, he has stated that the doctor had given
an injection to the patient but he did not know whether it was pethidine or
fortwin. It is obvious, if there was no doctor present, then there would be
no question of a doctor having given an injection and, therefore, it is clear
that PW7 has, once again, contradicted himself.
CRL.A. No. 361/1997 Page 11 of 13
12. Considering the testimony of PW7 in totality, we do not find him to
be a credible witness at all. Consequently, the veracity and authenticity of
Exhibit PW7/A, on which the learned Additional Sessions Judge has
placed sole reliance, is extremely doubtful, to say the least. We also notice
that the language used in Exhibit PW7/A also does not seem to be the
natural language of the deceased Smt. Reeta but that of a police officer. It
has been admitted by PW7 that Exhibit PW7/A was scribed by PW13 SI
Pratap Singh on his dictation. This, too, is contrary to the rules referred to
above which require that the dying declaration should be recorded in the
exact language of the declarant. It is for these reasons that we cannot
place reliance upon Exhibit PW7/A. Once that falls to the ground, the
other two dying declarations become meaningless because in any event,
those dying declarations, even if we were to believe them, only go towards
proving the innocence of the appellant. On the other hand, if we
disbelieve those dying declarations, there is nothing left in the case.
13. We also want to record that this case has been handled in a most
shoddy manner on the part of the prosecution at the trial stage as even the
CRL.A. No. 361/1997 Page 12 of 13
post mortem report has not been proved nor has the post mortem doctor
been examined. Even the investigation has been much below par. As an
example, there has been no seizure of any incriminating material from the
scene of crime. In fact, in our view, there has been virtually no
investigation, what to speak of a scientific investigation.
14. As a result, we are left with no alternative but to given the benefit of
doubt to the appellant and to acquit him of all charges. The impugned
judgment and /or order on sentence are set aside. The appellant is on bail.
Consequently, his bond stands cancelled and the surety stands discharged.
The appeal is allowed.
BADAR DURREZ AHMED, J
VEENA BIRBAL, J
AUGUST 12, 2011
SR
CRL.A. No. 361/1997 Page 13 of 13