* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:18.03.2011
+ CRL.APPEAL No.817/2001
PRATIMA DEVI & ORS ..... Appellants
Through: Mr.M.L.Yadav, Advocate
versus
STATE ..... Respondent
Through: Mr.Lovkesh Sawhney, Advocate
And
+ CRL.APPEAL No.18/2002
VIR SINGH & ANR. ..... Appellants
Through: Mr.M.L.Yadav, Advocate
versus
STATE ..... Respondent
Through: Mr.Lovkesh Sawhney, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the 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 the
Digest? Yes
SURESH KAIT, J.
1. By judgment dated 28.03.2001, the trial court has convicted
all the 5 accused persons in the case FIR No.216/1999 PS Lodhi
Crl.A.Nos.817/01 & 18/02 Page 1 of 32
Colony, New Delhi, under Section 302/34 IPC on the charge that all
the accused persons in furtherance of their common intentions, had
burnt deceased Sonu by pouring kerosene oil on him on 07.06.1999
at about 11:00 PM in Jhuggi No.181, A block, Rajiv Gandhi Camp
within the jurisdiction of PS Lodhi Colony, New Delhi.
2. Vide order dated 30.03.2001 all the accused persons were
punished with life imprisonment, and payment of fine of Rs 10/-
each and in default to undergo simple imprisonment till rising of the
Court. The benefit of Section 428 Cr.P.C. was also given to them.
3. Appellants Pratima Devi, Basanti and Kavita have jointly
challenged the aforesaid judgment/order by filing Crl.Appeal
No.817/2001 and appellants Vir Singh and Anil Kumar have filed
Crl.Appeal No.18/2002 challenging the same.
4. The facts in brief are that on 07.06.1999 Sonu (deceased) had
gone to his in-laws house to fetch his wife Neetu @ Lali (DW-3) at A-
181, Rajiv Gandhi Camp, Lodhi Colony, New Delhi. Vir Singh,
father-in-law of deceased and Anil Kumar @ Pappu brother-in-law of
the deceased were drunk at that time. An altercation took place
between the deceased, his father-in-law and brother-in-law at
around 11:00 PM, which ultimately escalated into a quarrel.
Appellants Pratima, Basanti and Kavita allegedly beat Sonu. Though
he received beatings, he insisted on going home with Neetu. He was
Crl.A.Nos.817/01 & 18/02 Page 2 of 32
allegedly caught hold by Pratima, Basanti and Kavita. Sister-in-law
of Sonu namely Jyoti fled from that place. Appellant Vir Singh and
Anil then poured kerosene oil on Sonu, and Vir Singh lit a bidi, and
Anil lit a match stick and set Sonu ablaze.
5. Somehow, the deceased Sonu came out of the Jhuggi of Vir
Singh and succeeded in running from that place. However, he fell
down near the jhuggi of a neighbour. Number of persons gathered
there and water was sprinkled on Sonu to douse the fire. Sonu was
removed to the hospital by his sister-in-law Jyoti, who had earlier
fled, and he was admitted at 12:30 AM on 08.06.1999.
6. The deceased Sonu was medico legally examined by
Dr.Rajinder Kumar PW-19 vide MLC Ex.PW-19/1. Since Abulash, a
neighbour had also sustained burn injuries was also examined vide
MLC Ex.PW-19/2.
7. At about 11:45 PM someone made a telephone call at No.100
and informed the PCR about the incident. The same information was
transmitted through wireless operator to police station Lodhi Colony,
New Delhi and was recorded in DD No.75-B (Ex.PW-8/A). The said
DD No.75-B was handed over for investigation to Rajpal PW-8 HC.
He along with Ct. Satish Chand (PW-14) went to the place of
occurrence. Since, the injured had already been removed to the
hospital by the PCR van, they went to Safdarjung Hospital. HC
Crl.A.Nos.817/01 & 18/02 Page 3 of 32
Rajpal PW-8 moved an application Ex.PW-8/B to ascertain as to
whether Sonu was fit for making a statement. Dr.Anil Khurana (PW-
23) declared deceased Sonu fit for making a statement at 1:45 AM
(Ex.PW-23/1). HC Rajpal (PW-8) recorded the statement of the
deceased vide Ex. PW-8/C and sent it to the police station for lodging
the FIR and the same was registered bearing No.216/1999 under
Section 302/34 IPC, as Ex.PW-2/1.
8. Realizing the gravity of the offence, the SHO concerned,
directed (PW-3) SI Hulash Giri to get the available Magistrate for
recording the statement of burnt Sonu. Ms.Poonam Chaudhary (PW-
12), learned MM, New Delhi after obtaining the fitness certificate
Ex.PW-19/4 from the doctor, recorded the statement Ex.PW-12/A of
Sonu. Her proceedings are Ex.PW-12/B.
9. Deceased Sonu though fought for his survival but he breathed
his last on 12.06.1999 at 7:15 AM. The information about the death
of Sonu was transmitted to PS vide DD No.87-B, copy of which is
Ex.PW-22/1.
10. SI R.D.Pandey (PW-18) had collected the burnt pieces of
polythene sheets and the burnt pieces of newspapers Ex.P/2. A
plastic can, Ex.P/1 containing few drops of kerosene oil, was also
recovered from jhuggi No. A-181 of accused Vir Singh. The burnt
pieces of plastic sheets were further recovered from jhuggi No.A-180,
Crl.A.Nos.817/01 & 18/02 Page 4 of 32
A-181, A-447, A-260 & A-153.
11. SI R.D.Pandey (PW-18) prepared a rough site plan Ex.PW-8/1
and he also got a scaled site plan Ex.PW-13/A prepared through
Inspector Devender Singh (PW-13).
12. On 08.06.1999, appellants Pratima, Basanti and Vir Singh
were arrested vide their personal search memos Ex.PW-6/B to PW-
6/D respectively. The place of occurrence was photographed vide
Ex.PW-7/1 to PW-7/8. Inquest proceedings were completed vide
Ex.PW-18/5. Dr.Alexender (PW-5) had conducted the post-mortem
Ex.PW-5/1.
13. On 23.06.1999, appellant Kavita was also arrested and
subsequently on 22.07.1999 appellant Anil was arrested.
14. To prove the guilt of the accused persons the prosecution
examined as many as 23 witnesses. The statements of all the
accused persons were recorded under Section 313 Cr.P.C. They had
produced three DWs in their defence.
15. While making statement under Section 313 Cr.P.C. appellant
Vir Singh put his defence by taking the plea of alibi, stating that at
the time of occurrence, he was away with his employer Dinesh Arya,
in Pant Nagar. The defence taken by accused Pratima Devi was that
she was in a sound sleep at that time therefore, she does not know
as to what had happened. She further stated that she was sleeping
Crl.A.Nos.817/01 & 18/02 Page 5 of 32
with Neetu (DW-3) in the same jhuggi. She even stated that
deceased Sonu did not come to meet them. Accused Anil Kumar has
also taken the plea of alibi by stating that he had gone to his
employer in Lajpat Nagar and thereafter, he immediately went to
sleep after coming home. He further stated that after about two
months, he was arrested. The defence of Basanti was that she was
present at her jhuggi No.A-183. Therefore, she was not present at the
place of occurrence and that she had nothing to do with the incident.
Accused Kavita had also claimed the plea of alibi stating that she
was in Khureji and was not near the place of the alleged occurrence.
16. The present case rests on the three dying declarations, as
observed by the trial Judge. First recorded by Dr.Rajender Kumar
PW-19 which is as under:-
“The alleged history of burn injuries when all
members of patient‟s in-laws family poured kerosene
oil on him to set him on fire resulting in burn
injuries.”
17. The time of the burning of deceased was allegedly 10:00 PM on
07.06.1999. While the time of admission of the deceased was 12.30
AM on 08.06.1999. In the MLC, the nature of injuries was opined to
be 95% fresh burns. On perusal of the MLC it transpires that
deceased Sonu was brought by her sister-in-law Jyoti. Dr.Rajender
Crl.A.Nos.817/01 & 18/02 Page 6 of 32
Kumar (PW-19) has proved the MLC as Ex.PW-19/1.
18. Second dying declaration of deceased Sonu was recorded by
HC Rajpal Singh (PW-8) and the left thumb impression of the
deceased Sonu was also obtained on the said dying declaration. The
English translated version of the same is as under:-
“Statement of Sonu S/o Mahim Chand r/o
H.No.20/135, Trilokpuri, Delhi, aged 20 years.
On 07.06.1999, at about 11:00 PM he came to his
in-laws house at A-Block, Rajiv Gandhi Camp and
then he was involved in some altercation with his
father-in-law Vir Singh on fetching his wife Neetu @
Lali and further stated that his brother-in-law
Pappu, who was in drunken condition started
quarrelling with him and his brother-in-law said that
they will not send Lali during the night time. On
this issue, hot discussion took place and his brother-
in-law Pappu and his father-in-law Vir Singh poured
kerosene oil on him from the plastic can and his
mother-in-law and sister-in-law Kavita caught
hold from back and his brother-in-law Pappu lit fire
on him by match stick and at the end he stated that
legal action be taken against all the accused
persons.”
19. The aforesaid statement was attested by HC Rajpal PW-8 and
the same is proved by HC Rajpal as Ex.PW-8/C.
20. The third dying declaration was recorded by learned MM,
Ms.Poonam Chaudhary (PW-12). After taking the fitness certificate
of Sonu, she recorded the statement of deceased Sonu, which is in
question-answer form. The same is as under:-
Crl.A.Nos.817/01 & 18/02 Page 7 of 32
“Q- How did you get burnt?
A- My wife Neetu Charan had called me at her
parent‟s house where she was already there. I was
talking to my wife. My father-in-law Vir Singh was in a
drunken condition and brother-in-law Pappu was also
drunken. In the meantime, my mother-in-law and
my elder sister-in-law Basanti and Kavita had beaten
me up. Thereafter, I said that leave me and let me go to
my house. Thereafter, my mother-in-law, sister-in-law
Basanti and Kavita caught hold of me. My sister-in-law
Jyoti ran away and my father-in-law Vir Singh and
Pappu poured kerosene oil on me from a plastic can. I
tried to free myself from their clutches but could not
succeed. My father-in-law Vir Singh lit bidi and my
brother-in-law Pappu lit match stick on me and I started
burning. I ran and fell down in neighbour‟s jhuggi. All
neighbours cried. Public persons doused the fire by
putting water on me and I was made to lay down there
and police was called. One of the neighbours also
caught fire. I do not remember his name. Police
brought me in hospital.
Q- Do you want to say something more?
A- I was married five months‟ back. During this
period a quarrel took place between me and my wife only
once. I had no quarrel with my wife. I had quarreled
with my in-laws once. My wife went to her house
without telling me.”
21. Learned MM had also certified that the statement had been
given voluntarily. It had been read over to the victim and was
admitted by him to be correct. Nothing has been added or
subtracted therefrom. The thumb impression of Sonu/victim was
taken on the statement. This statement has been proved by the
learned MM as Ex.PW-12/C.
Crl.A.Nos.817/01 & 18/02 Page 8 of 32
22. The Trial Court has mainly relied upon the dying declaration
made by the deceased Sonu before Ld.MM (PW-12). The Trial Judge
further has opined that the dying declaration was voluntary without
any pressure or influence and the concerned MM has also endorsed
the dying declaration recorded by her stating that she had observed
that the victim/patient was conscious and voluntarily gave the
statement.
23. As per the Trial Judge, apart from the dying declaration, the
other prosecution witnesses have also supported the prosecution
story.
24. The learned counsel for the appellants argued separately on
behalf of appellant Basanti contending that, though she had been
staying in the same locality, her house was not the immediate
neighbour to Jhuggi No.A-181 which belongs to her father accused
Vir Singh. He emphatically contended that after knowing about the
incident, Basanti came over to the jhuggi of her father, however, she
was not involved in committing the offence. According to him that
fact can be inferred on account of inconsistencies in the various
dying declarations of the deceased and the fact that on the basis of
the site plans it is apparent that her jhuggi is not adjacent to the
jhuggi where the deceased was allegedly burnt by other accused.
Crl.A.Nos.817/01 & 18/02 Page 9 of 32
25. Learned counsel for the appellants had assailed the
prosecution case on the ground that there are inconsistencies in the
dying declarations; one recorded by Dr. Rajender Kumar (PW-19);
one recorded by HC Rajpal (PW-8), which had been exhibited as
Ex.PW-8/C and the last one recorded by ld. MM, which was
exhibited as Ex.PW-12/A. He submits that there are contradictions
in the statements of HC Rajpal PW-8 and Ct. Satish Kumar (PW-14).
As according to him someone in the hospital with Sonu had
prompted him to make the improvements in his statements. He has
pointed out that there are cuttings in the statement recorded by HC
Rajpal Ex.PW-8/C. It shows that either Sonu was unfit to make the
statement or HC Rajpal had introduced the facts. Therefore, HC
Rajpal had deposed that the doctor on duty had refused to become a
witness on the ground that he had to attend the other patients
however; this fact has been contradicted by Dr. Anil (PW-23).
26. It was further argued that the dying declaration recorded by ld.
MM (PW-12), was not in accordance with the rules prescribed under
the Punjab and Haryana High Court Rules (as applicable to Delhi
High Court) that MM should have obtained the fitness certificate of
the patient not only at the time of starting but also at the time of
concluding the statement. The appellant Basanti‟s name is not
mentioned in the statement Ex.PW-8/C cannot be a minor
Crl.A.Nos.817/01 & 18/02 Page 10 of 32
inconsistency as it involves the life and liberty of one of the
appellants. As per the learned counsel for the appellant, Sonu was
unfit to make the statement after having sustained 95% burn
injuries. If however, Sonu was fit to make the statement before HC
Rajpal then, in that case there would not have been any overwriting
on the MLC regarding the age of Sonu. In MLC Ex.PW-19/1 the age
of Sonu is mentioned as 20 years. If the MLC was in possession of
HC Rajpal, he would not have mentioned the age of deceased Sonu
as 23 years in Ex.PW-8/B. Similarly, he would not have mentioned
the age of Sonu as 23 years in Ex. PW-8/C and then changed it to 20
years. As per the learned counsel, HC Rajpal had recorded the
statement of Sonu when he was in casualty, however, PW-23 had
stated that Sonu was in the Intensive Care Unit which is different
from casualty.
27. Learned counsel for the appellants vehemently argued
that MM (PW-12) should have recorded as to what was stated by
deceased Sonu. He further argued that the doctor, who had declared
Sonu fit for the making statement which was recorded by (PW-12)
has not been examined by the prosecution and his handwriting and
signature have instead been proved by the prosecution witness,
Dr.Rajender (PW-19). Hence, Dr.Sahil (not examined) who had given
the opinion about the fitness of Sonu, before his statement had been
Crl.A.Nos.817/01 & 18/02 Page 11 of 32
recorded by PW-12, should have been examined by the prosecution.
In support of this submission, learned counsel has relied on Shanti
Lal Vs.State of Delhi 1975 CLR 429 while stating that the
prosecution has failed to prove that Sonu was fit to make the
statement before the MM (PW-12).
28. Learned counsel for the appellant stated that Sonu‟s entire
body was bandaged except for his face while recording his statement
as stated by (PW-12) therefore thumb impression of Sonu could not
have been obtained. He further pointed out that in the post-mortem
report i.e. Ex. PW-5/1 it was recorded that every part of the deceased
was burnt, therefore as per his contention if every part of the body
was burnt then the thumb impression could not have been taken.
29. The learned Additional Public Prosecutor has refuted the pleas
and contentions raised on behalf of the appellants. He has contended
that the dying declarations are admissible under Section 32 of the
Evidence Act. Dying declarations have sanctity and solemnity
attached to them as a dying man is not likely to tell lies or to concoct
a case as to implicate innocent persons. The learned counsel urged
that the dying declarations first recorded by Dr.Rajinder Kumar, and
thereafter by HC Rajpal Singh (PW-8) and lastly by the MM are
consistent and inculpate the accused persons. Before the dying
Crl.A.Nos.817/01 & 18/02 Page 12 of 32
declarations were recorded the doctors had also certified that the
deceased Sonu was fit to make the statements.
30. The learned Additional Public Prosecutor also emphasized that
the MM (PW-12) had recorded the dying declarations in question and
answer form after ascertaining his fitness from the doctor who had
given a certificate to that effect. According to him the dying
declaration recorded by the MM is true and voluntary. He also
emphasized that as no one was present in the room where the dying
declaration of the deceased was recorded, therefore, no one could
have possibly influenced the deceased. He also contended that a
dying declaration recorded by a Magistrate stands on a higher
pedestal and on the basis of the categorical dying declaration that
the deceased was caught hold by his mother-in-law Basanti and
sisters-in-law and Kavita, kerosene was poured on him by his father-
in-law Vir Singh and his brother-in-law Anil who lit a matchstick and
set him ablaze; this fact can neither be doubted nor does it require
any corroboration in the facts and circumstances.
31. The learned Additional Public Prosecutor has also contended
that the alleged overwriting in the dying declaration of the deceased
made before HC Rajpal Singh regarding the age of the deceased,
would not make the dying declaration doubtful. In any case
Crl.A.Nos.817/01 & 18/02 Page 13 of 32
according to him this plea is trivial and does not cast any doubt
about the dying declaration. It is contended that in any case the
dying declaration recorded by the MM cannot be rejected in the facts
and circumstances. The plea that the dying declaration was not
recorded by the MM in accordance with the rules has not been
established. Lastly, the plea of the counsel for the appellant that,
even after conclusion of the dying declaration, the fitness of the
deceased ought to have been ascertained is without any basis. This
plea is not based on any rules or guidelines or any precedent. It is
also contended that (PW-19) has proved the fitness certificate given
by Dr.Salil Ex.PW-12/B as he was conversant with his handwriting
and signatures and in the circumstances non-examination of Dr.Salil
would also not cast any doubt about the fitness of the deceased
when he made the dying declarations. It is submitted that neither
the (PW-19) nor the MM had any prejudice and bias to falsely
implicate the appellants so as to record a dying declaration contrary
to what was stated by the deceased or allegedly not stated.
32. The learned Additional Public Prosecutor has also refuted the
plea of the learned counsel for the appellants that the deceased could
not have thumb marked the dying declaration on the ground that his
entire body was bandaged. It is submitted in the statement that the
entire body was bandaged does not mean and reflect that the
Crl.A.Nos.817/01 & 18/02 Page 14 of 32
deceased‟s mouth, nose, eyes and fingers were also bandaged. From
the post mortem report it cannot be inferred that the thumb of the
deceased was burnt to the extent that the skin had peeled off and the
deceased could not have thumb marked the dying declaration. The
MM was also not inimical to the appellant so as to take the thumb
impression of someone else and to implicate them.
33. The marriage of the deceased with the daughter of Vir Singh
and Pratima and sister of Basanti, Kavita and Anil is not disputed.
The deceased had sustained burn injuries which resulted into his
death is also established on record. Whether the burn injuries were
accidental or were caused by the appellants or the deceased had
burnt himself, as has been deposed by the deceased‟s wife Neetu,
DW-3 has to be ascertained and adjudicated on the basis of evidence
and record.
34. The MLC of the deceased, Ex.PW19/1 which was recorded by
the doctor at 12.30 AM on the basis of the information divulged by
the deceased himself, recorded that all the members of the in-laws of
the deceased poured kerosene on him and set him on fire. The doctor
had opined that the deceased had 95% fresh burns and he was
brought by Jyoti, his sister-in-law. The fact about the burn injuries
are also reflected from the death summary Ex.PW1/1 and the post
mortem report Ex.PW5/1. The post mortem report also reveals that
Crl.A.Nos.817/01 & 18/02 Page 15 of 32
the death was due to septicemia caused by anti mortem thermal
burn injuries. Dr.Alexander (PW-5) had deposed in his statement the
post-mortem was conducted by him and the smell of kerosene was
present all over the body of the deceased. Scalp hairs of the deceased
were also taken and were handed over to IO. The report of CFSL Ex.
PW18/6 reveals the residue of kerosene on the exhibits Ex.1/a
plastic box (dabbi) containing scalp hairs of the deceased and Ex.2/a
plastic can, black in colour which was seized by IO from the place of
occurrence.
35. The testimony of Atiq Ahmed (PW-4) also reveals that on 7th
June, 1999 at about 10 or 10:15 PM noises were heard nearby his
jhuggi and the people were shouting “Aag Lug Gai- Aag Lug Gai” and
he had seen that a boy named Sonu was burning and was taken to
the hospital by Jyoti and another person named Gupta ji. Though
this witness was declared hostile, but his testimony to some extent
does corroborate the prosecution version, and hence can be relied
on. Reliance for this can be placed on Gora Singh Vs. State, (1997)
9 SCC 338, Balram Prasad Agarwal Vs. State of Bihar & ors;
(1991) 3 SCC 627, Khujji Vs. State of MP ; (1976) 1 SCC 727, Sat
Paul Vs Delhi Administration holding that turning hostile of a
prosecution witness does not mean that his testimony has to be
treated as effaced or washed off the record all together. The Supreme
Crl.A.Nos.817/01 & 18/02 Page 16 of 32
Court had held that it can be accepted to the extent his version is
found to be dependable, on a careful scrutiny of the entire evidence.
36. The next question for determination is whether the deceased
committed suicide or got accidentally burnt or he was burnt by the
appellants. Accepting the testimony of deceased‟s wife Neetu that the
deceased had committed suicide is not rationally possible, as no
other witness had deposed that he had committed suicide. Also to
none of the witnesses any suggestions were given that the deceased
had committed suicide. The accused in their statements under
Section 313 of the Criminal Procedure Code had also not revealed
that the deceased had committed suicide. No case has been made
out that the deceased got accidentally burnt. The recovery memo
Ex.PW18/2 reveals the details of jhuggis which had caught fire on
account of deceased running from the Jhuggi of the appellants on to
the passage outside. This fact and document does not show in any
manner that the deceased had committed suicide. A plastic can of
kerosene was recovered from inside the Jhuggi No.A-181. In the facts
and circumstances of the case it is highly improbable that the
deceased knew that his wife would not be sent with him and he had
pre planned to commit suicide and had brought kerosene oil in a can
with him with the intention of committing suicide at the Jhuggi of his
in-laws, so as to implicate all the appellants. This is also quite
Crl.A.Nos.817/01 & 18/02 Page 17 of 32
improbable to note the fact that the deceased would commit suicide
because of the reason that his newly wedded wife (5 to 6 months)
was not sent back with him. The plea that Sonu had committed
suicide propounded on behalf of the appellants cannot be accepted
on any account.
37. If the deceased had not committed suicide then the burn
injuries could either be accidental or inflicted by the appellants by
pouring kerosene and lighting the deceased. The plea of accidental
burning has not been propounded by the appellants. Moreover,
whether the deceased was burnt by the appellants has to be
considered on the basis of the dying declarations of the deceased.
38. This is not disputed that dying declarations are admissible
under Section 32 of the Evidence Act. Great sanctity and solemnity
has to be attached to the words of a dying man as he is not likely to
lie or to concoct a case as to implicate innocent persons. The only
requirement is that while construing a dying declaration, it has to be
ascertained if the deceased had been tutored or prompted or not and
whether the dying declaration was given on account of his
imagination. Before relying on the dying declarations it also has to be
ascertained that the deceased was in a fit state of mind and had a
clear opportunity to observe and identify his assailants and that the
statement, dying declaration, was made without any influence or
Crl.A.Nos.817/01 & 18/02 Page 18 of 32
rancor. If the dying declaration is true and voluntary, the conviction
can be based on it without any further corroboration. If the dying
declaration is recorded by a competent Magistrate in a proper
manner i.e in the form of questions and answers and in the words of
the maker of the declaration, such a declaration will be more reliable
than an oral dying declaration. If there is more than one dying
declaration then, the consistency in the versions of the maker in the
declaration is to be regarded. One such test of the reliability of a
dying declaration is that the person who recorded it must be satisfied
that, the deceased was in a fit state of mind. The Supreme Court in
Smt. Paniben v. State of Gujarat, AIR 1992 SC 1817 had
summed up the principles regarding the dying declaration as under:-
“1. There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration.
2. If the court is satisfied that the dying declaration
is true and voluntarily it can base conviction on it,
without corroboration.
3. The court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination, that the
deceased had an opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
4. Where the dying declaration is suspicious, it
should not be acted upon without corroborative
evidence.
Crl.A.Nos.817/01 & 18/02 Page 19 of 32
5. Where the deceased was unconscious and could
never make any dying declaration, the evidence with
regard to it is to be rejected.
6. A dying declaration which suffers from infirmity
cannot form the basis of conviction.
7. Merely because a dying declaration does contain
the details as to the occurrence, it is not to be rejected.
8. Equally, merely because it is a brief statement, it
is not to be discarded. On the contrary, the shortness of
the statement itself guarantees truth.
9. Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration looks up to the medical opinion. But where
the eyewitness said that the deceased was in a fit and
conscience state to make the dying declaration, the
medical opinion cannot prevail.
10. Where the prosecution version differs from the
version as given in the dying declaration, the said cannot
be acted upon.
11. Where there is more than one statement in the
nature of dying declaration, the one made first in point
of time must be preferred. Of course, if the plurality of
dying declaration could be held to be trustworthy and
reliable, it has to be accepted.”
39. In the present case, the first document which reveals the
declaration made by the deceased was in his MLC exhibit PW19/1
which was recorded by the doctor. The deceased had revealed to the
doctor that he received the burn injuries on account of all the
members of his in-laws family. From the evidence produced by the
prosecution it is apparent that all the in-laws had not been involved
in burning him, as Jyoti, one of his sisters-in-laws had run away
Crl.A.Nos.817/01 & 18/02 Page 20 of 32
during the incident and later on when the deceased was burnt she
had rather helped him by removing him to the hospital with another
person named Gupta ji. The first dying declaration of the deceased
Sonu as is reflected from Ex PW-19/1 is as under:
“Alleged history of burn injuries when all
members of patient‟s in-laws family poured
kerosene oil on his to set him on fire
resulting in burn injury. The Doctor had
opined that the patient was having 95% fresh
burns and the patient was brought by Jyoti,
sister-in-law. These very facts are mentioned
in the death summary (Ex.PW-1/1). The
post-mortem report Ex.PW-5/1 also
describes that the burn injuries were 95%.
The death was due to septicemia caused by
ante-mortem thermal burn injuries.”
40. The other members of his in-laws family against whom there is
no evidence of burning the deceased is another sister-in-law namely
Anju and brother-in-laws namely Amit and Arun. Even in the
subsequent dying declarations the deceased had not named
members of the in-laws family. Resultantly this dying declaration is
inconsistent with the other dying declarations, i.e. the one recorded
by the HC and thereafter another recorded by the MM. Therefore this
dying declaration cannot be relied on to ascertain conclusively as to
who were the persons who had burnt him, except the fact that
neither the deceased committed suicide nor that he was burnt
accidentally. As two other dying declarations were recorded giving
Crl.A.Nos.817/01 & 18/02 Page 21 of 32
other details, this dying declaration can only support the
prosecution case to the extent that the deceased did not commit
suicide nor did he get burnt accidentally.
41. Whether or not the deceased was fit to make the dying
declaration is also to be ascertained. The doctor had declared the
deceased fit to make the statement though he had sustained 95%
burns. The opinion of the doctor cannot be ignored on the basis of
the assumptions of the learned counsel for the appellant. This Court
in the case Govardhan Dass Vs. State (NCT of Delhi) Crl.Appeal
No.357/2004 and another case Gokul Vs. State Crl.Appeal
No.228/2001 where it was held that with the advancement in
medical science and the availability of life saving drugs, it is possible
that patients are in a position to understand and speak till their very
breath of life. Dr.Salil Kumar had declared the deceased fit for
statement, he had left the hospital and his endorsement/certificate
regarding the fitness of the deceased was proved by Dr.Rajinder
Kumar (PW-19) who identified the signatures and handwriting of
Dr.Salil Kumar on Ex.PW12/B which was exhibited as Ex.PW19/4.
PW-19 also deposed that all the medicines were given to the
deceased on his advice and there is entry to this effect in the record.
He categorically deposed that the deceased was not given any
sedatives or pain killers by other doctors who had attended him after
Crl.A.Nos.817/01 & 18/02 Page 22 of 32
perusing the entire record pertaining to the deceased. He had also
deposed that in epidermal burn usually the impression of the thumb
remains only in case of deep burns the possibility of peeling of the
skin is there. No suggestion was given to him that on account of the
burns the thumb impression could not be given by the deceased on
his dying declarations which were recorded by the HC Ex.PW8/C and
by the MM Ex.PW12/A. No facts can be inferred in the
circumstances that the doctors and the Magistrate would have had
any animus against the accused or would have been interested in
fabricating the dying declarations against the accused. In Ravi
Chander & Ors. Vs. State of Punjab, (1998) 9 SCC 303 it was held
by the Apex Court that for not examining the doctor, the dying
declarations recorded by the executive Magistrate and the dying
declaration orally made need not be doubted. The Supreme Court
had held that the executive Magistrate is a disinterested witness and
is a responsible officer and there is no circumstance or material on
record to suspect that the executive Magistrate had any animus
against the accused or in any way was interested in fabricating the
dying declaration and, therefore, the question of genuineness of the
dying declaration recorded by the executive Magistrate could not be
doubted. The Supreme Court in K.C.Savji & Anr. Vs. State of
Gujrat, AIR 1999 SC 3695 had held that, in absence of doctor while
Crl.A.Nos.817/01 & 18/02 Page 23 of 32
recording the dying declaration, the said dying declaration does not
lose its value and can be accepted. In this case the Magistrate who
had recorded the dying declaration had been examined and had
deposed that as soon as she had reached the hospital she had told
the doctor on duty that she was required to take the statement of the
deceased. The doctor had introduced her to the deceased and the
executive Magistrate had also asked about the condition of the
deceased categorically and it was replied that the deceased was in a
conscious condition. No endorsement about the fitness of the
deceased was made on the dying declaration, however, the Supreme
Court had believed the dying declaration and had not rejected it on
account of no endorsement made by the concerned doctor. In the
present case the dying declaration Ex.PW8/C though does not have
any endorsement about the fitness of the deceased, however, the
dying declaration recorded thereafter by the executive Magistrate on
the same day i.e. 8th June, 1999 was subsequent to the fitness
certificate given by the doctor, pursuant to which the Magistrate
himself had observed that the victim was conscious and voluntarily
wanted to make the statement. Thereafter the statement of the
deceased was written in question answer form. The Magistrate when
appearing as a witness (PW-12) had categorically denied the
suggestion that the deceased was not mentally/physically fit to make
Crl.A.Nos.817/01 & 18/02 Page 24 of 32
the statement. She had also deposed that, at the time the statement
of the deceased was recorded no one else was present in the room,
who could have prompted him or could have tutored him to make the
statement. In K.C.Savji (Supra) there were two dying declarations
one recorded by the police officers and the other recorded by the
Magistrate and both the dying declarations were believed and the
appeals filed by the accused were dismissed.
42. The deceased was admitted in the hospital at 12:30 AM on 8th
June, 1999 and his statement was reflected in his MLC which was
recorded by Dr.Rajinder Kumar (PW-19) and which was proved as
Ex.PW19/1. Thereafter the statement of the deceased Ex.PW8/C was
recorded after about 45 minutes at 1:45 AM. The FIR was registered
at 2:10 AM and the MM (PW-12) had recorded the statement of Sonu
at 9:50 PM. In these circumstances these dying declarations cannot
be rejected on the premise that the deceased was not fit to make the
statement.
43. The next question for consideration is whether the two dying
declarations i.e. one recorded by the HC Rajbir Singh as Ex.PW8/C
and one recorded by the MM, Ex.PW12/A are consistent or have
certain inconsistencies. The statement recorded by the HC Rajpal
(PW-8) cannot be rejected on the ground that it was not in question
answer form. The deceased had not implicated his sister-in-law
Crl.A.Nos.817/01 & 18/02 Page 25 of 32
Basanti whereas in the statement which was recorded at 9:50 PM he
had implicated Basanti. Whether this inconsistency will create a
doubt about the presence of Basanti has to be considered by taking
into consideration certain other facts also. Though the learned
Additional Sessions Judge was of the view that this inconsistency
will not knock out the dying declaration recorded by the MM and
that it would hold against the accused Basanti, on the ground that if
the intention of the deceased was to implicate all of the in-laws, then
he would have named the other in-laws as well namely Anju, Jyoti,
Amit and Arjun and also the presence of Basanti had been
established by the deposition of Sanjay Kumar, (DW-2). However,
certain other facts have not been considered by the Sessions Judge
which have been highlighted and demonstrated by the learned
counsel for Basanti. This has not been disputed that the address of
Basanti is Jhuggi No.A-183 whereas the jhuggi of Vir Singh is A-181.
Numerologically the jhuggi No.A-181 should be adjacent to jhuggi
No.183 of Basanti, however, this is contrary to the facts established
by the prosecution itself. Perusal of Ex.PW18/1 reveals that jhuggi
No.A-181 is not adjacent to jhuggi No.A-183 which is the residence of
Crl.A.Nos.817/01 & 18/02 Page 26 of 32
Basanti. Exhibit PW18/1 is as under:-
In the scaled site plan which was proved as Ex.PW13/A jhuggi of the
accused Basanti is not shown adjacent to the jhuggi of Vir Singh
Crl.A.Nos.817/01 & 18/02 Page 27 of 32
where the incident of burning of the deceased had taken place.
Ex.PW13/A is as under:-
44. From these two plans it is apparent that jhuggi No.A-183
(residence of Basanti) is not adjacent or near the vicinity of the place
of incident i.e. jhuggi No.A-181. Basanti in her statement under
Section 313 of the Criminal Procedure Code had also reiterated that
her address is A-183 which has not been disputed by anyone.
Crl.A.Nos.817/01 & 18/02 Page 28 of 32
45. If both the dying declarations are to be relied on by the
prosecution i.e. the dying declaration recorded by HC Rajpal Singh
and the dying declaration recorded by the MM, then the
inconsistency in the dying declaration also ought to have been
established i.e. the presence of Basanti at the time of incident. In
case this inconsistency has not been explained, the accused Basanti
would be entitled for the benefit of doubt. Since the jhuggi of Basanti
bearing No.A-183 has not been established adjacent to jhuggi No.A-
181 where the incident had occurred, it cannot be inferred that she
was present at the time of incident i.e. when the kerosene was
poured on the deceased and he was lit by his brother-in-law, Anil
Kumar. There is no cogent explanation as to why the deceased had
omitted the name of Basanti in his dying declaration before the HC
and had included her name in the dying declaration given before the
MM. The reasoning of the Sessions Judge also cannot be the basis
for treating it as a minor inconsistency as the deceased in his
statement before the doctor which was incorporated in his MLC had
rather implicated all the members of his in-laws‟ family.
46. If accused Basanti‟s jhuggi is not near the jhuggi of her father
bearing No.A-181 where the incident had taken place, and if the said
jhuggi is located in the same locality it is natural that after knowing
Crl.A.Nos.817/01 & 18/02 Page 29 of 32
of the incident she would have come to the jhuggi of her father
i.e.A-181 which was stated by Sanjay Kumar (DW-2). However, DW-2
had not stated that the accused Basanti was present at the time
kerosene was poured over the deceased and when the deceased was
lit by the accused Anil Kumar. The statement of DW-2 Sh.Sanjay
Kumar is as under:-
“Earlier I used to reside in jhuggi No.A-320, Rajiv
Gandhi Camp, Nehru Stadium, New Delhi. On 7th June,
1999 again said, I am unable to recollect the exact date,
it was between afternoon and before the sunset when I
had heard that one boy had committed suicide by
burning himself. I do not know as to who that boy was.
On that very date, in the evening, again said by that time
it was night time, Basanti accused present in the Court
had come there. I was told that Basanti had been taken
to police station for questioning her.”
47. Thus, the statement of the witness is that the accused
Basanti had „come there‟ and not that she had been present at the
time of the incident. In the circumstances the accused Basanti shall
be entitled of benefit of doubt in view of the inconsistency between
the two dying declarations and the other facts which makes her
presence doubtful at the time of incident though she had come there
later.
48. In summing up it can be held that though the prosecution
has not established the motive of burning by the accused, however,
Crl.A.Nos.817/01 & 18/02 Page 30 of 32
from the statement of Sonu‟s wife Neetu (DW-3) it is clear that
deceased was not earning and he was idle and had been demanding
money from Vir Singh. The accused Vir Singh had rather taken loan
from his employer at the time of his daughter‟s marriage and were
fed up of the persistent demands for money by the deceased. On the
date of the incident, on account of altercation between the accused
and the deceased, the incident occurred and had been described by
the deceased in both his dying declarations. The dying declarations
are consistent except in the inconsistency regarding Basanti, whose
presence was not disclosed in the dying declaration Ex.PW8/C,
however the same was included in the dying declaration Ex.PW12/A.
In the circumstances it can be inferred that Pratima Devi (mother-in-
law) and Kavita (sister-in-law) caught hold of Sonu deceased and Vir
Singh (father-in-law) poured kerosene oil and the Anil Kumar
(brother-in-law) set the deceased ablaze, which resulted in extensive
burn injuries to the deceased ultimately leading to his death. In the
circumstances the prosecution has been able to establish the charge
of murder against accused Vir Singh, Anil Kumar, Kavita and
Pratima and they are liable for conviction under Section 302/34 of
Indian Penal Code. The sentence awarded by the trial Court to them
to suffer life-imprisonment and a fine of Rs.10/- and in default to
suffer simple imprisonment till rising of the Court.
Crl.A.Nos.817/01 & 18/02 Page 31 of 32
49. The appeal of Pratima & Ors. Crl.Appeal No.817/2001 is,
however, accepted qua appellant No.2 Basanti by giving benefit of
doubt to the said accused. Therefore, Judgment and order passed by
the Trial Court against the accused Basanti is modified. Accordingly,
accused Basanti be set free forthwith, if not required in any other
case. Since she is on bail, her bail bonds and surety bonds given on
her behalf are discharged and any endorsement made on her
account as a surety bond be cancelled. The appeal of other accused
namely Pratima Devi and Kavita is however, dismissed and their
conviction and sentence is upheld. Finding no discrepancies in the
judgment of the Trial Court qua appellants, we are not inclined to
interfere with Crl.Appeal No.18 of 2002; therefore, the same is
dismissed. The said accused persons shall, however, be entitled for
benefit of Section 428 of Cr.P.C.
50. The other accused namely Pratima Devi, Vir Singh, Anil
Kumar and Kavita are directed to surrender before the jail
authorities forthwith. Their bail bonds stand cancelled.
SURESH KAIT, J
ANIL KUMAR, J
March 18, 2011
‘nks/mr’
Crl.A.Nos.817/01 & 18/02 Page 32 of 32