* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRIMINAL APPEAL No. 525/1999 % Date of decision 15.04.2015 JAGE RAM & ANR. Appellant Through : Mr. [ENTITY], Advocate. versus STATE OF DELHI Respondent Through : Mr. [ENTITY], APP for State. CORAM : HON'BLE MR. JUSTICE [ENTITY] HON'BLE MS. JUSTICE [ENTITY] [ENTITY], J.
1. The instant criminal appeal has been preferred against the impugned judgment dated 10.9.99 and order on sentence dated 14.9.99 passed by the learned Additional Sessions Judge, whereby the appellants were sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months for the offences under [SECTION] of the [ACT]. The appellants were also sentenced to undergo rigorous imprisonment for one year for the offence under [SECTION] of the [ACT]. They were also sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months for the offences under [SECTION] of the [ACT].
2. Brief facts of the case, as noticed by the learned Trial Court, are as under:
"Police challaned all the above named 3 accused persons and sent them to the court to face trial for the offence u/[SECTION]/[SECTION] and [SECTION] [ACT] on the allegations that Smt. [ENTITY] (deceased) was living with her husband in house No. RZ-31 New Roshanpura Extn., Najafgarh, Delh and she obtained divorce from her previous husband and received a sum of Rs.50,000/- from his and thereafter, she married for the second time with [ENTITY], the son of above named accused [ENTITY] and [ENTITY]. It is the further case of the prosecution that the deceased has paid the said amount of Rs.50,000/- to the above named accused [ENTITY], who is her maternal grandfather and he was not returning the said amount despite demands made by the deceased and on 1.7.97 at about 7 p.m. the above named accused [ENTITY] along with his son and co-accused [ENTITY] (who is already P.O.) and the above named two other co-accused [ENTITY] and [ENTITY] went to the house of the deceased and at that time the husband of the deceased was not present in the house and the accused [ENTITY] poured kerosene oil from a container on the deceased and set her ablaze and the deceased received burn injuries and was taken to Safdarjung Hospital in the PCR Van where she was medically treated and on receiving information of this incident, DD No. 27-A (Ex.PW21/A) was recorded and the copy thereof was handed over to SI [ENTITY], who along with Const. [ENTITY] went to the place of occurrence and came to know that the injured has already been taken to the hospital and thereafter SI [ENTITY] went to the hospital and he also informed the SDM about this incident as the deceased had received burn injuries within 7 years of her marriage and Si [ENTITY] reached in the hospital and Sh. [ENTITY], SDM, also reached in the hospital at about 11 p.m. and SI [ENTITY] moved application (Ex.PW21/B) before the doctor for recording the statement of the injured [ENTITY] and the doctor declared her to be fit for statement through his endorsement (Ex.PW20/B) and thereafter Sh. [ENTITY], SDM, recorded the statement (dying declaration Ex.PW8/A) of the deceased and in the said dying declaration the deceased told that she had given a sum of Rs.50,000/- to accused [ENTITY] which he was not returning despite the demands made by her and on that day at about 7 p.m. the above named all the three accused persons alongwith their co-accused [ENTITY] came to her house and accused [ENTITY] poured kerosene oil on her and set her ablaze and thereafter on the next day on the directions of the SDM, the case was got registered against the accused persons. It is the further case of the prosecution that on 2.7.1997, the IO went to the place of occurrence and got the same photographed and also got the same inspected from the crime team and he also seized from the spot oil container (Ex.P.1), burnt match stick (Ex.P.2), match box (Ex.P.3), 5 match stick (which were in the match box collectively) (Ex.P.4) and the broken pieces of bangles (Ex.P.5) and he also prepared the site plan (Ex.PW21/C) of the place of occurrence and the IO also recorded the statements of the witnesses at the spot. It is the further case of the prosecution that [ENTITY] died in the hospital on 7.1.97 and thus inquest proceedings were completed and her dead body was sent for post-mortem. It is the further case of the prosecution that accused [ENTITY] was arrested, on 3.7.97 and on 23.12.97 the above named accused [ENTITY] was arrested and the above named accused [ENTITY] was arrested on 31.8.98 and her supplementary challan was filed in the court and the IO also got prepared the scaled site plan of the place of occurrence from the draftsman."
3. To prove its case, the prosecution examined 21 witnesses in all.
Thereafter, statements of the accused/appellants were recorded under [SECTION] of [ACT] wherein oral and as well as documentary evidence were put to them in question form and they denied the allegations made against them and claimed to be innocent and have been falsely implicated in the present case.
4. After appreciating the entire material available on record and hearing the learned counsel for the parties, the learned Additional Sessions Judge, vide judgment dated 10.9.99 and order on sentence dated 14.9.99 convicted and sentenced the accused/appellants as stated above.
5. Appellant No. 1 [ENTITY] died in the month of October, 2014 and appeal against him stood abated vide order dated 18.07.2014.
6. Mr. [ENTITY], Advocate appearing for appellant/[ENTITY] submits that the conviction and sentence awarded to the appellant/[ENTITY] is contrary to law and the facts established on record. It is argued that in the instant case the deceased made one oral dying declaration and two written dying declarations and the so called dying declaration relied upon by the learned Trial Court is surrounded by suspicion there being every chance that the signatures purporting to be of [ENTITY] were obtained on a blank paper as the prosecution failed to prove that she was in a fit state of mind to give a statement despite 80% deep burns. It is further argued that there are many inconsistencies in the dying declarations of the deceased.
7. Mr. [ENTITY] contended that the dying declaration Ex.PW8/A does not attribute any specific role to the appellant/[ENTITY] and the only role specified in Ex.PW8/A is that she accompanied [ENTITY] to the scene of occurrence. It is further contended that the prosecution has failed to prove that appellant/[ENTITY] was having any ill-will or was inimical towards the deceased. It is further contended that first written dying declaration of the deceased incorporated in her MLC Ex.PW20/A proved by PW20 Dr. [ENTITY] shows that the deceased sustained burn injuries due to bursting of stove and the same has not been challenged by the prosecution. The burn injuries caused to the deceased from stove burst mentioned in Ex.PW20/A is corroborated with the oral dying declaration made by deceased to her parents PW6 Smt. [ENTITY] and PW7 [ENTITY] and PW2 [ENTITY], the only independent witness.
8. On the other hand, Mr. [ENTITY], Learned counsel for the State argued that the dying declaration Ex.PW-8/A was recorded by PW8 [ENTITY], SDM after the doctor had declared the deceased to be fit for statement; that in the dying declaration, the name of the appellant/[ENTITY] has been mentioned and the deceased narrated the events which took place on the day of the incident; that the motive of the appellants in committing the murder also stands proved as they wanted to usurp Rs. 50,000/- of the deceased and entered into criminal conspiracy to murder her; that recovery of articles seized from the spot have been duly proved by the prosecution.
9. We have heard the rival contentions of both the parties.
10. The case of the prosecution rests on the dying declarations of the deceased. We deem it necessary to narrate the principles governing dying declaration, laid down by the Apex Court in various judgments. In [PRECEDENT], the Hon'ble Supreme Court has observed that:-
"The dying declaration is undoubtedly admissible under [SECTION] of the [ACT] and not being the statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspections to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because the person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. Once a court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration."
11. Though, in law there is no bar in acting on a part of the dying declaration, it has to pass the test of reliability. [SECTION] of the [ACT] is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination it is not creditworthy. A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration if found reliable can form the base of conviction.
12. In the present case, there is one oral dying declaration made by the deceased to her parents PW6 Smt. [ENTITY] and PW7 [ENTITY], the only independent witness. Apart from the oral dying declaration, there are two other written dying declarations being Ex.PW20/A the statement of the deceased recorded by PW20 Dr. [ENTITY] and Ex.PW8/A which was recorded by PW8 [ENTITY], SDM, which formed the basis for registering the present criminal case.
13. It is well settled if there are more dying declarations than one, then the Court has also to scrutinise all the dying declarations to find out if each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same are found reliable on a careful scrutiny, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any inducement, such a dying declaration, by itself, can be sufficient for recording a conviction even without looking for any corroboration. In [PRECEDENT], Hon'ble Apex Court has held :
" where there are more than one dying declarations made by the deceased, extra care has to be taken to see as to which dying declaration inspires confidence. The one which inspires confidence has to be accepted. If none inspires confidence, each has to be discarded."
14. It is true that the conviction can be based on the dying declaration itself provided it is satisfactory and reliable and if there are any infirmities of such nature warranting further assurance, then the Courts look for further corroboration. It is also well settled that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declarations and if some inconsistencies are noticed between one and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances as observed in [PRECEDENT], the Apex court has held as follows:-
"It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests in a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the Court has to examine the same in the light of the various surrounding facts and circumstances."
Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.
In [PRECEDENT], the Apex Court observed that "Of course, if the plurality of dying declarations could be held to be trustworthy and reliable they have to be accepted".
15. In the light of the above principles, we will consider the dying declarations in the instant case and will ascertain the truth with reference to all dying declarations made by deceased [ENTITY].
16. PW2 [ENTITY], the only independent witness deposed :
"About 6-7 months back, [ENTITY] had burnt at about 6:30/7:00 p.m I along with [ENTITY], [ENTITY] and [ENTITY] were sitting out the house of [ENTITY]. [ENTITY] came out in the gali while in flames by saying "Bachao Bhachao". We extinguished the fire. On enquires, she told that she had received burn injuries on stove."
17. PW6 [ENTITY], mother of the deceased deposed :
"I made inquiries from my daughter as to how she has received burn injuries. She told me that she had received burn injuries from burning stove."
18. PW7 [ENTITY], father of deceased also appeared in the witness box and deposed on the same lines as of PW6 [ENTITY].
19. The first dying declaration was given by deceased to PW20 Dr. [ENTITY], who reproduced the same in writing and proved the same as Ex.PW20/A. PW20 Dr. [ENTITY] deposed:
"On 01.07.1997, I was posted in Safdarjung Hospital and was working as Sr. Resident. On that day, I had medically examined [ENTITY] in the hospital at about 9:15 p.m. The patient has given the history of sustaining burns while cooking food on kerosene stove. And suddenly, the stove burst and she sustained the burns. On examining [ENTITY], I found that her condition was critical but she was conscious. Her pulse rate was 120 per minutes regular. Respiratory rate was 22 per minute. She was dehydrated. She was having 80% burns on her body. On 01.07.1997 at about 11:20 p.m., after examining [ENTITY], I had also declared her fit for giving statement at 11:20 p.m., on the application moved by the IO, vide my endorsement Ex.PW20/B, which also bears my signatures at point A.
20. Deceased gave her second written dying declaration before PW8 [ENTITY], which is reproduced as under:
"Statement of [ENTITY] W/o [ENTITY] R/o 2 Block, New Roshan Pura, aged about 21 years.
I along with my husband live at aforesaid address. This is my second marriage and was solemnized in March, 1997. First marriage was solemnized about 3 years back with [ENTITY] resident of Naya Baans, Delhi. I got legal divorce after three years litigation and I received Rs.50,000/- This amount of Rs.50,000/- was taken by my maternal grandfather [ENTITY] S/o [ENTITY] resident of Bapdoda, Haryana. I was demanding the said amount after my second marriage, which he refused to return and threatened me to kill. On 01.07.1997 at about 7:00 p.m. my maternal grandfather S/o [ENTITY], my maternal uncle [ENTITY] S/o [ENTITY] resident of Gurgaon, [ENTITY] S/o Not known (Father-in-law) and my mother-in- law [ENTITY] W/o [ENTITY] came to my house, at that time I was sitting, my maternal grandfather took a container of 5 ltr. which was containing 2 ltrs. of kerosene oil and poured on me and set fire with match stick. At that time, I was wearing a terricot Salwar Kameez. I started burning and all four jumped the small height walls and ran away. At that time my husband [ENTITY] was not at home. I started running but fell down in between and thereafter found myself in the hospital. All above four persons did the said act for not returning the amount of Rs.50,000/-. Legal action be taken against them.
Statement heard and found it correct."
21. The first oral statement was given by deceased to PW2 [ENTITY] that she got burnt injuries due to burst of stove. The similar oral statement was given by deceased to her parents PW6 Smt. [ENTITY] and PW7 [ENTITY]. The statement Ex.20/A given by deceased before PW20 Dr. [ENTITY] was reproduced into writing which is unchallenged by the prosecution. Apart from this, the deceased made one more statement Ex.PW8/A before the Sub Divisional Magistrate. The Trial Court has relied on the dying declaration Ex.8/A ignoring the inconsistencies when compared to the other dying declarations. If we examine all these dying declarations one by one, we notice glaring inconsistencies. In oral dying declarations and the earliest dying declaration Ex.PW20/A reproduced by PW20 Dr. [ENTITY] in writing, the deceased stated that she caught on fire while preparing food. When she gave her statement Ex.8/A narrated a totally different and inconsistent version. She stated that I was sitting, my maternal grandfather took a container of 5 ltr. which was containing 2 ltrs. of kerosene oil and poured on me and set fire with match stick. Postmortem report Ex.PW20/A shows the injuries as "Burn throughout body except face, both legs, gluteal region, 80% deep burn." In case, kerosene is poured from the top, the hair, head scalp and face of the deceased would have been burnt but the post-mortem report Ex.PW20/A does not suggest anything about the burn injuries on these areas. Under these circumstances, the possibility of tutoring cannot be ruled out.
Further, the version given by her in Ex.8/A, does not at all appear to be probable. She has stated that the container was containing approximately 2 litres of kerosene oil but when the police went to the place of occurrence and seized the said container, it was containing approximately the same quantity. Thus it can be seen that there are glaring inconsistencies in these dying declarations.
22. A dying declaration should satisfy all the necessary tests and one such important test is that if there is more than one dying declaration, they should be consistent particularly in material particulars.
23. Under these circumstances, the irresistible conclusion is that the dying declarations are inconsistent and in such a situation one cannot pick a statement, Ex.8/A and base the conviction of the appellant on the sole basis of such dying declaration. The Courts have cautioned that in view of the fact that the maker of the statement cannot be cross-examined, the dying declaration should be carefully scrutinised. In the instant case the deceased was wavering for the reasons best known to her.
The inconsistencies among the oral as well as written dying declarations Ex.PW20/A and Ex.PW8/A, are enough to manifest the same. Having given our earnest consideration, we feel that under these circumstances, it is highly unsafe to convict the appellant/[ENTITY] on the sole basis of the dying declaration Ex.8/A recorded by the Sub Divisional Magistrate. Moreso, the prosecution has failed to assign any role to the appellant/[ENTITY] except her presence.
24. In the result, the appeal succeeds. The impugned order passed by the learned Additional Sessions Judge convicting and sentencing the appellant/[ENTITY] under Section [SECTION] of the [ACT] is set aside. The appellant/[ENTITY] is acquitted of the charges against her. Bail bond is cancelled.
[ENTITY], J.
[ENTITY], J.
APRIL 15, 2015 gr