A. Nos. 311/2011 & 309/2011The appellants Parmanand and Mithilesh are the parents-in-law of Bobby (the deceased).A Nos.311/2011 & 309/2011 Page 1 of 192. Facts of the case leading to the filing of charge sheet under Section 173 Code of Criminal Procedure against the appellants and two others namely Kamlesh (husband of the deceased) and Santosh (Kamleshs brother) can be extracted from the opening para of the judgment:-"On 28.03.08 at about 11:50 pm, DD No.47 was registered at PP Vijay Vihar, PS Rohini.As per such DD, one lady had set herself on fire.Such information was received from Police Control Room and SI Mahabir Singh and Ct.Rajesh were rushed to the spot.They both reached the spot i.e. House NO.J-42, Vijay Vihar.HC Ravidutt and Ct.Satpal were already present there.They found smell of kerosene, some burnt clothes, one empty bottle, few match-sticks and water on the floor of room where the occurrence had taken place and learnt that PCR Van had already removed the victim to BSA Hospital.Executive Magistrate Sh.Sukhbir Singh was telephonically intimated and HC Ravidutt and Ct.Satpal were left at the spot for preservation of the spot and SI Mahabir Singh and Ct.Rajesh reached at BSA Hospital.Name of injured was found to be Bobby (wife of accused Kamlesh).As per MLC, victim had told the doctor that kerosene oil was poured on her by her father-in-law and mother-in-law and then she was put on fire and her husband was not present at home during the incident.Bobby was declared fit for statement.Executive Magistrate reached the hospital and dying declaration of Bobby was recorded in which she claimed that she was married two years back and her parents-in-law wanted her husband Kamlesh to marry someone else.She claimed that at about 5 pm that evening, her husband left the house and before such departure, her husband and her parents-in-law had quarreled with her.She then stated that between 11:15 pm and 11:30 pm, she was in her room and was about to go to sleep, when her parents-in-law entered her room and her mother-in-law poured kerosene oil on her and her father-in- law set her ablaze with a match-stick.She also stated that she shouted for help and some neighbours collected and tried to douse the fire by pouring water on her and police Crl.A Nos.311/2011 & 309/2011 Page 2 of 19 reached there and took her to the hospital.She, however, succumbed to her injuries.He deposed that on 16.03.2008 (the date has been wrongly given by this witness) at about 11:45 p.m. he was on his way back to his house after selling vegetables.When he reached near the street he saw a crowd.On inquiry he was informed by public persons that Bobby (daughter of Sadanand) was burnt by her in-laws and was removed to the hospital.He gave this information to Sadanand.PW-6 Sadanand, apart from deposing about the demands of dowry and the harassment meted out to Bobby by her husband and the appellants stated that on 28.03.2008 at 12/12:30 a.m. in the night while he was on his way back to his house from weekly bazaar, he met Raja Ram (PW-4).Raja Ram informed him that his daughter had been set ablaze.He (PW-6) immediately left his rickshaw at his house and went to the matrimonial home of Bobby.He found a crowd around the house.On inquiry he was informed that his daughter had already been removed to the hospital by a PCR van.He went to PP Vijay Vihar and was informed that his daughter had been taken to Baba Saheb Ambedkar (BSA) hospital.His daughter told him that " Ye Sab Milkar Mujhe Jala Diyan Hai".The deceased was shifted to Safdarjung hospital where she succumbed to her burn injuries on the next morning.He proved statement Ex.PW-9 Dr. Sarvesh Tandon, Associate Professor, Forensic Medicine, Safdarjung hospital, conducted autopsy on the dead body of Bobby on 30.03.2001 and proved his report Ex.PW-9/A. On external examination he found superficial to deep burns all over the body except lower abdomen and external genital area.9. PW-10 Dr. Raj Mohan Trivedi, Chief Medical Officer, BSA hospital is the doctor who initially attended to the deceased on 29.03.2008 at 12:15 a.m. He testified that the patient had disclosed that her father-in-law and mother-in-law had poured kerosene oil on her and then put her on fire with a match-stick.She also informed the doctor that her husband was not present at home at the time of the incident.PW-10 testified that on examination, the patient (deceased) was found to be conscious, oriented and crying.Her blood pressure could not be recorded due to burns present all over the body.Her pulse was found not palpable.Smell of kerosene oil was present on the body.He gave the percentage of burns to be about 95 per cent.He proved the MLC Ex.PW-10/A.He gave the details of the treatment given to the deceased.He gave the area of burns to be about 90 per cent.Pulse of the patient was found by him to be feeble.He deposed about the Crl.A Nos.311/2011 & 309/2011 Page 4 of 19 various injections i.e TT, IM Stat, Tramadol, I.V. etc. administered to the deceased.He deposed that the patient was cleaned and dressed with an ointment, silver sulpha diazin.The patient was then referred to Safdarjung hospital for further management.He proved his endorsement at point Y to Y on MLC marked as Ex.PW-10/A.A Nos.311/2011 & 309/2011 Page 4 of 19PW-15 Dr. Jatinder was working as Junior Resident in Safdarjung hospital.He treated the patient when she was admitted in Safdarjung hospital.Raj Mohan Trivedi.He then deposed about recording of the statement of Sadanand after the death of Bobby and after registration of this case.PW-23 SI Mahabir Singh deposed that on 28.03.2008 on receipt of DD No.47, (Ex.PW-14/A) he reached the spot i.e. J-42 Vijay Vihar, Phase-I along with constable Rajesh.Head constable Ravidutt and constable Satpal were already present there.He was informed that the injured had already been removed to BSA hospital.He testified that there was a smell of kerosene coming from the room of the deceased on the ground floor, burnt match sticks, match box and some burnt pieces of cloth were also lying in the room.Some water was found on the floor.He deputed HC Ravidutt and Ct.Satpal to remain present at the spot.He informed the Executive Magistrate Mr.Sukhbir Singh (PW-16) about it and requested him to reach the hospital.He also reached BSA hospital and collected the MLC of Bobby.PW-16 also reached the hospital who consulted the doctor about the fitness of the injured to make a statement.The statement Crl.He got the spot inspected by the crime team; photographs Ex. PW2/1 to 6 were taken.He prepared the site plan Ex.PW-23/C, seized various articles from the spot and sealed them with a seal of MS.When cross examined, he deposed that he wanted to see the opinion of the surgeon before the patient could be referred to Safdarjung hospital.To the same effect is the testimony of PW-11 Dr. Nitin Lashkary.He deposed that initially the patient was examined by Dr.Raj Mohan Trivedi (PW-10).The pulse of the deceased, by the time he examined her and made a note on the MLC, had become feeble from not palpable.Thus it is clear that the patient was examined and managed by a team of doctors and not examined by any particular doctor.A Nos.311/2011 & 309/2011 Page 10 of 19Of course PW-4 gave information to PW-6 about the deceased sustaining burn injuries and her removal to the hospital.Therefore, after leaving his rickshaw at his house PW-6 proceeded to PP Vijay Vihar through the place of incident.He came to know only at the police post that Bobby was removed to BSA hospital by the PCR van.Thus even if PW-6 had hurried and made his best efforts it would have been difficult for him to have reached BSA hospital before 1:30 a.m.It is argued by the learned counsel for the appellants that PW-23 SI Mahabir has stated in his cross-examination that he reached the hospital at about 12:30 a.m. and collected the MLC within ten minutes which was retained by him.The MLC contains signatures of PW-6 regarding the receipt of articles (Jewellery) by Sadanand which shows that Sadanand was present in the hospital by 12:40 a.m.This contention raised on behalf of the appellants is misconceived.As per the endorsement made at the top of the MLC Ex.G.P. MITTAL, J.They impugn the judgment and order dated 18.12.2010 whereby the appellants were convicted for the offence punishable under Crl.A Nos.311/2011 & 309/2011 Page 1 of 19 Section 302/34 of the Indian Penal Code (IPC) and were sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each.In default of payment of fine they were sentenced to undergo rigorous imprisonment for a further period of six months each.Case was registered u/s 498A/302/120B IPC."A Nos.311/2011 & 309/2011 Page 2 of 19A Nos.311/2011 & 309/2011 Page 3 of 19On reaching the hospital he met the SDM.The SDM informed him that he had already recorded her (the deceased) statement and that he could meet her.PW-6/A made by him to the SDM.He deposed that the deceased was declared dead at about 7.45 a.m. He proved the death report as Ex.PW-15/B.PW-16 Mr.Sukhbir Singh Executive Magistrate of the area deposed that on receipt of the message regarding the admission of a lady with burn injuries in BSA hospital, he reached there.He obtained the fitness certificate from Dr.Raj Mohan Trivedi and recorded statement Ex.PW16/A of the deceased.He obtained endorsement on Ex.PW-10/B of Dr.A Nos.311/2011 & 309/2011 Page 5 of 19 recorded by the Executive Magistrate was marked to him (PW-23) for further inquiry by the SHO.He made an endorsement on Ex.PW-23/A on the basis of which the present case was registered.He deposed that on receipt of the information of death of Bobby in the morning of 29.03.2008, vide DD No. 13, further investigation of the case was entrusted to Inspector Raj Singh.Inspector Raj Singh PW-22, second IO of the case corroborated the testimony of PW-23 SI Mahabir Singh.He deposed about the arrest of the appellants and recorded statement of Parmanand, Raj Kumar and other family members.A Nos.311/2011 & 309/2011 Page 5 of 19On close of prosecution evidence, the appellants were examined under Section 313 of the Code of Criminal Procedure to enable them to explain the incriminating evidence which has appeared against them.The appellants were completely silent as to where they were at the time of the incident.Admittedly immediately after the incident they did not accompany the deceased to BSA hospital.The appellants took up the plea that the deceased was under depression as she was not able to conceive any child and, therefore, committed suicide.They denied that there was any demand of dowry, harassment or cruelty meted out to the deceased.They denied that they set Bobby on fire.They took up the plea that the dying declaration is false.She (Bobby) never made any dying declaration to Dr. Raj Mohan Trivedi.They, however, showed their ignorance if the statement (dying declaration Ex.PW-16/A) was recorded by PW-16 Executive Magistrate Sh.Sukhbir Singh (PW-16).They showed their willingness to produce defence evidence but did not produce any.Along with appellants, Kamlesh (deceased`s husband) and Santosh (Kamleshs brother) were also challaned by the police.Santosh was, Crl.A Nos.311/2011 & 309/2011 Page 6 of 19 however, discharged by order dated 01.06.2009 passed by the learned ASJ.Accused Kamlesh was acquitted by the impugned judgment on the ground that the deceased was completely silent about the allegation of harassment or cruelty for not meeting dowry demands.The learned ASJ held that had there been any such demand or harassment, the deceased would have spoken about the same.Thus the evidence of Sadanand PW-6 (father of the deceased) with regard to harassment and demand of dowry without corroboration from the dying declaration or any other evidence was disbelieved.A Nos.311/2011 & 309/2011 Page 6 of 19The dying declaration recorded on the MLC Ex.PW-10/A by PW-10 Dr. Raj Mohan Trivedi and Ex.PW-16/A by PW-16 Executive Magistrate Sukhbir Singh were held to be consistent, voluntarily, true and reliable by the learned ASJ.Thus relying upon the same the learned ASJ convicted the appellants under Section 302 read with Section 34 IPC and sentenced them as aforesaid.We have heard Mr.Shailesh Kumar learned counsel for the appellants and Mr. Jaideep Malik learned APP for the State and have perused the record.He recorded the history of the patient (the deceased) as under:"Allegedly father-in-law and mother-in-law of Bobby poured kerosene oil on her and then put her on fire with Crl.A Nos.311/2011 & 309/2011 Page 9 of 19Learned counsel for the appellants criticized the testimony of PW-10 on the ground that as per the MLC, the deceaseds BP was not recordable and her pulse was not palpable and thus it could not be said that the patient was fit to make the statement.He deposed that treatment of Bobby was given by a team of doctors consisting of two JRs and one SR Surgeon present in the Casualty.He added that the pulse and blood pressure were checked by him (PW-10) as well as by JRs.PW-10 stated that he was a coordinator in the emergency.He stated that when the patient was brought, she was examined by him and simultaneously the surgeon had also come and examined the patient.It has been urged by the learned counsel for the appellants that PW-6 Sadanand (father of the deceased) got the information about the incident from PW- 4 Raja Ram.PW-10/A by PW-10, Dr. Raj Mohan Trivedi small articles of jewellery were removed by PW-10 from the body of Bobby and handed over to the IO.These articles were not handed over by PW-10 to PW-6 Sadanand.A Nos.311/2011 & 309/2011 Page 11 of 19The alleged history of Bobby, the fitness certificate and removal of jewellery articles are all in the hand writing of PW-10 Dr. Raj Mohan Trivedi.Of course a suggestion was put to PW-10, PW-11, PW-9 and PW-16 that if the pulse is not palpable the patient cannot make any statement.This suggestion was refuted by each of the doctors.The certificate of fitness has been given by PW-10 Dr Raj Mohan Trivedi initially on the MLC Ex.PW-10/A and then on the statement Ex.PW-16/A at point Ex.PW-10/B.Though the pulse was initially recorded as not palpable but later it had improved to be feeble as per endorsement Y to Y on Ex.A Nos.311/2011 & 309/2011 Page 12 of 19Thus the dying declaration recorded Crl.A Nos.311/2011 & 309/2011 Page 13 of 19 by PW-10 shows that the deceased had informed PW-10 that she was set ablaze by her father-in-law and mother-in-law after pouring kerosene oil on her.A Nos.311/2011 & 309/2011 Page 13 of 19As stated above, the condition of the patient improved a little after she was administered certain injections etc. as senior resident recorded that the patient was oriented/obeying to verbal commands and the pulse was feeble.PW-16 Executive Magistrate Sukhbir Singh reached hospital at 1:00 a.m. on 29.03.2008 and recorded the statement Ex.A Nos.311/2011 & 309/2011 Page 14 of 19 injuries.We have gone through the MLC Ex.PW-10 Dr. Raj Mohan Trivedi stated in his examination-in-chief that he had declared the patient fit for statement by his endorsement (Ex.PW10/B).On the statement Ex.PW-16/A Dr. Raj Mohan Trivedi was subjected to a very lengthy cross-examination regarding the condition of the patient.PW-10 denied the suggestion that the deceased died due to cardiac arrest because at the time of her admission in BSA hospital her pulse was not palpable.PW-10 stated that if it was so, the deceased would have died in BSA hospital itself.A Nos.311/2011 & 309/2011 Page 14 of 19On the statement Ex.16/A , PW-10 made an endorsement that "patient was conscious and oriented all the time during the time above statement was taken".PW-16/A was recorded.PW-16/A of the deceased but the statement just runs into a half hand written page and is a brief statement.In State of Maharashtra v. Sanjay (supra) apart from the third dying declaration running into two typed pages, there were also variations in the three dying declarations and the third one giving minute details appeared to be manipulated.Here the two dying declarations are consistent.The first one made to Dr. Raj Mohan Trivedi is just a two line statement whereas the second statement made to the Executive Magistrate runs into hand written page.Both are consistent and the second one corroborates the first statement.again said, he was a government official)."A Nos.311/2011 & 309/2011 Page 16 of 19It has come in the evidence of PW-16 that the statement was recorded by a police officer on his dictation.PW-23 SI Mahabir Singh stated that he recorded the statement Ex.Thus PW- 10 was right when he stated that it was recorded by a person who was in police uniform.Of course a suggestion was given to PW-16 as also to PW-23 that the endorsement at point B of Ex.PW16/A was obtained from the Executive Magistrate later on but we are not inclined to believe the same.By endorsement at point B the statement was marked to SHO who immediately marked it to PW-23 SI Mahabir Singh for necessary action.The FIR was recorded on that very night at 2.00 a.m. It is not believable that without obtaining the endorsement of the Executive Magistrate PW- 23 SI Mahabir Singh would make a mention thereof in the rukka for recording the FIR.Otherwise also we do not find any reason to disbelieve the document Ex.PW-16/A was recorded by Executive Magistrate after obtaining the fitness certificate from PW-10 Dr. Raj Mohan Trivedi who was present throughout the recording of the statement of the deceased.Thus the statement Ex.PW-16/A is not only consistent and corroborative to the first statement given to the doctor at the time of admission and recorded on the MLC Ex.PW-10/A but it meets all the tests of it being properly recorded after the Magistrate was satisfied that the patient was fit to make the statement.The statement is not very long but it contains all the details as to how the appellants had poured kerosene oil on her and appellant Parmanand had lit the match stick and set her on fire.A Nos.311/2011 & 309/2011 Page 17 of 19It is pleaded by the learned counsel for the appellants that the deceased had suffered 95 per cent burns still the thumb impression obtained on the statement Ex.PW-16/A shows the ridges on the right thumb impression.Sukhbir Singh (PW-16).In our view the two dying declarations are true and voluntary.The first dying declaration was very spontaneous and was made to the doctor immediately at the time of admission by the deceased herself.The deceased could not even know the purpose of the doctor recording the history and, therefore, there was nothing which could have impelled the deceased to make a false statement.As stated earlier the first statement is corroborated by the Crl.A Nos.311/2011 & 309/2011 Page 18 of 19 second statement Ex.PW-16/A recorded by the Executive Magistrate.Under these circumstances we see no reason to reject the dying declaration recorded by PW-10 Dr. Raj Mohan Trivedi, on MLC marked as PW-10/A and second dying declaration Ex.PW-16/A recorded by PW-16 Executive Magistrate Sh.Sukhbir Singh.A Nos.311/2011 & 309/2011 Page 18 of 19The learned Additional Sessions Judge rightly convicted the appellants relying on the two dying declarations.

Sections cited: Section 302 in The Indian Penal Code, Section 34 in The Indian Penal Code