Crl. Appeal no. 431 of 2009 Page 1 of 22 Reportable * IN THE HIGH COURT OF DELHI AT NEW DELHI {CRIMINAL APPEAL No. 431 OF 2009} Judgment reserved on: 11.5.2010 % Judgment delivered on: 31.5.2010 ABHISHEK SHARMA . . . Appellant THROUGH Mr. K.T. S. Tulsi, Sr. Advocate with Mr. Dil Jit Singh, Advocate VERSUS STATE . . .Respondent THROUGH Mr. Lovkesh Sawhney, APP CORAM :- THE HON’BLE MR. JUSTICE A.K. SIKRI THE HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. Having been convicted for the murder of Mandeep Kaur (hereinafter referred to as „the deceased‟) and given life imprisonment for the said offence under Section 302 of Indian Penal Code by the learned Additional Sessions Judge, Delhi vide his judgment dated 30th April, 2009, the appellant has come up to this Court and assails the aforesaid judgment and sentence by means of the present appeal. 2. The appellant and the deceased were colleagues and were working in M/s Sai Telecom, B-304, Ground Floor, Saraswati Vihar, Delhi. The appellant was Customer Care Executive whereas, the designation of the deceased was Team Leader/Operations Manager. Their working hours in Crl. Appeal no. 431 of 2009 Page 2 of 22 the office were 3.30 p.m. to 12.00 mid night. On the fateful night i.e. in the intervening night of 20th - 21st September, 2007 the deceased was found in flames near Queen Marry School, Model Town. PCR Van rushed her to LNJP Hospital and thereafter shifted to Maharaja Agarsen Hospital. However, she could not survive and ultimately passed away on 3rd October, 2007. 3. The appellant was accused of her murder. The prosecution version in this behalf is that while working in M/s Sai Telecom both of them developed friendship. The appellant often used to drop her in his car at her residence after duty hours. On the fateful night, both of them had left their office at about 12.15-12.30 am in the car of the appellant. The appellant was allegedly extending threats to the deceased for the last few days as he suspected her to be in love with her company boss/employer whereas he wanted her to love him. On that night, the appellant did not drop her at her residence and took her near Queen Marry School, Model Town,-III, Delhi. After parking the car, the appellant got down and also made her to come out of the car. Thereafter, he brought out a bottle containing oil and poured oil on her body saying that she did not love him and instead was loving her boss. They quarreled with each other on this issue and in the process the appellant set her on fire. While she was in flames, a PCR van reached on the spot. The accused fled away. The PCR van rushed the deceased to LNJP Hospital. On the way to hospital, deceased told SI Anoop Singh (PW-16) that she was set ablaze by the appellant. 4. The information regarding this incident was recorded in the Police Station Model Town at about 1.55 a.m. vide DD no. 8A wherein it was stated that Mandeep Kaur (deceased) who was working in a Call Centre had been set on fire by her friend. This information was passed on to SI Crl. Appeal no. 431 of 2009 Page 3 of 22 Balwant Singh for necessary action. He went to LNJP Hospital alongwith Constable Paramjit Singh and obtained her MLC and also recorded her statement. On the basis of her statement, FIR under Section 307 IPC was registered. SI Balwant Singh then went to the spot, prepared site plan at the instance of ASI Anoop Singh of PCR. During investigation, the appellant was arrested at about 8.30 p.m. on 21st September, 2007 from Model Town. His Alto car was also seized. On completion of investigation, chargesheet was filed and charge under Section 302 IPC was framed on 6.2.2008. 5. Since the appellant pleaded not guilty and claimed trial, the prosecution led its evidence. The prosecution examined as many as twenty five witnesses. Thereafter, statement of the appellant under Section 313 Cr.P.C. was recorded. He chose not to lead any defence evidence. Arguments were heard by the learned Additional Sessions Judge, resulting into giving the judgment holding the appellant guilty of committing the offence under Section 302 IPC and sentencing him to undergo life imprisonment. 6. Learned Additional Sessions Judge has discussed the deposition of almost every witness and has analyzed the same in the light of cross- examination conducted by the defence. It is not necessary to repeat that exercise all over again. Our purpose would be served by referring to the important witnesses and material on record, on the basis of which the learned Addl. Sessions Judge has concluded that the appellant is responsible for the murder of the deceased. 7. The learned Trial Court has taken note of the fact that there were as many as four statements of the deceased which she made before her death which assume the colour of dying declarations:- Crl. Appeal no. 431 of 2009 Page 4 of 22 (a) First dying declaration was purportedly made to PW-16 SI Anoop Singh of PCR Van. He has deposed to the effect that he was posted as Incharge PCR Van Commander 63 and was on duty from 8.00 p.m. to 8.00 am. in the intervening night of 20th and 21st September, 2007 and at about 1.00 a.m. after taking permission from the headquarter for taking tea he alongwith his colleagues was going to Azadpur via Prince road and when they reached near Queen Marry School on the Prince Road, they saw a girl on fire who was crying “bacho, bacho”; they stopped the van and put off the fire on the body of the girl with the help of a blanket which was with them in the van; they took her to LNJP Hospital and got her admitted there and reported the matter to Police Station Model Town. He further deposed that on enquiry by him the girl had told her name as Mandeep Kaur resident of Shalimar Bagh and further told that one of her colleague Abhishek Sharma who was working with her at the Call Centre had set her on fire by pouring oil on her body. He was called by the Investigating Officer and the site plan was prepared at his instance and his statement was also recorded. (b) Second dying declaration is recorded in the MLC which was prepared by PW-18/Dr. Raj and is proved as PW-8/A. He examined the deceased when she was brought to LNJP Hospital in burnt condition. PW-8 Dr S.N.Basna has also supported the version of PW-18 stating that the patient was examined by Dr. Raj, Jr. Resident (PW-8) under his supervision. As per this MLC, the deceased was examined at about 2.15 a.m. and it records:- “Alleged h/o burn at front of Queen Marry School, North Land, Model Town, Delhi at around 1.40 am. dated 21.9.2007 as told by patient by Abhishek”. (c) As per the findings of the learned Trial Court, the deceased had made a statement (Ex.PW-17/A) before SI Balwant Singh. In this statement again accused appellant is Crl. Appeal no. 431 of 2009 Page 5 of 22 accused of pouring oil and lighting fire by matchstick, as a result of which, her clothes got fired. In this statement, it is also mentioned that appellant was threatening to kill her for the last many days. (d) As per the prosecution, the deceased had also made a declaration in the form of narration of incident to her mother PW-5 Smt. Jasmer Kaur which is on the same lines and is also treated as dying declaration. 8. The learned Trial Court has discussed the veracity of dying declarations in detail in the light of the objections of the defence challenging these dying declarations. The learned Addl. Sessions Judge did not agree with any of the contentions of the appellant‟s counsel and held that the dying declarations were creditworthy and that there were no material contradictions or inconsistencies therein. They were made voluntary and in a fit mental condition, without being influenced by others. The learned Trial Court has also recorded that PW-6 Yasin Nagpal, employer of the deceased and the appellant had in his deposition sufficiently established that the deceased was last seen in the company of the appellant when they left the office at 12.30 a.m. on 21st September, 2007 in the car of the appellant. Further, PW-16 SI Anoop Singh found the deceased in burning condition at about 1.00 a.m. This shows that there was not much time gap when the deceased was last seen with the appellant when they left the office and when she ( the deceased) was found in burning condition and these circumstances established from the evidence on record, leads to the conclusion that it was the appellant who is the author of the crime. In this backdrop, the explanation of the appellant in his statement recorded under Section 313 Cr.P.C. that he had left the office alone at 12.00 midnight and at that time, deceased was still in the office who used to take Cab for going to her Crl. Appeal no. 431 of 2009 Page 6 of 22 residence is not believed by the learned Addl. Sessions Judge, holding the appellant guilty of the offence. 9. Learned Senior Counsel appearing for the appellant spearheaded frontal and scathing attack at the approach adopted by the learned Trial Court in the manner the evidence is analysed and dying declarations accepted as reliable. His submission was that each of the four dying declarations inherently improbable and self contradictory. On the one hand, the motive for murder is said to be that the deceased was having an affair with her boss on account of which the appellant had given several threats to the deceased, yet the evidence suggests that every day the deceased travelled with the appellant from the office to her residence, in his car and did not avail of the company‟s transport. He also submitted that it was inherently improbable that a person who had suffered 25% burn injuries would still be in a position to make detailed statements. Placing heavy reliance on Modi‟s Jurisprudence, (23rd Edition), he pointed out that the said book classifies that a person with 25% burns as 3rd degree burns in which there is destruction of cuticle and part of the true skin. There is exposure of nerve endings giving rise to much pain. Further opinion of Modi is that there is marked fluid loss resulting in shock when over 20% of the body is affected…severe pain and marked protein fluid loss resulting in shock and fright. Furthermore, it states that burns caused by kerosene oil are usually very severe…water loss may amount to 60%. He emphasized that as per the experts opinion in the given condition, there would be acute respiratory distress syndrome, severe trauma, hemorrhage shock and sepsis. It was fervent submissions that in this condition it was not possible for the deceased to make any such statements (treated as dying declarations), that too, four successive declarations. He thus made a passionate plea that these Crl. Appeal no. 431 of 2009 Page 7 of 22 dying declarations should be ignored. Another reason for glossing over these dying declarations, as advanced by the learned Senior Counsel, was that the procedural requirements while recording these statements of the deceased were not fulfilled. In this behalf he submitted that the rules with regard to the recording of Dying Declaration are contained in Chapter 13-A of the Punjab & Haryana High Court Rules, 1966. Rule 2 expressly requires the confession to be recorded by the Judicial Magistrate when the victim is in danger of dying. Rule 4 requires the questions & answers to be taken down and not merely their substance. Under Rule 6, the medical or police officers is permitted to record the dying declarations only if death is imminent in which case it must note down as to why it was not considered expedient to approach the Judicial Magistrate for recording of the dying declaration. It was argued that the aforesaid rules have been observed in their complete breach. None of the dying declarations i.e. Exhibits PW-1/A, 8/A, 17/A and statement of PW-5 contain any note as to why it was not considered expedient to apply to the Judicial Magistrate for recording the dying declaration, nor do they contain opinion that at the time of recording the statements, death was imminent. There was thus, a total breach of requirement of Rule 6. Further since none of the three declarations contain the questions and answers nor the actual words of the declarant have been taken down instead of the substance, the exhibits are in complete breach of Rule 4. Similarly, no evidence was led to satisfy the requirement of Rule 2. There was no evidence that the IO either applied to the CJM for recording of the dying declaration or that there was any material to show that at the time of recording the statement the victim was in the danger of dying. In this regard, he referred to and relied upon the following decisions:- (i) State Vs. Lakshman Kumar, (1985) 4 SCC 476 Crl. Appeal no. 431 of 2009 Page 8 of 22 (ii) State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600 (Pr. 157) (iii) Surinder Paul Vs. State of Punjab 1997 Cr. LJ 1745 (Punjab & Haryana High Court)(Pr.7) (iv) Madbhu Bala Vs. State (Delhi Administration) 1990 Crl LJ 790 (Pr.11) 10. It would be advisable to reconstruct the scene/occurrence in the light of the prosecution evidence which has come on record, before we examine the aforesaid submissions of the learned Senior Counsel. Incident relates to the intervening night between 20th - 21st September, 2007. As per PW-6, employer of the appellant and the deceased, they both left the office together at about 12.00 to 12.30 a.m. on 21st September, 2007 in the car of the appellant. Thus, as per his deposition, he had seen both of them leaving the office together at the same time. The deceased was found inferno at 1.00 a.m. by PW-16 SI Anoop Singh, Ct. Subodh Kumar (Driver) and Ct. Ram Niwas (Gunman). He saw her crying „bacho bacho‟. He was in a PCR Van. He stopped the van and put off the fire on the body of the deceased with the help of a blanket that he was carrying in the van. They took the deceased to LNJP Hospital and got her admitted there. At that time DD no. 8A was received at PS Model Town by SI Balwant Singh. The time of admission in the hospital is 1.55 a.m. The Doctor who examined her in the first instance and prepared the MLC has mentioned the time of preparation of MLC as 2.15 a.m. PW-17 SI Balwant Singh states that on receiving DD no. 8A, he went to LJPN Hospital alongwith Constable Paramjit Singh and obtained MLC of the injured Mandeep Kaur and recorded her statement Ex. PW- 17/A which was signed by her at point „A‟. On the basis of this statement, FIR was registered at 3.30 a.m. under Section 307 of Indian Penal Code. Crl. Appeal no. 431 of 2009 Page 9 of 22 11. The first and foremost aspect which needs discussion is as to whether dying declarations made by the deceased are worthy of reliance. Before we analyze these declarations, we deem it proper to discuss the legal principles relating to dying declarations which are to be kept in mind. 12. In Panneerselvam Vs. State of Tamil Nadu, (SC) 2008 (3) RCR(Criminal) 54, it was held as under:- “7. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. 8. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben Vs. State of Gujarat, 1992 (3) RCR (Criminal) 552; (AIR 1992 SC 1817):- (i) There is neither rule of law nor of prudence that dying declaration ca not be acted upon without corroboration. (See Mannu Raja & Anrs Vs. The State of Madhya Pradesh (1976) 2 SCR 764.) Crl. Appeal no. 431 of 2009 Page 10 of 22 (ii) The court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh Vs. Ram Saga Yadav and Ors., 1985 (1) RCR (Crl.) 600; (AIR 1985 SC 416) and Ramvati Devi Vs. State of Bihar (AIR 1983 Supreme Court 164). (iii) Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramacharandra Reddy and Anr. Vs. The Public Prosecutor (AIR 1976 SC 1994). (iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg. Vs. State of Madhya Pradesh (1974 (4) SCC 264) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. ( See Kaka Singh Vs. State of M.P. (AIR 1982 SC 1021) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (See Ram Manorath and Ors. Vs. State of U.P. (1981 (2) SCC 654). (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.(See State of Maharashtra Vs. Krishnamurthi Laxmipati Naidu (AIR 1981 Supreme Court 617). (viii) 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. ( See Surajdeo Oza and Ors. Vs. State of Bihar (AIR 1979 SC 1505). (ix ) 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 eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanahau Ram and Anr. Vs. State of Madhya Pradesh (AIR 1988 SC 912). Crl. Appeal no. 431 of 2009 Page 11 of 22 (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon ( See State of U.P. Vs. Madan Mohan and Ors. ( AIR 1989 SC 1519). (xi) Where there is more than one statement in the nature of dying declaration, one 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. (See Mohan Lal Gangaram Gehani Vs. State of Maharashtra (AIR 1982 SC 839). 13. In Anoop Singh Vs. State of M.P., (SC) 2008 (3) RCR (Crl.) 602: 2008 (4) R.A.J. 343: 2008 (5) S.C.C. 468, it was held that:- “13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declaration but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. 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 (See.: Kandula Bala Subramanyam Vs. State of A.P. (1993) 2 SCC 684). However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely whether they are material or not. While scrutinizing the contents of carious dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.” 14. It thus follows that the conviction can be based solely on dying declaration. At the same time, one has to tread a cautionary path and ensure that all the circumstances which may make such dying declaration a suspect, stand eliminated before dying declaration is acted upon. The assignment of the Court, in the process, is to arrive at a conclusion that dying declaration is of such a nature which inspires full confidence of the Court in its truthfulness Crl. Appeal no. 431 of 2009 Page 12 of 22 and correctness making it reliable. For this purpose, the Court is required to see that following circumstances do not exist:- (a) statement was as a result of tutoring or prompting; (b) it is not a product of imagination which means that it is to be ensured that deceased was in a fit statement of mind and hand ample opportunity and identify the culprit; (c) if there are more than one dying declarations, there is a consistency in the same and they do not suffer from material contradictions; (d) It is to be ensured that the statement which is projected by the prosecution as dying declaration was made by the deceased himself/herself; the same was read over to him/her who accepted its correctness before appending his/her signatures and/or thumb impressions. 15. If there are weighty circumstances which would put a question mark on the veracity on dying declaration, then the dying declaration is to be discarded. Thus, the Court has to undertake strict scrutiny to find out whether it is reliable or not. Once the Court forms the opinion that it is reliable and free from any blemish, conviction can be based solely on such dying declaration without any corroboration. There is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. Of course, if there is other evidence which corroborates the dying declaration, that circumstance can be seen while scrutinizing the dying declaration and making up the mind whether such dying declaration is reliable or not. The dying declaration must be of a stellar quality. Two facts have