Crl.A.Nos.282/04 & 316/04 Page 1 of 31 IN THE HIGH COURT OF DELHI, AT NEW DELHI Crl.A.No.282/2004 Date of Pronouncement: 16th January, 2009 # Smt.Angoori Devi .... Petitioner Through : Mr.M.P. Raju and Ms.Mary Scaria and Mr.P.George Giri, Advocates Versus $ The State .... Respondent ^ Through : Ms.Fizani Husain, APP. AND Crl.A.No.316/2004 # Shri Parbhakar Gupta .... Petitioner Through : Mr.M.P. Raju and Ms.Mary Scaria and Mr.P.George Giri, Advocates Versus $ The State .... Respondent Ms.Fizani Husain, APP. CORAM: HON'BLE MR. JUSTICE B.N. CHATURVEDI HON'BLE MR. JUSTICE G.S.SISTANI 1.Whether reporters of local papers may be allowed to see the Judgment ? Yes 2.To be referred to the Reporter or not? Yes 3.Whether the judgment should be reported in the Digest? Yes G.S. SISTANI, J. 1 These two appeals have been filed against the Judgment dated 22.03.2004 and the Order of Sentence dated 23.03.2004, passed by the learned Additional Sessions Judge, Delhi in the Crl.A.Nos.282/04 & 316/04 Page 2 of 31 Session's case No. 146/2001, FIR No. 155/2001, sections 498- A/304-B/302/34 of the Indian Penal Code, 1860 (hereinafter, IPC) of Police Station Kalyanpuri. These two appeals were heard together and are accordingly, being disposed of by this common judgment. 2 The above said two appellants Angoori Devi w/o Sh. Shiv Sahai and Parbhakar s/o Sh. Shiv Sahai, both r/o 44, Gali No. 5, East Vinod Nagar, Delhi and also E-407, East Vinod Nagar, Delhi, have been held guilty by the Trial Court of the offence under section 302 read with section 34 of the IPC and sentenced to Rigorous Imprisonment (hereinafter, RI) for Life. Further the two appellants were directed to pay a fine of Rs. 1000/- each and in default where of, they were to undergo RI for a period of three (3) months each. 3 The facts of the case as noted by the learned Trial Court, briefly stated are. On 06.05.2001 Rajendra Pal, SI received DD No. 36-B to the effect that Mamta w/o Parbhakar Gupta, r/o A- 46, Gali no. 6, East Vinod Nagar, Delhi has been admitted to a Hospital with ninety five percent (95%) burns. The SI received MLC of Mamta from the hospital and was informed that Mamta had been declared unfit for statement. On inquiry when it was found that Mamta was married for about three years back, the SDM was informed about the incident. Thereafter, the learned SDM and ACP, Kalyanpuri reached the place of the incident, Crl.A.Nos.282/04 & 316/04 Page 3 of 31 took photographs and also seized a bottle containing kerosene oil, one kundi of the door and some burnt clothes. On 07.05.2001 the learned SDM recorded the statement of Mamta after she had been declared fit to give a statement. In her statement, Mamta stated that she was married to Parbhakar about three years back as per the Hindu Rites and that she has two children. Mamta further stated that her husband deals in supply of polythene bags. Mamta then stated that her husband used to harass her from the very beginning of their marriage and also used to raise suspicion on her for having illicit relations with another person. Mamta further stated that four days prior to the day of the incident, her mother in law, Smt. Angoori Devi and father-in-law Sh. Shiv Sahai had also come to their house and that on 06.05.2001 at about 1:15 p.m., her husband quarreled with her and asked her regarding her illicit relations with anyone and that she should call that person. Mamta stated that her husband also asked her to bring Rs. 5,000/- from her parents house and when she told her husband that she cannot do the same then her husband and her mother-in-law, Angoori Devi poured kerosene oil upon her, put the palla of her saree on the gas stove and then she was set on fire by her husband and mother-in-law and thereafter she was brought to the hospital. 4 Mamta died in the hospital on 13.05.2001 and thereafter post- Crl.A.Nos.282/04 & 316/04 Page 4 of 31 mortem examination was conducted on the dead body of Mamta and after the post-mortem examination, her dead body was given to her relatives and exhibits of the case were sent for FSL for expert opinion and the report was obtained and post completion of the investigation challan was filed against Parbhakar. 5 In support of its case, the prosecution examined twenty one (21) witnesses in all. It would be worthwhile to analyse the evidence of some of the material witnesses in detail. 6 PW-2, Kamal Dev Dogra, SDM, PS Preet Vihar, Delhi has stated that on 06.05.2001, he received information from SI, RP Kaushik of PS Kalyan Puri that one lady with burns was admitted to LRS hospital and was being shifted to GTB hospital. Thereafter the said SI, RP Kaushik went to House No. A-44, Gali No. 6, East Vinod Nagar and met the landlord, Nathu Ram, and the statement of Nathu Ram was recorded by SI RP Kaushik at the dictation of PW 2. Thereafter PW 2 directed the SI to seize the exhibits from the spot. PW 2, the learned SDM further deposed that thereafter he went to GTB hospital, but Mamta had been declared unfit for statement by the doctor vide an endorsement on the MLC of Mamta at point A. On 07.05.2001, he had again gone to GTB hospital, when at about 7.00 pm the doctor vide his endorsement on the MLC declared Mamta to be fit for statement, then PW 2 introduced himself to Crl.A.Nos.282/04 & 316/04 Page 5 of 31 her as the SDM and recorded the statement of Mamta in his own hand. The statement recorded by PW 2 is Ex. PW-2B and which bears his signatures at point BI and B2. Mamta put her left thumb mark at point B3 on the statement in his presence. The learned SDM also stated to have met Sh. Mahivir Narain Gupta and to have recorded his statement at Ex. PW2/C and which bears his signatures at point C-1. On the basis of statement of Smt. Mamta he made his endorsement Ex.PW 2/D and forwarded the same to the SHO concerned for taking appropriate action as per the law. During cross-examination the learned SDM deposed that no relative or the attendant of the deceased was present by her side in the burn ward when he reached there. 7 PW 4, Dr. Gaurav Aggarwal deposed that on 14.05.2001 he was posted at GTB hospital. On that day, dead body of Mamta along with inquest papers was received in the mortuary at 2:30 pm. The said doctor opined that the death of Mamta was due to septiceamia due to ninety six percent (96%) ante mortem deep to superficial infected burn wounds produced by flame. The doctor deposed that his report Ex PW4/A bears his signatures at point A1. 8 PW 7, Mehat Ram s/o late Sh. Ho Ram, r/o Milka Dairy Farm. A- 42, East Vinod Nagar, Delhi, deposed that he has been residing at the above address with his family members for the Crl.A.Nos.282/04 & 316/04 Page 6 of 31 past twenty three (23) years. He deposed that Nathu Ram was his neighbour and that two months back, the latter had given one of the rooms of his house on rent to Parbhakar Gupta. However he knew Parbhakar and his family members for the past three years, as they had been residing as a tenant in the same Gali in the house of one Ramesh. He further deposed that on 06.05.2001 he was present in his house and at about 2.00 pm “Prabhakar told in the gali that his wife Mamta had closed the door from inside and she was not opening the same and this was told to landlord Nathu Ram and his wife”. On this landlord Nathu Ram pushed the door open forcibly as a result of which latch of the door broke open and then he saw that Mamta was burning. Parbhakar extinguished the fire from her person by pouring water on her. Parbhakar put a cloth on Mamta and took her to hospital. PW7 further deposed that at that time Angoori Devi, mother of Parbhakar was not present there. Since the time Parbhakar had taken this room rent on rent, his parents were not residing there and they were residing in village. PW 7 further deposed that due to some reason Mamta had burnt herself. 9 PW 8, Smt. Shanti Devi w/o Nathu Ram, deposed that she had been residing at A-44, Gali No. 6, East Vinod Nagar, Delhi for the past twenty years (20) and that she had given one room of her house on rent to Parbhakar. PW 8 deposed that one month Crl.A.Nos.282/04 & 316/04 Page 7 of 31 prior to the incident Parbhakar had brought his wife Mamta and they both were residing in the same room. PW 8 deposed that she did not see any quarrel between them. They had two daughters, one and a half years old and the other was seven – eighth months old. PW 8 deposed that they used to keep both the doors closed from inside and used to exit from the outer door. 10 PW 8 further deposed that on 06.05.2001 at about 2‟o clock Parbhakar came to them and told her and Nathu Ram that his wife had closed the door of the room from inside and was not opening the same. On this, she and her husband went there and found that the latch of the door was bolted from inside. PW 8 thereafter deposed that she and her husband, both knocked at the door, but it was not opened. At this she opened the outer window of the room, peeped inside and saw smoke coming out from the room. Thereafter she and her husband along with Parbhakar and other neighbours went and forcibly pushed opened the door and where after they saw that Mamta was burning. Then all of them extinguished the fire from her person by pouring water on her. Parbhakar took her to LBS hospital. PW 8 also deposed that at that time she could not talk to Mamta. However at that time the gas stove was on and was put off by some neighbourer. 11 PW 9, Jawahar Singh Rawat, s/o Inder Singh Rawat, deposed Crl.A.Nos.282/04 & 316/04 Page 8 of 31 that he had been residing at A-44, Gali No. 6, East Vinod Nagar, Delhi for the past three years as a tenant. The said witness deposed that parents of Parbhakar were not residing there. They were residing in some village because they were never seen by him. PW 9 further deposed that Parbhakar had called his mother by giving a telephone call and that she came there on 07.05.2001. 12 PW 10, Smt. Chanderwati w/o Sh. Ramesh Chander r/o of A-81, Gali No. 6, Vinod Nagar, Delhi deposed that on 06.05.2001, at about 1:30 or 2:00 pm, she was present in the lane outside her house when Parbhakar came crying and told her that his wife had closed the door from inside and that she was not opening it. PW 10 deposed that thereafter, she went to A-44, where Sh. Nathu Ram, Smt. Shanti Devi (w/o Nathu Ram) Parbhakar, one Assu and other public persons forcibly opened the door. There she saw that deceased Mamta was burning, and then Parbhakar poured water and extinguished the fire and took her to hospital and that at that time mother and father of Parbhakar were not present there. This witness, PW 10 deposed that she could not say as to how the deceased was burnt. 13 PW 11, Constable Javed Hassan, deposed that on 06.05.2001, on receipt of DD No. 368, regarding a burning case, he alongwith the IO went to LBS hospital and the MLC of Mamta, Crl.A.Nos.282/04 & 316/04 Page 9 of 31 who was admitted there in burnt condition, was collected. As per the MLC the doctor had opined 95 % burns, however, at that point of time Mamta was not in a position to speak properly. Mamta was referred to GTB hospital. PW 11 further deposed that regarding this case, the concerned SDM and the SHO were informed and thereafter as per the directions of the SDM, the scene of occurrence was photographed. PW 11 deposed that from the scene of the occurrence one latch (kundi, chitkani) of the door which was broken, burnt pieces of cloth, one glass bottle containing some kerosene oil were lifted and were converted into a sealed parcel and accordingly seized. During cross-examination by the learned defence counsel, PW 11 deposed that in his presence, the IO had himself asked Mamta as to how did she caught fire and got burnt, and on inquiry, Mamta told that she caught fire when she was cooking food. PW 11 stated that he had stated so in his statement recorded by the IO. This witness further deposed that by that time, none of the family members of the appellant had arrived at the hospital. PW 11 further deposed that there was a gas stove inside the room in question and that the IO did not record the statement of Mamta to the effect that she was burnt when she was cooking food. 14 PW 14, Deen Dayal, s/o late Sh. Munshi Ram, r/o E-400, East Vinod Nagar, Delhi, deposed that he knew Nathu Ram, who Crl.A.Nos.282/04 & 316/04 Page 10 of 31 was residing in his neighbourhood at house no. A-44 and that Nathu Ram had given his one room on rent to Parbhakar. Parbhakar was residing there with his wife and children and that he did not see any quarrel between them. This witness further deposed that the parents of Parbhakar were not residing with him and that they were residing in their village. PW 14 further deposed that on 06.05.2001, he was present at the chowk, when at about 1:45 pm, Parbhakar told the mohalla people that his wife was not opening the door from inside and suspected that someone had entered therein. Thereafter the said witness deposed that after hearing Parbhakar, he went to A-44. Parbhakar, Nathu Ram, the wife of Nathu Ram and others pushed the door forcibly and the door got opened. He further deposed that he saw the wife of Prabhakar was burning. Prabhakar extinguished the fire by pouring water on her. Prabhakar took Mamta to hospital. At that time parents of Prabhakar were not present there and Mamta was alone in that room. 15 PW 15, Sudhir Kumar, s/o Sh. Mahavir Narayan Gupta, deposed that Mamta was his younger sister. He further deposed that on 06.05.2001, his elder sister, Manju had informed him that his younger sister, Mamta had got burnt. On 08.05.2001 he came to GTB hospital where he met his sister Mamta and who told PW 15 that her husband, Parbhakar and her mother-in-law set Crl.A.Nos.282/04 & 316/04 Page 11 of 31 her ablaze after pouring kerosene oil on her person. 16 PW 17, Mahavir Narain Gupta, deposed that Mamta was his daughter and had been married to Parbhakar, three years prior to the occurrence of the incident. PW 17 deposed that post five to six months of the marriage Mamta complained that she was being harassed by her husband and mother-in-law for dowry and that she was beaten by them. After about six months of the marriage, her husband Parbhakar and his mother, Smt. Angoori Devi, demanded Rs. 5,000/- from his daughter and which were given by PW 17 to them. Thereafter, Parbhakar and his mother once again demanded Rs. 5,000/-, but PW 17 expressed his inability to give the said amoumt to them. This witness further deposed that on 06.05.2001, at about 4:00 pm, one person was sent by his wife to the factory where he was working and there he was informed that Mamta was serious and thus he arrived at his office. Thereafter, he made inquiry from his wife and who told him that she came to know about the incident from their daughter, Manju and who in turn was informed by Sh. Sudhakar, father of Parbhakar. 17 PW 17 further deposed that Parbhakar used to suspect the character of his daughter Mamta and did not allow her to go anywhere and used to give threats that he would kill her. PW 17 also stated that two-three times his daughter was also brought home by them, but was later sent to her inlaws house, Crl.A.Nos.282/04 & 316/04 Page 12 of 31 when Parbhakar‟s brother and sister-in-law (bhabi) came to them and assured that they will not harass Mamta any more for dowry. On being cross-examined by the learned counsel for the appellant accused, PW 17 deposed that he cannot tell the exact date and month when his daughter, Mamta complained about harassment for dowry. And further that he did not tell the police that on one occasion he had given Rs. 5,000/- and which were demanded by the appellant, Parbhakar. 18 PW 18, DR. IP Singh, Specialist Surgery, LBS Hospital, deposed that on 06.05.2001, he was posted at LBS hospital. One patient Mamta was brought by Parbhakar with alleged history of accidental burn by gas stove. This witness deposed that on examination, smell of kerosene was present in the body of the patient. On being cross-examined by the learned defence counsel this witness, PW 17 did not deny the suggestion that that the injuries mentioned in the M[L]C are possible in case of accidental burns by gas stove. 19 PW 20, SI Rajendra Pal (retired), deposed that on 06.05.2001 he was posted at PS Kalyanpuri. The said witness has deposed that from the scene of occurrence burnt pieces of cloth, one kundi, which was whipped out and was lying on the floor and one glass bottle having cover with smell of kerosene oil was lifted and same were converted into sealed parcel and were taken into possession. Crl.A.Nos.282/04 & 316/04 Page 13 of 31 20 Learned counsel for the appellant, Angoori Devi has impugned the Judgment of the Trial Court on the ground that the said judgment is bad in law and based on surmises and conjectures. It is submitted that the Trial Court failed to appreciate the fact that the deceased, Mamta gave a statement before Constable Javed Hassan and the Investigating Officer that on 06.05.2001 she had burnt herself while cooking food. The said dying declaration of the deceased being prior in time to the one made on 07.05.2001 should have been relied upon as per the settled law. 21 It is next submitted that the unexplained delay and time gap between the alleged recording of the dying declaration by SDM on 07.05.2001 at 7:30 PM and the recording of the FIR on 08.05.2001 at 9:10 PM, goes to the root of the matter and destroys the credibility of the dying declaration. 22 It is also argued that the Trial Court failed to consider the fact that the deceased was in the company of her parents and relatives before the alleged dying declaration is stated to have been made and that the husband was not at all allowed to have any access to his wife (deceased). Thus the counsel argues that the said dying declaration cannot be relied upon as the same was completely tutored by the parents of the deceased. The learned counsel has further submitted before us that the dying declaration is too general to be true and Crl.A.Nos.282/04 & 316/04 Page 14 of 31 lacks material details and that there is no mention or narration of the role of the appellant, Angoori Devi prior to the alleged incident. Mere general mentioning of her name together with the first accused cannot in any manner make the dying declaration reliable. Also that according to the dying declaration, the mother-in-law and the father-in-law had come to the house about four (4) days prior to the day of incident, but it is not stated that they had continued to stay in the house from that day onwards. The counsel submits that the said dying declaration does not disclose the whereabouts of the children and is not in question answer form and thus the dying declaration is liable to be rejected. 23 It is submitted by learned counsel that PW 2, SDM has written that the thumb impression of Mamta on the dying declaration was LTI. However, the learned Trial Court has wrongly found that the SDM obtained the RTI of the deceased. The counsel argues that it is for the prosecution to prove that the thumb impression was LTI or the RTI, and in case it was LTI then there would be a possibility of manipulation especially when the burns were 100%. The learned counsel submitted that there was clinching evidence to show that there were hundred percent (100%) burns and it was impossible for the deceased to have been fit for giving statement and further impossible for the thumb impression to have been taken. The counsel argued Crl.A.Nos.282/04 & 316/04 Page 15 of 31 that even if the burns are taken to be 95% then also the remaining five percent were not of the hands but of the genetalia and soles of the feet and that the same has been proved by PW 4 in his deposition. 24 The learned counsel for the appellant further argues that the Trial Court has neither disbelieved any of the witnesses, PWs-7 to 10, nor have they been declared hostile. The counsel argued that the Trial Court has failed to consider the evidence of PW 7, 8, 9 and 10. 25 The learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt. 26 The learned counsel for appellant, Parbhakar while relying upon all the grounds of appeal argued for the appellant, Angoori Devi, submits that no case is made out against Parbhakar as well. 27 Per contra, it is submitted by learned counsel for the State that the prosecution has proved its case beyond any shadow of doubt. 28 We have heard learned counsel for the parties and have gone through the material on record as well as the impugned judgment. 29 The first submission of learned counsel for the appellants is Crl.A.Nos.282/04 & 316/04 Page 16 of 31 that the Trial Court has failed to take into account the statement made by the deceased before Constable Javed Hasan that she had burnt herself while cooking food. We have carefully scrutinized the statement of PW-11 (Constable Javed Hasan). PW-11 (Constable Javed Hasan) in his statement at the very first instance has stated that Mamta (deceased) was not in a position to speak properly. In the same statement this witness goes on to state that he along with SDM and I.O. had gone to G.T.B. Hospital and Mamta was declared unfit by the Doctor for making any statement. In his cross-examination PW-11 states that I.O. himself asked Mamta as to how she caught fire, to which she replied that she caught fire while she was cooking food. Further during cross-examination he has stated that I.O. did not record the statement to the effect that Mamta was burnt while cooking. We cannot place reliance to this portion of the statement made by PW-11 as at the very first instance this witness had stated that Mamta was not in a position to speak property and thereafter he has again stated that Mamta was declared unfit for making a statement by the doctor. At this point of time the SDM and the I.O were with PW-11. On reading of the statement of the I.O., we find no such mention of the fact that she had stated that she burnt herself while cooking, thus, we are unable to place any reliance on the statement made by the PW-11 during his cross- Crl.A.Nos.282/04 & 316/04 Page 17 of 31 examination. 30 It was next argued by counsel for the appellants that there is an unexplained delay