* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: May 21, 2010 Judgment delivered on: June 03, 2010 + CRIMINAL APPEAL NO.887/2009 BUDH RAM @ PAPPU & ORS. ....APPELLANTS Through: Mr. Sunil K. Mittal, Advocate with Mr. Kshitij Mittal, Advocate Versus STATE RESPONDENT Through: Mr. Lovkesh Sawhney, APR CORAM: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE AJIT BHARIHOKE Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in Digest ? W AIIT BHARIHOKE. I. 1. This appeal is directed against the impugned judgment dated 18'^'^ August, 2009 in Sessions Case No. 118/08, FIR No. 331/07, P.5. Dabri, in terms of which the appellants Eudh Ram, Hazari Lai and Ms. Kamli have been convicted for the offences punishable under Section 498A IPG read with Section 34 IPG and Section 302 IPG read with Section 34 IPG. They have been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5000/- each, in default of payment of fine, to Crl.A.No. 887/2009 Page 1 of 23 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 3 undergo SI for the period of 6 months for the offence of murder punishable under Section 302 IPG and for the offence punishable under Section 498A IPG, all three of them have been sentenced to undergo Rl for the period of 2 years and to pay a fine of Rs. 5000/-, in default, to undergo SI for further period of 6 months. 2. Briefly stated, case of the prosecution is that Anita (hereinafter referred to as 'deceased') and her elder sister Sunita were married on 06^^ March, 2002 to the appellant Hazari La! and his elder brother Murari Lai (PW12) respectively. Appellants Budh Ram and Ms. Kamli ^ are the parents of appellant Hazari Lai. 3. It is the case of prosecution that after the marriage, elder sister Sunita started | living in her matrimonial home but the deceased I. continued to live with her parents till her 'gona' ceremony was performed in the year 2005. It is claimed by the prosecution that immediately after the 'gona' ceremony, the In-laws of Anita including her husband, brother-in-law Yogesh and sister-in-law Seema started harassing and ill-treating her on account of insufficient dowry brought by her. This continued till 'bhai-dhuj' of the year 2006 when the deceased was turned out of her matrimonial house. Thereafter, the deceased continued to live with her parents till about 10 days prior to the fateful day i.e. 19'^'^ April, 2007, when.the deceased sustained burn injuries due to fire. It Is the case of the prosecution that 10 days prior to lO'*^ April, 2007, the in-laws of the deceased visited her parents' house with some members of 'biradri' and persuaded them to send the CrI.A.No. 887/2009 Page 2 of 23 deceased to her matrimonial home. On the persuasion of 'biradri' people, the parents of the deceased sent her to her matrimonial home. However, there was no change in the attitude of the appellants towards the deceased and they continued to ill-treat her. It is alleged that in the morning of 19^^ April, 2007, the deceased sustained 55% burn injuries and she was admitted in DDU Hospital by her husband and parents-in-law. As per the MLC Ex.PW4/A prepared at the DDU Hospital, the deceased was brought to the hospital by appellant Hazari Lai on April, 2007 at 06:30 a.m. with the alleged history of "burn injuries as told by the Pt. herself and B/B" and she was smelling of kerosene. Intimation about her admission in the hospital was sent by the Duty Constable to the police station, which was recorded as DD N0.14B, P.S. Dabri. Copy of said DD report was entru.sted to ASI Hari Kishan (PW17) for verification. ASI Hari Kishan {PW17) reached DDU Hospital and collected the MLC of the deceased. However, by that time, Anita had been referred to RML Hospital for further treatment. ASI Hari Kishan (PW17) then reached at the spot of occurrence i.e. House iMo. RZ-A3/49, Gali No. 1, Durga Park, New Delhi along with Constable Pawan Kumar. On inspection, he did not find any sign of burning in the form of burnt clothes etc. and- on spot inspection, it appeared that the house had been cleaned of signs of the occurrence. He intimated senior officers and the SDM. Photographer and Crime Team were also summoned at the spot. On local enquiry, he found that the incident had taken place in the bathroom located at the CrI.A.No. 8S7/2009 Page 3 of 23 (O ground floor of the house. Smell of kerosene oil was present in the i' I bathroom as well as in the portion of 'gali' adjoining the bathroom. Crime Team inspected The spot and prepared its report Ex.PW15/A. The Investigating Officer thereafter went to RML Hospital and moved an application (Ex.PW17/A) seeking permission to record the statement of Anita (deceased). The doctor declared her unfit for statement and this information was conveyed to the Executive Magistrate Surender Singh (PW9), who was looking after the work of SDM, Palam. On 20'^'^ April, 2007, ASI Hari Kishan (PW17) reached at RML Hospital on instructions of the SDM. The SDM also reached there and recorded statement of the deceased after she was declared fit for making statement by the doctor; concerned. 4. The deceased Anita in her statement Ex.PW9/A, which is now treated as her dying declaration because of her death, named the appellants as well as her brother-in-law Yogesh and sister-in-law Seema as the persons responsible for her burn injuries. She stated that on , April, 2007 at around 03:00 a.m., v\ih\\e she was sleeping, her sister-in-law, brother-in-law and father-in-law caught hold of her and her mother-in-law and husband set on fire after pouring kerosene oil on her. She shouted for help but no-one came to her help. Thereafter, her husband and parents-in-law brought her to the hospital where she became unconscious. When she regained consciousness, her family members were by her side and she was in RML Hospital. On the basis CrlA. No. 887/2009 Page 4 of 23 : : M of said statement, formal FIR (Ex.PW7/A) was registered under Section 498A/307/34 IPG. 5. The deceased ultimately succumbed to her Injuries on 03'"'^ May, 2007. Intimation about her death was conveyed to the police station by Duty Constable vIde DD No. 80-B, P.5. Dabrl. Copy of the DD report was entrusted to Inspector Dharamblr for verification. He visited RML Hospital, arranged for the post-mortem examination of the dead body, completed the formalities of Investigation and on completion of j I Investigation, filed charge-sheet against the appellants, showing Yogesh and Seema as absconders. ! 6. On consideration] of the charge-sheet, the appellants were charged for the | offences punishable under Sections 302/498A/304B/201 IPG all read with Section 34 IPG. The appellants pleaded not guilty to the charges and claimed to be tried. 7. In order to bring hpme the guilt of the appellants, the prosecution has examined as many as 19 witnesses. The material witnesses, i however, are PW3 MUnna Lai and PW6 Jllla Devi, parents of the deceased besides PW9 Surender Singh, Executive Magistrate. 8. The appellants, vyhen examined under Section 313 Gr.P.G. to explain the Incriminating evidence appearing against them, denied the prosecution case. Appellant Hazarl Lai explained that the deceased did not wish to live with him. In defence, appellants have examined two witnesses namely DWl Ram KIshan and DW2 Cm Prakash. Crl.ANo. 887/2009 Page 5 of 23 against the appellants. 9. On perusal of the record, it transpires that there is no eye-witness to establish the charge under Section 302 read with Section 34 IPG The case of the prosecution" as regards this charge is primarily bas^d upon the purported dying declaration of the deceased Anita made in presence of PW9 Surender Singh, Executive Magistrate, Palam, Nevy Delhi. As regards the charge under Section I I 498A IPG, the prosecution case rests on the testimony of PW3 Munna Lai and PW6 Jilla Devi, formal witnesses who associated with the pre mortem examination o parents of the deceased. Other witnesses are either identified the dead body or who were paration of MLG of the deceased and her post- r with the investigation of the case. Before adverting to the submissions made on behalf of the appellants, it would be appropriate to have a look at the testimony of some of the important witnesses. 10. PW3 Munna Lai has testified about the marriage of his daughter Anita with appellant Hazari Lai on 06^^ March, 2002. He stated that on the same day, his elder daughter Sunita was also married to Murari Lai, brother of the appellant Hazari Lai. According to him, 'gona' of Anita took place three years after his marriage. Thereafter, she stayed for some time in her matrimonial homie and then, she shifted to her i ' I parental home. He started in his examination-in-chief that Hazari Lai used to beat his daughter after consuming liquor and he also used to demand dowry from hi|s daughter. Sometimes, appellant Hazari Lai and sometimes, he demanded cash of Rs. demanded motor-cycle CrI.A.No. 887/2009 Page 6 of 23 50,000/- and because deceased. PW3 also sta a common meeting of ' his daughter Anita and his daughter back to \ ^ of that reason also, he used to beat the ted that 10 days before the incident of burning, biradri' was held to resolve the issue between ner in-laws. Though, he was not willing to send her matrimonial home, on the insistence of 'biradri', he agreed to send Anita to her matrimonial home and she was sent with the appellants. He further stated that on the fateful day i.e. he received a phone call at the house of his hter Anita has suffered burn injuries. He along, and wife reached DDL! Hospital where he found the deceased lying unconscious in an ambulance. They were informed that the deceased was being shifted to Safdarjung Hospital. He further stated that the deceased remained under treatment in Safdarjung Hospital for 15 days but she ultimately succumbed to her injuries. This witness was cross-examined by learned APP after seeking permission from the Court and in the cross-examination, he admitted the suggestion that after the 'gona' ceremony, Anita (deceased) was toid IQ'"" day of the month, neighbour that his daug with his brother Jagdish that the dowry brought by her was too meagre and the appellants as well as Yogesh and Seema used to taunt and harass her on that count. PW6 Jilla Devi, mother of the deceased has also deposed to more or less similar effect. She was also declared hostile and in her cross- examination by learned Prosecutor, she admitted the suggestion that the deceased was tortured in respect of the dowry demand and she volunteered that a motor-cycle and a sum of Rs. 50,000/- in cash was Crl.A.No. 887/2009 Page 7 of 23 demanded as dowry. In her cross-examination by learned counsel for the State, PW6 Jilla Devi to her parental home t:h stated that Anita (deceased) was brought back ree or four days after 'gona' and thereafter, she stayed with them for about one year. She further stated that no complaint regarding dowry demand was lodged against the accused persons during said period of one year. She denied the suggestion that the deceased was having some love affair, because of which, she stayed at her paternal home. She also denied the suggestion that the deceased Anita sustained burn injuries of her own. 11. PW9 Surender Singh, Executive Magistrate has stated that on 19^'' April, 2007, he was posted as Executive Magistrate, Palam. On that day, he was informed | by Investigating Officer that a lady has been admitted in DDU Hospital ,in burnt condition and on this, he instructed the Investigating Officer that the moment said lady is declared fit for statement, he should be called. He further stated that on 20'^ April, 2007, said lady i.e. Anita (deceased) was declared fit for statement. He and recorded her statement Ex.PW9/A. The deceased in her statement disclosed that she was caught hold of by her mother-in-law and father-in-law and kerosene oil was poured upon went to RML Hospital her on 19^^ April, 20C thereafter corrected hi on whom allegations rec 12. PW17 ASI Hari Kis 7 at 03:00 a.m. The witness immediately mself and stated that he does not remember arding pouring kerosene oil was levelled, han conducted initial investigation of the case. He has stated that when he reached at the place of occurrence i.e. CrI.A.No. 887/2009 Page 8 of 23 House No. RZ-A3/49, Gali No.l, Durga Park, New Delhi, on inspection I he did not find any sign of burning such as burnt clothes etc. and the i house appeared to haye been swept clean. He also stated that he informed the senior officers and 5DM about the incident and his local Inquiry revealed that the incident had taken piace in the bathroom of the ground floor which was smelling of kerosene oil. 13. PW18 Inspector Dharmvir conducted subsequent investigation of I the case and he also recorded statement of Anita (deceased) under I ! Section 161 Cr.P.C. besides the statements of other witnesses. 14. DWl Ram Kishan' has stated that on the date of incident at i around 5.45 - 6.00 a.m., on hearing the cries of the deceased 'bachao bachao', he came out in the 'gali' and saw the deceased Anita aflame. Thus, he called the appellant Budh Ram who came out,of the I I house and took the deceased inside and placed a blanket on her. i Thereafter, Budh Ram alongwith his wife Kamii and son Hazari Lai I removed Anita to the hdspitai in a taxi. This witness stated that no quarrel took place between Anita and her in-laws and also stated that there is no custom of giving or taking of dowry in their community. 15. DW2 Om Prakash claims that he had gone alongwith the I appellant Budh Ram, Badri Prashad, Mala Ram and Madan Lai to the house of Munna Lai, father of the deceased at Ranjit Nagar for bringing the deceased back to her matrimonial home. He stated that said meeting was attended CrI.A.No. 887/2009 rom the girl's side by Munna Lai (father), his Page 9 of 23 1 brother Jagdish, his another brother and 3/4 neighbours. When he asked Munna La! as to why he was not prepared to send Anita to her matrimonial home, Munna La! explained that Anita was being immature and was not agreeable to go back to her matrimonial home. On this, neighbours of Munna Lai told him that he was bound to send Anita to her matrimonial home. Munna Lai agreed and asked Anita to get ready to go to her matrimonial home. The deceased Anita, however, created a scene and insisted that she would not go. The witness further stated that when they were talking, he over-heard Anita saying that if she was forced to go to her matrimonial home, she would do something untoward and on this, he expressed his apprehension that if Anita did something untoward in her matrimonial home, it would create problem. However, Munna Lai and neighbours ignored said apprehension and said that the deceased was being immature and there was no cause for worry on that count. 16. On consideration of evidence, the defence version did not find Trial Judge and relying upon the prosecution evidence, the learned Additional Sessions Judge found the appellants guilty of the charges under Section 302 read with Section 34 IPG and Section 498A read with Section 34 IPG and convicted and sentenced them accordingly. 17. Learned counsel for the appellants has submitted that there is no eye-witness to the occurrence and the case of the prosecution is based 6 favour with the learnec upon the dying declara CrI.A.No. 337/2009 ;ion of the deceased and the testimony of her Page 10 of 23 is not safe to rely upon parents PW3 Munna La! and PW6 Jiiia Devi in support of the charges under Section 302 and 498A IPG. He submitted that the dying declaration of the deceased is not reliable, being unnatural and ! inconsistent with the olther evidence on record. Otherwise also, the dying declaration is suspicious as it has not been recorded in accordance with Delhi High Court Rules pertaining to the procedure to be followed while recording dying declaration. Learned counsel further submitted that the testimony of PW3 Munna Lai and PW6 Jilla Devi regarding the demand for dowry or causing of harassment or cruelty to the deceased is vague and is bereft of specific instances. Therefore, it their evidence. Thus, he has summed up that the impugned judgment of conviction cannot be sustained under law. 18. Learned counsel for the State, on the other hand, has canvassed in favour of the impugned judgment. He has submitted that in the instant case, the dying declaration Ex.PW9/A has been recorded by the Executive Magistrate, who had no axe to grind either with the appellants or with the family of the deceased. Therefore, there is no reason to suspect its correctness. Learned counsel for the State has drawn our attention to ;the application Ex.PW17/A / Ex.PWll/DA dated 19''" April, 2007 addressed by the Investigating Officer ASI Hari Kishan (PW17) to the CMC, Ward No. 12, RML Hospital seeking permission for recording statement of The deceased. On this application, there is an initial endorsement dated 20'^'^ April, 2007 wherein the doctor I - I concerned has declared the patient fit for statement. In view of this. CrI.A.No. 887/2009 Page 11 of 23 learned counsel for the State has submitted that there is no force in the submission of the learned counsel for the appellants that the certificate of fitness of the deceased was not obtained by the Executive Magistrate Surender Singh {PW9) before recording her dying declaration Ex.PW9/A. Thus, learned counsel for the State has summed up that the learned Trial Judge has rightly relied upon the dying declaration to return to finding of guilt of the appellants. 19. On perusal of tie impugned Judgment, it is clear that the conviction of the appellants for the offence under Section 302 IPG read with Section 34 IPG is based solely upon the purported dying declaration of the deceased Anita. Therefore, before adverting to the rival contentions against the impugned conviction, we deem it appropriate to discuss the legal principles relating to the dying declaration. 20. In the case of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P. 2007 V AD(Cr.) (S.C.) 45, the Hon'ble Supreme Gourt while discussing the issue of evidentiary value of dying declaration, inter alia, observed thus: "18. It Is equally well settled and needs no restatement at our hands that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration in asmuch as there could be any number i of circumstances v^hich may affect the truth. This court in more than one decision cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration, In order Cri.A.No. 887/2009 Page 12 of 23 to satisfy itself that the deceased was in a fit mental condition to rjnake the dying declaration, the courts have to look for the medical opinion. 19. . It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case | of a living witness is a thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person givhg the dying declaration will be last to give untruth as he stands before his creator. There is a legal maxim "Nemo Moriturous Praesumitur Mentire" meaning, that a man will not meet his maker with lie in his mouth. Woodroffe and Amir Ali, in their treatise on Evidence Act position in which he is piaced is held by law to be a sufficient gro of oath and c state : "when a man is dying, the grave und for his veracity and therefore the tests oss-examination are dispensed with. J 20. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumistances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court, is fully|.satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was ir a fit condition - mentally and physically - to make such statement." 21. In the case of Smt. Paniben vs. State of Gujarat AIR 1992 S.C. 1817, Hon'ble Su preme Court has summed up the principles governing dying declaration as under: (i) - There is neither rule of law nor of prudence that, dying declaration cannot be acted upon without corroboration (Munnu Raja v. State of M.P.) (1976) 3 see 104; 1976 See (eri.)376; (1976) 2 SeR 764. CrI.A.No. 887/2009 Page 13 of 23 J.. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without (State of U.P. V. Ram Sagar Yadav) 552: 1985 SCC (Cri) 127: AIR 1985 SC 416; corroboration. (1985) 1 SCO Ramavati Devi v. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri 169: AIR 1983 SC 164. (ill) This Court has to scrutinise the dying declaration carefully and imust ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunijty to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra] Reddy v. Pubiic Prosecutor) (1976) 3 see 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994. (iv) Where dyi acted upon Beg V. State 426. ing declaration is suspicious it should not be without corroborative evidence. (Rasheed of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) (v) Where the deceased was unconscious and could never make any dyipg declaration the evidence with regard to it :ted. (Kake Singh v. State of M.P.) 1981 1981 SCC (Cri.) 645 : AIR 1982 SC 1021. is to be rejec Supp. see 25 (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581. (vii) Merely because a dying declaration contain the dptails as to the occurrence, it is rejected. (State of Maharashtra v. Laxmipati Naidu) 1980 Supp. SCC 455 : 364 : AIR 1981 SC 617. does not not to be Krlshnarhurti 1981 SCC (Cri) (viii) Equally, merely because it is a brief statement, it is not be discarded.