Crl.A. 797/2001 Page 1 of 30 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 797/2001 % Date of Decision: 14.09.2010 Diwan Singh …. Appellant Through Mr. S. Khan, Advocate Versus State …. Respondent Through Mr. Jaideep Malik, APP CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE SURESH KAIT 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * 1. The appellant, Diwan Singh, husband of deceased Smt. Mansa has challenged his conviction under Section 498A and Section 302 of Indian Penal Code by order dated 6th June, 2001 and his sentence under Section 302 of IPC for imprisonment for life and a fine of Rs. 50/- and in default to undergo rigorous imprisonment for seven days and under Section 498A of IPC for three years and a fine of Rs. 100/- and in default to undergo a further rigorous imprisonment for seven days by order dated 11th June, 2001. Both the sentences were ordered to run Crl.A. 797/2001 Page 2 of 30 concurrently and benefit of Section 428 of Crl. Procedure Code was given to him. 2. The present appeal was admitted on 5th November, 2001 and on 16th September, 2005, after undergoing incarceration for about seven years, the appellant’s sentence was suspended and he was released on bail on furnishing a personal bond in the sum of Rs. 10,000/- with one surety of like amount. The appellant was also directed to report to the SHO of the concerned Police Station on 7th day of every alternative month by the said order. 3. The appellant was married to deceased Smt. Mansa in February, 1992 and on 20th September, 1992 she was admitted to Safdarjung Hospital by her sister-in-law Urmila, DW-1 after she was taken there in the police van. The intimation about the burning of the deceased Smt. Mansa was given by the husband of the owner of the house, Smt. Vani Anand, PW-1 in whose house on the 5th Floor, the deceased was residing with her husband and Smt. Urmila, her sister-in-law (wife of the elder brother of the appellant) who was the maid in the house. 4. On the intimation of the incident, a DD entry No.4A dated 20th September, 1992 was recorded at 10:27 AM which has been proved as Ex. PW 2/A stipulating that ASI Amar Singh, PCR has been intimated that at Manikshaw Road in House No. 11/97, a stove had burst and Crl.A. 797/2001 Page 3 of 30 one person had died on the spot. The DD Entry also incorporated that after recording the report in “Roz Namcha” the investigation was handed over to SI Surjan Singh, (Pw 13) who had gone to the spot on motorcycle with another constable Virender Singh, PW-11. 5. In the Safdarjung Hospital, a Medico Legal Report was recorded, which was exhibited as Ex. PW 7/1 dated 20th September, 1992, at 11:00 AM incorporating the time of arrival as 11:00 AM, the name of sister-in-law Urmila, DW-1 and ASI Sohan Lal 5133 PCR, Police Station, Delhi Cantt. and further stipulating “alleged history given by the patient that her husband locked her up in the room, put kerosene oil on her and set her ablaze and ran away”. 6. The IO Surjan Singh, PW-13 allegedly recorded a dying declaration of the deceased Smt. Mansa at 11:30 a.m. after seeking permission to record the statement which was exhibited as Ex. PW 13/1, which is signed by IO Surjan Singh, PW-13 with the endorsement of Dr. Savita, PW-7 stipulating Smt. Mansa fit for statement, however, attestation by Dr. Savita is of 11.30 PM. It also has another endorsement of another Doctor declaring Smt. Mansa as fit for statement, however, the other Doctor had not been examined. 7. The dying declaration is not only in the hand writing of the Investigating Officer but it is also in his language and allegedly bears Crl.A. 797/2001 Page 4 of 30 the right thumb impression of the deceased at Ex. 13/2. The alleged dying declaration is not in the question answer form nor appears to be in the language of deceased but is in the language of the Police Officer, PW-13 and states that the deceased stated that she was living at 11/97, Manikshaw Marg, Delhi Cantt. and her age is 21 years. She allegedly stated that she had no child from the marriage which took place six months back. It is further stated that her husband harassed her and had asked her to bring Rs.5000/- from her parents. Since she could not bring the said amount, therefore, her husband poured kerosene oil and burned her and thereafter ran from the house. She stated that her sister-in-law brought her in the burned condition in the police van to the hospital and she was burned by her husband after pouring kerosene oil and therefore, legal action should be taken against him. The said dying declaration recorded by the Investigating Officer, PW-13 though has a fitness certificate by doctor at 11:30 AM who was not examined, however, on a separate application, another fitness had been endorsed by Dr. Savita, PW-7 at 11.30 AM which was exhibited as Pw 13/1. The attestation by Dr. Savita on the alleged dying declaration Ex. PW-13/2 is, however, of 11:30 PM and there is an over writing in the numeral 11. 8. The prosecution case before the Trial Court was that on 20th September, 1992, a wireless message was received at 10:27 AM that a stove had burst at House No. 11/97, Manikshaw Marg, Delhi Cantt. Crl.A. 797/2001 Page 5 of 30 and one person had died and the information was recorded in DD Entry No. 4A (Ex. PW-2/A) and its copy was handed over to SI Surjan Singh (PW-13) who along with constable Virender Singh (PW-11) reached the place of occurrence. At the place of occurrence, the police personnel came to know that the injured had been removed to Safdarjung Hospital and therefore, constable Om Prakash was left on the spot and SI Surjan Singh went to Safdarjung Hospital. He ascertained the condition of the injured and also obtained the fitness certificate of the injured for making the statement. Her statement (Ex. PW-13/2) was recorded by PW-13, SI Surjan Singh in his own language and it also allegedly bears the thumb impression of the deceased. Endorsement (Ex. PW-13/3) was made by the Investigating Officer and the statement was sent to Police Station where FIR (Ex. PW 2/B) was registered. Rough site plan was also prepared (Ex. PW 13/4) and MLC (Ex. PW-7/1) had also been collected. 9. The injured, however, did not survive and died of burn injuries at 4:00 PM on the same date, 20th September, 1992 and the information was communicated to Police Station, Delhi Cantt. and was recorded in DD-10A. SI Surjan Singh, PW-13 intimated the SDM Sh. H.C. Gaur, PW-8, who conducted inquest proceeding Ex. PW-8/1 and recorded the statements of Shyam Lal, PW 4/A and Smt. Rukmani Devi, PW 5/A, father and mother of the deceased. Post mortem was conducted and the report is Ex. PW 1/A. The husband Diwan Singh was arrested and Crl.A. 797/2001 Page 6 of 30 the mother of Diwan Singh, Smt. Harpyari had surrendered later on. Both the accused were charged under Section 498A/34 of IPC and the appellant was charged under Section 302 of IPC. Both the accused had pleaded not guilty. The prosecution had examined 14 witnesses to substantiate the charges and the accused had examined one witness Smt. Urmila Devi, sister-in-law (wife of the appellant’s brother) as DW-1 who had taken the deceased to the Hospital but whose statement under section 161 of Cr.P.C was not recorded. The Trial Court acquitted Smt. Harpyari of charge under section 498A of IPC giving the benefit of doubt, however, the appellant has been convicted under Section 498A and 302 of IPC. 10. The Trial Court relied on dying declaration Ex. PW 13/2, though it noted the cuttings/overwriting in the dying declaration and also observed that the cuttings and over writing has not been explained by the prosecution, however, considering that the fitness certificate was granted by the Doctor, still relied on the same. 11. During trial the statement of the father of the deceased, PW-4 was recorded on 5th September, 1994 and was deferred to 6th September, 1994 on which date cross-examination was partly recorded and was deferred on account of time. On 6th September, 1994, the case was adjourned to 4th October, 1994 and 5th October, 1994, however, the cross-examination could not be recorded as presiding officer was on Crl.A. 797/2001 Page 7 of 30 leave and thereafter the father (PW-4) expired on 28th January, 1995 and so his cross examination could not be concluded. The Trial Court ignored the statement of PW-4 as he had admitted in the cross- examination that the demand was not communicated to him by his deceased daughter but that his wife had told him about the demand of Rs. 5,000/- by the in laws of her deceased daughter and he had not told anyone about the alleged demand, i.e., the persons who got his daughter married or any other person. Regarding the statement of Rukmini Devi, PW-5, the Trial Court held that her examination-in-chief was recorded on 5th September, 1994 and the cross-examination was deferred as a prayer was made to cross-examine both the father and the mother on the same date. PW-5 thereafter appeared on 13th February, 1998 but on that date, she was not cross-examined and later on the cross-examination was again prayed pursuant to an application for recalling PW-5 on 31st October, 2000 which application was declined. However, it was allowed by the High Court by order dated 3rd January, 2001, but later on it had transpired that PW-5, mother of the deceased had also died on 31st December, 1999. Before the date on which the application for recalling PW-5 was filed the witness had died and the Trial Court had held that it was inconceivable that the appellant was not aware about the death of his mother-in-law and therefore, the application to recall PW-5 was malafide and therefore, the statement of PW-5 was not ignored and considered though she was not cross examined. Crl.A. 797/2001 Page 8 of 30 12. Regarding the fitness of the deceased to make a dying declaration, the Trial Court held that occurrence had taken place at 10:10 AM and the deceased was admitted to hospital at 11:00 AM and since the fitness was given at 11:30 AM, therefore, she was fit to make a statement. The Trial Court also noticed the Medico Legal Report (Ex. PW-7/1) which was proved by PW-7, Dr. Savita but no question was put to her in the cross-examination and consequently, no benefit could be given to the appellant. The Trial Court had however, noted that the endorsement that the deceased was fit for statement made on Ex. PW13/2, the alleged dying declaration, has not been proved. However as the fitness of the deceased was endorsed on an application which was filed by the IO Surjan Singh, which was exhibited as Ex. PW-13/1, therefore the dying declaration has been relied on. 13. According to the Trial Judge, endorsement on the Rukka, which is the statement of Mansa was made at 11:45 a.m. and the FIR (Ex. PW- 2/B) was registered at 12:50 pm and Devinder Kumar(PW-2) has not been cross-examined with regard to the registration of the FIR and therefore, it could not be said that FIR was not registered on the basis of the statement of deceased Mansa or that it was not recorded at the time on which it purports to have been recorded. The statements of PW-7 Dr. Savita and IO Surjan Singh (PW-13) have been believed on the ground that there was no reason for them to frame the appellant as Crl.A. 797/2001 Page 9 of 30 they were not having any enmity with the accused. 14. The hypothesis propounded on behalf of the appellant about the accidental death by bursting of a stove has been negated on the ground that marriage had taken place just six months before and the death of the deceased was not natural. Reliance was also placed on the testimony of Dr. G.K. Choubey (Pw2) deposing that the smell of kerosene oil was present in the scalp hair. It was assumed by the Trial Court that unless the kerosene has been poured over her or the stove had been at such a place so as to fall on the head of the deceased, kerosene could not be in her scalp hair. According to the learned Trial Judge, there was no injury on the head of the deceased and had the stove fallen on the head of Mansa, there should have been at least some scratches, abrasion and haematoma on her head. 15. DD No. 4A (Ex. PW 2/A) incorporating that at the concerned address one stove had burst and one person has died has not been relied on the ground that it is not a substantive piece of evidence and the person who informed the police control room had not been examined and it is not clear as who had intimated the police control room about the bursting of stove and death of one person. 16. The Trial Court also held that investigating officer did not find bursting of any stove at the place of occurrence and no one had died on Crl.A. 797/2001 Page 10 of 30 the spot and therefore, this information cannot be connected with the occurrence in question. Referring to Plan Ex. PW 13/4, it has been held that no suggestions were given to the IO that the kerosene oil had been kept on the shelves and the testimony of Urmila, DW-1, sister-in-law of the appellant has been disbelieved on account of the fact that she is the sister-in-law (wife of the appellant’s brother) and will be an interested witness. 17. The Trial Court also took the CFSL report as admissible under Section 293 of Crl. Procedure Code though it was not tendered by the public prosecutor but since the document was admissible, therefore, it was exhibited as Ex. C-1 and relied on it to infer that scalp hairs and clothes were found to have the presence of kerosene residual. In the circumstances, dying declaration of Mansa, deceased was held to be reliable and it has been held that possibility of accidental death can be ruled out. 18. The learned counsel for the appellant has contended that the dying declaration exhibited Pw 13/2 cannot be relied on and could not be the basis of conviction of the appellant. According to him the dying declaration is in the language of the Investigating Officer and not the language of the deceased; it is not in question answer form; it has an endorsement by another doctor which was also given at 11:30 AM which doctor has not been examined, rather an attestation of Dr. Crl.A. 797/2001 Page 11 of 30 Savita, PW-7 has been obtained on the alleged dying declaration at the 11.30 PM. Time of attestation as 11:30 PM also has an over writing which has not been explained nor it has been explained as to how attestation could be at 11.30 PM when the deceased had died at 4.00 PM. The learned counsel has further contended that if the fitness was given on the alleged application Ex.PW 13/1 at 11.30 AM by Dr. Savita why the fitness of another doctor was taken on the alleged dying declaration Ex. Pw 13/2 at 11.30 AM and why that doctor has not been examined nor any explanation given as to why that doctor could not be examined. He has submitted that if the fitness had been given by Dr. Savita on the application and fitness on the alleged dying declaration Ex Pw 13/2 by another doctor, then why the attestation was to be made by Dr. Savita at 11.30 PM. 19. The learned counsel for the appellant has asserted that though Trial Court has noted that the fitness on the alleged dying declaration has not been proved, however, on the basis of fitness on the application Ex. Pw 13/1, the alleged dying declaration has been believed holding that the Investigating Officer and doctor did not have any enmity with the appellant. It is submitted that the Investigating Officer is interested in the success of case investigated by him and in view of apparent lacunas it could not be inferred that he did not have any interest so as to implicate the appellant and therefore alleged dying declaration allegedly recorded by him could not be relied on. The learned counsel Crl.A. 797/2001 Page 12 of 30 relied on (1976) 3 SCC 104, Munnu Raja & Anr. Vs State of M.P. 20. The learned counsel for the appellant has contended that the hypothesis of bursting of stove which is recorded in DD entry Ex.PW 2/A has been deliberately undermined by the prosecution by not examining the husband of PW1, Smt. Vani Anant who had categorically stated that her husband had rung up the police. The statement of Pw1 in this regard is as under: “…… Mansa was living in my servant quarter with my maid servant. On 20.9.1992 my servant Urmila finished her morning chores by 10.AM and thereafter she went to servant quarter, as father of the Urmila had come. Within 10 minutes Urmila came back rushing and told me that her sister in law Mansa was dead. I along with my husband rushed to the servant quarter and there we saw Mansa lying badly burnt. Immediately my husband rang up to the Police. After some time Police came there and removed Mansa to hospital and sealed servant quarter. 21. It is contended on behalf of the appellant that the said DD entry could not be ignored on the ground that it is not a substantive piece of evidence and that the person who informed the police control room van has not been examined and it is not clear as to who had intimated the police control room. It is contended that the observation of the Trial Court is contrary to the evidence on the record and in the circumstances the observation and inferences of the Trial Court are unsubstantiated and cannot be sustained. Crl.A. 797/2001 Page 13 of 30 22. On behalf of the appellant it is further asserted that the facts established against the accused should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis nor should it be susceptible of any other rational explanation. It is submitted that just after the incident the owner of the house had intimated the police, the deceased was removed to hospital by the maid servant Urmila, DW-1 wife of the brother of the appellant, husband of the deceased and the room was sealed. The photographs of the place of incident were taken which are exhibited PW 10/2 to PW 10/7 which show clearly that the stove had burst which photographs have not been taken into consideration and ignored by the Trial Court. Rather the Trial Court on its own assumptions has held that unless stove had been at such a place so as to fall on the head of the deceased, kerosene could not be in her scalp hair. It has been assumed that since there was no injury on the head of the deceased, had the stove fallen on the head of Mansa, there should have been at least some scratches, abrasion and haematoma on her head. According to the learned counsel Mr.S.Khan the hypothesis of bursting of stove could not be ruled out on such assumptions as have been drawn by the Trial Court. Relying on Photographs PW 10/2 and PW 10/6 it is submitted that the stove was lying on the floor of the room and the kerosene had leaked from it. The burner of the stove was bent which fact was also noticed by the Trial Judge and noted in the proceedings. Reliance has also been placed on the statement of Urmila Devi (DW-1) whose testimony, according to the Crl.A. 797/2001 Page 14 of 30 learned counsel for the appellant, could not be ignored as it remained unimpeachable, regardless of the ground that she is related to the appellant. It is asserted that no cogent reason has been given for not recording her statement under section 161 of the Crl. Procedure Code. This relevant evidence has not been taken into consideration to completely rule out the hypothesis of bursting of stove and in the circumstances, the findings of the Trial Court are based on surmises and ignoring relevant evidence, hence conviction of the appellant cannot be sustained. 23. According to Mr. Khan, learned counsel for the appellant, if the stove was lying on the floor with the burner of the stove bent, the kerosene must have escaped from the stove with force on account of pressure in it and must have sprayed the deceased from head to toe in front. This according to him explains, as to why the small area of the back remained un-burnt which has been established from the testimony of PW-7 Dr. Savita. Relying on the photographs the learned counsel for the appellant has contended that from Ex. PW 10/2, it is clear that the washer of the burner which controlled the flame of the stove, can be seen lying at a distance from the stove which could be only on account of bursting of stove at the base of burner which tilted or bent the burner and in the process the washer of the burner would have flown away. The Photographs relied on by the Learned counsel are as under: Crl.A. 797/2001 Page 15 of 30 Exhibit Pw 10/2 shows the tilted burner and the flame washer which is ordinarily on the top of the burner of the stove to control the flame and localize it, lying on the left near the wall away from the stove. According to the learned counsel for appellant this important piece of evidence has not been considered by the Trial Court nor any rational explanation for ignoring these factors have been given by the prosecution so as to negate completely the possibility of bursting of stove and the deceased getting burnt on account of kerosene bursting out from the stove at great pressure in case the burner of the stove was found bent. According to him the kerosene leaking from the stove has not been explained by the prosecution which is apparent from the photographs. The leaking kerosene is bluish in color which is the color added to kerosene to prevent adulteration of kerosene. According to him Crl.A. 797/2001 Page 16 of 30 ruling out bursting of stove by the Trial Court on the ground that it had not fallen from the shelf as no injury was on the head of the deceased is based on assumption of the Trial Court that the stove must be on the shelves in the kitchen and that had there been bursting of stove it would have flown from the shelf and would have fallen on the head of the deceased, which is nothing but assumption and on the basis of such assumption, the appellant cannot be convicted. Ex. Pw 10/6 showing leaking kerosene having blue color. Crl.A. 797/2001 Page 17 of 30 24. On behalf of the appellant it is also contended that the post mortem report and other documents do not show that despite 98% burns on the deceased, her hands especially her fingers and thumb were not burnt and therefore, she could have put her thumb impression on her alleged dying declaration Ex PW 13/2 which was allegedly recorded by the Investigating Officer, PW 13. It is stated that only a portion of the back