Crl. A.228/2001 Page 1 of 30 * IN THE HIGH COURT OF DELHI % Judgment Reserved on : 30th April, 2009 Judgment pronounced on : 12th May, 2009 + CRL.A.228/2001 GOKAL ..... Appellant Through: Ms. Ritu Gauba, Advocate versus STATE ..... Respondent Through: Mr. Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. Vide impugned judgment and order dated 22.03.2001, the appellant has been convicted for the offence of having murdered Rekha (herein after referred to as the “Deceased”). 2. Case of the prosecution is that the appellant and the deceased were residing as husband and wife, as tenants, in a single room on the second floor in a building owned by Shashi PW-1 who lived on the ground floor of the building and that on 13.11.1998, the appellant poured kerosene oil on the Crl. A.228/2001 Page 2 of 30 deceased and set her on fire. Shashi heard voices that the deceased had been burnt and she moved upstairs. She saw the appellant coming down. On seeing Shashi, the appellant stopped his forward movement and returned upstairs. The deceased was found on the floor in a burnt condition. Shashi and the appellant removed the deceased to G.T.B.Hospital where Dr.R.Dayal PW-10 recorded her MLC Ex.PW-10/A on which he noted the history of the alleged burn as under:- “Alleged H/o being burnt by husband Gokul by pouring kerosene oil Informant self. O/E Conscious Oriented ………… Fit for statement 100% burns superficial to deep in nature……..” The deceased died as a result of burn injuries. On being apprehended and interrogated, the appellant had made a confessional statement admitting his guilt and disclosed to the police that he had kept the match box, match sticks and the can of kerosene oil used by him for setting the deceased on fire in the room where the deceased was found burnt. That thereafter he led the police to the said room and got recovered the match box, match sticks and a can of kerosene oil from the said room. Crl. A.228/2001 Page 3 of 30 3. To put it in a nutshell, the incriminating evidence sought to be proved by the prosecution, to bring home the guilt of the appellant, was:- I Dying declaration of the deceased as recorded by Dr.R.Dayal on the MLC Ex.PW-10/A, which if proved, would have directly implicated the appellant. II Evidence of Shashi PW-1 to the effect she had seen the appellant descend from the second floor at the time the deceased was found burnt i.e. appellant being present in his matrimonial house along with the deceased and his attempting to flee. III Recovery of articles; namely, match box, match sticks and can of kerosene oil at the instance of the appellant. 4. Vide impugned judgment and order dated 22.03.01, convicting the appellant, the learned Trial Judge has held that the testimony of Dr.R.Dayal PW-10, that the deceased had informed him that the appellant had poured kerosene oil on her and thereafter set her on fire is trustworthy; that the evidence of Shashi PW-1 to the effect she had seen the appellant descend from the floor where the room where the deceased was found burnt was situated, soon after the occurrence, is a circumstance which strongly points towards the guilt of the appellant. Crl. A.228/2001 Page 4 of 30 5. Machinery of law was put into motion when Const. Rishipal PW-17, duty constable at GTB Hospital, informed the duty officer at police post Mandawli that a lady named Rekha has been admitted in the hospital in a burnt condition by her husband Gokul, based whereon, SI Keir Singh recorded DD No.22, Ex.PW-18/A at 12.15 P.M. on 13.11.98; noting the said information. 6. Taking along a copy of the afore-noted DD Entry, SI Vijay Pal PW-16, accompanied with Const. Narayan Singh PW-14, went to GTB hospital where they were informed that the deceased is fit for making a statement. No eye witness was found present at the hospital. SI Vijay Pal telephonically contacted Mr.Ravi Dhadich PW-3, Sub-Divisional Magistrate, and requested him to come to the hospital for recording the statement of the deceased, whereupon Ravi Dhadich reached the hospital and started recording the statement Ex.PW-3/A of the deceased. However, the deceased was not able to make a complete statement and the same i.e. Ex.PW-3/A remains an inchoate statement. 7. Thereafter SI Vijay Pal PW-16 and Const. Narayan Singh PW-14, proceeded to the spot where Rekha was burnt. From the place of the occurrence, SI Vijay Pal, made an endorsement Ex.PW-16/A on copy of the DD Entry Ex.PW-18/A Crl. A.228/2001 Page 5 of 30 and handed over the same to Const. Narayan Singh PW-14, for registration of an FIR. Const. Narayan Singh took Ex.PW-16/A to police station Trilok Puri where HC Brahm Singh PW-5, recorded FIR No.944/98, Ex.PW-5/A at 6.05 P.M. on 13.11.98. SI Vijay Pal prepared the rough site plan Ex.PW-16/B of the place of the occurrence at the instance of Shashi PW-1, the landlady of the house; in which statement, Shashi informed SI Vijay Pal that when she heard of the deceased being burnt, as she was going up she saw the accused coming down, but at her instance he went up with her and at her instance took the deceased to the hospital. 8. Since the conduct of the appellant was suspicious, SI Vijay Pal returned to the hospital and arrested the appellant. 9. The deceased succumbed to her injuries the same day i.e. on 13.11.1998 at around 11:30 PM. Constable Rishipal PW- 17, informed HC Brahm Singh PW-5, about the said fact, on receipt whereof HC Brahm Singh recorded DD No.25, Ex.PW- 5/C, noting the said information. 10. On the next day i.e. 14.11.1998 the appellant was interrogated by SI Vijay Pal PW-16, in the presence of Const. Lekh Raj PW-15 and Const. Narayan Singh PW-14. The appellant made a disclosure statement Ex.PW-14/B wherein he admitted his guilt and stated that he can get recovered the Crl. A.228/2001 Page 6 of 30 can of kerosene oil and the matchsticks used by him for setting the deceased on fire. Pursuant thereto, he led the afore-noted police officers to the room where the deceased was found burnt and got recovered a can of kerosene oil, a match box containing about 20 match sticks, some used match sticks and burnt ash from the said room which were seized vide memo Ex.PW-7/A. 11. The body of the deceased was seized and sent to the mortuary of G.T.B. Hospital, where Dr.Gaurav Vinod Jain PW-4, conducted the post-mortem and made the report Ex.PW-4/A recording as under:- “External ante-mortem injuries: - Superficial to deep burns, involving 98% of the body surface area, and spacing the soles, parts of palms, and occipital area over the scalp. Pinna on both sides and tips of nose shrunken. Singeing of body and scalp hair present. Facial, pubic and axillary hair burnt and show singeing. Sooty blackening present all over. The underlying tissues in the burnt area show eryonema. No other external ante mortem injury could be ascertained.” 12. He opined that the cause of the death was shock resulting on account of ante mortem flame burn involving 98% of the total body surface area. 13. After conducting the post-mortem, the doctor preserved the scalp hair and blood of the deceased on gauze piece for Crl. A.228/2001 Page 7 of 30 forensic examination which were taken possession of by SI Vijay Pal PW-16, vide memo Ex.PW-16/E. 14. At the trial, Const. Mahavir PW-18, proved that DD Entry No.22, Ex.PW-18/A was recorded by SI Keir Singh. Inspector Satyapal Singh PW-12, deposed that he had taken over the investigation of the present case from SI Vijay Pal on 15.11.98. SI Mahesh Kumar PW-10, a draftsman proved the site plan to scale Ex.PW-10/A and deposed that he had prepared the same on 10.12.98 with the assistance of Inspector Satyapal Singh. (It be noted here that two witnesses of the prosecution namely SI Mahesh Kumar and Dr.R.Dayal have been marked as PW- 10). Dr.Gaurav Vinod Jain PW-4, proved the post-mortem report Ex.PW-4/A. Const. Kuldeep Singh PW-9, a photographer, deposed and proved that the photographs Ex.PW-9/7 to Ex.PW-9/11 of the place of occurrence; negatives whereof were Ex.PW-9/1 to Ex.PW-9/6 were taken and developed by him. Ravi Dhadich PW-3, Sub-Divisional Magistrate, proved that he had recorded the statement Ex.PW-3/A of the deceased and that the said statement was the partial statement of the deceased as she was not able to speak properly during the course of her statement and midway the doctor declared her unfit for statement. Crl. A.228/2001 Page 8 of 30 15. We ignore the testimony of the formal police witnesses as also the witnesses to the recovery of the kerosene oil can, the burnt matchsticks and the matchbox containing matchsticks pursuant to the disclosure statement of the appellant. We do so for the reason, the police had already accessed the room where the deceased had been burnt prior to the disclosure statement made by the appellant and had noted the presence of said articles in the room, i.e. the police had knowledge about the presence of said articles in the room before the disclosure statement of the appellant was recorded. We shall be noting the testimony of Shashi PW-1, Sharda PW- 2, Rajender Singh PW-7 and Suresh PW-13 in respect of which testimonies, submissions were made during arguments in the appeal. 16. Shashi PW-1, the landlady of the house, deposed that she and her husband had inducted the appellant as a tenant in a room situated on the second floor of their house 3½ months prior to the incident and that the appellant used to live with his wife Rekha (deceased) in the said room. That on the day of the incident, at around 6.00 A.M., four persons who claimed themselves to be the maternal uncle, mother, wife and male child respectively of the appellant had come to the house and had gone to the room where the appellant used to live with Crl. A.228/2001 Page 9 of 30 the deceased. At about 10.30 A.M. when she was present at the ground floor of her house she heard voices to the effect that 'the deceased has been burnt' coming from the room where the appellant used to live with the deceased, whereupon she went upstairs to the second floor where the said room was situated and found that the deceased had been badly burnt. While going upstairs she had seen the appellant coming down from the second floor, but he thereafter removed the deceased to the hospital. 17. Sharda PW-2, a neighbour of the appellant, deposed that the appellant used to live with his wife whose name was Rekha (deceased) in the house in question since about three months prior to the incident. That on hearing noises she went to the room where the deceased was found burnt and found that the said room was locked. She deposed that the deceased used to remain sick and was depressed because of her sickness and that the deceased had told her that she was contemplating suicide. 18. Since PW-2 introduced facts helpful to the appellant, she was declared hostile by the Court at the request of the learned public prosecutor and was cross-examined by the learned public prosecutor. On being cross examined, with reference to her statement that the door of the room was locked, Sharda Crl. A.228/2001 Page 10 of 30 PW-2 stated: 'when I heard the noise coming out from the room of the accused the door whereof was closed from inside, I had called the accused Gokul who was on roof. When I called Gokul from the roof, the mother, father, his earlier wife who had the child were sitting there with the accused Gokul on the roof.' 19. Relevant would it be to note that the witness changed the expression of the door being „locked‟ to the door being „closed‟. 20. Rajender Singh PW-7, the landlord of the house, deposed that some persons who claimed themselves to be the relatives of the deceased had made enquiries from him about the whereabouts of the deceased in the morning of the day of the incident. That, on being pointed out by the appellant, the police had recovered a can of kerosene oil, some used match sticks and a matchbox from the room where the appellant used to live with the deceased. 21. Suresh PW-13, deposed that he is working as a manager in a brothel and that the deceased used to work there some months prior to the incident. That the deceased used to remain tense because of her illness. 22. Examined under Section 313 Cr.P.C., the appellant denied everything and pleaded false implication. He stated Crl. A.228/2001 Page 11 of 30 that the deceased was ill since a long time; that he used to live with the deceased but that she was not his wife; that the persons who had made enquiries about his whereabouts on the day of the incident were his maternal uncle, mother, wife and child respectively; that on the day of the incident he was present with his relatives on the terrace of his house when he heard a noise made by the deceased, whereupon he came down to his room and found that the deceased was badly burnt; that the recording 'alleged H/o being burnt by husband Gokul by pouring kerosene oil Informant self' contained in the MLC Ex.PW-10/A of the deceased was not made on the basis of the information given by the deceased as she was not fit for making a statement; that the deceased used to remain depressed because of her illness and hence committed suicide. 23. In defence, the appellant examined Dr.Amit Gupta DW-1, to prove the factum of illness of the deceased. He deposed that the deceased had undergone Fine Needle Aspiration Cytology (FNAC) at GTB Hospital two days prior to the incident. 24. As already noted herein above, treating the recording 'alleged H/o being burnt by husband Gokul by pouring kerosene oil Informant self' contained in the MLC Ex.PW-10/A Crl. A.228/2001 Page 12 of 30 of the deceased as the dying declaration of the deceased; believing the testimony of Dr.R.Dayal PW-10, that he had made the said recording in the MLC on the basis of the information given by the deceased to be trustworthy; holding further that the testimony of Shashi PW-1 evidenced the conduct of the appellant attempting to walk away and not helping the deceased was suggestive of a guilty mind, the learned Trial Judge has convicted the appellant. We note that the learned Trial Judge has rightly ignored the recoveries made from the room as meaningless because they were made from a place which had been accessed by the police and were from open place inside the room. 25. At the hearing, following submissions were advanced by the learned counsel for the appellant:- A The first submission advanced by the learned counsel for the appellant was that the evidence on record probablizes the defence of the appellant that the deceased had committed suicide. The first limb of the said argument was that the evidence on record shows that the room where the deceased was found burnt was locked from inside which rules out the possibility that the appellant had set the deceased on fire, inasmuch as the appellant was found present outside the said room soon after the occurrence. Drawing our attention to the Crl. A.228/2001 Page 13 of 30 photograph Ex.PW-9/11 which shows the inside of the room where the deceased was found burnt. The photograph depicts a door on the ground with the latch pushed upwards. The second piece of evidence pointed out by the counsel to urge that the room in question was locked, is the testimony of Sharda PW-2, that when she had gone to the room in question soon after the incident she found that the door of the room in question was locked from inside. Counsel urged that this shows that the deceased had committed suicide. The submission was attempted to be made good with reference to the testimony of PW-13, DW-1 and PW-2 pertaining to the sickness of the deceased; it was urged that there was every possibility of the deceased committing suicide. B The second submission was that Dr.Gaurav Vinod Jain PW-4, the doctor who conducted the post-mortem, during cross examination said that the burn injuries could be self inflicted. Hence, counsel urged that even this evidence did not rule out the possibility of a suicide. C The third submission advanced by the learned counsel was predicated upon the testimony of Sharda PW-2. The counsel urged that the testimony of Sharda that she saw the appellant on the roof i.e. the terrace when she went to the Crl. A.228/2001 Page 14 of 30 place of occurrence establishes that the accused was not present in the room when the deceased was on fire. D The fourth submission advanced by the learned counsel was that the MLC Ex.PW-10/A of the deceased cannot be relied upon for the reason it does not contain the thumb impression of the deceased. Learned counsel placed reliance upon the decision of Orissa High Court reported as Niru Nanhar Becck v State of Orissa 1995 Cri LJ 2412. E The fifth submission advanced by the learned counsel for the appellant was, that a dying declaration is to be tested on the touchstone of following two tests namely, (i) whether version stated by the deceased is intrinsically sound and accords with probability, and (ii) whether any material part of the dying declaration is proved to be false by other reliable evidence. Counsel urged that the MLC records that the appellant was the husband of the deceased, a fact which was incorrect as the evidence on record establishes that the lady and the child who had visited the house in the morning along with two other persons, were the wife and the child of the appellant. F The sixth submission advanced by the learned counsel was that the staff of GTB hospital was inimically disposed towards the appellant inasmuch as two quarrels had taken Crl. A.228/2001 Page 15 of 30 place between the staff of GTB hospital and the appellant prior to the incident. The first quarrel had taken place between the appellant, one Manoj and one Dharmender on one side and staff of GTB hospital on other side few days prior to the incident and that the second quarrel had taken place between the appellant and nurses of GTB hospital just two days prior to the incident. G The seventh submission advanced by the learned counsel pertained to the medical condition of the deceased soon after she was burnt. Counsel urged that the deceased had sustained extensive burn injuries on her person. The doctor who performed the post-mortem of the deceased stated that the injured had sustained 98% burn injuries. Counsel argued that having sustained such serious injuries, it is highly improbable that the deceased was conscious and in a fit medical condition to make a voluntary disclosure of the incident soon after sustaining said injuries. Counsel placed reliance upon the decisions of the Supreme Court reported as Paparambaka Rosamma v State of AP 1999 SCC (Cri) 1361 and Smt Laxmi v Om Prakash 2001 Cri LJ 3302. H The eighth submission advanced by the learned counsel was again predicated upon the decision of the Supreme Court in Laxmi's case (supra). Counsel contended that a similar Crl. A.228/2001 Page 16 of 30 statement made by the deceased to the attending doctor in the said case was not considered as a dying declaration by Supreme Court. I The ninth submission advanced by the learned counsel pertained to the conduct of the appellant in removing the deceased to the hospital. Counsel urged that the factum of removal of the deceased to the hospital by the appellant is a pointer indicating towards the innocence of the appellant. J The tenth submission advanced by the learned counsel was that there is a serious contradiction in the evidence of Const. Narayan Singh PW-14 and SI Vijay Pal PW16, with regard to the investigation conducted by them on the day of the occurrence. Counsel pointed out that Const. Narayan Singh had deposed that he along with SI Vijay Pal had first gone to the spot after the receipt of the information of the incident whereas SI Vijay Pal deposed that they had first gone to GTB hospital. K The eleventh submission advanced by the counsel was that the prosecution has failed to establish the motive of the appellant for committing the murder of the deceased which is a serious lacuna in the case of the prosecution. L The last submission advanced by the learned counsel was that the failure of the prosecution to examine the Crl. A.228/2001 Page 17 of 30 relatives of the appellant who had come to meet him on the day of the occurrence creates a serious dent in the case of the prosecution inasmuch as the said persons were material witnesses for the reason the evidence on record has established that they were present at the place of occurrence at the time of the incident and thus could have thrown some light on the incident. 26. The argument advanced by the learned counsel pertaining to the photograph Ex.PW-9/11 which shows the inside of the room where the deceased was found burnt, at first blush, seems attractive inasmuch as a door can be seen on the floor, with the latch pushed upwards. It certainly suggests, as if, the door fell on the floor after it was pushed from outside and that the latch was locking the door. But, a closer look at the photograph reveals something more, which concludes that the door did not fall on the floor on being pushed from outside. A utensil is seen on the door. This could not have happened if the door was pushed and had to be broken to gain access to the room. It shows that the door was being used as a plank to keep articles thereon. It has to be noted that the appellant and the deceased were residing in a single room which served not only as their living room but Crl. A.228/2001 Page 18 of 30 even the kitchen. It appears that the door in question was being used as a kind of a slab for placing utensils. 27. Pertaining to the fact that Sharda PW-2 had deposed that the room was locked when she reached the room, suffice would it be to note that on being cross examined by the learned public prosecutor she stated that the room was closed from inside. It is apparent that the witness used a wrong expression while deposing in examination-in-chief. It is not out of place to note that it is not the case of the appellant that the door had to be broken to gain access into the room. No such suggestion was given to PW-1 or PW-2. No suggestion was given to the investigating officer that the topology of the room showed a forced entry. 28. The submission advanced by the counsel that the testimony of the witnesses of the prosecution and the defence that the deceased was ill; that she used to remain depressed because of her illness and was contemplating committing suicide, would merit consideration only if the dying declaration of the deceased is not accepted by us. For if the same is accepted, the question of the deceased committing suicide would itself be ruled out. Of course, the conduct of the appellant who was found to be leaving the house by PW-1 is strongly indicative of his guilty mind. Crl. A.228/2001 Page 19 of 30 29. That the doctor who conducted the post-mortem stated that the burn