Crl.A.Nos.817/01 & 18/02 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment:18.03.2011 + CRL.APPEAL No.817/2001 PRATIMA DEVI & ORS ..... Appellants Through: Mr.M.L.Yadav, Advocate versus STATE ..... Respondent Through: Mr.Lovkesh Sawhney, Advocate And + CRL.APPEAL No.18/2002 VIR SINGH & ANR. ..... Appellants Through: Mr.M.L.Yadav, Advocate versus STATE ..... Respondent Through: Mr.Lovkesh Sawhney, Advocate CORAM: HON'BLE MR. JUSTICE ANIL KUMAR HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the 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 SURESH KAIT, J. 1. By judgment dated 28.03.2001, the trial court has convicted all the 5 accused persons in the case FIR No.216/1999 PS Lodhi Crl.A.Nos.817/01 & 18/02 Page 2 of 32 Colony, New Delhi, under Section 302/34 IPC on the charge that all the accused persons in furtherance of their common intentions, had burnt deceased Sonu by pouring kerosene oil on him on 07.06.1999 at about 11:00 PM in Jhuggi No.181, A block, Rajiv Gandhi Camp within the jurisdiction of PS Lodhi Colony, New Delhi. 2. Vide order dated 30.03.2001 all the accused persons were punished with life imprisonment, and payment of fine of Rs 10/- each and in default to undergo simple imprisonment till rising of the Court. The benefit of Section 428 Cr.P.C. was also given to them. 3. Appellants Pratima Devi, Basanti and Kavita have jointly challenged the aforesaid judgment/order by filing Crl.Appeal No.817/2001 and appellants Vir Singh and Anil Kumar have filed Crl.Appeal No.18/2002 challenging the same. 4. The facts in brief are that on 07.06.1999 Sonu (deceased) had gone to his in-laws house to fetch his wife Neetu @ Lali (DW-3) at A- 181, Rajiv Gandhi Camp, Lodhi Colony, New Delhi. Vir Singh, father-in-law of deceased and Anil Kumar @ Pappu brother-in-law of the deceased were drunk at that time. An altercation took place between the deceased, his father-in-law and brother-in-law at around 11:00 PM, which ultimately escalated into a quarrel. Appellants Pratima, Basanti and Kavita allegedly beat Sonu. Though he received beatings, he insisted on going home with Neetu. He was Crl.A.Nos.817/01 & 18/02 Page 3 of 32 allegedly caught hold by Pratima, Basanti and Kavita. Sister-in-law of Sonu namely Jyoti fled from that place. Appellant Vir Singh and Anil then poured kerosene oil on Sonu, and Vir Singh lit a bidi, and Anil lit a match stick and set Sonu ablaze. 5. Somehow, the deceased Sonu came out of the Jhuggi of Vir Singh and succeeded in running from that place. However, he fell down near the jhuggi of a neighbour. Number of persons gathered there and water was sprinkled on Sonu to douse the fire. Sonu was removed to the hospital by his sister-in-law Jyoti, who had earlier fled, and he was admitted at 12:30 AM on 08.06.1999. 6. The deceased Sonu was medico legally examined by Dr.Rajinder Kumar PW-19 vide MLC Ex.PW-19/1. Since Abulash, a neighbour had also sustained burn injuries was also examined vide MLC Ex.PW-19/2. 7. At about 11:45 PM someone made a telephone call at No.100 and informed the PCR about the incident. The same information was transmitted through wireless operator to police station Lodhi Colony, New Delhi and was recorded in DD No.75-B (Ex.PW-8/A). The said DD No.75-B was handed over for investigation to Rajpal PW-8 HC. He along with Ct. Satish Chand (PW-14) went to the place of occurrence. Since, the injured had already been removed to the hospital by the PCR van, they went to Safdarjung Hospital. HC Crl.A.Nos.817/01 & 18/02 Page 4 of 32 Rajpal PW-8 moved an application Ex.PW-8/B to ascertain as to whether Sonu was fit for making a statement. Dr.Anil Khurana (PW- 23) declared deceased Sonu fit for making a statement at 1:45 AM (Ex.PW-23/1). HC Rajpal (PW-8) recorded the statement of the deceased vide Ex. PW-8/C and sent it to the police station for lodging the FIR and the same was registered bearing No.216/1999 under Section 302/34 IPC, as Ex.PW-2/1. 8. Realizing the gravity of the offence, the SHO concerned, directed (PW-3) SI Hulash Giri to get the available Magistrate for recording the statement of burnt Sonu. Ms.Poonam Chaudhary (PW- 12), learned MM, New Delhi after obtaining the fitness certificate Ex.PW-19/4 from the doctor, recorded the statement Ex.PW-12/A of Sonu. Her proceedings are Ex.PW-12/B. 9. Deceased Sonu though fought for his survival but he breathed his last on 12.06.1999 at 7:15 AM. The information about the death of Sonu was transmitted to PS vide DD No.87-B, copy of which is Ex.PW-22/1. 10. SI R.D.Pandey (PW-18) had collected the burnt pieces of polythene sheets and the burnt pieces of newspapers Ex.P/2. A plastic can, Ex.P/1 containing few drops of kerosene oil, was also recovered from jhuggi No. A-181 of accused Vir Singh. The burnt pieces of plastic sheets were further recovered from jhuggi No.A-180, Crl.A.Nos.817/01 & 18/02 Page 5 of 32 A-181, A-447, A-260 & A-153. 11. SI R.D.Pandey (PW-18) prepared a rough site plan Ex.PW-8/1 and he also got a scaled site plan Ex.PW-13/A prepared through Inspector Devender Singh (PW-13). 12. On 08.06.1999, appellants Pratima, Basanti and Vir Singh were arrested vide their personal search memos Ex.PW-6/B to PW- 6/D respectively. The place of occurrence was photographed vide Ex.PW-7/1 to PW-7/8. Inquest proceedings were completed vide Ex.PW-18/5. Dr.Alexender (PW-5) had conducted the post-mortem Ex.PW-5/1. 13. On 23.06.1999, appellant Kavita was also arrested and subsequently on 22.07.1999 appellant Anil was arrested. 14. To prove the guilt of the accused persons the prosecution examined as many as 23 witnesses. The statements of all the accused persons were recorded under Section 313 Cr.P.C. They had produced three DWs in their defence. 15. While making statement under Section 313 Cr.P.C. appellant Vir Singh put his defence by taking the plea of alibi, stating that at the time of occurrence, he was away with his employer Dinesh Arya, in Pant Nagar. The defence taken by accused Pratima Devi was that she was in a sound sleep at that time therefore, she does not know as to what had happened. She further stated that she was sleeping Crl.A.Nos.817/01 & 18/02 Page 6 of 32 with Neetu (DW-3) in the same jhuggi. She even stated that deceased Sonu did not come to meet them. Accused Anil Kumar has also taken the plea of alibi by stating that he had gone to his employer in Lajpat Nagar and thereafter, he immediately went to sleep after coming home. He further stated that after about two months, he was arrested. The defence of Basanti was that she was present at her jhuggi No.A-183. Therefore, she was not present at the place of occurrence and that she had nothing to do with the incident. Accused Kavita had also claimed the plea of alibi stating that she was in Khureji and was not near the place of the alleged occurrence. 16. The present case rests on the three dying declarations, as observed by the trial Judge. First recorded by Dr.Rajender Kumar PW-19 which is as under:- “The alleged history of burn injuries when all members of patient‟s in-laws family poured kerosene oil on him to set him on fire resulting in burn injuries.” 17. The time of the burning of deceased was allegedly 10:00 PM on 07.06.1999. While the time of admission of the deceased was 12.30 AM on 08.06.1999. In the MLC, the nature of injuries was opined to be 95% fresh burns. On perusal of the MLC it transpires that deceased Sonu was brought by her sister-in-law Jyoti. Dr.Rajender Crl.A.Nos.817/01 & 18/02 Page 7 of 32 Kumar (PW-19) has proved the MLC as Ex.PW-19/1. 18. Second dying declaration of deceased Sonu was recorded by HC Rajpal Singh (PW-8) and the left thumb impression of the deceased Sonu was also obtained on the said dying declaration. The English translated version of the same is as under:- “Statement of Sonu S/o Mahim Chand r/o H.No.20/135, Trilokpuri, Delhi, aged 20 years. On 07.06.1999, at about 11:00 PM he came to his in-laws house at A-Block, Rajiv Gandhi Camp and then he was involved in some altercation with his father-in-law Vir Singh on fetching his wife Neetu @ Lali and further stated that his brother-in-law Pappu, who was in drunken condition started quarrelling with him and his brother-in-law said that they will not send Lali during the night time. On this issue, hot discussion took place and his brother- in-law Pappu and his father-in-law Vir Singh poured kerosene oil on him from the plastic can and his mother-in-law and sister-in-law Kavita caught hold from back and his brother-in-law Pappu lit fire on him by match stick and at the end he stated that legal action be taken against all the accused persons.” 19. The aforesaid statement was attested by HC Rajpal PW-8 and the same is proved by HC Rajpal as Ex.PW-8/C. 20. The third dying declaration was recorded by learned MM, Ms.Poonam Chaudhary (PW-12). After taking the fitness certificate of Sonu, she recorded the statement of deceased Sonu, which is in question-answer form. The same is as under:- Crl.A.Nos.817/01 & 18/02 Page 8 of 32 “Q- How did you get burnt? A- My wife Neetu Charan had called me at her parent‟s house where she was already there. I was talking to my wife. My father-in-law Vir Singh was in a drunken condition and brother-in-law Pappu was also drunken. In the meantime, my mother-in-law and my elder sister-in-law Basanti and Kavita had beaten me up. Thereafter, I said that leave me and let me go to my house. Thereafter, my mother-in-law, sister-in-law Basanti and Kavita caught hold of me. My sister-in-law Jyoti ran away and my father-in-law Vir Singh and Pappu poured kerosene oil on me from a plastic can. I tried to free myself from their clutches but could not succeed. My father-in-law Vir Singh lit bidi and my brother-in-law Pappu lit match stick on me and I started burning. I ran and fell down in neighbour‟s jhuggi. All neighbours cried. Public persons doused the fire by putting water on me and I was made to lay down there and police was called. One of the neighbours also caught fire. I do not remember his name. Police brought me in hospital. Q- Do you want to say something more? A- I was married five months‟ back. During this period a quarrel took place between me and my wife only once. I had no quarrel with my wife. I had quarreled with my in-laws once. My wife went to her house without telling me.” 21. Learned MM had also certified that the statement had been given voluntarily. It had been read over to the victim and was admitted by him to be correct. Nothing has been added or subtracted therefrom. The thumb impression of Sonu/victim was taken on the statement. This statement has been proved by the learned MM as Ex.PW-12/C. Crl.A.Nos.817/01 & 18/02 Page 9 of 32 22. The Trial Court has mainly relied upon the dying declaration made by the deceased Sonu before Ld.MM (PW-12). The Trial Judge further has opined that the dying declaration was voluntary without any pressure or influence and the concerned MM has also endorsed the dying declaration recorded by her stating that she had observed that the victim/patient was conscious and voluntarily gave the statement. 23. As per the Trial Judge, apart from the dying declaration, the other prosecution witnesses have also supported the prosecution story. 24. The learned counsel for the appellants argued separately on behalf of appellant Basanti contending that, though she had been staying in the same locality, her house was not the immediate neighbour to Jhuggi No.A-181 which belongs to her father accused Vir Singh. He emphatically contended that after knowing about the incident, Basanti came over to the jhuggi of her father, however, she was not involved in committing the offence. According to him that fact can be inferred on account of inconsistencies in the various dying declarations of the deceased and the fact that on the basis of the site plans it is apparent that her jhuggi is not adjacent to the jhuggi where the deceased was allegedly burnt by other accused. Crl.A.Nos.817/01 & 18/02 Page 10 of 32 25. Learned counsel for the appellants had assailed the prosecution case on the ground that there are inconsistencies in the dying declarations; one recorded by Dr. Rajender Kumar (PW-19); one recorded by HC Rajpal (PW-8), which had been exhibited as Ex.PW-8/C and the last one recorded by ld. MM, which was exhibited as Ex.PW-12/A. He submits that there are contradictions in the statements of HC Rajpal PW-8 and Ct. Satish Kumar (PW-14). As according to him someone in the hospital with Sonu had prompted him to make the improvements in his statements. He has pointed out that there are cuttings in the statement recorded by HC Rajpal Ex.PW-8/C. It shows that either Sonu was unfit to make the statement or HC Rajpal had introduced the facts. Therefore, HC Rajpal had deposed that the doctor on duty had refused to become a witness on the ground that he had to attend the other patients however; this fact has been contradicted by Dr. Anil (PW-23). 26. It was further argued that the dying declaration recorded by ld. MM (PW-12), was not in accordance with the rules prescribed under the Punjab and Haryana High Court Rules (as applicable to Delhi High Court) that MM should have obtained the fitness certificate of the patient not only at the time of starting but also at the time of concluding the statement. The appellant Basanti‟s name is not mentioned in the statement Ex.PW-8/C cannot be a minor Crl.A.Nos.817/01 & 18/02 Page 11 of 32 inconsistency as it involves the life and liberty of one of the appellants. As per the learned counsel for the appellant, Sonu was unfit to make the statement after having sustained 95% burn injuries. If however, Sonu was fit to make the statement before HC Rajpal then, in that case there would not have been any overwriting on the MLC regarding the age of Sonu. In MLC Ex.PW-19/1 the age of Sonu is mentioned as 20 years. If the MLC was in possession of HC Rajpal, he would not have mentioned the age of deceased Sonu as 23 years in Ex.PW-8/B. Similarly, he would not have mentioned the age of Sonu as 23 years in Ex. PW-8/C and then changed it to 20 years. As per the learned counsel, HC Rajpal had recorded the statement of Sonu when he was in casualty, however, PW-23 had stated that Sonu was in the Intensive Care Unit which is different from casualty. 27. Learned counsel for the appellants vehemently argued that MM (PW-12) should have recorded as to what was stated by deceased Sonu. He further argued that the doctor, who had declared Sonu fit for the making statement which was recorded by (PW-12) has not been examined by the prosecution and his handwriting and signature have instead been proved by the prosecution witness, Dr.Rajender (PW-19). Hence, Dr.Sahil (not examined) who had given the opinion about the fitness of Sonu, before his statement had been Crl.A.Nos.817/01 & 18/02 Page 12 of 32 recorded by PW-12, should have been examined by the prosecution. In support of this submission, learned counsel has relied on Shanti Lal Vs.State of Delhi 1975 CLR 429 while stating that the prosecution has failed to prove that Sonu was fit to make the statement before the MM (PW-12). 28. Learned counsel for the appellant stated that Sonu‟s entire body was bandaged except for his face while recording his statement as stated by (PW-12) therefore thumb impression of Sonu could not have been obtained. He further pointed out that in the post-mortem report i.e. Ex. PW-5/1 it was recorded that every part of the deceased was burnt, therefore as per his contention if every part of the body was burnt then the thumb impression could not have been taken. 29. The learned Additional Public Prosecutor has refuted the pleas and contentions raised on behalf of the appellants. He has contended that the dying declarations are admissible under Section 32 of the Evidence Act. Dying declarations have sanctity and solemnity attached to them as a dying man is not likely to tell lies or to concoct a case as to implicate innocent persons. The learned counsel urged that the dying declarations first recorded by Dr.Rajinder Kumar, and thereafter by HC Rajpal Singh (PW-8) and lastly by the MM are consistent and inculpate the accused persons. Before the dying Crl.A.Nos.817/01 & 18/02 Page 13 of 32 declarations were recorded the doctors had also certified that the deceased Sonu was fit to make the statements. 30. The learned Additional Public Prosecutor also emphasized that the MM (PW-12) had recorded the dying declarations in question and answer form after ascertaining his fitness from the doctor who had given a certificate to that effect. According to him the dying declaration recorded by the MM is true and voluntary. He also emphasized that as no one was present in the room where the dying declaration of the deceased was recorded, therefore, no one could have possibly influenced the deceased. He also contended that a dying declaration recorded by a Magistrate stands on a higher pedestal and on the basis of the categorical dying declaration that the deceased was caught hold by his mother-in-law Basanti and sisters-in-law and Kavita, kerosene was poured on him by his father- in-law Vir Singh and his brother-in-law Anil who lit a matchstick and set him ablaze; this fact can neither be doubted nor does it require any corroboration in the facts and circumstances. 31. The learned Additional Public Prosecutor has also contended that the alleged overwriting in the dying declaration of the deceased made before HC Rajpal Singh regarding the age of the deceased, would not make the dying declaration doubtful. In any case Crl.A.Nos.817/01 & 18/02 Page 14 of 32 according to him this plea is trivial and does not cast any doubt about the dying declaration. It is contended that in any case the dying declaration recorded by the MM cannot be rejected in the facts and circumstances. The plea that the dying declaration was not recorded by the MM in accordance with the rules has not been established. Lastly, the plea of the counsel for the appellant that, even after conclusion of the dying declaration, the fitness of the deceased ought to have been ascertained is without any basis. This plea is not based on any rules or guidelines or any precedent. It is also contended that (PW-19) has proved the fitness certificate given by Dr.Salil Ex.PW-12/B as he was conversant with his handwriting and signatures and in the circumstances non-examination of Dr.Salil would also not cast any doubt about the fitness of the deceased when he made the dying declarations. It is submitted that neither the (PW-19) nor the MM had any prejudice and bias to falsely implicate the appellants so as to record a dying declaration contrary to what was stated by the deceased or allegedly not stated. 32. The learned Additional Public Prosecutor has also refuted the plea of the learned counsel for the appellants that the deceased could not have thumb marked the dying declaration on the ground that his entire body was bandaged. It is submitted in the statement that the entire body was bandaged does not mean and reflect that the Crl.A.Nos.817/01 & 18/02 Page 15 of 32 deceased‟s mouth, nose, eyes and fingers were also bandaged. From the post mortem report it cannot be inferred that the thumb of the deceased was burnt to the extent that the skin had peeled off and the deceased could not have thumb marked the dying declaration. The MM was also not inimical to the appellant so as to take the thumb impression of someone else and to implicate them. 33. The marriage of the deceased with the daughter of Vir Singh and Pratima and sister of Basanti, Kavita and Anil is not disputed. The deceased had sustained burn injuries which resulted into his death is also established on record. Whether the burn injuries were accidental or were caused by the appellants or the deceased had burnt himself, as has been deposed by the deceased‟s wife Neetu, DW-3 has to be ascertained and adjudicated on the basis of evidence and record. 34. The MLC of the deceased, Ex.PW19/1 which was recorded by the doctor at 12.30 AM on the basis of the information divulged by the deceased himself, recorded that all the members of the in-laws of the deceased poured kerosene on him and set him on fire. The doctor had opined that the deceased had 95% fresh burns and he was brought by Jyoti, his sister-in-law. The fact about the burn injuries are also reflected from the death summary Ex.PW1/1 and the post mortem report Ex.PW5/1. The post mortem report also reveals that Crl.A.Nos.817/01 & 18/02 Page 16 of 32 the death was due to septicemia caused by anti mortem thermal burn injuries. Dr.Alexander (PW-5) had deposed in his statement the post-mortem was conducted by him and the smell of kerosene was present all over the body of the deceased. Scalp hairs of the deceased were also taken and were handed over to IO. The report of CFSL Ex. PW18/6 reveals the residue of kerosene on the exhibits Ex.1/a plastic box (dabbi) containing scalp hairs of the deceased and Ex.2/a plastic can, black in colour which was seized by IO from the place of occurrence. 35. The testimony of Atiq Ahmed (PW-4) also reveals that on 7th June, 1999 at about 10 or 10:15 PM noises were heard nearby his jhuggi and the people were shouting “Aag Lug Gai- Aag Lug Gai” and he had seen that a boy named Sonu was burning and was taken to the hospital by Jyoti and another person named Gupta ji. Though this witness was declared hostile, but his testimony to some extent does corroborate the prosecution version, and hence can be relied on. Reliance for this can be placed on Gora Singh Vs. State, (1997) 9 SCC 338, Balram Prasad Agarwal Vs. State of Bihar & ors; (1991) 3 SCC 627, Khujji Vs. State of MP ; (1976) 1 SCC 727, Sat Paul Vs Delhi Administration holding that turning hostile of a prosecution witness does not mean that his testimony has to be treated as effaced or washed off the record all together. The Supreme Crl.A.Nos.817/01 & 18/02 Page 17 of 32 Court had held that it can be accepted to the extent his version is found to be dependable, on a careful scrutiny of the entire evidence. 36. The next question for determination is whether the deceased committed suicide or got accidentally burnt or he was burnt by the appellants. Accepting the testimony of deceased‟s wife Neetu that the deceased had committed suicide is not rationally possible, as no other witness had deposed that he had committed suicide. Also to none of the witnesses any suggestions were given that the deceased had committed suicide. The accused in their statements under Section 313 of the Criminal Procedure Code had also not revealed that the deceased had committed suicide. No case has been made out that the deceased got accidentally burnt. The recovery memo Ex.PW18/2 reveals the details of jhuggis which had caught fire on account of deceased running from the Jhuggi of the appellants on to the passage outside. This fact and document does not show in any manner that the deceased had committed suicide. A plastic can of kerosene was recovered from inside the Jhuggi No.A-181. In the facts and circumstances of the case it is highly improbable that the deceased knew that his wife would not be sent with him and he had pre planned to commit suicide and had brought kerosene oil in a can with him with