Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 1 of 36 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision : 08th January, 2010 + CRL. A. No. 643/2003 GURCHARAN ..... Appellant Through: Ms. Rakhi Dubey, Advocate versus STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate CRL. A. No. 638/2003 ARUN ..... Appellant Through: Mr. Bhupesh Narula, Advocate versus STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate CRL. A. No. 845/2003 RAMPAL ..... Appellant Through: Mr. Bhupesh Narula, Advocate versus STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate CRL. A. No. 123/2004 GEETA & ORS. ..... Appellants Through: Mr. Bhupesh Narula, Advocate versus STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate CRL. A. No. 596/2003 ASHOK KUMAR ..... Appellant Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 2 of 36 Through: Mr. Bhupesh Narula, Advocate versus STATE ..... Respondent Through: Mr. M.N. Dudeja, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes PRADEEP NANDRAJOG, J. (Oral) 1. The name of the deceased is Kamlesh. The relationship of the accused person with Kamlesh may be noted. 2. Gurucharan Singh, the appellant in Crl.A. No.643/03 is her husband. Bal Saroop and Chandi, who died during trial, were her father-in-law and mother-in-law respectively. Arun, the appellant in Crl.A.No.638/03 is the younger brother of Gurucharan Singh. Geeta, the appellant No.1 in Crl.A.No.123/04 is the wife of Arun. Rani and Nirmala, appellants No.2 and 3 in Crl.A. No.123/2004 are the sisters of Gurucharan Singh. Rampal and Ashok Kumar, the appellants Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 3 of 36 of Crl.A.No.845/04 and Crl.A.No.596/04 respectively are the husbands of Rani and Nirmala respectively. Manju, acquitted of all charges framed against her by the learned trial judge is the sister-in-law of Kamlesh being the wife of the real brother of Kamlesh. 3. The husband, parents-in-law of Kamlesh, her two sisters-in-law (nanads) and their respective husbands i.e. the two nandois of Kamlesh, her younger brother-in-law, his wife and her sister-in-law Manju i.e. 10 persons were accused in FIR No.171/99, PS Mansoravar Park under Sections 498- A/302/109/34 IPC. Four of them; namely Gurucharan, his younger brother Arun, Arun‟s wife Geeta and Nirmala, the sister of Gurucharan, were accused in FIR No.149/99 PS Bhajanpura under Sections 498-A/406/506/34 IPC. 4. We note that both afore-noted FIRs were clubbed for trial and charge under Section 302/34 IPC were framed against Gurucharan Singh, Arun, Geeta, Rampal, Rani, Ashok Kumar, Nirmala, Chandi and Bal Saroop. Manju was charged for having committed the offence punishable under Sections 302/109 IPC. All of them except Manju were charged for having committed the offence punishable under Section 498- Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 4 of 36 A/34 IPC. Gurucharan and his parents were charged for the offences punishable under Section 406/34 IPC. Charge under Section 506/34 IPC was framed against Bal Saroop, Chandi, Gurucharan, Arun and Geeta Devi. 5. Kamlesh and Gurucharan were married on 22.04.1990. Unfortunately, the marriage turned turbulent after about 3-4 years and reached a crescendo in the year 1997 when on 13.01.1997 Kamlesh addressed a communication Ex.PW-9/A to the Crime Branch, Women Cell, Nanakpura informing that her husband, her parents-in-law, her devar Arun, his wife Geeta, her nanad Smt.Nirmala used to harass her for dowry and was compelled to leave her matrimonial house and live with her parents. 6. Surprisingly, in her further complaint she started inculpating Manju, the wife of her deceased brother who was residing with her i.e. Manju‟s father as an instigator. We note that Manju had lodged a complaint with the police for dowry harassment in which she had named her husband, her parents- in-law and her sister-in-law Kamlesh alleging that Kamlesh used to instigate her brother i.e. Manju‟s husband to harass Manju to compel Manju‟s parents to give dowry. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 5 of 36 7. On a complaint filed by Kamlesh FIR No.149/99 PS Bhajanpura for the offences punishable under Sections 498- A/406/506/34 IPC was registered against Chandi, Bal Saroop, Gurucharan, Arun, Geeta and Nirmala on 20.03.1999. 8. With the intervention of family friends, the marital discord between husband and wife i.e. Kamlesh and Gurucharan was resolved and Kamlesh who had left her matrimonial house returned with an assurance that she would not be troubled. Unfortunately, the return journey of Kamlesh to her matrimonial house proved dangerous for her. 9. On 13.07.1999 at around 7.00 A.M. Kamlesh suffered burn injuries in her matrimonial house and she was taken to GTB hospital by Saraswati, the wife of the elder brother of Gurucharan. It be noted that Saraswati and her husband reside in the neighbourhood where the matrimonial house of Kamlesh was situated. 10. Information being given at the concerned Police Station i.e. PS Mansarovar Park of a lady being burnt, SI Aishveer Singh PW-25 accompanied by Ct.Narender and Ct.Ramesh Kumar reached the hospital and collected the MLC Ex.PW-22/A of Kamlesh who was found admitted in the Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 6 of 36 casualty in a burnt condition. The Sub Divisional Magistrate of the area Sh.Prakash Chand PW-19 was requested by SI Aishveer Singh to reach the hospital. This information was conveyed to Sh.Prakash Chand at around 9.00 A.M. on 13.07.1999 and he reached the hospital at around 10.15 A.M. At point „A‟ on the MLC Ex.PW-22/A, Sh.Prakash Chand obtained the certification pertaining to the fitness of Kamlesh from Dr.Sanjay Kapil PW-22 and proceeded to record the statement Ex.PW-19/A of Kamlesh. 11. The statement Ex.PW-19/A of Kamlesh is in question-answer form and has been scribed in Devnagri script. The translated version of the statement reads as under:- “Q. What is your name? A. Kamlesh. Q. Name of your Husband? A. Gurucharan. Q. How many years since you got married? A. 9 years. Q. How did you get burnt? A. In the morning, my mother-in-law Chandi, father-in- law Bal Saroop, sister-in-law (Nanad) Rani, sister-in-law (Nanad) Nirmala, brother-in-law (Nandoi) Ashok Kumar, brother-in-law (Nandoi) Ram Pal, brother-in-law (devar) Arun, Devrani Geeta wife of Arun and husband Gurucharan, gave me beatings. Thereafter, when I went Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 7 of 36 to my room to sweep the floor, all of them followed me into the room and my sisters-in-law (nanad and devrani) caught hold of me. My husband rushed out and brought kerosene oil in a plastic can and spilt it over me. My elder sister-in-law Rani then set my saree on fire by lighting a match stick. Both my Nandois (brothers-in-law), my parents-in-law and my devar and devrani caught hold of me and by doing so they prevented me from running away. This incident took place at 7:00 AM in the morning. My bhabhi Manju who resides in Uttam Nagar is also an accomplice in the incident. She used to tell the others to finish off the daily duels at once. Even last evening she had visited our house. Q. Who brought you to the hospital? A. My jethani Saraswati, brought me to the hospital in a rickshaw. Q. Why have you been burnt? A. They burnt me because of inadequate dowry. Q. What all did they demand for dowry? A. My mother-in-law and sister-in-law demanded house and land from me. Q. What does your father do? A. He does labour work. The land belongs to my grandfather, it must be some 100-200 yards in area. Q. When did you get married? A. 12.4.1990. Q. What was the dowry given in your marriage? A. All that could be given as per our means was given.” 12. After recording the statement Ex.PW-19/A and obtaining the left toe impression of Kamlesh thereon for the Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 8 of 36 reason her hands were affected by the burns, Prakash Chand handed over the statement to SI Aishveer Singh PW-25, who made an endorsement Ex.PW-25/A beneath the statement and directed Ct. Narender to go and get registered the FIR. 13. Saraswati, the sister-in-law of Kamlesh who had removed Kamlesh to hospital met SI Aishveer Singh in the hospital and he recorded her statement under Section 161 Cr.P.C. and proceeded to the spot where Kamlesh had received burn injuries in the company of Saraswati i.e. he went to the matrimonial house of Kamlesh and with the assistance of Saraswati prepared the rough site plan Ex.PW-25/B. He summoned photographer Ashok PW-10, who took six photographs Ex.PW-10/1 to Ex.PW-10/6; negatives whereof are exhibited as Ex.PW-10/7 to Ex.PW-10/12 of the house where Kamlesh suffered burn injuries. At the spot, SI Aishveer Singh lifted a torn match box, burnt match sticks, two semi burnt match sticks, burnt pieces of clothes, plastic bottle and a plastic tin can as recorded in the seizure memo Ex.PW-21/A. 14. Kamlesh could not survive and died at around 4:15 AM on 14.7.1999 i.e. she died the next day after she suffered the burn injuries. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 9 of 36 15. The dead body of Kamlesh was sent to the mortuary of Maulana Azad Medical College where Dr.Yogender Bansal conducted the post-mortem and prepared the report Ex.PW-20/A opining that the death was due to burn shock consequent to burn injuries. He noted that no smell of kerosene was present over the body. He preserved the scalp hair of the deceased and handed over the same to the investigating officer so that the same could be subjected to forensic examination pertaining to the presence of any inflammable material on the scalp hair. 16. SI Mukesh Kumar PW-11, a draftsman was taken by SI Aishveer Singh to the matrimonial house of Kamlesh on 26.7.1999, where with the assistance of SI Aishveer Singh he prepared the site plan to scale Ex.PW-11/A. 17. In the site plan he marked the spots „A‟ to „I‟ as under:- “A. Shows the place where Smt.Kamlesh W/o Gurcharan was stated to be burnt. B. Shows the place where burnt clothes, were lying. C. Shows the place where burnt saree, was lying. D. Shows the place where burnt cloth/ash, were lying. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 10 of 36 E. Shows the place where burnt ash, were lying. F. Shows the place match sticks, were lying. G. Shows the place where match box, was lying. H. Shows the place where „plastic dibba‟ having kerosene oil smell, was lying. I. Shows the place on table where plastic bottle having kerosene oil smell, was lying.” 18. Since much turns on the site plan in the context of the credibility of the dying declaration i.e. the statement Ex.PW-19/A recorded by Shri Prakash Chand PW-19, it would be useful if we pen profile the site plan to scale Ex.PW-11/A. 19. The house i.e. matrimonial house of the deceased is divided into six near equal rectangular portions. Back to back three rectangular portions are at the rear of three equal rectangular portions in the front. The three rectangular portions in the front consist of one rectangle, being a room, towards the western boundary of the plot. It opens into an open space having a tin shed covering half space forming the rectangular block in the centre. Point „G‟ has been marked in this place from where the match box was lifted. Towards the east is the third rectangular block consisting of a store towards the south and a bathroom towards the northern side. Point „B‟ Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 11 of 36 has been marked in this bathroom where burnt clothes were lifted as recorded in the site plan. 20. The three rectangular portions at the rear towards the northern boundary of the plot, consist of a living room towards the western boundary and in this room point „E‟ has been marked where from burnt cloth was lifted. 21. The centre rectangular space consists of three portions. Two portions abutting the northern boundary of the plot are the two kitchens. The remaining space is covered by sheets and has been shown as a verandah. Points „G‟, „H‟ and „I‟ have been marked in the said central rectangular block. Point „G‟ is at the door connecting the room on the third rectangular block towards the eastern boundary. From this spot a match box was lifted. Spot „H‟ and „I‟ are at the door of one out of the two kitchens, being the kitchen abutting the room where the spot „E‟ has been marked. From the said two spots i.e. spot „H‟ and „I‟, a plastic can and a plastic bottle were seized as recorded in the site plan. 22. The most important to be noted is the description of the third rectangular block at the rear, abutting the northern Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 12 of 36 boundary, in which spots „A‟, „D‟ and „F‟ have been marked. About 1/3rd portion thereof towards the front is the landing of the staircase where from the flight of steps lead up to the first floor above. Remaining portion admeasures 262 cm x 280 cm. This would mean 9‟3” x 8‟6” = 80 sq.ft. (approximately). In this room a diwan measuring 125 cm x 186 cm, an iron box measuring 110 cm x 63 cm, and a table measuring 46 cm x 92 cm and a small dressing table, measurement whereof has not been noted, are lying along the walls of the room. In the remaining floor area, points „A‟, „D‟ and „F‟ have been marked, which as per the site plan are; Point „A‟ being the place where Kamlesh was burnt, Point „D‟ being the place where from burnt cloth and ash were lifted and point „F‟ being the place where from match sticks were lifted. 23. With reference to this room, where Kamlesh was statedly burnt, as noted above, the total area of the room is approximately 80 sq.ft. out of which approximately 45 sq.ft. space has been consumed by the diwan, the iron box, the table and the dressing table in the room; meaning thereby, the vacant remaining floor area is about 35 sq.ft. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 13 of 36 24. At the trial, Prakash Chand PW-19 who had recorded the statement Ex.PW-19/A of Kamlesh proved the said statement and stated that he had scribed the same. He stated that he obtained the certification of fitness pertaining to Kamlesh from the doctor on duty before recording the statement. Dr.Sanjay Kapil PW-22 who had treated Kamlesh and had prepared her MLC Ex.PW-22/A not only proved the MLC but additionally proved that the certification at point „A‟ on the MLC was in his hand. Thus, the prosecution successfully established that Kamlesh was fit for statement when her statement Ex.PW-19/A was recorded. 25. Needless to state, in respect of the offence punishable under Section 302 IPC, the learned Trial Judge has relied solely on the said statement of Kamlesh, for the reason independent thereof, there is no other incriminating evidence against the accused pertaining to Kamlesh being burnt. We clarify that the other evidence pertains to Kamlesh being troubled for dowry and said evidence would be noted by us while dealing with the issue of motive and the charge pertaining to the offence punishable under Section 498-A IPC. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 14 of 36 26. We may note at this stage that the various exhibits which were seized at the spot by SI Aishveer Singh as recorded in the seizure memo Ex.PW-21/A as also the scalp hair of Kamlesh were sent to the Forensic Science Laboratory to ascertain whether any kerosene oil or any other inflammable material could be detected thereon. The report submitted by the Senior Scientific Examiner, which we note has remained unexhibited at the trial, but is available at page 551-552 of the Trial Court Record, records that no inflammable oil or residues thereof could be detected on any of the exhibits i.e. burnt cloth pieces and burnt material, the plastic bottle and the plastic container as also the broken match box pieces and the burnt match sticks which were lifted from the spot. No inflammable oil or residue thereof could be detected on the scalp hair of Kamlesh. 27. To prove dowry demand and subjecting Kamlesh to cruelty on account of non fulfillment of the dowry demand, the star witnesses of the prosecution at the trial were Rajesh Kumar PW-4, the brother of Kamlesh; Bhim Singh PW-9, the father of Kamlesh and Satyawati PW-23, the mother of Kamlesh. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 15 of 36 28. Briefly noted, all three deposed that Kamlesh was subjected to extreme harassment on account of dowry demand by her in-laws. The parents-in-law and Gurucharan, the husband of Kamlesh were specifically indicted by all as the prime demanders of dowry. Arun, Geeta and Nirmala were also named by them with instances when the said three acted against Kamlesh. Specific instances when Gurucharan demanded money as also when he gave beating to Kamlesh on account of dowry demand not being met were highlighted by the parents and brother of Kamlesh. The three witnesses highlighted that Kamlesh used to tell them that her husband, her in-laws, her devar Arun, her devarani Geeta and her Nanad Nirmala used to specifically harass her on account of not bringing adequate dowry. The complaint Ex.PW-9/A dated 13.1.1997 made for the first time by Kamlesh to a statutory authority was proved by Bhim Singh PW-9 who identified Kamlesh‟s signatures on the complaint. All three stated that when they met Kamlesh in the hospital after she was burnt, she told them that all the persons charged for the offence of murdering Kamlesh were involved in Kamlesh being burnt and that the role of each was as per the statement Ex.PW-19/A Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 16 of 36 made by Kamlesh before the learned Sub Divisional Magistrate. 29. We need not note any other evidence as learned counsel for the parties concede that the fate of the instant appeals would rest upon the view which would be taken by this Court pertaining to the statement Ex.PW-19/A made by Kamlesh to Prakash Chand PW-19, the Sub Divisional Magistrate of the area concerned. Additionally, with respect to the other offences of which the accused were charged, counsel concede that the issue needs to be decided with reference to the testimony of the parents and the brother of Kamlesh; the contents of her complaint Ex.PW-9/A made to the Crime Against Women Cell on 13.1.1997. 30. Vide impugned judgment and order dated 15.7.2003, noting that Chandi and Bal Saroop, the parents-in- law of Kamlesh died during the trial, her husband Gurucharan, both Nanads i.e. Rani and Nirmala, their husbands i.e. Ashok Kumar and Rampal, her devar Arun and devarani Geeta have been convicted for the offence punishable under Section 302/34 IPC. Manju, the bhabhi i.e. the wife of the deceased brother of Kamlesh has been acquitted of the offence Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 17 of 36 punishable under Section 302/109 IPC for the reason there was no evidence of her abetting the crime. The sole statement in the dying declaration Ex.PW-19/A of Kamlesh that even Manju was an accomplice has been found to be insufficient evidence to convict Manju; obviously for the reason Manju was not stated to be present in the house when Kamlesh suffered burn injuries. 31. Pertaining to the offence punishable under Section 498-A/34 IPC; noting that the parents-in-law of Kamlesh were dead, Gurucharan, Arun, Geeta and Nirmala have been convicted for the offence punishable under Section 498-A/34 IPC. The sole surviving accused pertaining to the offence under Section 406/34 IPC i.e. Gurucharan, the husband of Kamlesh, has been acquitted. All accused charged for the offence punishable under Section 506/34 IPC have been acquitted. 32. Pertaining to the convictions for the offence punishable under Section 302/34 IPC, all accused so convicted have been sentenced to undergo imprisonment for life. The four accused who have been convicted for the offence punishable under Sections 498-A/34 IPC have been sentenced Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 18 of 36 to undergo imprisonment for three years and pay a fine in sum of Rs.1,000/-; in default of payment of fine to undergo rigorous imprisonment for one month. 33. With respect to the statement Ex.PW-19/A of Kamlesh, a perusal of the impugned judgment shows, that two points have been urged before the learned Trial Judge to impress upon the Court that the statement Ex.PW-19/A could not be believed. It was firstly urged that in view of the fact that Kamlesh was severely burnt it is highly improbable that she would have been fit when Prakash Chand PW-19 reached the hospital to record her statement. It was highlighted that as per Dr.Sanjay Kapil, who had initially treated Kamlesh, he had treated her only for about 15 minutes. It was pointed out that the learned Sub Divisional Magistrate had concluded the recording of the statement at 10:55 AM as stated by him. It was thus urged that it was doubtful whether the statement in question, was the one which was made by Kamlesh. It was urged that the Sub Divisional Magistrate has colluded with the parents of Kamlesh who had reached the hospital by the said time, to record a false version. Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 19 of 36 34. The second point urged before the learned Trial Judge, noted in para 33 of the impugned decision, is that as per Kamlesh‟s statement, 9 people had taken part when she was burnt. It was urged that Kamlesh being the 10th person in the room, with reference to the dimensions of the room in Ex.PW-11/A, it was impossible that Kamlesh was set on fire as stated by her. It was highlighted that the vacant floor space in the room was merely 35 sq.ft. in which 10 persons could barely squeeze in and it was just not possible for 6 to catch hold of Kamlesh and the others to set her on fire and that too when none received even the faintest of burn injury. In this connection, as a limb of the same argument, it was urged that as per Kamlesh, after her husband threw kerosene oil on her and Rani set her saree on fire, her two nandois, her parents-in- law, her devar and devarani i.e. 6 persons caught hold of her thereby preventing her from running away was belied from the two facts. Firstly that none of the said six persons had any burn injuries on them. It was urged that had 6 persons continued to catch hold of Kamlesh when she was set on fire they would have suffered, if not more, at least superficial burn injuries. This not being so, it was obvious that none of them Crl.A. Nos.643/03, 638/03, 845/03, 123/04 & 596/03 Page 20 of 36 had participated in the crime as claimed by Kamlesh. Secondly it was urged that the site plan Ex.PW-11/A lists the points „A‟ to „I‟ where Kamlesh was burnt; burnt clothes, burnt ash, burn match sticks, match box and plastic can and bottle respectively were lifted. With reference to the said places where burnt clothes and ash were lifted, it was highlighted with reference to the site plan that it is apparent that having received burn injuries at point „A‟, being the room in the 3rd rectangular portion of the house as shown in the site plan, it is apparent that Kamlesh ran to point „E‟ which was the room opposite the open court yard as also to point „B‟, where in the bath room, burnt clothes were lifted. It was thus urged that it is apparent that on catching fire, Kamlesh ran helter skelter and was not prevented from running as