* IN THE HIGH COURT OF DELHI AT NEW DELHI % CRL. APPEAL NO. 496 OF 2003 + Date of Decision: 2nd December, 2008 # UDAI SINGH ..….....Appellant ! Through: Mr. D.M. Bhalla, Advocate versus $ STATE ........Respondent ^ Through: Mr. Sunil Sharma, APP CORAM: * HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE P.K.BHASIN 1. Whether 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) JUDGMENT P.K.BHASIN, J: In this appeal the appellant assails his conviction and the sentences awarded to him by the Court of Additional Sessions Judge, Karkardooma Courts, Delhi for his having killed a young widow, who had spurned his advances for marriage after the Crl.A. No. 496-2003 2 death of her husband, by throwing acid on her and also for having caused acid burn injuries on her twelve years old daughter. 2. The facts leading to the trial and conviction of the appellant(hereinafter to be referred as „the accused‟) may first be noticed. The deceased Smt. Aruna was a widow whose husband had died about two years before the present occurrence which took place on the night of 17th May, 2000. After the death of her husband she was living with her two children in HMD Colony, Shahdara, Delhi and the accused started visiting her house and became close to her and her children. Taking advantage of that closeness the accused started asking the deceased that they should live as husband and wife but she rejected that proposal. The accused, however, instead of dropping the idea of marrying her from his mind threatened her that he would deform her face and body with acid to such an extent that she would not be liked by anyone. On the night of 17th May, 2000 at about 10 p.m. the deceased was lying with her twelve years old daughter Sonia(PW- 1) in the balcony of her house on the first floor. At that time the accused came to the balcony scaling the wall near the staircase and poured acid on her and Sonia from a bottle which he was Crl.A. No. 496-2003 3 having in his hand. The deceased and her daughter felt burning sensation on their bodies and so they raised alarm upon which the accused threw the bottle in the room near the balcony and ran away. It was also the case of the prosecution that Aruna had tried to save herself by trying to prevent the accused from throwing acid on her and in that process some acid had fallen on the accused also. Both the mother and daughter poured water on their bodies and came down weeping and shrieking with pain. On hearing their shrieks their relative Tejpal(PW-12), living in the neighbourhood, rushed to their house and took both of them to GTB Hospital in Shahadara. The deceased when examined by the doctor(PW-3) at the GTB Hospital was found to be conscious and oriented. At that time her blood pressure was 112/76 and pulse rate was 92. On being asked by the doctor examining her she informed the doctor that somebody had thrown acid on her half an hour back. The doctor made a note of that in the MLC Ex.PW-3/A. The doctor noticed burn injuries on different parts of the body of Aruna covering approximately 55% area of her body which included whole of her face, part of the back, chest, both arms, part of forearms and part of left thigh. Similarly, acid burns to the extent of approximately 20% were noticed on the body of Sonia by Crl.A. No. 496-2003 4 the doctor who examined her. 3. On getting the information regarding the admission of the two injured in the hospital PW-16 Sub-Inspector Sanjay reached GTB Hospital. Aruna was declared fit by the doctor for making her statement and so PW-16 recorded her statement Ex. PW-16/A. Smt. Aruna stated that her husband had died two years ago and she alongwith her daughter Sonia and son Pankaj was residing in HMD Colony, Delhi. After the death of her husband, Udai Singh(the accused) started visiting her residence and became close to her family. A week ago he had started asking her to live with him as husband and wife but she had told him that she was to marry her children and in case she would live with him she and her children would have no respect in society and nobody would marry her children. Udai Singh on her refusal to live with him told her that he liked her too much and in case she would not agree to his proposal he would deform her face and body to such an extent that she would not be liked by anyone. She further stated that during that night at about 10 p.m. she alongwith her daughter Sonia was lying on the floor of the balcony of her house and at that time they were alone in the house as her son after taking Crl.A. No. 496-2003 5 meals had gone out to purchase Gutka. Udai Singh came to the balcony by scaling the wall near the staircase and poured something on her and on Sonia from a bottle brought by him because of which they felt burning sensation on their bodies. On their raising alarm, Udai Singh threw the bottle and ran away. She and her daughter poured water over themselves and came down crying and shrieking with pain and that on hearing the noise their relative Tejpal, living in the neighbourhood, brought them to GTB hospital in a three wheeler and got them admitted there. 4. On the basis of aforesaid statement of Aruna FIR under Section 307 IPC was registered at about 12.30 a.m. As per the further prosecution case the accused was arrested on 22/6/2000 when he had gone to GTB Hospital to see the injured Aruna. After his arrest he was got medically examined and at the time of his medical examination the doctor(PW-17) noticed multiple burn scars on the back of elbow, middle of fore-arm and left wrist of the accused which appeared to be more than 21 days old. The doctor recorded in the MLC Ex. PW-17/A that those burns were likely to have been caused by acid. The doctor also recorded the history of the burn scars to be due to falling of acid. Since the family Crl.A. No. 496-2003 6 members of Aruna were not satisfied with the treatment which she was getting in Delhi she was removed from GTB Hospital and taken to Dehradoon on 06-07-2000 and was got admitted in Doon Hospital there. She, however, died in that hospital on 13/07/2000. Her dead body was subjected to post-mortem examination by PW-18 Dr. Ajay Kumar Pathak at the Doon Hospital. PW-18 noticed that there were superficial to deep burn injuries involving whole body except right side of face, scalp, right and left hand, anterior abdominal wall and some parts of thigh. Slough was also present over burnt areas over chest and neck. As per post-mortem report Ex.PW-18/A the cause of death of the deceased was opined to be shock and secondary infection due to burn injuries. 5. In view of the death of Aruna and the post-mortem report regarding the cause of her death Section 302 IPC was also invoked by the Delhi Police against the accused. During the course of investigation the police had sent one broken glass bottle which had been seized from the spot and sealed on the night of the incident to Forensic Science Laboratory(FSL) where on examination by the chemical expert that bottle was found to Crl.A. No. 496-2003 7 contain a drop of sulphuric acid. One pillow and some clothes in burnt condition seized from the place of incident were also sent to FSL where on examination sulphate ions were detected on the same. On the completion of investigation the accused was charge- sheeted and in due course the case was committed to the Court of Sessions where charge under Section 302 IPC was framed against him for the murder of the deceased Aruna and another charge under Section 307 IPC was framed in respect of the injuries caused by him to Aruna‟s daughter Sonia. The prosecution examined 24 witnesses. After the prosecution evidence was over the statement of the accused was recorded under Section 313 Cr.P.C. and while refuting the correctness of the incriminating circumstances put to him he pleaded false implication by the police. Thereafter he examined three witnesses in defence, two of whom were examined to establish that at the time of the incident he was not at the place of occurrence. Third witness examined to show that the burn injuries noticed on his body by the doctor at the time of his medical examination after his arrest were, in fact, caused because of falling of some chemical on his body on 10-5- 2000 while working in a cable factory at Shahdara. Crl.A. No. 496-2003 8 6. PW-1 Sonia was examined as an eye witness of the occurrence but she did not support the prosecution case. PW-2 Pankaj is the son of the deceased. He was examined by the prosecution to show that after he came back from the market just after the occurrence his mother had told him that Udai Singh had thrown acid on her and Sonia. This witness also did not support the prosecution case. PW-12 Tej Pal, who had taken the deceased and her daughter Sonia to hospital was examined as the deceased had told him on the way to hospital that accused Udai Singh had thrown acid on her but he also did not support the prosecution. PW-9 Raja Ram is the brother of the deceased and he was examined by the prosecution since the deceased had told him when he had met her in Doon Hospital that accused Udai Singh had thrown acid on her. This witness had supported the prosecution. The trial Court relied upon the statement of the deceased Aruna made to PW-16 SI Sanjay Kumar on 17-5-2000, Ex. PW-16/A, as her dying declaration and also on the statement of the brother of the deceased PW-9 Raja Ram and whatever he claimed to have been told to him by the deceased was also treated as another dying declaration of the deceased. The learned trial Judge found the said two dying declarations of the deceased Crl.A. No. 496-2003 9 duly corroborated also from the presence of acid burn injuries on the body of the accused at the time of his medical examination after his arrest. The evidence of all the three defence witnesses was not found to be of any help to the accused. The learned Additional Sessions Judge thus relying upon the aforesaid two dying declarations of the deceased came to the conclusion that the accused was guilty of the offence of murder of Aruna and was also responsible for causing simple injuries to PW-1 Sonia and accordingly convicted the accused for the commission of the offences punishable under Sections 302 and 323 IPC vide judgment dated 22/03/03. Vide separate order dated 25/03/03 the accused was awarded life imprisonment under Section 302 IPC and fine of Rs.3,000/- and one year‟s rigorous imprisonment for his conviction under Section 323 IPC. In this appeal the appellant has assailed the correctness of the decision of the trial Court. 7. Learned counsel for the appellant, Mr. D.N. Bhalla, at the outset stated that he was questioning the correctness of the prosecution case and the findings of the learned trial Judge that it was the accused who had thrown acid on the deceased and her Crl.A. No. 496-2003 10 daughter. Mr. Bhalla further submitted that there is no reliable evidence to show that Smt. Aruna was in a fit condition to make any statement in the hospital and so the so-called dying declaration of the deceased in the form of her statement to PW- 16 SI Sanjay Kumar could not be relied upon as her dying declaration. It was also contended that when the deceased was brought to hospital and was examined by the doctor and had asked her as to how she had got burn injuries she had told him that „somebody‟ had thrown acid on her and had not named the accused at that time which fact also shows that the statement Ex.PW-16/A was not a genuine document and had been fabricated by the police and that was also evident from the fact that even the children of the deceased examined by the prosecution including her injured daughter(PW-1) had not supported the prosecution case. As far as the statement of the deceased allegedly made to her brother PW-9 Raja Ram, which has also been relied upon as the dying declaration of the deceased by the trial Court, is concerned, Mr. Bhalla contended, the same cannot be relied upon since he had not claimed in his statement under Section 161 Cr.P.C. that the deceased had told him that the accused had thrown acid on her. Alternative Crl.A. No. 496-2003 11 submission put forth by the learned counsel was that even if it is accepted that the accused had thrown acid on the deceased and her daughter then also in the facts and circumstances of the case it cannot be said that the death of the deceased was as a result of the acid burn injuries caused by him since the deceased died about two months after the incident and that too because of some infection. It was also contended that if this submission is also not accepted and this Court holds that the death of the deceased was in fact as a result of the burn injuries caused by the accused still the offence would not amount to „murder‟ and at the most it could be said that this is a case of culpable homicide not amounting to murder, and that too, punishable under the second part of Section 304 IPC. In the end, Mr. Bhalla also prayed on behalf of the accused that if the conviction of the accused for the death of the deceased is altered to Section 304(II) IPC the sentence of imprisonment for that offence may be restricted to the period which he has already spent in jail considering the fact that he is in jail for over eight years as also the fact that he was during the lifetime of the deceased visiting her in the hospital to enquire her welfare which is evident from the fact that he was, as Crl.A. No. 496-2003 12 per the prosecution case itself, arrested from GTB Hospital when he had gone there to meet the deceased. 8. Learned Additional Public Prosecutor for the respondent- State Mr. Sunil Sharma, on the other hand, submitted that despite the two children of the deceased and her neighbour Tejpal(PW-12) turning hostile the accused had been rightly convicted relying upon the two dying declarations of the deceased which were duly corroborated and so the conviction of the appellant deserves to be maintained and prayed that the appeal may be dismissed. 9. We have given our thoughtful consideration to these rival submissions in the light of the evidence on record and have unhesitatingly come to the conclusion that the prosecution has been able to show, despite the fact that three material witnesses including the two children of the deceased had turned hostile, that it was the accused Udai Singh who had thrown acid on the deceased Aruna and her daughter Sonia and it was because of that act of the accused that the deceased had died. As far as the fact that the deceased and her daughter had sustained acid burn injuries is concerned the learned counsel for the accused did not Crl.A. No. 496-2003 13 dispute the same before us. Learned trial Judge has also noticed in para 10 of the impugned judgment that “ The factum of Sonia and Aruna having suffered acid burn injuries during night of 17.5.2000 is not being disputed.” Learned counsel for the appellant also did not dispute that statement made by some injured person after the incident to a police officer, like Ex.PW- 16/A in the present case, could be relied upon as a dying declaration in the event of death of the injured person and also that conviction can be based on such a dying declaration alone without any corroboration. Mr. Bhalla did not dispute this proposition, and in our view rightly so, in view of the fact that by now this proposition regarding the admissibility of statement made by some injured person to a police officer as a dying declaration after the death of the injured stands well settled by a catena of judicial pronouncements of the Apex Court. We may make here a useful reference to the following observations of the Hon‟ble Supreme Court made in the case of “Laxman vs State of Maharashtra”, AIR 2002 SC 2973, while dealing with the value of a dying declaration in a criminal trial: “The justice theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death Crl.A. No. 496-2003 14 and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, Crl.A. No. 496-2003 15 what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind…………...” 10. In a recent decision also of the Hon‟ble Supreme Court reported as AIR 2008 SC 1500, “Shaik Nagoor Vs.State of A.P. rep. by its Public Prosecutor, High Court of A.P., Hyderabad” the law relating to dying declarations laid down in various earlier decisions was noticed and re-iterated in the following paragraphs of the judgment: “7. As observed by this Court in Narain Singh v. State of Haryana AIR2004 SC 1616 A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration if found reliable can form the base of conviction. 8. In Babulal v. State of M.P. (2003) 12 SCC 490 this Court observed vide in para 7 of the said decision as under: Crl.A. No. 496-2003 16 A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is 'a man will not meet his Maker with a lie in his mouth' nemo moriturus praesumitur mentiri). Mathew Arnold said, 'truth sits on the lips of a dying man'. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice." 9. In Ravi v. State of T.N. 2004 (10) SCC 776 this Court observed that: (SCC p. 777, para 3) If the truthfulness of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law. 10. In Muthu Kutty v. State ( 2005 ) 9 SCC 113 this Court observed as under: (SCC pp. 120-21) 15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in Crl.A. No. 496-2003 17 its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule