Criminal Appeal No. 823/2005 1 of 42 * IN THE HIGH COURT OF DELHI : NEW DELHI + Criminal Appeal No. 823/2005 & 830/2005 % Judgment reserved on : 04.07.2008 Date of Pronouncement : 15.09.2008 Smt Kalawati & Anr. ..... Appellants Through: Ms. Neelam Grover, Advocate. Versus STATE ..... Respondent Through: Ms. Richa Kapoor, APP. CORAM : Hon'ble Mr. Justice B N Chaturvedi Hon'ble Mr. Justice Rajiv Shakdher 1. Whether the Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to Reporters or not? Yes 3. Whether the judgment should be reported in the Digest ? Yes Rajiv Shakdher, J. 1. This is an appeal under Section 374 (2) of the Criminal Procedure Code (hereinafter referred to as the CrPC) preferred against the judgment dated 24.08.2005 and sentence of even date i.e., 24.08.2005 passed by the Additional Sessions Judge; Karkardooma Courts, Delhi. 2. The Trial Court by the impugned judgment has found Criminal Appeal No. 823/2005 2 of 42 only Smt Kalawati (hereinafter referred to as the „Ist Appellant‟ and Shri Tikam Singh (hereinafter referred to as the „2nd Appellant‟) guilty of the offences they were charged with, out of six persons accused, under Section 302, read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC) and Section 498A, read with, Section 34 of the IPC. The said Appellants have been sentenced under Section 302, read with, Section 34 IPC to life imprisonment and a fine of Rs.5,000/- each upon default in payment of fine, they have been sentenced to undergo a further simple imprisonment of five months each. For the offence under Section 498A, read with, 34 IPC, the said Appellants have been sentenced to two years rigorous imprisonment, with a fine of, Rs. 2,000/- each, and in the event of default they have been sentenced to undergo further simple imprisonment for a period of two months each. The Trial Court ordered that both the aforesaid sentences shall run concurrently. 3. The Appellants being aggrieved by the aforesaid judgment and sentence rendered against them, have preferred the present Appeal. 4. In order to dispose of the Appeal, it would be pertinent to briefly capture the case of the prosecution before the Trial Court. Criminal Appeal No. 823/2005 3 of 42 5. On 15.06.1997, one Smt. Pushpa, alias Poonam, resident of F 153, Gali No. 10, Khajoori Khas, Delhi got married to the 2nd Appellant. Immediately, thereafter, Smt. Pushpa became pregnant. However, the child died during the course of delivery. Thereafter, Smt. Pushpa once again became pregnant and in the year 2000, delivered a girl child. The 2nd Appellant and his family which included amongst others, his mother i.e., the Ist Appellant, his brothers and their wives, as well as his sisters were evidently not happy with the fact that Smt. Pushpa had delivered a girl child. It is the prosecution‟s case that on account of lack of dowry brought by Smt. Pushpa at the time of her marriage and the fact that she had delivered a girl child, resulted in her being physically tortured and abused by the 2nd Appellant i.e., the husband and the 1st Appellant, i.e., the mother in law and, other members of the family. Smt. Pushpa would often discuss her travails with her parents on her frequent and at times forced prolonged visits to her parental home. One such visit by Smt Pushpa took place ten days prior to the fateful night i.e. 22.10.2002 when, Smt. Pushpa was done to death by the 2nd Appellant and his family members by pouring kerosene oil on her and setting her ablaze. 6. It is the prosecution‟s case that Smt. Pushpa was burnt by the Appellants alongwith other accused at around 09.00 Criminal Appeal No. 823/2005 4 of 42 pm on 22.10.2002. The husband of Smt. Pushpa i.e., the 2nd Appellant poured kerosene oil on the victim with the help of the 1st Appellant i.e., mother in law, whereupon the victim, Smt. Pushpa, was set ablaze. At about 10.00 pm, father of the victim, Smt. Pushpa, Shri Uddal Singh (PW-7), received the information that there was an emergency at the house of his daughter, whereupon, Shri Uddal Singh (PW-7) rushed to her in-laws‟ house. On reaching Smt. Pushpa, i.e, his daughter‟s house; to his horror, the father, Shri Uddal Singh (PW-7) discovered that Smt. Pushpa was burnt. On being asked, his daughter, Smt. Pushpa, informed him that the Appellants alongwith other family members were responsible for setting her ablaze. At about 11.00 pm, the victim, Smt. Pushpa was brought to Guru Teg Bahadur Hospital, Delhi (in short GTB Hospital) with 95 % burns. 6.1. The Police Station at Khajoori Khas, District – North East, Delhi received intimation of the incident on 22.10.2002, at about 11.15 pm. Upon receipt of the intimation, the information was entered in the Daily Diary bearing entry No. 57A. Sub Inspector, Mahender Singh (PW-16) alongwith Constable, Ranjan Singh (PW-6) reached GTB Hospital at about 12.15 am. In the meanwhile, Shri Uddal Singh (PW-7), father of the victim, followed by the mother Smt. Sheela Devi (PW-3) reached the GTB Hospital, PW-3, mother reached the GTB Hospital at about Criminal Appeal No. 823/2005 5 of 42 02.00 am, in the morning of, 23.10.2002. The mother, Smt. Sheela Devi (PW-3) saw the victim at about 07.00 am on 23.10.2002, at which point in time, the victim, Smt. Pushpa was conscious. It is at this meeting that Smt. Pushpa confided in her mother, PW-3 that she had been set ablaze by the Appellants with the help of other accused. 7. The Sub Inspector, Mahender Singh (PW-16) recorded the statements of parents of the victim i.e., Shri Uddal Singh (PW-7) and Smt. Sheela Devi (PW-3). The Sub Inspector also informed the Sub Divisional Magistrate (hereinafter referred to as the SDM) about the incident in view of the fact that it occurred within seven years of the victim‟s marriage. This information was relayed to the concerned SDM (PW-17) at about 12.30 pm in the afternoon on 23.10.2002. 8. The SDM reached the GTB Hospital at about 01.00 pm, on 23.10.2002. Thereafter, the SDM after receiving the clearance from the Doctor on duty in the burns ward, namely one, Dr. Sujata (PW-19) to the effect that the victim, Smt. Pushpa, was fit to make a statement, proceeded to record the statement of, Smt. Pushpa. The SDM (PW-17) recorded the statement of the victim, Smt. Pushpa in a question-answer form. The said statement of Smt. Pushpa thereafter was endorsed by the SDM (PW-17) with his signatures, as well as by Sub Criminal Appeal No. 823/2005 6 of 42 Inspector, Mahender Singh (PW-16). 9. In the meanwhile, the Police had registered the FIR (Ex.PW4/A) under Section 498A/307 of the IPC, read with, Section 34 IPC. Unfortunately, the victim, Smt. Pushpa succumbed to the extensive burn injuries caused to her person and consequently, breathed her last on 25.10.2002. Upon the Police receiving this information, a fresh entry was made vide a Daily Diary No. 4A (Ex.PW14/A). Consequent, thereto, the police converted the case into one under Section 302 of the IPC. 10. The Police, thereafter, upon completion of the investigation filed a report under Section 173 of the Cr P C. The Court of, Shri S M Gupta, Additional Sessions Judge, Karkardooma Courts, Delhi; by an order dated 21.08.2003 charged the following persons including the Appellants herein, with the offences punishable under Section 498A, read with, Section 34 of the IPC and for the offences under Section 302, read with, Section 34 of the IPC. The six accused persons who were charged were: Shri Tikam Singh s/o Bhola Ram i.e., the 2nd Appellant, Smt. Kalawati w/o Bhola Ram i.e., the Ist Appellant Smt. Maya w/o Ram Avtar, Smt. Rajan w/o Shri Mukesh Singh, Mahesh s/o Shri Bhola Ram, and Smt. Rajwati w/o Shri Mahender Singh. Criminal Appeal No. 823/2005 7 of 42 11. At the trial, the prosecution examined nineteen (19) witnesses. The defence at the first informed the Trial Court that they did not wish to lead any defence, but at a later stage, examined one (1) witness, namely one, Shri Udaiveer (DW-1). 12. The prosecution in order to bring home the guilt of the accused persons, which included the Appellants herein, primarily relied upon the following:- i) the dying declaration, being Ex.PW17/A, which was, proved by the SDM, Shri Raj Kumar Chauhan (PW-17); ii) the MLC (Ex.PW18/A), which was, proved by Dr. P P Singh (PW-18); iii) the testimony of Dr. Sujata (PW-19) who, deposed as regards, the medical fitness of the victim to give the statement, which she did, on 23.10.2002 to the SDM, Shri R K Chauhan (PW-17); iv) the death summary, being Ex.PW19/A, which was, proved by Dr. Sujata (PW-19); v) the Post Mortem Report (Ex.PW15/A) which was proved by Dr. S Lal (PW15); and vi) the testimony of Shri Uddal Singh (PW-7), the father of the deceased victim Smt. Pushpa. 13. Apart from the above, the prosecution also relied upon the formal police witnesses, i.e., Constable Parvesh, (PW- Criminal Appeal No. 823/2005 8 of 42 1) who arrested the accused Mahesh Kumar and Rajwati. PW1 proved the personal search memos Ex.PW1/A and Ex. PW 1/B pertaining to accused, Mahesh Kumar and Rajwati respectively. The arrest memo (Ex.PW1/C) with regard to accused Mahesh Kumar was also proved by the said witness. PW2, Smt. Lata proved the fact that statement (Ex.PW2/A) of father of the victim, Shri Uddal Singh (PW-7) and statement (Ex. PW2/B) that of Smt. Sheela Devi, mother of the victim were recorded by her. Assistant Sub Inspector, Ram Manohar (PW-4) proved the registration of the FIR No. 211/2002 (Ex.PW4/A). 13.1) Lady Constable, Leela Devi (PW-5) proved the search memo (Ex.PW5/A) with regard to the Ist Appellant i.e., the mother in law of the deceased. The said witness also testified that one stove was recovered from the site where the incident took place. The said witness (PW-5) also identified the stove which was marked as Ex.P-1. 13.2) Constable, Ranjan (PW-6) testified that he alongwith Sub Inspector, Mahender Singh (PW-16) were on emergency duty on 22.10.2002 from 08.00 pm till 08.00 am the following day. He also deposed to the effect that information with regard to the incident was received in the Police Station on 22.10.2002, at about, 11.15 pm whereupon, he alongwith Investigating Officer, Sub Inspector Mahender Singh had reached the Guru Teg Criminal Appeal No. 823/2005 9 of 42 Bahadur Hospital, Delhi at about 12.15 night. He further deposed that the SDM was called next day i.e., 23.10.2002 at about noon time to the GTB Hospital by the Investigating Officer, who reached the GTB Hospital upon receiving the intimation. He further deposed that on receiving the information, they had visited the GTB Hospital whereupon, Sub Inspector, Mahender Singh had made inquiries from the victim, Smt. Pushpa and had also collected the MLC from the GTB Hospital, He also deposed to the effect that scene of the occurrence was inspected by the concerned SDM and, photographs were taken. He further testified that concerned documents were handed over to the Station House Officer, who had directed that the case be registered. He also testified that the Ist and the 2nd Appellants were apprehended and their personal search was conducted. The said witness proved the personal search memos of the Ist Appellant, being Ex.PW6/A and that of the 2nd Appellant, being Ex.PW5/A. The said witness also deposed that from the scene of the crime, one stove containing some kerosene oil was recovered and seized vide a seizure memo Ex.PW6/D. He identified his signatures at point D-1 on the said seizure memo. He also deposed to the effect that on 23.10.2002, that the Appellants were arrested from their house. He further deposed that the stove (Ex.P-1) was recovered and seized from the place Criminal Appeal No. 823/2005 10 of 42 of occurrence in his presence. 13.3) PW-9, Shri Gulab Singh, who owned one Studio by the name and style of Aashu Studio deposed to the effect that he had deputed a photographer to take photographs at the place of incident. He proved the photographs Ex.PW9/A to Ex.PW9/D and the negatives thereof, being Ex.PW9/E to Ex.PW9/H. He denied the suggestion that the photographs were not taken by the photographer deputed by him or they were planted at the instance of the police. 13.4) The uncle of the deceased, one, Shri Vijay Kumar (PW- 11) identified the body of the deceased and proved his identification statement, being Ex.PW11/A. He also deposed that the deceased, Smt. Pushpa was admitted to the GTB Hospital on 22.10.2002 with burns injuries. 13.5) PW-12, one, Shri Raj Kumar also an uncle of the deceased identified the body of the deceased and proved his statement (Ex.PW12/A) as also his signatures at point A, as recorded by the Investigating Officer. The information with regard to the death of Smt. Pushpa which was received in the Police Station on 25.10.2002 and entered in Daily Diary No. 4A (Ex.PW14/A) was proved by Assistant Sub Inspector (PW-14), who testified that the said DD entry was made in the hand Criminal Appeal No. 823/2005 11 of 42 writing of and, bears the signatures of Assistant Sub Inspector, Sushma, whose writing he recognised as he had seen her writing and signing during the discharge of her official duties. 14. As stated above, the testimony of witnesses which are most crucial to the prosecution case are those of the parents of the deceased (PW3 and PW 7), SDM (PW-17), Dr. S Lal, (PW-15) who, conducted the Post Mortem, Dr. Sujata, (PW-19) who gave the certificate of fitness to, Smt. Pushpa on 23.10.2002 pursuant to which her statement was recorded by PW-17 and the testimony of PW-18, Dr. P P Singh, who proved the MLC. 15. Briefly, the testimony of PW-3 established that the marriage of the deceased, Smt. Pushpa was an unhappy one as the deceased was often tortured. The cause, according to PW3, was the birth of a girl child. She deposed that ten days prior to the death of her daughter, the 2nd Appellant alongwith two other persons had come to their house to accompany the victim, Smt. Pushpa and the daughter to his house, when in point in time, the 2nd Appellant had threatened that his wife, Smt. Pushpa and the daughter would not return to their house and that he would throw her body into a drain after cutting her to pieces and thereafter, would go to Jail. In her cross examination, as well as, in chief, she maintained that on receiving information, she had first visited her daughter‟s in-laws house, at about 10.00 pm, Criminal Appeal No. 823/2005 12 of 42 and thereafter, reached GTB Hospital at about 02.00 am, on 23.10.2002, and also, that she was able to speak to her daughter at 07.00 am, on 23.10.2002. She stated that her daughter had informed her that she was set ablaze by the Appellants alongwith other members of the family. In her cross examination, she clearly deposed that at the time when, she met her daughter i.e., Smt. Pushpa, she was conscious. She further proved the fact that when, the statement of her deceased daughter, Smt. Pushpa was recorded, no one was present with her. In the cross examination, she specifically denied the suggestion that she had tutored her daughter to make the statement which she did, before the SDM. 16. Shri Uddal Singh, (PW-7) father of the deceased Smt. Pushpa deposed that between 09.30 and 10.00 pm, on 22.10.2002, the 2nd Appellant i.e., his son in law, had left a message with one Shri Lakhan Singh, a nearby shopkeeper, to the effect that he should come to their house as someone in their house was seriously ill. He also deposed that upon receiving the said information, he went to the house of the in- laws of his deceased daughter. On reaching his daughter‟s place, he found that his daughter had sustained burn injuries and that a mattress was lying over her. On making inquiries from his daughter as to what had happened, she had told him that the accused had set Criminal Appeal No. 823/2005 13 of 42 her ablaze. He also deposed to the effect that marriage of his daughter with the 2nd Appellant was a troubled one. He deposed that his daughter was constantly tortured, and that, she lost her first child as her brother-in-law namely one, Mahesh had kicked her while she was in the family way. He also deposed that his daughter had demanded money from him, which he was not able to give her as he did not have the money. He specifically referred to the fact that on one such occasion i.e., on Rakshabandhan, she had come to her parental house when she informed him that she had not been given her meals by the accused persons for last three days and that she had been beaten up. He also proved the statement made by him to the SDM, being Ex.PW2/A and identified his signatures at point A-2. In the cross examination, he deposed that at about 07.30am, on 23.10.2002, his wife had met his daughter Smt. Pushpa, and no one else, was allowed to meet her. He also deposed in the cross examination that his wife had informed him after her meeting with their daughter, Smt. Pushpa, that she was conscious and oriented during the meeting. He specifically also deposed to the effect, that his statement in the office of SDM was recorded by one Smt. Lata, a distant relation of his. He, specifically denied the suggestion that his daughter while in the GTB hospital, was unconscious throughout, having sustained the said burn injuries. Criminal Appeal No. 823/2005 14 of 42 17. The Post Mortem Report being Ex.PW15/A was proved by Dr. S Lal, (PW-15) Sr. Demonstrator, GTB Hospital, Dr. S Lal deposed that he had conducted the Post Mortem on the body of Smt. Pushpa, wife of the 2nd Appellant on 25.10.2002 at about 02.30 pm. He deposed that he had received the dead body of a young female average built wrapped in white cotton sheet and plastic sheet having surgical bandages on the burn area except face, palm and sole. He deposed that eyes were closed and the cornea was clear. He further deposed that a tattoo mark in the shape of „OM‟ was on the right dorsum of hand. He testified that the injuries on the body were ante mortem which had, superficial deep infected burn injuries all over the body except in gentialia, right loin and right side of lower back just above the buttock, yellowish plaque was present on the base of the burn at different places. According to him, the extent of burn injuries was 95% accompanied by singing of scalp hair. He also deposed that there was no smell of kerosene oil detected nor was there any external injury present on the body. In his deposition he confirmed that no abnormality is detected in the internal examination. In his opinion, the cause of the death was due to septicemia due to superficial to deep infected ante mortem flame burn. The time of death was six hours prior to the time of the examination. Criminal Appeal No. 823/2005 15 of 42 18. Dr. P P Singh, (PW-18) proved the MLC being Ex.PW18/A. Dr. Sujata (PW-19) deposed that at the relevant point in time, she was working as Junior Resident, in the Burns Ward, of GTB Hospital. She further deposed that on 22.10.2002, the deceased Smt. Pushpa wife of the 2nd Appellant was admitted in the burns ward vide a MLC No. 5042, dated 22.10.200, at about, 11.00 pm. In her deposition she deposed that on 23.10.2002 at about 12.45 pm she had examined the deceased, Smt. Pushpa and upon being satisfied declared her fit for making a statement before the SDM. She also confirmed that she had made the endorsement on the statement of the deceased i.e., dying declaration (Ex.PW17/A) which is, encircled in red ink and bears her signatures at point X. She deposed that after she had declared the deceased fit to make the statement, the SDM (PW-17) proceeded to record the statement of the deceased, Smt. Pushpa. The said witness (PW-19) also proved the death summary dated 25.10.2002 (Ex.PW19/A) and identified her signatures at point A. In her cross examination she deposed that as far as she could remember, the deceased had suffered burn injuries to the extent of 95%. In the cross examination, she admitted that in the death summary report (Ex.PW19/A), she had maintained that the deceased had suffered 100% burns, which included, the injuries to the finger and Criminal Appeal No. 823/2005 16 of 42 thumb. She, however, denied that suggestion that the thumb impression on the dying declaration was not that of the deceased, because finger and thumb were severely burnt. She categorically denied that fact that relatives of the deceased had met her. The witness further deposed that at the time when the SDM recorded the statement of deceased, she was not present as she had to attend to other patients. 19. The dying declaration Ex.PW17/A was proved by Shri R K Chauhan, SDM (PW-17). The SDM (PW-17) deposed that on 23.10.2002, Sub Inspector Mahender Singh from Police Station Khajoori Khas came to his office, at about 11.30 am and informed him that one, Smt. Pushpa wife of the 2nd Appellant had been admitted to GTB Hospital, with burns on 22.10.2002, at about, 11.00 pm and that she was fit for making the statement. The SDM deposed that he reached the GTB Hospital in the afternoon, at about, 12.45 pm and, only after the patient was declared fit for making the statement and upon his own satisfaction to the same effect, he proceed to record the statement of the deceased; which ran into three pages, in a question-answer form. He specifically identified his signatures on the dying declaration (Ex.PW17/A) at point A, A1 & A2, and also, the right thumb impression of Smt. Pushpa, at point X, X1 & X2, and that, after recording the statement, he forwarded the Criminal Appeal No. 823/2005 17 of 42 same to the Station House Officer, Khajoori Khas, for taking necessary action in accordance with the provisions of law. He also deposed that on the same day i.e. 23.10.2002, he had also recorded the statement (Ex.PW2/A) of Shri Uddal Singh, father of the deceased Smt. Pushpa, and that the statement (Ex.PW2/B) of Smt. Sheela Devi, mother of the deceased, Smt. Pushpa. The said statements of Shri Uddal Singh, Ex.PW2/A and that of mother Ex.PW2/B were recorded in the hand of one Smt. Lata, wife of, Shri Nand Kishore who had accompanied the parents of the victim, on his dictation. In the cross examination, the SDM (PW-17) categorically denied the suggestion that he had not obtained the thumb impression of Smt. Pushpa and that it was the thumb impression of some other person. 20. As against the above, the defence had examined only one witness DW-1 i.e., one Shri Udaiveer Singh, brother of the 2nd Appellant. In his deposition, DW1 has stated that on 22.10.2002, at about, 09.00 pm on his return from his work he was sitting alongwith his father, brothers and sisters, outside the house while the deceased, Smt. Pushpa, wife of the 2nd Appellant was cooking food inside the house. Soon thereafter, daughter of one of his brothers, Shri Mahender Singh, who was cleaning utensils inside the house, raised an alarm that there was a fire inside the house. He further deposed that they immediately Criminal Appeal No. 823/2005 18 of 42 rushed into the house and found that Smt. Pushpa had caught fire. He deposed that they tried to extinguish the fire. After the fire was extinguished, Smt. Pushpa was taken to GTB Hospital, where she was treated and shifted to the burns ward. He also deposed to the effect that at about 12.00 noon, the SDM