Delhi High Court
Ashrafi Devi vs State Of Delhi on 11 August, 2011
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on 11.08.2011
+ CRL.A. 324/1997
ASHRAFI DEVI ... Appellant
- versus -
STATE OF DELHI ... Respondent
Advocates who appeared in this case:
For the Appellant : Mr R.K. Bali For the Respondent : Ms Richa Kapur CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL
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 Digest? Yes BADAR DURREZ AHMED (ORAL)
1. This appeal is directed against the judgment dated 29.08.1997 delivered by the learned Additional Sessions Judge, Shahdara, Delhi in Sessions Case No. 225/1996 arising out of FIR No. 93/1984 registered at police station Seelampur under Section 302 IPC. The appeal is also directed against the order on sentence dated 30.08.1997. By virtue of the impugned judgment, the CRL.324/1997 Page 1 of 15 appellant Ashrafi Devi has been found guilty of having committed the offence punishable under Section 302 IPC by causing the death of her daughter-in-law Smt. Dev Wati (who was married to her son Babu Ram) on 30.03.1984. By virtue of the impugned order on sentence, the appellant was sentenced to undergo imprisonment for life and was also fined a sum of ` 1000 and, in default thereof, she was to further undergo rigorous imprisonment for six months.
2. The charge against the appellant was that on 30.03.1984 at about 6 a.m., she caused the death of her daughter-in-law Smt. Dev Wati by setting her clothes on fire after pouring kerosene oil on her, in her house No.C-18/1, Chauhan Bangar, Seelampur, Shahdara, Delhi and thereby committed an offence punishable under Section 302 IPC. The appellant pleaded not guilty and consequently the case was put up for trial.
3. From the impugned judgment, it is apparent that the appellant was convicted for the offence punishable under Section 302 IPC on account of the fact that the trial court found the oral dying declaration allegedly made by Smt. Dev Wati to her brother PW-1 (Satnam Singh) as well as the dying declaration allegedly made to the Executive Magistrate PW-12 (D.B. Kubba) to be reliable. The learned Additional Sessions Judge also found that the said two dying CRL.324/1997 Page 2 of 15 declarations did not suffer from any inherent improbability or infirmity and therefore relying on the said dying declarations, both verbal as well as in writing, the trial court came to the conclusion that the prosecution had succeeded in establishing that it was the appellant who had caused the death of Smt. Dev Wati.
4. The learned counsel appearing on behalf of the appellant challenged the findings of the learned Additional Sessions Judge and, in particular, the finding that the so-called dying declarations made to PW-1 (Satnam Singh) and PW-12 (D.B. Kubba) were reliable and did not suffer from any infirmity. It was his contention that these dying declarations were not of a stellar quality and without any corroboration, the same could not be relied upon for convicting the appellant. He also pointed out that PW-13 (Inspector Bhim Singh), who was the Investigating Officer in the said case, was not presented for cross- examination and, therefore, his entire testimony in chief had to be ignored as no opportunity had been given to the defence to cross examine the said witness. The learned counsel for the appellant further pointed out that the MLC in respect of Smt. Dev Wati (Exhibit PW-8/A) indicates that her time of arrival at the LNJP hospital was 6.35 a.m. on 30.03.1984. He also pointed out that there is an endorsement as regards the alleged history of burns which indicates that CRL.324/1997 Page 3 of 15 the burns were accidental. He also submitted that she was brought to the hospital by her husband Babu Ram.
5. The learned counsel for the appellant drew our attention to an endorsement indicating that the patient was unfit for statement and that the endorsement was made at 7.45 a.m. on 30.03.1984 by one Dr. Y.L. Narayana. There is another endorsement below that which indicates that the patient is fit for giving statement and the same has been made by one Dr. G.S. Janardhan. He submitted that there is no time or date mentioned in the second endorsement. Furthermore, the said endorsement has not been proved inasmuch as neither the doctor (Dr. G.S. Janardhan) had been produced as a witness nor has his signature been proved by anybody else.
6. The learned counsel appearing for the appellant also submitted that PW- 12 (D.B. Kubba), who was the Executive Magistrate who allegedly recorded the dying declaration of Smt. Dev Wati, has also not indicated or certified that Smt. Dev Wati was in a fit state of mind when he recorded her statement. He further submitted that the original dying declaration has not been produced by the prosecution and only a carbon copy (Exhibit PW-13/A) has been presented in evidence. Consequently, the learned counsel for the appellant submitted that neither the alleged oral dying declaration made to PW-1 (Satnam Singh) nor the CRL.324/1997 Page 4 of 15 alleged dying declaration (Exhibit PW-13/A) recorded by PW-12 (D.B. Kubba) could be relied upon inasmuch as it was not at all clear as to whether Smt. Dev Wati was in a fit state of mind to have made the alleged statements. He further submitted that apart from the dying declarations, there is no other evidence to implicate the appellant and since the dying declarations are themselves doubtful in character, the benefit of doubt must go to the appellant and she should be acquitted of all charges after setting aside the impugned judgment and order on sentence.
7. We have also heard learned counsel for the State.
8. PW-1 (Satnam Singh) is the brother of the deceased Smt. Dev Wati. According to him, on 30.03.1984, a man had come to his house in the morning and told him that his sister Dev Wati had been burnt by her in-laws. He, of course, did not remember the name of that man. He further stated that he, along with his grandfather and maternal grandfather, went to Irwin hospital (LNJP Hospital) where his sister had been removed. He further stated in the examination-in-chief that he met his sister, who was alive at that time and she was alone on the bed. According to him, she told him that her mother-in-law had burnt her after pouring kerosene oil on her. He further stated that thereafter the police came there and his statement was recorded by the police in the CRL.324/1997 Page 5 of 15 hospital and the same is Exhibit PW-1/A and that it has been signed by him and it is correct. In his cross examination, he has again confirmed the fact that he does not know the address of the man who had come to inform him that his sister had been burnt. He, however, indicated that that person had told him that his sister had been burn by her in-laws and did not tell him anything else. In cross examination, he further revealed that the appellant Ashrafi Devi and Babu Ram (husband of the deceased Smt. Dev Wati) had met him in the hospital and that he had reached hospital at 7 a.m. He also stated that he had met an Inspector of police from police Seelampur at about 8/ 8.15 a.m when he was coming out after seeing his sister. He further stated in cross-examination that there was no nurse or doctor or anybody else in the ward when his sister told him that she had been burnt by her in-laws.
9. From the aforesaid testimony of PW-1 (Satnam Singh), it appears that, if PW-1 (Satnam Singh) is to be believed, he arrived at the hospital at 7 a.m. on 30.03.1984 and that thereafter he went to the ward where his sister had been placed. Outside the ward, he met the appellant Ashrafi Devi and also her son Babu Ram. According to the said witness, there was nobody else in the ward and that his sister was lying on the bed and it is only when he was coming out at about 8/8.15 a.m., that he met the Inspector of police station Seelampur. At this CRL.324/1997 Page 6 of 15 juncture, we may point out that the MLC (Exhibit PW-8/A) carries an endorsement that the patient is unfit for the statement and the said endorsement was apparently made at 7.45 on 30.03.1984 by Dr. Y.L. Narayana. Thus, if the endorsement in the MLC is to be believed, the doctor, namely, Y.L. Narayana must have examined Smt. Dev Wati just prior to 7.45 a.m. on 30.03.1984 and, therefore, the statement of PW-1 (Satnam Singh) to the effect that there was nobody else in the ward other than his sister, who was lying alone on the bed, cannot be believed.
10. Furthermore, if the endorsement in the MLC is to be believed, then Smt. Dev Wati was unfit for making a statement at least at 7.45 a.m. According to PW-1 (Satnam Singh), he was coming out of the ward at about 8/8.15 a.m. when he is said to have met the Inspector from police station Seelampur. This also belies the testimony of PW-1 (Satnam Singh) that his sister Smt. Dev Wati had made an oral dying declaration to him inasmuch as all that his sister told him or could tell him because of her precarious condition was that she was burnt by her mother-in-law after pouring kerosene oil on her. Such a statement does not take much time as it is just one sentence. It is obvious that the duration between 7.45 a.m and 8.15 a.m. would have been sufficient for making such a statement. However, at that point of time, as noted in the MLC, CRL.324/1997 Page 7 of 15 the patient, i.e., Smt. Dev Wati, was clearly unfit for making a statement. It is for these reasons that the testimony of PW-1 (Satnam Singh) with regard to the alleged dying declaration made by his sister Smt. Dev Wati cannot be believed and relied upon. The learned Additional Sessions Judge failed to appreciate these facts and, therefore, his conclusion with regard to the reliability of the alleged oral dying declaration made to PW-1 (Satnam Singh) is erroneous.
11. There is another aspect of the matter and that is PW-2 (Vidya Wati), who is the mother of the deceased Smt. Dev Wati, has stated in her examination-in- chief that she met her daughter in hospital, but she was unconscious and did not talk to her and that she died on the next day. In her cross-examination, it has been elicited from her that she had gone to the hospital at about 7.30/8 a.m. and that she had accompanied Saudan and Satnam Singh (PW-1) at that time. This clearly negates the testimony of PW-1 (Satnam Singh) insofar as the alleged oral dying declaration is concerned.
12. We now come to the other alleged dying declaration, that is, Exhibit PW- 13/A, which is a carbon copy of the dying declaration said to have been recorded by PW-12 (D.B. Kubba), who is an Executive Magistrate. Exhibit PW-13/A has been recorded in question and answer form. In response to the CRL.324/1997 Page 8 of 15 question - How did you get the burns?, the deceased Smt. Dev Wati is said to have answered as under:-
"My mother-in-law set me on fire early in the morning by pouring K. oil on me. I cried. My husband and my father-in- law were sleeping at that time. My husband woke up and he along with other neighbours extinguished the fire. I was brought to the hospital by my husband."
13. The said statement is alleged to have been recorded at 3.30 p.m. on 30.03.1984. Apart from the other legal infirmities with regard to this so-called dying declaration, there is also the statement of PW-2 (Vidhya Wati), which we have already referred to above wherein she has stated that when she met her daughter in hospital she was unconscious and she died on the next day. There is no statement made by her to the effect that her daughter ever gained consciousness between the time she arrived at the hospital and the time when she died the next day. This also casts serious doubts on the correctness of Exhibit PW-13/A.
14. Furthermore, as per Chapter XIII-A of Volume III of the Delhi High Court Rules and Orders, dying declarations are to be recorded in a particular manner. Rule 3, 4, 5 and 8 read as under:-
"3. Fitness of the declarant to make the statement should be got examined- Before proceeding to record the dying declaration, the Judicial Magistrate shall satisfy himself that the CRL.324/1997 Page 9 of 15 declarant is in a fit condition to make a statement, and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. If, however, the circumstances do not permit waiting or the attendance of the Medical Officer, the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considred it impracticable or inadvisable to wait for a doctor's attendance.
4. The statement of the declarant should be in the form of a simple narrative- The statement, whether made on oath or otherwise, shall be taken down by the Judicial Magistrate in the form of a simple narrative. This, however, will not prevent the Judicial Magistrate from clearing up any ambiguity, or asking the declarant to disclose the cause of his apprehended death or the circumstances of the transaction in which he sustained the injuries. If any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the question also the answers which he receives. The actual words of the declarant should be taken down and not merely their substance. As far as possible the statement should be recorded in the language of the declarant or the Court language.
5. Signatures or thumb impression of the declarant to be obtained in token of the correctness of the statement- At the conclusion of the statement, the Judicial Magistrate shall read out the same to the declarant and obtain his signature or thumb- impression in token of its correctness unless it is not possible to do so. The dying declaration shall be placed in a sealed cover and transmitted to the Judicial Magistrate having jurisdiction to deal with the case to which it relates.
8. Fitness of the Declarant to make a statement to be certified by the Judicial Magistrate or other officer concerned - The judicial Magistrate or other officer recording a dying declaration shall at the conclusion of the dying declaration certify that the declarant was fit to make a statement and it contained a correct and faithful record of the statement CRL.324/1997 Page 10 of 15 made by him as well as of the questions, if any, that were put to him by the justice recording the statement. If the accused or his counsel happens to be present at the time the dying declaration is recorded, his presence and objection, if any, raised by him shall be noted by the Judicial Magistrate or the officer recording the dying declaration, but the accused of his counsel shall not be entitled to cross-examine the declarant."
15. It will be seen from the aforesaid extract that Rule 3 requires that the 'Judicial Magistrate' should satisfy himself that the declarant is in a fit condition before he starts recording the statement. But, in the present case, we find that there is no such certificate given by PW-12 (D.B. Kubba) nor is there any doctor's certificate indicating that Smt. Dev Wati was fit for making a statement at 3.30 p.m. on 30.03.1984. The only semblance of a certificate is the endorsement on the MLC (Exhibit PW-8/A) to the effect that the patient is fit for giving a statement and that endorsement had allegedly been made by Dr. G.S. Janardhan, who, as we have already pointed out above, was neither produced as a witness nor was his signature got proved through some other witness. In any event, there is no time or date alongside the said endorsement in the MLC (Exhibit PW-8/A). Thus, there is no evidence of any doctor having certified that Smt. Dev Wati was fit for making a statement at the time when her statement was allegedly recorded by PW-12 (D.B. Kubba). Interestingly, even PW-12 (D.B. Kubba), when he came to the witness stand, has not stated CRL.324/1997 Page 11 of 15 that when he recorded Smt. Dev Wati's statement, he had satisfied himself that she was fit for making a statement.
16. Rule 3 also prescribes that if the condition of the patient was such that it was not possible to obtain a doctor's certificate prior to the Magistrate recording the dying declaration, then such reasons must be indicated in the dying declaration itself or at least the Magistrate should have stated so during his deposition before court. He should have indicated as to why he felt it necessary to record the statement of Smt. Dev Wati without waiting for the doctor's certificate as regards her fitness to give such a statement. This is also absent in the present case.
17. Rule 4 of the said Rules requires that the dying declaration should be in the form of a simple narrative and that the actual words, as far as possible, should be recorded and, that too, in the language of the declarant. We find that this rule has also not been followed inasmuch as the so-called dying declaration has been recorded in a question and answer form and in English which was not the language of the declarant.
CRL.324/1997 Page 12 of 15
18. Rule 5 has also not been followed in this case as the thumb impressions have not been taken nor is there any indication that the statement was read out to the declarant. There is also no evidence that the dying declaration was placed in a sealed cover and transmitted to the Judicial Magistrate having jurisdiction over the matter.
19. Rule 8 has also been violated in the sense that no fitness certificate has been given while recording the dying declaration.
20. For all these reasons, the so-called dying declaration (Exhibit 13/A) is also of a very doubtful character and cannot be relied upon or form the sole basis of conviction. It is well-settled that though a conviction can be based solely on the basis of a dying declaration, this can only be done when the dying declaration is established to be authentic and correct as well as truthful. As regards the authenticity and correctness of the dying declaration, the prosecution has to establish that the dying declaration in question was, in fact, made by the person who lost his/her life and that it had been faithfully recorded. Even where it can be so established, the prosecution has further to establish that the statement was truthful.
CRL.324/1997 Page 13 of 15
21. In the present case, even the authenticity and correctness of the dying declarations has not been established by the prosecution and the same remains shrouded in doubt, therefore, this is not one of those dying declarations which can be made the sole basis of conviction.
22. PW-3 (Mukesh Kumar), who is a neighbour, has also stated that Smt. Dev Wati was unconscious at 5- 5.30 a.m. and remained unconscious all the way to the hospital. PW-3 is the person who took Smt. Dev Wati in a three wheeler to the hospital. PW-4 (Mohd. Tahir), who is also a neighbour, stated that she was unconscious shortly after she received the burn injuries. All these factors go to indicate that Smt. Dev Wati, soon after she received her burn injuries, slipped into unconsciousness and, in all probability, did not recover her consciousness at all till she died the next day at 5 a.m.
23. The result of the aforesaid discussion is that the so-called dying declarations made to PW-1 (Satnam Singh) and PW-12 (D.B. Kubba) cannot be relied upon. The learned Additional Sessions Judge fell into error in relying upon the same and thereby convicting the appellant for the offence punishable under Section 302 IPC and, consequently, in sentencing her for life CRL.324/1997 Page 14 of 15 imprisonment as also in imposing a fine upon her. The impugned judgment and / or order on sentence are set aside and the appellant is acquitted of the charge against her. Her bail bonds are cancelled and her sureties stand discharged.
The appeal stands allowed.
BADAR DURREZ AHMED, J VEENA BIRBAL, J AUGUST 11, 2011 KB CRL.324/1997 Page 15 of 15