Delhi District Court
Fir No. 158/05; State vs . Manmohan Singh Page 1 Of 28 on 28 October, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 126/08.
FIR No. 158/05.
P.S: Nangloi.
U/S: 302 IPC
STATE
Versus
Manmohan Singh,
S/o Balkar Singh
R/o House No. 208, Shiv Vihar,
Nihal Vihar, Nilothi, Delhi.
Date of Institution : 30.05.2005.
Date of Argument : 12.10.2010.
Date of Judgment : 28.10.2010.
JUDGMENT
1. Prosecution case is that on 20.02.2005, an information was received at Police Post Nihal Vihar from Duty Constable ESI Hospital that a lady patient Surjeet Kaur, wife of Gurdial Singh had got burnt while cooking vegetable in the kitchen and was got admitted in the hospital by her husband Gurdial Singh. The information was recorded vide DD No. 15. On receipt of DD No.15, ASI Dharam Singh went to ESI Hospital where he found Surjeet Kaur lying admitted with 60% burn injuries. ASI Dharam Singh recorded her statement. She gave statement that on 20.02.2005 in the evening at about 5.00 pm, her Devar Manmohan Singh came under the influence of liquor and started abusing her. He told her that he would not spare her alive and picked up kerosene oil bottle and poured oil on her in the presence of FIR No. 158/05; State Vs. Manmohan Singh Page 1 of 28 her mother in law and father in law. Manmohan Singh put her on fire with a match stick. Her Devrani Manjeet Kaur extinguished he fire by putting water on her. Accused Manmohan Singh then fled away from the spot. Her son Harjinder Singh informed her husband telephonically. Her husband came at the house and rushed her to hospital. ASI Dharam Singh recovered a bottle from the kitchen of the house of Surjeet Kaur which contained little quantity of kerosene oil. No further action was taken on 20.02.2005 and DD No. 15 was kept pending. On 25.02.2005, ASI Dharam Singh prepared the Rukka Exbt. PW-8/C on the statement of Surjeet Kaur and got recorded the FIR under Section 307 IPC. After registration of the FIR, he prepared site plan and recorded statements of witnesses. On 26.02.2005, Surjeet Kaur died in the hospital. The dead body was sent to SGM Hospital Mortuary. Section 307 IPC was removed and Section 302 IPC was added. Inspector B.R. Mann took up further investigation of the case. He got conducted the postmortem on the body of the deceased. The sealed hairs of the deceased were seized in Malkhana. On 04.03.2005, on receipt of secret information, accused Manmohan Singh was arrested. On interrogation, he gave disclosure statement and pointed out the place of occurrence. Exhibits were sent to CFSL. Charge sheet was prepared under Section 302 IPC pending the receipt of CFSL result. During the pendency of the trial, CFSL result was collected from CFSL Hyderabad and was filed in court.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court. Charge under Section 302 IPC was framed against the accused by my learned predecessor to which, he pleaded not guilty.
FIR No. 158/05; State Vs. Manmohan Singh Page 2 of 283. In order to prove its case, prosecution examined 17 witnesses. PW-1 is Gurmeet Kaur. She is the daughter of the deceased. She deposed that on 20.02.2005, her uncle (Chacha) Manmohan Singh was consuming liquor since morning and was abusing her mother and was also threatening to kill her. She stated that accused poured kerosene oil on her mother and burnt her with a match stick. She further stated that her Chacha had locked her and her brother in a room and thereafter ran away from there. She deposed that they came out by breaking the window. She stated that her mother had fallen from the staircase and that her Chachi poured water on her mother to save her. Thereafter, her younger brother gave a call to his father. Her father came and removed her mother to hospital.
PW-2 is Karam Singh. He is the father of the deceased. He deposed that her daughter Surjeet Kaur was married with Gurdial Singh. He stated that on 20.02.2005, the eldest son of the deceased, who used to live with them, at his request, went to the house of his mother at Khayala and at about 7.00 pm after returning from there, informed them that his mother had got burnt and that she was admitted to ESI Hospital. He then reached ESI Hospital at 8.30 - 9.00 pm with his wife. They met their daughter in the hospital who told them that accused Manmohan Singh was quarrelling with her since morning and had poured kerosene oil on her and burnt her. He deposed that she had also stated that her mother in law and father in law silently witnessed the occurrence and that the wife of accused had tried to extinguish the fire by pouring water on his daughter. He further deposed that his daughter had narrated that her husband Gurdial Singh got her admitted in the hospital and that accused Manmohan Singh used to maltreat her since last many years. He further stated that his daughter told him that accused Manmohan Singh was in a drunkan FIR No. 158/05; State Vs. Manmohan Singh Page 3 of 28 condition and had run away from the house after the incident. He further deposed that Surjeet Kaur continued under treatment for six days and expired on 26.02.2005 and he identified her body on 27.02.2005.
PW-3 is Gurdial Singh, husband of the deceased. He deposed that on 20.02.2005 while he was in his factory, his younger son informed him on telelphone at about 5.30 am that his Chacha had burnt his mummy. He came back to his house and saw his wife Surjeet Kaur lying on the floor in burnt condition. He immediately took her to ESI Hospital in an auto. Her wife narrated him on the way that accused Manmohan Singh had poured kerosene oil on her and burnt her and had also told him that in the morning hours after taking liquor, accused abused her and had threatened to kill her. He stated that his wife died after 4-5 days in the hospital.
PW-4 is Smt. Manjeet Kaur, Jethani of deceased Surjeet Kaur. She deposed that on 20.02.2005, she was in her room on the ground floor along with her husband and children and on hearing the sound of Bachao-Bachao of her Jethani, she came out of her room and that her husband tried to extinguish the fire and she herself poured water on her. She further stated that her husband had put a blanket on her Jethani. She further deposed that on asking, her Jethani told her that she caught fire while cooking food. She deposed that younger son and daughter of the deceased were asked to inform their father about the incident. She stated that her Jeth came at the house and took her Jethani to the hospital. She was declared hostile and was cross examined by the learned Additional PP. She denied that her husband was in the habit of taking liquor in the morning hours. She denied that her husband had poured kerosene oil on her Jethani and FIR No. 158/05; State Vs. Manmohan Singh Page 4 of 28 that when she was trying to escape through stairs, her husband tried to catch hold of her and in this process, the hands of her husband got burnt and he sustained burn injuries on his face and hands. She denied that in the year 2005, her husband had taken drinks and that a quarrel had taken place between her husband and Jethani in the morning.
PW-5 is Smt. Govind Kaur, mother of the deceased. She deposed that her daughter had told her several times before the incident that accused used to harass her after taking liquor. She further deposed that on 20.02.2005, Tejinder Singh, son of the deceased, came to their house and informed that his mother Surjeet Kaur was admitted in ESI Hospital in burnt condition and also told that his uncle Manmohan Singh had set Surjeet Kaur on fire after pouring kerosene oil on her person. Thereupon, she along with her son Ravinder Singh went to ESI Hospital where she found her daughter Surjeet Kaur admitted in the Burns Ward but she was in a fit state of mind and was conscious and on enquiry from her, she replied that her brother in law Manmohan Singh poured kerosene oil on her and then set her on fire with match stick after taking liquor. She stated that this fact was also told by Surjeet Kaur to her husband and her son.
PW-6 is HC Dalbir Singh, Duty Officer. He recorded the FIR Exbt. PW-6/A. PW-7 is SI Jagminder Singh. He had arrested the accused on 04.03.2005 on the basis of secret information vide arrest memo Exbt. PW-7/A and conducted his personal search vide personal search memo Exbt. PW-7/B. He deposed that accused had given disclosure statement before SHO which is Exbt. PW-7/C and then led the police FIR No. 158/05; State Vs. Manmohan Singh Page 5 of 28 party to his house at D-208, Shiv Vihar, Nihal Vihar, Nilothi and pointed out the place of occurrence vide pointing out memo Exbt. PW-7/D. PW-8 is ASI Dharam Singh. He is the first IO of this case. He had collected the MLC of the injured. He stated that doctor on duty had declared the injured fit for statement. He then recorded the statement of Surjeet Kaur which is Exbt. PW-8/A. According to him, the facts were not verified and therefore he kept the statement of Surjeet Kaur with him and kept DD No. 15 pending. On 25.05.2005, he prepared the Rukka Exbt. PW-8/C on the basis of which, FIR was registered under Section 307 IPC. He further stated that on 20.02.2005, he had recovered a plastic bottle containing small quantity of kerosene oil and made a sealed pullanda of the same which was seized vide memo Exbt. PW-8/D. On 25.02.2005, he had prepared the site plan. On 26.02.2005, he received an information regarding the death of Surjeet Kaur in ESI Hospital. Thereafter, he went to the hospital and shifted the body to SGM Hospital. He further deposed that on 28.02.2005, after postmortem, doctor gave one sealed envelope containing hairs of the deceased and sample seal which he handed over to the SHO.
PW-9 is Dr. P.K. Jain from ESI Hospital. He deposed that on 20.02.2005, patient Surjeet Kaur was brought to ESI Hospital by Gurdial Singh, her husband with the alleged history of catching fire while preparing food at about 5.00 pm. The patient was examined by him. There were 60% burn injuries from thigh to forehead on different parts of her body. He proved the MLC Exbt. PW-9/A. PW-10 is Constable Subhash Singh. He had taken the Rukka to the Duty Officer for the registration of the FIR.
FIR No. 158/05; State Vs. Manmohan Singh Page 6 of 28PW-11 is Constable Ashok Kumar. He is the witness of investigation. He had assisted IO Dharam Singh in the investigation of the case. He is the witness of seizure of kerosene oil bottle.
PW-12 is Constable Surender Singh. He is the witness of arrest of accused.
PW-13 is Constable Mukesh Vashisht. He had deposited the exhibits at CFSL, Hyderabad vide RC No. 155/21/05.
PW-14 is Inspector B.R. Mann. After the death of Surjeet Kaur, he took up the investigation of this case. During investigation, he had prepared the inquest papers Exbt. PW-14/A, recorded the statements of Gurdial Singh and Karam Singh regarding the identification of the body and got conducted the postmortem on the body of the deceased. After postmortem, he handed over the body to the legal heirs of deceased vide receipt Exbt. PW-2/B. After the arrest of the accused, he interrogated him and recorded his disclosure statement Exbt. PW-7/C and prepared the pointing out memo Exbt. PW-7/D at the instance of the accused. He stated that on his transfer, the case was entrusted to Inspector Harpal Singh.
PW-15 is Dr. Manoj Dhingra from SGM Hospital. He proved the postmortem report prepared by Dr. Ashish Jain as Exbt. PW-15/A. PW-16 is Inspector Harpal Singh. He obtained priority letter from DCP Crime and sent the exhibits to CFSL, Hyderabad through Constable Mukesh. He stated that FSL result was filed in court FIR No. 158/05; State Vs. Manmohan Singh Page 7 of 28 by Additional SHO vide letter Exbt. PW-16/A and the FSL result is Exbt. PW-16/B. PW-17 is Tejinder Singh, eldest son of the deceased. He deposed that on 20.02.2005, he was residing with his Nana and Nani and that on that day, his Nani informed him that his mother had got burnt. On getting this information, he along with his Mama, Nana and Nani went to ESI Hospital where he found his mother Surjeet Kaur lying admitted in burnt condition. On asking, his mother informed him that his Chacha Manmohan Singh had abused her at about 5.00 pm after consuming liquor and when she tried to persuade him not to abuse, he continued hurling abuses and brought kerosene oil bottle and poured kerosene oil on her head and set her on fire with a match stick. She had also informed him that she was rushed to the hospital by his father.
4. Statement of accused was recorded under Section 313 Cr. PC wherein he denied all the incriminating evidence. He stated that he has been falsely implicated by the police at the behest and at the instance of the parents of the deceased as they were not in good terms with his mother who was living with him and his deceased Bhabhi was also not having good relations with his mother.
5. In his defence, accused examined DW-1 Tarun Kannda. He deposed that he knows the family of accused. According to him, accused and his brother were residing together with their respective families and the mother of accused was residing with his family on the ground floor while his elder brother Puppy and his family were residing at the first floor. On 20.02.2005 afternoon, he was standing in the gali in front of his house and on hearing the noise, he reached the house of FIR No. 158/05; State Vs. Manmohan Singh Page 8 of 28 accused and saw that the wife of elder brother of accused came down from the stairs in flames. He with the help of other neighbourers and the wife of accused, tried to extinguish the fire by pouring water and accused put a blanket on her. When the police came, they told the police that they had tried to extinguish the fire and that the lady had also informed the police that she had caught fire while cooking.
6. I have heard learned Additional PP for the State and Sh. Aseem Bhardwaj, advocate, learned Amicus Curiae for the accused and have also carefully gone through the material on record.
7. The learned Additional PP has submitted that the present case is based on the eye witness account given by PW-1 Smt. Gurmeet Kaur, daughter of the deceased who was present at the hospital at the time of occurrence and also on the dying declaration given by the deceased which has been proved on record as Exbt. PW- 8/A wherein she stated that accused had poured kerosene oil on her and set her on fire. The learned defence counsel has argued that the testimony of PW-1 does not inspire confidence and the alleged dying declaration Exbt. PW-8/A is unbelievable. It is submitted that dying declaration does not bear the attestation of the doctor/nurses and is recorded by the Investigating Officer and not by a competent Magistrate in question and answer form. It is also argued that as per alleged history recorded in the MLC Exbt. PW-9/A, deceased had caught fire while preparing food. It is submitted that the alleged dying declaration is surrounded by suspicious circumstances and therefore it shall not be safe to rely on such a statement. In support of his submission, learned Amicus Curiae has relied on the judgments in the case of Khushal Rao Vs. State of Bombay AIR 1958 SC 22 and State Vs. Laxman Kumar AIR 1986 SC 250.
FIR No. 158/05; State Vs. Manmohan Singh Page 9 of 288. I have given my anxious consideration to the submissions made by the learned Additional PP and the learned counsel of the accused. It is a a settled principle of law that Section 32 of Indian Evidence Act, 1872 is an exception to the general rule that best evidence has to be adduced. The condition precedent for invoking Section 32 of the Act are envisaged in Section 32 itself. Sub Section (1) of Section 32 of the Act provides that when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of that person's death comes into question are relevant whether or not the same were made under expectation of death.
9. 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 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 on the same 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 of prudence. The Hon'ble Supreme Court has laid down in several judgments the principles governing dying declaration, which could be FIR No. 158/05; State Vs. Manmohan Singh Page 10 of 28 summed up as under as indicated in Paniben Vs. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)
i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See: Munnu Raja Vs. State of M.P. (1976 (3) SCC 104)]
ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (See: State of UP Vs. Ram Sagar Yadav (1985 (1) SCC 552) and Ramawati Devi Vs. State of Bihar 1983 (1) SCC 211).
iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration (See: K. Ramachandra Reddy Vs. Public Prosecutor (1976 (3) SCC
618).
iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence (See: Rasheed Beg Vs. State of M.P. (1974 (4) SCC 264).
v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected [See: Kake Singh Vs. State of M.P. (1981 Supp. SC 25)]
vi) A dying declaration which suffers from infirmity cannot form the basis of conviction [See: Ram Manorath Vs. State of U.P. (1981 (2) SCC 654)] FIR No. 158/05; State Vs. Manmohan Singh Page 11 of 28
vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra Vs. Krishnamurti Laxmipati Naidu (1980 Supp. SCC
455).
viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth (See: Surajdeo Ojha Vs. State of Bihar (1980 Supp. SCC 769).
ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail (See: Nanhau Ram Vs. State of M.P. (1988 Supp. SCC 152).
x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (See: State of U.P. Vs. Madan Mohan (1989 (3) SCC 390).
xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted (See: Mohanlal Gangaram Gehani Vs. State of Maharashtra (1982 (1) SCC 700).
10. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The FIR No. 158/05; State Vs. Manmohan Singh Page 12 of 28 dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration (See: Gangotri Singh Vs. State of U.P. (1993 Supp (1) SCC 327).
11. PW-8 ASI Dharam Singh deposed that he recorded the statement of Surjeet Kaur at the hospital after she was declared fit for statement by the doctor on the MLC. He stated that portion A to A of the statement Exbt. PW-8/A was read over to Surjeet Kaur and that Surjeet Kaur put her right thumb impressions at point X & Y thereon. This statement was given by the deceased on 20.02.2005. The said statement was made the basis for the registration of the FIR under Section 307 IPC. She expired thereafter on 26.02.2005. the foremost question which needs consideration is whether such a statement recorded by the Investigating Officer can operate as dying declaration.
12. In the case of Munnu Raja & Anr. Vs. State of M.P., AIR 1976 SC 2199 (1), the facts were that after making statement before the police, victim succumbed to his injuries. The Hon'ble Supreme Court held that such a statement can be tried as a dying declaration and is admissible under Section 32 (1) of the Act. It was further held that the statement given by the deceased at the police station by way of FIR could not be said to have been made to the Investigating Officer. In the case of Lakhan Lal Vs. State 1995 Crl. L.J 2699, in a case based on dying declaration, the allegations were that accused/husband had set his wife on fire by pouring kerosene on her. Deceased gave a FIR No. 158/05; State Vs. Manmohan Singh Page 13 of 28 statement before Sub Inspector after reaching hospital. Permission of doctor was obtained by the IO before recording the statement of the deceased. The Hon'ble Delhi High Court held that the said dying declaration recorded in the form of First Information Report is not liable to be rejected particularly when there is nothing on record to show that it was tutored or its contents were false. Similarly, in the case of Ismail Vs. State of Karnataka 2000 Crl. LJ 1994, in a bride burning case, deceased received 90% burn injuries. Statement given by the deceased was initially recorded and treated as FIR. On subsequent death of the deceased, complexion of the statement changed from being a complaint or FIR to a dying declaration. The court held that it was proper to treat the said statement as "dying declaration."
13. In view of the law laid down in the aforesaid judgments, statement Exbt. PW-8/A of Surjeet Kaur, recorded by the IO, which formed the basis of registration of FIR, can be treated as her dying declaration after her death.
14. One of the grounds pleaded by the learned Amicus Curiae challenging dying declaration is that it was not recorded by a Magistrate and therefore it cannot be relied. The learned counsel has relied on the case of State Vs. Laxman Kumar AIR 1986 SC 250 wherein dying declaration of a burnt bride was neither recorded by the Magistrate nor by the doctor but by the Investigating Officer without explaining the non-availability of the Magistrate and the doctor. It was not signed by the deponent, although literate, and proved to be incapacitated to sign by the burnt injuries. At the time of recording of the declaration, none of her relations were present and the declaration was not recorded in the form of questions-answers. Similarly in the case of Khushal Rao Vs. State of Bombay AIR 1958 SC 22 , Hon'ble FIR No. 158/05; State Vs. Manmohan Singh Page 14 of 28 Supreme Court held that dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say in the form of questions and answers and as far as practicable in the words of the maker of the declaration, stands on a much better footing than dying declaration which depends upon the oral testimony which may suffer from all the infirmity of human memory and human character.
15. In both the judgments cited above, it is nowhere stated that Investigating Officer cannot record dying declaration or that dying declaration not recorded in question-answer form has no value. It has been made clear in a later judgment by the Hon'ble Supreme Court in the case of Balbir Singh & Anr. Vs. State of Punjab 2006 Crl. LJ 4646 that only because dying declaration was not recorded by the Magistrate, same by itself may not be a ground to disbelieve the entire prosecution case. In the case of Vithal Vs. State of Maharashtra 2007 Crl. LJ 317 (SC), the trial court discarded the dying declarations, though were found to be reliable, merely because they were not in question-answer form. Hon'ble Supreme Court held that Trial Judge was not correct in discarding the dying declaration. It was held that it is now well settled that a dying declaration if found to be acceptable, the same need not be described to be in question and answer form. In a similar case titled State of Karnataka Vs. Shariff AIR 2003 SC 1074, dying declaration was not recorded in question-answer form. It was held that same cannot be discarded on that ground alone. It was further observed that the statement recorded in narrative form is more natural and gives version of incident as it has been perceived by the victim. While dealing with the admissibility of dying declaration recorded by a police officer, Supreme Court in the case of Gulam Hussain & Anr. Vs. State of Delhi AIR 2000 SC 2480 held that statement recorded by the police officer cannot be challenged on the FIR No. 158/05; State Vs. Manmohan Singh Page 15 of 28 ground that it was recorded by the Investigating Officer. Police officer did not possess the capacity of Investigating Officer as investigation was not commenced by them.
16. In the present case also, statement of deceased Surjeet Kaur was recorded by ASI Dharam Singh on receipt of DD No. 15 but before the registration of the FIR. The matter was still under enquiry at that stage and investigation had not commenced by then. Thus, in view of the law laid down as aforesaid by the superior courts, I am of the opinion that dying declaration Extb. PW-8/A recorded in narrative form by ASI Dharam Singh cannot be challenged on the ground that it was not recorded in question-answer form and by the Magistrate.
17. It has been argued by the learned Amicus Curiae that dying declaration would lose its value as the deceased died long after the making of dying declaration. The dying declaration Exbt. PW-8/A was recorded on 20.02.2005 but the deceased expired on 26.02.2005 i.e. after six days. Dealing with a similar situation, Hon'ble Supreme Court in the case of Najjam Faraghi Vs. Najjam Faruqui Vs. State of West Bengal AIR 1998 SC 682 held that statement would not lose its value on the ground that deceased died long after making dying declaration. Therefore, in the present case, dying declaration Exbt. PW-8/A shall not lose its value merely on the ground that deceased had died after six days of making the statement.
18. As per the alleged history recorded in the MLC Exbt. PW- 9/A, deceased had caught fire while preparing food. Deceased was brought to the hospital in a burnt condition by her husband Gurdial Singh (PW-3). In his cross examination, Gurdial Singh has admitted that doctor had asked his wife about the cause of fire and the doctor FIR No. 158/05; State Vs. Manmohan Singh Page 16 of 28 recorded in English whatever his wife stated to him. On the basis of this, the learned defence counsel has argued that the alleged history recorded in MLC was given by the deceased herself to the doctor and therefore as per the first version of the deceased, she had not implicated the accused and she had caught fire accidently and therefore statement Exbt. PW-8/A implicating the accused is a tutored version given by the deceased at the instance of her parents, who were present at her bed side at the time of giving the said statement and therefore same cannot be relied.
19. In his testimony, Gurdial Singh has stated that his wife narrated to him on the way to the hospital that accused Manmohan Singh had poured kerosene oil on her and burnt her and then ran away from the house. This is the first statement of incident given by the deceased. In cross examination, Gurdial Singh denied the suggestion that in his presence, his wife stated before the doctor that she was burnt while preparing food. Although, he stated that whatever his wife stated, was recorded by the doctor in English but also stated that he does not know as to what was recorded by the doctor. From the testimony of PW-3, it is difficult to believe that deceased who had already narrated to her husband that accused had poured kerosene oil on her and burnt her, would state before the doctor that she caught fire accidently. The alleged history was not given by the injured/deceased to the doctor is also proved by the doctor himself. Dr. P.K. Jain (PW-9), who prepared the MLC and recorded the alleged history, has deposed that the said alleged history was given to him by Gurdial Singh (brought by). It therefore cannot be said that the alleged history recorded on the MLC was given by deceased herself to the doctor.
FIR No. 158/05; State Vs. Manmohan Singh Page 17 of 2820. The next argument of learned defence counsel is that if Gurdial Singh was already told by his wife that accused Manmohan had burnt his wife by pouring kerosene oil, why would he give false history before the doctor. Admittedly, accused is the brother of Gurdial Singh. The possibility that under the pressure of his family, he may have given false history to the doctor to save his brother, cannot be ruled out.
21. Prosecution is also relying on the oral dying declarations made by the deceased to her husband, father, mother, brother and son. It has been made clear by the Apex Court in the case of Darshana Devi Vs. State of Punjab 1996 SCC (Crl) 38 that even though an oral dying declaration can form the basis of conviction in a given case but such dying declaration has to be trustworthy and free from every blemish and inspire confidence. The learned defence counsel has argued that there are contradictions in the testimonies of Karam Singh (PW-2), Govind Kaur (PW-5) and Tejinder Singh (PW-17) which make their statement with regard to giving oral dying declaration untrustworthy. PW-2 Karam Singh, father of the deceased, deposed that on reaching the hospital, his daughter stated before them that accused Manmohan Singh was quarrelling with her since morning and had poured kerosene oil on her and burnt her. In cross examination, he stated that the police had recorded his statement on the same day i.e. 20.02.2005 after recording the statement of his daughter and that the police had not recorded his statement after the recording of statement of his daughter. It is thus submitted that if PW-2 is to be believed, his statement was recorded by the police on 20.02.2005 even before the recording of statement of the deceased. PW-5 Smt. Govind Kaur, mother of the deceased also deposed that on enquiry from her FIR No. 158/05; State Vs. Manmohan Singh Page 18 of 28 daughter as to how she received burnt injury, she replied that her brother in law (Devar) Manmohan poured kerosene oil on her and then set her on fire with match stick after taking liquor. She stated that this fact was also told by her daughter to her husband and her son. In her cross examination, she stated that her statement was recorded on 20.02.2005 by the police at the hospital at about 8.00 - 8.30 pm while the statement of Surjeet Kaur was recorded prior to their reaching the hospital by the police. Tejinder Singh (PW-17), son of the deceased has deposed that his mother informed him that his Chacha had abused her at about 5.00 pm after consuming liquor and that when she tried to persuade him not to abuse, he continued hurling abuses on her and brought a kerosene oil bottle lying in the house and poured oil on her head and set her on fire with a match stick. In his testimony, he had deposed that he was informed by his Nana-Nani, with whom he was residing that his mother had got burnt while PW-5 Smt. Govind Kaur stated that it was Tejinder Singh who came to their house and informed them that his mother was lying admitted in ESI Hospital in burnt condition and that his uncle had set her on fire after pouring kerosene oil on her person while on the other hand, Karam Singh stated that Tejinder Singh had gone to the house of his mother at his request and in the evening on returning back from there, he informed that his mother had got burnt and that she was in ESI Hospital. Relying on these contradictions, it is argued that testimonies of PW-2, PW-5 and PW-17 do not inspire any confidence.
22. It is correct that there are some contradictions in the testimonies of above said three witnesses with regard to the fact as to how they came to know about the incident and also with regard to the date and timing of recording their statements but these are only minor contradictions/inconsistencies not affecting the core of the prosecution FIR No. 158/05; State Vs. Manmohan Singh Page 19 of 28 case. Material part of the testimonies of witnesses cannot be disbelieved on the minor contradictions/inconsistencies. Contradictions/inconsistencies pointed out do not demolish the testimonies of PW-2, PW-5 and PW-17 with regard to oral dying declaration made by Surjeet Kaur to them. The main thing is that all the three witnesses to the oral dying declaration are consistent with regard to the statement given by the deceased as regards the cause of her death. There is no inconsistency or contradiction with regard to the oral dying declarations given by the deceased. In the case of Lakhan Lal (Supra), oral dying declaration was made by the deceased/wife to her father. It was found that there was no animosity between the accused and her father. The evidence given by her father regarding the said dying declaration was found quite natural. There was no material to show that there were other witnesses to the dying declaration. It was held that dying declaration of her father cannot be discarded for the non-examination of witnesses in support thereof. In this case also, there is no evidence that there was any animosity of accused with the parents of the deceased and her son and therefore the evidence of oral dying declarations of father, mother and son of the deceased cannot be discarded.
23. The learned defence counsel has also argued that as per MLC, the doctor had declared Surjeet Kaur fit for statement at about 8.25 pm but ASI Dharam Singh (PW-8), who recorded the statement of the deceased, stated that he had recorded the statement of Surjeet Kaur at about 8.00 pm. It is thus argued that the statement of the deceased was recorded even before she was declared fit for statement by the doctor. ASI Dharam Singh (PW-8) deposed that doctor had declared the injured fit for statement on the MLC and only thereafter he recorded the statement of Surjeet Kaur. In cross examination, ASI FIR No. 158/05; State Vs. Manmohan Singh Page 20 of 28 Dharam Singh stated that the doctor had granted the permission to record the statement of Surjeet Kaur at about 7.00 - 7.15 pm. Although ASI Dharam Singh gave the time of recording of statement of Surjeet Kaur as 8.00 pm but if his testimony is read as a whole, it is found that he had in fact recorded her statement after she was declared fit by the doctor. Smt. Govind Kaur (PW-5), mother of deceased has also deposed that her daughter was in a fit state of mind and conscious when she visited her in the hospital. Therefore merely because the Investigating Officer had given incorrect time of recording of the statement, would not mean that deceased was not in a fit state of mind at the time when she gave the statement Exbt. PW-8/A.
24. The learned defence counsel has also argued that dying declaration was the result of tutoring by the relatives of the deceased namely her father, mother, brother and son, who were admittedly present at the time of recording of Exbt. PW-8/A. However, I find no basis for coming to the conclusion that statement Exbt. PW-8/A was the result of tutoring, prompting or vindictive or product of imagination. In my view, dying declaration Exbt. PW-8/A is true, voluntary and not influenced by any extraneous consideration. The dying declaration Exbt. PW-8/A recorded by ASI Dharam Singh after obtaining certificate of fitness from doctor and registered as an FIR, cannot be rejected when there is no circumstance on record that FIR was given on account of some deliberation and prompting and there is also no material on record to show that the contents of the dying declaration were false or incorrect. In all the dying declarations, accused has been named. The dying declarations although are more than one but being not contradictory and inconsistent with each other, there is no reason as to why reliance cannot be placed thereupon. On close scrutiny of the dying declaration Exbt. PW-8/A and the oral dying declarations, I am of FIR No. 158/05; State Vs. Manmohan Singh Page 21 of 28 the opinion that same are truthful version of the occurrence which narrate the circumstances leading to the death of the deceased. Statement Exbt. PW-8/A was made immediately after the occurrence. There is no reason to doubt about its veracity and correctness. The circumstances surrounding dying declaration are clear and convincing and therefore same are relevant under Section 32 of the Evidence Act.
25. The learned Additional PP submits that dying declaration is further supported by ocular evidence of PW-1 Gurmeet Kaur, who was present at the house at the time of occurrence. It is stated that despite cross examination, the credibility of testimony of PW-1 is not impeached. The learned defence counsel on the other hand argues that there are improvements in the testimony of PW-1 from the statement which she gave before the police. It is also argued that in cross examination, PW-1 stated that she was residing with her family at the first floor of the house, which is in contradiction to the testimony of her father Gurdial Singh (PW-3) who stated that he and his family were residing at the second floor of the house, thus it is submitted that PW-1 is not a truthful witness and it shall not be safe to rely on her testimony.
26. The credibility and reliability of witness primarily has to be decided by referring to its evidence and by finding out as to how the witness has fared in cross examination and what impression has been created in the mind of the court. There is no hard and fast rule to test the veracity of the witnesses. One way of testing the veracity of the witness is the simplicity of the statement which is indicative of naturalness and truthfulness. If on the whole, the testimony of a witness is reliable, it cannot be discarded merely because he has not revealed the truth in respect of a trivial matter or has expressed ignorance in respect of certain collateral facts. Gurmeet Kaur (PW-1) FIR No. 158/05; State Vs. Manmohan Singh Page 22 of 28 has deposed that accused was consuming liquor since morning and was abusing his mother Surjeet Kaur and was threatening to kill her. The fact that accused was taking liquor and was abusing her mother since morning is not mentioned in the previous statement of Gurmeet Kaur recorded under Section 161 Cr. PC which is Exbt. PW-1/DA. Gurmeet Kaur deposed that accused had locked her and her brother in a room and that they came out after breaking the window but this fact is also not stated in Exbt. PW-1/DA. The evidence given by the witness in court is substantial evidence. Insofar as certain inconsistencies or minor contradictions in the narration or embellishment are concerned, the Apex Court in the case of Ranadhir Basu Vs. State of West Bengal AIR 2000 SC 908 held that some inconsistencies of a minor nature in the evidence of the witness can be regarded as natural, giving more details while disposing before the court are not to be treated as improvements by such a nature as would create any doubt regarding the trustworthiness of a witness. Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. The discrepancies which do not go to the root of the matter and shake the basic version of the witness, cannot be annexed with undue importance, more so, when all the important probability factors echoes in favour of the version narrated by the witness. In the case of Jamir Ahmad Vs. State 1996 Crl. L. J. 2354, the Hon'ble Court held that embellishment, exaggeration, contradictions and inconsistencies are bound to creep in with the passage of time. If witnesses are not tutored, they would come out with a natural and spontaneous version of their own. Similarly, in the case of Markandaya Naik Vs. State 1993 Crl. L. J. 3328 (Orissa) it has been held that there is tendency amongst the witnesses in our country FIR No. 158/05; State Vs. Manmohan Singh Page 23 of 28 to back up a good case by false or exaggerated version. The witnesses also add embroidery to Prosecution version, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if truth in the main. If there is a ring of truth, the case should not be rejected.
27. While deposing in court, PW-1 has given minute details of the occurrence by stating that accused was consuming liquor since morning and was abusing her mother and also stated that she and her brother were locked in a room and that they came out after breaking the window. Although, these averments were not stated by the witness in her statement before the police, this cannot be regarded as an improvement which may affect the credibility of the witness. The testimony of PW-1 can also not be discarded on the basis of stray statement in cross examination that she was residing on the first floor of the house.
28. The learned defence counsel has argued that prosecution is guilty of withholding material evidence namely Harjinder Singh, son of the deceased who according to PW-1 was present at the time of alleged occurrence and has also not cited one witness named Makhan Singh, who as per cross examination of Gurdial Singh, had accompanied him to the hospital.
29. PW Harjinder Singh, although cited by the prosecution, was dropped by the learned Additional PP vide orders dated 22.07.2008 stating that he was under the influence of family of the accused. In the case of Banti @ Guddu Vs. State of Madhya Pradesh AIR 2004 Supreme Court 261, Hon'ble Supreme Court held that if Public Prosecutor has reliable information that any particular FIR No. 158/05; State Vs. Manmohan Singh Page 24 of 28 witness would not support the prosecution version, he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. In the present case, although Harjinder Singh was given up by the learned Additional PP for the reason stated above but accused did not produce him in his defence. Otherwise also, it is not necessary to multiply the witnesses to prove a prosecution case. Once the prosecution case is believed by the court, non examination of some of the witnesses would not throw doubt on the testimony of the witnesses who are examined and believed by the court.
30. In the case of Kartik Malhar & others Vs. State of Bihar, 1996 (1) RCR (Crl.) 308 three eyewitnesses, of them two eyewitnesses closely related to the accused had turned hostile. The Supreme Court upheld the conviction based on the sole evidence of wife of deceased. It was held that conviction can be based on the sole testimony of a single eyewitness provided his credibility is not shaken and court finds him truthful witness. It was held that one credible witness outweighs the testimony of number of other witnesses of indifferent character. The Court held that evidence had to be weighed and not counted. Under these circumstances, non examination of P.Ws Harjinder Singh and Makhan Singh would not throw doubt on the other evidence.
31. The learned defence counsel has further argued that in cross examination, Gurmeet Kaur has stated that police came at her house at about 10.00 pm and took her and her brother to police station but her statement was recorded by ASI Dharam Singh on 25.02.2005 and therefore there is a delay in recording of statement of PW-1 which proves that she is a planted witness, otherwise there is no reason why FIR No. 158/05; State Vs. Manmohan Singh Page 25 of 28 her statement was not recorded on the same day i.e. 20.02.2005. As regards delayed examination of certain witness, Supreme Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of witnesses, the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, prosecution version becomes suspect. If explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. In taking this view, I am supported by the judgment of Hon'ble Supreme Court in the case of Ranbir & Ors. Vs. State of Punjab AIR 1973 Supreme Court 1409 & Banti @ Guddu Vs. State of Madhya Pradesh AIR 2004 Supreme Court 261. In the present case, no question was put to ASI Dharam Singh calling upon him to explain the reason of delay in cross examination of PW-1 and therefore defence cannot gain any advantage therefrom.
32. The learned defence counsel has further argued that FSL result Exbt. PW-16/B does not support the case of burning by pouring kerosene oil as no kerosene residue has been detected on the scalp hair of the deceased. This argument of learned defence counsel is also without any merits, in as much as, the incident had taken place on 20.02.2005 while the scalp hairs were seized by the IO on 28.02.2005 after the postmortem of the deceased. Possibility of finding traces of kerosene residue after eight days of the occurrence was almost negligible and therefore prosecution story cannot be disbelieved merely because no kerosene residue has been detected in the scalp hair sent to CFSL.
FIR No. 158/05; State Vs. Manmohan Singh Page 26 of 2833. The learned defence counsel has also argued that there is delay of five days in the registration of the FIR which makes the prosecution case doubtful. It is well settled that delay in registration of the FIR by itself cannot be a ground to doubt the prosecution case. Unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by evidence merely on the ground of delay. In the case of Ravindra Kumar Vs. State of Punjab (2001) 7 SCC 690, Supreme Court while dealing with the effect of delayed FIR observed as under:-
"To attack the prosecution case on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police, it has to be remembered that law has not fixed any time for lodging the FIR. Hence, delayed FIR is not illegal. Of course, a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is, that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein."
34. Although there is delay of five days in the registration of the FIR of the present case, which according to ASI Dharam Singh was because of the reason that facts were not verified and therefore he kept the statement of Surjeet Kaur with him and DD No. 15 was kept pending. Be as it may, there is no indication of any fabrication in the present case and therefore delay in registration of the FIR is not fatal to FIR No. 158/05; State Vs. Manmohan Singh Page 27 of 28 the present case.
35. The postmortem report Exbt. PW-15/A proves that the cause of death was Septicaemia as a result of anti mortem burn injuries. Thus, burn injuries had caused the death of the victim.
36. Dying declarations made by the deceased thus finds support not only from ocular evidence but also from medical evidence. The witness examined by accused in his support is also of no help to him, in as much as, deceased was already in flames when he reached at the spot. Hence, in view of my aforesaid discussion, I am of the opinion that prosecution has been able to prove its case against the accused beyond doubt. I therefore hold the accused guilty and convict him under Section 302 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NORTH-WEST-03:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT ON 28.10.2010.
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