Delhi High Court
Rawel Singh vs The State on 10 January, 1997
Equivalent citations: 1997IAD(DELHI)704, 1997CRILJ1195, 65(1997)DLT503
Author: Arun Kumar
Bench: Arun Kumar, K.S. Gupta
JUDGMENT Arun Kumar, J.
1. The appellant was convicted by an Addl. Sessions Judge, Delhi for the murder of Shanta, alleged to be his wife and was sentenced to imprisonment for life and to pay a fine of Rs. 3,000/- vide judgment dated 14th December, 1993. As per the statement of SI Surinder Kumar, PW-9, on 12th January, 1991 at 9.10 p.m. a message was received from the Duty Officer (West) Distt. Control Room that one lady had been burnt in house No. 11/34, Subhash Nagar, New Delhi. A.D.D. entry No. 16 to this effect was recorded at Police Post MIG flats, Police Station Rajouri Garden, New Delhi at 9.10 p.m. That D.D. was marked to ASI Bhim Singh, PW-14 who proceeded to the place of occurrence. SI Surinder Kumar also went to the spot and from there he proceeded to the Din Dayal Upadhyay (DDU) Hospital. At the hospital he learnt that the patient was referred to the RML Hospital so he proceeded to the RML Hospital. On reaching the hospital at about 11.10 p.m. he wanted to record the statement of the patient. The patient was declared fit for statement by the duty doctor at 11.10. p.m. But her statement could not be recorded because she was crying badly on account of burn injuries. The MLC of the patient recorded at the DDU Hospital shows that she was brought to the hospital by Rawel Singh, husband. It is further recorded in the MLC - "alleged history of burns, history given by the patient herself. Patient says that in a domestic quarrel the kerosene was sprinkled by herself and fire was lit by her husband." The patient was having 65% burns over head, neck, face, anterior thorax, posterior thorax, both arms and right anterior thighs, patient was conscious, co-operative, complaining of pain, well oriented to space and time, smell of kerosene oil was coming from clothes and body. Pulse was 100 mt., regular good volume." The MLC is Ex.PW16/A.
2. SI Surinder Kumar informed the SDM of the area, Shri H. C. Gaur for purposes of recording the statement of the patient. He went to the spot and collected burnt clothes, match box and a can which were seized vide memo Ex.PW9/C. He went to the hospital along with Shri H. C. Gaur, the SDM at about 11.10 a.m., where statement of Shanta was recorded by the SDM. The statement is Ex. 6/A. Accused Rawel Singh was present in the hospital. He was arrested. His clothes which were allegedly smelling kerosene oil were taken possession of vide seizure memo Ex.PW9/E. The accused is stated to have made a disclosure statement which is Ex.PW9/D. Shanta expired on 17th January 1991.
3. The post mortem report is Ex.PW15/A. According to the report the cause of death was due to septicemia following 60% deep burns. Scalp hair were preserved and sealed. They were seized vide seizure memo Ex. 9/F. There was no external injury mark on the body. There was no mark of violence seen on the body.
4. The SDM who had recorded the dying declaration of Shanta appeared as PW-6. He stated that he reached the RML hospital in the morning at about 11.15 a.m. He found Shanta fit to make a statement and, therefore, proceeded to record the same. In fact there is an endorsement on the MLC by Dr. Sharif about fitness of the patient to make statement at 11.20 a.m. The dying declaration was recorded in Hindi, a language known to the patient. It is in question-answer form. The SDM stated that it was recorded in his hand and bore his signatures. He further stated that he had correctly recorded the statement of Shanta. In answer to a specific question as to how her clothes got fire, Shanta told him that -
"On 12-1-1991, at about 6.15 to 6.30 p.m., her husband Rawal Singh in an angry mood asked her to prepare tea for him. She further deposed that there was no kerosene oil in the stove and she picked-up the kerosene oil can and was just pouring the kerosene in the stove, her husband Rawal Singh snatched the can from her hand in that scuffle, some of the kerosene oil fell on the clothes of the Rawal Singh. She further deposed that Rawal Singh took it as she wanted to put him to flames. But in fact, Rawal Singh poured kerosene oil from the can on her and set her ablaze by lighting a match stick. To my another specific question whether her husband Rawal Singh threats her in any way of beat her, she answered that right from the day, when she had love-married with him, her husband Rawal Singh had been harassing her, abusing her and also beating her."
5. The said SDM had also conducted the inquest proceedings and the inquest report is Ex.PW-6/F. He had also sent the body for post mortem. In cross-examination he stated that he might have received telephonic request from police station Rajouri Garden at about 10.00 a.m. He went to the hospital in his official car. A portion of his cross-examination which is relevant is reproduced as under :-
"10. When I went to the bed-side of Shanta, none of her relative was there. Her father had come when I had finished the statement. During the course of my recording the statement, none else came to the bed-side of Shanta. I.O. of the case was also not on the bed-side. Hospital staff might be there at the time of recording the statement. I did not note-down the names of the hospital employee who were present at the site when I recorded the statement. I concluded the statement at about 11.35 a.m. I then left the hospital thereafter.
11. I do not recognize accused Rawal Singh. The Rawal Singh named by Shanta was not present near the bed of Shanta because no person was actually there when I recorded the statement. After I concluded the statement I.O. had come to me. I.O. was not having in his custody any person at that time. It is wrong to suggest that I did not record the statement in question in the hospital at 11 or 11.35 a.m. or that I am deposing falsely."
6. The other relevant oral evidence is that of PW-3, Malla Devi, mother of the deceased, PW-4, Devi Prasad, father of the deceased and PW-5, Gopi Nath, brother of the deceased. The version of the incident given by all these three witnesses is similar and consistent with each other. The three had gone to the hospital on receiving information about Shanta having been burnt. They also referred to the fact that Shanta had contracted a love marriage with the accused. She had earlier been married to one Dalip Goswami from whom she had two children. Dalip Goswami had deserted her. Malla Devi stated that the accused used to live in a house adjoining the house of Shanta which probably led to some relationship developing between the two. These three witnesses also stated that the accused did not like to keep the two children of Shanta from her previous marriage and this was the bone of contention between the two for which the accused used to beat Shanta. The version of the incident as given by these three witnesses which according to them was told to them by Shanta is as follows : that on the previous evening accused Rawel Singh had come home asked for tea. Thereupon she told him that there was no kerosene oil in the stove. Shanta started pouring kerosene oil in the stove whereupon the accused snatched the kerosene oil can from her hands. She tried to snatch back the can from the accused and in the process some kerosene oil fell on clothes of the accused. The accused alleged that Shanta wanted to burn him and that she would actually be burnt and saying so the accused poured kerosene on her and set her on fire by lighting a match stick. The accused thereafter tried to extinguish the fire and poured water on her.
7. The entire prosecution case rests on the dying declarations of Shanta. There are three dying declarations in this case. First, the one contained in the MLC Ex.PW-16/A. The second dying declaration is the one recorded by the SDM in the hospital on 13th January, 1991. The third dying declaration is the one about which the three close relations of Shanta talked in their evidence recorded before the Court. These close relations are PW-3, Malla Devi, mother of Shanta, PW-4, Devi Prasad her father and PW-5, Gopi Nath her brother. All these three witnesses while appearing as prosecution witnesses narrated about the incident which we have already noted above. According to these witnesses this version of the incident was given to them by Shanta herself. This dying declaration does not deserve much attention for the reason that none of these witnesses referred to the same earlier, i.e., prior to their evidence recorded in the court. The statements of these witnesses were recorded by the police. They never mentioned about the dying declaration. The trial court disbelieved this dying declaration. We also do not attach much value to the same. We are of the view that the fate of the prosecution case hinges the other two dying declarations noted by us.
8. Shri Sandeep Sethi, learned counsel for the appellant raised a preliminary submission that both the dying declarations, i.e., one contained in the MLC and the other contained in the statement of Shanta recorded by the SDM should be rejected. In support of this contention, the learned counsel submitted that the version of the crime is at variance in both these dying declarations. He buttressed this argument by drawing our attention to another version of the crime which as per sequence of events is the earliest. This version is contained in the statement of Head Constable Rekha Gurang. This witness appearing as PW-10 stated that while she was on duty on 10th January, 1991 at the police control room, one Davinder Kumar gave a ring from telephone No. 5418838 at about 9 p.m. that a woman set herself to fire in 11/34, Subhash Nagar, Delhi. According to the learned counsel this is the first version of the crime which shows that Shanta had set herself on fire. The second version is contained in the MLC according to which kerosene was sprinkled on her by Shanta herself and fire was lit by her husband. While according to the third version emerging from the dying declaration recorded by the SDM, kerosene oil was poured on Shanta by her husband who also set her ablaze by lighting a match stick. The learned counsel submitted that when there are three versions of the same incident, all the three must be rejected and in any case the accused should get the benefit of doubt.
9. We have considered this argument. So far as first version contained in the statement of Head Constable Rekha Gurang is concerned, we are unable to attach any significance to it. This version is not by the deceased. It is a version allegedly given to the witness by one Davinder Kumar. The witness could not have answered any questions in relation to that version. Only Davinder Kumar who allegedly gave the version could throw light as to how he gave the information that a woman had set herself on fire. If he was produced he could have been asked as to whether he had seen the incident himself or else what was the basis of his saying so. In the absence of Davinder Kumar no importance can be attached to this version. This brings us to the remaining two versions of the crime, one contained in the MLC and the other in the dying declaration recorded by the SDM. In both these versions of the crime, so far as setting Shanta to fire is concerned, the two versions are consistent, clear and without any ambiguity. In both the versions it is stated that her husband had set her on fire. The variance is only about the sprinkling of kerosene on the victim. So far as the act which caused death is concerned, it is the lighting of fire or setting the victim ablaze. Even if kerosene was poured/sprinkled on her by Shanta herself that alone would not have caused her death. If we are to believe Shanta that the fire was lit by the accused, then we have to believe that the accused knew that there was kerosene oil on the clothes and body of Shanta. The responsibility of the crime, therefore, rests on the person who committed the act which caused death. For these reasons we reject the argument regarding variance in the dying declarations. There is no variance on the crucial aspect of the incident.
10. The learned counsel for the appellant further argued that there was no recovery of the stove from the place of occurrence nor there was any recovery of items needed for making tea, like tea leaves, sugar, milk etc. This according to learned counsel belies the theory of tea making. This argument does not take note of the fact that a kerosene can and a match box were recovered from the spot. The main issue is whether we accept the dying declarations or not. If they are accepted, this argument loses its importance.
11. So far as the dying declaration contained in the MLC and the statement recorded by the SDM are concerned, we have no doubt about the credibility and reliability of the same. They inspire confidence. As already noted, the version recorded in the MLC must have been given by Shanta herself. She was taken to the hospital by the accused. It is stated in the MLC that the version was given by the patient herself. She was conscious as noted in the MLC. She had 65% burns. It is highly improbable that she would implicate the appellant falsely in the crime. After all she was living with him. There had been a love affair between the two. The only bone of contention between the two appeared to be the children from her previous marriage. The statement recorded by the SDM inspires confidence and appears to be natural and trustworthy. It satisfies the usual tests. It was recorded in a language known to the maker of the statement, i.e. Hindi. It bears the impression of the toe of the maker. It is counter signed by the SDM who recorded it. It is in question-answer form. About the fitness of the patient to make the statement there a certificate of the doctor. Of course the doctor has not been examined. It was so because the doctor had left the job by then. The signatures of the doctor had been duly proved by the record clerk of the hospital. We have no reason to doubt the veracity of the two dying declarations contained in the MLC as also in the statement recorded by the SDM.
12. We are unable to accept the argument that Shanta must have been tutored to make the statement before the SDM. Firstly, she had made a similar statement at the earliest in her MLC. At that time there could be no question of tutoring. Secondly, her close relations, i.e. PW-3, PW-4 and PW-5 were not having very cordial relations with Shanta and the accused. They were not even on visiting terms as admitted by these witnesses in their statements. There was no likelihood of their tutoring Shanta for making such a statement.
13. Now let us examine the defense raised by the appellant in his statement under S. 313, Cr.P.C. wherein he stated that he is not Rawel Singh and he has been falsely implicated in the case. He stated that his name was Lakhbir Singh. He admitted that he was a tenant in house No. 11/34, Subhash Nagar on the first floor whereas according to him deceased Shanta was residing on the second floor of that house. According to him he returned to the house at about 9.30 p.m. on the date of the incident from his work. In front of the house there was noise about the incident. He was apprehended by the police at that time. He further stated that he had no concern with Shanta. We have considered this plea carefully. We find that there is overwhelming evidence on record which establishes that the appellant is Rawel Singh, the accused. May be that he has another name or an alias as Lakhbir Singh, but the fact that he is Rawel Singh cannot be disputed. The parents and brother of Shanta who appeared as witnesses identified the accused as Rawel Singh present in court with whom their daughter/sister was residing on account of love marriage with him. In that way Rawel Singh was the son-in-law/brother-in-law of these witnesses and in case of such close relationship they could not be committing any mistake about identity of the person. Further it is in evidence of these witnesses that Rawel Singh was living in the same neighbourhood before marriage of Shanta with him. The person who took Shanta to the hospital and got her admitted in the hospital as per the MLC is again Rawel Singh. Rawel Singh was found present in the hospital and was arrested from the hospital as per the statement of the I.O. The accused had smell of kerosene oil on his clothes. His clothes were seized by the I.O. The personal search memo prepared at the time of arrest of Rawel Singh is signed by him as Rawel Singh. The same is Ex.PW9/G.
14. PW-2, Ranjit Singh, son of Karnail Singh, who was the landlord of the house in which Rawel Singh was admittedly a tenant, identified him in court as Rawel Singh. He stated that accused Rawel Singh present in court was known to him because he was his tenant. He further stated that when after hearing the shrieks of a lady he went upstairs he found the accused holding his wife, whose name he did not remember, outside the room. The wife of the accused had burn marks but the fire had been extinguished after throwing water on her. Accused told him to bring a scooter. He also told him that his wife was preparing chapattis and food and had got burnt. Further in the evidence of both the investigating officers, i.e. PW-9 and PW-14, namely, Surinder Kumar and Bhim Singh respectively it is mentioned that the accused was present in the hospital. His clothes were smelling kerosene. His clothes were taken possession of.
15. The above facts clearly establish that the question of identity raised by the appellant is totally without any basis and is a vain attempt by him to save himself.
16. Lastly, the learned counsel for the appellant urged before us that this case falls in Exception (iv) to S. 300, I.P.C. and, therefore, ought to be dealt with under S. 304, I.P.C. for purposes of awarding punishment to the accused.
17. We have carefully considered this argument. However, we are unable to accept the same. For Exception (iv) the key words are :-
(i) without premeditation;
(ii) in a sudden fight in the heat of passion upon a quarrel; and
(iii) without the offenders having taken undue advantage or acted in a cruel or unusual manner.
18. The facts of the present case may qualify for "without premeditation" but it is difficult to bring the case within rest of the requirements of Exception (iv). It cannot be said to be a case of sudden quarrel in heat of passion and leading to a sudden fight. We have evidence of the fact that the relations between the two, i.e. Shanta and accused Rawel Singh were not cordial. Rawel Singh used to beat her often because he did not want to keep in his house her children from her previous marriage. Shanta's parents as well as brother have deposed about it. There is other evidence of it. This fact coupled with the fact that the incident started with Rawel Singh asking Shanta to make tea for him and Shanta reporting back that there was no kerosene oil in the stove. She brought the kerosene can to fill the stove. The accused tried to snatch it and in the process some kerosene oil fell on his clothes for which the accused got annoyed leading to the ultimate act. This do not show any sudden quarrel or heat of passion or a sudden fight. The element of suddenness does not appear to be present. The quarrel between the two and beating of Shanta was a regular feature. Shanta was always at the receiving end. The accused tried to snatch the kerosene oil can from her hands. She was only taking steps to prepare tea for him. She was a mute target. On the fateful day he went a step further - poured kerosene oil on her and lighted the match stick and set her ablaze.
19. It also cannot be said to be a case of the offender having not taken undue advantage or acted in a cruel or unusual manner. The accused knew that there was kerosene oil on the body of Shanta. For purposes of examining this argument even if we assume that Shanta had poured kerosene oil on her body herself, the fact remains that the accused knew that there was kerosene oil on the body of Shanta. Throwing a lighted match stick on such a person would make it out to be a case of taking undue advantage.
20. In the facts on record it will not even be too much to say that the accused acted in a cruel manner inasmuch as he set ablaze a helpless lady who was living with him as his wife in spite of being beaten by the accused regularly.
21. The learned counsel for the appellant laid emphasis on the behaviour of the appellant after the incident. He highlighted the fact that the accused doused the fire and took Shanta to the hospital. Further he admittedly made no attempt to run away from the hospital. Rather he continued to look after Shanta in the hospital till he was arrested. The question that arises for consideration is whether this conduct of the appellant points to his innocence. We did not think that it is so. The guilt of the appellant is proved beyond any doubt. His conduct after the incident does not bring the case within the purview of any of the Exceptions to S. 300, I.P.C. Thus the conduct of the appellant after the incident is of no consequence in the facts of the present case.
22. The result of the above discussion is that this appeal fails and the same stands dismissed. The conviction of the accused and the sentence awarded to him by the learned Addl. Sessions Judge as per the impugned judgment is maintained.
23. Appeals dismissed.