Delhi District Court
The State vs Sneh on 5 January, 2018
IN THE COURT OF SHRI SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-05, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
SESSION CASE NO.1692/2016
IN THE MATTER OF:
The State
VERSUS
1. Sneh, W/o Sh. Naresh
2.Laxman, S/o Sh. Rampat Yadav
3. Radha, W/o Sh. Rampat Yadav
All, R/o RZ-603, Gali No. 3,
Main Sagrpur Pull, New Delhi.
4.Raj Bala, W/o Sh. Vijay,
R/o Village Mashit, District Rewari,
Rajasthan.
Date of institution : 28.08.1999
Date of arguments : 22.08.2017
Date of order : 05.01.2018
JUDGMENT
Case of prosecution is that on receiving DD No.11A on 18.04.1999, Sub-inspector Jagveer Singh (PW-12) along with SC No.1692/2016 State v. Sneh & Ors. Page No.1 of 38 Constable Surender Singh (PW-9) reached at Safdarjung Hospital where Smt. Manju was found admitted on MLC No. 185623 in 55 % burnt condition. On inquiry, it found that she was got married within one year and then Sub-Divisional Magistrate (SDM) was informed and SDM A.S. Dabbas (PW-4) reached at said hospital and recorded statement of Smt. Manju wherein she stated that she was married with Laxman on 21.04.1998 and dowry used to be demanded from her after marriage and two times, she brought Rs. 5000/- from her home and gave to her husband and this time on 12 April, her husband himself brought Rs. 2500/- from her house which were given by her mother; that today on 18.04.1999 at 03.00 AM, firstly she was slept by Laxman (her husband), Radha (mother-in-law), Raj Bala (nanad) and Sneh (jethani) and thereafter her said mother-in-law poured oil and her husband set her ablaze by match stick; that she herself extinguished the fire with the help of clothes lying in the courtyard; that brother of her father- in-law namely Jai Singh brought her to the Chanan Devi Hospital and thereafter Safdarjung Hospital. On the direction of SDM, FIR bearing No.276/99 was registered at Police Station Dabri under Sections 498-A and 307 read with Section 34 of the Indian Penal Code,1860 (in short "IPC"). During investigation, lamp, clothes by which fire was doused and burnt clothes of Manju were recovered from the spot and four pieces of broken bangles were recovered upon the bed lying in the said room. Manju was died and her postmortem was got conducted on 13.05.1999 wherein cause of death was stated to be cardio-respiratory arrest following fat embolism subsequent to the burn injuries and therefore Section 302 IPC in place of 307 IPC was added.
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2. After investigation, police report (charge sheet) under section 173 of the Code of Criminal Procedure, 1973 (in short "Code") was filed against the accused Laxman and Radha for the offences punishable under Sections 302/498-A/34/120-B IPC before the learned Metropolitan Magistrate, New Delhi because they both only were arrested but accused Sneh and Raj Bala could not be arrested. Thereafter, accused Raj Bala and Sneh Lata were also arrested and then supplementary charge sheet against them was filed for the offences as mentioned in the main charge sheet .The learned Metropolitan Magistrate committed the case to the Court of Session vide order dated 16.08.1999 because offence under section 302 IPC was triable exclusively by the Court of Session.
3. Charge was framed against all the accused persons for the offence punishable under section 498A and 304 read with Section 34 IPC vide order dated 23.12.1999.
4. The prosecution examined twelve witnesses to prove the prosecution namely Jai Singh (PW-1), Smt. Bimla (PW-2), Mukesh (PW-3), SDM A.S. Dabbas (PW-4), Dr. Komal Singh (PW-5), Jai Singh (PW-6), Sanjay (PW-7), Dr. Devesh Sharma (PW-8), Constable Surender Kumar (PW-9), Head Constable Chand Ram (PW-10), Constable Laxmi (PW-11) and Investigating Officer, Sub-inspector Jagbir Singh (PW-12). Statement of accused persons under Section 313 of the Code were recorded. Accused persons examined no witness in support of their defence.
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5. Vide judgment dated 29.01.2002 passed by my learned Predecessor, all accused persons were convicted for the offence under Sections 326/34 IPC instead of Sections 304/34 IPC but they were acquitted for the offence under Sections 498 A/34 IPC. Vide order dated 31.01.2002, they were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- each with default clause. Said judgment and order on sentence were challenged by all the accused persons by way of three appeals before the Hon'ble Delhi High Court. Vide order dated 08.05.2014, Hon'ble Delhi High Court has observed/directed that :-
"Upon hearing both the sides and on perusal of evidence on record and impugned judgment, it would be appropriate to take note of the fact that while entertaining these appeals, my brother K.S. Gupta, J. (as His Lordship then was), had issued notice vide order of 26 th April, 2002 to appellants to show cause as to why their conviction under Section 326/34 of IPC be not altered to one under Section 304/34 IPC.
At the time of final hearing of these appeals, learned counsel for the appellants had not addressed any meaningful arguments on the aspect of show-cause notice being issued to appellants regarding alteration of their SC No.1692/2016 State v. Sneh & Ors. Page No.4 of 38 conviction from one under Sections 326/34 of IPC to one under Sections 304/34 of IPC. The contentions advanced on behalf of appellants are on the merits of this case.
Upon in-depth consideration of the evidence on record and the impugned judgment, this Court is of the considered opinion that conviction of appellants for the offence under Sections 326/34 of IPC is unwarranted on the face of it, as due to burn injuries sustained by deceased in this incident, she had died within few days.
The cause of death is the burn injuries which ultimately proved fatal.
Finding the conviction of appellants for the offence under Sections 326/34 of IPC to be unsustainable, impugned conviction and order on sentence is set aside and trial court is directed to rehear this matter in the light of afore-noted submissions of appellants and to decide as to whether appellants are liable to be convicted for the offence under Sections 304/34 of IPC or not. Such a course is being adopted because it cannot be said that in a case of victim dying within few days of the SC No.1692/2016 State v. Sneh & Ors. Page No.5 of 38 incident, conviction under Section 326/34 IPC can be recorded. Since show-cause notices to appellants have been issued by my brother K.S. Gupta, J. (as His Lordship then was), while exercising revisional jurisdiction suo moto, therefore, this Court is not deciding these appeals on merits to find out whether appellants are liable to be convicted for the offence under Sections 304/34 IPC while exercising revisional jurisdiction of this Court, as implied acquittal of appellants for the offence under Section 304/34 of IPC cannot be converted into conviction, even if this Court finds appellants guilty of the offence under Sections 304/34 IPC particularly when there is no appeal by the State or a petition by the complainant/first informant of this FIR."
6. Hence, Hon'ble Delhi High Court had set aside conviction and order on sentence, and this court was directed to re-hear the matter in the light of submissions of appellants as mentioned in the order and to decide as to whether accused persons are liable to be convicted for the offence under Section 304/34 IPC or not. Said course was adopted by the Hon'ble High Court because in a case of victim dying within few days of the incident, conviction under Section 326/34 IPC cannot be recorded.
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7. Shri Nishchhal Singh, learned Additional Public Prosecutor has submitted that Dr. Devesh Sharma (PW-8) has stated that the deceased Manju received burn injury. SDM A.S. Dabbas (PW-4) had recorded statement of Manju and thereafter, she died after some days due to said burn injuries and therefore, said statement may be considered as dying declaration. The prosecution has proved its case against the accused persons beyond reasonable doubt and therefore, they may be convicted for the offence punishable under Section 304/34 IPC.
8. Per contra, Mr. O.P. Sharma, learned counsel appearing for the accused persons has submitted that PW-1 Jai Singh who is the father of the deceased and Head Constable in Delhi Police, has clearly denied the prosecution story of any harassment to the deceased or any demand of dowry at any time from the side of the accused persons. PW-1 has further deposed that on receipt of telephonic call about the catching fire of cloths of deceased Manju, he went to her in-law's house where he made inquires from her and she told him that the electric bulb had fused and she had burnt a lamp and was going to prepare tea for the relatives and had caught fire from the lamp in her cloths accidentally and the relatives had extinguished the fire by wrapping a blanket on her body. PW-2, Smt. Bimla is the mother of the deceased who also deposed on line of the PW-1.
9. Mr. O.P. Sharma has further submitted that PW-4, SDM A.S. Dabbas had stated that he obtained right thumb impression but in his SC No.1692/2016 State v. Sneh & Ors. Page No.7 of 38 cross examination he had admitted that in Ex.PW-4/1, it was mentioned as right toe impression. He had admitted that he did not mention that the deceased was fit for his statement; that he had not mentioned that the doctor on duty had verbally told him that the patient was fit to make statement. PW-1 had categorically stated that the alleged history was told to the doctor by Smt. Kailash, hence, the statement of PW-8, Dr. Devesh Sharma regarding the alleged history given by patient Manju herself becomes doubtful and suspicious.
10. Mr. O.P. Sharma has further submitted that the alleged dying declaration Ex.PW-4/1 is not worthy of credence. No time or duration of recording of the said statement is mentioned. No application for declaring the injured fit and no opinion of doctor in this regard is there. The said alleged dying declaration was not recorded in the presence of any doctor or nurse and no signature of doctor or nurse thereon was obtained. No certificate is there about the physical and mental fitness of injured/ deceased. The alleged signature at point B in Ex.PW-4/1 are clearly fabricated as the deceased was a graduate from Delhi University and used to sign in English.
11. Mr. O.P. Sharma has further submitted that had the accused person committed the offence as alleged, they would not have taken the injured to hospital so urgently and would have run away and their conduct which is admissible under Section 8 of Evidence Act, falsify the prosecution version. PW-1 had categorically stated that the alleged history was told to the doctor by Smt. Kailash and not by the deceased and therefore, alleged history in Ex.PW-8/1 cannot be believed. There SC No.1692/2016 State v. Sneh & Ors. Page No.8 of 38 was no smell of kerosene oil mentioned in the said alleged history. The hairs of the deceased were not preserved because investigating agency was clear in his mind that it was a case of sheer accident and no kerosene oil had been used. There is no evidence about the use of kerosene oil. No seized burnt cloths were produced or sent to FSL for necessary opinion. The burnt cloths, the lamp etc. had not even been deposited in the malkhana and were not produced in the Court.
12. It has not been disputed by the accused persons that deceased Manju was married to accused Laxman on 21.04.1998. Even then, it has been proved by the prosecution that deceased Manju was married to accused Laxman on 21.04.1998. In this regard, testimony of PW-1 (Jai Singh), PW-2 (Smt. Bimla) and PW-6 (Jai Singh) can be referred. PW-1, father of deceased Manju, has deposed that Manju was married to accused Laxman on 21.04.1998. PW-2, mother of Manju, has corroborated the version of PW-1 regarding marriage of Manju with accused Laxman. PW-6, uncle of accused Laxman, has deposed that Manju, the deceased, was wife of accused Laxman.
13. It has also been admitted by the accused persons that on 18.04.1999 at about 03:00 AM, Manju was burnt by fire at her in-laws house i.e. House No. RZ-603, Gali No.3, Main Sagarpur, New Delhi but cause of said fire is disputed by the accused persons. Though, factum of burning of Manju by fire has been admitted by the accused persons, yet prosecution has proved said fact. In this regard, testimony of PW-1, PW-4, PW-6, PW-8 and PW-12 may be referred. In this regard, PW-1, SC No.1692/2016 State v. Sneh & Ors. Page No.9 of 38 father of deceased, has deposed that on the night of 17.04.1999 and 18.04.1999 at about 2.30 AM or 3.00 AM, he received a telephone call from her in law's house that her daughter Manju had caught fire in her clothes. He alongwith with his wife and his wife's sister Smt. Kailash went to the house of in-law's of Manju. Manju was taken to Chanan Devi hospital and from there, she was taken to Safdarjung Hospital.
14. In respect of burning the Manju by fire, PW-4 SDM A.S. Dabbas has deposed on oath that on 18.04.1999 at about 11:00 AM, he received a telephone call from Police Station Dabri that one girl named Manju had burnt within seven years of her marriage and had been admitted in Safdurjang Hospital. PW-6 Jai Singh has deposed that on 17.04.1999, his brother Rampat was died on 17.04.1999 ; that he, his relatives and other family members were sitting in one room ; that at about 2:30 AM, the women folk of their family raised hue and cry that Manju has caught fire; that the distance between the place where they were sitting and the place where Manju had caught fire was about 30/40 feet; that he also rushed towards room; Manju was removed to Chanan Devi Hospital and from where, she was rushed to Safdurjang Hospital where she was got admitted. PW-8 is Dr. Devesh Sharma from Safdurjagng Hospital and he has deposed that on 18.04.1999 at 05:15 AM, he had examined Manju brought by her husband Laxman; the time of burn was 2:30 AM. PW-12 Sub Inspector Jagbir Singh is the Investigating Officer who has deposed in this regard that on 18.04.1999 (wrongly written as 18.04.98), he received DD No.11A and thereafter, he along with Constable Surender Singh reached at Safdarjung SC No.1692/2016 State v. Sneh & Ors. Page No.10 of 38 Hospital where injured was found admitted due to 55 per cent burn injuries.
15. Though, the death of deceased in the intervening night of 12.05.1999 and 13.05.1999 at her parental house has been admitted by the accused yet prosecution has proved the death of deceased in the intervening night of 12.05.1999 and 13.05.1999 by examining PW-1, PW-3, PW-4, PW-5 and PW-12. In this regard, PW-1 (father of deceased ) has stated in this cross examination done by learned Additional Public Prosecutor that Manju was discharged from the hospital on 29.04.1999 and he brought her in his house and she died at his house on 12.05.1999. PW-3, brother of the Manju, has deposed on oath that her sister Manju died at their house on the night of 12.05.1999 and 13.05.1999; that he identified her dead body in Subzi Mandi Mortuary on 13.05.1999 vide his statement Ex. PW-3/1 bearing his signatures at Point A. PW-4 SDM, A.S. Dabbas has deposed that on 13.05.1999, he received telephonic call from Police Station Dabri that Manju had died; that he went to Subzi Mandi Mortuary and prepared the inquest report vide Ex.PW-4/3 bearing his signatures at point A; that he moved an application Ex.PW-4/4 for conducting postmortem on the dead body of Manju. PW-4 has proved inquest report vide Ex.PW-4/3. PW-5 Dr. Komal Singh had conducted postmortem on the body of deceased Manju on 13.05.1999 as CMO Civil Hospital. He has deposed that there was alleged history of death in her father's house after discharge from Safdurjang Hospital on 24.04.1999, where she was admitted on 18.04.1999 after burn injuries. PW-5 has proved SC No.1692/2016 State v. Sneh & Ors. Page No.11 of 38 postmortem report as Ex.PW-5/1. PW-12, Investigating Officer, deposed that on 13.05.1999, father of Manju informed the police that her daughter who was admitted in the hospital has since expired and in this regard an entry in daily diary register was made (Ex.PW-12/3) and thereafter, he informed the SDM about the death of Manju. He has also deposed that the SDM has conducted the inquest proceedings and SDM also got the postmortem examination conducted.
16. PW-1 Jai Singh is the father of the deceased. He has not supported case of prosecution in respect of dowry demands and cause of death of deceased. Rather, he has supported the defence version of the accused persons. He deposed that after the marriage, deceased never told him anything. She never told him about harassment by her in-laws. She never told him that her in-laws had ever asked her to bring money from her parental house. In the night of 17.04.1999 and 18.04.1999 at about 2.30 or 3.00 AM, he received a telephone call from her in law's house that she (Manju) had caught fire in her clothes. He alongwith with his wife and his wife's sister Smt. Kailash went to the house of in-laws of Manju. Manju was taken to Chanan Devi hospital and from there, she was taken to Safdarjung Hospital. PW-1 asked her (Manju) about the incident in Safdarjung hospital and she told him that she had caught fire from the lamp accidentally.
17. PW -1 was cross-examined by the learned Additional Public Prosecutor for the State but he had denied the suggestions on material particulars. He was also cross-examined by the accused persons SC No.1692/2016 State v. Sneh & Ors. Page No.12 of 38 wherein he has accepted the suggestion that father in law of deceased Manju had died on 17.04.1999 at about 06:00 PM ; that on receipt of an information with regard to the said death of the father in law of Manju, he went to her in-laws house on the same day to condole his death. He has further stated in said cross-examination that it was decided that the dead body of father in- law of Manju would be cremated in his native village Kesly, District Rewari, Haryana on the next day. He has also admitted the suggestion that 15 to 20 relatives of the accused persons had come to their house to mourn the death of the father in law of Manju; that those relatives stayed at the house of the accused persons till the next date; that when on receipt of a telephone call that Manju had caught fired in her cloths, he went to her in-laws house and made inquiry from her and she told him that the electric bulb had fused and she had burnt a lamp and was going to prepare tea for the relatives and had caught fire from the lamp accidentally; that she told him that the relatives of the accused persons extinguished the fire by wrapping a blanket on her body; that his wife's sister Smt. Kailash was in a fit of anger because, the accused persons had not made proper arrangement of light in their house; that Smt. Kailash was instigating Manju to make an unfavorable statement against the accused persons; it was Smt. Kailash who had told about the incident to the doctor in Safdarjung Hospital at the time of admission of Manju.
18. PW-2 Smt. Bimla is mother of the deceased who has also not supported the case of prosecution and she deposed on the line of her husband (PW-1). She was cross-examined by the learned Additional SC No.1692/2016 State v. Sneh & Ors. Page No.13 of 38 Public Prosecutor but she had denied the suggestions given to her.
19. PW-7 Sanjay had taken the photographs of house of accused vide Ex.PW-7/1 to Ex.PW-7/14. PW-10 Head Constable Chand Ram was Duty Officer on 18.04.1999 and he after receiving the rukka Ex.PW-4/1, he recorded formal FIR bearing no.276/99 which is Ex.PW- 10/1. He made endorsement Ex.PW-10/2. PW-11 is Constable Laxmi and in her presence, personal search of accused Radha was taken vide personal search memo Ex.PW-11/A.
20. As per the case of prosecution, there are two dying declarations. First of all, I have to state the legal position regarding dying declaration. The legal position regarding the admissibility of a dying declaration is settled by the Hon'ble Supreme Court in several judgments. In Mukesh & Anr. v. State of NCT of Delhi, Criminal Appeal No. 607-608 of 2017 decided on 05.05.2017 by Hon'ble three-Judge Bench of Hon'ble Supreme Court, it has been observed/held in respect of dying declaration:
"173. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration. However, the court, while SC No.1692/2016 State v. Sneh & Ors. Page No.14 of 38 admitting a dying declaration, must be vigilant towards the need for 'Compos Mentis Certificate' from a doctor as well as the absence of any kind of tutoring. In Laxman v. State of Maharashtra, (2002) 6 SCC 710 the law relating to dying declaration was succinctly put in the following words:
"3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording.
SC No.1692/2016 State v. Sneh & Ors. Page No.15 of 38 Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
21. In Atbir v. Government of NCT of Delhi, (2010) 9 SCC 1, taking into consideration the earlier judgments in Paniben v. State of Gujarat, (1992) 2 SCC 474 and another judgment in Panneerselvam v. State of Tamil Nadu, (2008) 17 SCC 190,Hon'ble Supreme Court has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration:
"22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of SC No.1692/2016 State v. Sneh & Ors. Page No.16 of 38 the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does SC No.1692/2016 State v. Sneh & Ors. Page No.17 of 38 not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) 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."
22. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. In Mukesh (supra), the Hon'ble Supreme Court has examined the contents of the dying declarations in the light of the various surrounding facts and circumstances. In Shudhakar v. State of Madhya Pradesh, (2012) 7 SCC 569, Hon'ble Supreme Court, after SC No.1692/2016 State v. Sneh & Ors. Page No.18 of 38 referring to the landmark decisions in Laxman (supra) and Chirra Shivraj v. State of Andhra Pradesh, (2010) 14 SCC 444, has dealt with the issues arising out of multiple dying declarations and has gone to the extent of declining the first dying declaration and accepting the subsequent dying declarations.
23. Hon'ble Supreme Court in Sandeep and another v. State of Haryana, (2015) 2 SCR 1999 SC was faced with a similar situation where the first dying declaration given to a police officer was more elaborate and the subsequent dying declaration recorded by the Judicial Magistrate lacked certain information given earlier. After referring to the two dying declarations, Hon'ble Supreme Court examined whether there was any inconsistency between the two dying declarations. After examining the contents of the two dying declarations, it was held that there was no inconsistency between the two dying declarations and non-mention of certain features in the dying declaration recorded by the Judicial Magistrate does not make both the dying declarations incompatible.
24. In Babulal and others v. State of M.P., (2003) 12 SCC 490, Hon'ble Supreme Court has observed that:
"7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered SC No.1692/2016 State v. Sneh & Ors. Page No.19 of 38 by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentire). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth;
situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. ..."
(emphasis supplied)
25. Dealing with oral dying declaration, Hon'ble Supreme Court in Prakash and another v. State of Madhya Pradesh, (1992) 4 SCC 225 has ruled thus:
SC No.1692/2016 State v. Sneh & Ors. Page No.20 of 38 "11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants.
In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. ..."
(emphasis supplied)
26. In Vijay Pal v. State (Government of NCT of Delhi), (2015) 4 SCC 749, after referring to the Constitution Bench decision in Laxman (supra) and the two-Judge Bench decisions in Babulal (supra) and Prakash (supra), the Supreme Court held:
SC No.1692/2016 State v. Sneh & Ors. Page No.21 of 38 "22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.
26. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v.
State of Gujarat wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the SC No.1692/2016 State v. Sneh & Ors. Page No.22 of 38 said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.
27. In State of M.P. v. Dal Singh, a two-
Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be ..................................".
(emphasis supplied)
27. In Gulzari Lal v. State of Haryana, (2016) 4 SCC 583, Hon'ble Supreme Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra) and held/observed:
"23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time SC No.1692/2016 State v. Sneh & Ors. Page No.23 of 38 of recording the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphool Singh (PW7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order.
24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the unshattered testimony of the eyewitness Dariya Singh (PW1) and the statement of the independent witness Rajinder Singh (PW11)."
28. Recently, in Pawan Kumar v. State of H. P., Criminal Appeal No. 775 of 2017 passed by Hon'ble three-Judge Bench of Supreme Court, it has been held/observed:
" 30. Tested on the anvil of the aforesaid authorities, we find that there is no reason to disregard the dying declaration. The Head SC No.1692/2016 State v. Sneh & Ors. Page No.24 of 38 Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. The same has been recorded in presence of the doctor, PW- 10, who had appended his signature. A certificate of fitness is not the requirement of law. The trial court has been swayed away by the burn injuries. It is worthy to note that there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. In ..........................."
(Emphasis is mine)
29. Now in case in hand, as per the case of prosecution, there are two dying declarations of deceased Manju, one is MLC of deceased (Ex.PW-8/1) recorded/prepared at about 05:15 AM on 18.04.1999 by Dr. Devesh Sharma (PW-8) and other is statement of deceased (Ex.PW-4/1) recorded at about 02:00 PM on same day i.e. 18.04.1999 by the SDM, A.S. Dabbas (PW-4). In said MLC of deceased, there is alleged history which is sought by the prosecution to be considered as a dying declaration.
30. Now I consider testimony of PW-8 Dr. Devesh Sharma from Safdarjung Hospital, New Delhi who is stated to have prepared the said MLC of deceased. He has deposed that on 18.04.1999 at 05.15 AM, he examined Manju. She was brought by her husband Laxman. The time SC No.1692/2016 State v. Sneh & Ors. Page No.25 of 38 of burn was 2.30 AM and the time of admission was 05.15 AM. The patient had herself informed him as to how she had sustained the burn injuries. The patient had told him that she had sustained burn injuries when her sisters-in-law (Nanad and Jethani), mother-in-law and husband poured kerosene oil over her and set her on fire. The patient was wearing salwar kamiz at the time of incident and fire was extinguished by herself after putting bulk of clothes (hanging outside in open) over her. He further deposed that the patient Manju had also told him that she had no menses for the last three and a half months, therefore, he had mentioned history of three and a half months of amenorrhoea. On examination, he found the patient to be conscious and oriented. On local examination, he found burn injury over right half of face, neck, medial aspects of arms, whole of chest and abdomen, left thigh-medial and anterior aspect upper half of left leg, right thigh. The injuries were caused by fire and were kept under observation. The approximate percentage of burn was 55 percent. He had taken the right toe impression of the patient on the MLC (Ex. PW-8/1).
31. It has been defence of the accused persons that mausi of Manju namely Kailash was instigating and insisting Manju and whatever had been recorded by the doctor on duty in Safdarjung Hospital, the same was told by mausi of Manju and not by Manju herself. But question is as to why the Dr. Devesh Sharma would mention the fact stated by mausi of Manju. Dr. Devesh Sharma was an independent person holding a respectable position in government hospital and he had no motive to prepare a false record of patient Manju. It has not SC No.1692/2016 State v. Sneh & Ors. Page No.26 of 38 been the defence of the accused persons that the said doctor was bribed by the said mausi of Manju for recording of statement of Manju as per her (mausi of Manju) wish. The plea of the accused persons that it was mausi of Manju (Smt. Kailash) who was instrumental in getting these facts recorded in the MLC does not appeal to the common sense. Why Smt. Kailash would have instigated Manju to make a false statement. In this regard, the plea of the accused persons as mentioned in the cross examination of PW-1 Jai Singh that Smt. Kailash was in a fit of anger as the accused persons had not made proper arrangement of light in their house, also does not appeal to the common sense. Jai Singh (PW-6) had also brought Manju to Chanan Devi Hospital and thereafter Safdarjung Hospital as stated by Manju to PW-4 in her statement/dying declaration (Ex. PW-4/1), but he has not stated that mausi of Manju was instigating Manju to give false statement. He (PW-
6) has also not stated that Mausi of Manju gave the statement/history of incident to Dr. Devesh Sharma. Further, Jai Singh (PW-1), father of Manju, was a Head Constable in Delhi Police who turned hostile and did not support the case of prosecution. In my view the testimony of PW-1 that the electric bulb had fused and deceased had burnt a lamp and was going to prepare tea for the relatives and had caught fire from the lamp accidentally, does not inspire confidence of this court. The parents of deceased were not eye witness of incident as admittedly they reached at the spot after receiving call regarding incident. Not supporting the prosecution case by parents of deceased (PW-1 and PW-2) would not tilt the balance of the case in favour of the accused persons. Further,The doctor has deposed that the patient herself had SC No.1692/2016 State v. Sneh & Ors. Page No.27 of 38 stated him as to how she had sustained the burn injuries; that the patient had told him that she had sustained burn injuries when her sisters-in-law (nanad and jethani), mother-in-law and husband poured kerosene oil over her and set her on fire.
32. In the cross examination, Dr. Devesh Sharma has denied the suggestion that Manju had not disclosed anything to him or that he had incorporated the facts of alleged history of his own or on the basis of the information furnished to him by her relatives. No specific suggestion has been given to the said doctor in his cross examination that whatever had been recorded by him, the same was told by the mausi of Manju.
33. Second dying declaration was recorded by SDM, A.S. Dabbas (PW-4). SDM has clearly deposed that on 18.04.1999, he was working as SDM, Najafgarh. On the said date at about 11 AM, he received a telephone call from Police Station Dabri that one girl namely Manju had burnt within 7 years of her marriage and had been admitted in Safdarjung Hospital. He was requested to go to the hospital to record the statement of Manju. He reached at Safdarjung Hospital at about 02:00 PM. Sub-inspector of Police Station Dabri was sitting with the doctor on duty. The doctor verbally told him that the patient was fit to make a statement. Thereafter, he recorded the statement of Manju (Ex. PW-4/1). He made his endorsement Ex. PW-4/2 on said statement and directed the Station House Officer to register the case. In the said statement of Manju (Ex. PW-4/1), it is inter alia, mentioned that on SC No.1692/2016 State v. Sneh & Ors. Page No.28 of 38 18.04.1999 at about 03.00 AM, first of all her husband Laxman, mother- in-law Radha, nanad Rajbala and jethani Sneh slapped her and later on mother-in-law poured kerosene oil from the lamp and her husband ignited fire with match and fire was extinguished by herself by putting bulk of clothes hanging outside in open over her.
34. SDM had recorded the statement of Manju at about 02.00 PM on 18.04.1999 as stated by him. The cross examination of the SDM suggests that accused persons were trying to put forth the defence that SDM did not go to hospital to record the said statement of Manju and he recorded the same at his office and the signature on the statement (Ex.PW-4/A) was not that of Manju. No question or suggestion has been put/given to SDM to the effect that he had written statement wrongly or on the asking of the mausi of Manju and whatever had been written in said statement, same had been told by the mausi of Manju and not by Manju herself. Further, accused persons in their statement under Section 313 of Code, has stated/explained nothing in respect of dying declaration recorded by SDM. 16. It is obligatory on the part of the accused while being examined under Section 313 of the Code to furnish some explanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide whether or not the chain of circumstances is complete as observed in Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh, AIR 2010 SC 762 and Madhu@ Madhuranatha & Anr. v. State of Karnataka, Criminal Appeal Nos. 1357-1358/2011 passed by Hon'ble SC No.1692/2016 State v. Sneh & Ors. Page No.29 of 38 Supreme Court on 29.11.2013.
35. Learned Counsel for the accused persons has argued that there was no certificate of doctor regarding fitness of the Manju when SDM had recorded the statement of the Manju and therefore, same cannot be considered. This contention is not acceptable as Dr. Devesh Sharma (PW-8) has clearly deposed in his examination in chief that on examination, he found the patient (Manju) to be conscious and oriented. In his cross examination, Dr. Devesh Sharma has clarified/explained the meaning of the word conscious oriented. The conscious oriented means "fit to make statement'' as explained by said doctor. He has denied the suggestions put by the learned counsel for accused persons that every person who is conscious oriented, is always not fit to make statement. He has also stated in his said cross examination that in discharge slip (Mark-A), it is not mentioned that patient has left the hospital on her own. Dr. Devesh Sharma has recorded/ mentioned the dying declaration/ alleged history in the morning at about 5:30 AM on 18.04.1999 and SDM recorded the dying declaration after only about nine hours at 02:00 PM. Further, SDM has stated in his examination-in- chief in this regard that he reached Safdurjang Hospital at about 2:00 PM and a Sub-Inspector of Police Station Dabri was sitting with the doctor on duty and further that the doctor on duty verbally told him that the patient was fit to make a statement and thereafter, he recorded the statement of Manju. Further, SDM has denied the suggestion in his cross examination that the doctor on duty did not verbally tell him that the patient was fit to make a statement. SDM has further stated in his SC No.1692/2016 State v. Sneh & Ors. Page No.30 of 38 cross examination that he did not mention in the said statement of Manju that doctor on duty had verbally told him that patient was fit to make statement. In respect of non-mentioning in the said statement the factum of fitness of Manju as verbally told by doctor on duty, SDM has voluntarily clarified in this regard in cross examination that Sub- Inspector sitting with the doctor on duty was in possession of documents and he must have collected the certificate from doctor. Further, he has denied the suggestion that Manju was not fit to make a statement. In Pawan Kumar's case (supra), Hon'ble three-Judge Bench of the Supreme Court had held/observed that they find that there is no reason to disregard the dying declaration and that the Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. It was further observed that the same has been recorded in presence of the doctor, who had appended his signature and a certificate of fitness is not the requirement of law. It was also observed in the said judgment that there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. In Vijay Pal's case (supra), Hon,ble Supreme Court had referred Mafabhai Nagarbhai Raval's case (supra) wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. In Mukesh's case (supra), Hon'ble three-Judge Bench of Supreme Court has observed that what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind and where it is proved by the testimony of the Magistrate that the declarant was fit to make the SC No.1692/2016 State v. Sneh & Ors. Page No.31 of 38 statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. It was also observed that a certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
36. I do not find any contradiction or inconsistency so far as these two dying declararions (Ex. PW-4/1 and Ex. PW8/1) are concerned. The SDM was not having any ill-will against the accused party. He was not stated to be known to the complainant party. It has not been alleged by accused persons that SDM was bribed to record/prepare false record/statement of deceased. SDM holds a high position. A person holding high position cannot be doubted. There is no material to hold that he had indulged in any falsehood to create the statement Ex.PW- 4/1.
37. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person as observed in Babulal's case (supra). A dying declaration is an important piece of evidence which, if found veracious, voluntary and made in fit mental condition, by the court, could be the sole basis for conviction even without any corroboration as held in Mukesh' case (supra).
38. Hence, from the testimonies as discussed above, I am satisfied that the deceased Manju was in a fit state of mind at the time SC No.1692/2016 State v. Sneh & Ors. Page No.32 of 38 of making the statements/dying declarations (Ex. PW-4/1 and Ex. PW- 8/1) and that it were not the result of tutoring, prompting or imagination and that the both the declarations are true and voluntary. Statement/dying declaration of deceased mentioned in MLC (Ex. PW- 8/1) prepared by Dr. Devesh Sharma finds corroboration in the statement/dying declaration (Ex. PW-4/1) recorded by SDM.
39. It was argued that the father-in-law of Manju had died on 17.04.1999 and therefore, a number of mourners had been there in the house and it would have quite impossible for the accused to assault Manju. The argument is devoid of merits. If there were so many persons present at that time (i.e., on 18.04.1999 at 02.30 AM) then why not even a single person has been examined by the accused in their defence to substantiate the plea that it was an accidental fire. The accused, in my opinion, could not muster courage to produce evidence in defence as they knew in the heart of their heart that no one from their relation was going to substantiate their false plea. Learned counsel for the accused wants this Court to hold that although it was an accidental fire and a number of persons were present yet no one tried to extinguish the fire. If we read dying declarations (Ex.PW-4/1 and Ex.PW-8/1), it will be clear that the fire was extinguished by Manju herself by putting bulk of clothes hanging outside in open over her. No one from the side of the accused had sustained any burn injuries. It is not the defence of the accused persons that they were not present in the house. The defence that due to death of father-in-law of deceased Manju, number of relations numbering around 25/30 had reached at SC No.1692/2016 State v. Sneh & Ors. Page No.33 of 38 the house of the accused Laxman and women folk who had come to console were sitting in one room and Manju was sitting with them in that room and some of the ladies asked Manju to go to the kitchen i.e., room of the accused Laxman to prepare tea and Manju had gone to prepare tea but the bulb of the said room had fused on that day and therefore, Manju had lit the kerosene lamp which was without chimani and all of sudden her cloths were caught fire accidentally from the kerosene lamp due to which she sustained the burn injuries, cannot be accepted because none of those ladies who told Manju to prepare tea, has been examined by the accused persons to prove the said factum of preparing tea on asking by said ladies. Further, accused persons have not examined any eye witness to prove that the bulb of the said room had fused on that day.
40. Learned counsel appearing for accused persons has contended that Investigative Officer did not send the articles like clothes, broken parts of bangles etc. which were recovered from the spot, to the Forensic Science Laboratory (FSL). He further contended that said articles have not been produced during trial by MHC(M) and therefore, these are material infirmity. It is admitted by Investigating Officer (PW-
12) that said articles were not sent to FSL. It has also come in the deposition of said Investigating Officer that MHC (M) has stated that the case property (said articles) were not deposited in Malkhana. But question is as to whether these infirmities go to the root of the case. Taking into consideration the deposition of SDM (PW-4) and Doctor (PW-8), and defence of the accused persons, I do not think that these SC No.1692/2016 State v. Sneh & Ors. Page No.34 of 38 infirmities etc. goes to the root of the case. In case of C Muniappan v. Tamil Nadu, 2010 (9) SCC 567, Hon'ble Supreme Court after taking into consideration earliar several judgments (Vide Chandra Kanth Lakshmi v. State of Maharashtra, AIR 1974 SC 220; Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850; Paras Yadav v. State of Bihar, AIR 1999 SC 644; State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185; Amar Singh v. Balwinder Singh, AIR 2003 SC 1164; Allarakha K. Mansuri v. State of Gujarat, AIR 2002 SC 1051; and Ram Bali v. State of U.P., AIR 2004 SC 2329), has considered effect of defective investigation and observed/held that there may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the I.O. and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the SC No.1692/2016 State v. Sneh & Ors. Page No.35 of 38 trial in the case cannot be allowed to depend solely on the probity of investigation.
41. Hence, the defect in the investigation by itself cannot be a ground for acquittal and the conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. In the case in hand, firstly, there are two dying declarations [Ex.PW-4/1 and Ex.PW- 8/1] and I do not see any reason to disbelieve the same. Secondly, it is admitted/not disputed by the accused persons that clothes of deceased were caught fire from the kerosene lamp due to which she sustained the burn injuries.
42. I have already mentioned that case was remanded back by Hon'ble Delhi High Court to decide by this court as to whether accused persons are liable to be convicted for the offence under Section 304/34 IPC or not.
43. Section 304 IPC prescribes punishment for culpable homicide not amounting to murder. Culpable homicide has been defined in Section 299 of IPC which reads as follow:-
"299. Culpable Homicide- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act SC No.1692/2016 State v. Sneh & Ors. Page No.36 of 38 to cause death, commits the offence of culpable homicide.
Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
44. Section 34 IPC provides for the act done by several persons in furtherance of common intention. As per this provision, when a criminal act is done by several persons in furtherance of common SC No.1692/2016 State v. Sneh & Ors. Page No.37 of 38 intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Hence, if some act is done by the accused persons in furtherance of common intention of his co- accused, he is equally liable like his co-accused.
45. In view of above discussion, I am of the view that prosecution has been succeeded to prove beyond reasonable doubt that on 18.04.1999 at about 03.00 AM, at House No.RZ-603, Gali No.3, main Sagarpur, first of all the four accused persons slapped deceased Manju and later on accused Radha poured kerosene oil from the lamp and accused Laxman ignited fire with match and she died in the intervening night of 12.05.1999 and 13.05.1999 at her father's house due to cardio- respiratory arrest following fat embolism subsequent to the burn injuries. Criminal act is done by all the accused persons in furtherance of their common intention. All the accused persons in furtherance of their common intention, caused death of deceased Manju with the intention of causing such bodily injury as is likely to cause death. Hence, all the four accused persons namely Laxman, Radha, Rajbala and Sneh are convicted for the offence punishable under section 304 (part I) read with section 34 IPC.
Announced in the open court on 05.01.2018 (Sanjeev Kumar) Additional Session Judge-05, South East District, Saket Courts, New Delhi SC No.1692/2016 State v. Sneh & Ors. Page No.38 of 38