Delhi High Court
Bhanwar Pal Singh vs The State, Govt. Of Nct Of Delhi on 13 August, 2009
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 06.08.2009
% Date of decision: 13.08.2009
+ CRL. A. No.156 of 1997
BHANWAR PAL SINGH ...APPELLANT
Through: Mr. P.R. Thakur &
Mr. R.K. Ahluwalia, Advocates.
Versus
THE STATE, GOVT. OF NCT OF DELHI ...RESPONDENT
Through: Mr. M.N. Dudeja, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
SANJAY KISHAN KAUL, J.
1. The appellant, Bhanwar Pal Singh, has been convicted under Section 302 of the Indian Penal Code for the murder of his wife, Shrimati Gayatri Devi, solely on the basis of the last dying declaration.
2. It is the case of the prosecution that the appellant brought one Har Prasad, co-accused, to his house at P-2/322, Sultan Puri, Delhi and after both the accused had consumed liquor, the appellant also forced his wife to consume liquor. The appellant is alleged to have left the co-accused in the room _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 1 of 14 with his wife and went out and bolted the door from outside. Har Prasad is alleged to have outraged the modesty of the deceased Shrimati Gayatri Devi but on her refusal to have sexual intercourse with him, went out of the room after the door was opened by the appellant. The appellant is alleged to have got enraged and thrashed his wife with a danda whereafter he poured kerosene oil on the deceased and set her on fire. This incident is stated to have occurred on 16.7.1990 at about 4:30 p.m. and FIR No.160/1990 was registered at P.S. Sultanpuri, Delhi under Section 307 of the IPC against the appellant while the co- accused, Har Prasad, was charged under Section 354 of the IPC. The reason for the conduct of the appellant in attempting to oblige Har Prasad was stated to be the fact that the appellant wanted to get his property papers released from the co-accused, which property had been mortgaged by the appellant with the co-accused. The cries of the deceased attracted the landlady living downstairs and the appellant is stated to have extinguished the fire by pouring water on the deceased wife whereafter he rushed her in a three-wheeler scooter to the Ram Manohar Lohia Hospital. The deceased was admitted at 6:15 p.m. with 65 per cent burns as per the MLC (Exhibit P-18/B). The MLC records the alleged history of the burns as having occurred accidentally while food was being cooked on the stove.
3. The case of the appellant is that this should be really construed as the first dying declaration as the deceased _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 2 of 14 was stated to have been brought in a conscious state as per the MLC and the cause of burns, thus, must be treated to be having disclosed by the deceased herself. A dying declaration was made by the deceased before the SDM on 17.7.1990 at 3:30 p.m., which is Exhibit PW-17/A. The appellant claims this to be the second dying declaration. The said statement records that the deceased and the appellant were living happily and on 16.7.1990 at 4:30 p.m. while she was cooking meat on the stove, when she pumped the stove, which was a kerosene stove, lot of oil oozed out of the burner and when she lit the matchstick her clothes caught fire. The appellant is stated to have come to her aid and poured water on her from a bucket and extinguished the fire. She was categorical that she had no quarrel with her husband and that there was no demand of dowry and that no one was guilty since the burning was the result of her clothes catching fire accidentally.
4. The last dying declaration which is the basis of the conviction is stated to have been recorded by the same SDM on 19.7.1990 at 10:15 p.m. (Exhibit PW-17/C). This dying declaration is recorded by the SDM in hand running into four (4) pages where the deceased has given a detailed narration and details which implicated the appellant and the co-accused in the commission of the offences. It is this statement which resulted in the SDM directing the police to register an FIR, which was registered on 20.7.1990 at 1:25 a.m. _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 3 of 14
5. It may be noticed that the IO, SI Dham Singh (PW-26) is also stated to have recorded the statement of the deceased (Exhibit PW-26/D) in the night intervening 19/20 July 1990. This statement is also in the same terms as Exhibit PW- 17/C. The deceased passed away on 21.7.1990 at 6:15 a.m. The post-mortem report records the extent of burn injuries at 80 per cent. After the death of the victim, the offence was changed from one under Section 307 of IPC to one under Section 302 of IPC.
6. The testimony of PW-26 shows that on 16.7.1990 he visited the place of incident/occurrence and got the place photographed. The IO directed the landlord to lock the premises and preserve the place of incident/occurrence. The IO went to the place of occurrence again after recording the statement in the night intervening 19/20 July 1990 when he found that the room was open and not locked. The landlord of the premises informed the IO that the appellant had come in his absence, had opened the lock, removed the articles and cleaned the premises. It is not in dispute that the stove which is alleged to be the cause of accident was not taken into possession at any stage.
7. Learned counsel for the appellant has contended:
i. the allegation in the last dying declaration of a danda being used and inserted in the stomach of the deceased is not borne out by the evidence as no _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 4 of 14 injuries have been found at the stage of recording of the MLC or at the stage of post-mortem.
ii. The allegation of forcibly liquor being given to the deceased is not borne out by the evidence as there is no indication of intoxication or presence of liquor in the deceased and if it had been so it would have been recorded in the MLC.
iii. The conduct of the appellant in extinguishing the fire, taking the deceased to the hospital and remaining in the hospital till the evening of 18.7.1990 itself shows the prompt care taken by the appellant. Not only that the appellant informed the parents of the deceased promptly and left on the evening of 18.7.1990 only to arrange for funds so that the treatment of his wife could be done in a private hospital.
iv. The site plan shows that there was a stove which was never taken into possession by the IO. The premises were locked by the landlady at the request of the IO and the IO came only two (2) days later by which time the place had been cleaned up. There is no allegation of destruction of evidence by the appellant. There has been no recovery of any liquor bottle or glasses in which such liquor was consumed from the place of occurrence.
v. The deceased made a truthful disclosure when she was rushed to the hospital and the MLC was recorded and again when her dying declaration was recorded _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 5 of 14 by the SDM. It is only when the parents of the deceased got time to influence her, the last dying declaration implicating the appellant was made. There is no reason why the parents of the deceased did not inform the IO if the information was given to them by the deceased at the earlier stage. The testimonies of PW-11,Chandrawati (the neighbour of the parents of the deceased), PW-12, Brij Raj Singh (the father of the deceased) and PW-15, Shrimati Raj Rani (mother of the deceased) are alleged to be unreliable since they had visited the deceased in the hospital on 17.7.1990 when the deceased is alleged to have orally told them about the conduct of the appellant. Yet the facts implicating the appellant as told to these witnesses were not informed to the police nor had these witnesses narrated the incidents as such in their statements recorded under Section 161 Cr.P.C.
vi. The prosecution has failed to establish any motive on the part of the appellant in forcing the co-accused on the deceased. The co-accused has been acquitted as his identity in the commission of the offence under Section 354 IPC was not established during trial and no evidence has been led to substantiate the story of the property being mortgaged with the person who is alleged to have forced himself on the deceased. _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 6 of 14
8. Learned counsel for the respondent did not dispute that there was no recording of any injuries in the MLC or the post-mortem report but pleaded that when 80 per cent burns are caused, it is quite possible that these injuries are not visible. Learned counsel also could not seriously dispute the fact that the IO owed a duty to have secured the site and ought to have taken into possession the stove. The initial dying declaration imputing the occurrence as an accident arising out of the stove or the subsequent dying declaration that the stove had nothing to do with the deceased being burnt could have been best dealt with if this evidence had been secured. Learned counsel also did not have any answer to a query posed by us that on application of the IO the scalp hair had been sent for chemical examination yet no report was made available on the record. It is, thus, not known as to whether any report was received and if so what was the nature of the report.
9. We may note that, in our considered view, this was an extremely material evidence which has been withheld. The scalp hair sample would have thrown light on the manner in which the deceased was burnt, i.e. kerosene oil was poured over her head which would have occurred if the last dying declaration is to be believed. On the other hand, absence of kerosene oil on the scalp in view of the story as narrated in the last dying declaration would have been belied if no such traces were found and it would have given credence to the earlier dying declaration of the accident being _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 7 of 14 caused by the stove. To say the least, the IO has been extremely negligent in his investigation.
10. It is also not disputed that the story of whisky being consumed is not supported by any recovery of glasses or bottle nor is the condition of the door examined to verify whether it could be locked from outside or whether it was broken down at any time.
11. The legal principles to be kept in mind in case of multiple dying declarations have been enunciated in various judgements including of the Apex Court. In Smt. Kamla Vs. State of Punjab AIR 1993 SC 374 it was observed that if there are more than one dying declarations with inconsistencies noticed between them, the court has to examine the nature of the inconsistencies, namely whether they are material or not. An important aspect is that while a dying declaration can form the basis of conviction, due care has to be taken keeping in mind that the accused gets no opportunity of cross-examining the deponent. In State of Gujarat Vs. Khumansingh Karsan Singh & Ors. AIR 1994 SC 1641 conviction was held not sustainable on the basis of inconsistent dying declaration where there was possibility of tutoring and false involvement.
12. A conviction based on the appreciation of two dying declarations with material contradictions was held not sustainable by the Supreme Court in Dandu Lakshmi Reddy Vs. State of A.P. (1999) 7 SCC 69. In one dying declaration it had been stated that the deceased was set on fire by her _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 8 of 14 husband and mother-in-law when she was lighting a stove for preparing coffee while in the other dying declaration the deceased stated that when she was sweeping, her husband and mother-in-law poured kerosene oil on her, lit the matchstick and set her on fire.
13. Learned counsel for the appellant sought to emphasize that in the facts of the present case there was recording of 65 per cent burns in the MLC and 80 per cent burns in the post-mortem report. The dying declaration relied upon gives details to an extent that cast doubt on the dying declaration itself running into four (4) hand written pages. This is so since in such a condition, the deceased would not be able to recall the graphic details. Learned counsel referred to the judgement in Chacko Vs. State of Kerala JT 2002 (9) SC 425 where a 70 years old lady suffered 80 per cent burns, made a dying declaration after about 8-9 hours giving even the minutest particulars of the motive and manner in which she suffered injuries which itself was said to create a doubt as to the genuineness of the declaration.
14. Another aspect sought to be emphasized by learned counsel for the appellant is that it is a matter of common knowledge that such patients are given morphene or phenargan (tranquilizer) in order to reduce their suffering and these medicines affect the mental thought process and render the patient incapable of making a coherent statement. Such observations have been made by this Court in Ram Singh Vs. The State 1996 JCC 584. Thus, _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 9 of 14 absence of signatures of any doctor or nurse on the statement recorded by the IO was held to throw a doubt on the statement. The third dying declaration made before an Executive Magistrate in this case was also not relied upon since there was no endorsement from any doctor that the patient was fit to make a statement and no doctor had been examined by the prosecution in support of the fitness of the deceased to make the statement. In the present case under appeal also no doctor has been examined but only a Record Clerk appeared as prosecution witness.
15. Learned counsel for the appellant emphasized that a person could not be convicted merely because there were no sound reasons for his false implication by contending that such a plea had been negated in para 21 of the judgement in Ten Singh Vs. State (Delhi Admn.) 1996 (1) Crimes 192 (HC) by the Division Bench of this Court as to why the wife would seek to implicate the husband if the terms were hunky-dory. In Shankarlal Gyarasilal Dixit Vs. State of Maharashtra 1981 SCC (Cri) 315 the Apex Court observed as under:
"33. Our judgement will raise a legitimate query: if the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellant's house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 10 of 14 would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellant's name was not mentioned to the police until quite late. These are questions for the court to consider."
16. Learned counsel for the respondent, on the other hand, referred to the observations in P.V. Radhakrishnan Vs. State of Karnataka AIR 2003 SC 2859 to contend that the admission of a dying declaration is based on the principle in the legal maxim "nemo moriturus proesumitur mentiri", i.e. A man will not meet his maker with a lie in his mouth". Thus, even though the accused is deprived of an opportunity to cross-examine the deponent, a dying declaration can be the sole basis of a conviction though the court has to be on guard that the declaration was true and voluntary. The absence of a certification as to the state of mind of the declarant was held not to be vital when the police officials recorded the statement of a deceased in the presence of a doctor. Similarly the percentage of burns suffered by the deceased were not alone the determinative factor for the state of mind. Learned counsel referred to the judgment in State of Karnataka Vs. Shariff AIR 2003 SC 1074 to contend that the statement recorded by police personnel cannot be discarded on that ground alone and it was observed that there was no law that required that the dying declaration must necessarily be made to a Magistrate. Lastly, learned counsel referred to the judgement in N.V. Satyanandam Vs. Public Prosecutor, High _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 11 of 14 Court of A.P. AIR 2004 SC 1708 to contend that in case of multiple dying declarations each has to be considered independently on its own merits as per its own evidentiary value and one cannot be rejected on the contents of the other.
17. If the aforesaid principles are applied to the facts of the present case it would show that the stage when the MLC was recorded or the first dying declaration recorded thereafter by the SDM there was no whisper of the appellant being implicated. The deceased categorically stated that it was an accident. The parents of the deceased also initially did not implicate the appellant in the statement recorded under Section 161 Cr.P.C. It is only later on when the second dying declaration was recorded before the SDM that the appellant was sought to be implicated. The testimony of witnesses thus, show including of the parents of the deceased that they impressed upon the deceased to state what they claim had been told to them earlier. As to why they did not inform the IO about what they told to them earlier has not been explained. The second dying declaration recorded before the SDM is a detailed one running into four (4) hand written pages by the SDM and the post-mortem report shows that the appellant had suffered 80 per cent burns. In the interregnum period of the appellant leaving the hospital and the deceased being under the care of her parents, the possibility of pressure asserted by the parents cannot be _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 12 of 14 obviated. We are faced with a situation where there are multiple dying declarations completely inconsistent and contrary to each other. The accused has had no opportunity to cross-examine the deponent as in the case of every dying declaration. Thus, given the circumstances in which the second dying declaration was recorded by the SDM, something more was required to substantiate the same. If the IO had done his job and collected the relevant evidence, the contents of second dying declaration could easily have been verified.
18. It has already been observed by us before that the investigation has been shoddy, as the IO had failed to secure the site of occurrence. The most important clue could have come from the pump-type kerosene stove itself which was never taken possession of for the reasons best known to the IO. The other material evidence of the report of chemical examination of the scalp hair has also not been placed on record. The prosecution has, thus, failed to produce on record the best evidence. If the prosecution withholds the best evidence available, the benefit of doubt certainly goes to the accused.
19. The second dying declaration before the SDM is based on the allegation of there being some commercial transaction between the appellant and co-accused relating to the mortgage of property which has resulted in the appellant attempting to oblige the co-accused. The co-accused was never identified. It has been mentioned that the person _____________________________________________________________________________________________ CRL. A. No.156 of 1997 Page 13 of 14 who was locked in the room with the deceased was the husband of the niece of the accused and yet no endeavour was made by the IO to carry out any further investigations in this direction. Thus, the sub-stratum of the second dying declaration has not been established and this is coupled with the best evidence being withheld.
20. We, thus, find it difficult to sustain the impugned judgement convicting the appellant of an offence under Section 302 IPC as the benefit of doubt must go to the appellant.
21. The consequence is that the appeal is allowed, the impugned judgement is set aside and the appellant is acquitted giving him the benefit of doubt. The bail bond and surety consequently stand discharged.
SANJAY KISHAN KAUL, J.
AUGUST 13, 2009 AJIT BHARIHOKE, J. b'nesh
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