Delhi District Court
Statec vs Smt. Kamla on 30 September, 2009
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIIONAL SESSION JUDGE-01- SOUTH
NEW DELHI
SESSION CASE NO. 247/2009/2006
Statec Versus Smt. Kamla
W/o Late Sh. Ram Lal @ Ramu
R/o H. No. 919, Sector 7, R K Puram,
NewDelhi.
FIR NO. - 21/05
Police Station - R. K. Puram
Under Section - 302 IPC
Date of institution : 25.03.09
Date when the arguments
were heard : 03.06.09, 19.08.09, 02.09.09,
05.09.09, 09.09.09, 19.09.09 and
29.09.09
Date of judgment : 30/09/09
JUDGEMENT
The SHO of Police Station R K Puram has filed challan against the accused in the court of Metropolitan Magistrate, New Delhi for the trial of the accused persons for the offences under Sections 302IPC. After supplying the copies to the accused and compliance of 2 provisions of the section 207 Cr. P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused.
BRIEF FACTS OF THE CASE As per the complaint dated 19/8/2004, filed by the father of the deceased, the brief facts of the case are as under:
The deceased, Dinkar and Preeti, the daughter of the accused, married on 27/4/2003 and ever since then the wife of the deceased wanted to live separately with her husband away from her in-laws.
Once, even the accused took her daughter back with her as the deceased and her daughter were not living away from the parents of the deceased and only after some persuasion Preeti returned back to her matrimonial home. On 18/7/2004 Dinkar took pregnant Preeti to her mother's home as she wished to stay for some days at her mother's house. When they reached at Preeti's mother's residence, brother of Preeti assaulted Dinkar for not living separately, to which Dinkar did not retaliate and quietly returned back to his home after dropping Preeti. On 25/7/2004 at about 9:00pm Dinkar went to 3 the accused's house to bring back Preeti. After about 40-45 minutes 2-3 boys from the neighborhood informed the complainant and his family members that Dinkar was burning near the house of the accused and crying for help.
Complainant, his wife and his younger son rushed to the place and they saw Dinkar lying on ground in a burnt condition and was crying for help. They rushed him to the Safdurjung Hospital, where the concerned doctor in the presence of younger son of the complainant, as witness recorded his statement, wherein Dinkar told that his mother-in-law, accused herein, forcibly burnt him. Doctor called the Police from R. K. Puram Police Station but no statement was recorded by the Police on that day. Finally, on 5/8/2004, Dinkar succumbed to his injuries. On the said date Police officer recorded the statement of the complainant that he did not wish to lodge an FIR or make a complaint against the accused but later on, on 19/8/2004, father of the deceased filed a complaint at P.S. R.K. Puram and even 4 after that when the State machinery came into action, the complainant reached Hon'ble High Court and FIR No. 21/2005 was registered at P.S. R.K. Puram on 10/1/2005. The Investigating Officer recorded statement of witnesses, collected medical report/postmortem report of the victim and on completion of investigation challaned the accused, as referred before.
CHARGE AND PLEA OF ACCUSED Chargesheet was filed on 5/12/2005 before Metropolitan Magistrate and the case was received in Sessions Court on 9/1/2006.
Prima facie case for the offence under S. 302 IPC was found made out against the accused and the charge under S. 302 IPC was framed accordingly, by the court on 23/5/2006, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
Prosecution examined 15 witnesses whose statements in nutshell are given below:
PW1, Constable Manju: She identified the handwriting of ASI Ratan Lal who made the DD entry no. 28A, Ex. PW1/A on 26/7/2004.5
PW2, Constable Anita: She arrested the accused and signed the arrest memo, Ex. PW2/A and personal search memo, Ex. PW2/B. PW3, SI Madan Pal: He inspected the site of incident and prepared the rough site plan and thereafter, a scaled site plan, Ex. PW3/A. PW4, HC Ramesh Chander: He on 10/1/2005, upon handing over of rukka by SI Surender Chahal, recorded FIR, Ex. PW4/A. PW5, Constable Ashok Kumar: He recorded DD no. 26 B, Ex. PW5/A, regarding death of Dinkar in Safdurjung Hospital.
PW6, Anjana: She is sister of the deceased. She deposed in the court that the deceased's thumb impression was taken after the doctor took his statement of cause of his burn injuries. She also deposed that the brother of the deceased, Dinesh, was also present when the doctor recorded statement of the deceased and she reached hospital just when the doctor was talking to the deceased. She also stated that the deceased stated in her presence that the accused as well as wife of the deceased, Preeti, poured petrol on the deceased and set him afire. She also deposed that when the family of the deceased received the information about the deceased been burning and asking 6 for help at the house of Preeti, she along with her mother, father and younger brother rushed to the spot.
PW 7, Ramchander: He is the complainant/father of the deceased. He deposed in the court that when the family of the deceased received the information about the deceased was burning outside the house of Kamla and asking for help, he alongwith his wife and son Dinesh rushed to the spot and saw the deceased in a naked condition and was covered with the towel. He stated that he called up his daughter and informed her while his wife and Dinesh rushed the deceased to the Safdurjung Hospital. He deposed that his son Dinesh told him that deceased told doctor that Kamla poured petrol on him and lit fire.
PW 8, ASI Ratan Lal: He on receipt of DD No. 38A, Ex. PW8/A, regarding burning of deceased Dinkar, reached the spot with Constable Manoj Kumar & SI Raj Kumar, where he came to know that Dinkar was rushed to Safdurjung Hospital. Vide Ex. PW8/B he asked doctor permission for taking statement of Dinkar, but doctor declared him unfit for giving statement. He recorded statements of Vishal, Preeti & Kamla in the hospital. He also recorded statement of Sachin.7
PW9, SI Surender Chahal: He was appointed inquiry officer as earlier appointed inquiry officer, PW8, ASI Ratan Lal was under suspension.
He prepared various documents, Ex. PW9/A, request for conducting post-mortem; Ex. PW9/B, brief facts; Ex. PW9/C Form No. 2535; Ex.
PW9/D, identification statement of Nandkishore and Ram Chander etc. PW 10, Dinesh: He is the brother of the deceased. He stated in court that when the family of the deceased received the information about the deceased been burning outside the house of Kamla and asking for help, he alongwith his mother and father rushed to the spot and saw the deceased lying at the spot in burnt condition and he along with his mother rushed the deceased to the hospital. He deposed that the deceased stated in his presence to the doctor that Kamla poured petrol on him and lit fire. In his cross-examination he stated that he was alone with the deceased when the deceased gave statement to the doctor and also stated that his signatures were obtained by the doctor but statements of the deceased whether were taken or not, he was unable to recollect.8
PW11, Dr. Komal Singh: She was the CMO of the Safdurjung Hospital at the relevant time. She conducted post-mortem on the body of the deceased. She proved her post-mortem report, Ex. PW11/A. PW12, Nandkishore: He is the brother-in-law of Dinkar (sister's husband). He identified dead body of Dinkar vide Ex. PW9/D. PW13, Dr. L. K. Mishra: He prepared the MLC, Ex. PW13/A, of the deceased. Deceased made alleged dying declaration to him.
PW 14, Omwati: She is mother of the deceased. She stated in court that when the family of the deceased received the information about the deceased had been burnt at the house of Preeti, she alongwith her husband and son Dinesh rushed to the spot and saw the deceased in a naked condition. She also stated that the deceased on the next day told her that his mother-in-law, Kamla, burnt him.
PW15, Inspector Omparkash: He is the Investigating Officer of the case.
PLEA AND DEFENCE OF THE ACCUSED In the statement under Section 313 CrPC, the accused has admitted that her daughter Preeti was married with the victim Dinkar 9 on 27.04.03. She also admitted that the deceased left his pregnant wife in the house of the accused on 18/07/04. She also admitted that Ramchander and Dinesh took the injured to Safdarjung hospital and she has also admitted that ASI Ratan Lal recorded her statement Ex.PW8/D, statement of her son Vishal Ex.PW8/C and statement of her daughter Preeti Ex.PW8/E and statement of one Sachin Ex.PW8/DA. She denied other incriminating material emerging from prosecution case put to her. She stated that it appears that the victim Dinkar did not make any statement to doctor. Doctor recorded his statement whatever was told by Omwati and Ramchander to the doctor. As for the question regarding cause of death of victim being cepticemia subsequent to homicidal 33 % burns, she stated it was matter of record and she stated that Ramchander made a false statement against her and she has been falsely implicated in this case. She also stated that PW6 Anjana, PW7 Ramchander , PW10 Dinesh and PW 14 Omwati used to treat Preeti with cruelty and were inimical towards her. Hence, they have testified falsely. She has stated that she was innocent and was falsely implicated in this case 10 and further stated that prosecution has not examined Sachin who was the only independent eye witness to the incident and she wanted to examine him as defence witness apart from the other witnesses, but in the defence she examined ony her daughter Preeti who is widow of victim Dinkar as DW1.
DW1 Preeti widow of the deceased and daughter of the accused has deposed in the court that the deceased Dinkar set himself afire, in a drunken state, and when he had put himself on fire, the door of the house of accused Kamla was closed and the accused, her son, Vishal and daughter Preeti were about to go into bed for sleep after having dinner.
ARGUMENTS AND FINDINGS I have heard Ld. Counsel for the accused, learned Additional Public Prosecutor for State and have perused the record of the case and carefully gone through the judgments relied upon by the counsel for the accused.
(a)LEGAL POSITION AS TO CASES BASED ON CIRCUMSTANTIAL EVIDENCE 11 The present case is a case of circumstantial evidence. As regards circumstantial evidence the law is well settled that if the prosecution is able to prove against the accused the chain of events, without there being any break in the chain, then the accused is liable to be convicted, otherwise not.
In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v.
State of Hyderabad (AIR 1956 SC 316);
Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was 12 laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 13 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
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12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of 15 guilt is to be drawn should be fully established.
The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
The contentions raised by the parties are dealt with under the following heads for the sake of convenience and clarity:
(b) UNEXPLAINED DELAY IN FILING FIR 16 The contention of counsel for the accused is that the incident took place on 25/7/2004, whereas the FIR was registered on 10/1/2005. The counsel urged that such a prolonged unexplained delay in filing FIR is fatal to the prosecution case. Refuting the same Ld. APP for the State urged that merely on the ground that there was unexplained delay in filing FIR cannot throw the prosecution case to the winds.
The law as regards delay in filing FIR has been extensively explained by the Hon'ble Apex Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170:
"24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of 17 evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of 18 appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad1.) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact."
In the instant case, the incident took place on 25/7/2004, DD entry was made bearing No. 38A on 25/7/2004. Even statements of Kamla Ex.PW8/D, her son, Vishal Ex.PW8/C, her daughter, Preeti Ex.PW8/E and an independent witness, Sachin Ex.PW8/DA were recorded by PW8, ASI Ratan Lal on 26/7/2004 but FIR was registered on 10/1/2005. From the aforesaid, it is manifest that unexplained delay in filing FIR is a strong circumstance against the prosecution case, though the real effect of the same is to be considered in conjunction with the other evidence adduced by the parties on record. 19
(c) STATEMENTS EX. PW8/D, EX.PW8/C, EX.PW8/E AND EX.PW8/DA RECORDED BY PW8, ASI RATAN LAL-EFFECT The counsel for the accused urged that the statements recorded by PW 8 are not hit by S. 162 CrPC as the said statements were recorded at pre-FIR stage or prior to the commencement of investigation. The contention of learned Additional Public Prosecutor for the State is that the said statements are not a substantive piece of evidence so have no evidential value.
The law as regards statement recorded by police at pre- investigation stage and its effect, has been explained in Punya Prasad Sankota v. Balvadra Dahal , 1985 Cri.L.J. 159 (Sikkim)(DB), as under:
"4. But what the learned Judicial Magistrate failed to notice was that if Section 162 did not apply to these statements recorded by the police for their not having been recorded in the course of any investigation under Chap.XIV, then the prohibition against the use of any such statement as enacted in Section 162 (1) also would not apply and, therefore, such statements would be available for any purpose for which they are allowed to be used under the law. The learned Judicial Magistrate ought to have noted that when the maker of previous statement is examined as a witness, such 20 previous statement can be used under the provisions of the Evidence Act to contradict him under Section 145, to impeach his credit under Section 155(3), to corroborate his testimony under Section 157 and to refresh his memory under Section 159 of that Act. Once the learned Judicial Magistrate found Section 162 to be out of the way and did not find any other provision of law to stand in the way, he ought to have realised that the previous statements of the witnesses were available for the purpose of cross-examination, contradiction, corroboration and refreshing of memory of the witnesses under the provisions of law noted above. It is not, as the learned Judicial Magistrate thought, that a previous statement recorded by a police in order to be available to contradict the evidence of the maker, must be recorded in the course of an investigation under Chap.XIV and that only when so recorded they can be used for the purpose of contradicting a witness under the proviso to Section 162(1). On the other hand, when such statement is not so recorded in the course of any investigation under Chap.XIV, and, therefore, such statement does not attract Section 162, the right to use such previous statement becomes much wider, because while a previous statement covered by Section 162(1) can be used only to contradict the maker under the proviso thereto, a previous statement not covered by Section 162 can be used for cross-examination, contradiction, corroboration and also refreshing the memory of the maker of the statement when deposing as a witness."21
Also, it is well settled that statements recorded prior to commencement of investigation are not hit by bar under S. 162 CrPC, the following observation of the Hon'ble Gauhati High Court in Keshab Choudhary vs. State of Assam - 1987 CriLJ 1742 (Gau) (DB) highlights this view:
" The ban under S. 162 does not apply to any statement to the police before starting investigation. All information received after the commencement of investigation is covered by S.
162. Statements prior to commencement of investigation will not be hit. Reliability of the later statement, of course, is a different matter. As there is no evidence of any investigation having started on the basis of the G.D. entry or the F.I.R. lodged by Dhaneswar, it cannot be said that Ext. 4 was hit by S. 162, Cr.P.C. The submission is, therefore, not tenable. "
Similar view is expressed in Abdul Wahid vs. State of Rajasthan - 1998 Cri LJ 3423 (Raj) (DB), Division Bench of the Rajasthan High Court.
Also, the decisions in Keshab Chaudhury vs. State of Assam
- 1987 CriLJ 1742 (Gau) (DB) and 1998 CriLJ 3423 (Raj) (DB). cited by Ld. Counsel for the accused also highlight the fact that only statements recorded during investigation are hit by the bar laid down 22 under S. 162 CrPC. The statements recorded prior to lodging of FIR donot attract bar of S. 162 CrPC.
The counsel for the accused also relied on decisions in Rajinder Singh Katoch vs. Chandigarh Admn. & Ors. - (2007) 10 SCC 69 and Sanjeev Kumar vs. Commissioner of Police & Ors. - 2002 CriLJ 2178 (Del) (DB), as regards the submission that in a case when the complaint filed before the Police Officer is vague and indefinite or when or even otherwise, where the complaint is made regarding a cognizable offence, the Police Officer has a right to make a preliminary enquiry and in the instant case as well, while conducting a preliminary enquiry, PW8 recorded statements Ex. PW8/C, D, DA & E, which statements are important piece of evidence.
The relevant portion of decision in Rajinder Singh Katoch's case (supra), are as under:
"8. Although the officer in charge of a police station is legally bound to register a first information report in terms of Section 154 of the Code of Criminal Procedure, if the allegations made by them gives rise to an offence which can be investigated without obtaining any permission from the Magistrate concerned; the same by itself, however, does not take away the right of the competent 23 officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged had any substance or not. In this case, the authorities had made investigations into the matter. In fact, the Superintendent of Police himself has, pursuant to the directions issued by the High Court, investigated into the matter and visited the spot in order to find out the truth in the complaint of the petitioner from the neighbours. It was found that the complaint made by the appellant was false and the same had been filed with an ulterior motive to take illegal possession of the first floor of the house.
Ms. Madan contended that the right of the appellant to live in the joint family cannot be taken away. Right of a co-sharer to enjoy the joint family property is a civil right. Such a right, if denied by the other co-sharers for one reason or the other, must be enforced by taking recourse to the remedies available under the civil laws.
Criminal proceedings, in our opinion, cannot be taken recourse to for enforcing such a civil right. In any event, in a case of this nature where the authorities bound by law have already investigated into the matter and found that the allegations made by the appellant against respondent No. 4 were not correct, it would not be proper for us to issue any direction to the respondent Nos. 1 to 3 to lodge a first information report."
We are not oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) & Ors., 2006(2) RCR(Criminal) 197 24 : 2006(1) Apex Criminal 541 : [(2006)2 SCC 677] wherein such a statutory duty has been found in the Police Officer. But, as indicated hereinbefore, in an appropriate case, the Police Officers also have a duty to make a preliminary enquiry so as to find out as to whether allegations made had any substance or not.
In Shashikant v. Central Bureau of Investigation & Ors., 2006(4) RCR(Criminal) 961 : 2006(3) Apex Criminal 683 :
[2006(11) SCALE 272], this Court stated :
"Only an anonymous complaint was made in June 2004. Evidently it was within the province of the first respondent to commence a preliminary inquiry. The procedure laid down in the CBI Manual and in particular when it was required to inquire into the allegation of the corruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair. It did not find any reason to convert the preliminary inquiry into a regular case. Pursuant to or in furtherance of the recommendations made by the first respondent, which had received the imprimatur by the Central Vigilance Commission, departmental proceedings were initiated. The Central vigilance Commission advised the Railway Board to initiate minor penalty proceedings against the delinquent officers by a letter dated 04.08.2005."
The relevant para of Sanjeev Kumar's case (supra) is as 25 under:
19. Our attention in this regard in that event was drawn towards the Division Bench decision of this Court in the case of Satish Kumar Goel v. State (2000) 2 Ad (Delhi) 841 : (2000 Cri LJ 2176). A Division Bench of this Court was concerned with the similar vexed question and held that when there were allegations of extortion or illegal gratification and the complaint disclosed commission of cognizable offence the First Information Report should be recorded. But herein too the Division Bench had drawn clear distinction in cases where the information laid before the officer incharge is vague, indefinite or is doubtful. The findings to that effect reads :
"Thus the legal position appears to be that where allegations made in the complaint lodged before the police clearly and specifically disclose commission of a cognizable offence, the officer incharge of the concerned police station is duty bound to register an FIR. However, where the information recorded in the complaint is uncertain, indistinct and not clearly expressed which creates a doubt as to whether the information laid before the incharge of the police station discloses commission of a cognizable offence therefrom, some enquiry should proceed before the registration of an FIR."
In the instant case, the statements of Kamla, Vishal, Preeti and Sachin were recorded on 26/7/2004 and the FIR was registered on 26 10/1/2005. The said statements were made during preliminary enquiry conducted by the Police officer, which is a right of the Police Officer and is not barred under the Code, as discussed above. Clearly, these statements were recorded before the investigation started under Chapter 14 of CrPC. The said statements are not hit by Section 162 CrPC. In the said statements, all these persons have disclosed the same thing that the deceased Dinkar set himself afire, in a drunken state and when he had put himself on fire, the door of the house of accused Kamla was closed and the accused, her son, Vishal and daughter Preeti were about to go into bed for sleep after having dinner. From the above discussion, it is manifest that the said statements have been relied upon by the prosecution and the same are part of prosecution evidence and thus, they are in the nature of admission and the same are not in consonance with and is fatal to the prosecution case. The decisions in Biswanath Prasad & Ors. Vs. Dwarka Prasad & Ors. - AIR 1974 SC 117 and Bharat Singh and ors. Vs. Mst. Bhagirathi - AIR 1966 SC 405 cited by the counsel for the accused confirms this view point. The relevant portion of the 27 decision in Bharat Singh's case (supra) is as under:
"19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Ss. 17 and 21 of the Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."
(d) IMPROVEMENT IN STATEMENT OF RAMCHANDER /COMPLAINANT/FATHER OF THE DECEASED The counsel for the accused pointed out that Ramchander/complainant in his statement dated 6/8/2004 denied that he had suspicion on anyone for killing his son and he also stated that he did not wish to file a case against anyone in this regard. But later in 28 his statement dated 29/1/2005 as well as in his complaint dated 19/8/2004 he stated that the accused had set the deceased Dinkar on fire. The counsel submitted that said improvement in the statement that too after a long gap raises doubt on the prosecution story. On the contrary Ld. APP contended that the father of the deceased was not in a fit mental state to file a case or commence a proceeding on 6/8/2004 as he was engulfed in grief due to sudden demise in an unnatural manner of his young son so his subsequent statement/complaint is worth reliance.
I find great merit in the contention of counsel for the accused, in this regard. The law in this great regard is well settled that any improvement or delayed examination of a witness during investigation by recording his supplementary statement or otherwise over the earlier statement is looked upon with suspicion by higher courts. Following judgments are worth noting in this regard:
In Kehar Singh and ors. v. The State (Delhi Admn.) AIR 1988 SC 1883, the Apex Court has observed as follows:
"70. It could not be doubted that the two versions given out by this witness are not such which could 29 easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In this second statement he has tried to introduce things against him. This apparently is a clear improvement. It is wellsettled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone."
In Babu Singh & Ors. v. State of MP III (1997) CCR 182 (MP), the Madhya Pradesh High Court observed as follows:
"14. ...............All this indicates that the story about the demand of dowry and harassment as also the incident of beating has been subse- quently introduced as an after-thought, otherwise there was no reason why the parents of the deceased would not unfold the same at the very first opportunity, especially when v.C. Verma, S.D.O. (Police) (PW 7), who conducted investi- gation, has admitted that both were present. It is, therefore, difficult to hold on the basis of such shaky evidence that any of the appellants had abetted the commission of suicide by the de-30
ceased."
In Ramesh Bhandari v. Charan Dass Puri and others 50 (1993) DLT 81, it was observed by the Delhi High Court:
"3. ...............It is a case in which apparently earlier statements, although not strictly under Section 161 of the Code do not inculpate the respondent whereas the later statements made after 6-7 days to inculpate them. Even if the statements made at the time of inquest are strictly not in investigation, it is not possible also to ignore them since they are quite detailed and in any case admittedly are in the nature of previous statements of the closest relations of the deceased."
In Onkar Nath Mishra v. State (NCT of Delhi) 2008 [1] JCC 65 (SC), the Hon'ble Supreme Court held as follows:
"19. As regards the applicability of Section 498A IPC, in the complaint dated 8.11.1994 there is not even a whisper of a wilful conduct of appellants No. l and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498A read with Explanation thereto. The complaint refers to the talk the complainant purports to have had with her husband, appellant No. 3, who is alleged to have told her to come to Bijnore if she apologizes to his 31 father; keeps him happy; obeys his sister and talks to her father (complainant's) to give her Rs. 50,000/- and VCR and brings these articles to Bijnore. We are convinced that the allegation of misbeheviour on the part of appellant Nos. 1 and 2 and the demand of Rs. 50,000/- and VCR by them made by the complainant in her subsequent statement, dated 4.4.1995, was an after thought and not bona fide. Section 498A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the FIR and the charge-sheet, we find that charge under Section 498A IPC is not brought home insofar as appellant Nos.1 and 2 are concerned."
In Budhan Singh & Ors v. State (Through N.C.T. of Delhi) 2008 [2] JCC 1017 (Del), it was observed as follows:
"5. It is further urged by learned counsel for the petitioners that initially investigation carried out by the investigators indicated that Tikam Singh died due to heart attack and in this regard he has drawn my attention to the statement of Gyan Singh, Ramesh and Daya Chand which was recorded by the investigators initially. In support of such contention learned counsel for the petitioners has placed on reliance a judgment reported in 2004(3) JCC 1754 where this court observed that a 32 complaint, on the basis of which the complainant seeks registration of an FIR, must disclose essential ingredients of offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint or supplementary statement and thereafter proceed to register the FIR. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offense complained of.
6. In the case in hand also investigation carried out by the investigators completely exonerated the petitioners but belated FIR lodged at the instance of the wife should not be taken into consideration as it seems to have been made with a view to fill up the lacuna in the investigation made earlier."
In Rajender Singh Sachdeva v. State (NCT of Delhi) 2008 [2] JCC 979 (Del), it was observed as follows:
"13. If these and the other surrounding circumstances are taken into consideration the complaint of the petitioner appears to be well founded. According to the complaint, the incident in which the petitioner was involved occurred some time in April-May 1988 i.e, 16 years before the complaint. He was not named in the FIR. That incident is also absent in the first report 33 documented during the investigation i.e, a complaint to the Assistant Labour Commissioner. The allegations against the petitioner surfaced only during the statement under Section 161. Interestingly he was named in that. The third statement was recorded on 21.05.2004. In the meanwhile, the petitioner was arrested on 18.05.2004. One does not find any logic as to the recording of the second statement under Section 161 except as a explanation by the complainant regarding identity and knowledge of the petitioner's name. If this is seen in the background of absence of any mention of the petitioner in the FIR, the tenuousness of the link with allegations against him become apparent."
In Smt. Deepa Bajwa v. State & ors 2004 [3] JCC 1754 (Del), it was observed as follows:
"6. After considering the submissions made by learned counsel for the parties, the Court is of the considered view that a complaint, on the basis of which the complainant seeks registration of an F.I.R., must disclose essential ingredients of the offence and in case a complaint lacks or is wanting in any of the essential ingredients, the lacuna or deficiency cannot be filled up by obtaining additional complaint of supplementary statement and thereafter proceed to register the F.I.R. If such a course is permitted, it would give undue latitude as well as opportunity to unscrupulous 34 complainants to nail others by hook or by crook in spite of the fact that their initial complaint does not make out the offence complained of. Such a course would be utter abuse of the process of law. First version as disclosed in a complaint is always important for adjudicating as to whether an accused has committed or not an offence. In the complaint dated 19th April, 2001, the Complainant himself alleged that the Councillor Chhannu Mal was introducing him to the petitioner. If that was the case, how could he say later that on that day the petitioner knew that he was a Scheduled Caste. This statement, therefore, was a crude falsity introduced at the behest of the police to implicate the petitioner under Section 3 of the Act. This effort on the part of the police to supply the deficiency and cover up a lacuna in the complaint in view of legal opinion was totally unwarranted and an abuse of the process of law."
In Bhagwanti v. State 2001(3) C.C. Cases (HC) 139 (Del), it was observed as follows:
"5. Now, applying the above principles, in this case, deceased (Rajni), was married to Dharampal on 27.09.1984; she committed suicide on 18.04.1990, after six years of her marriage. The statements of the parents and brother of deceased were recorded before SDM on 18.04.1990 and 19.04.1990 respectively. In their statements, they did not make any allegations against the petitioner.35
Their case was that the deceased being harassed by her husband as he was having illicit relations with his cousin Sunita Gandhi. In the backdrop probabilities and nature of the case, subsequent statements of the parents of the deceased under Section 161 Cr. PC recorded by the police during investigation containing vague allegations to the effect that petitioner used to taunt the deceased for inadequate dowry are liable to be rejected. These statements may give rise to some suspicion but not grave suspicion. I would hasten to add that the situation may have been different if the statements of the parents and brother of the deceased before the SDM were not in detail or if in the subsequent statements under section 161 Cr. PC there were some specific instances. The focus of the allegations appear to be against the husband and not again the petitioner. In view of the above no case for framing of charge against the petitioner is made out."
In Balakrushna Swain Vs. The State of Orissa 1971 CRI LJ 670 S. C., the following observations were made by Hon'ble Supreme Court:
"6. In view of all these incongruities we think there is justification in the comment of learned Advocate for the accused that the delayed examination of P.W.5 by P.W.19 would give an opportunity to 36 P.W.5 to concoct a different version that what actually took place.
8. These contradictions ordinarily would by themselves not have much signifance but where as in this case the witness for no justifiable reasons was not examined for nearly 10 days and he is found to he telling falsehoods on material aspects of the case it becomes difficult to place any reliance on such testimony particulary when he tried to conform to the evidence of P.W.1 in the Sessions Court that the first blow was given by a lathi on the waist and the second by a Katuri on the head."
In Husna and others Vs. State of Punjab 1996 SCC (Cri) 421, the following observations were made:
"6. As already noticed, the FIR the names of both the appellants were found missing. They were only named in the supplementary statements of PW1 recorded during the investigation and in our opinion that statement which was recorded during the investigation was hit by Section 162 Cr. P.C and the trial court could not have relied upon the same as a part of the FIR."
In Maruti Rama Naik Vs. State of Maharashtra 2003 CRI LJ 4326 S. C., the following observations were made:
"6. ......PW3 is an injured witness, we find it difficult to place reliance on his evidence not only because 37 of the omissions mentioned hereinabove but also because of the fact that his statement was recorded a day later when the investigating officer had ample opportunity to record the said statement on the day of the incident itself. The explanation given in regard to this unwarranted delay is that this witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Taking into account the nature of injuries suffered by this witness and the opportunity investigating officer had to record his statement, we think this explanation given by the prosecution is not convincing. Bearing in mind the fact that even according to this witness. Large number of people attacked the deceased and his omission to state the names of thse appellants as the assailants in his previous statement, we think it not safe to place reliance on the evidence of PW3 to find the appellants guilty of the offences charged without there being any material corroboration from other independent acceptable source. That is even applying the test laid down by this Court in the case of Masalti Etc. V. State of UP (AIR 1965 SC 202) which was followed by the High Court in its judgment."
In Viswanath and another Vs. State of Madhya Pradesh 2005 CRI LJ 1913 MP it was observed as follows:
"Investigation officer must recod the statement promptly in order to inspire confidence in such statements. As unexplained delay in examining a crucial witness would render the witnesses unreliable. Where the staements of relatives were 38 recorded after long delay and no explanation of delay were offered, the evidence of witnesses cannot be relied upon where only general allegations of demand for dowry were made against the husband and other family members and there was no clear and cogent evidence involving them in demand for dowry."
In Ganesh Bhavan Patel and another Vs. State of Maharashtra AIR 1979 SC 135 the Hon'ble Supreme Court observed as follows:
"15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P. Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eye-witnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under S. 161 Cr. P.C were recorded on the following day. Welji (P.W.3) was examined at 8 a.m, Pramila at 9.15 or 9.30 a.m and Kuvarbai at 1 p.m. Delay of a few hours, simplicites, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of 39 circumstances which lend such significane to this delay, exists in the instant case".
It was further observed as follows:
"18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed."
It was further observed as follows:
"29. Thus considered in the light of the surrounding circumstances, this inordinate delay in registration of the 'F.I.R' and further delay in recording the statements of the material witnesses casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story."' In the light of above case law in the face of initial statement of father of deceased/complainant referred before the subsequent complaint/FIR got lodged by him shall be treated with doubt and suspicion.40
(d) DYING DECLARATION The concept of dying declaration has been beautifully explained by the Hon'ble Apex Court in Satish Ambanna Bansode Vs. State of Maharashtra - A.I.R. 2009 SC 1626, in following terms:
12. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat, 1992(3) RCR(Criminal) 552 :
(1992(2) SCC 474) (SCC pp. 480- 81, paras 18-
19) 41
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See : Munnu Raja v. State of M.P., (1976(3) SCC 104)]
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See : State of U.P. v. Ram Sagar Yadav, 1985(1) RCR(Criminal) 600 :
(1985(1) SCC 552) and Ramawati Devi v. State of Bihar 1983(1) SCC 211))
(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See : K. Ramachandra Reddy v. Public Prosecutor, (1976(3) SCC 618)])
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See : Rasheed Beg v. State of M.P., (1974(4) SCC 264)]
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See : Kake Singh v. State of M.P., (1981 Supp. SCC
25)]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See : Ram Manorath v. State of U.P., (1981(2) SCC 654]
vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See : State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp. SCC
455)] 42
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See : Surajdeo Ojha v. State of Bihar, (1980 Supp. SCC 769)]
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See : Nanhau Ram v. State of M.P., (1988 Supp. SCC 152)]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See : State of U.P. v. Madan Mohan, (1989(3) SCC 390)]
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted.
[See : Mohanlal Gangaram Gehani v. State of Maharashtra, (1982(1) SCC 700).]
13. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to 43 make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P., 1992(3) RCR(Criminal) 116 : (1993 Supp(1)SCC 327).
The counsel for the accused also relied on decision in Dandu Lakshmi Reddy vs. State of A.P. - AIR 1999 SC 3255; R.H. Krishti & Anr. Vs. State of Gujarat - (2002) 7 SCC 56; Darshana Devi vs. State of Punjab - 1995 Supp. (4) SCC 126; Smt. Laxmi vs. Om Prakash & Ors. - 2001 (2) JCC (SC) 71; Mohan Lal & Ors. Vs. State of Haryana - (2007) 9 SCC 151 and Paramjit Singh & Ors. Vs. State of Punjab & Ors. - 1997 JCC 119 (SC), as regards principles applicable while the court appreciates dying declaration.
In the instant case, the deceased was hospitalised on 25/7/2004. The deceased on the same day allegedly made dying declaration before PW 13, Dr. L.K. Mishra, who noted in the MLC as under:
"Alleged H/o homicidal burn injury by his mother-in- law when he went to take his wife from his in-laws house. There his mother-in-law poured petrol and set fire."
Now, the case of the prosecution is that this dying declaration is 44 sufficient in itself to convict the accused Kamla. Whereas, the counsel for the accused raises serious objections to the said dying declaration on following grounds analysed below:
a) INTOXICATION The counsel for the accused urged that in the MLC, Ex.PW13/A, itself just below the alleged dying declaration the doctor has noted that there was smell of alcohol from the nasal cavity of the deceased at the time when he made his alleged dying declaration, thus clearly, the deceased was not in a fit state of mind to make his dying declaration.
The counsel raised a two pronged argument that (a) alcohol causes dehydration in the body as when a person takes alcohol, the body flushes out water from the body, which is a state of hameoconcentration, and (b) burning also evaporates water so alcohol becomes concentrated and this concentrated alcohol when went into the brain by blood circulation, victim was intoxicated and reached a state of narcosis, thus, he was not in a fit state to make dying declaration. The counsel also relied on various medical textbooks and dictionaries, viz. Concise colour Medical Dictionary, 45 second edition, published by Oxford university press; Butterworth's medical dictionary, second edition, published by English language book society/butterworths; Parikh's textbook of medical jurisprudence and toxicology published by medical publications; Modi's medical jurisprudence & toxicology, twenty-first edition, published by N.M. Tripathi Pvt. Ltd.; Article on 'Alcohol ingestion before burn injury decreases splanchnic blood flow and oxygen delivery' by MA choudhry, ZF Ba & SN Rana, published in American Journal of physiology, heart & circulatory physiology, 2005; Article on 'effects of alcohol & oxidative stress on burn injury' by Yangxin Li, published on july 16, 2002, http://www.journalofburns.com; article from http://www.pritzkerlaw.com/burn-attorney/burn-brain-damage- lawyer.html; article on alcohol's damaging effects on the brain from http://pubs.niaaa.nih.gov/publications/aa63/aa63.html and Anatomy & Physiology (vol. I) by Evelyn Pearce. Refuting the same, Ld. APP submitted that the deceased might have had alcohol but that in itself would not lead to the conclusion that the deceased was not in a fit state of mind to make his dying declaration. 46
On perusal of the MLC, it is clear that the deceased was intoxicated. The depositions of DW1, Preeti, widow of the deceased deposed before court; Sachin, vishal, kamla and preeti Ex.PW8/C, D and E and Ex.PW8/DA stated before police on 26/7/2004 that deceased was in a drunk condition when he burnt himself on 25/7/2004. Further in Ex. PW9/B, DD No. 28A, dated 6/8/2004 it is mentioned that upon enquiry, the police gained knowledge that the deceased in a drunk condition set himself on fire. Also, the doctor, PW 13, Dr. L.K. Mishra deposed before the court that it was correct that the deceased was in a drunk condition and under the influence of liquor.
It is well settled that the testimonies of the defence witness should be given the same weightage as given to the statements of the prosecution witnesses. In this regard the decisions in Dudh Nath Pandey vs. State of U.P. - (1981) 2 SCC 166 and State of U.P. vs. Babu Ram - (2000) 4 SCC 515, cited by Ld. Counsel for the accused is worth noting. Thus, the testimony of DW1, Preeti as discussed above cannot be discarded merely because she is a defence witness. 47
From the aforesaid, it is manifest that in the instant case also, the doctor, PW 13 did not certify that the deceased was in a fit mental state to make a dying declaration as is also clear from his testimony that the deceased was under the influence of alcohol when the deceased made dying declaration before him. Therefore, this circumstance also weakens prosecution case and alleged dying declaration, more so, when subsequently on the same night at 2.20 AM the deceased on the application of ASI Ratan Lal, the doctor declared the victim not fit for making statement.
In Rabindra Kumar Dey v. State of orissa, -(1976) 4 SCC 233, as cited by the counsel for the accused, the Hon'ble Apex Court reiterated the cardinal principles of criminal jurisprudence, which are as under:
In our opinion three cardinal principles of criminal jurisprudence are well-settled, namely :
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and 48 (3) that the onus of the prosecution never shifts.
It is also well settled that the burden on prosecution is heavier as compared to the burden on the accused to prove their respective cases. The prosecution has to prove its case beyond reasonable doubt to prove its case, whereas the accused only has to discharge the burden on the basis of preponderance of probabilities. This view is amplified from the decision of the Hon'ble Supreme Court in Ouseph alias Thankachan v. State of Kerala- (2004) 4 SCC 446, cited by counsel for the accused, the relevant para is referred as under:
"10. In the aforesaid context we notice a significant factual aspect that along with the small quantity of psychotropic substance recovered, two syringes were also recovered from him by the police. That aspect reflects that he only wanted to use buprenorphine (Tidigesic) for his personal consumption and not for trading purposes. The burden on the accused in this respect need not be discharged in the manner and the prosecution is to prove the case beyond a reasonable doubt. It is enough that he satisfies the judicial mind by a preponderance of probability."
When the accused raised an issue that the deceased was drunk 49 to the extent that he was not in a fit state of mind to make declaration, it was the duty of the prosecution to show that same was not the case. Upon failure of prosecution to explain/prove the same, two inference arise (a) the version of prosecution witness is untrue and (b) the story of the accused is true.
In the instant case, the prosecution story is that the dying declaration is sufficient in itself to prove the prosecution case and convict the accused. But the same is not proved beyond doubt and has also been rebutted by the accused as discussed above.
b) DIFFERENCE IN STATEMENTS OF FAMILY MEMBERS OF THE DECEASED BEFORE COURT The counsel for the accused also urged that there are marked contradictions in the testimonies of the PW6, PW7, PW10 and PW 14 which discredit dying declaration. Refuting the same, the learned Additional Public Prosecutor submitted that minor contradictions are bound to occur in the testimonies of the witnesses due to lapse of time and thus, the same is no ground to look at the prosecution case with suspicion.
50
As per the sister of the deceased, Anjana, PW6, the deceased's thumb impression was taken after the doctor took his statement of cause of his burn injuries. She also deposed that the brother of the deceased, Dinesh, was also present when the doctor recorded statement of the deceased and she reached hospital just when the doctor was talking to the deceased. She also stated that the deceased stated in her presence that the accused as well as wife of the deceased, Preeti, poured petrol on the deceased and set him on afire. She also deposed that when the family of the deceased received the information about the deceased been burning and asking for help at the house of Preeti, she along with her mother, father and younger brother rushed to the spot.
As per PW 7, Ramchander, father of the deceased/complainant, when the family of the deceased received the information about the deceased was burning outside the house of Kamla and asking for help, he alongwith his wife and son Dinesh rushed to the spot and saw the deceased in a naked condition and was covered with the towel. He stated that he called up his daughter and informed her while 51 his wife and Dinesh rushed the deceased to the Safdurjung Hospital. He deposed that his son Dinesh told him that deceased told doctor that Kamla pored petrol on him and lit fire.
As per PW 10, Dinesh, brother of the deceased, when the family of the deceased received the information about the deceased been burning outside the house of Kamla and asking for help, he alongwith his mother and father rushed to the spot and saw the deceased lying at the spot in burnt condition and he along with his mother rushed the deceased to the hospital. He deposed that the deceased stated in his presence to the doctor that Kamla pored petrol on him and lit fire. In his cross-examination he stated that he was alone with the deceased when the deceased gave statement to the doctor and also stated that his signatures were obtained by the doctor but statements of the deceased whether were taken or not, he was unable to recollect.
As per PW 14, Omwati, mother of the deceased, when the family of the deceased received the information about the deceased had burnt at the house of Preeti, she alongwith her husband and son Dinesh rushed to the spot and saw the deceased in a naked 52 condition. She also stated that the deceased on the next day told her that his mother-in-law, Kamla, burnt him.
Statement of PW 6, Anjana, sister of the deceased is to be read as a whole. According to her statement, the mother-daughter duo, i.e. Preeti as well as accused Kamla poured petrol on the deceased and set him ablaze. But the prosecution version is that the deceased was set ablaze by accused Kamla only as is also mentioned in the MLC. Thus, clearly, the statement of PW6 does not inspire any confidence.
Also, as per the statements of both, PW6, Anjana and PW 14, Omwati, mother of the deceased, the deceased burnt at the house of Preeti, but as per the prosecution story, as well as other witnesses, he was found burning and lying in front of the house of the accused. Thus, the statements of both these witnesses has material defect. (C ) FITNESS TO GIVE STATEMENT Another thing worth noting is that as per MLC, Ex. PW 13/A, the time of the incident is 9:30 pm on 25/7/2004 and time of arrival of the deceased in the hospital was 10:00 pm on 25/7/2004. As per DD No. 53 38A, Ex. PW8/A, the time of DD entry was 11:10 pm. The said PW8, ASI Ratan Lal made a request to the doctor for taking the statement of the deceased vide Ex. PW8/B at 2:20 am on 26/7/2004, within few hours of the incident, but the doctor stated that he was unfit to give the statement. But as per the deposition of PW 14, Omwati, mother of the deceased, the deceased on the next day told her that his mother- in-law, Kamla, burnt him. Furthermore, perusal of the MLC, Ex. PW13/A shows that the deceased was brought to the hospital by Omwati, mother of the deceased. The said MLC neither bears signature/thumb mark of the deceased nor of the brother of the deceased, Dinesh. Serious doubts arise as regards the fact that whether the deceased himself gave the statement as regards the accused having poured petrol on him and setting him ablaze or was it her mother Omwati or some other person who gave that statement. Also, even if the deceased himself gave that statement at 10:00 pm on 25/7/2004 and as per PW8 he was unfit to give statement at 2:20 am on 26/7/2004 then how come he told her mother on 26/7/2004 that the accused had set her ablaze.
54
Clearly, from the perusal of the aforesaid, there are clear contradictions in the testimonies of the prosecution witnesses as well as in the prosecution evidence. These contradictions are material contradictions and it is well settled that contradictions/ descrepancies which are not mere cosmetic and are material in nature can improbablise the prosecution story.
From the above discussion, the following give rise to serious doubt in the dying declaration, thus weakening the prosecution case:
1. The fact of accused being under the influence of alcohol as per the MLC Ex. PW13/A;
2. The statement of PW6, Anjana as to the fact that the deceased stated in her presence that the accused as well as Preeti burnt him while prosecution case is only accused burnt him.
3. The statements of PW 6, Anjana as well as PW 14, Omwati, that the deceased was burning at the house of Preeti; while site plan Ex.PW15/A statements Ex. PW8/C to E and Ex.PW8/DA.
4. As per MLC the deceased was brought to the hospital by Omwati, mother of the deceased and there is no 55 signature/endorsement of deceased and his brother Dinesh in the said MLC but according to PW 10 Dinesh he signed the MLC as witness and as per PW6, Anjana deceased's thumb impression was taken on the MLC after his statement;
5. The fact that as per PW8 the deceased was found unfit for statement at 2:20 am on 26/7/2004 but as per PW 14, Omwati, deceased told her on 26/7/2004 that he was burnt by his mother-in-law, Kamla while dying declaration was recorded at Safdurjung hospital on the same night without certifying fitness of victim who was emitting smell of alcohol.
(d)MOTIVE The counsel for the accused also contended that the prosecution also failed to prove the motive behind the accused killing the deceased by burning. The counsel relied on decisions in State of U.P. vs. Babu Ram - (2000) 4 SCC 515, Pannayar vs. State of T.N. by Inspector of Police - VII (2009) SLT 34 and Prem Kumar vs. State of Bihar - (1995) 3 SCC 228 in this regard. The Ld. APP for the State submitted that motive in cases of circumstantial evidence 56 need not be essentially proved.
The relevant para of the decision in Babu Ram's case (Supra) is as under:
"11. We are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.
12. In this context we would reiterate what this Court has said about the value of motive evidence and the consequences of prosecution failing to 57 prove it, in Nathuni Yadav v. State of Bihar, 1998(9) SCC 238 and State of Himachal Pradesh v. Jeet Singh, 1999(2) RCR(Crl.) 167 :
1999(4) SCC 370. Following passage can be quoted from the latter decision :
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
Relevant para of Pannayar's case (supra) is as under:
13. It has also come in evidence of Subbiah that the accused was a known person to his family members. One wonders as to why would the accused whom the deceased knew would venture to rob her. Motive of robbery does not seem to be present in the present case. The absence of motive in a case which depended on circumstantial evidence is more favourable to the defence.
Observations in Prem Kumar's case (Supra) are also relevant and the same are as under:
58
5. Certain crucial aspects appearing in the case deserve to be highlighted. Tarkeshwar Prasad Singh was shot dead inside the bus bearing Registration No. BRO 3555 at the bus stop Ketat at about 6.30 p.m. on 13.1.1983. The deceased met with instantaneous death. PW1, PW2, PW5 and PW8 are the eye witnesses. PW8 lodged FIR on the same day at 7.30 p.m. PW5, a forest guard, was a co-passenger and an independent witness.
He also speaks about the incident and he was injured in the act of firing by Accused Nos. 1 and 2. The postmortem report and the evidence of PW4 proves that the injury resulted due to shots of fire arms. There was, admittedly enmity between the family of the informants and that of the accused. Deceased Tarkeshwar Prasad Singh, along with PW1, 2, 8 and PW5 & 6, and few others was returning in the bus, belonging to Santosh Transport Company, on 13.1.1983, after attending the murder case of Rajan and Bishwanath. The prosecution states that Prem Singh and Ramesh Singh (Accused Nos. 1 and 2), who came from behind in the jeep and the car along with few others, fired fatal shots at Tarkeshwar Prasad Singh with their rifles in furtherance of common intention of the other accused persons, which caused the instantaneous death of Tarkeshwar Prasad Singh. The courts below have concurrently held that the motive suggested by the prosecution against the accused persons is established. When there is sufficient direct evidence regarding the commission of the offence, the question of motive will not loom large in the mind of the court. It is true that this Court has held in State of U.P. v. Moti Ram & Ors., 1990(4) SCC 389, that in a case where the prosecution party and the accused party 59 were in animosity on account of series of incidents over a considerable length of time, the motive is a double-edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by letting in reliable and cogent evidence. Very often, a motive is alleged to indicate the high degree of probability, that the offence was committed by the person who was prompted by the motive. In our opinion, in a case when motive alleged against the accused is fully established, it provides a foundational material to connect the chain of circumstances. We hold that if motive is proved or established, it affords a key or pointer to scan the evidence in the case, in that perspective and as a satisfactory circumstance of corroboration. It is a very relevant, and important aspect, (a) to highlight the intention of the accused and (b) the approach to be made in appreciating the totality of the circumstances, including the evidence disclosed in the case. The relevance of motive and the importance or value to be given to it are tersely stated by Shamsul Huda in delivering the Tagore Law Lectures (1902) - The Principles of the Law of Crimes in British India, at page 176, as follows :
"But proof of the existence of a motive is not necessary for a conviction for any offence. But where the motive is proved it is evidence of the evil intent and is also relevant to show that the person who had the motive to commit a crime actually committed it, although such evidence alone would not ordinarily be sufficient. Under Section 8 of the Evidence Act any fact is relevant which shows or 60 constitutes a motive or preparation for any fact in issue or relevant fact."
In these circumstances, the only crucial factor falls for determination is to see whether satisfactory evidence was available on record for bringing home the guilt of the appellants/accused persons. We shall discuss in brief the evidence of the four eyewitnesses PW1, 2, 5 and 8, to the extent it is necessary to show how far the prosecution has established its case."
In view of the above discussion, it is manifest that, the failure on the part of prosecution to prove motive of the accused, is a good circumstance, in favour of the defence in the present case. It is unconscienable to believe that accused mother in law would murder her son in law to make her pregnant daughter, a widow.
(e)PRINCIPLE OF TWO VIEWS It is well settled that upon appreciation of evidence, the courts find two possible views, one in favour of the guilt of the accused and other in favour of the innocence of the accused, then the one in favour of the accused should be accepted. In this regard in Harijana Thirupala and Ors. Vs. Public Procsecutor, High Court of A.P. Hyderabad - AIR 2002 SC 2821, the Hon'ble Apex Court observed 61 as under:
"11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilt of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilty of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In case where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of evidence in totally on the prosecution case or innocence of accused has to be kept in mind in coming the conclusions as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case."
The principle of two views is affirmed by Hon'ble 62 Supreme Court in the following two cases in appeal against acquittal of accused, but the observations of Hon'ble Supreme Court throw light on the principle of two views to be emulated in criminal cases:
In the case of Sambhaji Hindurao Deshmukh & ors. Vs. State of Maharashtra 2008 (1) JCC 42, the Hon'ble Apex Court observed as under:
" If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible maked it clear hat the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused in entitled to benefit of doubt [ vide G. B. Patel Vs. State of Maharashtra - 1978 (4) SCC 371, Babu Vs. State of U.P. - 1988 (2) SCC 21, Awadhesh Vs. State of M.P. -1988 (2) SCC 557, Thanedar Singh Vs. State of M.P. - 2002 (1) SCC 487, and State of Rajasthan Vs. Rajaram - 2003 (3) JCC 1372 : 2003 (8) SCC 180 ] "
In the case of Ram Swaroop & Ors. Vs. State of Rajasthan 2004 (1) JCC 555, the Hon'ble Apex Court observed as under:
" It is well settled that if two views are reasonably possible on the basis of the evidence on record the view which favours the accused must be preferred.63
Similarly, it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the dindings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record o perverse. "
In the instant case as well, after considering the evidence on record, two views emerge. One view which comes from the dying declaration (assuming the dying declaration is proved and trustworthy) which points at the guilt of the accused Kamla and the other view which comes from the statements of Vishal, Sachin, Preeti and Kamla Ex.PW8/C to E and Ex.PW8/DA, which they gave prior to the commencement of the investigation, i.e. during the course of enquiry prior to filing of the FIR, which statements are relied upon by the prosecution and amounts to admission on the part of prosecution 64 coupled with statement of DW1 of the fact that the deceased died by putting himself afire and this view points at the innocence of the accused. In view of the settled golden principle of two views, as explained above, of our criminal jurisprudence, it is incumbent to take the view which favours the innocence of the accused.
Every man is presumed to be innocent until he is proved guilty. This is the cardinal principal of criminal law. In recognition of this right of the accused the burden of establishing the charge against the accused is placed on the prosecution. In the case of Woolmington vs. Director of Public Prisons 1935 AC 462 the law in this regard has been lucidly restated by Viscount Sankey, LC as follows:
"Throughout the web of the English criminal law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of, and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention the prosecution has not made out the case, and the prisoner is entitled to acquittal."
The courts believe that it is better that ten guilty persons escape 65 rather than one innocent person suffer. It is from such concern of the courts to safeguard personal liberty of the citizens that flows the standard of 'proof beyond reasonable doubt'. This fails to take into account that it is as much as a miscarriage of justice to acquit a guilty person as it is to convict an innocent. Professor Glanville Williams has narrated the adverse affects flowing from acquittal of the guilty persons in the following words:
"The evil of acquitting a guilty person goes much beyond the simple fact that one guilty person has gone unpunished. It frustrates the arduous and costly work of the police, who, if this tendency goes too far, may either become daunted or resort to improper methods of obtaining convictions. If unmerited acquittals become general, they tend to lead to a disregard of the law, and this in turn leads to a public demand for more severe punishment of those who are found guilty. Thus the acquittal of the guilty leads to a ferocious penal law. An acquittal is, of course particularly serious when it is of a dangerous criminal who is likely to find a new victim."
In this regard the Hon'ble Apex Court in Rang Bahadur Singh v. State of U.P., (2000) 3 SCC 454, observed as under:
"22. The amount of doubt which the Court would entertain 66 regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
Further, in Vijayee Singh vs. State of U.P. - AIR 1990 SC 1459, the Hon'ble Apex Court observed as under:
"24. It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads as follows :
"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted.""67
RESULT OF THE CASE In view of the aforesaid discussion, I hold that the prosecution had not been able to prove its case against the accused person beyond reasonable doubt for the charge for the offence under sections 302 IPC, the accused person is accordingly acquitted of the said charge framed against her. The personal bonds and surety bonds furnished by the accused person if she is on bail are cancelled. The order be sent to the server (www delhidistrictcourts.nic.in). The file of the Sessions case be consigned to the record room.
Announced in the open
court on 30/09/09 (S K Sarvaria )
Addl Sessions Judge-01/South
Patiala House Court