Delhi High Court
Deep Chand vs State (Delhi Administration) on 17 October, 1985
Equivalent citations: 1986(1)CRIMES13, 29(1986)DLT323
JUDGMENT Malik Sharief-Ud-Din, J.
(1) -THIS appeal is directed against an order of the learned Addl. Sessions Judge, Delhi, dated 15th April 1982 convicting the appellant under section 302 Indian Penal Code and sentencing him to undergo imprisonment for life.
(2) We may first of all take notice of the facts. The date of incident is 17th April 1981 at 11.30 P.M. The accused in the case is the husband of the deceased, one Meena who bailed from Agra and was married to the accused about 4 years prior to the date of the incident. The place of incident. The place of incident is house No. 16/134, Bhapa Nagar, Karol Bagh.New Delhi. The deceased along with her husband, the present appellant was residing in this house for some time back. The alleged motive for the commission of the crime is that the deceased Meena was suspecting the appellant of having an affair with some other lady and was aggrieved of the behavior of the appellant as he was unfaithful to her. Yet another motive to do away with the deceased was that she was not bearing any child. The appellant as such was tried for having caused the death of his wife, deceased Meena in their afore-mentioned house at 11.30 P M. on the night of 17th April 1981 by pouring kerosene oil on her and thereafter setting her ablaze and that too while she was lying inside the room. It is further alleged that a candle stick was used for setting her ablaze. On spot verification the candle stick was found and kerosene oil was found spilt over the floor of the room.
(3) At about I A.M. on the night of 17/18 4 1981 she was admitted to Safdarjang hospital by the appellant and one Rajinder Singh who was cited as Public Witness 7 in the case. She had suffered extensive burn injuries. Immediately on arrival in the hospital she is stated to have made a dying declaration before Pw 2 Dr. A.K. Sahoo, then Casualty Medical Officer who first attended on her. The declaration is to the effect that she sustained these burn injuries when her husband Deep Chand poured kerosene oil on her and burnt her inside the room at 11.30 PM. on 17.41981. The appellant Deep Chand immediately on this declaration having been made by the deceased was detained in the hospital by Public Witness 2 Dr. A K. Sahoo. The deceased was found to have sustained 100% burns.
(4) Information in this regard was transmitted to the police by duty Head Constable Mohinder Singh Public Witness 15 and this information is marked Ex. Public Witness 16/A. The information is to this effect : "Time 1.50 A.M. The Head Constable on duty Shri Mahinder Singh gave telephonic information from the casualty Safdarjang Hospital to the effect that Smt. Meena wife of Shri Deep Chand, aged 19 years, r/o Bhapa Nagar, Karol Bagh, was burnt by her husband and got admitted to Safdarjang Hospital from the house of Leila (?) situated in front of Double Storey Quarters and that Sbri Deep Chand was detained by the Doctor. Some officer may be sent to the place of occurrence. On receipt of the telephonic information the report was recorded in the roznamcha."
(5) This information was received by Public Witness 16 Nahar Singh A.S.I, at police station Karol Bagh and after entering the information in the daily diary, copy of this report was forwarded to the police post Tank Road as the incident had taken place within its jurisdiction. A police Officer, Asi Jaibir Singh Pw 26 upon receiving this information immediately rushed to the hospital and after procuring M.L.C. of Meena deceased got a case registered under section 307 IPC. The record shows that he did make hectic efforts to find out if the deceased was fit to make a statement but it was only at 7.30 A.M. that the deceased was declared fit to make statement. By that time S.I. Gujarmal Pw 27 had already reached the hospital and on the deceased having been declared fit to make statement, he recorded the dying declaration of Meena deceased. Earlier to this soon after Jaibir Singh Public Witness 26 had gone to hospital, S.I. Gujarmal Public Witness 27 accompanied by S.I. Budhi Parkash and constable Jawala Parshad bad gone to the spot of incident. He inspected the spot and after leaving his other two aforesaid companions on the scene of incident he ha j left for the hospital.
(6) It would be relevant to mention as to what he had seen at the scene of incident when he visited the place first. He noticed the outer door of the house of the appellant open and the door of the room in the house was also lying open. He found kerosene oil spilt on the floor of the court-yard which is covered with roof and also a five litre capacity plastic can containing some kerosene oil was noticed near the door of the room. He also noticed a partly burnt cot and a partly burnt quilt, bed sheet, pillow etc. lying in the covered courtyard which were emitting smell of kerosene oil. In fact the application for issuance of fitness certificate was made by Public Witness 26 Jaibir Singh S.I. at 3.30 A.M. on 18.4.1981 but it was only at 7 35 that the patient was declared fit to make statement which was recorded by Public Witness 27 S.l. Gujarmal and the declaration is Ex. Public Witness 7/A and reads as under : "That on 17.4.1981 at about 11.30 p.m. I and my husband Deep Chand were present in our house. I was lying on the ground inside the room near the door and my husband was outside. He asked me as to where had I gone in the evening. On this he started quarrelling with me and set me aflame after pouring kerosene oil on me as a result of which I received burns." This statement was also attested by Rajinder Singh Public Witness 7 who had accompanied Deep Chand to hospital when the deceased was carried there.
(7) Exhibit Public Witness 8/A, one of the proved documents would show that soon after recording the dying declaration of Meena deceased S.I. Gujarmal Public Witness 27 made hectic efforts to seek services of the Magistrate to record the statement of Meena deceased. In this regard soon after recording the declaration he lashed to contact a Magistrate. A 9.30 A.M. he contacted Shri L.D. Malik, Metropolitan Magistrate who in his turn tried to contact Shri R.N. Jindal, his link Magistrate. According to Shri L.D. Malik, Shri Jindal was available on phone but expressed his inability to accept the assignment as he bad to go outside Delhi shortly. It was in these circumstances that Shri L.D. Malik, Magistrate proceeded to Safdarjang Hospital where he reached at 1035 A.M. Unfortunately by then the deceased had died and he was informed that the death of the deceased had occurred at 10 20 A.M. (8) This resulted in a change in the complexion of the case from 307 Ipc to 302 IPC. Thereafter, inquest papers were prepared and the postmortem of the deceased was conducted by Dr. Bharat Singh Public Witness 5. The report of Dr. Bharat Singh Public Witness is that when the dead body was brought to him he did not notice any smell of kerosene oil from the body. Skull hair were more or less completely burnt. Remaining hair were smelling of kerosene oil which were preserved and sealed. Eye brow and lashes were burnt. Public hair were completely burnt and eyes were closed. Mouth of the deceased was open and the tongue was in normal position. Nails were charred. He also noticed second to third degree fire burns all over the body from head to toe, with soot deposit at places. The doctor opined that injuries were ante mortem caused by fire. He also preserved Visceral and sealed the same for purposes of Chemical analysis. Death of the deceased according to him was due to shock from burn injuries and the time since death was 24 hours. The postmortem was conducted on 19.4.1981 at 10 A.M. (9) Adverting back, immediately after the nature of offence was changed from 307 to 302 Indian Penal Code and after it was found that the deceased had died, the investigating officer immediately went to the scene of incident and seized various articles such as plastic cane containing kerosene oil, a partly burnt cot, a partly burnt quilt, bed sheet, pillow, charred skin, burnt hair, candle stick, match box, burnt match stick etc. which were found lying on the spot. The investigating officer further got the scene of the incident photographed and also got the site plan prepared and some of the articles were thereafter also sent to C.F.S.L. for examination and opinion. The prosecution case further would reveal that Deep Chand appellant was also got medically examined by Pw 4 Dr. S. Chaudhary, Medical Officer, Police Hospital, Delhi and he found the following injuries on his person : 1. Ulcerated wound measuring 1"x"" over nose right side. 2. Two small abrasion wounds over the chin right side. 3. One blister wound 1"x "" over the left band dorsal aspect. 4. Few blister wounds measuring 1"X " x " x "" etc. over the right forearm lower part. 5. Charring of the skin measuring 3"x2" over the right forearm upper part, dorsal and anterior aspect. Hair follicles also burnt over the right forearm. Duration of the injuries was 17 to 38 hours. Injuries were simple in nature and were opined to be caused by dry heat. This examination was conducted on 18.4.1981.
(10) Public Witness 12 Dr. N.C. Bose has certified the death of Meena, Public Witness 23 Shri S D. Rawat, a record keeper of the hospital, has identified the certificate Ex. Public Witness 23/A about the fitness of the deceased to make a statement issued by Dr. Vinay Jain. This was necessitated as according to this witness Dr. Jain had left the service of the hospital and his present particulars were not known. We may also notice as to what are the results which were procured by the investigating officer from the CFSL. Pieces of burnt clothes of the deceased which for purposes of analysis were marked as Exts. P 4 and P 8 were found to contain kerosene residue and the plastic container was also found to contain kerosene oil.
(11) So much about the facts. We may now embark on the examination of the evidence and find out how far it goes to conclusively implicate the accused in the commission of this crime. In doing so we are bearing in mind the contentions raised by Mr. J.C. Digpal and Mr. R.P. Lao, learned appellant's and State counsel, respectively.
(12) The main evidence in the case constitutes of the dying declaration made before Public Witness 2 Dr A.K. Sahoo which was recorded at the time of admission on Mlc at 1 P.M , followed by nearly similar dying declaration though with a little more details before Public Witness 27 Gujarmal S.I, at 7.35 P.M. This evidence is supplemented by the testimony of Public Witness 21 and Public Witness 22 Smt. Sukhdevi and Kali Charan, mother and father respectively of the deceased. Their evidence is in support of the fact that the accused had a motive to kill their daughter. We may at this stage make a reference to the material evidence of these two witnesses The mother Public Witness 21 Sukhdevi has deposed that the deceased had complained to her that the accused was maltreating her and due to this she had stayed with them for about one year and was taken back by the accused and his brother on the assurance that they will treat her well. She also says that the deceased had not given birth to any child. She has also stated that the deceased had informed her about the accused being unfaithful to her and about the accused having illicit relations with some other woman. Public Witness 22 Kali Charan, father of the deceased, has also deposed that the deceased had informed him about the ill-treatment at the hands of the accused and that is why she was reluctant to stay with her husband. According to him soon after the marriage the deceased returned to them because of ill-treatment and the deceased was not willing to go with the accused as she apprehended danger to her life.
(13) Public Witness 7 Rajinder Singh who was supposed to support the prosecution case has turned hostile and at trial has taken a stand which is almost similar to the defense set up by the accused. To our mind this is so, for obvious reasons and we will disclose it at the appropriate place. We may, however state that this hostility be has shown to the prosecution despite the fact that the dying declaration Ex Public Witness 7/A recorded by Gujarmal S.I. Public Witness 27 was also attested by him. There is no need, therefore, for us to attach any importance to the testimony of this witness though we would like to take notice of the fact that he is related to the accused as was ultimately disclosed by his father Raghbir Singh Dw 4. Here we may again refer to the testimony of Public Witness 21 and Public Witness 22 mother and father of the deceased for a limited purpose that it is clearly established that soon after the marriage the accused started mal-treating the deceased as a result of which she had to remain with her parents at Agra for long intervals. It is also clear from the testimony of Public Witness 21 that the deceased was suspecting that the accused had illicit relations with some other woman. It is a common knowledge as to what effect such an apprehension would create on the mind of a wife. It must have undoubtedly made her sore. Therefore, there is no reason to doubt the testimony of Public Witness 21 and Public Witness 22 that the relations between the parties were strained. This clearly goes to show that the accused did have a motive to do away with Meena. Furthermore, she was not bearing any child even though the marriage had been performed four years back. All this information about the cause of strained relations was given to Public Witness 21 and Public Witness 22 by the deceased. She had even expressed her reluctance to go with the accused as she was fearing harm to her life. This to our mind is quite natural because as daughter Meena deceased was bound to take her parents into confidence in such matters. We see no reason to disbelieve the testimony of both these witnesses.
(14) Before we proceed further we find it necessary to notice the stand taken by the accused which in short is to the effect that Meena deceased was suspecting him of having illicit relations with some woman, and she was feeling perturbed because of this impression. According to him on the day of incident he returned from his work at 10 30 P.M. and on her asking as to wherefrom he had come, he replied that he had come from the work. She started scolding and telling him that she had that day met his colleague Narain Singh Dw 3 and had learnt from him that the accused had left from the place of work at 4 P.M. Further says that since he was tired and he could not clear the suspicion of the deceased he left at 11 P.M and went to the house of Rajinder Public Witness 7 where 'Jagran' was being held. He further adds that after half an hour we heard some noise coming from the side of his house and be immediately rushed home and saw Meena in flames. He also slates that he tried to extinguish fire and in that process sustained injuries. He has also stated that while he was extinguishing fire the deceased scolded her and told her that she does not want to live and should be allowed to die. The neighbours had also come to the scene and they sprinkled water over her and when the fire extinguished she told him that now that she has burnt herself she will not spare him and his relations. He admits that he then took Meena deceased to the hospital. Dw 3 Narain Singh has admitted that be met and talked to the deceased.
(15) Having noticed the stand of the accused we may at once point out that his own stand does support the testimony of Public Witness 21 and Public Witness 22 in so far as the motive part is concerned. We may also point out that the story about the 'Jagran' being held at the house of Rajinder Public Witness 7 was for the first time introduced by Rajinder Singh Public Witness 7 a relation of the accused even though this story was not in existence at any time during investigation and before the trial. It would be noticed that Public Witness 7 Rajinder Singh when he was cross- examined by A.P.P. has admitted that he had not disclosed it to the police at the time his statement under section 161 Cr.P.C. was recorded that a 'Jagaran' was being held on the night of incident in the house of Public Witness 7 Rajinder and that the accused had come there at 11 P.M. It was in fact for the first time at trial that the basis for this defense was laid at the hands of Rajinder Singh PW7 followed by the stand of the accused under section 313 Cr.P.C. and thereafter supported by Dw 4 Raghbir Singh, again a relation of the accused. The surprising part of it is that Rajinder Singh Public Witness 7 who has turned hostile has kept it a closely guarded secret that he was related to the accused. It was only after we went through the testimony of Dw 4 Raghbir Singh that we found that they are related to the accused, (16) Adverting to the contention of Shri Digpal, learned counsel for the accused/appallant, that since there is a variation in the two dying declarations these should be discarded as unreliable and should not be relied upon without corroboration. We have given our anxious consideration to the argument. We however, do not agree as we do not find any infirmity in the two dying declarations, at least in material particulars. So far as the basic substratum of the prosecution case is concerned both the dying declarations are uniform. The sum and substance of both these dying declarations is that the appellant poured kerosene oil and burnt her. Indeed, there is a reference to the relations of the accused in the first dying declaration made before Dr. A.K. Sahoo Public Witness 2. That only goes to show that she had an impression that Public Witness 7 Rajinder Singh and even Dw 4 Raghbir Singh who are admittedly the relations of the accused, had some hand in this episode. Pw 7 Rajinder Singh is the person who turned hostile and through him the accused laid the basis for the defense he has ultimately offered, as noticed earlier. Furthermore, there is significant admission by Dw 4 Raghbir Singh, father of Public Witness 7 Rajinder Singh which goes to show that he did have somewhat guilty conscience. We may quote that significant admission which is as under : "I did not mention before the police that Meena was uttering that she was dying and that she would not spare the accused and his relations because I was frightened of my implication in the case and the police did not make enquiry from him."
(17) Caught we to know, why, if police did not make enquiry from him, he did not volunteer to tell these facts to the police or report the matter to any authority or Magistrate ? If he felt that the accused is being falsely implicated he would have certainly have disclosed this at the earliest possible stage ? Could this be the behavior of a relation of the accused ? May be know why he was afraid of being implicated ? This state of mind of Dw 4 Raghbir Singh coupled with the hostility to the prosecution caused by Public Witness 7 Rajinder Singh goes to show that the deceased had an impression that the relations of the accused were also conspiring to do away with her. That in all probability accounts for that statement about the relations she made before Dr. A K. Sahoo. In these circumstances even though the relations have not been named in the next dying declaration recorded by Gujarmal Public Witness 27 it does not lead to any adverse inference as otherwise in substance both the declarations are to the effect that the accused poured kerosene oil on her and set her ablaze. We find absolutely no reason to disbelieve Public Witness 2 Dr. A.K. Saboo that the deceased did make this statement to him and it is very commendable on the part of Dr. Sahoo that he recorded this statement of the deceased which has proved very helpful in preventing the miscarriage of justice.
(18) The next objection raised by Shri Digpal, learned counsel for the appellant is that S.I Gujarmal Public Witness 27 instead of writing the dying declaration himself should have asked the doctor to do so when admittedly the doctor issuing the fitness certificate was present. I he contention is that in the absence of such attempt having been made this dying declaration must be declared a suspect. We really fail to appreciate cither the significance or the weight of the contention. Doctors who are in the wards attending many patients are very busy persons particularly in a congested city like Delhi where there are fewer hospitals and large number of patients and casualties. How then it is expected to ask a doctor to scribe such dying declaration. Challenge to the fitness of the patient to make statement is absolutely meaningless in view of the fact that fitness of the patient to make statement has been certified by the doctor. Moreover, the declaration made before Gujarmal Fw 27 in substance is not different than the one made before Public Witness 2 Dr. A.K. Sahoo earlier. If Gujarmal Public Witness 27 were bent upon conducting investigation in a dishonest manner there was nothing to prevent him from scribing the dying declaration in the same words in which it was earlier recorded by the doctor in MLC. That goes to show that Gujarmal Public Witness 27 has acted with considerable responsibility. Moreover, it is not the requirement of law that the dying declaration must necessarily be recorded by a doctor or a Magistrate. This will always depend upon variety of factors. If the patient is dying and is fit for making a statement, how can a police officer postpone the recording of the dying declaration. If this proposition were to be accepted, it will nave serious consequences.
(19) In this case we find that soon after S.I. Gujarmal Public Witness 27 recorded a dying declaration of Meena, he rushed to a Magistrate namely Shri L.D. Malik Pw 8 and as would be noticed from the testimony of Shri L.D. Malik, Public Witness 8 Gujarmal S I., was with him at his residence at 9.30. It is needless for us lo repeat as to how the time was lost to bring the Magistrate to the hospital. This has been explained by Shri L.D. Malik Public Witness 8. A mention thereof has been made in the earlier part of this judgment. Considering the distances in the city of Delhi one can easily see that S.I. Gujarmal has lost no time to contact the Magistrate but unfortunately when the Magistrate namely Shri L.D. Malik reached the hospital the patient had already expired. These facts clearly go to show that the investigating officer Gujarmal bad made hectic efforts to procure the services of a Magistrate. Considering the overall circumstances of the case we find that both the dying declarations recorded in this case inspire considerable confidence and in our view these can be acted upon even without further corroboration. In the present case, however, we otherwise find corroboration from what was recovered from the scene of incident and also the report of C.F.S.L. that the kerosene was detected in the pieces of clothes seized as also from the testimony of Dr. Bharat Singh. We have already made a reference to the testimony of Public Witness 21 and Public Witness 22 that the accused had been mal-treating the deceased and the accused has admitted that the deceased was suspecting him of having illicit relations In these circumstances we find no infirmity in the evidence which goes to show beyond any shadow of doubt that the accused has committed this crime.
(20) We have yet another reason for holding the accused guilty of the commission of this crime. We have indicated in this judgment that the story of Jagran being held at the house of Rajinder Singh Public Witness 7 is an after-thought and there was no Jagran in fact being held. Admittedly, the accused was a suspect in the eyes of his wife deceased Meena and, he has also admitted the fact that he was trying to remove this misconception from her mind Normally, therefore, at 11.30 Public Witness . at night the accused who was a working labourer would be expected to be at home. This would be particularly so because his wife is alone. Normally it would be presumed that in such circumstances a husband at that hour of night must be at his home with his spouse. That would show that the accused was in his house at the time of commission of this crime. That apart, we have yet another reason to disbelieve the story set up by the accused that he had gone to Jagran. The only persons supporting the story of Jagran being held in the house of Rajinder is Rajinder Singh Pw 7 and his father Raghbir Singh Dw 4. None from the vicinity has come to support it. Moreover, if the accused had really gone to attend Jagran at 11 P.M. in the night he would normally be expected to be back late in the night or at least after 2/3 hours. In that event the deceased would either bolt the door from inside or ask the accused to lock it from outside. If the story set up by him is to be believed it would naturally involve us into belief that the door was neither bolted from inside nor locked up from outside. How then can the accused be believed that he was not in his house at the time of incident. In this case the site plan would show that a little blood was also found in the room which goes to show that there was scuffle immediately before the deceased was set on fire. That accounts for the injuries No. 1 and 2 on the person of the accused and that also accounts for the remaining injuries which are opined by the doctor to have been caused by dry heat. It would be seen that these injuries on the person of the accused correspond to the time of incident. Injuries I and 2 are in the nature of ulceration and two abrasions. Abrasions can only be the result of some sort of scuffle between the couple near about the time of incident. This also goes to show that the accused was very much in his house at the time of the incident and since injuries 3, 4 and 5 on the person of the accused have been opined as a result of dry heat it can very safely be said that these are caused while the deceased was burning The candle stick is present in the photograph of the scene of incident and we have also noticed a partly burnt cot, partly burnt pillow, bed sheet and we have also noticed from the photographs of the scene kerosene having been spilt on the floor. All these facts in their totality clearly go to show that the deceased in all probability was soaked in kerosene oil while she was lying and was in the company of her husband unmindful of what was lurking in his mind. Having found that the prosecution has independently established its case we find no necessity to refer to the remaining defense evidence which is of no consequence.
(21) Looking at the evidence of the case in its totality, we are of the view that the prosecution has sufficiently established the guilt of the accused. We find no infirmity in the order of the learned Addl. Sessions Judge which we confirm. The appeal is accordingly dismissed.