Delhi District Court
State vs . on 31 January, 2008
1
IN THE COURT OF SHRI YOGESH KHANNA, A.S.J:DELHI.
SC No. 07/07
FIR No. 25/07
PS Kirti Nagar
U/s 302 IPC
State
Vs.
Chander Shekhar @ Chandan
S/o Shri Trilok Ram
R/o WZ-247-A/2A Gali No.9
Lajwanti Garden, Delhi. ...... Accused
DATE OF INSTITUTION : 03.04.2007
DATE OF JUDGMENT : 31.01.2008
DATE OF RESERVE FOR JUDGMENT:
29.01.2008
JUDGMENT
On 12.01.2007 Smt. Poonam wife of Shri Baldev Raj Kapoor, resident of K-73 Kirti Nagar, New Delhi is alleged to have given the following dying declaration (Ex.PW17/A).
"I am residing with my husband Baldev Raj Kapoor.
Today at about 8.30/9.00 a.m my brother Chandan telephoned me saying that I should get him the money 2 from my husband or on 16th he would come to take the keys of my house and that I may live on the road or elsewhere. I asked him that we can sit together and talk and that he should come over to my house but he refused and told that he would set me ablaze with petrol.
After some time Chandan came at my residence and poured petrol upon me and set me on fire by match stick.
I called my husband crying BACHAO and to take me to the doctor. My brother Chandan had come to my house about 4-5 times earlier. He used to demand Rs.2 lacs from me. Today when Chandan came at my house my husband was performing Puja in the room."
The declaration is attested by the Investigating Officer Inspector Mahavir Panwar. The thumb impression of the deceased Poonam is taken on it.
3. As per the ruqqa Ex.PW17/DA, Dr. H.C. Garhiyal allegedly present with the Investigating Officer while recording of the statement, refused to attest the dying declaration.
4. The case U/s 302 IPC was registered vide FIR No.25/07, 3 PS Kirti Nagar, Delhi. After completion of the investigation the challan was filed. The case was committed to the Sessions Court.
5. On 16.4.2007, charge U/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
6. The prosecution had examined as many as 25 witnesses and thereafter the statement of accused was recorded.
7. Before proceeding further let me state in brief the statements made by the prosecution witnesses:
PW1 HC Abhay Singh The Duty Officer, registered FIR No.25/07 u/s 307 IPC (Ex.PW1/A) and recorded DD No.82B (Ex.PW1/B);
PW2 Baldev Raj Kapoor the husband of the deceased was present at the spot when the incident occurred. He failed to support the prosecution and refused to have seen accused Chandan at the spot at the time of incident. According to this witness the house was locked from inside when the incident took place.
PW3 Shri Chander Mohan the owner of house No.K-73 Kirti Nagar, New 4 Delhi and was residing at its ground floor whereas the deceased and her husband PW2 Baldev Raj Kapoor were on the first floor as tenants. He turned hostile and deposed that the case property was never lifted/seized in his presence from the spot.
He deposed that he signed the seizure
memos Ex.PW3/B to PW3/L at the asking
of the police, assuming that the
documents were correct, but was not present
at the spot when the case property was
lifted;
PW4 HC Bimlesh
proved DD No. 17A (Ex.PW4/A) regarding
information from Kalra Hospital of admission of a lady with 90% burns.
PW5 Smt. Anita deposed that on 12.01.2007 at about 11.30 a.m. someone rang her door bell and on opening the door she found injured Poonam and her husband Baldev Raj standing outside her house. Thereafter Poonam was taken to the hospital in burnt condition. She also failed to support the prosecution case saying that nothing was seized in her presence, though she signed the seizure memo/documents Ex.PW3/I 5 to PW3/L but without going through its contents. PW-6 Smt. Radha Devi She is the mother of injured Poonam and she deposed that injured Poonam rang her at about 10.15 a.m. and told her that accused Chandan had to take some amount from her and had threatened to come to her house on 16.01.2007 and that if her husband comes to know that she had taken some loan it would be embarrassing for her. After getting the news, she reached Safdarjung Hospital on 12.01.2007 at 2.30 p.m. and stated that her daughter Poonam was not able to speak because of burn injuries. Her lips had joined and eyes were closed and even her ears were bent due to burns. Poonam could only breath from her mouth. PW6 deposed that no statement was ever recorded by the police or the SDM in her presence.
PW6 further deposed that Poonam was very aggressive and even at the age of 22 years had consumed some tablets and tried to commit suicide;
PW7 Dr. Arvind proved postmortem report Ex.PW7/A and as per 6 report, the deceased had suffered 98% burn injuries. He could not clarify if the death was homo-suicidal or accidental as the factors viz overpowering, mark of violence or being impaired by drugs or tied town were not visible on the body.
PW-8 Dr. Amitabh Suri The Medical Officer at Kalra Hospital, Delhi gave first aid to deceased Poonam Kapoor and proved the MLC (Ex.PW8/A). He deposed that the deceased was suffering from 90% burn injuries and was in too much pain but conscious and speaking. He did not listen her as was busy in saving her life. He deposed that the brief history on MLC Ex.PW8/A was given by her husband.
PW-9 D.S Chhikara
Witnesseth the arrest of accused.
PW-10 Ct. Lachu Singh
was the first to visit the spot at first floor of House No. K-73, Kirti Nagar, New Delhi. In his presence the Crime Team inspected the spot; the Investigating Officer Inspector Mahavir Panwar seized case property.
7PW11 Dr. H.C. Ghildyal the doctor at Safdarjung Hospital though deposed that patient was in sound mental condition and fit for giving verbal statement but admitted that he had not mentioned in his certificate Ex.PW11/A that the deceased was in sound mental condition. He deposed that the vitals of deceased were within normal limits. However, he could not produce any record forming basis of his opinion. He admitted that a patient with100% burns continues to speak whenever she or he is conscious and that the burn patient always suffers from severe body pain and that sedatives are given to control the pain. After seeing MLC Ex. PW8/A he admitted that the patient was given pain killer having sedative effects. He also admitted that per MLC Ex. PW8/A the general condition of the patient was poor. He feigned ignorance if the dying declaration Ex. PW17/A was ever recorded by the Investigating Officer. He admitted that the patient's condition can deteriorate even after 15 minutes of giving certificate Ex.PW17/A. He also admitted that the 8 patient was not in a position to write or sign as both her hands were burnt. He admitted that he did not attest dying declaration because it was not recorded in his presence. He admitted that if the patient is injected with sedatives, he/she remains in altered consciousness meaning thereby sometime he/she becomes conscious or sometimes he/she loses consciousness. He admitted that the physical and mental conditions of the patient are two different situations.
PW12 Ct. M.C. Sukumaran On 12.01.2007 at about 7 pm took the FIR and ruqqa from the police station and handed over the same to Inspector Mahavir Panwar.
PW13 SI Ganesh was first to reach the spot with constable Lachu Singh. In his presence the crime team inspected the spot and the Investigating Officer seized the case property viz., blood, burnt material, burnt match box, burnt chappal, plastic can, burnt shawl, Pepsi bottle containing kerosene, sample floor, burnt pieces of skin and the mobile phone, vide various memos. 9 PW14 Constable Vijay On 12.2.2007 went to deposit nine exhibits and FSL form at FSL Rohini, but exhibits were not accepted and he re- deposited the same with the MHC(M).
PW15 Constable Mahender PW16 Constable Suresh Gupta are both witnesses of arrest of the accused. PW17 ASI Satyavir Singh On 12.01.2007 was present at Safdarjung Hospital when he met PW Inspector Mahavir Panwar and was asked to be a witness to the dying declaration (Ex.PW17/A). Inspector Mahavir moved an application Ex. PW17/DA and at about 4.30 p.m. Dr. Ghildyal opined that the deceased was fit to make statement. According to this witness, PW23 Inspector Mahavir Panwar and PW Dr. Ghildyal were present in the burn ward when Inspector Mahavir Panwar put questions to injured Poonam and he wrote down her dying declaration in the presence of Dr. Ghildyal. The thumb impression of the injured Poonam were taken on dying declaration and was attested by PW23 Inspector Mahavir Panwar and though 10 PW Dr. Ghildyal was present but he refused to sign the dying declaration (Ex.PW17/A). ASI Satyavir then made the endorsement Ex.PW17/DA on the dying declaration and PW23 Inspector Mahavir signed it. He is also witness to the arrest of the accused.
During cross examination, he deposed that he was on duty at PS Kirti Nagar, Delhi but had gone to Safdarjung Hospital for some personal work. He failed to make any departure entry or arrival entry in the police station. He remained absent from police station between from 2 p.m. to 6 p.m. After recording the dying declaration Ex.PW17/A both PW ASI Satyavir and PW Inspector Mahavir Panwar reached the police station, Kirti Nagar, Delhi at 6 p.m. He admitted that his presence is not mentioned in endorsement Ex. PW-17/DA. He even did not attest the dying declaration Ex. PW17/A. As per this witness, the injured was in critical condition and was saying one thing or the other and therefore, it took some time to record her statement. She was in pain and was asking for water and was even crying. She had bandage all over her body 11 except on little portion of her face. He was confronted with his statement Ex.PW17/DB (u/s 161 CrPC) wherein he had not stated that Dr. Ghildyal refused to attest the dying declaration as a witness or that he recorded the dying declaration in the presence of Dr. H C Ghildyal.
PW 18 Vijay Dutta, SDM proved her report Ex.PW18/A. She reached the hospital at about 5 p.m but by that time the injured was declared "not fit for the statement" by the doctor.
PW19 Ct. Shiv Pal Singh On 12.3.2007 took seven exhibits sealed with the seal of MSP and FSL form, two demand drafts amounting to Rs.23,570/-, two other application forms vide RC No.25/21/07 to FSL Gandhi Nagar, Gujarat and deposited the case property there.
PW20 SI Malkiyat Singh visited the spot with crime team and prepared his report Ex.PW20/A. During his cross examination he admitted that he could not find any sign of major struggle at the spot as if some fight had 12 taken place. The furnitures was lying in order. No finger prints were found.
PW21 HC Dharam Singh the MHC(M) produced register No.19 & 21 and proved the relevant entries in respect of deposit of case property, jama talashi articles etc and sending of sample(s) to FSL. The entries in register No.19 were proved as Ex.PW21/A;
the copy of RC as Ex.PW21/B and the receipt of FSL as Ex.PW21/C. PW22 Constable Anil Kumar proved scaled site plan Ex.PW22/A. PW23 Inspr Mahavir Singh Panwar is the investigating officer who deposed about his investigation; moved an application Ex. PW23/DA to the CMO seeking fitness of the patient and that PW11 Dr. H.C. Ghildyal gave certificate Ex. PW11/A at 4.30 p.m. Thereafter the IO recorded statement Ex. PW17/A and took her thumb impression. He also prepared the site plan Ex. PW23/B at the instance of PW Baldev Raj Kapoor; seized the case property; got conducted the postmortem; got prepared scaled site plan; proved call details of mobile phone of accused and deceased as Ex.PW23/D and PW23/E; proved FSL report Ex.PW23/F and filed 13 the challan. He also proved the case property as Ex. P1 to P11.
During cross examination he stated he had not mentioned about the presence of ASI Satyavir in the ruqqa Ex.PW17/DA. He even did not mention this fact in his return report lodged by him. He informed the SDM at around 3.30 p.m. to 4.30 p.m. on telephone and started waiting for the SDM to come. Later on he changed
his statement saying that he did not wait for the SDM to come and recorded the dying declaration. According to him PW ASI Satyavir wrote an application Ex.PW23/DA on his dictation, for seeking opinion of the doctor.
He admitted that in the entire record he had not mentioned anywhere that the documents Ex.PW23/DA, Ex.PW17/A and
PW17/DA were reduced into writing by ASI Satyavir on his dictation. He did not file the departure and arrival of ASI Satyavir and denied that it was because ASI Satyavir was in the police station throughout the day. He did not complain against PW Dr. Ghildyal to the MS of Safdarjung Hospital, Delhi. He stated that whole 14 body except her face was inside the hut type cover and he could not notice if there was any movement in her body because it was covered. He admitted that he did not find any evidence of struggle at the spot. PW24 Shri R.K. Singh Nodal Officer of Bharti Airtel proved the call details Ex.PW23/A of telephone NO. 9818992982 from 01.01.2007 to 21.01.2007.
PW25 Ct. Virender informed the police station about death of Poonam at Safdarjung Hospital vide DD No.82B.
6. After the prosecution evidence was concluded; the statement of accused was recorded wherein he denied the allegations made against him and deposed that he has been falsely implicated and had never visited the house of his sister on the date of incident and that Poonam had committed suicide and that she never gave any dying declaration and that Investigating Officer PW23 Inspector Mahavir Panwar had created a false document.
7. On the basis of the above evidence it is argued by Ld. Addl. P.P that there is sufficient evidence on record to 15 convict the accused u/s 302 IPC as the deceased had made a dying declaration Ex.PW17/A.
8. On the other hand, the learned defence counsel argued that the deceased was not fit to give the dying declaration Ex.PW17/A and that the Investigating Officer had obtained her thumb impression on a blank paper which he later on reduced into writing. It is further argued that the facts on record amply prove that the dying declaration Ex.PW17/A is a manipulated one as the same is neither attested by PW17 ASI Satyavir nor by PW11 Dr. Ghildyal which creates a doubt as to if the dying declaration was ever given by the deceased or that she was mentally sound to give the dying declaration. It is argued that the dying declaration Ex.PW17/A do not pass the test of reliability and acceptability and as such has to be discarded and accused is entitled to be acquitted.
9. I have heard the arguments and perused the material on record and my findings are as follows:
10. It is an admitted fact that the case hinges upon the dying declaration Ex.PW17/A. 16 Let me state the law in brief relating to the dying declaration.
11. Chapter 13 A of Delhi High Court Rules makes it necessary for the Court to form an opinion that the dying declaration is a correct and faithful record of the statement made by the dead person;
b) as far as possible it be recorded in the manner prescribed;
c) besides, the declarant should be in a fit condition to make the statement;
d) the statement be recorded by the Judicial Magistrate in the presence a doctor, if he is available and in case the doctor is not available then the Judicial Magistrate may record it by noting down that it was unadvisable to wait for the doctor's attendance;
e) in case the dying declaration is recorded by a Medical Officer or a Police Officer then he must give note as to why it was not considered expedient to apply to a Judicial Magistrate for recording the dying declaration or wait for his 17 arrival. In such a case it be got attested by one or more person who happens to be present at that time;
f) further, at the end of such statement he should certify that the declarant was fit to make the statement and it contained a correct and faithful record of the statement.
12. In "Nalapati Shivam Vs. SDO Gantur AP, 2007 VAD(Criminal) SC 45" it was observed that it is the duty of the Court to find if the deceased was in a fit state of mind to make a dying declaration and the Court may look for the medical opinion in this regard. Further it was observed that the dying declaration is a substantive piece of evidence and that conviction can safely be recorded on its basis provided the Court is satisfied that the dying declaration was voluntary and reliable and that the maker was in a fit condition, mentally and physically to make such a statement.
Thus, it is unsafe to record the conviction on the basis of dying declaration alone; where suspicion is raised as regard the correctness of dying declaration. In such cases the Court may have to look for some corroborative evidence by treating 18 the dying declaration only as a single piece of evidence.
13. In "K Rama Chandra Reddy & Anr. Vs. Public Prosecutor, (1976) 3 SCC 618" the Court observed that even though the victim may be conscious but there should be reliable evidence to show that in view of his intense suffering and serious injuries he was in a fit state of mind to make statement regarding the occurrence. Further the person who is recording the statement must put direct question to the injured regarding his mental condition.
14. In "Laxman Vs. State of Maharashtra (2002) 6 SCC 710" the Court held that a certificate by the doctor is only a rule of caution and that a voluntary and truthful nature of the declaration can be established even otherwise.
15. In "State Vs. Laxman Kumar, AIR 1986 SC 250"
the dying declaration by bride was not recorded by a Magistrate or a doctor but by the Investigating Officer, who recorded it without explaining the non availability of the Magistrate and/or the doctor and besides, it was not recorded in question and answer form and hence was not relied upon. It 19 was observed that if the doctor was available there was no justification for a police officer to record the statement of the deceased.
16. In "Dalip Singh Vs. State of Pubjab, AIR 1979 SC 1173" it was observed that it is better to leave the dying declaration recorded by police officers out of consideration until and unless prosecution satisfies the Court as to why it was not recorded by the Magistrate or a doctor.
17. In "Manna Raja & Anr. Vs. State of Maharashtra, (1976) 3 SCC 104", the Apex Court depricated the practice of investigating officers himself recording the dying declaration.
18. In "Shri Niwas Vs. State, 118 (2005) DLT 247(DB), the deceased was having 90% burns but investigating officer did not thought it fit to avail the services of a doctor to record dying declaration nor he made the doctor an attesting witness. The Investigating Officer even failed to record the presence of husband present there, hence the Court did not rely upon the dying declaration on deceased.
19. Now let me see the circumstances in which the 20 dying declaration Ex.PW17/A was made/recorded.
20. As per PW2 Shri B.R. Kapoor, the husband of the deceased, was in a Pooja room adjoining to the drawing room when he heard the cries of his wife. He rushed to the adjoining room and found his wife burning. He tried to put off the fire and then opened the latch of his house and went downstairs where he met PW5 Smt. Anita, the owner of the house. Then PW2 Shri B.R. Kapoor along with his son and daughter-in-law took injured Poonam to Kalra Nursing Home.
PW8 Dr. Amitabh Suri of Kalra Nursing Home gave first aid to injured Poonam. Since the injured suffered with more than 90% burns so she was referred to Safdarjung Hospital. The injured was stated to be in too much pain but was conscious. Dr. Amitabh Suri gave her injections to give her some relief from pain. The injured was then taken to Safdarjung Hospital by her husband PW Baldev Raj and was admitted in the burn's ward. PW11 Dr. H.C. Ghildyal was the incharge of Burns Ward, Safdarjung Hospital, New Delhi.
PW6 Smt. Radha Devi her mother also reached the 21 Safdarjung Hospital, New Delhi at 2.30 p.m. and had an occasion to meet her daughter. As per the statement of her mother, the injured Poonam was in precarious condition and had suffered from more than 90% burns and her lips were joined due to burns and her ears were also bending and that the injured was not in a position to speak.
21. At about 3.30 p.m. IO Inspector Mahavir Panwar telephoned SDM to reach the burns ward so that the statement of the injured Poonam may be taken. Nevertheless, the Investigating Officer moved an application Ex. PW23/A before PW11 Dr. H.C. Ghildyal to find out if the injured was fit to make a statement. The doctor on the said application Ex. PW23/A made an endorsement Ex. PW11/A saying that injured was fit to make statement.
22. At about 4.30 p.m. IO Inspector Mahavir Panwar proceeded to record the statement of injured Poonam and the same is Ex.PW17/A. According to Investigating Officer, PW23 Inspector Mahavir, the dying declaration Ex.PW17/A was recorded in the presence of PW17 ASI Satyavir and PW11 22 Dr. H.C. Ghildyal.
PW ASI Satyavir also deposed that he was present in front of the burns ward, Safdarjung Hospital, Delhi where he met PW Inspector Mahavir Panwar, who requested him to join in recording the statement of injured Poonam. As per ASI Satyavir, it was PW Inspector Mahavir Panwar who wrote an application Ex. PW23/A getting an opinion of the doctor regarding the physical and mental fitness of the injured before recording her statement. PW ASI Satyavir also says that Dr. Ghildyal made an endorsement Ex. PW11/A that the patient is fit to make statement on the said application.
As per prosecution case, PW Inspector Mahavir Panwar, PW ASI Satyavir and PW Dr. Ghildyal all came to the burns- ward and then PW Inspector Mahavir Panwar started putting questions to injured Poonam and whatever the injured said, was duly recorded by PW ASI Satyavir on the dictation of PW Inspector Mahavir Panwar.
According to both these police officials, PW Dr. Ghildyal was present near the injured when the statement Ex. PW17/A 23 was being recorded. As per ASI Satyavir, it took about 20 minutes to record the dying declaration Ex.PW17/A and in total about one hour to complete the ruqqa Ex.PW17/DA. ASI Satyavir admitted that he recorded the ruqqa Ex.PW17/DA in his own hand writing but the doctor refused to attest the dying declaration for reasons best known to him.
23. As per PW23 Inspector Mahavir Panwar, the application Ex. PW23/A, the dying declaration Ex.PW17/A and the ruqqa Ex.PW17/DA all are in the hand writing of ASI Satyavir. Both the police officials admitted that the injured Poonam was suffering from acute pain and was restless, crying for water while her statement was being recorded.
24. Though as per these police officials, Dr. Ghildyal was present when Ex.PW17/A was recorded but strangely enough, the dying declaration Ex.PW17/A is neither attested by PW Dr. Ghildyal nor he has signed on it as a witness. Rather PW Dr. Ghildyal had something else to say. As per PW Dr. Ghildyal, he was not present when the dying declaration Ex.PW17/A was recorded. I fail to see any reason why Dr. 24 Ghildyal would tell a lie in this regard as there is no reason/motive for him to say so.
25. In view of the law discussed above, I am constrained to say that it is a rule of prudence that if the doctor is available at the time of recording the dying declaration then the police officer/investigating officer should always desist from recording such statement. The Delhi High Court Rules may be referred to in this regard.
I fail to understand if Dr. Ghildyal was available at the time of recording of the statement then why he was not requested to record such statement and why PW IO Mahavir Panwar proceeded to record the statement himself. Then if Dr. Ghildyal was present then why he refused to attest the document Ex.PW17/A. So, there exists a doubt qua the presence of Dr. Ghildyal, while statement Ex.PW17/A was being allegedly recorded.
Secondly, as per the statement of both police officials it was PW ASI Satyavir who recorded the dying declaration in his own hand writing and had even written the ruqqa at the 25 directions of the IO PW23 Inspector Mahavir Panwar, then why this fact find no mention in the ruqqa Ex. PW17/DA. The ruqqa is silent qua the presence of PW17 ASI Satyavir during the recording of dying declaration Ex.PW17/A. No police record is filed to show the presence of ASI Satyavir at the hospital. The answer given by ASI Satyavir is despite being on duty at Police Station Kirti Nagar, he was roaming in Safdarjung Hospital for his personal work. Neither any departure entry nor any arrival entry of ASI Satyavir is filed on record then who is going to believe this explanation. Thus the presence of ASI Satyavir at 4.30 p.m. at near the bed of injured at burns ward of Safdarjung Hospital is also highly doubtful.
26. Further, I fail to understand as to why none of the relations viz. husband PW B.R. Kapoor or mother PW6 Smt. Radha Devi who were very much present in the hospital were not called by the Investigating Officer PW23 Inspector Mahavir Panwar to be a witness to the dying declaration Ex.PW17/A. Thus, the circumstances cast a great doubt to the 26 presence of both PW Dr. Ghildyal and PW ASI Satyavir, near the bed of injured, while dying declaration Ex.PW17/A was being recorded. The circumstances become more suspicious specifically when PW6, the mother of injured had deposed that the injured was not in a position to speak; her lips being joined due to burns.
27. Lastly if the Investigating Officer Inspector Mahavir Panwar had informed the SDM to reach at burns ward of Safdarjung Hospital between 3.30 to 4.30 p.m. then what was the urgency for Investigating Officer PW Inspector Mahavir Panwar to record the statement at 4.30 p.m. without even waiting for the SDM. After all the SDM reached the burns ward at about 4.50 p.m.
28. Now if PW Inspector Mahavir Panwar had recorded the dying declaration Ex.PW17/A just before the arrival of the SDM, then what was the necessity for the SDM to move yet another application before the doctor asking for fitness of the injured. Further, why such application, as was allegedly moved by the SDM, was never placed on record. 27
29. All these factors create a doubt if injured Poonam had actually given dying declaration Ex.PW17/A or it was ever recorded in the manner prescribed. PHYSICAL AND MENTAL CONDITION
30. It is admitted by PW8 Dr. Amitabh Suri, PW17 ASI Satyavir and PW23 Inspector Mahavir Panwar that the injured despite being given sedatives, was under extreme pain and was crying. As per PW Dr. Ghildyal such patients remain in altered consciousness i.e. some time they become conscious and some times unconscious.
One can well imagine the mental condition of such a patient and hence it is the duty of the Court to see if such statement is reliable, acceptable and free from suspicion Only in those circumstances it would be advisable to convict the accused on its basis alone.
However, from the facts given below it is needless to say that the circumstances in which Ex.PW17/A is stated to be recorded are highly suspicious and hence Ex.PW17/A can only be treated as a single piece of evidence and the Court needs 28 to look for corroboration.
31. Now, here the Ld. Addl. P.P argued that brief history as given by husband PW Baldev Raj Kapoor in MLC Ex.PW8/A be treated as a corroborative circumstance. According to him, there was no reason for PW Baldev Raj to give false statement to Dr. Amitabh and hence the brief history as given in MLC Ex.PW8/A be relied upon.
I am afraid this is not the correct preposition. The brief history, though allegedly given by husband Baldev Raj, is completely denied by him when he deposed in the witness box. Rather PW Baldev Raj had contradicted himself by saying that when the incident occurred the house was locked from inside. Hence the brief history Ex.PW8/A cannot be treated as a circumstance.
SPOT
32. One another interesting fact to note is that none of the police officials who visited the spot found any signs of struggle or violence. According to them all the articles, furnitures etc. were lying intact in the house. It is very difficult 29 to believe that if a person is pouring kerosene oil upon the victim to kill him/her and the victim is not resisting, more so when her husband is in the adjacent room and can come for help.
POSTMORTEM REPORT
33. As per PW Dr. Arvind, an Autopsy Surgeon, who conducted the postmortem, had not seen any sign of struggle or violence on the body of the deceased. Hence, it was difficult for him to depose if the death of injured Poonam was homicidal or suicidal.
MOTIVE
34. Then the prosecution had also failed to establish a clear motive for accused to kill his sister. Admittedly, injured Poonam had taken some money on loan from her brother accused Chandan and had to return it. As per facts, she intended to return the loan and accused was to meet her on 16th. If that was so, then there was no reason for accused to come on the same day to kill her as the death of his sister would have brought him loss and nothing else. On the other 30 hand one can say that the deceased may have a motive to commit suicide as she had never disclosed her loan transaction to her newly wedded husband.
Further as per PW Baldev Raj and PW6 Smt. Radha Devi, the injured was aggressive and had suicidal tendencies and that earlier too she tried to commit suicide but was saved.
PRESENCE OF ACCUSED
35. Lastly the very presence of accused at the spot appears to be highly doubtful for allowing reasons:-
a) as per PW Baldev, his house was locked from inside when the incident occurred;
b) no sign of struggle were ever found at the spot and
c) the accused was to come at the said house on 16th then what motivated him to come on the same day is not clearly established.
36. Thus, on the basis of facts and circumstances stated above it is highly dangerous to rely on dying declaration Ex.PW17/A, being not free from suspicion and there being no 31 other corroborating circumstances, so the accused is entitled to benefit of doubt on following grounds :
a) public witnesses had turned hostile and had not supported prosecution;
b) presence of accused at the spot is doubtful;
c) no clear motive for accused to commit the crime;
d) the presence of PW Dr. H C Ghildyal at the time of recording dying declaration is highly doubtful;
e) presence of PW ASI Satyavir is also doubtful as is neither recorded in ruqqa nor in any other police record;
f) no sign of struggle at the spot; g) no sign of violence on body, per postmortem report; h) as per PW17 ASI Satyavir & PW23 Insp. Mahavir
Panwar, the entire body except the face of injured was kept under a hut type cover and they even could not see the movements of her body. When both her hands were burnt so when did the Investigating Officer took her thumb impressions is not clear. Was it when the Investigating Officer met the injured for the first time at Kalra Hospital and used it later on.32
37. The Ld. Addl. P.P had though relied upon the following judgments but to my mind the same do not apply on facts. The judgments are as follows:
a) In 'Surajmal Vs State of Punjab, 1992 CrLJ 520 SC' it was held that if dying declaration is recorded by police officer in the presence of medical officer but the doctor did not attest the statement, as he was not satisfied that it was recorded correctly, does not affect the veracity of the dying declaration.
The said judgment is not applicable to the facts of the case as in the cited case, the medical officer (PW4) was present with the Investigating Officer at the time when the dying declaration was recorded, but was confused in respect of the name of the assailant. Hence the Hon'ble Supreme Court held that as PW4 did not suggest any other name given by the accused and as no suggestion was ever given to medical officer PW4 that despite deceased giving a different name the Investigating Officer recorded the name of the accused. Hence the Hon'ble Supreme Court believed the dying declaration.
However, in the present case the medical officer PW11 33 had totally denied his presence with the Investigating Officer at the time of recording of the dying declaration Ex.PW17/A. Hence one of them viz. PW Inspector Mahavir Panwar or PW1 Dr. H.C. Ghildyal is certainly telling a lie.
b) Secondly, in 'State of U.P Vs. Ram Sagar Yadav, AIR 1985 SC 416': it was held that a dying declaration can be acted upon without corroboration.
No doubt a dying declaration can be acted without corroboration but it is also the law that it can be so acted if the circumstances surrounding the declaration are clear and convincing.
In the present case the circumstances as enumerated in para above are already held to be suspicious and hence in the present case the dying declaration Ex.PW17/A is the one which needs corroboration and the conviction cannot be solely based upon it.
c) Further, in Ramavati Devi Vs. State of Bihar, AIR 1983 SC 164': it was held that the dying declaration before a police officer was admissible in evidence.
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In the cited case the doctor had opined that deceased was in fit state of health to make dying declaration and no suggestion was made that deceased was not in fit state of health. Further there were five witnesses namely PW1, PW4, PW5, PW7 and PW8 who had seen the deceased running in flames and they all heard the screams and utterances of the deceased that it was accused who had set her on fire.
In the instant case no such utterance was made by deceased during the incident and even the very presence of the accused at the spot is highly doubtful. Further the circumstances in which the dying declaration Ex.PW17/A is recorded are also held to be suspicious, hence the cited judgment is is not applicable to the facts of the case.
d) Lastly in 'Sahadevan @ Sagadevan Vs. State, (2003)1 SCC 534' it was held that the benefit of any act or omission of the Investigating Agency should not go to the accused. In this cited case the deceased died in police custody.
However, in the present case we are not concerned about omissions, but the suspicious circumstances that existed 35 while recording the dying declaration Ex.PW17/A. Thus, the judgments cited by the prosecution are of no help to them and hence as per reasons set forth in para 36 above, the accused is entitled to benefit of doubt and is acquitted. Be released, if not required in any other case.
Announced in open court ( YOGESH KHANNA )
on 31.01.2008 ADDL. SESSIONS JUDGE
DELHI
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