Delhi High Court
Mohd. Iqbal & Ors. vs State on 5 April, 2011
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: March 25, 2011
Judgment Delivered On: April 05, 2011
+ CRL.A.69/1999
MOHD.IQBAL & ORS. ..... Appellants
Through: Mr.K.B.Andley, Sr.Advocate with
Mr.M.Shamikh, Advocate
Versus
STATE .....Respondent
Through: Mr.Pawan Sharma, Standing
Counsel (Criminal) with Mr.Harsh
Prabhakar, Advocate and
Mr.Pashupati Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide impugned judgment and order dated 27.01.1999, appellants Mohd. Iqbal, Mohd. Haroon, Barkat Begum, Gulzar Begum and Abdul Wahid have been convicted for the offence of having caused the death of Muslima (herein after referred to as the "Deceased") by setting her on fire, for which offence they have been sentenced to undergo imprisonment for life and pay a fine in sum of Rs.2,000/- each; in default to undergo rigorous imprisonment for three months.
Crl.A.No.69/1999 Page 1 of 242. During the course of hearing of the present appeals, we were informed by the learned counsel for appellant Mohd. Iqbal that appellant Mohd. Iqbal is no more in the world of living, which information was verified by the learned counsel for the State. In that view of the matter qua Mohd.Iqbal the appeal would stand abated.
3. The case set up by the prosecution against the appellants was that the deceased along with her husband Abdul Khaliq used to reside on the first floor of house bearing Municipal No.436, Shehzada Bagh, Delhi; that Mohd. Iqbal, the brother of the husband of the deceased, along with his wife Barkat Begum and son Mohd. Haroon used to reside on the second floor of the said house and that Abdul Wahid, the other brother of the husband of the deceased, along with his wife Gulzar Begum used to reside in a house situated at a distance of three hundred yards from the said house.
4. On 13.06.1996 at about 01.00 PM ASI Rajinder PW-2, received a wireless message that a quarrel is taking place at house No.436, Shehzada Bagh pursuant to which he proceeded to the said house where he saw the deceased lying, in a burnt condition, in an alley near the staircase of the said house. ASI Rajinder removed the deceased to Lok Narayan Jai Prakash Hospital (hereinafter referred to as the "LNJP Hospital") in a PCR van.
5. Upon receipt of the information of the incident, ACP Satender Nath PW-6, ASI Mahipal PW-7, Const. Madan Pal PW- 13, SI Veer Singh PW-15 and Inspector Ranbir Singh PW-17, proceeded to the house in question where they learnt that the Crl.A.No.69/1999 Page 2 of 24 deceased has been removed to the hospital. Leaving ASI Mahipal Singh PW-7, at the place of occurrence, ACP Satender Nath PW-6, Const. Madan Pal PW-13, SI Veer Singh PW-15 and Inspector Ranbir Singh PW-17, proceeded to the hospital. In the meantime, Abdul Khaliq PW-2, the husband of the deceased, reached the place of occurrence and on learning that the deceased has been removed to the hospital proceeded to the hospital.
6. On reaching the hospital, Inspector Ranbir Singh PW-17, collected the MLC Ex.PW-16/A of the deceased, the relevant portion whereof reads as under:-
"c/o Alleged H/o burnt by husband brother‟s and mother, history given by herself. Pt brought to casuality by PCR."
....
Burns - 100% (approx.) ....." (Emphasis Supplied)
7. On the same day i.e. 13.06.1996 at about 03.00 P.M. the doctor on duty examined the deceased and made an endorsement „unfit for giving statement‟ at point „D‟ on the MLC Ex.PW-16/A of the deceased. Be it noted here that the word „unfit‟ occurring in the aforesaid endorsement has been scored off and the word „fit‟ has been written above the said word and a signature appears near said cutting at point „B‟ on the MLC Ex.PW-16/A of the deceased. These signatures are different that those beneath the certification where „unfit for statement‟ has been recorded and the word „fit‟ written after scoring off „unfit‟ is also in a different hand. Within a span of five minutes from the recording of the aforesaid endorsement, Crl.A.No.69/1999 Page 3 of 24 on the MLC Ex.PW-16/A of the deceased, i.e. at about 03.05 PM Dr.Sujata Pande PW-12, purportedly examined the deceased and declared the deceased fit for statement vide endorsement Ex.PW-12/A on the MLC Ex.PW-16/A of the deceased.
8. Immediately, ACP Satender Nath PW-6, recorded the statement Ex.PW-3/A of the deceased in question-answer form. The statement Ex.PW-3/A of the deceased is recorded in Devnagri script. Translated, it reads as under:-
"Q: What is your name?
A: Muslima.
Q: Who burnt you?
A: Haroon, Iqbal, Gulzar, Barkat and Abdul Wahid. Q: How were you burnt?
A: Kerosene oil was poured on me. Red mug and can were used.
Q: Who lit the matchstick?
A: Barkat set me on fire and she was saying that I should be murdered today.
Q: Who doused the fire?
A: Zafar who works in a plot opposite to my house. Q: Why were you burnt?
A: There is some dispute regarding a house and they want us to vacate the same."
9. After recording the statement Ex.PW-3/A of the deceased, ACP Satender Nath PW-6, obtained the signatures of Abdul Khaliq PW-2, the husband of the deceased, on the said statement. Thereafter Inspector Ranbir Singh PW-17, made an endorsement Ex.PW-17/A on the statement Ex.PW-3/A of the Crl.A.No.69/1999 Page 4 of 24 deceased, and at around 12.45 A.M. handed over the same to Const. Madan Pal PW-13, for registration of an FIR. Const.Madan Pal took the endorsement Ex.PW-17/A to the police station where HC Mohar Singh PW-1, registered FIR No.246/1996 Ex.PW-1/B.
10. Thereafter Inspector Ranbir Singh PW-17, returned to the place of occurrence. On inspecting the place of occurrence, Inspector Ranbir Singh found a plastic can containing very little quantity of kerosene oil, a red colored mug smelling of kerosene oil and some broken pieces of glass bangles from the first floor of the house in question and seized the same vide memo Ex.PW-4/B.
11. On 13.06.1996 at about 07.00 P.M. the deceased succumbed to her injuries.
12. On the same day i.e. 13.06.1996 Inspector Ranbir Singh PW-17, recorded the statement Ex.PW-4/A of Mohd. Zafar under Section 161 Cr.P.C. which purports to implicate the appellants and the deceased appellant Mohd.Iqbal.
13. Since the deceased had indicted accused Mohd. Iqbal, Mohd. Haroon, Abdul Wahid, Barkat Begum and Gulzar Begum as her assailants in her statement Ex.PW-3/A, the police set out to apprehend them. On 13/14.06.1996 the police arrested accused Mohd. Iqbal, Mohd. Haroon, Barkat Begum and Gulzar Begum. The police could not arrest accused Abdul Wahid as he was evading arrest.
14. On 14.06.1996 the body of the deceased was sent to the mortuary where at about 12.15 PM Dr. A.P. Singh conducted Crl.A.No.69/1999 Page 5 of 24 the post-mortem of the deceased and gave his report Ex.PW- 14/A which records that the death of the deceased was caused due to burn shock consequent upon the burn injuries found on the person of the deceased.
15. Armed with the aforesaid materials, the police filed a charge sheet against accused Mohd. Iqbal, Mohd. Haroon, Barkat Begum and Gulzar Begum.
16. Needless to state, the aforesaid accused persons were sent for trial. Charge was framed against them for having committed the offence punishable under Section 302/34 IPC. Since the police could not arrest accused Abdul Wahid he was declared as proclaimed offender by the learned Trial Court and we note that he has since expired.
17. During the course of trial, the prosecution examined 18 witnesses.
18. ASI Rajinder PW-2, deposed that on 13.06.1996 at about 01.00 P.M. he received a wireless message that a quarrel is taking place at house No.436, Shehzada Bagh pursuant to which he proceeded to the said house where he saw that the deceased was lying in a burnt condition in an alley near the staircase of the said house. On being questioned about the conversation he had with the deceased on her way to the hospital, the witness stated (Quote):- „I had asked the name of that lady and she told me her name. Beside this, I had no other talk with lady.‟
19. Abdul Khaliq PW-2, the husband of the deceased, deposed that on 13.06.1996 at about 01.30 P.M. he received Crl.A.No.69/1999 Page 6 of 24 the information that the deceased has been burnt whereupon he reached the place of occurrence and on learning that the deceased has been removed to the hospital he proceeded to the hospital. When the police sought to record the statement of the deceased, the doctor first declared the deceased to be unfit to make a statement. After sometime the doctor again examined the deceased at the request of the police and declared her to be fit to make a statement. Pursuant thereto, the police recorded the statement Ex.PW-3/A of the deceased in his presence and that he appended his signatures on the said statement. On being questioned about the presence of cooking gas in his house he stated that (Quote):- „I have cooking gas in my house so has the Iqbal accd. present in court.‟ On being questioned about the relations between him and the appellants, he stated that (Quote):- „It is correct that a case was regd. against my deceased wife on the complaint of Mohd. Harun accd. U/s. 324 IPC with P.S. Sarai Rohilla. It is correct that proceedings U/s. 107/150 Cr.p.c. were pending before the SDM between myself and accd. Mohd. Iqbal. I have no knowledge whether Iqbal had moved application to the police regarding apprehension of his life and property against me. Vol.: My wife Muslima had lodged a complaint against the accd. persons to the police about 2/3 months prior to the occurrence. It is correct that I have filed Again said: My mother has filed a suit for injunction against accd. Iabal which is still pending. It is correct that I am also one of the pltfs. In that suit....It is correct that my relations with my brother are enemical because of the dispute regarding the house in question.‟ Crl.A.No.69/1999 Page 7 of 24
20. Mohd. Zaffar PW-4, turned hostile and denied having told the police that the deceased had told him that the accused persons had set her on fire. He however deposed that on 13.06.1996 at about 12.45 P.M. he saw the deceased who was engulfed in flames descending from her house situated on the first floor of a house. On seeing the same he rushed to the help of the deceased and doused the fire on the deceased.
21. ACP Satender Nath PW-6, deposed that on receiving the information of the incident, he reached the place of occurrence and on learning that the deceased has been removed to the hospital, proceeded to the hospital. On reaching the hospital, he learnt that the deceased is not fit to make a statement as noted in the MLC Ex.PW-12/A of the deceased. Thereafter he requested the doctor to re-examine the deceased and certify her medical condition upon which the doctor re-examined the deceased and declared her to be fit to make a statement pursuant to which he recorded the statement Ex.PW-3/A of the deceased. On being questioned about the can and mug seized from the place of occurrence the witness stated that (Quote):-
„I did see the spot. Lots of kerosene oil was found spread on the floor, some burnt matchsticks some utensils in which i.e. one Lota and Cane was also found at the spot which gave smell of kerosene oil. It was red colour Lota.‟ On being questioned about the scribe of the statement Ex.PW-3/A of the deceased, he stated that (Quote):- „This Dying Declaration was written by SI Veer Singh on my dictation.‟
22. Dr.Sujata Pandey PW-12, deposed that she had made the endorsement Ex.PW-12/A on the MLC Ex.PW-16/A of the Crl.A.No.69/1999 Page 8 of 24 deceased at about 03.05 P.M. on 13.06.1996. On being questioned about the cutting appearing on the MLC Ex.PW- 16/A of the deceased, she stated that (Quote):- „I cannot say who has written unfit for statement and thereafter who made the cutting on it and portion shown at point B on ex. PW12/A...I cannot identify the hand-writing of the doctor who has written the portion at point B on ex. PW12/A. I do not know whether these endorsement at point B existed on ex. PW12/A when I gave my endorsement at point A. Q. If you had noticed the endorsement at point B, would you have consulted the doctor who had made that endorsement? A. In case, a patient is declared fit or unfit for statement by a doctor than ideally I would not check the patient again, because the doctor is qualified enough to give that opinion but in case of controversy or if any change has been made for any reason, then I would examine the patient as a Senior doctor and give my opinion. I do not remember if there was any controversy in this case. The controversy may be raised by the Inspector also but the controversy has to be brought to my notice by the concerned doctor... I do not remember if any controversy was brought to my notice by any doctor.‟
23. Const. Madan Pal PW-13, deposed that on receiving the information of the incident, he reached the place of occurrence and on learning that the deceased had been removed to the hospital proceeded to the hospital. The statement Ex.PW-3/A of the deceased was recorded in the hospital in his presence. He took the endorsement Ex.PW-17/A to the police station for the purposes of registration of an FIR. On being questioned about the factum of conversation between the deceased and Crl.A.No.69/1999 Page 9 of 24 her husband in the hospital he stated that (Quote):- „Before the ACP had talked with Muslima Khaliq had a conversation with Muslima.‟
24. SI Veer Singh PW-15, deposed that on receiving the information of the incident, he reached the place of occurrence and on learning that the deceased has been removed to the hospital he proceeded to the hospital. On reaching the hospital, he learnt that the deceased is not fit to make a statement as noted in the MLC Ex.PW-12/A of the deceased. Seeing that the deceased was in a condition to talk ACP Satender Nath requested the doctor to re-examine the deceased and certify her medical condition upon which the doctor re-examined the deceased and declared her to be fit to make a statement pursuant to which Inspector Ranbir Singh recorded the statement Ex.PW-3/A of the deceased. On being questioned about the scribe of the statement Ex.PW-3/A of the deceased, he stated that (Quote):- „Statement of Muslima is in the handwriting of Inspector Ranbir Singh‟. On being questioned about the presence of the husband of the deceased Abdul Khaliq in the hospital, he stated that (Quote):-
„When we reached hospital Khaliq was already present‟.
25. Rattan Singh PW-16, Record Clerk, LNJP hospital deposed that the MLC Ex.PW-16/A of the deceased was prepared by Dr.Shanti Bushan and that he can identify the handwriting of the said doctor. On being questioned about the cutting appearing on the MLC Ex.PW-16/A of the deceased, he stated that (Quote):- „There are two doctors by the name of Priti in Crl.A.No.69/1999 Page 10 of 24 the hospital and point B bears the signatures of one of those doctors. I cannot say whose initials are at point D.‟
26. Inspector Ranbir Singh PW-17, deposed that on receiving the information of the incident, he reached the place of occurrence and on learning that the deceased has been removed to the hospital he proceeded to the hospital. On reaching the hospital, he learnt that the deceased is not fit to make a statement as noted in the MLC Ex.PW-12/A of the deceased. Seeing that the deceased was in a condition to talk, ACP Satender Nath requested the doctor to re-examine the deceased and certify her medical condition upon which the doctor re-examined the deceased and declared her to be fit to make a statement pursuant to which he recorded the statement Ex.PW-3/A of the deceased. On being questioned about the mother-in-law of the deceased he stated that (Quote): „I do not know if Banu Begum is the mother of Abdul Khaliq and Iqbal accused. I do not remember if in the initial statement made by Muslima to doctor, she had also named „Mother‟. On seeing M.L.C. Ex.PW-16/A, witness states that word „Mother‟ is mentioned in the alleged history given by the patient to the doctor. Since in her statement made before me Muslima did not disclose about „Mother‟ I did not carry out any investigation in that regard.‟ On being questioned about the certification of the medical condition of the deceased by the doctor(s), he stated that (Quote): „There was time gap of 5 minutes between unfit for statement and fit for statement. No controversy has arisen after Muslima was declared unfit for statement.‟ Crl.A.No.69/1999 Page 11 of 24
27. In their examination under Section 313 Cr.P.C. the appellants denied everything and pleaded innocence. The appellants stated that they were not present in the house in question at the time of the occurrence; that they have been falsely implicated in the present case at the instance of Abdul Khaliq, the husband of the deceased, who was inimically disposed towards them as there was a dispute between them regarding ownership of a property and that so-called dying declaration Ex.PW-3/A of the deceased is a false document.
28. In defence, the appellants examined HC Anil Kumar as DW-1. He deposed that on 15.04.1996 appellant Mohd. Haroon got registered the FIR bearing No.162/1996 under Section 324 IPC against the deceased.
29. Holding that the testimonies of the police officers namely ACP Satender Nath PW-6, Const. Madan Pal PW-13, SI Veer Singh PW-15 and Inspector Ranbir Singh PW-17 and the testimony of the husband of the deceased i.e. Abdul Khaliq PW-2 establishes that the deceased made the statement Ex.PW-3/A soon before her death; and that their testimony was trustworthy and that the contents of the statement Ex.PW-3/A of the deceased which is to be treated as dying declaration of the deceased is a reliable piece of evidence the learned Trial Judge has convicted the appellants as also the deceased appellant Mohd.Iqbal.
30. From the above narrative of facts, it is apparent that the case set up by the prosecution against the appellants is based upon the statement Ex.PW-3/A of the deceased.
Crl.A.No.69/1999 Page 12 of 2431. During the course of the hearing of the present appeals, learned counsel for the appellants seriously challenged the veracity of the statement Ex.PW-3/A of the deceased. The first limb of the argument advanced by the learned counsel for the appellants pertain to the fitness of the deceased to have made the statement Ex.PW-3/A. In said regard, the learned counsel drew attention of this court to the MLC Ex.PW-16/A of the deceased. The counsel highlighted that on 13.06.1996 at about 03.00 P.M. one doctor examined the deceased and found her to be unfit to make a statement to the police as recorded in the endorsement made at point „D‟ on the MLC Ex.PW-16/A of the deceased however five minutes thereafter i.e. at about 03.05 P.M. another doctor namely, Dr.Sujata Pande PW-12 examined the deceased and found her to be fit to make a statement to the police. Counsel urged that what was the occasion or need for Dr.Sujata Pandey to have examined the deceased and certify her medical condition within five minutes of examination of the deceased by the doctor who made the endorsement at point „D‟ on the MLC Ex.PW-16/A of the deceased. Counsel then drew attention of this Court to the circumstance that the endorsement „unfit to give statement‟ made at point „D‟ on the MLC Ex.PW-16/A of the deceased has been converted to „fit to give statement‟. According to the counsel, the aforesaid two circumstances pointed out by him strongly suggest that the deceased was not fit to make a statement and thus the statement Ex.PW-3/A has not come from the mouth of the deceased and is a false document. Counsel highlighted that there is contrivance writ large on the MLC by making cuttings and interpolations to Crl.A.No.69/1999 Page 13 of 24 show that the deceased was fit for statement. The second limb of the argument advanced by the learned counsel for the appellants pertained to the genuineness of the contents of the statement Ex.PW-3/A of the deceased. Counsel highlighted that the deceased and her husband were inimically disposed towards the appellants on account of the facts that there was a dispute between them regarding the ownership of a property and that various litigations, civil and criminal, were instituted by them against each other. Counsel urged that in such circumstances, the possibilities that the deceased falsely implicated the appellants due to her enmity with them or that the husband of the deceased tutored the deceased to falsely implicate the appellants cannot be ruled out. According to the counsel, in that view of the matter, it is not safe to base the conviction of the appellants on the uncorroborated statement Ex.PW-3/A of the deceased.
32. Per contra, learned counsel for the State submitted that there is no rule of law which requires that a dying declaration cannot be acted upon without corroboration. Once the Court is satisfied that the deceased was in a fit state of mind to give a dying declaration and that the declaration was true and voluntary, it can base its conviction on the same without any further corroboration. Counsel further submitted that in any case, one of the recordings contained in the statement Ex.PW- 3/A of the deceased that a can and red mug were used by the appellants to set the deceased on fire is corroborated by the fact that a can containing very little quantity of kerosene oil and a red mug smelling of kerosene oil was found in the place of occurrence, which circumstance lends great credence to the Crl.A.No.69/1999 Page 14 of 24 veracity of the statement Ex.PW-3/A of the deceased. Regarding the fitness of the deceased to have made the statement Ex.PW-3/A, the counsel submitted that there is no reason to disbelieve the evidence of Dr.Sujata Pande PW-12, that the deceased was fit to make a statement to the police when nothing has been brought on record by the appellants to show that Dr.Sujata Pande had an animus towards the appellants and thus had a given false evidence to implicate them in the present case.
33. As recorded in the post-mortem report Ex.PW-14/A of the deceased, the deceased died of burn injuries found on her person. The fact that a can containing little quantity of kerosene oil and red mug smelling of kerosene oil were found from the residence of the deceased suggests that the kerosene oil caused the burn injuries found on the person of the deceased. Whether the deceased committed suicide or is it a case of accidental burning or homicidal burning?
34. The testimony of Mohd. Zaffar PW-4 and Abdul Khaliq PW-2 and the seizure memo Ex.PW-4/B throws light on the said aspect of the matter. As already noted herein above, Mohd. Zaffar PW-4, deposed that on 13.06.1996 at about 12.45 P.M. he saw the deceased who was engulfed in flames descending from her residence situated on the first floor of a house. Obviously the deceased was coming downstairs so that someone would see her engulfed in flames and come to her aid. Had the deceased committed suicide she would not have come downstairs to draw attention to herself but instead remained present in her residence. Abdul Khaliq PW-2, the Crl.A.No.69/1999 Page 15 of 24 husband of the deceased, deposed that there was cooking gas in his house. When there was cooking gas in the house of the deceased, there was no occasion for the deceased to have used kerosene oil for cooking and accidentally burning herself in the process. This leaves us with only one possibility i.e. the present case is of homicidal burning. The seizure memo Ex.PW-4/B records that the police found broken pieces of glass bangles of the deceased in the residence of the deceased on the day of the occurrence, which fact strongly suggests that the deceased broke her glass bangles while struggling to save herself when someone or more than one person was/were pouring kerosene oil on her body and setting her on fire. But the question would be as to who is/are the person(s) who did the offending act?
35. This takes us to an analysis of the statement Ex.PW-3/A allegedly made by the deceased.
36. The statement Ex.PW-3/A made by the deceased to ACP Satender Nath PW-6, if voluntarily and correctly made by the deceased soon before her death undoubtedly has to be treated as dying declaration of the deceased for the same records a statement of fact pertaining to the death of the maker of the statement i.e. the deceased. Thus, the first and foremost question to be posed and answered is, did the deceased make any such statement as claimed by the police officers namely ACP Satender Nath PW-6, Const. Madan Pal PW-13, SI Veer Singh PW-15 and Inspector Ranbir Singh PW-17 and the husband of the deceased Abdul Khaliq PW-2 and was she fit to make a statement.
Crl.A.No.69/1999 Page 16 of 2437. In said regards, the first circumstance which is worth noticing is the endorsement made at point „D‟ on the MLC Ex.PW-16/A of the deceased at about 03.00 PM on 13.06.1996. As already noted herein above, a perusal of the said endorsement shows that the word „unfit‟ has been first written and then scored off and above the said word, the word „fit‟ has been written. In other words, the sentence „unfit for giving statement‟ has been converted to read „fit for giving statement‟. A further perusal thereof reveals that one signature each appear on the points „D‟ and point „B‟. (As already noted in foregoing paras, point B is near the cutting made in the endorsement at point D). The signatures appearing at points „B‟ and „D‟ are of two different doctors, as deposed to by Rattan Singh PW-16, record clerk, LNJP hospital. A visual comparison of the said two signatures show that signatures appearing at point „B‟ is a crude imitation of the free flow of the signatures appearing at point „D‟. From the aforesaid, it is clear that someone has attempted to contrive the endorsement „unfit for giving statement‟ made at point D on the MLC Ex.PW-16/A of the deceased.
38. The second circumstance which needs to be noted is that on 13.03.1996, at about 03.00 PM the doctor who made the endorsement at point D on the MLC Ex.PW-16/A of the deceased examined the deceased and declared her to be unfit to make a statement and that within five minutes thereafter i.e. at about 03.05 P.M. Dr. Sujata Pande PW-12, examined the deceased and declared her to be fit to make a statement.
Crl.A.No.69/1999 Page 17 of 2439. ACP Satender Nath PW-6, Const. Madan Pal PW-13, SI Veer Singh PW-15, Inspector Ranbir Singh PW-17 and Abdul Khaliq PW-2, deposed that Dr.Sujata Pande examined the deceased at the request of ACP Satender Nath PW-6. Let us pause here for a minute. It has come on the evidence on record that on receiving the receipt of the information of the incident, ACP Satender Nath PW-6, reached the place of occurrence and on learning that the deceased has been removed to the hospital proceeded to the hospital and recorded the statement Ex.PW-3/A of the deceased. Having dealt with the roster of criminal appeals pertaining to the offence punishable with imprisonment for life and death from the periods 01.01.2009 to 31.05.2010 and 24.01.2011 to till date we have come across at least five hundred appeals, out of which, in at least fifty appeals the dying declarations were purported to have been made by the deceased. Till date, we have not across any matter where the police officer of the rank of ACP had played a pro-active role in the investigation of a case or taken pains to record the dying declaration of the deceased. What was so special about the instant case that ACP Satender Nath played a pro-active role in its investigation? As already noted herein above, Abdul Khaliq PW-2, the husband of the deceased, appended his signatures on the statement Ex.PW-3/A of the deceased after the recording of the said statement. There was no necessity to have got the statement Ex.PW-3/A of the deceased attested by Abdul Khaliq yet it was done by ACP Satender Nath. Why such overzealousness on the part of ACP Satender Nath to project that the statement Ex.PW-3/A of the deceased is a genuine document? In the Crl.A.No.69/1999 Page 18 of 24 instant case, it has come on the evidence on record that the proceedings under Section 107 Cr.P.C. were instituted against the deceased and her husband Abdul Khaliq at the instance of the appellants. In said proceedings the police officer of the rank of ACP has power to bound down the accused in such proceedings. In such circumstances, the possibility that ACP Satender Nath was acquainted with the husband of the deceased Abdul Khaliq prior to the date of occurrence and that there was some liaison between ACP Satender Nath and the husband of the deceased Abdul Khaliq due to which reason ACP Satender Nath was taking a personal interest in the investigation of the present case, particularly the recording of the statement Ex.PW-3/A of the deceased, cannot be ruled out.
40. For the reason that firstly an attempt has been made to make interpolations on the MLC by cutting and overwriting and forging signatures pertaining to the first certification at 3:00 PM that the patient was unfit for statement by trying to show as if the patient was fit for statement and thereafter within 5 minutes thereof getting it recorded from another doctor that the patient was fit for statement and for unexplainable reasons that an officer of the rank of ACP has taken an unexplainable pro-active role in the investigation coupled with the fact that there is some discrepancy as to who is the actual scribe of the statement Ex.PW-3/A compels us to give the benefit of doubt to the appellants on the issue of the fitness of the deceased to make any such statement. Qua the discrepancy in the evidence as to who scribed the statement it needs to be highlighted that ACP Satender Nath PW-6, deposed that he had dictated the said statement to SI Veer Singh who had written Crl.A.No.69/1999 Page 19 of 24 the same, whereas SI Veer Singh PW-15 and Inspector Ranbir Singh PW-17, deposed that Inspector Ranbir Singh had recorded the statement Ex.PW-3/A of the deceased.
41. The cumulative of trinity of the afore-noted circumstances pointed out by us namely, contrivance in the endorsement „unfit for giving statement‟ made at point D on the MLC Ex.PW-16/A of the deceased; conduct of Dr.Sujata Pande of examining the deceased within just five minutes of her examination by the doctor who made the endorsement at point D on the MLC Ex.PW-16/A of the deceased; the pro-active role played by ACP Satender Nath in the investigation of the present case and recording the statement Ex.PW-3/A of the deceased; the overzealousness on the part of ACP Satender Nath to project that the statement Ex.PW-3/A of the deceased is a genuine document and the discrepancy in the evidence regarding the scribe of the statement Ex.PW-3/A of the deceased compels us to doubt the veracity of the case of the prosecution that the deceased was in a fit condition to make any statement. While so stating, we are conscious of the law that the courts ordinarily should not reject the evidence of the doctor that the deceased was in a fit condition to make a statement for a doctor has no animus against the accused persons and thus would not lie to falsely implicate them. However, at the same time, the law also requires the court to fully satisfy itself that the deceased was in a fit condition to make a statement and where there is even a slightest doubt regarding the fitness of the deceased to make a statement the court should reject the dying declaration. In a case predicated upon a dying declaration it is most imperative that the fitness Crl.A.No.69/1999 Page 20 of 24 of the deceased to make a dying declaration should emerge with clarity.
42. There is another angle to the issue of the veracity of the statement Ex.PW-3/A of the deceased.
43. The law relating to a dying declaration may be stated thus: a dying declaration is a piece of evidence. The worth of a dying declaration has to be considered as any other evidence. It stands on a slightly higher footing because law believes that he/she who is going to meet the Almighty would not be telling a lie. But, if there is evidence which discredits statements made in a dying declaration or casts a doubt on the authenticity of the statements made in a dying declaration or where there is evidence that the maker of the dying declaration has a motive to falsely implicate the person against whom accusations are made or that the maker of the dying declaration was tutored, the court would look into other evidence to corroborate a dying declaration.
44. In the instant case, it has come on the evidence on record that deceased and her husband were inimically disposed towards the appellants on account of the facts that there was a dispute regarding the ownership of a property and that various litigations, civil and criminal, were instituted by them against each other. Thus, there is a possibility of her falsely implicating the appellants as she had a motive to do so. It is equally possible that the deceased was tutored by her husband Abdul Khaliq to falsely implicate the appellants. SI Veer Singh PW-15, deposed that Abdul Khaliq was already present in the hospital at the time when he and other police Crl.A.No.69/1999 Page 21 of 24 officers reached there. Const. Madan Pal PW-13, deposed that Abdul Khaliq had a talk with the deceased prior to the recording of the statement Ex.PW-3/A of the deceased by ACP Satender Nath. From the said two depositions, it is clear that Abdul Khaliq had sufficient opportunity to tutor the deceased.
45. It assumes importance that ASI Rajinder PW-2, was the first police officer who met the deceased after the incident. ASI Rajinder deposed that he removed the deceased to the hospital; that the deceased told her name to him on their way to the hospital and that there was no other talk between him and the deceased on their way to the hospital. The fact that the deceased told her name to ASI Rajinder on their way to the hospital shows that the deceased was in a position to talk at that time. It is natural for ASI Rajinder to have asked the deceased regarding the incident and the fact that the deceased told nothing to ASI Rajinder is of some significance. Another thing of significance is the recording on the MLC by the doctor who examined the deceased at the first instance that the patient gave history of being burnt by husband brothers‟ and mother, which we read to possibly mean brothers of the husband and his mother. In Ex.PW-3/A there is no reference to the mother and in place, the wives of the two brothers-in-law and the son of one of them finds a mention. This fact is also important keeping in view the fact that the stated dying declaration implicates the entire two families who were inimical towards the husband of the deceased i.e. the two brothers of the husband of the deceased, their wives and the son of one of them. The statement being motivated to Crl.A.No.69/1999 Page 22 of 24 seek vengeance and bring within the clutches of law even innocent persons cannot be ruled out.
46. The fact of the matter is that the deceased had died a homicidal death and we are grappling with the question: Who caused the death of the deceased. There is uncertainty in the facts of the present case as to whether all the appellants or only some of them, and, if so, which of them, caused the death of the deceased. A situation akin to the present case arose before the Supreme Court in the decision reported as Sawal Das v State of Bihar (1974) 4 SCC 193. In the said case, the husband, mother-in-law and father-in-law of the deceased were charged with the offence of murder of the deceased. The learned Trial Court convicted the three accused persons whereas the High Court acquitted the mother-in-law and father-in-law of the deceased and convicted the husband of the deceased. Aggrieved by the judgment of the High Court, the husband of the deceased filed an appeal before the Supreme Court. It was held by the Supreme Court that since there was an uncertainty in the facts of the case as to whether all the three persons accused of murder of the deceased or only one of them, and if so, which of them, committed the murder of the deceased the husband is entitled to get benefit of said uncertainty and acquitted him of the charge of the murder of the deceased.
47. In view of the above discussion above, we return the verdict that although the crime took place in the house of the deceased which was on the first floor of the building and the deceased was doused with kerosene and set on fire by some Crl.A.No.69/1999 Page 23 of 24 family members, but we are unable to identify as to who they were and thus regretfully we are compelled to acquit all the appellants for the reason law requires that even if one innocent person cannot be identified and hence let off, notwithstanding a few accused being required to be let off, the compulsion of law would be to let off all. The appeal is accordingly allowed. Impugned judgment and order dated 27.1.1999 convicting the appellants is set aside and the appellants, by giving them the benefit of doubt, are set free. The bail bonds and the surety bonds furnished by the appellants at the time they were admitted to bail are discharged.
(PRADEEP NANDRAJOG) JUDGE (SURESH KAIT) JUDGE APRIL 05, 2011 dk Crl.A.No.69/1999 Page 24 of 24