R.S. Sodhi, J.@mdashCriminal Appeal No. 87 of 1984 has been filed by the State challenging the judgment and order dated 24.12.1983 of the Additional Sessions Judge in Sessions Case No. 78 of 1983, arising out of FIR No. 512 of 1982, Police Station, Kalkaji, u/s 302 IPC acquitting the respondents of the charges framed. During the pendency of the appeal, it has transpired that Smt. Tara Mati, respondent No. 2, has died. The appeal against her; therefore, abates.
2. The case of the Prosecution, as noted by the learned Additional Sessions Judge in the impugned judgment, is:
that on 21.6.82 at about 2:40 a.m., Meena was admitted in a burnt condition in Safdarjung Hospital. Constable Jai Parkash, the duty officer in the said hospital flashed that information to P.P. Dakshin Puri, on the basis of which D.D. No. 27 was recorded there. Subsequently, S.I. Harsh Wardhan, incharge of that P.P. was informed and they rushed to the said hospital, After getting the permission of the doctor, who was attending to the said Meena that she was in a fit condition to make a statement, the said S.I. recorded her statement. In the said statement, Meena alleged that she belonged to a poor family and as such could not bring enough dowry to the house of her husband - accused Hori Lal on account of which she was contently harassed and maltreated by her husband andher mother-in-law, She further alleged that on that night-that is on the night of 20.6.82, her husband dragged her inside the house, poured kerosene oil over her while his mother, co-accused Tara Mati said that she should be burnt. She further mentioned there that her husband then lit a match stick and burnt her. After having so recorded the. statement of injured Meena, S.I. Harsh Wardhan made his own endorsement below that statement, and sent, the same to P.S. Kalkaji for registration of the case. On the basis of that statement, case F.I.R. No. 512 u/s 307/34 IPC was registered. Thereafter the said S.I. informed the ACP of the area on phone about the facts of the case. On the advice of the ACP, one Metropolitan Magistrate (Shri O.P. Gogne) was taken to the-hospital where he himself recorded another statement of injured Meena. Thereafter, the said S.I. went to the scene of occurrence, lifted one litre flit tin smelling kerosene oil, some burnt pieces of Saree, a match box and some broken pieces of bangles from there. Those articles were separately packed and sealed and were ultimately deposited in the Malkhana. Injured Meena expired in the hospital on 22.6,82 at about 1:30 p.m. Statement of witnesses were recorded by S.I. Harsh Wardhan. Subsequently, the investigation of the case was transferred to inspector Mohinder Singh. The said inspector on coming to know about the death of Meena went to the hospital, obtained her dead body and prepared the inquest report. Thereafter, the said dead body was sent for postmortem examination to the mortuary at All-India Medical Institute of Sciences. Accused Hori Lal and his mother Tara Mati were arrested. The sealed parcels containing the case property were sent to CFSL, R.K. Puram for chemical examination. After the receipt of the report from CFSL regarding those articles and after completion of investigation, both the accused persons were sent up under a charge sheet, to the court of the concerned M.M. On 17.9.82.
Shri V.K. Shali, learned M.M., New Delhi committed the case to the Sessions vide his order dated 18.12.82.
3. The Prosecution, in order to establish its case, examined as many as 20 witnesses. The star witness of the Prosecution is PW-2, Shri Arjun, son of Shri Baley, who has deposed to the effect that he is a resident in the neighbourhood where the incidence took place and that on the the night intervening 20/21.6.1982, while a religious function was in progress, he noticed flames from the house of the accused, Hori Lai, and at that time both the accused, Hori Lal and his mother (since deceased), were seen standing outside their house. He has further deposed that o,ne Arjun Mehta;-another neighbour, broke open the door of the room of the accused and with the help of others took out Meena, wife of the accused, Hori Lai, from there. According to this witness, he himself and Hori Lal removed the deceased, Meena, to Safdarjung Hospital. He signed the inquest papers, Ex.PW-1/A. He also is a witness to the recovery of the match box, small container, broken pieces of bangles etc. which were seized vide seizure Memo Ex. PW-2/A and identified his signatures.
4. In cross-examination, this witness admitted that when he saw flames coming out from the house in question, Hori Lal and his mother were standing outside the house and shouting "jal gai jal gai, bujao bujao and bachao bachao''. He admitted that the door of the house was broken open in order to bring out Meena and efforts were made to extinguish the flames. In fact, according to this witness, Hori Lal put an old rug/quilt around burning Meena. He further admits that at no point of time Meena raised an alarm. He also goes on to admit that Angoori and her husband, Pritam, reached the-spot when the others had taken out Meena from the house of the accused and were in the process of removing her to the hospital. Angoori and Pritam were also in the hospital at about 3.00 a.m. When this witness returned.
5. PW-12, Sh. Kamla Mehto, Record Clerk of Safdarjung Hospital, proved the MLC, Ex.PW-12/A, pertaining to Meena. This witness identified the signature of Dr. R.K. Sharma who had examined the injured, Meena. He also proved the MLC, Ex. PW-12/B, pertaining to Tara Mati as also the application, Ex. PW-12/C moved by the Investigating Officer seeking permission to record the statement of Meena. The witness, however, admitted that he had no personal knowledge about any of the endorsements made on the MLCs and that none of the patients was examined in his presence and his duty is only clerical in nature.
6. PW-13, Shri O.P. Gonge, the Metropolitan Magistrate, New Delhi, on 21.6.1982, deposed that Ex. PW-13/A was marked to him by the ACMM, New Delhi, vide endorsement, Ex. PW-13/B, for recording statement of Meena. The witness obtained endorsement, Ex.PW-12/E of Dr. Ajay Kumar and recorded the statement, EX.PW-13/C, of Meena. In cross-examination, he admitted to have gone to the Hospital on 21.6.1982 at about 6.00 a.m. in Police jeep along with the Investigating Officer of this case. He also admitted that Meena at that time was in the General Ward where there were other patients, but denied the suggestion that she was prompted by her relatives, Angoori and Pritam.
7. It was contended by counsel for the State that the trial court ought not to have discarded the dying declaration of Meena which had been recorded by the Metropolitan Magistrate at a time when Meena was fit to make a statement. He further submitted that Meena had implicated the accused persons even in her statement to the Doctor as recorded in the MLC. The court ought to have given due weight to the dying declarations.
8. We have heard counsel for the parties and have carefully examined the record of the case. We find that the Doctor who recorded the MLC has not been produced. It was only this Doctor who could have proved what was said to him by Meena at the time of preparing of the MLC. The statement of Meena to the Doctor has, therefore, not been proved and MLC by itself is not the evidence of its contents. The nature of injuries, namely, 100 per cent burns all over the body including the head and face, makes it highly doubtful that Meena would be in a fit condition to speak. Similar is the case with the dying declarations recorded by the Investigating Officer and the Metropolitan Magistrate. The endorsements that Meena was fit to make a statement have not been proved by the Doctor who made such an endorsements. There is nothing on record to show that the said Doctor was not available. Even otherwise, there is discrepancy in the statement made by Meena before the Investigating Officer and before the Metropolitan Magistrate regarding the role of Tara Mati. Further, the fact that PW-2 himself has admitted that the respondents were outside the room and the door had to be broken open to extract Meena from the flames goes to show that Hori Lal was not present in the room when Meena caught fire. The door of the room was bolted from within and had to be broken open.
9. The Investigating Officer, in his statement, has also not cared to clarify whether the door-bolt was found broken or was intact. His wishy-washy statement to this effect does not, in any manner, further the case of the Prosecution. The trial court has evaluated the evidence on record on the touchstone of law enunciated by the Supreme Court for which it cannot be faulted. The dying declarations do not inspire confidence and are in contrast to the evidence led by the Prosecution by way of PW-2.
10. In that view of the matter, we find no reason to fault the judgment of the trial court nor differ with it. The judgment under challenge is, accordingly, upheld and the appeal dismissed.
