S.P. Garg, J.@mdashShakuntala (the appellant) challenges correctness of a judgment dated 03.01.2011 of learned Additional Sessions Judge in
Sessions Case No. 68/2009 arising out of FIR No. 480/2008 PS Jahangir Puri by which she was held guilty for committing offence punishable u/s
304 Part-I IPC. By an order dated 10.01.2011, she was sentenced to undergo RI for seven years with fine Rs. 5,000/-. Allegations against the
appellant-Shakuntala were that on the night intervening 25/26.09.2008 at about 01.30 A.M. she poured acid on her husband Rattan Lal at jhuggi
No. A-408, behind ITI, K Block, Jahangir Puri. Daily Diary (DD) No. 5B (Ex. PW-9/A) was recorded at PS Jahangir Puri at 02.29 A.M. after
getting information from Duty HC Umed Singh, Babu Jagjivan Ram Memorial Hospital (in short BJRM Hospital) that Rattan Lal''s wife had
poured acid on him and he was admitted at BJRM Hospital. The investigation was assigned to ASI Vijender Singh who with Const. Devender
went to the spot. He recorded Rattan Lal''s statement in the hospital after declared fit to make statement. In his statement (Ex. PX), Rattal Lal
disclosed to the Investigating Officer that at 01.30 A.M. his wife Shakuntala poured acid on him. He also attributed motive for causing burn injuries
with acid by her. ASI Vijender Singh lodged First Information Report for commission of offence u/s 326 IPC. Rattan Lal succumbed to the injuries
on 28.09.2008. Post-mortem examination was conducted on the body. During investigation, statements of the witnesses conversant with the facts
were recorded. Shakuntala was arrested. The exhibits were sent to Forensic Science Laboratory and report was collected. After completion of
investigation, a charge-sheet was submitted against the appellant-Shakuntala for committing the offence u/s 304 Part-I IPC. She was duly charged
and brought to Trial. The prosecution examined sixteen witnesses to prove her guilt. In her 313 statement, she pleaded false implication. On
appreciating the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, held the appellant
guilty u/s 304 Part-I IPC and sentenced her. Being aggrieved, she has preferred the appeal.
2. The appellant''s counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in
relying upon hearsay evidence. It ignored the vital discrepancies and contradictions in the testimonies of the prosecution witnesses without valid
reasons. In her 313 statement, the appellant specifically disclosed as to how and under what circumstances Rattan Lal sustained burn injuries in the
bathroom. However, the defence version was not given any weightage. The Investigating Officer did not make sincere efforts to record victim''s
statement u/s 164 Cr.P.C. by SDM/ MM. He did not associate doctors or nurses on duty while recording the alleged dying declaration of the
victim. It is unclear that the victim was in a fit state of mind to make statement (Ex. PX). The prosecution witnesses have given inconsistent version
regarding lock put outside the jhuggi where the incident occurred. Dying declaration recorded by the Investigating Officer is not reliable and cannot
be acted upon. The prosecution did not establish appellant''s motive to pour acid upon her husband. Recovery of the articles is doubtful. The
appellant did not flee the spot and was present in the hospital. The mattress was not found burnt. The source from where the acid was procured
could not be established. Learned APP for the State urged that testimony of PW-1 (Naveen), PW-3 (Chandu) and PW-10 (Islam) coupled with
dying declaration (Ex. PX) recorded by the Investigating Officer at the first instance are sufficient to establish the guilt of the accused.
3. I have carefully considered the submissions of the parties and have examined the relevant materials. It is not under challenge that Rattan Lal and
Shakuntala lived together at jhuggi No. A-408, K Block, Jahangir Puri. It is also not in controversy that at the time of incident on the night
intervening 25/26.09.2008 only the victim and Shakuntala were present inside the jhuggi. In her 313 statement, she admitted that on 25.09.2008
her husband Rattan Lal came at the jhuggi at night. She did not claim if anybody else was present that night inside the jhuggi. It is also not disputed
that Rattan Lal sustained burn injuries due to acid on his body. She however pleaded that on that night Rattan Lal came drunk at the jhuggi and had
sexual intercourse with her. After the sexual intercourse, she went inside the bathroom to pass urine. Rattan Lal who was naked and under the
influence of liquor, came in the bathroom; tried to pull her and abused her. In the process, the plastic can lying on the shelf in the bathroom fell
down and the acid fell on him. Rattan Lal kept abusing her and tried to throw the acid on her. Some acid fell on her clothes. With great difficulty,
she managed to escape, came out of the jhuggi and went to the police station after locking the door of the jhuggi from outside. She was falsely
implicated thereafter by the police. The defence was taken for the first time by the appellant in her 313 statement only. No such question was put in
the cross-examination of any prosecution witnesses examined before the Court. The appellant did not produce any witness from the
neighbourhood in defence to substantiate her defence. She alleged that the appellant had come to the jhuggi that night after consuming liquor and
was under its influence when he sustained burn injuries. MLC (Ex. PW-14/A) was made/written when Rattan Lal went to BJRM Hospital on
26.09.2008 at 02.15 A.M. It (MLC) does not reveal if there was smell of alcohol or the victim was under the influence of alcohol. No such
suggestion was put to PW-14 (Dr. Seema) in the cross-examination. PW-15 (Dr. Amit Sharma) who conducted post-mortem examination on the
body also did not find any alcohol. It falsifies the appellant''s plea that the victim was under the influence of alcohol at the time of occurrence. When
the victim had sexual intercourse with her (the appellant) with her consent as alleged, there was no occasion for the victim thereafter to follow her in
the bathroom where she had gone to pass urine and to pick up quarrel with her without any apparent reason. She did not elaborate as to what had
prompted the victim to quarrel with her in the bathroom. She was medically examined on 26.09.2008. MLC (on record) shows that no injuries
due to acid were found on her body. The defence version inspires no confidence and deserves outright rejection. Had the victim sustained injuries
due to fall of acid accidentally, natural conduct of the appellant would have been to raise alarm and to take him to the hospital at the earliest. She
was not expected to close the door of the jhuggi and to run to the police station as alleged. This conduct is quite unreasonable and unjustified.
4. PW-10 (Islam) lived in a jhuggi adjacent to the appellant''s jhuggi and run a shop selling DVDs at C Block, Jahangir Puri. He deposed that on
the night intervening 25/26.09.2008 at about 01.30 A.M. on hearing cries, he came out of the jhuggi and saw Rattan Lal coming out of his jhuggi.
He was naked and was shouting that his wife Shakuntala had poured tejab on her. He then ran to BJRM Hospital. He was shouting that his wife
had locked him after pouring acid on him. He further deposed that quarrels used to take place between the accused and her husband and she
suspected him (Rattan Lal) of having illicit relation with other woman. In the cross-examination, he fairly admitted that acid was not poured in his
presence. He himself did not open the door of the jhuggi. He came to know from others that the accused used to suspect her husband having illicit
relation with another woman. Over all testimony of this witness reveals that from the victim himself, he came to know that Shakuntala, his wife, had
poured acid on him. Presence of the witness at the spot being neighbour is quite natural and probable. It was natural for him to come out of jhuggi
after hearing the cries at odd hours. He saw Rattan Lal running naked towards BJRM Hospital. Material facts deposed by him remained
unchallenged in the cross-examination. PW-3 (Chandu) in his testimony also spoke about his presence that time. MLC (Ex. PW-14/A)
corroborates his version as Rattan Lal admitted himself in the hospital at 02.15 A.M. PW-3 (Chandu) another witness living in the neighbourhood
also deposed on similar lines. He also stated that at about 01.30-02.00 A.M. on the night intervening 25/26.09.2008, he came out of his jhuggi
after hearing Rattan Lal''s screams and saw that he (Rattan Lal) was running out of his jhuggi and was naked that time. He had burn injuries on
abdomen due to acid and was shouting ''Shakuntala ne mere uper tejab dal diya''. In the cross-examination, he admitted that the acid was not
thrown upon the victim by the appellant in his presence. He elaborated that the police came at the spot at 03.00 A.M. and by the time the injured
had already gone to the hospital. Rattan Lal himself ran to the hospital alone. He explained that he could not get any opportunity to help him as he
went running. In the absence of any prior animosity, the credibility of this independent witness cannot be doubted. He had no ulterior motive to
falsely implicate the accused who was living with her husband in his neighbourhood. His presence at the spot was not challenged in the cross-
examination.
5. The police machinery came into motion when PW-12 (HC Umed Singh) informed on phone to the Duty Officer at PS Jahangir Puri that one
Rattan Lal was admitted in the hospital and had complained that his ''wife'' had poured ''tejab'' on him. DD No. 5B (Ex. PW-9/A) records this
fact. It corroborates the version given by PW-3 and PW-10. PW-16 (SI Vijender Singh) recorded victim''s statement (Ex. PX). MLC (Ex. PW-
14/A) reveals that at the time of admission the patient was conscious and oriented. It is not in dispute that after sustaining burn injuries, the victim
had run towards BJRM Hospital and had got himself admitted. It is not the appellant''s case that the victim was unconscious or was not fit to make
statement. PW-16 (SI Vijender Singh) lodged First Information Report u/s 326 IPC. Since the injuries sustained by the appellant were not
sufficient to cause death in the ordinary course of nature, it appears that PW-16 did not consider it fit to record his statement u/s 164 Cr.P.C. from
SDM. He made endorsement (Ex. PW-16/A) and lodged First Information Report at 03.40 A.M. without inordinate delay. The version given by
the victim in Ex. PX cannot be suspected. SI Vijender Singh had no ulterior motive to fabricate statement (Ex. PX). In Ex. PX, the victim
categorically named his wife Shakuntala to have poured acid upon him as a result of which he sustained burn injuries on his body. He also
attributed motive to her for pouring acid. Rattan Lal succumbed to the injuries and died on 28.09.2008. Post-mortem on the body was conducted
by PW-15 (Dr. Amit Sharma). Vide post-mortem report (Ex. PW-15/A) the cause of death was opined as shock due to burn injuries consequent
to ante-mortem corrosive burns.
6. In State of Karnataka Vs. Shariff, , the Supreme Court categorically held that there was no requirement of law that a dying declaration must
necessarily be made before a Magistrate. Hence, merely because the dying declaration was not recorded by the Magistrate in the instant case, that
by itself cannot be a ground to reject the whole prosecution case. It is equally true that the statement of the injured, in the event of his death may
also be treated as FIR/ dying declaration. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly it can base its
conviction without any further corroboration. In this case, the deceased had no ulterior motive to falsely implicate his wife and to exonerate the real
culprit. There is no inconsistency in the version narrated and deposed by PW-3, PW-10, PW-12 & PW-16 regarding the complicity of the
accused in the incident.
7. In Paras Yadav and others Vs. The State of Bihar, , the Supreme Court held that lapse on the part of the Investigation Officer in not bringing the
Magistrate to record the statement of the deceased should not be taken in favour of the accused. The Supreme Court further held that a statement
of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying
declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was
conscious and was in a fit state of health to make the statement.
8. Discrepancies/contradictions highlighted by appellant''s counsel are not material to discard the prosecution case in its entirety. At the time of
occurrence, only the appellant and the victim were together inside the jhuggi. It was imperative for the appellant to establish u/s 106 Evidence Act
as to how and under what circumstances, the victim sustained burn injuries. The appellant''s conduct is unreasonable. Instead of taking him to the
hospital without delay to provide medical aid, she locked the door of the jhuggi from outside and allegedly went to the police station. The
appellant''s false implication at PW-1 (Naveen)''s instance as alleged is not believable. PW-1 (Naveen), victim''s son from the previous marriage
lived separate with his ''mausi'' at Bhalaswa Dairy. He deposed that the appellant quarreled with his father on his providing money for their
maintenance. PW-1 (Naveen) or his relative were not present at the spot and had came to know about the incident only after the victim sustained
injuries. There are no allegations that PW-1 (Naveen) instigated the victim to make statement (Ex. PX). The findings of the learned Trial Court
whereby the appellant was convicted u/s 304 Part-I IPC are based upon sound reasoning and do not call for interference and are affirmed.
9. The appellant was sentenced to undergo RI for seven years with fine Rs. 5,000/-. She is to undergo SI for six months in default of payment of
fine. It is informed that she has no issue and is in custody from the very beginning. Nominal roll dated 10th January, 2012 reveals that she has
already undergone three years, three months and thirteen days incarceration as on 10th January, 2012. She also earned remissions for four months
and five days. Her over all jail conduct is satisfactory. She is not a previous convict and is not involved in any other criminal case. Considering the
facts and circumstances of the case and the mitigating circumstances, in the interest of justice, the order on sentence is modified and the substantive
sentence of the appellant is reduced to six years with fine Rs. 2,000/- and failing to pay the fine to undergo SI for one month. She will be entitled to
benefit u/s 428 Cr.P.C. The appeal stands disposed of in the above terms. Trial Court record be sent back forthwith.