R.S. Sodhi, J.@mdashCriminal Appeal 936 of 2002 challenges the judgment dated 26.10.2002 of the Additional Sessions Judge, Delhi, whereby the learned Judge has held the appellant, Sanjay Tanwar guilty of the offence u/s 302 IPC and by his order dated 11.11.2002 sentenced him to life imprisonment together with a fine of Rs. 10,000/- (rupees ten thousand) and in default of payment thereof to undergo further rigorous imprisonment for a period of six months.
2. Brief facts of the case as have been set out by the learned Additional Sessions Judge are as follows:
On 21.04.2001 at about 10.42, police control room received an information that at WZ-383, village Naraina, a women had burnt herself. Immediately, PCR van went to place, WZ-383 and they found one women lying in burnt condition in the house. Women was removed to hospital. Local police was also informed. SI Bharamjeet along with constable reached the spot to find that lady has been already removed to hospital. He went to hospital. In the hospital, he found that lady has already been admitted in the hospital. She was in a fit state to make statement. So, he recorded her statement. From her statement, he learnt that she has been burnt by her husband Sanjay, who used to be instigated for beating her by her mother-in-law Balbiri. Finding that women was burnt 98%, he informed SHO as well as SDM to reach hospital for recording statement of injured women. The MLC of the women was prepared by Dr. Anuj Aggarwal who was in the casualty. Burnt women told him at the time of MLC that her husband Sanjay poured petrol over her and set her on fire with lighted match stick. He used to beat her and asked her for dowry. Somebody informed police and police reached at the spot and brought her to hospital. IO made application to the doctor to find out fitness of witness. Doctor opined that she was fit for making statement. SDM reached hospital and he recorded statement of Raj Kumari who was lying in burnt condition in the hospital. In her statement to SDM, she stated that she was married to Sanjay about 6 years ago. She having two sons out of marriage. Her elder son was Subham of 5 years and younger son Vishal, aged 3 years. Her husband, after two years of marriage, had started beating her at the instance of her mother-in-law Balbiri. Her mother-in-law used to tell him that he should beat her so that she was compelled to obtain divorce from him. Her husband daily used to beat her after taking drinks. On 21.04.2001 (date of incident), her husband started taking liquor since morning. She forbid him from drinking several times but with no result. At about 10 pm, when she lastly forbid him from taking drinks, he took wooden spoon and started beating her. After 10/15 minutes, he brought petrol cane which was lying there for running generator and poured petrol over her and then ignited her with burning match stick. On being burnt like that, she started crying loudly and ran out. Her husband poured oil on her with intention to kill her and then burnt her to kill. After statement of Raj Kumari was recorded by SDM, IO made endorsement and got a case u/s 307 registered against accused Sanjay vide FIR No. 81/01. Raj Kumari could not survive the burns and she expired in the morning hours of 23.01.2004, after 30 hours of her burning. After her death, the case was converted from 307 to 302 IPC. Accused Sanjay was arrested by the IO. Accused Balbiri obtained anticipatory bail and was formally arrested. IO got the spot photographed. Crime team reached the spot of occurrence. One bottle containing small quantity of liquor, one tumbler, a cane of kerosene oil, broken bangles, bed-sheets, blood stains from the wall and other articles from the spot were seized by the IO and after completing investigation, challan was filed against both the accused persons for trial. Accused Sanjay and Balbiri were charged u/s 498A read with Section 120B and accused Sanjay was charged u/s 302 read with Section 120B IPC. Accused Balbiri was alternatively charged under Sections 100/109/112/113 read with Section 498A and 302 IPC for instigating accused Sanjay to perpetuated cruelty on Raj Kumari and cause her death. Both the accused persons pleaded not guilty and claimed trial.
3. The Prosecution in order to prove its case examined as many as 21 witnesses while the defense examined two witnesses.
4. PW-1, Smt. Bala Devi is the mother of Raj Kumari. She was examined in-chief but was not tendered for cross-examination. PW-2, Harish Kalra testifies that he is the neighbour of Sanjay Tanwar and lives in the same house in second floor while the appellant, Sanjay Tanwar lives on the ground floor. On 21.04.2001 at about 10.00 p.m. he shut his shop and had come home. While at home he had just begun having his meals, he saw a light flashing in the courtyard. He immediately went down and found Sandeep, a tenant in the first floor, was filling a bucket of water. This witness advised him that it would be better to take a blanket. The witness himself picked up a blanket and came down. He saw Raj Kumari burning. By the time he reached close to Raj Kumari she had already fallen near the main gate. The witness put a blanket over her to suffocate the flames. This witness goes on to say that he did not see Sanjay Tanwar with Raj Kumari nor was the mother of Sanjay living with Sanjay. Upon this he was cross-examined by the Public Prosecutor since he was resiling from his previous statement. With permission of the Court, the Public Prosecutor put leading questions. The witness denied that he had heard sounds of quarrel from the house of Sanjay Tanwar. He also denied that he had told the Police that whenever Balbiri, the mother of the appellant visited the appellant, she used to quarrel with Raj Kumari on this aspect that his previous statement u/s 161 Cr.P.C. by the Prosecutor. The witness was further cross-examined by counsel for the accused. He stated that he had gone in the verandah where the burning incident had taken place. He had not gone inside the house of the accused. He had seen one stove, one pateela and noticed smell of kerosene oil. At this point the court intervened and put questions to this witness who stated that every floor has a kitchen and the food is prepared in the kitchen and also that the accused as also the witness have a gas connection on which cooking is done.
5. PW-3, Ashish Kumar states that the accused present in court is his landlord. This witness was present in the house when he found that on the ground floor some fire had started. This witness thought it was a short circuit. He immediately called for help at No. 100 informing that a fire had broken out. When this witness came down he was informed that it was a case of human burning. He goes on to say that he felt nauseated and went back to his room and lay down. The witness was sought to be put leading questions since he had resoled from his previous statements. He was confronted with the same, where he had earlier stated so.
6. PW-4, ASI Brahama Nand deposes to the effect that he was posted as Duty Officer at Police Station Naraina from midnight to 8.00 a.m. At about 3.10 a.m. Rukka was received by him sent by S.I. Braham Jeet through Constable Varinder, on which he recorded F.I.R. No. 81/2001, Exhibit PW-4/A. After registration of the F.I.R a copy of the same and original rukka was given back to the Constable for giving it to the Investigating Officer.
7. PW-5 is Sudhir Kumar, the brother of the deceased, Raj Kumari. He deposes that his sister, Raj Kumari was married to Sanjay Tanwar. Smt.Balbiri Devi the other accused was mother-in-law of Raj Kumari. Raj Kumari had two sons. She was married to the accused, Sanjay Tanwar about six years prior to the incident. For about two years after the marriage the couple lived happily till his habit of drinking overtook him. The accused used to quarrel with Raj Kumari, his sister, after taking drinks and used to beat her. This witness goes on to depose that Balbiri Devi had no interference. He deposes that on 21.04.2001 at about 11.30 p.m. he received information about burning of his sister. He immediately rushed to the house of his sister by which time she had already been removed to the hospital. However, he saw the accused, Sanjay Tanwar heavily drunk. At this state the Public Prosecutor sought to put leading questions to the witness since he had resoled from his earlier statement. He denied that he told the Police that Sanjay used to beat his sister at the instance of his mother Balbiri Devi. He was confronted, where it was so recorded. He denied that Sanjay had voluntarily told him that he would leave his sister. He was told by his sister that Sanjay used to threaten to leave her. He further states that he had reached the house within fifteen minutes of information and saw neighbours collected there. When he reached Sanjay Tanwar had come in a drunken condition within two minutes. This witness states that he left for the hospital and reached there when his sister was being taken out of the van. He remained with her thereafter. He also deposes that his sister did not tell him anything as she was not in a condition to do so. She also states that in his presence his sister did not make any statement to the SDM or the Police Officer. Regarding his statement to the police he states that he had signed a blank paper at the instance of the Police but admitted that his sister used to sign in Hindi and English. He also admitted to a court question that he had sense enough to know that he should not sign blank papers.
8. PW-7 is Shri Peter Bara, who was posted as SDM, Vasant Vihar in April, 2001. He received a telephone call on the night intervening 21st and 22nd April, 2001, that a lady, Raj Kumari had been admitted in a burnt condition in Safdarjung Hospital and that he should come and record her statement. The SHO and IO came to his house and he accompanied them to Safdarjung Hospital. This witness goes on to say that when he reached the Hospital he found the patient was speaking loudly, perhaps on account of the incident being fresh. The Investigating Officer had already taken certificate from the duty doctor about the fitness of the patient. After reaching the hospital he talked to the burnt patient Raj Kumari as to how the incident had happened. Whatever Raj Kumari stated was got recorded by this witness and the same read over. In token of its correctness, Raj Kumari put her thumb impression as also affixed her signatures. The SDM himself also signed the statement so recorded as Exhibit PW-7/A. In cross-examination this witness admits that he had not received a written request from either the doctor or the police. However, he had received a telephone call around 1.30 a.m. at night and the Hospital is barely one kilometer from his house. He further states that he made enquiries from the deceased by questioning her and had found that she was in perfect mental equilibrium and was having sense of reasoning. He denied that the patient was not in perfect mental equilibrium state. He admits that he had not personally obtained a certificate from the doctor about the fitness of the patient. He denied that the signatures or thumb impression were not of the deceased or the statement had been recorded in a mechanical manner or the deceased was not capable of making any statement. He admitted that he had got his official seal with him since it was normal for him to visit the hospital in connection with performance of his duty. The witness denied that the mouth, lips etc. were burnt and the deceased could not speak. He also states that he recorded the statement of Sudhir Kumar, brother of Raj Kumari on 24.04.2001, Ex.PW-7/F.
9. PW-10, Constable Virender Kumar deposes that on 21.04.2001 he was working in Police Station Nariana, a call was received from Constable Naresh by S.I. Paramjit in respect of burning of a woman in Naraina over which he along with S.I. Brahamjeet went to the house on motor cycle and reached there around 10.30 p.m. where he was told that the burnt woman has been removed to hospital by the PCR van. Constable Naresh was left at the spot while he and S.I. Brahamjeet went to Safdarjung Hospital. In the hospital injured Raj Kumari was found admitted. The I.O. made an application to the doctor for declaring her fit for statement. Doctor declared the patient fit for statement while the Investigating Officer called the SDM and brought him to the hospital. S.D.M. got the statement of the injured recorded. From the hospital they came to the spot of crime which was photographed. The Investigating Officer gave him a rukka to be delivered at the Police Station for registration of the F.I.R. He got the F.I.R. registered and came back to the spot with a copy of the F.I.R. and original rukka. In cross-examination he states that a large crowd had collected when Constable Naresh reached the spot. He does not remember the time when he reached the hospital. He goes on to say that the SHO along with SDM reached the hospital. The I.O. was already in the hospital. He further states that at the time when the SDM had begun recording the statement of the injured she had already been medically attended.
10. The next witness of importance is SI Dhan Singh, of the Crime Team South West District. He deposes that he was in-charge of the Crime Team on 22.04.2001, when he received a call from Police Station Naraina regarding the incident of a woman having been burnt. He reached the spot along with his team and prepared a report Exhibit PW-14/A. He found one one crushed plastic can, one wooden ladle and broken bangles on the spot. He also found one liquor bottle having small quantity of liquor.
11. PW-16, Dr.Anju Bara Dey, states that on 21.04.2001 she was working at Safdarjung Hospital and that MLC No. 3243 is in the handwriting of Dr.Anuj who is still working in the hospital.
12. PW-20, is Dr. Anuj Jain who states that on 21.04.2001 he was working at Safdarjung hospital as Senior Resident when he examined Raj Kumari and after examining her he prepared MLC, Exhibit PW-20/A. The patient herself had told her that she sustained burn injuries when her husband poured petrol on her and set her on fire with lighted matchstick. The patient also told the witness that Sanjay used to beat her and asked her for dowry. Whatever was stated by the patient was recorded in MLC. In cross-examination this witness admitted that the patient was brought to the Burns Ward and was in a position to speak when asked as to how she got injuries. This witness admitted that he started treatment of Raj Kumari immediately and prepared MLC after starting treatment. He had not recorded the blood pressure and it was not necessary since the patient had got 98 per cent burns and was dehydrated. He denied that it is necessary that the patient suffers from loss of memory under these conditions. This witness asserts that the patient was well oriented and able to speak. He denied that if there is swelling between the fingers the finger prints are not available or that the thumb impression of Raj Kumari was not obtained since she was not in a position to give thumb impression or signatures. This witness admitted that she had filled the name column in the MLC and recorded the history. She denied that the same had been done at the instance of Sudhir Kumar, brother of the deceased.
13. PW-17 is Dr. Chandra Kant who conducted the postmortem and noticed that the deceased was suffering from 98 per cent superficial and deep ante mortem burns covering the whole body except forehead, right side of the face, partial left side of the face, both eyes, nose, mouth and both soles. Black smoke effect was noticed around lower abdomen, there was charring of skin on both shoulders superior surface, upper part of chest, both breasts and inner portion of both thighs. Skin was pealed off at places revealing area of vital reaction. He admitted that the statement of the girl had not been handed over to him by the I.O. With the inquest papers. He denied that he had prepared the postmortem on the basis of the inquest papers. He admitted that no injuries except burns were found by him on the body of the deceased and there were no abrasions on hands and wrists.
14. PW-21, S.I.Braham Jeet Singh states that he was posted at Police Station Naraina on 21.04.2001 when he was given the D.D.No.26-A he along with Constable Virender Singh went to the spot and learnt that Raj Kumari had been removed to Safdarjung Hospital by police van. He left Constable Naresh at the spot for securing the place of the incident and went to the Hospital. He found Raj Kumari admitted in Safdarjung Hospital and Doctor declared her fit for statement on his application Exhibit PW-21/A. He recorded the statement of Raj Kumari which is Exhibit PW-21/B. Raj Kumari signed the statement at point A. Thereafter he sent a message to the SDM to come to the hospital and recorded the statement of Raj Kumari. Exhibit PW-21/C. The witness thereafter went to the place of occurrence and obtained a report from the crime team. He prepared the site plan and seized the articles lying at the spot vide memo PW-21/F. The articles included burnt sheet, broken bangles etc. The entire case property was deposited with Mohurrar/Head Constable, Malkhana. He recorded the statement of the brother of the deceased and apprehended Sanjay Tanwar. On 23.04.01 he went to Safdarjung Hospital along with Constable Naresh Kumar after learning that Raj Kumari had died. He called the SDM to the Hospital to record the statement of the father of the deceased. On the instructions of the SDM he got the post mortem of the deceased conducted vide death report, Ex.PW-7/C. After the post mortem the body was handed over to her brother. In cross-examination he admitted he does not know the doctor who made an endorsement that Raj Kumari was fit to make a statement but deposes that it was the doctor on duty who made such an endorsement. Since SDM, Vasant Vihar was not available on that day he had informed PW-7, SDM Peter Bara on telephone. He admits that when the deceased signed her statement the constable was present. He denies that he had not recorded the statement of Raj Kumari correctly. In his statement u/s 313 Cr.P.C. The accused stated that he is innocent and was not present at the time of the incident. His mother used to reside separately and had separated prior to the marriage. She never interfered in their married life.
15. The accused in his defense led evidence of Rajinder Kumar as DW-1, who states that he had known the family since childhood. His shop is opposite the house of accused Sanjay Tanwar. He had attended the marriage of the accused. He did not notice any quarrel between Sanjay and his wife. He was in his shop when the incident took place. He heard noise coming from the house of Sanjay. Public gathered there. Sanjay was trying to extinguish the fire with his pillow and was saying "what you have done". The witness went to call the mother of the deceased but found her away to Baroth. He returned from Inderpuri and found the police already present. They were moving the injured to the Hospital. The witness does not know if Sanjay consumes alcohol. On cross-examination by the Public Prosecutor the witness states that he does not know the date and month or year of marriage of the accused. He also admits that he does not visit the accused very often nor accused visits him. He admits that he had vone to the gate of the house and deceased was lying fallen at the gate of the house of accused Sanjay. He admits that he did not extinguish the fire of the deceased. He admits he does not know which articles were recovered by the appellant. He also admits that he had not gone inside the house. He admits that he did not visit Raj Kumari in the hospital. He also admits that his wife and Raj Kumari have never met each other. He does not know as to how the deceased caught fire. He also does not know at which place in the house the deceased caught fire. He did not talk to anybody about how the deceased caught fire nor did he see the pillow or any other thing burnt lying over there. He does not know what the deceased was wearing. He does not know if the accused received any burn injuries.
16. Shri Ram Chander is DW-2, who states that he knows the accused and his mother and that his house is close by. This witness states that at around 11.00 p.m. he saw a large crowd at the house of the accused Sanjay Tanwar and stopped and asked the reasons for the crowd. He was told that Sanjay''s wife had burnt herself. He saw Raj Kumari being put in the police van and taken away. He deposes that he had not heard about any quarrel between Sanjay and his wife nor did he know that Sanjay used to consume liquor. In cross-examination he states that he made no attempt to find out how Raj Kumari got burnt. He does not know whether she committed suicide or was burnt by Sanjay Tanwar. He admits that Balbiri Devi used to visit Sanjay Tanwar and used to say with him. To the court question this witness states that he had no business going to the house of the accused and prior to the incident had not visited the house of the accused. Accused also was not on visiting terms with him. Raj Kumkari never visited his house. Neither any other family member visited nor met Raj Kumari. He admits that when he saw Raj Kumari being put into the van she seemed to be alive and was talking. He did not got to the hospital.
17. The Trial Court on the basis of the evidence adduced returned a finding that there was insufficient evidence to convict Balbiri Devi but went on to hold that there is sufficient evidence on record adduced by the Prosecution to prove that accused Sanjay Tanwar had burnt his wife Raj Kumari by pouring inflammable material on her and set her ablaze and, Therefore, held him guilty u/s 302 IPC.
18. We have very carefully examined the material on record and perused the judgment under challenge. It has been argued before us that this is a case that revolves around dying declarations. Counsel submits that the dying declarations cannot be relied upon since the doctor who is alleged to have certified the fitness of the patient has not been examined. He also contends that the SDM who recorded the dying declaration did not seek patient''s fitness certificate from the doctor. Counsel further contends that if the dying declarations were not held to be good evidence, there is nothing on record to show that the appellant had anything to do with the death of the deceased. According to us the submissions made by learned Counsel hold no water.
19. It is in the evidence of PW-5, Sudhir Kumar that when he reached the house of the deceased upon being informed that his sister has suffered burn injuries he saw the accused in a drunken state. He also deposes that the accused under influence of liquor used to ill-treat Raj Kumari. The fact that the accused, Sanjay Tanwar was under influence of liquor when he poured petrol on Raj Kumari and set her ablaze finds mention in three different statements of the deceased. The first statement recorded in the MLC by the doctor unhesitatingly states that it was the accused-appellant who had set Raj Kumari ablaze. In the statement before the SHO the deceased has made the same allegation. In her dying declaration before the SDM she once again forcefully asserts that it was the accused in a drunken state who had set her ablaze. On the application moved by the SHO to the doctor to certify the fitness of the patient to make a statement the doctor has certified fitness to make a statement. Merely because the doctor has no been examined is no reason to doubt the Prosecution''s case regarding the fitness of the deceased to have made a statement. From the deposition of the SDM it is clear that Raj Kumari was fit to make a statement and that what was stated by her was correctly got recorded.
20. The defense put up by the accused-appellant appears to be rather hollow. It lacks the necessary ring of truth. None of the witness appear to have witnessed the occurrence and have merely lent their good offices. It is also surprising to find that the accused-appellant in no manner tried to extinguish the fire nor did he accompany his wife to the hospital. The conduct of the appellant speaks volumes in this case. The statement of Raj Kumari stands corroborated by PW-5, Sudhir Kumar and we find the dying declaration to the SDM to be a correct narration of events stated by the deceased in her last testimony. We also find that the Trial Court has given adequate and cogent reasons while discussing the evidence on record to hold the appellant guilty for the offence u/s 302 IPC. We find no infirmity in its reasoning or appreciation of the material on record. Consequently, we uphold the judgment of the Trial Court dated 26.10.2002 as also the order dated 11.11.2002. Criminal Appeal 936 of 2002 is dismissed.
