... Respondent Mr. Sunil Sharma, APP WITH

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: November 05, 2009 Judgment delivered on : November 10, 2009 + CRIMINAL APPEAL NO.136/1998 RAJENDER SINGH @ MASTER Through:... Appellant Mr. K.K.Sud, Sr. Advocate with Mr. Kunal Malhotra, Advocate. Versus STATE Through:... Respondent Mr. Sunil Sharma, APP WITH + CRIMINAL APPEAL NO.170/1998 SRIKANT Through:... Appellant Mr. K.K.Sud, Sr. Advocate/ Amicus curiae with Mr. Kunal Malhotra, Advocate. Versus STATE Through:... Respondent Mr. Sunil Sharma, APP CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be Yes reported in Digest? Crl.A.Nos.136/1998 and 170/1998 Page 1 of 17

AJIT BHARIHOKE, J. 1. Appellants Rajender Singh and Srikant feeling aggrieved by their conviction under Sections 302 read with Section 34 IPC in terms of the judgment dated 27.03.1998 in Sessions Case No.107/97, FIR No.221/91, Police Station Janak Puri and sentence of imprisonment for life and also to pay fine of Rs.5000/-, failing which to undergo further imprisonment for a period of six months in terms of order on sentence dated 30.03.1998, have preferred the above appeals. 2. Briefly put, case of the prosecution is that on 19.04.1991 around 7:30 a.m., appellants Rajender Singh and Srikant are stated to have reached the jhuggi C-2/B, Janak Puri along with their co-accused Lal Chand and asked Ms. Manju (deceased) if her father was there. When she replied that her father was not at home, appellant Srikant who was carrying a one ltr. tin of Rath containing kerosene oil poured kerosene on her from that can and the co-accused Lal Chand lit a matchstick and set her on fire. PW1 Ram Ratti, mother of the deceased, at that time is stated to have gone to answer the call of nature and when she returned she saw her daughter on fire and a crowd of people was trying to extinguish the fire. She also helped in extinguishing the fire and in the process, suffered burn injuries on her hands. Injured Ms. Manju was taken by PW1 and few other neighbours to RML Hospital in a taxi. The injured is stated to have made a dying declaration to her mother that she was set on fire by the appellants Crl.A.Nos.136/1998 and 170/1998 Page 2 of 17

Rajender and Srikant as also Lal Chand(P.O.). Manju (deceased) was admitted in the hospital at about 9:00 a.m. Head Constable Jaswant Singh, PW17 was the Duty Constable posted at RML Hospital at the relevant time. He conveyed the information about the admission of the deceased Manju with burn injuries to Police Station Janak Puri, which was recorded as DD No.4A. On the receipt of the DD report, SI Khushi Ram, PW16 is stated to have gone to RML Hospital and there he obtained the MLC of injured Manju on which the Doctor had opined that she had suffered 85% burn injuries. The Doctor at the Burns Ward declared injured Manju to be fit for making statement. SI Khushi Ram thus requested the services of SDM, Punjabi Bagh for recording her dying declaration. Shri H.C. Gaur, SDM, PW5 reached at the hospital around 11:30 a.m. and recorded the dying declaration of Ms. Manju (Ex.PW5/A) in question answer form wherein she stated that the appellants along with Lal Chand had visited her jhuggi in the morning at 7:30 a.m. and asked about her father. When she told them that her father was not available at the residence, Lal Chand (P.O.) suddenly poured kerosene oil upon her from a one ltr. tin of Rath Vanaspati and the appellant Srikant lit a matchstick and set her on fire. Thereafter all three of them ran away. PW5, Shri H.C. Gaur, SDM, obtained the thumb impressions of the deceased Manju on first and last page of the dying declaration and directed the Investigating Officer to register the case under relevant provisions of the IPC against the appellants and Lal Chand. The Investigating Officer sent the dying declaration along with Crl.A.Nos.136/1998 and 170/1998 Page 3 of 17

his remarks to the Police Station and on the basis of said dying declaration, formal FIR under Section 307/34 IPC was registered. Manju died of the burn injuries in the morning of 28.04.91, which information was conveyed to the Police Station vide DD No.3 dated 28.04.91. Consequently, the offence under Section 302 read with Section 34 IPC was added. 3. Inquest was conducted and the dead body was sent for post mortem examination. The Investigating Officer obtained the report of post mortem examination, recorded the statements of the witnesses, completed the formalities of investigation and submitted challan against the appellants and Lal Chand(P.O.) under Section 302/34 IPC. 4. The appellants were charged for the offence under Section 302 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. So far as their co-accused Lal Chand is concerned, he absconded and he was declared proclaimed offender. 5. On conclusion of the trial, the learned trial Judge relying upon the dying declaration Ex.PW5/A stated to have been made by the deceased before the SDM, Shri H.C. Gaur (PW5), convicted both the appellants Rajender Singh and Srikant on charge under Section 302/34 IPC and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.5,000/- each. 6. It transpires from the record that pursuant to the order of this Court dated 19.09.1999, appellant Srikant was released on bail. Crl.A.Nos.136/1998 and 170/1998 Page 4 of 17

Thereafter he absconded and failed to turn up for hearing. When his presence could not be procured despite of best efforts, Shri K.K. Sud, Sr. Advocate, who is representing appellant Rajender Singh, was requested to assist the Court as Amicus in the appeal filed by the appellant Srikant. 7. On perusal of record, it transpires that the case of the prosecution rests solely upon the dying declarations made by the deceased in presence of her mother PW1 Ram Ratti and before the SDM, Shri H.C. Gaur, PW5. 8. Learned counsel for the appellants has submitted that though there is no bar under law to convict an accused on sole basis of a dying declaration, yet before acting on a dying declaration, it is incumbent upon the court to satisfy itself about the veracity of the dying declaration and also that it is not the result of some tutoring or prompting and that the declarant, at the time of making the statement, was in a fit state of mind to make a clear and concise statement about the cause or circumstances leading to his or her death. He has submitted that from the record it is established that neither of the dying declarations is worth of any credence. 9. Regarding the first dying declaration purportedly made by the deceased in presence of her mother, learned counsel has submitted that the testimony of PW1 Ram Ratti is full of contradictions and improvements, as such her version regarding the dying declaration Crl.A.Nos.136/1998 and 170/1998 Page 5 of 17

made by the deceased is not trustworthy. It was further submitted on behalf of the appellants that as per the version of PW1 Ram Ratti, the deceased made the dying declaration to her at the spot of occurrence when she was extinguishing the fire and also on her way to the hospital. She also deposed that several neighbours helped in extinguishing the fire and the neighbours Ram Kishan, Mohan, Bhola and Hamid accompanied her and the deceased in the taxi to the hospital. It was argued if said version is to be believed then the dying declaration was made in the presence of the neighbours who helped in extinguishing the fire and also in presence of the above named persons who accompanied the deceased to the hospital in the taxi and atleast someone out of them was expected to hear the deceased making the dying declaration. None of those neighbours have been examined as witnesses to corroborate the version of PW1 Ram Ratti. 10. Learned counsel for the appellants further submitted that PW1 Ram Ratti has made several improvements in her testimony given in the court vis-a-vis her statement made to the police and had to be confronted with her earlier statement Exhibits PW1/DA, Ex.PW1/DB and Ex.PW1/DC given to the police. Not only this, it was pointed out that PW1 stated that the deceased told her that appellant Srikant poured kerosene oil on her and Lal Chand ignited her which is contrary to the case of prosecution that it was Lal Chand who poured kerosene oil upon the deceased and Srikant set her on fire. Learned counsel for the appellants also drew our attention to the testimony of initial Crl.A.Nos.136/1998 and 170/1998 Page 6 of 17

Investigating Officer SI Khushi Ram, PW13, who in his crossexamination has admitted that in the case diary it is recorded that deceased Manju did not state anything to her mother about the manner in which she got burnt, which also rules out the possibility of the deceased having made any dying declaration in presence of PW1 Ram Ratti. In view of the above, he has urged us to disregard the testimony of PW1, being unreliable. 11. On the other hand, regarding the first dying declaration, learned counsel for the State has argued that there is no reason to doubt the testimony of PW1 Ram Ratti because her presence at the spot of occurrence is established from the fact that she herself sustained burn injuries on her hands while extinguishing the fire of the deceased, as is apparent from her MLC Ex.PW16/A and there is no reason as to why she would depose falsely to implicate the appellants. 12. We have considered the above submissions made on behalf of the parties. We find merit in the arguments advanced on behalf of the appellants. From the infirmities pointed out by the learned counsel for the appellants, we do not find PW1 Ram Ratti to be a reliable and trustworthy witness, particularly when she in her cross-examination has admitted that there was long term animosity between her family and the appellant Rajender Singh. 13. Coming to the second dying declaration Ex.PW5/A stated to have been made by the deceased in presence of SDM. PW5, Shri H.C. Gaur, Crl.A.Nos.136/1998 and 170/1998 Page 7 of 17

the then SDM, Punjabi Bagh has categorically stated that on the receipt of information from the Police Station Janak Puri, he had visited RML Hospital, Burns Ward on 19.04.91 at about 11:30 a.m., where he recorded the dying declaration of the deceased Manju Ex.PW5/A. He stated that he recorded the statement in question answer form after satisfying himself that she was in a fit state of mind. He has proved the dying declaration in question answer form as Ex.PW5/A. 14. Learned counsel for the appellants has submitted that even the second dying declaration Ex.PW5/A purportedly made by the deceased in presence of the SDM is of suspect. He has referred to Section 32(1) of the Indian Evidence Act and submitted that aforesaid provision being an exception to law of hearsay evidence has to be construed strictly. He has submitted that according to Section 32(1), when the cause of death of a person comes into question in a court, then the statement made by that person relating to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is relevant and admissible in evidence. Learned counsel for the appellants further submitted that in view of the aforesaid position in law, the SDM was required to confine the recording of statement of the deceased, whose condition was precarious, only to the aspect of the cause of death of Ms. Manju or the circumstances of the transaction which resulted in her death. The SDM, however, has gone beyond that. Expanding on this argument, he has drawn our attention to the dying declaration Ex.PW5/A, which shows that the cause of death and the Crl.A.Nos.136/1998 and 170/1998 Page 8 of 17

circumstances relating to the cause of death of Ms. Manju were disclosed in the answer given by the deceased in response to Question No.1. Therefore, the dying declaration complete in all respects, having come in response to the question No.1, the SDM was not required to ask further questions to the deceased. Despite of that the SDM went on to ask superfluous questions to the deceased which were not necessary for the purpose of recording the dying declaration as envisaged under Section 32(1) of the Evidence Act. 15. From this, he has urged us to infer that the SDM was biased and he was keen on promoting the case of investigating agency or the complainant to implicate the appellants. Thus, according to learned counsel for the appellants, the dying declaration Ex.PW5/A is suspect. 16. In order to appreciate the contention of learned counsel for the appellants, it is necessary to have a look at Section 32(1) of the Indian Evidence Act, as also the other questions put to the deceased by the SDM while recording her statement which is being projected as the dying declaration. Section 32(1) is reproduced as under:- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-... (1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person s death comes into question. Crl.A.Nos.136/1998 and 170/1998 Page 9 of 17

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 17. On perusal of the dying declaration Ex.PW5/A, it transpires that following five questions were put to the deceased by the SDM: Q.1. How your clothes caught fire? Q.2. Why Lal Chand, Srikant and Master Rajender set her clothes on fire? Q.3. Who extinguished your fire? Q.4. Whether your husband Anand Swarup has any role in setting your clothes on fire? Q.5. How much time has lapsed since your marriage? 18. Indeed, Section 32(1) deals with the law relating to the admissibility of dying declaration in evidence and it specifies which statements can be termed as dying declaration. It is true that in response to Q.No.1 referred to above, the deceased had clearly stated about the cause of her injuries which ultimately proved to be fatal and about the circumstances of the transaction which resulted in her death by responding that the appellants and Lal Chand had visited her Jhuggi at about 7:30 a.m. and asked about her father. When she told that her father was not present at the Jhuggi and she was alone, Lal Chand threw kerosene oil upon her from a one ltr. can of Rath and Srikant, after lighting a matchstick, threw it upon her and set her clothes on Crl.A.Nos.136/1998 and 170/1998 Page 10 of 17

fire. Thereafter all three of them ran away. Even if the SDM had not gone further to ask subsequent Q. Nos.2 to 4 to the deceased, her dying declaration was complete in all respects. However, in our considered view, the nature of Question Nos.2 to 4 put to the deceased is not such which could justify imputing any motive upon the integrity of the SDM, who had no axe to grind with either of the appellants or the proclaimed offender Lal Chand. If in his wisdom to elicit more facts, he had asked certain questions to the deceased while recording her dying declaration, it would not render the dying declaration suspect. Otherwise also, when the SDM was recording the statement of the deceased, he could not have been sure that the deceased would die. If at all some part of the statement Ex.PW5/A is beyond the scope of Section 32(1) of the Indian Evidence Act, in view of the provision of law, that portion cannot be taken into consideration being inadmissible in evidence, as that part of the statement is hit by the law relating to hearsay evidence. The answer to Question No.1 given in the dying declaration referred to above squarely falls within the ambit of Section 32(1) of the Evidence Act. Therefore, in our view, the learned trial Judge was right in relying upon the dying declaration Ex.PW5/A of the deceased. 19. It is further argued that PW5, Shri H.C. Gaur, the SDM has stated in his cross-examination that he did not obtain any certificate in writing from the treating Doctor that the deceased Manju was fit to make statement. It was further stated that he did not even request the Crl.A.Nos.136/1998 and 170/1998 Page 11 of 17

Doctor to remain present at the time of recording of statement of the deceased nor he perused the MLC of the deceased before recording her statement nor he tried to ascertain as to how much percentage of burns were suffered by the deceased and he could not even tell if the patient had suffered 10% burns or 100% burns on her body. He could not even tell if the entire body of the deceased except the face of patient was covered or that she was covered with a net or she was on oxygen or she was on a glucose drip etc. It was further submitted that PW5 Shri H.C. Gaur, SDM, deflected all the questions in the crossexamination by taking shelter of lapse of memory and saying that he does not remember. From the above circumstances, learned counsel for the appellants has urged us to infer that PW5 Shri H.C. Gaur, SDM is not a reliable witness and he has deliberately concealed the facts. 20. We are not convinced with the submissions made on behalf of the appellants. It is apparent from the record that the incident took place on 19.04.91 and PW5, Shri H.C. Gaur, SDM was examined as a witness for the first time more than five years later on 12.08.96 and his crossexamination was conducted almost about a year later on 08.07.97. We do not find it surprising that the SDM, Shri H.C. Gaur who had examined the deceased in his official capacity could not remember the details about the circumstances under which he recorded the dying declaration of the deceased. This infirmity can easily be attributed to fading of memory because of lapse of time. Crl.A.Nos.136/1998 and 170/1998 Page 12 of 17

21. Next submission on behalf of the appellants is that PW5 Shri H.C. Gaur, SDM has stated that he asked the Doctor about the fitness of the patient to make statement before proceeding to record her dying declaration, yet there is no certification to that effect by the treating Doctor. Therefore, it is doubtful whether or not the deceased was fit for making statement at the relevant time. Aforesaid contention of learned counsel for the appellants is belied by the MLC of deceased Manju Ex.PW19/A. Perusal of the MLC of the deceased reveals that it contains two different endorsements made by Dr. Sanjay Barnwal declaring the patient fit for making statement. The first endorsement appears to have been made by the Doctor concerned on the request of the Investigating Officer. The second endorsement on the MLC has been exhibited as Ex.PW19/B. This endorsement is also in the hand of Dr. Sanjay Barnwal and it bears the time 11:50 a.m. under the signatures of the Doctor. As per the testimony of PW5, the SDM, he had reached at the hospital at 11:30 a.m. and thereafter he asked the Doctor whether or not the patient was fit for statement and the Doctor declared her fit for statement. Aforesaid version finds support from the second endorsement Ex.PW19/B on the MLC of the deceased made at 11:50 a.m. declaring her fit for statement. Thus, there is no doubt in our mind that statement of the deceased Manju was recorded by the SDM after ensuring from the Doctor that she was fit for making statement. Therefore, we find no reason to suspect the dying declaration Ex.PW5/A on this count. It was also submitted on behalf of Crl.A.Nos.136/1998 and 170/1998 Page 13 of 17

the appellants that the dying declaration is neither attested by a Doctor nor by a nurse nor by the Ward Boy on duty at the Burns Ward at the relevant time. Non-attestation of the dying declaration by the Doctor or any other employee of the hospital, in our view, is no reason to disbelieve the version of PW5, Shri H.C. Gaur, SDM, particularly when there is ample evidence on record that it was actually recorded in a fair manner by the SDM. Otherwise also, the SDM, Shri H.C. Gaur is a public servant. He had no axe to grind with the appellants and there is no reason why he should mix up with the complainant or the police to create false evidence against the appellants. Thus, we are of the considered view that the dying declaration Ex.PW5/A is beyond suspicion and the learned trial Judge has rightly acted upon the dying declaration of the deceased. 22. Learned counsel for the appellants has lastly submitted that assuming the dying declaration Ex.PW5/A is accepted, then also there is no evidence on record to justify the conviction of appellant Rajender Singh for the offence under Section 302 IPC with the aid of Section 34 IPC. He has submitted that the dying declaration Ex.PW5/A only established that the appellant Rajender had accompanied Lal Chand and Srikant to the jhuggi of the deceased where the occurrence took place. There is nothing in the dying declaration to attribute any overt or covert act to the appellant Rajender to justify the inference that he shared a common intention to kill the deceased with the other co- Crl.A.Nos.136/1998 and 170/1998 Page 14 of 17

accused persons or that he developed common intention with them at the spot of occurrence. 23. On perusal of the dying declaration Ex.PW5/A, it transpires that the only role attributed to the appellant Rajender Singh is that he accompanied his co-accused Lal Chand (PO) and Srikant, (appellant) to the spot of occurrence where after enquiring about the father of the deceased, Lal Chand suddenly threw kerosene oil on the deceased and the appellant Srikant lit a matchstick and set her on fire. In absence of any evidence of appellant Rajender having played any overt or covert role in the act of setting the deceased on fire, merely because he was in the company of the appellant Srikant and Lal Chand(PO), who played an active role in the commission of crime and he then ran away from the spot, we find it difficult to infer that he either shared common intention with his co-accused persons to kill the deceased by setting her on fire or he developed such common intention at the spot when the deceased told them that her father was not available. Even if for the sake of argument, it is assumed that the appellant Rajender Singh had accompanied Lal Chand (PO) and Srikant (appellant) to the jhuggi of the deceased with common intention to kill her father, then also in absence of any evidence, it is difficult to conclude that at the spot of occurrence on coming to know that father of the deceased was not available at the jhuggi, the common intention to kill the father got transformed into the common intention to kill the deceased. From the dying declaration Ex.PW5/A, it is obvious that the incident took place Crl.A.Nos.136/1998 and 170/1998 Page 15 of 17

suddenly when Lal Chand threw kerosene oil on the deceased and Srikant (appellant) threw a lighted a matchstick on her. The suddenness of the event would not possibly have given time to appellant Rajender Singh to react to prevent his companions from committing such heinous act. In the matter of Daya Shankar Vs. State of M.P., AIR2009 SC 1426, Hon ble Supreme Court held that mere fact that the appellant was in the company of the accused who were armed, would not be sufficient to attract Section 34 IPC when it was undisputed that the appellant in that case was not armed and he had no animosity with the deceased. 24. In this case also only role attributed to the appellant is that he accompanied his co-accused persons to the place of occurrence. There is no evidence on record to suggest that the appellant Rajender was either armed or he had any enmity with the deceased or he was aware that the co-accused Lal Chand, (P.O.) was carrying kerosene oil in the can and he had intention to cause harm to the deceased or her father. In view of the above factual matrix, we are of the considered view that Section 34 IPC does not come into play so far as appellant Rajender is concerned and the learned trial Judge was not right in concluding that he nurtured common intention with his co-accused to kill the deceased by setting her on fire. Thus, conviction of the appellant Rajender under Section 302 IPC with the aid of Section 34 IPC cannot be sustained. We, however, do not find any fault with the conviction of the appellant Srikant under Section 302 IPC read with Section 34 IPC because he did Crl.A.Nos.136/1998 and 170/1998 Page 16 of 17

play an active role in setting the deceased on fire by throwing lighted matchstick upon her after the co-accused Lal Chand (P.O.) had poured kerosene oil on her. 25. The result of discussion above is that the appeal of appellant Rajender is allowed and he is acquitted of charge under Section 302 read with Section 34 IPC. So far as the appeal of Srikant is concerned, we find no infirmity in the impugned judgment of conviction and order on sentence. Accordingly, his appeal is dismissed. 26. Appellant Rajender Singh is on bail. His bail bond and surety bond are cancelled and discharged. 27. Appellant Srikant has absconded after he was released on bail in terms of orders dated 19.09.1999 of this Court. The concerned court is directed to initiate proceedings for his arrest so that he can be sent to judicial custody to undergo the remaining terms of his sentence. 28. The police authorities should also endeavour to apprehend Lal Chand who absconded during trial. 29. Appeals are disposed of accordingly. AJIT BHARIHOKE, J. NOVEMBER 10, 2009 SANJAY KISHAN KAUL, J. pst Crl.A.Nos.136/1998 and 170/1998 Page 17 of 17