RAJINDER KUMAR Versus STATE DELHI ADMN

Court : Dehli High Court 

Bench : HON’BLE MR JUSTICE BADAR DURREZ AHMED  AND HON’BLE MR JUSTICE P.K. BHASIN

Legal Point : If there is non Allegation for demand of dowry, There is non Scope for trial. 

Judgement

BADAR DURREZ AHMED, J

  1. By virtue of the judgment dated 28.07.1994, delivered by the learned Additional Sessions Judge, Delhi in Sessions Case No.104/1989 arising from FIR No.356/1989 registered at Police Station Tilak Nagar, the appellant has been found guilty under Section 498-A as also under Section 302 IPC for having subjected his wife Sunita to cruelty and for having committed her murder. By a separate order passed on the same day, the learned Additional Sessions Judge sentenced the appellant to imprisonment for a period of two years as also imposed a fine of Rs 500/- in respect of the offence under Section 498-A IPC. In default of payment of fine, the appellant was required to suffer simple imprisonment for three months. As regards the offence punishable under Section 302 IPC, the appellant was sentenced to imprisonment for life and also to pay a fine of Rs 500/-, in default whereof, he was to suffer a further period of simple imprisonment for three months.

 

  1. Initially, there were two accused in this case, the present appellant and his father Sat Pal. The present appellant Rajinder Kumar and his father Sat Pal were both charged for having committed the offence punishable under Section 498-A IPC by virtue of an order dated 28.11.1989. The present appellant was, however, also charged for having committed the offence punishable under Section 302 IPC inasmuch as it was alleged that on 11.06.1989 at about 9.00 a.m. at House No.B-602, J.J. Colony, Chaukhandi, Delhi, he had intentionally and knowingly committed the murder of his wife Sunita by pouring kerosene oil on her person and putting her on fire. During the  pendency of the trial, the accused Sat Pal passed away. The trial continued insofar as the present appellant Rajinder Kumar is concerned.

 

  1. As many as 21 witnesses were examined on the part of the prosecution and one defence witness DW-1 (Sanjay Deva), who was a friend and classmate of the appellant Rajinder Kumar, was examined on behalf of the defense.

 

  1. The learned Additional Sessions Judge considered the testimonies of PW-2 (Smt. Davinder Kaur), who was the elder sister of the deceased Sunita; PW-10 (Smt. Harjeet Kaur, mother of the deceased Sunita) and the other witnesses, including PW-3 (Dr Muneendra Gupta of Deen Dayal Upadhyay Hospital), who examined Sunita when she was brought to the said hospital in an injured condition and certified as to her fitness to give a statement; PW-9 (Dr A.K. Mehta), who was also a doctor, who had initially examined the injured Sunita at DDU Hospital and had prepared the MLC (Exhibt-PW-9/A) in which he recorded the history of the patient as being:-“Alleged H/o being burnt by pouring kerosene oil by her husband and father-in-law”; PW-17 (ASI Bhim Singh), who was the investigating officer and who recorded the alleged statement of Sunita Exhibit-PW-1/C) in the presence of Dr Muneendra Gupta; and PW-18 (Mr Vipul Mitra), who was the then SDM Punjabi Bagh, Delhi who also recorded the statement of Sunita (Exhibit-PW-18/A) at Safdarjung

 

  1. After examining the evidence on record as well as the explanations given by the appellant in his Section 313 CrPC statement and after hearing the arguments advanced by the counsel for the parties, the learned Additional Sessions Judge, first of all, returned the finding that there was no allegation of demand for dowry or torture though there is evidence in the shape of the testimony of PW-2 (Smt. Davinder Kaur) and PW-10 (Smt. Harjeet Kaur) that Sunita had been harassed and maltreated by the appellant and his father Sat Pal. Apart from this, the learned Sessions Judge was of the opinion that the whole case revolves around the dying declarations made by the deceased Sunita prior to her death. He was of the opinion that the dying declarations (Exhibit-PW-1/C) recorded by the investigating officer ASI Bhim Singh, Exhibit-PW-18/A recorded by the SDM (Vipul Mitra) and that recorded in the MLC being Exhibits PW-3/A and PW-4/A at DDU Hospital and Safdarjung Hospital respectively, were all consistent and no infirmity could be pointed out with regard to the same. The trial court also repelled the arguments of the learned counsel for the accused that it was necessary for the prosecution to establish the motive before a finding of guilt could be returned. Referring to the decisions of the Supreme Court, the learned Additional Sessions Judge took the view that establishment of motive is not necessary if there is other clear evidence to substantiate the prosecution case. In the facts of this case, the learned Additional Sessions Judge was of the view that the dying declarations were consistent and, therefore, even the question of corroboration did not arise. An objection had been taken by the learned counsel for the accused before the trial court that the dying declaration was not in the question and answer form and, therefore, some doubts could be cast upon the genuineness and truthfulness of the dying declarations. Repelling this argument, the learned Additional Sessions Judge was of the view that it was not at all necessary for recording of a dying declaration in the question and answer form. On the basis of the above findings, the learned Additional Sessions Judge noted that all the dying declarations were spontaneous, consistent and unimpeachable. Consequently, the learned Additional Sessions Judge found the appellant Rajinder Kumar to be guilty for having committed the offence under Section 498-A IPC as also the offence of murder punishable under Section 302 IPC.

 

  1. Before us, the learned counsel appearing on behalf of the appellant reiterated the arguments which were raised before the trial court. In addition, it was contended that nothing survives in this case against the appellant Rajinder Kumar in view of the fact that the deceased Sunita‟s sister PW-2 (Smt. Davinder Kaur) and her mother PW-10 (Smt. Harjeet Kaur) have both turned hostile and have not supported the prosecution case with regard to the incident of burning. It was further contended that the purported dying declarations cannot be relied upon because Sunita had suffered 100% burns and it is not at all likely that she was in a position to have made the statements alleged to have been made by her. It was also contended that a dying declaration, such as Exhibit-PW-1/C, which was made to the investigating officer [PW-17 (ASI Bhim Singh)] has to be viewed with suspicion because a dying declaration made to a police officer does not inspire confidence.

 

 

  1. Apart from this, it was contended that the purported dying declaration made before PW-18 (Mr Vipul Mitra), who was the then SDM, Punjabi Bagh, would also be doubtful inasmuch as it is an admitted position that when Sunita was brought to DDU Hospital in an injured condition, she was administered pathedine (50 mg) and phenergan (25 mg). According to the learned counsel, both these medications have heavy sedative effects and pathedine, like morphine, can also result in euphoria. Thus, according to him, even if the statements are said to have been made by Sunita, the same could have been part of her imagination and certainly not reflective of the true state of affairs. It was further contended by the learned counsel for the appellant that prior to the recording of the statement (Exhibit-PW- 18/A), the SDM did not ensure that a doctor had certified that Sunita was fit for making a statement. Referring to Exhibit-PW-4/A, which is the MLC prepared at Safdarjung Hospital, he submitted that there is no certificate of fitness on this MLC and the only certificate of fitness, which is available on record is the one which is to be found in Exhibit- PW-3/A which was prepared at about 9.40 a.m. at DDU Hospital. That was at a much prior point of time and, therefore, the fitness certificate recorded at DDU Hospital cannot be relied upon for the purposes of establishing that Sunita was fit for making a statement when the SDM arrived at Safdarjung Hospital, where Sunita had subsequently been transferred and at the time of recording Exhibit-PW-18/A. Consequently, the learned counsel for the appellant submitted that the so-called dying declarations could not be relied upon for basing a conviction. He submitted that apart from the so-called dying declarations, there was no other evidence through which the present appellant could be implicated. On the other hand, he submitted that there is the testimony of DW-1 (Sanjay Deva), who was a friend and classmate of the appellant Rajinder Kumar who categorically stated that the relations between Rajinder Kumar and Sunita were cordial and he submitted that at the time when the incident is said to have occurred, Rajinder Kumar was at the house of Sanjay Deva. Therefore, the plea of alibi has been sought to be set up. The learned counsel for the appellant, therefore, requested that the impugned judgment and order on sentence be set aside and the appellant be acquitted of all charges.

 

  1. Mr Dudeja, the learned counsel appearing for the State, fully supported the impugned judgment and order on sentence. He submitted that even though PW-2 (Smt. Davinder Kaur) and PW-10 (Smt. Harjeet Kaur) were partly hostile to the prosecution case, their testimonies on other aspects of the case cannot be thrown out of the window. He submitted that PW-2 (Smt. Davinder Kaur), in particular, testified that the appellant Rajinder Kumar and his father were habitually maltreating and harassing Sunita. According to Mr Dudeja, a similar statement has been made by PW-10 (Smt. Harjeet Kaur). Mr Dudeja submitted that the said testimonies, therefore, clearly establish the fact that deceased Sunita was being subjected to maltreatment and harassment at the hands of the appellant and his father Sat Pal. According to him, this also is an indication of the motive behind the Crime

 

 

  1. Mr Dudeja further submitted that the dying declarations on record are all consistent and their authenticity and veracity have not been shaken. Once the dying declarations are regarded to be both authentic and truthful, no further corroboration is necessary and a conviction can be based on such dying declarations. He submitted that the arguments with regard to Sunita not being in a fit state of mind ought to be rejected because the doctors who attended upon her clearly stated that she was conscious and that she had, in fact, made the statements. Mr Dudeja, therefore, submitted that the impugned judgment and order on sentence do not call for any interference and the appeal ought to be rejected.

 

  1. Upon consideration of the arguments advance by the counsel for the parties and on examining the record of the case, we find that there are several statements alleged to have been made by the deceased Sunita prior to her death, all of which could be regarded as her dying declarations. The first such statement is the one which she purportedly made to PW-9 (Dr A.K. Mehta) and PW-3 (Dr Muneendra Gupta) at DDU Hospital when she was brought in an injured condition to that hospital at about 9.40 a.m. on 11.06.1989. As indicated above, Exhibit- PW-3/A is the MLC drawn up at DDU Hospital, Delhi and indicates the alleged history of the patient as “being burnt by pouring kerosene oil by her husband and father-in-law”. The same MLC shows the condition of the patient to be “conscious” though her pulse was not palpable and blood pressure was also not recordable. It was also indicated in the said MLC that the patient had burns involving all the four limbs, front to back and chest wall and face. She had 100 %  The treatment which was indicated included pathedine (50 mg) and phenergan (25 mg). At the foot of the said Exhibit-PW-3/A, it is recorded that “the patient is fit for statement”. The date and hour of arrival of the patient has been shown as 11.06.1989 at 9.40 a.m. The person, who has brought her to hospital, has been indicated as SI Avtar Singh. PW-9 (Dr A.K. Mehta), who was the Casualty Medical Officer at DDU Hospital on 11.06.1989, categorically stated in his examination-in-chief that he is the one who prepared the MLC (Exhibit-PW-3/A) and that it was written in his hand and has been signed by him at point „A‟. He further stated that the patient herself had given the history as of being burnt by pouring kerosene oil by her husband and father-in-law. This witness also testified to the effect that he had mentioned this history in the MLC and that on his examination he found the patient to be conscious although the pulse was not palpable and blood pressure was not recordable. In his cross- examination, PW-9 (Dr A.K. Mehta) confirmed that Sunita was in a position to speak when he had examined her and that she herself had given the history of burns. He also confirmed that on his advice, two injections — one of pathedine (50 mg) and the other of phenergan (25 mg) — were administered to her by the nurse on duty. Importantly, he stated that the patient was admitted in the hospital as per MLC (Exhibit-PW-3/A) at 9.40 a.m. and the above mentioned injections would have been given within 15 minutes of her examination. He also testified that generally in burn cases, the patient remains conscious for sometime even when the patient has received 100% burns.

 

  1. The other doctor PW-3 (Dr Muneendra Gupta), who was the senior doctor when Sunita was brought to DDU Hospital in an injured condition on 11.06.1989, has also testified that the patient was fit to give a statement at the time of examination and that he had made an endorsement on Exhibit-PW-3/A to this effect. He testified that the endorsements made at points „A‟ and „B‟ were in his hand and bear his signatures. We may point out that endorsement „B‟ indicates that the patient was fit for statement. On the other hand, endorsement „A‟, inter alia, indicated that the patient be referred to Safdarjung Burns Unit. In the course of cross-examination, PW-3 (Dr Muneendra Gupta) stated that the patient was first examined by Dr A.K. Mehta, who referred her to him (Dr Muneendra Gupta) immediately. He further stated  that when he examined Sunita at round 9.40 a.m., she was fit for statement. The history of the patient was taken by him personally and it was written by Dr A.K. Mehta and, therefore, he did not record the same. He also testified that after rendering treatment, Sunita was referred to Safdarjung Hospital.

 

  1. From the above evidence with regard to the history of the patient recorded in Exhibit-PW-3/A, it is apparent that when such history was recorded, Sunita was conscious. She was also fit for statement. It is also clear from the testimony of the two doctors that it is Sunita herself who gave her history and that she did so at the time they examined her. It is, therefore, clear that there is no manner of doubt that what is recorded in Exhibit-PW-3/A with regard to Sunita having been burnt by pouring kerosene oil by her husband and father-in-law has been correctly recorded by PW-9 (Dr A.K. Mehta) and that the said statement was given by her when she was cautious and fit for making a statement.

 

  1. We now come to the statement marked Exhibit-PW-1/C, which is said to have been given by Sunita and recorded by PW-17 (ASI Bhim Singh). The English translation of Exhibit-PW-1/C reads as under:-
  • “Smt. Sunita W/o Rajender, aged 22 years, R/o B-602, J.J. Colony, Choukhandi, Delhi made the following statement.
  • I reside at the above noted address and do domestic work. My husband is not doing any job. Today morning also a quarrel took place over the issue of preparing meals. This sorts of quarrel used to take place often almost every day. My father-in-law Sat Pal Singh also used to harass my sister and myself. He also held out threat to oust me from the house. My elder sister Davinder was married with my Jeth (Husband‟s elder brother) Surinder Mohan. Surender Mohan happened to expire 1½ year ago. Since then my husband and my father-in-law used to harass me a lot. Today morning at about 9 A.M. when I was sitting in my room my husband came and asked me to prepare meal. I started preparing meal. In the meanwhile my father-in-law also came there and both of them started giving beatings to me after scaring me. My husband poured kerosene oil on me from a kerosene oil can kept in the kitchen and set me on fire. During this period my father-in-law kept on  hurling abuses upon me and giving beatings to me. I tried my best to save myself. I do not know as to how and by whom the fire was put out. My husband and my father-in- law have tried to kill me by setting me on fire. I have heard the statement it is correct.
  • „A‟ R.T.I.
  • Sunita
  • Attested Bhim Singh A.S.I. PS, T. Nagar Delhi Dt.11/6/89”

 

  1. PW-17 (ASI Bhim Singh) stated that after his arrival at DDU Hospital, he collected the MLC and the doctor had declared Sunita fit for statement by making the endorsement on the said MLC (Exhibit- PW-3/A). He further stated that after the doctor had given the certificate of fitness of the patient to him, he recorded the statement (Exhibit-PW-1/C) of Sunita in the hospital. He also stated that he obtained the right toe impression of Sunita at point „A‟. He stated that both her hands were in a burnt condition and it is because of this that her thumb impression could not be taken. We may also note that though PW-2 (Smt. Davinder Kaur) was declared to be partly hostile inasmuch as she did not support the prosecution case in its entirety, on cross-examination by the learned APP, this witness confirmed that “police recorded the statement of Sunita in the hospital” which statement was thumb marked by Sunita”. Thus, there is nothing in evidence to indicate that the statement (Exhibit-PW-1/C) was not the authentic statement of Sunita as recorded by PW-17 (ASI Bhim Singh). We now come to the MLC (Exhibit-PW-4/A), which was prepared at Safdarjung The said MLC indicates that Sunita was brought by her sister. It also shows the alleged history as being burnt by husband and father-in-law by putting kerosene oil and setting her on fire. Of course, this document has not been proved by the doctor who prepared the MLC, but by PW-4, who is merely a record clerk at Safdarjung Hospital. It also appears to us that probably, the alleged history was merely reproduced from the history recorded in the earlier MLC (Exhibit-PW-3/A) of DDU Hospital. In any event, nobody has come forward to testify as to whether the history recorded in Exhibit- PW-4/A was given by the patient herself. Therefore, we are  not  placing any reliance whatsoever on the alleged history as recorded in Exhibit-PW-4/A.

 

  1. Lastly, we have Exhibit-PW-18/A, which is the alleged dying declaration of Sunita said to have been recorded by PW-18 (Mr Vipul Mitra), who was the then SDM, Punjabi Bagh. An English translation of Exhibit-PW-18/A reads as under:-

“Smt. Sunita, aged 22 years, w/o Sh. Rajendra R/o B-602, J.J. Colony made the following statement:- My husband Rajendra and my father-in-law Sat Pal Singh have jointly set me on fire. My husband set me on fire after pouring kerosene oil upon me. My father-in-law was also present there and was given beatings. This job has been jointly performed by both of them. Father-in-law was also lending a helping hand in setting the fire. Both of them  very often used to give beatings

R.O.A.C. Before Me Sd/- Illegible Dt.11/6/89 „B‟ At 4.30 P.M.(CDN(PB) Delhi) Place Safdarjung Burns Ward Note: She was admitted earlier in DDU Hospital.”

  1. The circumstances under which the said statement was recorded are indicated in the testimony of PW-18 (Mr Vipul Mitra). He stated in his examination-in-chief that he had gone to Safdarjung Hospital on 11.06.1989 for recording the dying declaration of Smt Sunita, wife of Rajinder. The police had identified the lady. He stated that he had satisfied himself from her condition that she was in a fit state of mind to make a statement and then he recorded her statement (Exhibit-PW- 18/A). She had put her left foot thump impression at point „A‟ as her hands were burnt. He further stated that whatever she told him, he had recorded in his own handwriting. He had asked her how she had been burnt and what had happened and then she made her statement to him. He further testified that the statement (Exhibit-PW-18/A) bore his signature at point „B‟ and he also made an endorsement at PW-18/B for registration of the case, etc. In the course of cross-examination, this witness stated that he had sent for the doctor before recording the dying declaration, but the doctor was not available in the ward. He had put two-three questions to her about her identify, her name, her husband‟s name and address to satisfy himself about her identity and state of mind. Thereafter, he had enquired from her as to how the incident had happened and then she had made the statement in her own language and he recorded whatever she had told him without subtracting or adding from his side. He further stated that when he recorded the statement, it was only he and the patient who were present as he had asked all the others to go away. No police officer, including ASI Bhim Singh, was present with him when he recorded the statement.

 

  1. From the testimony of PW-18 (Mr Vipul Mitra), it is clear that no doctor was available at that point of time to certify as to the fitness of the injured Sunita to make a statement. He, therefore, went ahead and by asking a few questions and satisfied himself that she was in a fit state of mind to make a statement. He has categorically stated that whatever she stated had been recorded by him without any addition or subtraction and that at the time of recording of the statement (Exhibit- PW-18/A), nobody else was present except Sunita and him. This also rules out the possibility of any tutoring or influence by any other person.

 

 

  1. Considering the evidence on record, we are unable to accept the pleas advanced by the learned counsel for the appellant with regard to the dying declarations not being authentic or truthful. We may specifically note that the plea that Sunita was not in a fit state of mind when the dying declarations were recorded cannot be The first dying declaration finds place in the MLC (Exhibit-PW-3/A). At that point of time, the doctor on examination had found Sunita to be fit for a statement and it is at that point of time that Sunita gave her history of how she got burnt. That statement clearly implicates the appellant Rajinder Kumar. In fact, this statement alone is sufficient for the purposes of basing a conviction. This so because the statement‟s authenticity and truthfulness cannot be doubted.

 

  1. The next dying declaration is Exhibit-PW-1/C. This dying declaration was recorded by PW-17 (ASI Bhim Singh) after PW-3 (Dr Muneendra Gupta) had given his certificate of fitness for statement as mentioned in the MLC (Exhibit-PW-3/A). The factum that Sunita had given her statement to the police officer is also corroborated by the testimony of PW-2 (Smt. Davinder Kaur). There is nothing on record for us to doubt the authenticity and truthfulness of the statement (Exhibit-PW-1/C).

 

 

  1. As regards the third so-called dying declaration recorded in the MLC (Exhibit-PW-4/A) at Safdarjung Hospital, we have already indicated that we are not placing any reliance on it because it seems to be a mere repetition of what had already been recorded in Exhibit-PW- 3/A, i.e., the MLC drawn up at DDU Hospital earlier in the day.

 

  1. This leaves us with Exhibit-PW-18/A, which is the statement recorded by the SDM [PW-18 (Mr Vipul Mitra)]. Although there is no certificate of fitness from a doctor immediately prior to the recording of this statement, PW-18 (Mr Vipul Mitra) has been careful enough to satisfy himself that Sunita was in a fit state of mind to make a statement. The defence has not been able to elicit any information from this witness or other witnesses in the course of their cross-examination so as to cast any doubt on the veracity of their testimonies. There is no reason for us to disbelieve what has been stated by PW-18 (Mr Vipul Mitra). It is true that pathedine and phenergan may have sedative effects and may even cause euphoria but, at the same time, it is for the person who is recording the statement to satisfy himself whether the person giving the statement is in a fit state of mind. In this case, PW- 18 (Mr Vipul Mitra) had clearly satisfied himself that Sunita was in a fit state of mind to make a statement. The absence of a doctor‟s certificate with regard to fitness of mind of the person making the statement, may, in some cases, be fatal. But, this is not one of those cases. This is so because of the existence of the other statements made at earlier points of time by the injured Sunita. In fact, to our minds, the most clinching evidence in this case is Exhibit-PW-3/A, wherein the history of how Sunita got burnt is recorded and both the doctors, who examined her at that point of time, have come to court and testified that it is Sunita herself who gave her history.

 

  1. Insofar as the testimony of the lone defence witness is concerned, we feel that in view of the clear-cut dying declarations, not much reliance can be placed on the same. The said witness is an old friend of the appellant and, therefore, would be interested in somehow trying to establish his innocence.

 

 

  1. As regards the finding of guilt pertaining to the offence under Section 498-A, we find that the trial court has erred on this aspect. After having recorded that there is no allegation of any demand for dowry or torture on that account, the trial court could not have and ought not to have returned a finding of guilt under Section 498-A IPC. That offence pertains to cruelty and that too cruelty of the type given in the explanation appended to that Section. The cruelty is linked with some demand for dowry or such similar demand. After having returned a finding that there is no allegation for demand for dowry, there was no scope for the trial court to have gone ahead and found the appellant guilty of the offence under Section 498-A

 

  1. However, in view of the discussion, we are of the view that the trial court was correct in its conclusion that the appellant Rajinder was guilty of having committed the offence punishable under Section 302 IPC. Consequently, we uphold the conviction and sentence of the trial court insofar as the offence punishable under Section 302 IPC is confirmed. We, however, set aside the conviction and sentence in respect of the offence under Section 498-A IPC. The appellant is on bail. He be taken into custody to serve out the remainder of his sentence. The appeal stands disposed of.

 

 

BADAR DURREZ AHMED, J

P.K BHASIN, J

July 15, 2009

dutt

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