Sanjiv Kumar vs The State

Ajit Bharihoke, J.—This appeal is directed against the impugned judgment dated 09.01.1997 in terms of which the appellant has been convicted for the offence punishable u/s 302 IPC and also the order on sentence dated 10.01.1997 in terms of which the appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 3,000/-in default of payment of which to undergo RI for further period of six months.

Briefly put the case of the prosecution is that on 10.04.1993 at around 10.30 a.m. at 184, Widow Colony, Punjabi Bagh, the appellant set Ms. Krishna (deceased) ablaze after pouring kerosene oil on her and fled away. Constable Y. Mohan Rao, PW12 was passing through the place of occurrence. On hearing the cries of the deceased, he rushed to the spot and found her in a badly burnt condition. He immediately took the deceased to ESI Hospital, Raja Garden in a TSR, where she was examined by Dr. H.M. Sidharth, PW17, who is stated to have prepared her MLC Ex.PW17/A. The deceased is stated to have told the doctor while giving her history that she was set on fire by her husband Sanjiv Kumar. On examination, the deceased was found to be conscious and she had sustained 100% superficial to deep burns. Thus, she was referred to Dr. P. Senapati, who referred her for admission to Surgical Casualty Ward for further treatment.

Constable Nahar Singh, PW6 was on duty at the hospital and he conveyed the information about the admission of the deceased in ESI Hospital to the police station Punjabi Bagh. The information was recorded as DD No. 6A(Ex.PW11/A) at the police station and entrusted to ASI Rajinder Singh, PW11 for further action, who along with home guard constable Raj Kumar left for the place of occurrence. The information was also conveyed to Sub Inspector Ranbir Singh. They all reached at ESI Hospital. SI Ranbir Singh, PW18 collected the MLC Ex.PW17/A of Ms. Krishna, who was declared fit for making statement. The area SDM was informed and requested to come to the hospital for recording the dying declaration of the injured. SI Ranbir Singh waited till 1.45 p.m. and when the SDM did not turn up, he recorded the statement of the deceased Ex.PW1/A in Hindi in the presence of Dr. Ashok Kumar, PW1, who also countersigned the statement of the deceased. After endorsing said statement, SI Ranbir Singh sent it to the police station through ASI Rajinder Singh for registration of formal FIR and on the basis of the said statement, formal FIR No. 247/93 was recorded u/s 307 IPC. Ms. Krishna ultimately succumbed to her injuries on 11.4.1993 and the receipt of information of her death, the offence was converted from 307 IPC to 302 IPC.

The ACP, Inspector Surender Kumar, SHO-PW16 and Inspector Harpal Singh-PW15 also reached at the hospital. Inspector Harpal Singh had on an earlier date arrested the appellant in a case FIR No. 64/93 u/s 408 IPC of P.S. Punjabi Bagh with the assistance of deceased Krishna. He identified the deceased in the hospital and informed that she was Krishna, wife of Sanjiv (appellant) who was arrested by him in the earlier case.

SI Ranbir Singh then proceeded to the spot of occurrence and got it photographed. He also prepared the rough site plan. He found some burnt pieces of clothes lying near the door as well as the central room of the house from where the odour of kerosene oil was emanating. He also found 15 burnt and unburnt match sticks besides some burnt pieces of bidi at the spot. Those articles were taken into possession. The Investigating Officer also collected the sample earth from the spot. He also found one plastic container smelling of kerosene oil at the spot of occurrence which was seized after converting it into a sealed packet.

Father of the deceased Bhule Ram and her cousin Zile Singh PW10 identified the body of the deceased in the mortuary. Dr. L.K. Barua, PW13 conducted the post mortem examination on the body of the deceased on 15.4.1993 and in his report, he opined that the deceased had sustained 100% superficial to deep burns caused by fire flame and according to him, the cause of death was shock due to 100% superficial to deep burns. Scalp hair of the deceased were preserved, sealed and handed over to the police. As per the CFSL report, the residue of kerosene oil was found on the scalp hair, burnt pieces of clothes, empty plastic can and the earth control samples seized from the spot. The appellant was arrested by SI Ranbir Singh from Village Gulawati, District Bulandshehar, U.P. and was identified by Inspector Harpal Singh.

On completion of the investigation, the appellant was sent for trial for the murder of Ms. Krishna. He was charged u/s 302 IPC. The appellant pleaded innocence and claimed to be tried.

In order to bring home the guilt of the accused, prosecution has examined 18 witnesses. None of them however, is an eye witness to the occurrence and the prosecution case rests mainly on two dying declarations purported to have been made by the deceased Smt. Krishna and the physical identification of the appellant Sanjiv by Inspector Harpal Singh, PW15 as the husband of the deceased referred to in her dying declarations.

The first dying declaration Ex.PW17/A relied upon by the prosecution is purported to have been made by the deceased in presence of Dr. H.M. Sidharth, PW17, who recorded it in the form of the alleged history given by the patient in the following words alleged h/o being burnt by pouring kerosene oil & setting her on fire by her husband. PW17, Dr. H.M. Sidharth in his statement in the Court confirmed the above referred dying declaration having been made by the deceased.

The second dying declaration relied upon by the prosecution is the statement Ex.PW1/A of the deceased Krishna, stated to have been made to SI Ranbir Singh. It has been proved by SI Ranbir Singh, PW18. PW1, Dr. Ashok Kumar in his evidence stated that the above referred dying declaration Ex.PW1/A was recorded by SI Ranbir Singh in his presence and he appended his signatures as a witness to the dying declaration. He also stated that when the said dying declaration was recorded, the witness was in a fit state of mind and was able to give rational answers to the questions put to her.

The appellant was examined u/s 313 Cr.P.C to provide an opportunity to explain the incriminating circumstances appearing in evidence against him. The appellant denied having married or ever resided with the deceased and claimed that he has been falsely implicated in this case. According to him, on the day of the occurrence he was not in Delhi but at his native place, Village Gulawati, District Bulandshehar. He examined DW1 Jitender, Son of Sukhbir Singh in his defence.

On conclusion of trial, the learned trial Court, relying upon the dying declarations made by the deceased, found the appellant guilty of setting the deceased on fire after pouring kerosene on her and convicted him u/s 302 IPC in terms of the impugned judgment.

Learned Counsel for the appellant has assailed the impugned judgment on two counts. He has contended that in the instant case, the conviction of the appellant rests solely on the purported dying declarations Ex.PW17/A and Ex.PW1/A made by the deceased in presence of PW 17, Dr. H.M. Sidharth and SI Ranbir Singh, PW18 respectively. It is submitted that neither of the said two dying declarations are reliable and their authenticity is highly doubtful. The second submission on behalf of the appellant is that even if the dying declarations are taken to be authentic and reliable, then also the dying declarations only say that it was one Sanjiv, husband of the deceased, who had set her on fire after pouring kerosene oil on her. In order to succeed in the case, the prosecution was required to establish the physical identity of the appellant as the Sanjiv Kumar referred to in the dying declarations, which the prosecution has failed to establish. Thus, learned Counsel has urged us to set aside the impugned conviction u/s 302 IPC.

Learned Counsel for the State, on the other hand, has defended the impugned judgment. He has contended that the dying declarations of the deceased Ex.PW17/A and Ex.PW1/A have been proved by PW17, Dr. H.M. Sidharth and PW18, SI Ranbir Singh respectively and there is no reason whatsoever, as to why said two witnesses, who are public servants, would go out of the way to falsely implicate the appellant. There is no evidence on record to suggest that either of the witnesses had any motive to falsely implicate the appellant, therefore, there is no reason to suspect the reliability of the dying declaration. Learned Counsel for the State has further submitted that even the identity of the appellant as the husband of the deceased referred to in the dying declaration is established by the testimony of Inspector Harpal Singh, PW15, who had no motive to depose falsely against the appellant.

Coming to the first dying declaration Ex.PW17/A, which is stated to have been made by the deceased in presence of PW17 Dr. H.M. Sidharth at the time of preparation of her MLC Ex.PW17/A. While giving the history of cause of having suffered burns, PW17, Dr. H.M. Sidharth was categoric in his statement made to the Court that Constable Y. Mohan Rao had brought the deceased to ESI Hospital on 10.4.1993 at 11.00 a.m. in burnt condition and the deceased herself gave him the history of being burnt by pouring kerosene oil and set on fire by her husband whose name she had disclosed as Sanjiv. Aforesaid version of PW17 finds corroboration from the MLC Ex.PW17/A contemporaneously recorded by him. In the MLC, Dr. Sidharth has recorded alleged h/o being burnt by pouring kerosene oil and setting her on fire by her husband. Indeed the name of the husband does not find mention in the history recorded by Dr. H.M. Sidharth, PW17 but at the top of MLC against the name of the deceased Krishna, doctor has recorded in his own hand writing, wife of Sanjiv, which corroborates the version of PW17 that the deceased had given the name of her husband to the doctor. There is no reason to suspect the correctness of version of PW17, who is a public servant and who obviously had no reason or motive to make false averment regarding the history given by the patient in the MLC. Analyzing the situation from the other angle, it is seen that the deceased was taken to the hospital by Constable Y. Mohan Rao, PW12, who admittedly is not an eye witness of the occurrence. Therefore, the only person who could have given the history to PW17 Dr. Sidharth could be the deceased Krishna. Thus, we have no hesitation in concluding that the prosecution has been able to establish the dying declaration Ex.PW17/A made by the deceased in the presence of Dr. H.M. Sidharth.

Coming to the second dying declaration, Ex.PW1/A which is purported to have been made by the deceased Krishna in presence of SI Ranbir Singh, PW18. Aforesaid dying declaration Ex.PW1/A was recorded in Hindi and its translated version in English reads as under:

I reside at the aforesaid address. About two years back, I was married to Sanjeev resident of Gulawathi, Bullandshahar, U.P. No child is born so far. MY husband was in service with some Mr. Aggarwal in Punjabi Bagh as driver. Some times before, my husband fled from there having stolen Rs. 1,80,000/-(one lac and eighty thousand only) from him (Mr. Aggarwal). Later he was arrested by the police and the stolen cash was recovered from him. Mr. Aggarwal had terminated his services and after releasing on bail, he was not doing any job now a days. Whenever he came to the house, I advised him to do some gainful job with honesty whereon he used to pick up quarrel with me and beat me. Today at 10.30 A.M. in the morning when he came to the house, I advised him to do some gainful job whereupon he immediately got enraged and he having sprinkled kerosene on me, put me on fire immediately and fled from the place of occurrence. On my raising alarm, some persons including one policeman reached there and he (policeman) got me admitted here in the hospital. My husband Sanjeev having sprinkled kerosene on me, put me on fire with an intention to murder me. Legal action may please be taken against him.

I have heard the statement and the same is correct.

Learned Counsel for the appellant has contended that a bare perusal of the dying declaration Ex.PW1/A would show that it is prolific and it contains the details about an earlier criminal case pertaining to theft of Rs. 1,80,000/-by the appellant from his employer Mr. Aggarwal and his arrest in the said case as also the recovery of cash from him. He has argued that given the fact that the deceased had suffered 100% superficial to deep burns and her face was fully burnt, it is highly improbable that she could have given such a prolific statement to the Investigating Officer and a possibility cannot be ruled out that the aforesaid facts relating to the employment of the appellant with one Mr. Aggarwal and his arrest in a theft case involving Rs. 1,80,000/-has been introduced by the Investigating Officer on his own with a view to implicate the appellant with the help of the testimony of Inspector Harpal Singh, PW15, who, as per the prosecution case was the Investigating Officer of the above referred case mentioned in the dying declaration.

We find force in the contention of learned Counsel for the appellant. The appellant, as per the MLC, Ex.PW17/A and the post mortem report had suffered 100% superficial to deep burns with her face totally burnt and blackened. Therefore, it is apparent that the appellant must have been under severe pain and trauma and since her face was burnt as stated by Dr. L.K. Barua, PW13, who conducted the post mortem, obviously she must be feeling difficulty in speaking also. Therefore, it is highly improbable that the deceased might have given the details of the theft case against Sanjiv in her dying declaration Ex.PW1/A. Thus, we are not inclined to rely upon at least that part of the dying declaration which is doubtful. However, there can be no doubt against the correctness of dying declaration Ex.PW17/A, therefore, as such we conclude that prosecution has been able to establish that the deceased made a dying declaration in presence of the doctor implicating her husband Sanjiv as the person who had set her on fire.

The dying declaration helps the prosecution only to the extent that it establishes the identity of the culprit as one Sanjiv, who was the husband of the deceased. However, in order to bring home the guilt of the deceased, the prosecution was also required to fix the physical identity of the appellant as the same Sanjiv who was the husband of the deceased. The prosecution, in order to prove the physical identify of the appellant, has relied only on the testimony of Inspector Harpal Singh, PW15. No documentary evidence like photographs, ration card and voter card etc. has been proved on record. PW15, Inspector Harpal Singh has stated in his evidence that he had arrested the appellant in the above referred theft case pertaining to theft of Rs. 1,80,000/-from 330, J.J. Colony, Madipur. No witness from 184, Widow Colony, Punjabi Bagh or from the neighbourhood of 330, J.J. Colony, Madipur has been examined by the prosecution to establish that the appellant and the deceased had ever lived together at either of the addresses as husband and wife or in any other capacity. This circumstance casts a doubt upon the fairness of investigation. We are thus, left with the sole testimony of Inspector Harpal Singh to establish the identity of the appellant as the culprit referred to in the dying declaration. His version is also not reliable, firstly, because as per the prosecution case, there was no occasion for him to reach at the hospital along with the SHO. Secondly, the case of the prosecution is that Inspector Harpal Singh on reaching the hospital along with SHO, identified the deceased as Krishna, who had helped him in getting her husband Sanjiv Kumar (appellant) arrested in a case u/s 408 IPC, P.S. Punjabi Bagh, involving a sum of Rs. 1,80,000/-. Otherwise, Inspector Harpal Singh has no connection whatsoever with the deceased. It is the case of the prosecution that PW12, Constable Y. Mohan Rao took the deceased to the hospital from the spot of occurrence. Constable Y. Mohan Rao is categoric in his assertion that the face of the deceased was burnt to the extent that it was unidentifiable. Even the post mortem Dr. L.K. Barua, PW13 has stated that the whole face and the neck of the deceased had suffered first degree burns and the face was partly black. Under those circumstances, we find it hard to believe that Inspector Harpal Singh, PW15 could have identified the deceased. Not only this, prosecution has also examined Zile Singh, PW10, a cousin of the deceased, who stated in the cross-examination that the face of the deceased was totally burnt and her dead body was identified by her father and he believed him. This implies that even the cousin of the deceased was unable to identify the dead body of the deceased from her face, which strengthens doubt against the correctness of the testimony of PW15, Inspector Harpal Singh. Under these circumstances, we are of the view that the prosecution has failed to prove the identity of the deceased as the person who has been referred to by the deceased in her dying declaration as her husband Sanjiv. Therefore, he is entitled to at least the benefit of doubt.

We may note that, from the discussion above, the facts relating to the case of embezzlement registered against the appellant and his arrest by Inspector Harpal Singh in that case with the help of the deceased has been introduced in the dying declaration Ex.PW1/A with a view to provide a motive for killing and also to prove some sort of corroboration to the testimony of PW15, Inspector Harpal Singh. The least expected by the Investigating Officer in this case was to examine the independent witnesses from the neighbourhood of the place of occurrence at 330, J.J. Colony, Madipur to find out if the appellant actually was the husband of the deceased or he was living with the deceased in a live in relationship. The Investigating Officer did not even try to get the appellant identified from the father and cousin of the deceased during investigation either at the police station or by moving the Court for holding the Test Identification Parade. This reflects upon the shoddy manner in which the investigation of the case has been conducted and benefit of the lacunas in the investigation must go to the appellant.

The result of the aforesaid discussion is that the prosecution has failed to establish the guilt of accused beyond doubt, therefore, the impugned judgment of conviction cannot be sustained. It is accordingly set aside and the appellant is acquitted, giving him benefit of doubt.

Appellant is on bail. His bail and surety bond are discharged.