Sharmishtha vs The State Of NCT Of Delhi

Arun Bhardwaj, J

The present appeal assails the judgment of conviction dated 21.05.2005 and order of sentence dated 23.05.2005 passed by the learned Additional Sessions Judge, Karkardooma, Delhi (hereinafter referred to as ‘Trial Court’) in Sessions Case no. 163/2002 arising out of FIR No. 527/98 P.S Kalyan Puri, registered under Sections 498A/307/354//201/34 of Indian Penal Code (hereinafter referred to as ‘IPC’).

Vide the impugned judgment, the learned Trial Court has convicted the appellant for offences under Sections 302/34 and 498A/34 of the IPC and, by the impugned order of sentence, sentenced her to life imprisonment along with a fine of Rs. 3,000 under Section 302/34 of the IPC and Rigorous Imprisonment for two years and a fine of Rs 2000/-, in default simple imprisonment for two months, under Section 498A/34 of the IPC.

The deceased- Dayawati was admitted in LNJP Hospital by her husband Tilak Raj (ASI in Delhi Police) on 21.10.1998 with burn injuries. She was declared unfit for recording her statement by the treating doctor.

However, on the next day, i.e. 22.10.1998, she was declared fit for recording her statement. As such, her statement was recorded by the SDM, which reads as under:

SDM arrived at the hospital at 12.20 PM and recorded in his handwriting her statement in Hindi, in question-answer form as under:-

English translation of this statement, as available on record, is as under:

On the directions of the SDM, FIR No.527/98 was registered at Police Station Kalyan Puri, Delhi under Sections 498A/307/201/354/34 of the IPC.

On 23.10.1998, Dayawati succumbed to the burn injuries suffered by her.

On completion of investigation, chargesheet was filed against Tilak Raj (her husband), Prem Singh (her father-in-law) and Anokhi Devi (her mother-in-law) for the offence under Sections 498 A/201/304A/302/34 of the IPC. Raj Kumari (Sister-in-law of the deceased) was prosecuted for the offence under Section 498 A/34 of the IPC.

Tilak Raj, Prem Singh and Anokhi Devi were convicted by the learned ASJ vide judgment dated 11.07.2002 for the offence under Sections 498A/201/302/34 of the IPC. Raj Kumari was convicted for the offence under Section 498A/34 of the IPC.

Tilak Raj, Prem Singh and Anokhi Devi challenged their conviction vide Crl.A.No.600/2002 and Rajkumari challenged her conviction vide Crl.A.No.599/2002.

Prem Singh expired during pendency of the appeal and as per order dated 05.05.2014, the appeal, qua him, has abated.

Appeals filed by other three convicts against their convictions have been disposed of by this Court vide separate judgment passed today.

In Criminal Appeal No.600/2002, Tilak Raj has been convicted under Sections 302/201/498A/34 of the IPC. Anokhi Devi has been convicted under Sections 302/201/34 of the I.P.C. She has been acquitted under Section 498A of the IPC. However, she has been let of by modifying the sentence to the period undergone (five years, seven months and a day) keeping in view her age of 77 years. Criminal Appeal 599/2002 filed by Raj Kumari has been allowed acquitting her for the offence under Section 498A of the IPC.

Shamishtha, who is the appellant in this case, is the second sister-in-law of the deceased Dayawati.

She was declared a proclaimed offender vide orders dated 20.04.2001 and therefore she could not be tried along with other accused.

Shamishtha was apprehended on 11.09.2002 and a supplementary challan was filed against her.

The prosecution examined twenty witnesses in its support including the IO, the SDM, the brother of the deceased, and the medical officers. No witness was examined in defense by the appellant. The learned ASJ has summarized the PWs examined in this case as under:

Dr. Vishal Raina, who endorsed on the MLC of the deceased being fit for statement, and Dr. Bhim Singh, who conducted the post-mortem, were examined in the main case as PW-20 and PW-15 respectively. However, neither of them was examined in the trial of the present case.

In her statement under Section 313 of the CrPC, the appellant denied the prosecution case. She stated that she is innocent and no demand was ever made either by her or any of her family members. She further stated that she was married earlier to the deceased and was residing with her in-laws happily and separately from the house of her brother and deceased. She stated that she has no concern with the family affairs of deceased and her husband's family. She claimed that on the day of incident, she was not even present at the alleged spot and was very much present in her in-law’s house and till the date of her arrest, she was very much available there. She has stated that her relations with the deceased were very cordial.

As noted herein above, the appellant has been convicted vide the impugned judgment dated 21.05.2005 passed by the learned ASJ in S.C. No. 163/02 under Section 302/34 and 498A/34 of the IPC and has been sentenced as recorded by us herein above.

The said judgment and order are the subject matter of present appeal.

To complete the narration, it is recorded here that even today, there are two proclaimed offenders in this case. They are Hans Raj (brother-in-law of the deceased) and Sudesh (third Sister-in-law of the deceased).

For the sake of clarity, the details of the family members of the deceased Dayawati and the status of their cases is as under:

When this appeal came up for final arguments before this Court, the learned counsel for the appellant submitted that the submissions made by him in CRL.A. 599/2002 and CRL.A. 600/2002 be considered for this appeal as well. This Court, therefore, proceeded to hear the submissions of learned APP for the State, while recording as under in its order dated 22.09.2026:

The learned Trial Court noted that the dying declaration was recorded by the SDM PW-3 after the victim was declared fit for recording her statement by Dr. Vishal Raina on the MLC of the deceased. The dying declaration bears the thumb impression of Dayawati, signatures and the endorsement made by the SDM.

The defense of the accused was that as per the evidence of Dr. Bhim Singh (PW-15 in the main case) the hands of the victim were degloved that is the skin on the hands of the deceased was peeled off and she was not in a position to thumbmark the dying declaration.

This defense was taken despite the fact that Dr. Bhim Singh was not even examined as a witness in this case by the prosecution. The learned defense counsel relied on and referred to the evidence of Dr. Bhim Singh, who was examined as PW 15 in the case of other co-accused in a separate trial. This is impermissible.

However, this defense was dealt with by the learned Trial Court observing that the evidence of Dr Bhim Singh is of no avail to the defence because Dr Bhim Singh came to the picture at a later stage of conducting post-mortem on the dead body of the deceased on 23.10.98. The relevant stage for seeing the condition of the deceased was on 22.10.98 at 12:15 p.m. and not on 23.10.98.

It was observed by the learned Trial Court that Dr Vishal Raina was the best witness who could have deposed about the condition of the hands of the deceased because he had given fitness certificate. It was observed by the learned Trial Court that Dr Vishal Raina was not examined on this aspect and it was not suggested to him that the condition of the thumbs of the deceased was such at the time of giving of fitness certificate that she was not in a position to put her thumb impression on dying declaration.

The learned Trial Court noted that a bare perusal of the dying declaration shows that the thumb impression of the deceased on it is not very clear, meaning thereby, it is quite possible her having put her thumb impression on the dying declaration in the manner as reflected at point B in Exhibit PW 3/A.

The stand of the accused that the dying declaration is fabricated and the entire family of the accused has been falsely implicated was dealt with by the learned Trial Court by observing that the dying declaration clearly mentions that third sister-in-law (nanad), Raj Kumari was not present at the time of this incident.

It was observed that neither it was suggested to the doctor who had given the certificate of fitness for recording the statement nor to the SDM that the deceased was not in a position to speak or make the dying declaration. It was observed that although Dayawati had sustained 100% burns, but it does not mean that in such a situation, she would not have been able to speak. It was observed that after administration of injections, namely Fortwin and Phenargen, the pain of the deceased would have considerably reduced.

The learned Trial Court was of the opinion that the deceased was in a position to speak and give the dying declaration at that time, as stated by the prosecution.

The plea of alibi taken by this accused, relying on the statement of Ashok Kumar (PW-4), one of the brothers of the deceased, that the appellant was present at her in-laws house at the time of incident, was dealt with by the learned Trial Court by recording that the same witness has also stated that he was told by the deceased that on account of non-fulfilment of demand of Maruti car, the present accused along with other co-accused had set the deceased on fire. The dying declaration of the deceased was given more weightage than the evidence of Ashok Kumar (PW-4) observing that when a person is on the verge of death, then such a person would ordinarily not lie.

It was observed that no reason has come on record to show why the deceased would falsely implicate her sister-in-law (nanad) (present accused).

The defence has also relied on the statement of IO of the case, who has stated that present accused was residing with her in-laws at the time of this incident. The learned Trial Court was of the view that this stray admission in the cross-examination of the IO is apparently with a view to help the accused. The IO had not gone to the matrimonial house of the present accused immediately after this incident. Therefore, the IO cannot vouch safe about the presence of this accused at her matrimonial house at the time of incident.

The learned Trial Court observed that the dying declaration inspires utmost confidence and is not a tutored statement and found no hesitation in relying upon the same.

Insofar as motive is concerned, the learned Trial Court relied on the dying declaration in which the deceased had stated that “they” used to harass her. The learned Trial Court held that the reference to “they” refers to present accused as well as all other accused who were named in the dying declaration.

The learned Trial Court was of the view that the deceased was being harassed for not bringing a Maruti car and was cornered in the gallery in her matrimonial house and kerosene oil was thrown upon her by the present accused while co-accused had caught hold of her hand and her husband had put her on fire.

Reliance was placed on evidence of PW-4, who is the brother of the deceased, who has stated in his evidence that upon regaining consciousness in the hospital, his sister Dayawati had told him that on account of non-fulfillment of demand of Maruti car, the appellant had poured kerosene oil over her and she was put on fire by her husband. The learned Trial Court formed the opinion that the motive for the murder of Dayawati was on account of non-fulfillment of demand of dowry for which the appellant along with co-accused had burnt the deceased.

The learned Trial Court observed that nothing has been brought out in the cross-examination of Dr. Bhim Singh and Dr. Vishal Raina in the main case to establish that the death was due to suicide. The learned Trial Court came to the conclusion that the death was homicidal and not suicide as alleged by the defence.

The learned Trial Court had laid emphasis on the fact that the appellant was absconding from the very beginning. Therefore, the plea of alibi was refused observing that an inference of guilt can be drawn by abscondence of the appellant after the incident which unerringly points finger of guilt against the appellant and lends credence and assurance to the dying declaration.

As noted in the earlier paragraphs of this judgment, the learned counsel for the appellant did not address any argument in this appeal and relied upon the arguments addressed by him in the appeals of co-accused that is, Tilak Raj, Anokhi Devi and Raj Kumari. These are being summarized by us as under:

Mr. Aman Usman, the learned APP submitted that the testimony of PW-4, brother of the deceased, cannot be discarded as he had turned hostile for a possible reason that he had lost several members of his family within a period of six months of the incident and may have been under significant emotional turmoil.

On the role of the appellant, the learned APP, while referring to the testimony of PW-4 brother, submits that the deceased had named the appellant among others responsible for the incident and even the dying declaration attributed a role to the appellant as recorded by the SDM.

He further submits that the dying declaration cannot be discarded merely because the deceased had 100% burn injuries. He contends that percentage of burns, by itself does not establish that the deceased was incapable of making a coherent statement, particularly when the same is supported by medical endorsement of fitness.

The learned APP further submitted that the appellant’s prolonged abscondence is an additional circumstance to be considered and shows her conduct to avoid proceedings against her.

At the outset, we deem it necessary to mention that the Hon’ble Supreme Court in the case of A.T. Mydeen and another v. The Assistant Commissioner, Customs Department, 2021 INSC 697, while dealing with the question whether the evidence recorded in a separate trial of co-accused can be read and considered by the appellate Court in a criminal appeal arising out of another separate trial conducted against another accused even though for the commission of the same offence, has reiterated as under:

Therefore, the present appeal is being decided considering the evidence recorded exclusively in the present case and without relying upon the evidence in the case of the other co-accused who were tried separately in the connected appeals.

The principal question requiring determination is whether the dying declaration, EX PW 3/A, can be relied upon to establish appellant’s participation in the incident and, consequently, whether her conviction under Sections 302 and 498A of the IPC is sustainable.

From the evidence of PW-4, Ashok Kumar, brother of the deceased, it is clear that Dayawati was married to Tilak Raj as per Hindu rights and customs on 09.05.1997. As per PW-2 Dr. K.S. Sachdeva, on 21.10.1998, Dayawati was brought to JPN hospital in a CATS ambulance by her husband Tilak Raj with deep burns all over her body with 100 percent burns. MLC Ext.PW2/A was prepared by him according to which patient was unfit for statement. PW-10 Constable Umer Mohammad gave information to P.S. Kalayanpuri, on which, DD Entry No.22A, Ext. PW7/A, was recorded by the duty officer Head Constable Jagdish Singh.PW-1 ASI Sobran Singh was entrusted DD No.22/A for investigation. He along with Constable Surat Singh went to JPN Hospital in burn ward. He informed the SDM of this incident who directed him to inform when the injured is fit for statement.

On 22.10.1998, Constable Surat Singh informed PW1 ASI Sobran Singh that the patient is fit for making statement. The SDM was informed of the same, who came to the hospital for recording the statement of Dayawati. As per PW-7 Dr. Prabhat Srivastava, on 22.10.1998 at about 12.15 Noon, Dr. Vishal Raina had declared the patient fit for statement and certified the same on MLC, Ext.PW7/A.

PW-3 Ravi Dagich, SDM received the information from PS Kalayanpuri at around 11:00 AM that Dayawati was fit to make statement. He went to the hospital and, at 12:15 PM, obtained opinion of the Doctor on her MLC that she was fit to make her statement. He recorded the statement of Dayawati in his own hand writing, Ext.Pw3/A, and also took her thumb impression on the said statement. The SDM directed the SHO Kalayanpuri for necessary action and to register a case against all the accused under relevant sections of IPC. Dayawati succumbed to her injuries on 23.10.1998.

PW-4 Ashok Kumar, the brother of the deceased, has deposed that deceased Dayawati was not happy in her matrimonial home. He stated that she used to tell this fact to his wife that her in- laws used to harass her but she never told that Sharmishta harassed her or taunted her. In his cross examination, he further states that after 15 days of marriage, Tilak Raj had demanded cash of Rs. 50,000 on two occasions, which was given by the father of the deceased. After some time, Tilak Raj pressurized the family of the deceased for a Maruti car. In that context, a panchayat was held, but Tilak Raj was adamant on his demand. On 21.10.1998, which was the day of “Bhaiyya Duj”, Dayawati was told that she will be sent to her parental home only if she brought a Maruti car, otherwise she would be killed.

On that day, at 7:30 PM, PW4 Ashok Kumar had spoken to Tilak Raj and his father on telephone and he was told that if their demand is not fulfilled, they will not spare Dayawati. PW-4 had asked Tilak Raj and his father that they would come to their house and talk about it. While they were discussing the matter as to what should be done, he received a phone call that Dayawati has been admitted in JPN Hospital after being set her on fire. He has stated that he along with his father and brother had gone to JPN Hospital where Dayawati was found in unconscious condition with burn injuries. He further stated that she regained consciousness on the next day and told him that on account of non-fulfillment of demand of Maruti car, her husband, mother-in-law, father-in-law, sisters-in-law and brother-in-law (Devar) had burnt her by pouring kerosene oil and it was done due to it.

When confronted with Ex. PW 4/C where the fact of pouring kerosene by Sharmishta is mentioned, he stated that Dayawati had taken the name of accused Sharmistha in the hospital as one of the accused who were responsible for this incident. However, in his cross-examination PW-4 denied Sharmishta’s presence on the spot and said that she was already at her matrimonial house in Misal Garhi beyond Ghaziabad at the time of the incident.

From a reading of the above it can be said that PW-4 Ashok Kumar, the brother of the deceased has deposed regarding the demand of dowry and Maruti car made by husband of the deceased and his father, as also threats extended in connection with the non- fulfillment of such demands, however he has not made any allegation that the present appellant Sharmishta had also made demand for dowry. He also goes on to state that although the deceased used to tell his wife that her in-laws harassed her, she had never specifically mentioned appellant doing the same.

As regards to the statement of the deceased, insofar as subjecting her to cruelty is concerned, the same has been reproduced hereinabove.

The deceased has deposed in her last statement that “Yeh mujhe tang karte the” This is only a matter of conjectures and surmises that she is referring to all her in-laws, in particular the appellant herein, in this statement. However, when she says … “मेरा घर वाला तंग करता था। दो बार 50-50 हजार पये लाई ँ। …मा ती कार लाने के िलए मेरा घर वाला कहता था। ...पित ने कहा की भैया दूज को घर जा और मा ती कार लेकर आ”, it leaves no doubt that her husband Tilak Raj subjected her to cruelty and harassed her with a view to coercing her to meet unlawful demand for car.

There is no allegation of demand of dowry against Sister-in-law Sharmishtha except the line “Yeh mujhe tang kartey the” wherein she refers to all her in-laws. It is ambiguous whether she was referring to her sister- in-law when she says “ये मुझे तंग करते थे।“

Neither the testimony of PW-4, nor the relevant portion of the dying declaration sufficiently clarifies the nature of cruelty, if any attributable specifically to the appellant. Keeping in view the above, the appellant Sharmishta is given the benefit of doubt and acquitted of the charge under Section 498A of the IPC. Her conviction under Section 498A of the IPC is therefore set aside.

The next circumstance that arises for consideration is whether the dying declaration (Ex PW 3/A) as recorded above, establishes the participation of the appellant in the commission of offence under Section 302/34 of the IPC, particularly in view of her plea that she was not present at the place of occurrence.

The appellant, in her statement under Section 313 of the Cr.P.C., has stated that she was married earlier to deceased and was residing with her in-laws happily separately from the house of the deceased and her husband. She had no concern with the family affairs of deceased and her husband’s family. She has stated that on the day of incident, she was not even present at the alleged spot and was very much present in her in-law’s house at Misal Garhi, Ghaziabad and till the date of her arrest she was very much available there.

In this regard, it is to be noted that PW-4 Ashok Kumar, the brother of the deceased has stated that on 22.10.1998 when Dayawati regained consciousness, she had told him that on account of non-fulfillment of demand of Maruti car, her husband, mother-in-law, father-in-law, sisters-in-law and brother-in-law (devar) had burnt her by pouring kerosene oil. The deceased in her statement has referred to “sisters-in-law” which will include appellant Sharmishta because the deceased had three sisters-in-law. She has stated that one of the sister-in-law Raj Kumari had not come to their house on the date of incident. That leaves two other two sisters-in-law namely Sharmistha and Sudesh. Therefore, the use of expression “sisters-in-law” by Dayawati referred to Sharmistha as well. PW4 Ashok Kumar has also stated that Dayawati had taken the name of accused Sharmistha in the hospital as one of the accused who were responsible for this incident.

Present appellant was declared a proclaimed offender and could not be arrested for more than three years of the incident. She avoided her arrest for all these years and her abscondence being a conduct under Section 8 of the Evidence Act, 1872 has to be taken into consideration along with other evidence to prove her guilt. Present appellant would have known too well about this prosecution as four of her family members were facing the trial, but still continued to be a proclaimed offender. No witness has been examined by the appellant to prove her alibi. There is no explanation for her avoiding the investigating agency for more than three years. There is, thus, no doubt that the appellant had not been able to proof her plea of alibi.

Since the learned counsel for the appellant made no arguments in this appeal and relied upon arguments made in appeal of co-accused, those arguments are discussed now.

The first contention of the appellant is that who found the patient fit to make a statement.

The evidence has shown that first of all Constable Surat Singh had informed ASI Sobran Singh that patient was fit for making statement. Secondly, the Dr. Vishal Raina has certified that the patient was fit for recording the statement. Finally, when the SDM Ravi Dadich (PW-3) recorded the statement, it also showed that the patient was fit for recording her statement. The patient had given the particulars of her family and the details of the incident. SDM is an important functionary of the State and there is no evidence to suggest that he recorded the statement of the deceased falsely. There also is no evidence of any enmity between ASI Sobran Singh and the brother of the present appellant, ASI Tilak Raj (husband of the deceased), for being the cause of manipulation in the statement of the deceased. Therefore, it is sufficient to prove that the patient was fit for giving her statement when the SDM Ravi Dadich (PW-3) came to the hospital for recording her statement.

The second argument is that the SDM was informed at 11:00 AM that victim is fit for recording her statement, but Dr. Vishal Raina had declared the victim fit for recording her statement at 12:15 PM.

In this regard, it is to be noted that it is on record that SDM Ravi Dadich had directed the IO on 21.10.1998 to inform him when the patient was fit for recording of statement. On 22.10.1998, the IO was informed by Constable Surat Singh that the deceased is fit for recording her statement, which message was conveyed to the SDM. This gap of one hour fifteen minutes is, therefore, explained. Some difference in the timing of such intimation is understandable as the evidence of these witnesses was recorded after more than two years of the incident.

It is well settled that with the passage of time, the statements made on the basis of human memory can have some discrepancies. The Supreme Court in the case of State of Punjab v. Wassan Singh AIR 1981 SC 697 has held that:

The Courts have to be conscious of the fact that the human mind neither possesses a video camera nor a tape recorder, button whereof can be pressed, to re-run a picture or re-run the voice recording. In fact, such kind of memory lapses, far from discrediting a witness, lend credence to his words for the reason perfect truths are seldom to be found, but perfect lies are often to be found (See, Suresh @ Suresh Singh v. State (NCT) Delhi, 2010: DHC:1455:DB).

Therefore, there is nothing doubtful in the manner and time of giving information by the IO to the SDM about fitness of the deceased to record her statement.

The next argument of the appellant is that PW-15 Dr. Bhim Singh, who was examined in the trial of other co-accused, has stated that a patient with 100% burns suffers from de-gloving and her thumb impression cannot be taken.

This evidence has been dealt by this Court while deciding the appeal of other co-accused, but this Court refrains itself from dealing with this question in this case because this witness was not examined in this case and the present case is to be decided on the basis of evidence recorded in this case only.

The fourth argument is that since the endorsement of Dr. Vishal Raina is not obtained on the dying declaration, it shows the SDM had not reached the hospital at 12:05/12:10 PM otherwise he would have taken the endorsement of the doctor on the dying declaration.

In this regard, it is noted that it is not mandatory that the dying declaration should have endorsement of the doctor also. Certification by a doctor is essentially a rule of caution and therefore, voluntary and truthful nature of the declaration can also be established otherwise.

In the present case, certification by the doctor of the deceased being fit to make a statement is there; merely, not taking the signatures of the doctor on the dying declaration does not make the dying declaration manipulated statement.

The fifth argument of the appellant that Dayawati committed suicide as she was not able to conceive, is also not acceptable as there is no evidence that the accused was not in a position to give birth to a child. Whereas, in case of the other co-accused, evidence of a doctor was recorded as a defence witness, but even that evidence was not accepted because the final report was withheld. In this case, leave aside placing on record final report opining that the deceased was not able to conceive, no defence evidence was led. Therefore, the argument of the appellant that Dayawati had committed suicide for her inability to conceive is rejected.

The sixth argument is that there is a delay in registration of the FIR.

In this case, the patient was unfit for recording her statement on 21.10.1998, the date of incident. Her statement was recorded by the SDM on 22.10.1998 with an endorsement “Forwarded to SHO, Kalyanpuri for necessary action and to register a case against all the accused under relevant sections of IPC”, which resulted in registration of FIR. Therefore, there is no delay in registration of FIR.

The last argument of the appellant is that had there been some truth in the case of prosecution, three prosecution witnesses, including her real brother of the deceased, would not have turned hostile.

In the opinion of this Court, there can be many reasons for a witness turning hostile. Mere fact that the brother of the deceased turned hostile is no proof of innocence of the appellant. Moreover, when questioned by learned APP for the state, the witness has partially supported the case of prosecution.

This Court therefore finds no to set aside the impugned judgment for the offence under section 302 of the IPC.

The appeal is partly allowed. The conviction of appellant under Section 498A/34 of the IPC is set aside. Her conviction under Section 302/34 of the IPC is upheld. The bail bonds are cancelled, and the appellant is directed to surrender before the Jail Superintendent within three working days from today. Otherwise, State will take steps to arrest her for serving remaining sentence awarded to her.

A copy of this Judgment be sent to the Jail Superintendent and the learned Trial Court for necessary information and compliance.