1995 Supreme(Del) 158

High Court Of Delhi
KAMAL KUMAR - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 90 of 1990
Decided On : 02/10/1995

Headnote:(i) Indian Penal Code, 1860 - Section 302 - Death due to 100% burns - No claim that she sustained accidental fire - Claim or appellant that she had sustained suicidal burns - Plea or false implication - No eye-witness - Love affair between deceased and appellant opposed by parents - She wanted to marry appellant at any cost - Her physical condition or being pregnant - Appellant doubting her character, avoiding to marry her - Evidence on record not sufficient to hold that burn injuries sustained by deceased were homicidal - Possibility or deceased committing suicide probable.

       Held: There is no dispute of the fact that Roop Kumari had sustained burns on the night between 19th and 20th January, 1988 and on account of 100% burns she met with death on 20th January, 1988 at 4.45 p.m. Thus it is not disputed that her death is not natural and that she has met with unnatural death. But merely, because she has met with unnatural death, we cannot come to a definite conclusion that her death is homicidal. As her death is due to 100% burns, the said death might be either accidental or suicidal or homicidal. In view of the material on record, it is quite clear that it is not the case of either of the accused or the prosecution that Roop Kumari has met with accidental death. It is not the claim that she had sustained accidental fire and due to the same, she had met with death. Therefore, in the circumstances, the possibility of her death being accidental is ruled out. Therefore, there remains the possibility of either suicidal burns or homicidal burns. It is the claim of the appellant that Roop Kumari has sustained suicidal burns and taking advantage of the said burns he has been falsely implicated in this case. According to him though there was love affair between him and Roop Kumari his parents as well as parents of Roop Kumari were not in agreement for their love and marriage. The parents of Roop Kumari as well as his own parents had opposed their love-affair and had not permitted them to perform marriage with each other. (Para 26)

       Further Held: When there is question as to whether the death in question is suicidal or homicidal and when the plea is taken on behalf of the accused that the death in question is suicidal one then the court will have to consider the material on record and find out as to whether the said claim is possible and probable. For that purpose it is necessary to consider the material on record. At the cost repetition it must be said that P.W. 3 Dharam Pal, father of Roop Kumari has admitted in his cross examination that he had tried to pursuade her not to indulge in the love affair with the appellant and that she was bringing disgrace to the family by indulging in the love affair with the appellant. He has also admitted that he had also beaten her on some occasions. He has further admitted that he had taken her away from Delhi and kept her in a distant village at the native place of her mother. He has also admitted that he had searched for other proposals in order to settle her marriage. (Para 27)

       consequently Held; the close reading and the analysis of the said letters clearly shows two things that she wanted to marry the present appellant at any cost and in case she was not allowed to do so then she was going to end her life. Her letters at SI. Nos. 13, 14 & 15 also indicate and show that the present appellant was doubting her character. From the post mortem notes it is quite clear that Roop Kumari was pregnant and the present appellant was doubting her character and was also avoiding to marry her. Though she was repeatedly asking him to convince her brother and to meet her brother, the appellant was avoiding the same .At the same time she was totally confined in the house and her father was trying to arrange her marriage with somebody else. In addition to this, her letters indicate that the present appellant was also avoiding her and failed to fulfill is promise to marry her. As appellant was not taking steps to see that they are married at the earliest and as she was pregnant at the time of the incident and all her family members, relations and even small children were passing sarcastic remarks against her it seems that she must have been induced to commit suicide as threatened by her in her letters. (Para 28)

       Also Held, that in the room from where the burning body of Roop Kumari is alleged to have been taken to the hospital there were no spots of kerosene on the flooring. There were also no spots of any fire on the flooring as well as on the side wall of the said room it has also come in the evidence of the prosecution witnesses that neither the curtains in the room nor any article in the room had any burning or even blackish spot or marking. If at all the present appellant had sprinkled or poured kerosene on Roop Kumari then there would have been definitely some spots of kerosene oil on the flooring of the said room. The incident alleged to have been taken place at about 10.30 P.M. It is not the case of the prosecution that Roop Kumari was fast asleep and when she was fast asleep appellant sprinkled kerosene on her and set fire to her. It is not also the case of the prosecution that hands and legs of Roop Kumari were tied by the accused. Therefore, in these circumstances, in the natural course of human conduct she would not have remained stationary. She would have tried to run and move around the room when appellant was sprinkling kerosene on her and in those circumstances there would have been some spots of kerosene on the flooring. But no such spots are detected. (Para 31)

       Finally Held. if above discussed evidence coupled with the letters written by Roop Kumari and her physical condition of being pregnant are taken into consideration then it seems that the case that Roop Kumari herself setting fire to her body, is more probable, believable and acceptable and the claim of the prosecution that fire was set to her by the present appellant could not be accepted beyond reasonable doubt. Therefore, in view of the material on record we are unable to hold that the burn injuries sustained by Roop Kumari were homicidal one. We are unable to rule out the possibility of the said burns being suicidal. Therefore, in the circumstances, though the death of Roop Kumari is not natural we are unable to hold that it is homicidal one. (Para 36)

       (ii) Indian Penal Code, 1860 - Section 302 - Conviction under - Appeal - Death by 100% burns - No eye witness - Circumstantial evidence - Love affair between deceased and appellant - Marriage not proved - No facts showing that both of them were living together - Claim of prosecution that deceased was lastly found alive in company of appellant not acceptable - Possibility of deceased committing suicide more probable - Evidence about alleged oral dying declaration not believed - Dying declaration recorded by SDM not containing an honest account so not believed - Circumstantial evidence not sufficient to implicate appellant - Benefit of doubt to appellant – Conviction set aside. (Para 28 to 36, 47, 53, 54, 55)

       (iii) Dying declaration - Declaration recorded by SDM not in question and answer form - Absence of endorsement of doctor of having examined patient and found her to be in a fit mental condition to make statement - No certificate of doctor that he was present by side of said patient at time of recording of declaration - Endorsement made all along that her condition is critical - Dying declaration not to be relied upon. (Paras 52 & 53)

       Result: Appeal allowed.

       Conviction set aside.