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IN THE HIGH COURT OF DELHI
Pradeep Nandrajog and Suresh Kait, JJ.
Appellants: Mohinder Kumar
Vs.
Respondent: State
Crl. A. No. 96/1999
Decided On: 02.05.2011
CRIMINAL APPEAL - SECTION 302/498A IPC - DYING DECLARATION - FITNESS OF THE VICTIM - DELAY IN REGISTRATION OF FIR - APPRECIATION OF EVIDENCE - SECTION 498A IPC - CONVICTION AND SENTENCE - SECTION 302 IPC - CONVICTION SUSTAINED - SECTION 498A IPC - CONVICTION SET ASIDE.
Fact of the Case:
The appellant was convicted for the offence punishable under Section 498A IPC and Section 302 IPC. The conviction was sustained on the evidence of the last dying declaration made by Seema, the deceased wife of the appellant, which was accepted by the learned Trial Judge as trustworthy and to which the learned Trial Judge has found corroboration with respect to the scene at the site/place of the incident.
Finding of the Court:
The Court held that the dying declaration of Seema Ex.PW-13/C was reliable, convincing and inspires confidence. The Court also held that the delay in registration of the FIR was explained by the fact that the SDM took time to complete the investigation and pass the necessary orders on 17.3.1992. The Court further held that the appellant cannot be convicted for the offence punishable under Section 498A IPC as the dying declaration of Seema Ex.PW-13/C nowhere records of dowry harassment.
Issues: 1. Whether the dying declaration of Seema Ex.PW-13/C was reliable and trustworthy? 2. Whether the delay in registration of the FIR was explained? 3. Whether the appellant can be convicted for the offence punishable under Section 498A IPC?
Ratio Decidendi: 1. The Court held that the dying declaration of Seema Ex.PW-13/C was reliable, convincing and inspires confidence. The Court relied on the following factors to arrive at this conclusion: a) The dying declaration was corroborated by other material and cogent evidence. b) The appellant's conduct after the incident was suspicious and incriminating. c) The appellant's presence in the house when Seema got burnt is a proved fact and that Seema maintained initially that her husband was away from the house for 2 days and so did Reena falsely state we have evidence that the initial statements of Seema were wrong and thus the same have to be discarded for said reason alone and not the reason given by the learned Trial Judge who construed Seema saying that the stove burst as literally to be understood; we clarify that from the falsity in the initial statements made by Seema pertaining to the Appellant not being in the house we are concluding that Seema's initial statement were contrived by her either out of fear or under the wrong belief disclosed by Seema in her second statement recorded by the learned SDM. 2. The Court held that the delay in registration of the FIR was explained by the fact that the SDM took time to complete the investigation and pass the necessary orders on 17.3.1992. 3. The Court held that the appellant cannot be convicted for the offence punishable under Section 498A IPC as the dying declaration of Seema Ex.PW-13/C nowhere records of dowry harassment.
Final Decision: The Court maintained the conviction of the appellant for the offence of having murdered Seema and the relatable sentence imposed thereon. The Court acquitted the appellant for having committed any offence punishable under Section 498A IPC and quashed the conviction relatable thereto.
Pradeep Nandrajog, J.
1. Vide impugned judgment and order dated 6.2.1999, Appellant Mohinder Kumar, husband of deceased Seema has been convicted for the offence punishable under Section 498A IPC and Section 302 IPC. As per the order on sentence dated 10.2.1999, he has been sentenced to undergo imprisonment for life and pay fine in sum of ` 1,000/- for the offence punishable under Section 302 IPC and to undergo RI for 1 year and pay fine in sum of ` 500/- for the offence punishable under Section 498A IPC.
2. The conviction has been sustained on the evidence of the last dying declaration made by Seema which has been accepted by the learned Trial Judge as trustworthy and to which the learned Trial Judge has found corroboration with respect to the scene at the site/place of the incident.
3. The journey of the instant case commenced, when on 29.2.1992 at 22:07 PM, Lady Ct. Anju PW-1, on duty at the Police Control Room, received telephonic information from one Satish Kumar informing that a person has set his wife on fire at Gali No. 41, Sant Nagar, Burari. The said information was conveyed by her over the wireless to the local police station i.e. PS Timarpur where it was recorded vide DD No. 41-A, Ex.PW-9/B proved at the trial by HC Kanhiya Lal PW-9.
4. DD No. 41-A was entrusted to ASI Rohtas Singh PW-15, who proceeded to the place of incident where he was informed that Seema was removed to J.P.N. Hospital and thus he proceeded to the hospital where he found Seema admitted and unfit for statement and thus he collected the MLC Ex.PW-11/A of Seema and requested the SHO to send a Sub-Divisional Magistrate to the hospital.
5. Simultaneously when aforesaid was happening, Seema was taken to the hospital by her sister Reena PW-21, a fact which finds corroboration from the MLC Ex.PW-11/A, proved at the trial by the record clerk of the hospital Sh.A.R. Mehta PW-11 since the doctor who wrote the MLC had left the hospital, wherein it is recorded that the patient was brought to the hospital by her sister Reena. The doctor concerned recorded on the MLC the history of the burns suffered by Seema in the following words: "Alleged H/o sustaining burn injuries when the stove on which she was cooking food got burnt?. It also stands recorded, with respect to the identity of the person who gave the history of the burns,: "Informant - Pt. herself.? It stands recorded on the MLC that Seema had suffered 100% burns. Unfortunately, whether the burns were first, second or third degree burns have not been recorded.
6. It is obvious that the condition of Seema was fairly precarious. Seema was carrying a baby in her womb and at 7:45 AM the next day i.e. 1.3.1992, after the baby was aborted, Seema gained consciousness and was declared fit for statement at 9:30 AM, upon which Kishan Kumar the Sub-Divisional Magistrate PW-13, recorded Seema's statement Ex.PW-13/A in Devnagri script; translation whereof reads as under:
A year ago I was married to Sh. Mohinder. After marriage we were living happily and peacefully. Since last two days my husband was away from the house. Last night at about 9:00 PM when I was cooking food the burner of stove burst and my clothes caught fire. My neighbours came to my rescue and doused the fire and informed my sister Reena about the incident who immediately took me to the hospital. This is only an accident which took place due to the explosion of the stove burner. Nobody is responsible for this accident. I was never harassed by my husband for dowry or any such demands. Nobody is responsible for this accident and I do not wish to make any criminal complaint against anybody.
7. The SDM also recorded Reena's statement Ex.PW-13/DA and which we find is in Devnagri script; translation whereof reads as under:
My husband works in Mehfil Restaurant, Vijay Cinema, Delhi. Today while I was watching television in my house, at about 8:45 PM, son of the landlady of my sister came rushing to my house and told me that my sister has caught fire. At that t
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