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2014 Supreme(Del) 307
High Court of Delhi
THE HONOURABLE MS. JUSTICE REVA KHETRAPAL & THE HONOURABLE MS. JUSTICE PRATIBHA RANI
Banwari Lal
Versus
State of Delhi
CRL. APP. No. 371 of 1999
Decided On : 29-01-2014
Advocate Appeared:
For the Appellant:Avninder Singh, Advocate.
For the Respondent: Rajdipa Behura, APP.
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - CONVICTION - DYING DECLARATION - ADMISSIBILITY - CORROBORATION - EVIDENCE ACT, 1872 - SECTION 32(1) - CHILD WITNESS - SECTION 164 CR.P.C. - HOSTILE WITNESS - SECTION 161 CR.P.C. - SEIZURE MEMOS - FIR - SECTION 307 IPC - SECTION 304B IPC - SECTION 498A IPC - RADHEY SHYAM V. STATE OF HARYANA - RATTAN @ RATAN SINGH V. STATE (GOVT. OF NCT OF DELHI) - LAXMAN V. STATE OF MAHARASHTRA - NALAPATI SIVALAIAH V. SUB-DIVISIONAL OFFICER, GUNTUR, ANDHRA PRADESH - CHACKO V. STATE OF KERALA - RAJARAM V. STATE OF NCT OF DELHI - RAFIQUE ALIAS RAUF & ORS. V. STATE OF U.P. - SHARDA V. STATE OF RAJASTHAN - RAM NATH MADHOPRASAD AND ORS. V. STATE OF MADHYA PRADESH - NIRMAL KUMAR V. STATE OF U.P. - STATE OF U.P. V. ASHOK DIXIT AND ANR. - PHILIP JEYASINGH V. THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES AND ORS. - DHARAMBIR AND ANR. V. STATE - SECTION 7, CHAPTER 13A, DELHI HIGH COURT RULES AND ORDERS, VOLUME 3.
Fact of the Case:
The Appellant was convicted under Section 302 IPC and sentenced to life imprisonment for setting his wife ablaze. The Appellant challenged the conviction on the grounds that the dying declaration was not admissible as it was not signed by the doctor or any other attesting witness, that the Investigating Officer did not obtain the presence of the Magistrate for recording the dying declaration, that the doctor who certified the deceased to be fit for making the statement was not examined, that the testimony of the child witness was unreliable, that the prosecution case was contradicted by the testimonies of the material witnesses, that the seizure memos were prepared after the FIR was registered, that there was a gap between the end of the dying declaration and the thumb impression affixed upon it, that the prosecution story was belied by the presence of undigested food in the stomach of the deceased, that the burn injury sustained by the accused showed that the deceased caught fire while she was cooking, that the only independent witness was hostile to the prosecution's case, and that there were too many DDs recorded within a short span of time.
Finding of the Court:
The Court held that the dying declaration was admissible as it was recorded by the Investigating Officer after obtaining the fitness certificate of the doctor, that the Investigating Officer had made efforts to contact the SDM but he was not available, that the doctor who certified the deceased to be fit for making the statement was examined and he had clearly stated that he had examined her and opined her to be fit to make a statement, that the testimony of the child witness was reliable as it was recorded by the Metropolitan Magistrate under Section 164 Cr.P.C. and was corroborated by the testimonies of the other prosecution witnesses, that the contradictions in the testimonies of the material witnesses were minor and did not go to the root of the prosecution case, that the seizure memos were prepared on the same day as the FIR was registered and the death of the deceased took place, and that the gap between the end of the dying declaration and the thumb impression affixed upon it was explained by the Investigating Officer as being due to the fact that the deceased had put her thumb impression in lying condition. The Court also held that the prosecution story was not belied by the presence of undigested food in the stomach of the deceased as it was possible that she had eaten food before the incident, that the burn injury sustained by the accused showed that he had tried to drag the deceased inside the room while she was on fire, and that the only independent witness had supported the prosecution case in certain aspects of his testimony.
Issues: 1. Whether the dying declaration was admissible in evidence? 2. Whether the testimony of the child witness was reliable? 3. Whether the contradictions in the testimonies of the material witnesses were fatal to the prosecution case? 4. Whether the seizure memos were prepared after the FIR was registered? 5. Whether the gap between the end of the dying declaration and the thumb impression affixed upon it rendered the dying declaration inadmissible? 6. Whether the prosecution story was belied by the presence of undigested food in the stomach of the deceased? 7. Whether the burn injury sustained by the accused showed that the deceased caught fire while she was cooking? 8. Whether the only independent witness was hostile to the prosecution's case? 9. Whether there were too many DDs recorded within a short span of time?
Ratio Decidendi: 1. A dying declaration is admissible in evidence even if it is not signed by the doctor or any other attesting witness, provided that it is recorded by the Investigating Officer after obtaining the fitness certificate of the doctor. 2. The testimony of a child witness is reliable if it is recorded by the Metropolitan Magistrate under Section 164 Cr.P.C. and is corroborated by the testimonies of the other prosecution witnesses. 3. Minor contradictions in the testimonies of the material witnesses do not go to the root of the prosecution case. 4. Seizure memos prepared on the same day as the FIR is registered and the death of the deceased took place are not inadmissible. 5. A gap between the end of the dying declaration and the thumb impression affixed upon it does not render the dying declaration inadmissible if it is explained by the Investigating Officer as being due to the fact that the deceased had put her thumb impression in lying condition. 6. The presence of undigested food in the stomach of the deceased does not belie the prosecution story if it is possible that she had eaten food before the incident. 7. A burn injury sustained by the accused on his hand shows that he had tried to drag the deceased inside the room while she was on fire. 8. An independent witness who supports the prosecution case in certain aspects of his testimony is not hostile to the prosecution's case. 9. The recording of too many DDs within a short span of time does not render the prosecution case unreliable.
Final Decision: The Court dismissed the appeal and affirmed the judgment of the trial court and the order on sentence.
Reva Khetrapal, J.
1. The present appeal has been filed against the judgment of conviction under Section 302 IPC and the consequent sentence of simple imprisonment for life imposed upon the Appellant in addition to fine of Rs.2,000/- and in default of payment of fine to undergo simple imprisonment for one year.
2. The criminal law machinery was set in motion at 10.18 p.m. on 25.3.1992 on receipt of DD No.17A (Ex.PW7/A) at Police Station Geeta Colony to the effect that information was received from PCR about the burning of a lady at a house near Rani Garden, Shiv Mandir. On the same day, at about 10.50 p.m., another information was received from JPN Hospital given by the duty constable about the admission of Kiran, wife of Banwari Lal at the said hospital, which was entered in the roznamcha by the duty officer of Police Station Geeta Colony as DD No.18A (Ex.PW7/B). Copy of the said DD was handed over to Constable Madhu for onward transmission to Sub-Inspector Arun Kumar.
3. On receipt of DD No.17A, Sub-Inspector Arun Kumar, who was on emergency duty, along with Constable Adesh Kumar reached the spot at House No.127, Rani Garden where it was revealed that injured Kiran who had received burn injuries had been removed by her father Swaran (PW4) and neighbour Baldev Raj (PW2) to JPN Hospital. In the meantime, Head Constable Iqbal and Constable Prehlad Singh also reached the spot and leaving them to guard the spot, Sub-Inspector Arun Kumar along with Constable Adesh went to JPN Hospital, where he collected the MLC of the injured and recorded her (Kiran’s) statement (Ex.PW23/A) after obtaining the opinion of the doctor (PW26) that the injured was fit for making statement. After recording the statement of the injured, Sub-Inspector Arun Kumar along with Constable Adesh came back to the spot where he found the crime team and the photographer. The SHO was also present at the spot. Sub-Inspector Arun Kumar made his endorsement on the statement of the injured Kiran, which is Ex.PW23/B and handed over the same to Constable Adesh for registration of the case, who took the same to the Police Station and got registered the case vide FIR No.83/92 (Ex.PW10/A). He then inspected the site and prepared the site plan (Ex.PW23/C) and recorded the statements of witnesses including that of public witness Kasturi Lal (PW19), who had overpowered the accused and produced the accused before him. Seizure Memos (Ex.PW12/A to 12/D) were prepared after seizure of the articles at the spot and the articles were seized and sealed. Seal after use was handed over to Kasturi Lal. The accused was got medically examined in JPN Hospital for the burn injuries sustained by him.
4. On 26.3.1992, at about 11.50 a.m., the Investigating Officer Sub-Inspector Arun Kumar received copy of DD entry No.7A (Ex.PW8/A) through Constable Ashok regarding the death of Smt. Kiran. On receipt of the said information, he communicated the same to the SHO concerned, who, in turn, apprised the SDM. The SHO and the SDM Shri R.K. Mishra reached the mortuary where inquest proceedings were completed by the SDM and the postmortem got conducted (Ex.PW18/A). Apparently, at this point of time, the SDM directed that the case be converted from one under Section 307 IPC to one under Section 498A and 304B IPC. On the aforesaid direction of the SDM, Sub-Inspector Arun Kumar added Sections 302/304B and 498A IPC and informed the SHO in this regard. Further investigation was taken over by the SHO himself.
5. On 1.4.1992, on the direction of the SHO, SI Arun Kumar took child witness PW22 Bablu, son of the deceased, to the Court and got recorded his statement under Section 164 Cr.P.C. (Ex.PW21/B) through the Metropolitan Magistrate by moving an application in this regard (Ex.PW23/E). On 10.4.1992, the exhibits were sent to the CFSL on the direction of the SHO. Later on, on 5.6.1992, SI Arun Kumar collected the scaled site plan and handed over the same to the SHO.
6. In order to substantiate its case agai
