Vijay Kumar Arora vs State Govt.Of Nct Of Delhi

1. This appeal by special leave, questions the legality of

Judgment dated May 15, 2008 rendered by Division Bench

of High Court of Delhi in Criminal Appeal No.183 of 1992 by

which Judgment dated September 29, 1992 passed by the

Learned Additional Sessions Judge, Delhi in Sessions Case

No.100 of 1989 convicting the appellant under Section 302 2

IPC and sentencing him to R.I. for life and fine of Rs.2000/-

in default R.I. for one year, is confirmed.

2. The facts emerging from the record of the case are as

under:

The marriage of deceased Shashi was solemnised with

the appellant on January 30, 1982. After marriage, the

deceased started living with the appellant at his place of

residence situated at Chandigarh.

3. During the subsistence of the marriage, the deceased

gave birth to a girl child on January 2, 1983 at New Delhi.

Thereafter, the deceased went to Chandigarh to reside with

the appellant. On April 4, 1983, the appellant with his wife

and child came to Delhi from Chandigarh. After visiting the

parents of the appellant, they went to the house of the

parents of the deceased and took dinner there. After taking

dinner, the appellant and the deceased with the child

returned to the house of parents of the appellant at about

11.30 pm and retired to bed. At about 2.30 am on April 6,

1983, shrieks of the deceased were heard and she was

found engulfed in the flames. At about 2.45 am on the 3

night intervening between April 5 and April 6, 1983, the

deceased was admitted to Lok Nayak Jai Prakash Narain

Hospital, New Delhi (LNJPN Hospital, for short) with burn

injuries. The Duty Constable posted at the said hospital

sent a telephonic message at about 3.00 am that Shashi,

aged about 26 years, with burn injuries sustained in her

house was admitted by her husband, i.e., the appellant.

This message was recorded at DD No.6A. On receipt of the

message, ASI Hans Raj along with Constable Umrao Singh

went to the hospital. He collected MLC of injured Shashi

wherein it was mentioned that the injured was got admitted

at 2.45 am by her husband and Dr. S.K. Bindal. It was also

mentioned therein that the accident occurred due to the

exploding of the stove. It was further mentioned in the said

certificate that her clothes were smelling of kerosene oil and

she had received extensive burns all over the body and face.

4. As per the endorsement recorded on the MLC, the

injured was declared unfit to make statement at about 4.30

am and 11 am on April 6, 1983. Under the circumstances,

ASI Hans Raj recorded the statement of the appellant in the

hospital wherein the appellant claimed that at about 2.15 4

am, his wife Smt. Shashi had got up for boiling the milk for

their three months' old child and he had got up from the

bed on hearing her shouts "Raje Raje". In his statement,

the appellant mentioned that he immediately rushed and

found his wife Shashi in flames in the kitchen and that her

clothes had caught fire while Shashi was boiling the milk on

the stove. It was also mentioned by the appellant in his

statement that he had received burn injuries on palm when

he had made attempt to extinguish the fire to save his wife.

The record shows that said injured Shashi succumbed to

her burn injuries in the hospital at about 3.15 pm on April

6, 1983. On the same day, Mr. Ram Nath Mehra, the father

of the deceased submitted a written complaint before the

Police mentioning that his daughter was burnt to death by

Beena Arora who was her mother in law as well as by V.K.

Arora who was her husband and by other family members

on the night intervening between April 5 and April 6, 1983.

It was mentioned by Mr. Mehra in his complaint that

injured Shashi had regained her senses in the hospital at

about 12.15 pm on April 6, 1983 and had declared

weepingly in his presence and in the presence of his other 5

relatives that she had been set on fire by her mother-in-law,

the appellant and his other family members. On the basis

of the complaint, offences punishable under Section 302

read with Section 34 IPC were registered and investigation

commenced. On completion of investigation, the appellant

and his mother Mrs. Beena Arora were chargesheeted for

commission of offence punishable under Section 302 read

with Section 34 IPC. As the offence punishable under

Section 302 is exclusively triable by the Court of Sessions,

the case was committed to Sessions Court, Delhi for trial.

5. The learned Additional Sessions Judge, to whom the

case was made over for trial, framed charge against the

appellant and his mother under Section 302 read with

Section 34 of the Indian Penal Code. The same was read

over and explained to them. The appellant and his mother

did not plead guilty to the same and claimed to be tried.

Therefore, the prosecution examined several witnesses and

produced documents in support of its case against the

appellant and his mother. On completion of recording of

evidence of prosecution witnesses, the learned Sessions

Judge explained to the appellant and his mother the 6

circumstances appearing against them in the evidence of

the prosecution witnesses and recorded their further

statements as required by Section 313 of the Code of

Criminal Procedure, 1973. As far as the mother of the

appellant is concerned, she claimed that she was falsely

involved in the case and was innocent. The appellant in his

further statement claimed that when he was asleep, he was

awakened by the shrieks of his wife and, therefore, had

come out in the verandah and had seen his wife in flames.

According to him, he tried to extinguish the fire with his

hands and water and in that process received burn injuries

on his hands. What was claimed by the appellant was that

he called a doctor and rang up his father-in-law but he was

not remembering the exact time at which the information

about the deceased having sustained burn injuries was

conveyed to his father-in-law. It was stated by him that he

told the family of his father-in-law to come to the hospital

and that his injured wife herself had told him that she had

caught fire while she was boiling milk on the stove. It was

also mentioned by him in his further statement that he was

informed by his wife that the stove had inflamed (bhabhak 7

gaya). He claimed in his statement that he would file a

written statement if so advised.

6. On appreciation of evidence adduced by the

prosecution, the learned Judge of Trial Court held that ASI

Mr. Hans Raj to whom DD report was marked at about 3 am

on the night intervening April 5 and April 6, 1983

conducted himself in the most dishonest and partisan

manner in making enquiry and in conducting investigation

after registration of the first information report. The learned

Judge further noticed that the conduct of Mr. V.P. Gupta,

who was the then SHO of P.S. Moti Nagar and presently

ACP was not above board. According to the learned Judge,

the then SHO Mr. V.P. Gupta had passed on his entire

burden on the shoulders of ASI Hans Raj without doing

absolutely anything in the name of fair investigation. After

noticing that the deceased had sustained accidental burns

leading to her death on the night intervening April 5 and

April 6, 1983 at her matrimonial home located at F-503,

Karam Pura, Delhi, the learned Judge held that the case

against the appellant and his mother was based on

circumstantial evidence. The learned Judge considered the 8

circumstances established by the prosecution and held that

the deceased had neither committed suicide nor received

burn injuries accidentally but was set ablaze by the

appellant. According to the learned Judge, the

circumstances brought on record were inconsistent with the

innocence of the appellant and established that, in all

human probability, the act of murder of the deceased was

committed by the appellant. The learned Judge noticed that

no satisfactory evidence could be adduced by the

prosecution to establish the guilt of original accused No.2

who was mother of the appellant. In view of the said

conclusions, the learned Judge, by judgment dated

September 29, 1992, convicted the appellant under Section

302 IPC and sentenced him to rigorous imprisonment for

life and a fine of Rs.2,000/- (Rupees two thousand only) in

default rigorous imprisonment for one year and acquitted

his mother.

7. Feeling aggrieved, the appellant filed Criminal Appeal

No.183 of 1992 before Delhi High Court. The Division

Bench of the High Court has dismissed the appeal, giving

rise to the instant appeal.

9

8. This Court has heard the learned counsel for the

parties at length and in great detail. This Court has also

considered the documents forming part of the appeal.

9. It is not in dispute that the case against the appellant

rests on circumstantial evidence. It would be advantageous

to restate the well settled law relating to appreciation of

circumstantial evidence. The evidence tendered in a court

of law is either `direct' or `circumstantial'. Evidence is said

to be `direct' if it consists of an eye-witness account of the

facts in issue in a criminal case. On the other hand,

circumstantial evidence is evidence of relevant facts from

which, one can, by process of intuitive reasoning, infer

about the existence of facts in issue or factum probandum.

Essential ingredients to prove the guilt of an accused by

circumstantial evidence are :

The law relating to circumstantial evidence is well

settled. In dealing with circumstantial evidence, there is

always a danger that conjecture or suspicion lingering on

mind may take place of proof. Suspicion, however, strong

cannot be allowed to take place of proof and, therefore, the

Court has to be watchful and ensure that conjectures and 10

suspicions do not take place of legal proof. However, it is no

derogation of evidence to say that it is circumstantial.

Human agency may be faulty in expressing picturisation of

actual incident, but the circumstances can not fail.

Therefore, many a times it is aptly said that "men may tell

lies, but circumstances do not". In cases where evidence is

of a circumstantial nature, the circumstances from which

the conclusion of guilt is to be drawn should, in the first

instance, be fully established. Each fact sought to be relied

upon must be proved individually. However, in applying

this principle, a distinction must be made between facts

called primary or basic on the one hand and inference of

facts to be drawn from them, on the other. In regard to

proof of primary facts, the court has to judge the evidence

and decide whether that evidence proves a particular fact

and if that fact is proved, the question whether that fact

leads to an inference of guilt of the accused person should

be considered. In dealing with this aspect of the problem,

the doctrine of benefit of doubt applies. Although, there

should not be any missing links in the case, yet it is not

essential that each of the links must appear on the surface 11

of the evidence adduced and some of these links may have

to be inferred from the proved facts. In drawing these

inferences, the court must have regard to the common

course of natural events and to human conduct and their

relations to the facts of the particular case. The Court

thereafter has to consider the effect of proved facts. In

deciding the sufficiency of the circumstantial evidence for

the purpose of conviction, Court has to consider the total

cumulative effect of all the proved facts, each one of which

reinforces the conclusion of guilt and if the combined effect

of all these facts taken together is conclusive in establishing

the guilt of the accused, the conviction would be justified

even though it may be that one or more of these facts by

itself or themselves is, or are not decisive. The facts

established should be consistent only with the hypothesis of

the guilt of the accused and should exclude every

hypothesis, except the one sought to be proved. But this

does not mean that before the prosecution can succeed in a

case resting upon circumstantial evidence alone, it must

exclude each and every hypothesis suggested by the

accused, howsoever, extravagant and fanciful it might be. 12

There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the

accused; and where the various links in a chain are in

themselves complete, then a false plea or a false defence

may be called into aid only to lend assurance to the Court.

10. Having noticed the principles governing the case based

on the circumstantial evidence, this Court proposes to

consider the circumstances relied upon by the prosecution.

11. The first circumstance sought to be relied upon by the

prosecution is that the deceased died a homicidal death. A

human death may be a natural one or homicidal one or

accidental or suicidal one. It is not the case of anyone that

the deceased Shashi had died a natural death. Therefore,

the question which falls for determination of this Court is

whether she died a homicidal death or a suicidal death or

an accidental death. The medical evidence on record shows

that after the deceased had succumbed to her burn injuries,

post mortem examination was conducted by Dr. G.K.

Sharma on April 7, 1983 at 12 noon. On external 13

examination, the doctor found that there were superficial

burns all over the body except patches over scalp, lower

front of abdomen, perineum, left buttock and inner part of

right buttock. According to the doctor, the approximate

area of burn was about 90%. When the post mortem was

being performed, the doctor could not smell kerosene oil.

On internal examination, it was found by the doctor that all

the organs were congested. According to the doctor, the

death of the deceased was due to shock and toxemia due to

burns by fire. What is important to notice is that the

defence had not cross-examined Dr. G.K. Sharma at all.

12. Having regard to the nature of injuries noticed by Dr.

G.K. Sharma, who had performed autopsy on the dead body

of the deceased, the Court will have to examine the question

whether those injuries were received by the deceased while

committing suicide. It may be mentioned that in the further

statement recorded under Section 313 of the Code of

Criminal Procedure, 1973, the case of the appellant is that

the deceased had died accidentally while boiling milk for the

infant and it was never claimed by him in his further

statement that the deceased had committed suicide. 14

However, it was argued by the learned counsel for the

appellant that personal diary maintained by the deceased

indicates that she was a highly sensitive woman who

expected wholehearted love and affection from the appellant

but having been thoroughly disappointed, out of sheer

disgust, frustration and depression, she might have chosen

to end her life. The relevant passage from the diary of the

deceased relied upon by the defence has been quoted in

paragraph 24 of the impugned judgment. A critical analysis

of those paragraphs from the diary does not indicate any

suicidal tendencies on the part of the deceased. No

suggestion was made by the defence to any of the

prosecution witnesses that the deceased had developed

suicidal tendencies. It is well to remember that the

deceased was well educated and a teacher by profession.

She had a three months old child. The paragraphs from the

diary quoted in the impugned judgment make it more than

clear that the relations between the deceased on the one

hand and her husband and members of his family on the

other, were strained one. However, those paragraphs do not

indicate that the deceased was of feeble mind and had 15

developed tendency to commit suicide. It is relevant to

notice that it is nobody's case that the deceased was not a

caring mother. The lingering doubt about the uncertain

future of the infant aged three months would surely deter

the deceased from committing the suicide. As noticed

earlier, the deceased in the company of the appellant and

her child had come to the house of the parents of the

appellant from the house of her parents after taking dinner.

It could not even be remotely suggested on behalf of the

appellant either to the father or to the mother or to the

sister of the deceased that when the deceased, in the

company of the appellant, had come for dinner, she was

found to be disheartened or gloomy or nervous or

depressed. The passages quoted in the impugned judgment

from the diary maintained by the deceased indicate a firm

resolve on the part of the deceased to lead a life for herself

away from her husband and her in-laws. The testimony of

the father of the deceased makes it more than clear that the

behaviour of the father-in-law of the deceased towards the

newly born child was not good at all. Under the

circumstances, if the deceased had decided to put an end to 16

her life by committing suicide, in normal course, she would

have left her daughter to the care of her own parents but no

attempt, at any point of time, was made by the deceased to

leave the infant child to the care of her parents. The

evidence of the father of the deceased on the contrary

makes it very clear that the appellant wanted to leave the

infant daughter with the parents of the deceased but the

deceased had not agreed to the said suggestion. Further,

what is normally found in a case of suicide by a recently

married woman who has given birth to a child shortly before

the suicide is that she would bolt herself in a room or a

kitchen or a bathroom to see that no one makes any

attempt to save her and would commit suicide along with

the child. However, the facts of the present case do not

indicate that the deceased had locked herself inside a room

or kitchen or bathroom nor the record shows that any

attempt was made by her to commit suicide with her infant.

As noticed earlier, the deceased was highly educated lady

and was blessed with motherhood. Normally, a woman

committing suicide will leave a suicidal note. But it is

nobody's case that any suicidal note written by the deceased 17

was found after she had received burn injuries. Further, if

the deceased had been fed up with her life and had decided

to commit suicide, she would not have failed to inform the

appellant that because of lack of love and affection on his

part she had set herself ablaze.

On overall view of the circumstances brought on the

record of the case, this Court is of the firm opinion that the

deceased did not die a suicidal death.

13. The next question which falls for consideration of the

Court is whether the deceased died an accidental death. As

observed in the earlier part of this judgment, the case of the

appellant is that while boiling milk for the infant, the

clothes of the deceased caught fire accidentally because of

the flames emanating from the stove as a result of which

she died. The panchnama of the place of incident

establishes that the place suggested by the defence where

the deceased was found engulfed in fire is a narrow passage

where several articles were lying. If the deceased had died

because of the flames emanating from the stove, the other

articles lying nearby would have been found to be burnt.

However, admittedly the panchnama of place of incident 18

does not indicate that any article was burnt except a towel

which was found partially burnt. Further, the story put

forth by the appellant that at midnight the deceased had got

up for boiling milk for the infant itself does not inspire

confidence of the Court. The deceased who was a teacher

by profession and well educated must be breastfeeding her

three months old infant and it would not be reasonable to

infer that the infant was being fed buffalo or any other milk.

It may also be mentioned that the deceased in the company

of the appellant had left her parental home between 11 pm

to 11.15 pm on April 5, 1983 and must not have gone to

sleep before 11.30 pm. From this fact, it would be

reasonable to hold that before going to the sleep, the young

infant child must have been fed and the child would not

have required another feed within two hours. Thus, the

story that deceased got up at 2.00 am in the night to boil

the milk for the infant does not inspire confidence of the

Court. The panchnama of the place of incident also makes

it clear that there was a kitchen in which there was a gas

cylinder. Therefore, even if it is assumed for the sake of

argument that the deceased had got up at 2.00 am for 19

boiling milk for the infant, it does not sound reasonable to

believe that she would attempt to light a kerosene stove in

the dingy and cramped passage normally used for washing

clothes, utensils etc. and would not go in the kitchen and

use gas connection for the purpose of heating the milk.

Further, as per the panchnama of place of the incident, the

milk container without any handle was lying near the

kerosene stove but no pliers or tangs were found. It is

difficult to comprehend or entertain a belief by a prudent

man that an educated lady like the deceased would use

such a milk pot without a handle for boiling the milk. The

photograph of the place of occurrence brought on the record

of the case makes it more than clear that a small

aluminium milk container was lying near the stove and a

partially burnt towel hanging on a peg at a height of about

5=" from the floor level of the gallery was also found. But

as noticed earlier, no other article lying nearby was

damaged due to the burns. As the record does not show

that other articles lying in the narrow passage were

extensively burnt, it becomes highly doubtful whether the

incident in question had at all took place in the passage as 20

suggested by the appellant. What is claimed by the

appellant is that because of the bhabhak of the stove, the

cotton garments put on by the deceased had caught fire.

However, a brief burst of flames, i.e., bhabhak at the time

when the stove is ignited first time would cause at the best

first degree burns and could not have been sufficient to

totally and completely ignite the cotton garments. Normally,

it is inconceivable that the deceased would have received

90% burns in spite of the fact that she was wearing a cotton

nightgown. Further, the evidence of prosecution witnesses

establishes beyond pale of doubt that when the deceased

was removed to the hospital, her clothes and her body were

smelling of kerosene. It is also inconceivable that due to

initial bhabhak, the clothes and body of the deceased would

be soiled with kerosene unless it had burst. The CFSL

report on the record shows that kerosene oil stove was

found in normal working order. Therefore, the presence of

kerosene oil on the body of the deceased and clothes put on

by her, rules out the theory of accidental fire as suggested

by the defence. The medical evidence on record makes it

evident that soot particles were present in the stomach of 21

the deceased. According to Dr. Bernard Knight who has

authored `Medical Jurisprudence and Toxicology' if soot

particles are found in Larynx Trachea or into stomach, it is

commonly a case of conflagration. The presence of soot

particles in the stomach indicates that the injuries could

have been sustained by the deceased only in a conflagration

and that too in a closed area. The instinct of survival would

have made the deceased to run into an open place but in

this case, the record does not indicate that any such

attempt was made by the deceased to run towards any open

space and positively establishes that she was found at the

end of the passage which hardly admeasures 12' x 3'. The

case of the appellant is that on hearing shrieks of the

deceased, he was woken up and he found that the deceased

was engulfed in the fire. It is also his case that he had

made an attempt to extinguish fire on her and had received

burn injuries on the dorsum and wrist of the right hand.

Having regard to the common course of natural events and

human conduct in their relation, when a loving husband

finds his wife engulfed in fire, he try his best to extinguish

the fire either with the help of a gunny bag or blanket or 22

sheet of cloth and would not make any attempt to

extinguish the fire with bare hands. Even if it is assumed

for the sake of argument that in the instant case, the

appellant had made an attempt to extinguish fire with his

bare hands, it is reasonable to infer that he would have

received extensive burn injuries because the whole body of

the deceased was on fire and ultimately it was found that

she had received almost 100% burn injuries. The medical

evidence on record indicates that Dr. R.P. Saraswat had

examined the appellant on April 8, 1983 and found that the

appellant had sustained first to second degree burns over

the dorsum and wrist of his right hand with blisters at

places, some of which had already burst. The case of the

appellant that the deceased had informed him that she had

sustained burn injuries because the kerosene oil stove had

burst into a vaporized flame does not inspire the confidence

at all. Any one who is little conversant with operation of a

kerosene stove would understand that the brief

inflammation which may be caused during the initial

ignition of the stove is because of little excess oil escaping

through the feeder hole and not for any other reason. The 23

so called bhabhak of the stove would not result into release

of kerosene from the stove in such a large quantity so as to

fully drench the whole body and the clothes of the deceased

with kerosene. As observed earlier, a gas cylinder and a gas

stove were available in the kitchen. Therefore, the use of

kerosene stove by the deceased becomes highly improbable

and doubtful. Mr. M.R. Kundal, PW5, has mentioned in his

testimony that he had visited the site on April 8, 1983 and

found the gas cylinder and the gas stove in working order

with no gas leakage. The established facts of the case

abundantly indicate that kerosene oil stove was planted at

the site in a fake attempt to hide the homicidal death. The

record of the case, as noticed earlier, establishes beyond

pale of doubt that the deceased had suffered more than 90%

burns of 3rd to 5th degree category. If the deceased had

suffered extensive burns because of her clothes catching fire

accidentally, she would have run for her life either in the

open backyard or rolled on the floor or would have wrapped

a curtain or any mattress around herself to extinguish the

fire. However, the record does not indicate that any such

attempt was made by the deceased. The presence of 24

extensive burns with more than 90% burn injuries out the

theory of accidental fire. Applying the principle laid down in

Surinder Kumar v. State (Delhi Administration) AIR 1987 SC

692 to the facts of the present case, it becomes clear that if

the stove had burst as suggested by the defence, the

deceased would not have sustained burns on the face, neck,

trunk, upper limbs etc. and her clothes would not have

been found containing kerosene oil. Further, at no point of

time, any complaint was made either by the appellant or his

family members to the company which had manufactured

the stove or the owner of the stove from which the store was

purchased that the stove was defective or faulty or had

burst causing death of the deceased. Thus, the

circumstances proved by the prosecution establish beyond

pale of doubt that the deceased had died a homicidal death

and not an accidental death as suggested by the defence.

14. The evidence of Ram Nath Mehra who is father of the

deceased would indicate that the deceased was subjected to

physical and mental cruelty for bringing insufficient dowry.

According to the said witness, he had given dowry worth

Rs.75,000/- to the appellant and his family members at the 25

time of marriage of the deceased. On one occasion, the

deceased was asked to bring gold set for her mother in law

but the witness was not able to make arrangement of the

funds for gold set and had, therefore, purchased a gold

chain and given it to the appellant. His evidence further

shows that the appellant had demanded scooter from the

deceased and he was not able to meet the said demand of

the appellant because of his weak financial conditions. The

evidence of B.L. Sharma, PW6, who is friend of the father of

the deceased shows that in order to fulfil the demands made

by the appellant, the father of the deceased had sought

financial assistance from him but he could not render any

financial help to the father of the deceased because of his

own weak financial conditions. The testimony of the father

of the deceased regarding physical and mental cruelty

meted out to his daughter gets corroboration from the

testimony of the mother of the deceased and the sister of the

deceased. The record further shows that 22 letters were

recovered from the tenanted premises of the appellant.

Those letters were written by one Ms. Chhaya from

Bangalore. A close analysis of those letters makes it very 26

clear that the appellant was very much fond of and

infatuated with Ms. Chhaya. The very fact that the

appellant had preserved all these letters even after one year

and two months of his marriage with the deceased

persuades this Court to infer that he was carrying on and

wanted to carry on a quite affair with Ms. Chhaya

notwithstanding his marriage with the deceased. Some of

the letters show that the appellant was simultaneously

carrying affairs with two/three girls. The evidence relating

to cruelty meted out by the appellant to the deceased for

bringing insufficient dowry and his extra-marital relations

with Ms. Chhaya would show that he had a strong motive to

do away with the deceased. Thus, the second

circumstances of motive sought to be relied upon by the

prosecution is also firmly established.

15. Yet another circumstance relied upon by the

prosecution against the appellant is that the deceased had

made a verbal dying declaration to (1) Ram Nath Mehra, her

father; (2) Ravi Kanta Mehra, her mother; (3) Meena Mehra,

her sister; (4) B.L. Sharma; (5) Kamlesh Sharma; and (6)

Sudarshan Lal at about 12.00 Noon in Burns Ward of LNJP 27

Hospital on April 6, 1983. It may be stated that the Trial

Court found that deceased was conscious and had made

statements. The Trial Court further held that the quality of

evidence lead to establish the oral dying declaration was

insufficient to record conviction but the same could be used

as a corroborative piece of evidence. From the impugned

judgment, it becomes evident that the High Court

considered the question whether acquittal of mother of the

appellant was proper or not in view of the principles laid

down in Sunder Singh vs. State of Punjab AIR 1962 SC

1211. After considering the evidence led by the prosecution

to prove oral dying declaration of the deceased, the High

Court has come to the conclusion that the oral dying

declaration is not reliable. On the facts and in the

circumstances of the case, this Court also proposes to

consider the evidence led by the prosecution witnesses for

the purpose of satisfying whether the deceased had made

oral dying declaration before her close relatives and others.

The evidence of above witnesses would indicate that

the deceased had stated before them that she was held by 28

her husband, i.e., the appellant and her mother-in-law had

poured kerosene oil over her before she was set on fire.

Witness Ravi Kanta Mehra, the mother of the

deceased, stated before the Court that she had met her

daughter Shashi at about 12.00 Noon who had told her that

her husband had caught hold of her while her mother-in-

law had sprinkled kerosene oil on her. Her evidence further

shows that she had beseeched Sub-Inspector Bakshi to

record the statement of her daughter but Sub-Inspector

Bakshi refused to record the same saying that the doctor

had declared Shashi unfit to make the statement. Her

evidence also shows that thereafter she in the company of

her relative had searched for the doctor and some quarrel

had ensued between them and the doctor.

The reliable testimony of Mr. B.L. Sharma shows that

he had enquired with injured Shashi as to what had

happened whereupon Shashi had told him that she had

been set on fire by the accused and other family members.

The witness has asserted before the court that on seeing

Shashi's condition, he felt that she was not likely to survive

for a long and thought that it would be proper to call a 29

Magistrate to record her statement. What is mentioned by

the witness is that he, therefore, rushed to Moti Nagar

Police Station and met the SHO and took along with him

one Sub-Inspector in a jeep to reach Tees Hazari Courts and

contacted the SDM whose name perhaps was Mr. Mathai.

The witness has further mentioned that from the court

premises, they reached the hospital at about 3.15 pm by

which time Shashi had expired.

The assertion made by witness Sudarshan Lal on oath

is that he had rushed to LNJP Hospital on learning that the

deceased was admitted in the said hospital with burn

injuries. According to him, he had met Shashi and Shashi

told him about the incident implicating the appellant. What

this witness has asserted is that thereupon he had

requested one Assistant Sub-Inspector who was sitting

inside the ward to record the statement of Shashi but the

said Assistant Sub-Inspector had refused to do so and,

therefore, he immediately had left the hospital and gone to

the shop where he was serving which is situated in

Canaught Place to bring a tape recorder. The witness has,

further stressed before the Court that he had reached the 30

hospital at about 1.30 pm with tape recorder to record the

statement of injured Shashi but the hospital staff and

nurses had not permitted him to take a tape recorded inside

the burns ward.

The reliable testimony of witness Ram Nath Mehra,

father of the deceased shows that the deceased had made a

statement to him in trembling voice that the appellant, his

mother and other members had set her on fire. His

testimony would further show that thereafter he had

requested Mr. Khan, Assistant Commissioner of Police to

record the statement of Shashi but the Assistant

Commissioner of Police had refused to oblige saying that on

her MLC, it was mentioned that she was unfit to make a

statement. The witness has further stated that thereafter

he had met Doctor Tiwari who was in charge of Burns Ward

and requested him to record the statement of the deceased

but he had refused to record the same saying that he had to

attend some operation.

The High Court, while disbelieving the evidence

adduced by the prosecution to prove oral dying declaration

of the deceased held that "ASI Hans Raj, it is plain to us, is 31

both an untrustworthy witness and also an incompetent

investigator". Having held so, it was noticed by the High

Court that he was not suggested by the prosecution that

Shashi was conscious at various times and periods and that

she had spoken to several members of her family and her

neighbour who had entered the room where she was being

treated. Therefore, the High Court held that the assumption

that Shashi was conscious to make a statement would run

foul to court's duty. The High Court further concluded that

the evidence of four witnesses before whom oral dying

declaration was allegedly made did not indicate as to who

had set the deceased on fire whereas Police statements of

Mr. B.L. Sharma PW6, Mrs. Kamlesh Sharma PW10 and

Sudarshan Lal PW11, were recorded after the passage of

about one month from the date of the death of Shashi and,

therefore, the evidence adduced by the prosecution to prove

dying declaration was not satisfactory. On reappraisal of

the evidence, this Court finds that it is true that the police

statements of the above-named three witnesses were

recorded after one month from the date of the death of the

deceased. However, neither an explanation was sought 32

from any of the witnesses as to why their police statements

were recorded after a delay of one month nor the

Investigating Officer was questioned about the delay in

recording statements of those witnesses. The law on the

point is well settled. Unless the Investigating Officer is

asked questions about delay in recording statements and

explanation is sought from the witnesses as to why their

statements were recorded late, the statements by

themselves did not become suspicious or concocted. The

evidence of the above-mentioned witnesses would indicate

that though they are neighbours of the father of the

deceased, they were neither got up or concocted witnesses.

Even remotely, it was not suggested to any of the witnesses

that the witness was close to the father of the deceased and,

therefore, out of love and affection for him, he was falsely

deposing before the Court. No enmity is suggested to any of

the witnesses with the appellant. Under the circumstances,

this Court is of the opinion that their evidence could not

have been rejected on the ground stated by the High Court

unless the same was found suffering from inherent

improbability. The evidence of Ram Nath Mehra, the father 33

of the deceased, Ravi Kanta Mehra, the mother of the

deceased, B.L. Sharma and Sudershan Lal would indicate

that each of them had entreated and implored different

authorities to get the statement of the deceased recorded.

The testimony of B.L. Sharma would indicate that he had

gone to the extent of visiting Tees Hazari Courts in the

company of one Sub-Inspector deputed by the SHO of Moti

Nagar Police Station and had gone to the hospital with an

SDM to record the statement of the deceased. The

testimony of Sudershan Lal satisfactorily establishes that

when the Assistant Sub-Inspector sitting inside the Burns

Ward had refused to record the statement of the deceased,

he had immediately gone to the shop being run in the name

of M/s. Bright Electricals situated at Cannaught Place to

bring a tape recorder and had returned to the hospital with

tape recorder but the hospital staff and nurses on duty had

prevented him from taking the tape recorder inside the

burns ward and, therefore, he could not record the dying

declaration of the deceased. The statements made on oath

by these witnesses as well as Kamlesh Sharma and Meena

Mehra would indicate that the deceased Shashi was in a fit 34

state of mind to make a statement and was talking and,

therefore, the four witnesses had made frantic efforts and

craved different authorities to record the statement of the

deceased. There is no manner of doubt that if the deceased

was not talking and was not in a fit state of mind to make

statement, these witnesses would not have run helter

skelter or contacted different authorities to get the

statement of the deceased recorded. This aspect of the

matter has been totally lost sight of by the Trial Court and

the High Court. It is true that on MLC of the deceased, it

was endorsed that she was unfit to make a statement at

about 4.30 am and 11.00 am on April 6, 1983. However,

keeping in view the statements on oath made by the above-

named witnesses which are not seriously challenged in their

searching cross-examination, it would be safe to infer and

conclude that medical record at about 12.00 Noon or 12.30

pm did not mention at all that the deceased was not in a fit

state of mind to make a statement. On the facts and in the

circumstances of the case, this Court has no hesitation in

relying upon the truthful testimony of the relatives and

neighbours of the deceased which unerringly establishes 35

that the deceased had made dying declaration before those

witnesses implicating the appellant. This Court, on

reappraisal of the evidence on record, comes to the

conclusion that the circumstance, namely, deceased had

made dying declaration before six witnesses implicating the

appellant is firmly established.

16. On reappraisal of the evidence adduced by the

prosecution, this Court finds that the circumstances from

which the conclusion about the guilt of the appellant is to

be drawn are fully proved. The circumstances proved are

conclusive in nature. All the facts so established are

consistent only with the hypothesis of guilt of the appellant

and inconsistent with his innocence. The circumstances

proved exclude the possibility of guilt of any person other

than the appellant. As noticed earlier, the appellant had

taken the defence that the deceased had received burn

injuries accidentally. The defence is disbelieved by the

Sessions Court and the High Court as well as by this Court.

This false plea/defence of the appellant is called into aid

only to lend assurance to this Court that the circumstances 36

taken in cumulative suggest that it was the appellant who

had murdered his wife.

17. On the facts and in the circumstances of the case, this

Court is of the opinion that no error is committed either by

the Trial Court or the High Court in convicting the appellant

under Section 302 IPC for committing murder of his wife.

Therefore, the appeal which lacks merit deserves dismissal.

18. For the foregoing reasons, the appeal fails and is

dismissed.

..................................,J. [Harjit Singh Bedi]

..................................,J. [J.M. Panchal]

New Delhi;

January 13, 2010