Delhi High Court
Sushil Kumar Alias Raju vs State on 12 March, 2025
Author: Dharmesh Sharma
Bench: Prathiba M. Singh, Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 18 February 2025
Judgment pronounced on: 12 March 2025
+ CRL.A.378/2002
SUSHIL KUMAR ALIAS RAJU ...Appellant
Through: Mr. Harsh Prabhakar, Mr. Anirudh
Tanwar, Mr. Dhruv Chaudhry, Mr.
Adeeb Ahmad & Ms. Eshita Pallavi,
Advs.
versus
STATE .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP with Ms.
Divya Yadav, Adv. with Inspector O.P.
Bishnoi and SI Anil Kumar PS
Najafgarh.
CORAM:
HON'BLE MS. JUSTICE PRATHIBA M. SINGH
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGEMENT
DHARMESH SHARMA, J.
1. This judgment shall decide the above noted Criminal Appeal preferred
by the appellant under Section 389 of the Code of Criminal Procedure, 1973
[“Cr.P.C.”] assailing the judgment dated 02.03.2002 convicting him for
committing an offence under section 302 Indian Penal Code, 1860 [“IPC“]
followed by the order on sentence dated 18.03.2002 passed by the learned
Additional Sessions Judge, New Delhi (hereinafter referred as the ‘trial
Court’), whereby the appellant has been sentenced to undergo imprisonment
for life with a fine of Rs. 3,000/- and in default of payment of fine, to undergo
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Simple Imprisonment for a period of one month.
FACTS OF THE CASE:
2. In short, the appellant was married to the victim, Anita Rani, on
07.03.1991. He was primarily charged for committing an offence under
section 302 of the IPC for allegedly dousing the victim with kerosene oil,
using two makeshift kerosene lamps, setting her ablaze on 05.07.1998 at
approximately 5:00 PM and fleeing the site through the back/rear exit of their
house no. RZ-B-80, Old Roshan Pura, Najafgarh, Delhi, as a result of which
she sustained burn injuries and eventually succumbed to the same after 48
days on 24.08.1998.
3. The prosecution case is that on 05.07.1998, PW-17/SI1 Jaggu Ram, the
Investigating Officer [“IO”] received DD 2 No. 26A Ex. PW-17/A at 18:05
hours to the effect that one Anita w/o Sunil R/o House No. 103, Old Roshan
Pura, Nazafgarh was admitted in PHC 3 with 60% burns and on reaching PHC,
Nazafgarh alongwith PW-12/Constable Naresh, they were informed that the
injured had been shifted to Safdarjung Hospital, New Delhi. Upon that,
PW17/SI Jaggu Ram reached Safdarjung Hospital, where he found the victim
Anita admitted therein with deep burn injuries to the extent of 35%. The
IO/PW-17 Jaggu Ram took into possession, MLC 4 Ex.PW-16/A prepared by
PW-16 Dr. Parag Neyog, wherein the victim purportedly stated that her
husband set her ablaze after pouring kerosine upon her. Upon the attending
PW-14 Dr. Rajeev Rajput certifying that the patient/victim was “fit for giving
statement” vide opinion Ex.PW-14/A, PW-17/SI Jaggu Ram recorded the
1
Sub Inspector
2
Daily Diary
3
Primary Health Centre
4
Medico-Legal Case
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statement of the victim Ex.PW-17/B, which goes as under:-
ब्यान आजाने श्रीम�त Anita W/o Sushil Kumar R/o 103, Old
Roshanpura, Najafgarh, New Delhi उम्र 27 साल
“ब्यान �कया क� म� उपरोक्त पते क� रहने वाल� हूँ और अपने प�त तथा
बच्चो के साथ RZB 80 New Roshan pura फूल �संह राणा के मकांन
म� 2 साल से बतौर �करायेदार रह रहे है। मेर� शाद� Sushil Kumar S/o
चमनलाल R/o 103 old Roshanpura के साथ माचर् 91 मे हुई थी मेरे
दो लड़�कयाँ है। मेरा प�त मझ
ु को हम� शा कहता था �क दहे ज कम लाई
हो और लाओ इसी बात पर मुझको हमेशा मारता पीटता था और घरे लू
छोट� मोट� बात� पर भी मुझको मारता था और म� तुमको छोड दं ग
ू ा आज
समय कर�ब 5.30 बजे आज मेरा प�त अपने काम से आया और मुझको
पीटना शुरु कर �दया म�ने 2 शी�श Emergency Light के �लए �दया बना
कर रखी थी उसमे से �मट्ट� का तेल �छड़क कर मेरे ऊपर मा�चस क�
�तल्ल� से मुझको जलाकर �पछले दरवाजा से भाग गया, म�ने शोर मचायी
तो हमारे पडोस म� रहने वाले औरत� ने पानी डालकर आग बुझा द� उसके
बाद म� Dr �नरं जन के पास चल� गई िजसने मुझको कहा क� आप PHC
अस्पताल मे चलो जाओ म� �रक्शा करके PHC अस्पताल म� चल� गयी।
PHC अस्पताल वाल� ने मुझको सफदरजंग अस्पताल भेज �दया। मेरे
प�त के �खलाफ कारवाई क� जाये। ब्यान सुन �लया ठ�क है ।”
4. On the basis of the aforesaid statement, Rukka endorsement Ex.PW-
17/A was made and the present FIR No. 341/1998 Ex.PW-9/A came to be
recorded on 06.07.1998 at 12:20 am at PS Nazafgarh under Section 498A read
with Section 302 IPC by PW-9 Constable Umed Rao. During the course of
investigation, IO/PW-17 SI Jaggu Ram prepared the site plan Ex. PW-17/D
and also called a private photographer at the spot and photographs were taken.
On inspection of the place of occurrence, IO seized one jumper, matchsticks,
and two bottles vide Memo Ex.PW-15/A and the same were kept in the
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pullanda and sealed with the seal of ‘JRB’. It is the prosecution case that
matter was informed to the local SDM, namely, PW-6 Varsha Joshi who
recorded the statement of the victim Ex.PW-6/A at 07:10 PM on 06.07.1998.
5. The victim was discharged from Safdarjung Hospital in a ‘satisfactory
condition,’ as per the ‘Death Summary’ Ex. PW-7/7 on 09.07.1998.
Thereafter, on 19.08.1998, at 10:56 AM, she was re-admitted to Safdarjung
Hospital for treatment but unfortunately, on 24.08.1998, at 6:45 PM, she
succumbed to her injuries, leading to the conversion of the case from an
offense under Section 307 IPC to one under Section 302 IPC. Subsequently,
at 10:20 PM, Constable Sunil, who was posted at Safdarjung Hospital,
telephonically intimated P.S. Najafgarh regarding her demise, pursuant to
which the said information was recorded as DD No. 73B Ex. PW-18/A.
Thereafter on 25.08.1998, SDM Arun Kumar Mishra PW-7 conducted inquest
proceedings Ex. PW-7/1-7 and later the post-mortem examination was
conducted at 1:00 PM by PW-8 Dr. Arvind Thergaonkar, who opined that the
cause of death was ‘septicaemia consequent upon 35-40% ante-mortem
infected flame burns’ reflected in the post-mortem report dated Ex. PW-8/A.
6. During the ensuing investigation, the appellant was apprehended from
his residence on 08.10.1998, and a personal search memo was duly prepared
Ex. PW-11/A. Subsequently, on 11.12.1998, SI Madan Pal PW-5 undertook
the preparation of a ‘Scaled Site Plan’ Ex. PW-5/A. Thereafter, on
22.12.1998, the final report was submitted before the Court, wherein it was
recommended that the appellant, Sushil Kumar Raju, along with his mother,
Kanta Rani, be subjected to trial for offences punishable under Sections 498A,
302, and 34 of the IPC, in conjunction with Sections 3 and 4 of the Dowry
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Prohibition Act, 1961. Further, on 13.01.1999, the case properties were
dispatched for forensic examination, and upon analysis, the CFSL report
dated 17.03.1999 Ex. PX conclusively opined the presence of kerosene on the
seized articles.
PROSECUTION WITNESSES
7. On completion of investigation, formal charges were framed against
the appellant as well his mother Smt. Kanta Rani on 27.07.1999 for
committing offence punishable under Section 498A read with Section 302
IPC to which they pleaded not guilty and claimed trial. During the course of
the trial, the prosecution examined a total of 18 witnesses.
7.1The main witnesses for the prosecution were the father and mother of
the victim, namely PW-1 Mahinder Kumar and PW-2 Saroj
respectively besides one neighbour PW-15 Naresh Kumar.
7.2Medical/Expert Witnesses were: PW-4 Dr. R Ranjan, at PHC, who
referred the victim to go to the hospital to get a proper treatment. PW16
Dr. Parag Neyog was the Sr. Resident in the Safdarjung Hospital,
attended the injured initially and prepared the MLC Ex.PW16/A;
PW-14 Dr. Rajeev Rajput was the junior resident in the Safdarjung
Hospital, and he declared the victim ‘fit’ for recording of the statement
at about 7:00 pm on 06.07.1998. PW-8 Dr. Arvind Therogaonkar,
Chief Medical Officer, Safdarjung Hospital, he conducted the post-
mortem on the body of the victim.
7.3Formal/ Police Witnesses were: PW-17 SI Jaggu Ram commenced
with the investigation of the case after receiving DD no. 26A
Ex.PW17/A. PW12 Constable Naresh Pal accompanied PW-17 to the
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PHC, Najafgarh, Delhi. PW-6 was Ms. Varsha Joshi, SDM, who
recorded the statement of the victim Ex.PW6/A, Anita at the
Safdarjung Hospital upon the information received by PW-17. PW-
11 Inspector Kailash Chandra along with PW-18 SI Prabhu Dayal,
arrested the accused, Sushil Kumar and his personal search was
conducted vide personal search memo Ex.PW-11/A. PW-7 was Arun
Kumar Mishra, SDM, who was informed by the IO about the death of
the victim, who succumbed to her injuries and thereafter conducted
inquest proceedings. Needless to state that we shall delve into the
details of the testimonies of these witnesses later on in the judgement.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
8. On the closing of the prosecution evidence, the appellant was examined
under Section 313 CrPC wherein he admitted to his marriage with the
deceased Anita. However, he categorically denied ever subjecting Anita to
cruelty or harassment on account of insufficient dowry. While he conceded
that a complaint had been filed against him in the Crime Against Women
(CAW) Cell, Nanak Pura, he also stated that following a compromise, the
deceased resumed normal cohabitation with him. The appellant denied all
other incriminating evidence brought against him. He further disclaimed any
knowledge regarding the deceased sustaining burn injuries, being taken to the
hospital, suffering 35% burn injuries, or succumbing to septicaemia.
Additionally, he denied any knowledge of kerosene oil residues being
detected in the exhibits that were sent for forensic analysis.
9. The appellant has taken the defence that he is innocent and that a false
case has been fabricated against him at the behest of PW-1 and PW-2 who
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tutored his deceased wife. In defence evidence, the accused elected to
examine a total of 5 witnesses: DW-1 was Baby Shilpa, his seven year old
daughter who testified that her mother had poured oil on herself and thereafter
asked her to call the neighbourhood aunty; DW-2, Harbir Singh, a neighbour
of the accused, testified that on 06.07.1998 at approximately 5:00-5:30 PM,
while he was watching a film, DW-1 informed them that her mother was
attempting to set herself on fire, and upon that he immediately proceeded to
the accused’s residence, where he observed that the house was locked from
inside and shortly thereafter the victim emerged out running and calling for
help, and he along with other neighbours, intervened and assisted in
extinguishing the flames, DW-3 Ramesh Chand, sabziwala, who testified that
he along with the accused went to the Mandi to sell sabzi and at about 7:00
pm the accused’s younger brother informed them of an incident that had
occurred at the accused’s residence and the accused went back to his house
with his younger brother; DW-4 Mahinder Singh, neighbour of the accused,
corroborated the version of DW-2. DW-5 was Daulat Ram, a former Village
Pradhan of Roshanpura, who testified that PW-1, Mahendar Kumar was not
the biological father of the victim. He further stated that certain individuals
approached him, requesting his intervention in facilitating a settlement, and
indicated that they would alter their statements in exchange for monetary
compensation.
IMPUGNED JUDGMENT
10. The learned Trial Court on appreciation of the evidence led by the
prosecution held that there was history of marital discord between the
deceased and the appellant, which fact was substantiated by the parents of
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deceased,PW-1 & PW-2, and the defence version relying on the testimony of
DW-1 Kumari Shilpa, daughter of the family, that the victim herself poured
kerosine upon her and immolated herself was discarded in view of the
abnormal behaviour of the neighbours, who stated that they arrived at the
scene while the victim was engulfed in flames and crying for help. Learned
Trial Court considered the fact that the victim herself went to the PHC on her
own , with no one accompanying her or even calling the police.
11. Further, learned Trial Court found that the victim was ‘fit for making
statement’ and she had given a statement to the attending doctor that she had
been put on fire by her husband, which fact stood corroborated in the dying
declaration made by the victim to PW-6 Varsha Joshi, SDM. It was held that
the victim had no motive to falsely implicate her husband, and thus, holding
that the death of the deceased occurred on account of injuries suffered
consequent to the burn injuries, it was found that the prosecution has been
able to bring the guilt of accused beyond reasonable doubt. Resultantly, the
appellant was convicted for committing an offence under Section 302 of the
IPC and sentenced accordingly for life imprisonment. However, both the
appellant and his mother were acquitted of committing any offence under
Section 498A of the IPC.
SUBMISSIONS BY LEARNED COUNSELS FOR THE PARTIES
12. Mr. Prabhakar, learned Counsel for the appellant emphasized that the
two makeshift lamps, which were allegedly used to set the deceased ablaze,
could not have been employed by the appellant in the manner suggested by
the prosecution, thereby indicating a clear case of self-immolation and that it
was urged that so called dying declaration of the victim, was not reliable in
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terms of Section 32 of the Indian Evidence Act, 1872 as the deceased at the
time of making it was not under any kind of apprehension of death.
13. It was further argued that the sequence of events, as established from
the record, demonstrates that the deceased initially proceeded to the
neighbourhood, thereafter to the PHC, where the police were informed–and
was subsequently taken to Safdarjung Hospital. Learned defence counsel
highlighted that the deceased had been discharged from Safdarjung Hospital
in a satisfactory condition, thereby casting doubt on the claim that the burn
injuries were the direct cause of death. It was emphasized that PW-8 Dr.
Arvind Therogaonkar, the Chief Medical Officer, Safdarjung Hospital, who
conducted the post-mortem examination on the body of the victim, in his
cross-examination, acknowledged the possibility of survival in cases where
burn injuries range between 35% to 40%, thereby further supporting the
appellant’s contention that the prosecution’s version is not conclusive.
14. Learned Counsel for the Appellant also emphasized that none of the
medical documents, including the MLC report or the post-mortem report,
contain any conclusive opinion from the medical experts affirming that the
injury sustained by the deceased was sufficient in the ordinary course of
nature to cause death. In support of his contention, he placed reliance on
decision in the case of Sanjay v. State of U.P. 5; Prem Devi v. State 20176
and Dashrath Singh v. State of U.P 7.
15. Per contra Mr. Bahri, the learned Additional Public Prosecutor
[“APP”], has vehemently contended that the most crucial piece of evidence
5
(2016) 3 SCC 62.
6
SCC OnLine Del 8057
7
(2004) 7 SCC 408
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in the instant case is the dying declaration of the deceased Ex. PW-6/A,
wherein she unequivocally implicates the appellant, her husband, which is
corroborated by the seizure of two bottles vide memo Ex. PW-15/A from the
spot. Learned APP has underscored that the deceased categorically stated that
the appellant had previously demanded dowry, and on the fateful occasion,
when she requested money for expenses, he set her ablaze. It was pointed out
that the forensic analysis has confirmed the presence of kerosene in the seized
bottles, thereby corroborating the prosecution’s case.
16. It was urged that before administering any treatment, the MLC was
duly recorded, ensuring procedural compliance. It was emphasized that PW-
16, Dr. Parag Neyog, the resident doctor, had documented the alleged history
as narrated to him by the deceased herself, confirming that she sustained burn
injuries due to the appellant pouring kerosene oil on her.
17. It was urged that the dying declaration was recorded in strict adherence
to the prescribed formalities under the Delhi High Court Rules, with the
doctor certifying that the deceased was ‘fit to make the statement’.
Additionally, the statement was duly recorded by the Magistrate while she
was in a sound mental state. It was also canvassed that notwithstanding a gap
of 49 days between the recording of the deceased’s statement and her
subsequent demise, the prosecution has contended that such a statement
retains its legal sanctity and ought to be read as a dying declaration,
warranting due consideration in light of the surrounding circumstances.
18. Learned APP heavily relied upon the testimony of PW-1, Mahinder
Kumar and PW-2 Saroj, the parents of the deceased, who reached PMC,
Najafgarh upon learning of the incident and later accompanied the deceased
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in the ambulance to Safdarjung Hospital and it was urged that their statements
further reinforce the consistency of the deceased’s account who was in
severely burnt condition.
19. Mr. Bahri, learned APP, referred to the Explanation to Section 299 IPC,
contending that the appellant, being the husband of the deceased, failed to
take any reasonable steps to prevent the fatal consequences or mitigate the
harm caused to the deceased. It is submitted that such inaction on the part of
the appellant, despite being in a position to intervene, reinforces his
culpability and substantiates the prosecution’s case regarding his involvement
in the offence.
ANALYSIS AND DECISION
20. We have given out our thoughtful consideration to the submissions
advanced by the learned counsels for the appellant as also by the learned APP
for the State. We have also perused the oral as well as documentary evidence
placed on the record besides the case laws cited.
21. The foremost thing to be noted is that there is no direct evidence led by
the prosecution that the appellant was present at the time of incident. Nobody
saw him fleeing away from the house after the incident. The legal principle in
cases based on circumstantial evidence is well settled, requiring the
prosecution to establish each circumstance cogently and firmly,
demonstrating that they collectively constitute a complete and unbroken chain
leading to the sole and inevitable conclusion–the guilt of the accused. It is
well settled that the circumstances brought on the record must infallibly
indicate the culpability of the accused that must be incompatible with any
other reasonable hypothesis of innocence. The accused would be entitled to
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benefit of doubt even if a single link in the chain of circumstances remains
unproven. Likewise, if there exists any plausible alternative explanation, the
continuity of the chain is disrupted, and would warrant the accused to the
benefit of the doubt. Avoiding long academic discussion, in a recent case
decided by the Supreme Court, titled Darshan Singh v. State of Punjab8 it
was held that:
“The normal approach in a case based on circumstantial
evidence is that the circumstances from which an inference of
guilt is sought to be drawn must be cogently and firmly
established; that those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form a chain
so complete that there is no escape from the conclusion, that
within all human probability, the crime was committed by the
accused and they should be incapable of explanation on any
hypothesis other than that of the guilt of the accused and
inconsistent with his innocence.
xxxxxxxxx
37. Seen in this background, we need not go further and
consider the evidence qua other circumstances sought to be
proved by the prosecution since the failure to prove a single
circumstance cogently can cause a snap in the chain of
circumstances. There cannot be a gap in the chain of
circumstances. When the conviction is to be based on
circumstantial evidence solely, then there should not be any snap
in the chain of circumstances. If there is a snap in the chain,
the accused is entitled to benefit of doubt. If some of the
circumstances in the chain can be explained by any other
reasonable hypothesis, then also the accused is entitled to the
benefit of doubt.” {bold portions emphasized}
22. In the light of the aforesaid proposition of law, reverting back to the
instant matter, we find that the prosecution case on first blush seems to be
quite consistent that the victim Anita, got admitted with burn injuries in
Safdarjung Hospital and upon the attending medical officer, PW-14 Dr
8
(2024)3 SCC 164
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Rajeev Rajput declaring her ‘fit to give a statement’ vide Ex. PW-14/A, her
statement marked Ex. PW-17/B was recorded by PW-17, wherein she stated
that she had been residing with her husband, Sushil Kumar, at HZ-B-80, New
Roshan Pura, since their marriage on 7th March 1991; and that she had two
daughters and that her husband persistently harassed her for bringing
inadequate dowry and subjected her to physical abuse over trivial matters and
repeatedly threatened to abandon her. She stated that on the date of the
incident, at approximately 5:30 PM, the accused, returned home and assaulted
her. She further stated that she had stored two bottles of emergency light fuel,
upon which the accused poured kerosene oil on her and set her on fire before
fleeing through the back door; and that subsequently her neighbours
intervened and doused the fire.
23. Axiomatically, it is the aforesaid statement Ex. PW6/A which is
canvassed to be a ‘dying declaration’ consequent to the death of the victim on
24.08.1998. Thus, the entire prosecution case delicately hinges upon the so
called ‘dying declaration’ made by the victim to PW-6 Ms. Varsha Joshi,
SDM Ex.PW-6/A. It would be most relevant to re-produce the same which
goes as under:
“ब्यान श्रीम�त अनीता w/o सुशील कुमार r/o 103 Old Roshanpura,
Najafgarh, Delhi.
Q. नाम क्या है तुम्हारा?
A. अनीता
Q. क� से जल गई?
A. आदमी ने जला �दया। उसका नाम सुशील है । दो-तीन �दल से म� उसे
खचार् मांग रह� थी वह नह�ं दे ता था। �फर लढाई होती थी। कल भी यह� हुआ
था। म� 5-5.15 बजे नीचे बैठ� थी �फर वह आया, दो छोट�-छोट� शीशी म�
तेल रखा था, मेरे ऊपर डाल �दया, �फर आग लगा �दया। �फर वह वहाँ से
भाग गया। म� �चल्लाती हुई बाहर आई तो पड़ो�सय� ने �मट्ट� पानी वगैरहSignature Not Verified
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डालकर आग बुझाया?
Q.खच� को छोड़कर और कोई बाद भी थी?
A. हाँ, वे दहे ज भी मांगते थे। मेरा आदमी पड़ो�सय� को लेकर मेरे ऊपर शक
करता था औ गंद� बात� करता था।
Q. दहे ज कौन कौन मांगते थे
A. आदमी मांगता था, सास भी मांगती थी, वह �सखाती थी। वे पैसे मांगते
थे, और मेर� मम्मी के घर म� �हस्सा चा�हये।
Q. ऐंसा पहले भी कभी हुआ था?
A. हाँ, दे साल पहले भी उसने (मेरे प�त ने) मुझपर तेल डाल �दया था।
म�ने जब सास को बताया तो उसने कहा �क म� क्या कर सकती हूँ, यह तम्
ु हारा
आपस का झगड़ा है ।”
24. The aforesaid dying declaration was recorded on 06.07.1998 at 7:10
p.m. by PW-6 after almost 24 hours of the alleged incident while her statement
Ex. PW-17/B was recorded in sometime between 9:15 pm of 05.07.1998 to
12:05 am on 06.07.1998. What stares on the face of the prosecution record is
that although the victim was admitted in the Hospital at 9:15 p.m. on
05.07.1998, there is rendered no explanation by PW-17 IO SI Jaggu Ram as
to why the statement of the victim could not be recorded as expeditiously as
possible as there is nothing on record to suggest that she was not ‘fit for
making statement’ during the interregnum. Be that as it may, even assuming
for the sake of convenience that the victim was not fit to make statement till
about 07.00 p.m. a day after the incident on 06.07.1998, it is an admitted fact
that she was discharged from the Hospital in a satisfactory condition as per
death summary Ex.PW-7/7 on 09.07.1998 i.e. after just 4 days of the incident.
It was only after a month that she was re-admitted in the Hospital on
19.08.1998 at about 10.56 a.m. and unfortunately succumbed to burn injuries
on 24.08.1998 at 6.45 p.m.
Signature Not Verified
Digitally Signed By:PRAMOD
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25. At this juncture, it would be expedient to refer to the findings in the
post mortem report conducted by PW-8 Dr. Arvind Thergaonkar, which was
conducted on 25.08.1998 and proved the post mortem report Ex.PW-8/A
giving the following deposition:
“General observations:
Rigormortis was present all over the body. Post mortem staining were
present on back. Eyes were closed. State of superficial natural orrices like
ear, nose and mouth were normal.
External examination.
Burn injuries:- Dermoepedrmal burn superficial to deep, infected in nature
about 35 to 40% present on front of chest and abdomen and side and front
of neck, patches on upper arm and chin. The area of infection present all
over the burns. The hair were burnt and seised over the axillae and there
was no mark of violence/sign of struggle seen on the body.
Internal examination:- Scalp skull and brain was normal. Neck and
thorax- trachea/neck structure/thorax wall were normal. Lungs showed
patchy consolidation changes, heart was normal. Abdomen and pelvis-
stomach was empty liver/spleen/kidney all over swollen and congested and
pale. Bladder and pelvis normal. Uterus was empty.
Opinion:- In my opinion the cause of death was septicaemia consequent
upon about 35 to 40% ante-mortem infected flame burns. The time since
death was about 19 hrs. The post-mortem report is in my handwriting
signed by me and is correct. The same is Ex.PW-8/A. The I.O. had
submitted 13 inquest papers at the time of post mortem examination which
have been signed by me.”
26. In order to appreciate the state of the body of the victim and cause of
death, it would also be expedient to reproduce the entire cross-examination of
PW-8 Dr. Arvind Thergaonkar, which goes as under:
“xxxxxx by counsel for accused.
Septicaemia means in this case whenever burns takes place, they get
infected and this infection goes into the blood and various system of the
body and causes multisystem failure leading to death. Infection is present
in the air it can contemplate any injury or any burns. It cannot be always
be negligence. It is known specially in the causes of burns specially
after 48/72 hrs. The patient suffering from 35 to 40% often survives.
Any burn exceeding 20% in children and elder may end to any eventuality.
Calculation of burns are done as per the area of burns but age is not part of
this. Septicaemia and pymaes are more or less same thing. There is noSignature Not Verified
Digitally Signed By:PRAMOD
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standard practice of mentioning the age and period of septicaemia but it can
be ascertained on the basis of examination of the burns and sepctic
formation. The symptoms of septicaemia are fever, body ache,
giddiness, loss of appetite sometimes deterioration level of functioning
failed by the patient. I cannot say exactly when these symptoms are
realised by the patient. The patient in this case has died of septicaemia
occurred due to burns. {bold portions emphasized}
27. Upon careful perusal of the aforesaid opinion on cause of death, it is
evident that it does not specify whether the injuries were sufficient, in the
ordinary course of nature, to cause death. The said aspect assumes
significance since PW-8 Dr. Arvind Thergaonkar rather acknowledged in his
cross-examination that patient suffering 35 to 40% burn injuries often
survives. In the light of the aforesaid foundational facts, the core issue is::
whether the aforesaid statement Ex.PW-6/A can be considered as ‘a dying
declaration’ and a clinching piece of evidence so as to nail the appellant for
commission of the alleged offence. It is pertinent to indicate that in the
authoritative text authored by Jaising P. Modi “MODI: A Textbook of
Medical Jurisprudence and Toxicology, Twenty-Seventh Edition,”, it is
explicitly stated that deep burns are categorized as fifth and sixth-degree
burns. Furthermore, it is pertinent to note that the victim’s demise was
attributed to septicaemia, which, upon a perusal of the aforementioned
textbook, is recognized as one of the delayed causes of death. The relevant
excerpts are reproduced herein::
“22.2 CLASSIFICATION OF BURNS
Dupuytren classified burns into six degrees, according to the nature of their
severity. Modern classification (Heba’s classification) accords three
degrees only by grouping the first and second (epidermal), third and fourth
(dermo-epidermal), and fifth and sixth (deep) degrees together. Another
classification grades burns into superficial and deep burns.
22.2.1 EPIDERMAL BURNS
22.2.1.1 FIRST DEGREESignature Not Verified
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First-degree burns consists of erythema or simple redness of the skin
caused by the momentary application of flame or hot solids, or liquids much
below boiling point. It can also be produced by mild irritants. The erythema
marked with superficial inflammation usually disappear in a few hours, but
may last for several days, when the upper layer of the skin peels off but
leaves no scars. They disappear after death due to the gravitation of blood
to the dependent parts.
22.2.1.2 SECOND DEGREE
Second-degree burns comprise acute inflammation and blisters produced by
prolonged application of a flame, liquids at boiling point or solids much
above the boiling point of water. Blisters can be produced by the application
of strong irritants of vesicants, such as cantharides. Blisters may also be
produced on those parts of the body which are exposed to decomposing
fluid, such as urine or faeces, and subject to warmth, as seen in old bed-
ridden patients. In deeply comatose persons, bullae may occur over pressure
areas. If burns are caused by flame or a heated solid substance, the skin in
blackened, and the hair singed at the seat of lesion, which assume the
character of the substance used. No scar results as only the superficial layers
of the epithelium are destroyed. However, subsequently, some slight
staining of the skin may remain.
22.2.2 DERMO- EPIDERMAL BURNS
22.2.2.1 THIRD DEGREE
Third-degree burn refers to the destruction of the cuticle and part of the true
skin, which appears horny and dark, owing to it having been charred and
shrivelled. Exposure of never endings gives rise to much pain. This leaves
a scar, but no contraction, as the scar contains all the elements of the true
skin.
22.2.2.2 FOURTH DEGREE
In fourth-degree burns, the whole skin is destroyed. The slough which form
are yellowish-brown and parchment-like, and separate from the fourth to
the sixth day, leaving an ulcerated surface, which heals slowly forming a
scar of dense fibrous tissue with consequent contraction and deformity of
the affected parts. The burns are not very painful as the nerve endings are
completely destroyed.
22.2.3 DEEP BURNS
22.2.3.1 FIFTH DEGREE
Fifth-degree burns include the penetration of the deep fascia and
implications of the muscles, and results in great scarring and deformity.
22.2.3.2 SIXTH DEGREE
Sixth-degree burns involve charring of the whole limb including the bones
and ends in inflammation of the subjacent tissues and organs, if death is not
the immediate result. This degree, it may be noted, is not necessarily
related to danger to life. Charring of a limb may be compatible with
recovery, once the initial shock is overcome.
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22.2.5 CAUSES OF DEATH
22.2.5.2 DELAYED CAUSES OF DEATH
22.2.5.2.1 Inflammation.-Inflammation of serous membranes and internal
organs, such as meningitis, peritonitis, oedema glottis, pleurisy, bronchitis,
bronchopneumonia, pneumonia, Exhaustion from suppurative
discharges lasting for weeks or months.
22.2.5.2.4 Lardaceous Disease- Lardaveous disease of the internal organs
resulting from supprative exhaustion.
22.2.5.2.5 Erysipelas septicaemia, pyaemia gangrene and tetanus.”
28. What the aforesaid expert opinion brings out is that even in cases of
fourth degree burns, as in the instant matter, there are good chances of healing
of injuries. Although it is well settled that an offender is liable for the direct
and proximate causes of his act or omission, the issue concerning death due
to septicaemia after long delay and its legal consequences was discussed by
the Supreme Court in the case of Sanjay v. State of U.P (supra), wherein it
was held that:
“14. However, in the instant case, it is apparent that the death occurred
sixty-two days after the occurrence due to septicaemia and it was indirectly
due to the injuries sustained by the deceased. The proximate cause of death
on 13-10-1998 was septicaemia which of course was due to the injuries
caused in the incident on 11-8-1998. As noted earlier, as per the evidence
of Dr Laxman Das (PW 9), Roop Singh was discharged from the hospital
in good condition and he survived for sixty-two days. In such facts and
circumstances, the prosecution should have elicited from Dr Laxman
Das (PW 9) that the head injury sustained by the deceased was
sufficient in the ordinary course of nature to cause death. No such
opinion was elicited either from Dr Laxman Das (PW 9) or from Dr
Gulecha (PW 3). Having regard to the fact that Roop Singh survived
for sixty-two days and that his condition was stable when he was
discharged from the hospital, the Court cannot draw an inference that
the intended injury caused was sufficient in the ordinary course of
nature to cause death so as to attract clause Thirdly of Section 300 IPC.
XXXX XXXX XXXX
16. In the instant case, the appellants used firearms, countrymade pistol and
fired at Roop Singh at his head and the accused had the intention of causing
such bodily injury as is likely to cause death. As the bullet injury was on
the head, vital organ, the second appellant intended of causing such bodilySignature Not Verified
Digitally Signed By:PRAMOD
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injury and therefore, conviction of the appellant is altered from Section 302
IPC to Section 304 Part I IPC. The learned counsel for the appellant Sanjay
submitted that it was only Narendra who fired at Roop Singh at his head,
appellant Sanjay fired on Sheela (PW 2) on her neck, stomach and leg. The
learned counsel for the appellant Sanjay contended that as Sanjay fired only
at Sheela, he could not have been convicted for causing death of Roop Singh
under Section 302 IPC read with Section 34 IPC. There is no force in the
above contention. The common intention of the appellants is to be gathered
from the manner in which the crime has been committed. Both the
appellants came together armed with firearms in the wee hours of 1 1-8-
1998. Both the appellants indiscriminately fired from their countrymade
pistols at Roop Singh, deceased and Sheela (PW 2) respectively. The
conduct of the appellants and the manner in which the crime has been
committed is sufficient to attract Section 34 IPC as both the appellants acted
in furtherance of common intention. The conviction of the appellant Sanjay
under Section 302 IPC read with Section 34 IPC is modified to conviction
under Section 304 Part I IPC.
17. The conviction of the appellants Narendra and Sanjay under Section 302
IPC and Section 302 IPC read with Section 34 IPC respectively is modified
to Section 304 Part I IPC and Section 304 Part I IPC read with Section 34
IPC respectively and each of them are sentenced to undergo rigorous
imprisonment for ten years and the same shall run concurrently along with
sentence of imprisonment imposed on the appellants. The conviction of the
appellants for other offences and the respective sentence of imprisonment
imposed on the appellants and fine is affirmed. The appeals are partly
allowed to the above extent.” {bold portions emphasized}
29. In another case titled Prem Devi v. State 20179, on the aspect of death
on account of septicaemia, it was held that:
“17. From the testimony of PW 13 Dr. B.N. Acharya, it is found that the
cause of death was cardio respiratory failure consequent to septicaemia
resulting from infected burn. PW 13 had stated that he found the burn
injuries to be old and infected which led to the death of the deceased. Thus
it is apparent that the deceased did not die immediately on the day of
burning and was certainly on his way to recovery at his home and not
at the hospital. Further, it is also evident from the facts of the case that the
appellant was already in judicial custody when the deceased succumbed to
his injuries and this was due to his unhealed injuries developing an
infection. The deceased while trying to recover at his home, did not tend to
his injuries in the right manner owing to the lack of necessary and needed
medical attention and care for want of both financial help and lack of9
SCC OnLine Del 8057Signature Not Verified
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support of his wife who was in judicial custody at that time. Thus, it is
apparent that due to the deficiency of outside yet imperative factors the
deceased failed to heal and succumbed to his injuries and did not die an
immediate death due to the alleged burning on the intervening night of
24/25th March,1995.” {bold portions emphasized}
30. Reliance can also be placed on decision in Dashrath Singh v. State of
U.P 10, wherein it was held that:
“25. He prescribed post-operative treatment. PW 8 stated that the death was
on account of the head injury which caused brain abscess and such injury
could lead to the occurrence of death in the ordinary course of nature. The
evidence of PW 8 leaves no doubt that the skull and brain injury caused to
the victim was sufficient in the ordinary course of nature to cause death.
PW 6 who attended on the victim on the day of occurrence itself noticed the
incised wound of 15 cm x 5 cm x brain tissue-deep found on the head of the
patient. He stated that the injury was appearing to be dangerous to life and
the injury must have been inflicted by a sharp-edged object thrust with
sufficient force.
26. The medical evidence, however, does not establish beyond reasonable
doubt that the ultimate cause of death was the aforesaid injury. From the
date of the surgery, the victim was alive for 23 days and undergoing
treatment in the hospital. He survived for 38 days after the injury was
received. Not a word has been said and no report or case-sheet has been
filed to indicate the condition of the patient after the surgery. No doubt,
there was no cross examination of the doctor (PW 8) on this aspect. Yet, it
was the primary duty of the prosecution to adduce evidence in regard
to the post-operative condition of the patient so that the scope for any
intervening ailment unconnected with the injury is ruled out. This
becomes all the more important because of the long time lag and the
omission to hold post-mortem. Apparently, there was a callous indifference
or lack of vigilance on the part of the investigating officer in failing to
ensure the post-mortem examination in a case of this nature. PW 8 came
forward with the explanation that postmortem is not absolutely necessary
to ascertain the cause of death. But, then, the prosecution has to establish
beyond reasonable doubt that the eventual cause of death was only the
injury inflicted by the appellant and nothing else, but it has failed to do so.
27. We are, therefore, of the view that the appellant Raja Ram cannot be
held guilty of an offence under Section 302 or Section 304. He must be held
guilty under Section 326 for voluntarily causing a grievous hurt by means
of a dangerous weapon. Accordingly, his conviction is modified to Section10
(2004) 7 SCC 408Signature Not Verified
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326 and he is sentenced to undergo rigorous imprisonment for six years and
to pay the fine of Rs 1000. In default of payment of fine, he shall undergo
further imprisonment for four months. The accused will have the benefit of
set-off of the period of imprisonment undergone in terms of Section 428
CrPC.” {bold portions emphasized}
31. In light of the proposition of law that long delay in death of the victim
due to injuries might be a mitigating circumstance, the issue that begs an
answer is whether the statement made by the victim Ex. PW-6/A can be said
to be a ‘dying declaration’ within the purport of Section 32 11 of the Indian
Evidence Act, 1872. It is well settled that a statement to be treated as a dying
declaration, must have been made by the victim who was apprehending
imminent death at the time of making it. In the case of Laxman v. State of
Maharashtra12, it was held that:
“3. The juristic theory regarding acceptability of a dying declaration is that
such declaration is made in extremity, when the party is at the point of death
and when every hope of this world is gone, when every motive to falsehood
is silenced, and the man is induced by the most powerful consideration to
speak only the truth. Notwithstanding the same, great caution must be
exercised in considering the weight to be given to this species of
evidence on account of the existence of many circumstances which may
affect their truth. The situation in which a man is on the deathbed is so
solemn and serene, is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. Since the accused has no power of cross-
examination, the courts insist that the dying declaration should be of such a11
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.
– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or
who has become incapable of giving evidence, or whose attendance cannot be procured without an amount
of delay or expense which under the circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases: —
(I) When it relates to cause of death.–When the statement is made by a person as to the cause of his death,
or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause
of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were
made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of
his death comes into question.
12
(2002) 6 SCC 710
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nature as to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see that
the statement of the deceased was not as a result of either tutoring or
prompting or a product of imagination. The court also must further
decide that the deceased was in a fit state of mind and had the
opportunity to observe and identify the assailant. Normally, therefore,
the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration looks up to the medical
opinion. But where the eyewitnesses state that the deceased was in a fit and
conscious state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification of the doctor as
to the fitness of the mind of the declarant, the dying declaration is not
acceptable. A dying declaration can be oral or in writing and any adequate
method of communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. In most cases,
however, such statements are made orally before death ensues and is
reduced to writing by someone like a Magistrate or a doctor or a police
officer. When it is recorded, no oath is necessary nor is the presence of a
Magistrate absolutely necessary, although to assure authenticity it is usual
to call a Magistrate, if available for recording the statement of a man about
to die. There is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such statement is recorded
by a Magistrate there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be attached to
such statement necessarily depends on the facts and circumstances of
each particular case. What is essentially required is that the person who
records a dying declaration must be satisfied that the deceased was in a fit
state of mind. Where it is proved by the testimony of the Magistrate that the
declarant was fit to make the statement even without examination by the
doctor the declaration can be acted upon provided the court ultimately holds
the same to be voluntary and truthful. A certification by the doctor is
essentially a rule of caution and therefore the voluntary and truthful nature
of the declaration can be established otherwise.”
{bold portions emphasized}
32. In the case of Uka Ram v. State of Rajasthan13, it was held that:
“6. Statements, written or verbal of relevant facts made by a person who is
dead, or who cannot be found or who has become incapable of giving
evidence, or whose attendance cannot be procured without an amount of
delay or expense which under the circumstances of the case appears to the
court unreasonable, are themselves relevant facts under the circumstances
enumerated under sub-sections (1) to (8) of Section 32 of the Act. When the
13
(2001) 5 SCC 254Signature Not Verified
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statement is made by a person as to the cause of his death, or as to any of
the circumstances of the transaction which resulted in his death, in cases in
which the cause of that person’s death comes into question is admissible in
evidence being relevant whether the person was or was not, at the time when
they were made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death comes into
question. Such statements in law are compendiously called dying
declarations. The admissibility of the dying declaration rests upon the
principle that a sense of impending death produces in a man’s mind the same
feeling as that of a conscientious and virtuous man under oath — nemo
moriturus praesumitur mentire. Such statements are admitted, upon
consideration that their declarations are made in extremity, when the maker
is at the point of death and when every hope of this world is gone, when
every motive to falsehood is silenced and the mind induced by the most
powerful consideration to speak the truth. The principle on which the dying
declarations are admitted in evidence, is based upon the legal maxim nemo
moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie
in his mouth. It has always to be kept in mind that though a dying
declaration is entitled great weight, yet it is worthwhile to note that as
the maker of the statement is not subjected to cross-examination, it is
essential for the court to insist that the dying declaration should be of
such nature as to inspire full confidence of the court in its correctness.
The court is obliged to rule out the possibility of the statement being
the result of either tutoring, prompting or vindictive or a product of
imagination. Before relying upon a dying declaration, the court should
be satisfied that the deceased was in a fit state of mind to make the
statement. Once the court is satisfied that the dying declaration was true,
voluntary and not influenced by any extraneous consideration, it can base
its conviction without any further corroboration as a rule requiring
corroboration is not a rule of law but only a rule of prudence.”
{bold portions emphasized}
33. In light of the aforesaid judicial pronouncements, the proposition of law
that emanates is that although a dying declaration is attached substantial
weight yet considering that the maker of such statement was not subjected to
cross-examination, the prosecution must satisfy the Court that the dying
declaration is of such nature as to inspire full confidence about its correctness.
It is evident that the victim at the time of making statement Ex.PW-17/A to
the IO as well as Ex.PW-6/A to Ms. Varsha Joshi (SDM), was not
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apprehending her imminent death. Be that as it may, what causes a substantial
crack in the prosecution case is that there is no evidence that the victim when
she was engulfed in fire implicated her husband of having put her on fire by
throwing kerosene oil in front of her neighbours. It is in evidence that firstly
she approached PW-4 Dr. R. Ranjan at PHC and there is nothing in the
evidence of PW-4 that she implicated her husband of having set herself on
fire. It is in evidence that from the PHC she was removed in an ambulance
to Safdarjung Hospital along with her parents. The possibility that the victim
may have decided to blame her husband owing to the previous acrimony
cannot be ruled out.
34. We find that the prosecution case suffers a serious setback when we
consider the testimony of DW-2 Harbir Singh, who was the immediate
neighbour, and who testified that when they came out after watching a movie
on TV, they found Shilpa (DW-1), who told them that her mother had put
herself on fire. He testified that they found that the door was locked from
inside and after some time mother/victim came out of the room in the chowk
shouting “बचाओ-बचाओ” and he along with other used some clothes which were
put up for sun drying and diffused the fire; and then the victim went inside
her house. DW-2 Harbir Singh stated in his testimony that he asked the victim
for a family member’s phone number to call for help and also offered to take
her to the hospital, but she declined his assistance.
35. DW-4 Mahinder Singh also corroborated the said version, who testified
that Shilpa daughter of the appellant told them that her mother had put herself
on fire and when they went to the house of the accused, the door was opened
and deceased came out, who was up in flames and he tried to extinguish the
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fire with a piece of cloth, and thereafter, she went to the dispensary, Nazafgarh
on her own. The aforesaid testimony has to be read coupled with the
deposition by the daughter of the appellant DW-1 Kumari Shilpa recorded on
07.05.2001 at which time she was about 7 years old that goes as under:
“Shilpa d/o Sushil Kumar aged 7 years r/o Najafgarh.
Q.1. What is your name?
Ans. Shilpa
Q. What your father’s name?
Ans. Sushil Kumar
Q. What is your age?
Ans. Seven years
Q. In which school do you study?
Ans. Hind Bal Bharti Najafgarh.
Q. Is good to tell truth or not?
Ans. To tell truth is good.
Q. What is your house address?
Ans. House No.103, Old Roshanpura, Najafgarh, Delhi
(From the above facts I am satisfied that the witness is capable of
understanding the questions and she can reply. Let her statement me
recorded without oath)
पहले मेर� मम्मी तेल ले कर अपने ऊपर डाल �लया �फर मझ
ु े कह आंट� को बुला लाओ म�
बुला कर लायी आंट� का नाम न मालूम है वहाँ पर दो तीन चीज� नीचे पड़ी थी। मेर� मम्मी
ने जल्द� से आग लगी द� पडौसी लोग� ने �मल कर आग बझ
ु ाई �फर मम्मी चल� गयी।
कहाँ मुझे नह�ं पताय़
x x x APP
मेरा जन्म�दन 15 जुलाई को आता है । साल याद न है । मेरा जन्म Hospital म� हुआ था
पर �दल्ल� म� हुआ या कह�ं और न मालम
ू है । हम �कराये पर रहते थे address याद न है।
जहाँ हम �कराय़े पर रहते थे उसके अगल बगल क� आंट� का नाम याद न है । यह �कतने
साल पहले क� बाद है याद न है । न कह सकती हूँ साल दो साल या पाँच साल पहले क�
िजस आंट� को बल
ु ाने गयी थी उनका नाम न पता है । यह गलत है �क मेर� दाद� माँ से
मार �पटाई करती थी। यह गलत है �क उस �दन मेरे पापा ने मेर� मम्मी पर Kerosene
Oil डाल कर आग लगा द� थी। यह गलत है �क कुझ न दे शा और दाद� माँ के कहने पर
झूठा ब्यान दे रह� हूँ। म�ने जो दे खा वह� बती रह� हूँ। मैर� मम्मी शाम के time उसी �दन
घर म� मर गयी थी यह कहना गलत है �क पापा को बचाने के �लए दाद� माँ के कहने पर
झठ
ू � गवाह� दे रह� हूँ।”
36. This Court is of the opinion that the testimony of DW-2 Harbir Singh
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and DW-4 Mahinder Singh raises a serious challenge to the prosecution case
as they apparently had no motive to falsely depose in favour of the appellant
and thereby attempt to exonerate the appellant of having committing such
offence. It is in evidence that the house of the appellant was located in a
densely populated area and it is surprising that the PW-17 IO did not examine
any neighbours who had doused the fire. What is also baffling is that despite
there being two minor children present at the house, though DW-1 must have
been about 4 years of age, the said child was not questioned by the IO. During
the course of arguments, this Court looked into the Case Diary of the IO and
found that at no point of time during Investigation the minor daughters of the
appellant were questioned.
37. Another interesting facet of the matter which casts a shadow on the
prosecution case are the photographs of the crime scene. They depict a table
placed in the corner of the room holding a small black-and-white TV, a plastic
envelope containing what appears to be some fruits, an empty glass, and two
200 ml glass bottles, marked as Ex.P-1 and P-2. The description of the two
bottles are indicated in the CFSL report Ex-PX dated 17.03.1999, wherein the
two glass bottles are described as empty small glass bottles each having wick
which passed through holes in their lid seem to be used as a burning lamp
marked as Ex.P1and P2. The analysis of gas liquid chromatography indeed
shows the presence of kerosene residue in Ex.1. Incidentally, it is also
recorded in the testimony of IO that besides seizure of the two bottles, there
were seized eight or ten unburnt matchsticks Ex.P4/1 to 4/8 and burnt sticks
Ex.P4/9 to 4/12 vide seizure memo Ex.PW-15/A.
38. An issue arises as to how the appellant could have poured kerosene
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oil on the victim in a short span of time. Given that the two small bottles had
wicks passing through holes with intact lids, it defies logic that the appellant
could have sprinkled kerosene oil drop by drop on the victim and
simultaneously used matchsticks to set her on fire without the victim
attempting to save herself or shouting for help. This circumstance lends
credibility to the defence theory that the victim herself poured kerosene oil on
her body and blamed her husband, the appellant, to settle her grievances.
39. In summary, nobody saw the appellant present in the house at or around
the time of incident. The version of the victim that her husband had fled away
through the back door is not substantiated by the site plan Ex.PW-17/D as
well as scaled site plan Ex.PW-5/A, which shows existence of no back
door/rear door of the premises where the incident occurred. The testimony of
DW-2 Harbir Singh and DW-4 Mahinder Singh that the door of the room was
latched from inside and the victim came out engulfed in fire was not
challenged.
40. Furthermore, the testimony of PW-1 and PW-2 that deceased was being
harassed for dowry is contradicted inasmuch as PW-1 acknowledged that the
appellant never harassed his daughter to bring money or things from them.
Although, it may not be ruled out that in cases of domestic violence,
daughters mostly confide to their mothers, but the testimony of PW-1 and
PW-2 read as a whole would show that except for a solitary incident that
occurred sometime in 1994 when a complaint was also lodged with PS
Mayapuri, and the parties buried their differences, there is no allegation of
there being constant fights or bickering between the victim and her husband.
There is nothing in the testimony of either PW-1 or for that matter PW-2 to
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show that victim was continuously being harassed for or on account of
demand of dowry or that he appellant was otherwise impulsive or
temperamental, subjecting his wife to constant domestic violence.
41. Lastly, the lackadaisical investigation in the present matter causes
serious damage to the credibility of the prosecution case. To reiterate, PW-17
IO/SI Jaggu Ram failed to examine any witness from the neighbourhood, who
could corroborate that the appellant was fleeing away from the spot. Likewise,
no witness came forward to corroborate that it was the appellant who put the
victim on fire after pouring kerosene oil upon her. Evidently, no such
accusation was made by the victim when the neighbours doused the fire. No
significant efforts were made to apprehend the appellant immediately after the
incident was reported, and he was ultimately arrested at his residence on
08.10.1998. During the course of investigation there was no attempt made by
the IO to examine the elder daughter (DW-1) of the deceased and the
appellant. At the cost of repetition, there is no evidence on the record that the
appellant was impulsive of temperamental and used to indulge in domestic
violence for one reason or the other. Indeed, the whereabouts of the appellant
at the time of incident is a relevant fact but then it is nowhere in the testimony
of IO that he was absconding. The appellant was a vegetable vendor and there
was no evidence led as to what were the hours of his occupation involving
selling vegetables. It is in the said context, the testimony of DW-3 Ramesh
gains significance, who testified without any challenge that the appellant’s
brother came to the Mandi and informed him about an incident at home,
prompting the appellant to leave his place of business at around 07:00 p.m.
42. In view of the foregoing discussion, this Court has no hesitation in
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holding that there are several links in the chain of circumstances that remain
unproven; rather, there is sufficient substantial doubt as regards the complicity
of the appellant for the offence with which he has been charged, and therefore,
the appellant is entitled to be accorded the benefit of reasonable doubt.
43. Accordingly, the present appeal is allowed and the impugned judgment
dated 02.03.2002 convicting the appellant for the offence under Section 302
IPC is hereby set aside. Consequentially, the impugned order on sentence
dated 18.03.2002 whereby the appellant has been sentenced to undergo life
imprisonment is also set aside. The appellant be set at liberty forthwith if not
required in any other case.
44. A copy of this judgment be uploaded on the website forthwith.
45. A copy of this judgment be communicated to the concerned Jail
Superintendent for necessary information and compliance.
DHARMESH SHARMA, J.
PRATHIBA M. SINGH, J.
MARCH 12, 2025/Sadiq
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