CRL.A.--371/1999. Case: BANWARI LAL Vs. STATE OF DELHI. High Court of Delhi (India)
| Case Number | CRL.A.--371/1999 |
| Citation | NA |
| Judgement Date | January 29, 2014 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. APP. NO.371/1999
BANWARI LAL ..... Appellant
Through: Mr. Avninder Singh, Advocate.
Versus
STATE OF DELHI ..... Respondent
Through: Ms. Rajdipa Behura, APP
% Date of Decision : January 29, 2014
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL HON'BLE MS. JUSTICE PRATIBHA RANI
J U D G M E N T
: REVA KHETRAPAL, J.
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The present appeal has been filed against the judgment of conviction under Section 302 IPC and the consequent sentence of simple imprisonment for life imposed upon the Appellant in addition to fine of ` 2,000/- and in default of payment of fine to undergo simple imprisonment for one year.
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The criminal law machinery was set in motion at 10.18 p.m. on 25.3.1992 on receipt of DD No.17A (Ex.PW7/A) at Police Station Geeta Colony to the effect that information was received from PCR about the burning of a lady at a house near Rani Garden, Shiv Mandir. On the same day, at about 10.50 p.m., another information was
received from JPN Hospital given by the duty constable about the admission of Kiran, wife of Banwari Lal at the said hospital, which was entered in the roznamcha by the duty officer of Police Station Geeta Colony as DD No.18A (Ex.PW7/B). Copy of the said DD was handed over to Constable Madhu for onward transmission to SubInspector Arun Kumar.
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On receipt of DD No.17A, Sub-Inspector Arun Kumar, who was on emergency duty, along with Constable Adesh Kumar reached the spot at House No.127, Rani Garden where it was revealed that injured Kiran who had received burn injuries had been removed by her father Swaran (PW4) and neighbour Baldev Raj (PW2) to JPN Hospital. In the meantime, Head Constable Iqbal and Constable Prehlad Singh also reached the spot and leaving them to guard the spot, Sub-Inspector Arun Kumar along with Constable Adesh went to JPN Hospital, where he collected the MLC of the injured and recorded her (Kiran‟s) statement (Ex.PW23/A) after obtaining the opinion of the doctor (PW26) that the injured was fit for making statement. After recording the statement of the injured, Sub-Inspector Arun Kumar along with Constable Adesh came back to the spot where he found the crime team and the photographer. The SHO was also present at the spot. Sub-Inspector Arun Kumar made his endorsement on the statement of the injured Kiran, which is Ex.PW23/B and handed over the same to Constable Adesh for registration of the case, who took the same to the Police Station and got registered the case vide FIR No.83/92 (Ex.PW10/A). He then inspected the site and prepared the site plan (Ex.PW23/C) and
recorded the statements of witnesses including that of public witness Kasturi Lal (PW19), who had overpowered the accused and produced the accused before him. Seizure Memos (Ex.PW12/A to 12/D) were prepared after seizure of the articles at the spot and the articles were seized and sealed. Seal after use was handed over to Kasturi Lal. The accused was got medically examined in JPN Hospital for the burn injuries sustained by him.
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On 26.3.1992, at about 11.50 a.m., the Investigating Officer Sub-Inspector Arun Kumar received copy of DD entry No.7A (Ex.PW8/A) through Constable Ashok regarding the death of Smt. Kiran. On receipt of the said information, he communicated the same to the SHO concerned, who, in turn, apprised the SDM. The SHO and the SDM Shri R.K. Mishra reached the mortuary where inquest proceedings were completed by the SDM and the postmortem got conducted (Ex.PW18/A). Apparently, at this point of time, the SDM directed that the case be converted from one under Section 307 IPC to one under Section 498A and 304B IPC. On the aforesaid direction of the SDM, Sub-Inspector Arun Kumar added Sections 302/304B and 498A IPC and informed the SHO in this regard. Further investigation was taken over by the SHO himself.
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On 1.4.1992, on the direction of the SHO, SI Arun Kumar took child witness PW22 Bablu, son of the deceased, to the Court and got recorded his statement under Section 164 Cr.P.C. (Ex.PW21/B) through the Metropolitan Magistrate by moving an application in this regard (Ex.PW23/E). On 10.4.1992, the exhibits were sent to the CFSL on the direction of the SHO. Later on, on 5.6.1992, SI Arun
Kumar collected the scaled site plan and handed over the same to the SHO.
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In order to substantiate its case against the accused, the prosecution examined as many as 26 witnesses and exhibited a large number of documents. From these witnesses, the material witnesses were PW2 Baldev Raj, neighbour of the deceased; PW3 Suresh, the brother of the deceased; PW4 Swaran, the father of the deceased; PW19 Kasturi Lal, by all accounts an independent witness residing in the neighbourhood and PW22 Bablu, the son of the deceased. The remaining witnesses were witnesses with regard to the investigation, the medical examination of the deceased and the accused and other formal witnesses.
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The statement of the accused Banwari Lal was recorded under Section 313 Cr.P.C. The accused in his statement denied the prosecution case in toto and claimed innocence. He stated that his wife had died by receiving burn injuries from the stove at the time of preparing food. He also stated that his wife had not given any statement prior to her death and the statement of his wife had been “falsely prepared by the IO” for implicating him in the case. The accused, however, chose not to lead any defence evidence.
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We have heard Mr. Avninder Singh, learned amicus curiae for the Appellant and Ms. Rajdipa Behura, learned Additional Public Prosecutor for the State and scanned the evidence on record with the assistance of the counsel for the parties.
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Mr. Avninder Singh, the learned amicus curiae assailed the case of the prosecution on a number of grounds. He contended that
the authenticity of the dying declaration recorded by the Investigating Officer was highly questionable since the same was not signed either by the concerned doctor or by any other attesting witness. Further, no attempt had been made by the Investigating Officer throughout the night intervening 25th March and 26th March, 1992 to obtain the presence of the Magistrate for the purpose of recording the dying declaration. Still more damaging was the fact that the Investigating Officer who recorded the statement of the deceased, though he attested the dying declaration, did not state that the deceased was in a fit state of mind at the time of recording of her statement. Reference was made by Mr.Avninder Singh in this regard to the Delhi High Court Rules and Orders, Volume 3, Chapter 13-A. Our attention was specifically drawn to Rule 7 wherein it is stated that where a dying declaration is recorded by a Police Officer or a Medical Officer, it shall be got attested by one or more of the persons who happen to be present at that time. In the present case, learned counsel contended that dying declaration was not attested by any of the persons present at the spot except the Investigating Officer, though admittedly the neighbour of the deceased Baldev Raj (PW2), the brother of the deceased Suresh (PW3) and the father of the deceased Swaran (PW4) were present at the time of the recording of the dying declaration. As a matter of fact, PW2 – Baldev Raj and PW4 – Swaran categorically stated that the doctor was present when the dying declaration was recorded, but PW26 – Dr. R.K. Srivastva contradicted this by stating that he was not present when the dying declaration was recorded.
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Mr. Avninder Singh, learned amicus curiae referred to the decision of the Supreme Court in Nallapati Sivaiah v. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007) 15 SCC 465 in support of his contention that the non-examination of the doctor who was stated to have been present at the time of recording of the dying declaration is a significant factor which cannot be overlooked and that in such circumstances it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case so as to render the dying declaration worthy of inspiring confidence. He contended that the cumulative effect of the other evidence including the medical evidence and the totality of circumstances must be taken into consideration to assess the correctness of the dying declaration. In particular, he relied upon the following portion of the judgment in Nallapati Sivaiah (supra):
“46. It is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. The evidence of the Professor of Forensic Medicine casts considerable doubt as regards the condition of the deceased to make a voluntary and truthful statement. It is for that reason non-examination of Dr. T. Narasimharao, Casualty Medical Officer, who was said to have been present at the time of recording of both the dying declarations attains some significance. It is not because it is the requirement in law that the doctor who certified about the condition of the victim to make a dying
declaration is required to be examined in every case. But it was the obligation of the prosecution to lead corroborative evidence available in the peculiar circumstances of the case. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person recording the dying declaration—be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making...
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