State vs Girish Kumar Bhasin

Indermeet Kaur, J.—The State has preferred this appeal against the impugned judgment dated 21.2.2000, vide which the respondent Girish Kumar Bhasin has been acquitted of the charge u/s 302 as also u/s 498A IPC.

The deceased Jyoti was the unfortunate wife of the appellant. The parties had been married in the year 1986 and they had two children out of the wedlock. In the intervening night of 11-12.5.1991, Jyoti received burn injuries in her matrimonial home at house No. 2829, Ashok Gali, Ram Bazaar, Mori Gate, Delhi. Time of the incident was around midnight. Victim Jyoti was admitted to R.M.L. Hospital by her mother-in-law Smt. Kamlesh Bhasin PW-7. Her MLC Ex.PW-1/A recorded at 1.15AM on 12.5.1991, shows that patient had been admitted with 75% burns but she was otherwise conscious and well-oriented. The victim had finally succumbed to her injuries on 15.5.1991, at about 4.45PM.

The version of the prosecution is hinged on two dying declarations given by the deceased.

The first dying declaration Ex.PW-10/A was recorded on 12.5.1991, at 4.15AM by the S.D.M. Shri Dharmender Sharma PW- 10. As per this version the appellant had been exonerated. In this dying declaration Jyoti had stated that when she had gone to the kitchen to prepare tea, she had pumped the stove after pouring kerosene oil in it and as soon as she lit the match her nylon suit caught fire; pursuant to which she got burnt; her husband Girish was sleeping with the children outside; on hearing her cries he came in the kitchen and put a blanket on her and in this process his hands also got burnt.

The second dying declaration Ex.PW-10/B of the deceased was recorded on 15.5.1991, at 4.30PM by the same S.D.M. PW-10. He has on oath stated that on 15.5.1991, he was informed by the Police that relatives of Jyoti had informed them that Jyoti wanted to make another statement. PW-10 went to the R.M.L. Hospital and after confirming from the doctor that Jyoti was fit to make statement, he recorded this statement of Jyoti which bore his signatures at point `A�. It was in this second dying declaration that the role of the appellant had surfaced and Jyoti had allegedly told the S.D.M. that on the fateful night when she was in the house her husband Girish had asked her for a glass of water and in the course of arguments he abused her and after pushing her, he opened the lid of the stove which contained kerosene oil and after sprinkling it upon her he burnt her by lighting a match. Ex.PW-10/B does not bear the signature of Jyoti and neither has the same been thumb marked. In this document there is also no evidence that the certification of fitness had been obtained from the doctor.

Perusal of the MLC Ex.PW-1/A of the victim however shows that on 15.5.1991, there is an endorsement by one Dr. Kailash Shekhar that the "patient is fit for statement at 4.30 PM on 15.5.1991". Dr. Kailash Shekhar has not been examined as a witness. PW-10 has admitted in his cross-examination that there is a cutting and an overwriting on the time which has been mentioned in this fitness certificate i.e. an overwriting at 4.30 PM; whether it should be read as 4.30 PM or 4.50 PM is not clearly decipherable. This timing becomes relevant in view of the version of the prosecution that the patient had finally succumbed to her death at 4.45 PM on 15.5.1991.

Shri.Yogh Raj PW-4 is the father of the victim. He was admittedly not present in the hospital when the first dying declaration was given by his daughter to the S.D.M. He was however present at the time when the second dying declaration was made by her. In his cross-examination PW-4 has stated that his daughter had died after 15 minutes of her statement having been recorded by the S.D.M.; at that time she was not even able to speak; the witness again stated that she was able to speak very slowly. PW-4 further stated that doctor was present at that time when the S.D.M. recorded this statement; this is however not in conformity with the version of PW-10 who has stated that he cannot say if the doctor was present at that time or not.

There is no dispute to the proposition that conviction can be recorded on the basis of a dying declaration alone but provided that this dying declaration is fully reliable.

In the instant case there are two dying declarations; the first has exonerated the appellant and the second has implicated him. In these circumstances, the second document has to be scrutinised with greater care and caution. This dying declaration had been recorded by the S.D.M. just about 15 minutes prior to her death and this is presuming that the dying declaration was recorded forthwith at 4.30 PM itself, when she had allegedly been declared fit for making statement; she had died at 4.45 PM; S.D.M. must also have taken some time to record the statement even presuming that he had commenced it at 4.30 PM itself. There is also an overwriting on the time when the fitness had been given by the said doctor; the doctor has not come into the witness box to clarify this position. PW-4 father of the victim had admitted that at that time his daughter was hardly able to speak. All these cumulative factors had weighed in the mind of the trial Judge when he had disbelieved this second dying declaration.

The site plan Ex.PW-3/A at point `A� shows the place where the stove was kept and point `E� is the place where the can containing kerosene oil had been kept; both of which are at a distance apart. This is a normal circumstance as kerosene being an inflammable material would in routine be kept outside the precincts of the house. The CFSL report had detected kerosene only in the can and the stove; the hair of the victim which had been sent for examination has not noted any kerosene content. Perusal of the photographs and the recovery memo Ex.PW-11/A also show that at the time when the stove had been seized from the spot the lid was intact and not in an open condition; this is contrary to the version given in the dying declaration where Jyoti had allegedly stated that Girish had after opening the lid of the stove sprinkled kerosene upon her; no kerosene stains had also been picked up from the place of occurrence.

The consistent stand of the appellant is that his wife had caught fire while she was making tea in the kitchen; he had gone to save her and in doing so he had sustained burn injuries. This was also the version given by Jyoti in her first dying declaration Ex.PW- 10/A. Smt.Kamlesh Bhasin PW-7 mother-in-law of the victim had also deposed that on the fateful night when she heard cries from room on the first floor where Jyoti and Girish used to sleep she found that her son was extinguishing the fire and Jyoti was in flames. To the same effect is the version of the neighbour Sanjeev Gupta examined as PW-9; he has also deposed that when he went to the room after hearing cries of Jyoti he saw that Girish was extinguishing the fire and Jyoti was in flames. Ex.PW-19/DA and Ex.PW-19/DB are the MLCs of the respondent Girish showing burn injuries on his hands.

The conclusion of the trial Judge in disbelieving the second dying declaration in view of the aforenoted discrepancies as also the possibility of the second dying declaration being a tutored one, having been made under the influence of the parents of the victim, is in our opinion not an unreasonable view. We do not find any infirmity in the said reasoning.

In K. Ramachandra Reddy and Another Vs. The Public Prosecutor, the Supreme Court while noting the discrepancy vis-�-vis the magistrate who had recorded the dying declaration and the medical evidence had held that the prosecution not having been able to put up a foolproof case, benefit of doubt had to be given to the accused.

The Trial Judge in our view has also not faltered in drawing the conclusion that no case u/s 498A IPC is also made out.

In this context the version of the parents of the victim Yog Raj PW-4 and Smt. Chandrakanta PW-5 have been noted. PW-4 had on oath stated that his daughter was living happily for about six to seven months after marriage but thereafter her husband started mal-treating her; he made a demand of Rs. 20,000/- which was fulfilled; he made another demand of Rs. 7000/- which was again paid up; thereafter another demand of Rs. 20,000/- was again made after one and half month which PW-4 was unable to meet. In his cross-examination when confronted with his earlier statement Ex.PW-4/DA he admitted that there is no mention of the latter demand of Rs. 20,000/-; the other improvements in the version of PW-4 has also been taken note of. To the same effect is the version of PW-5 and the improvements made in her statement have also been perused. PW-5 had admitted that the appellant Girish had not made any demand on any occasion. Even in the second dying declaration Ex.PW-10/B Jyoti has not mentioned that her husband ever harassed her or made any dowry demand on her; this would have been a natural narration by her if this was the cause of the initiation of disputes between them.

It is settled position in law that an Appellate Court while hearing an appeal against acquittal must bear in mind that there is double presumption in favour of the accused; firstly a presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed innocence unless proved guilty; secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced. It is also a settled position in law that if two reasonable conclusions are possible on the basis of evidence on record the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.

In our view the judgment of trial Judge suffers from no infirmity and calls for no interference. Appeal being without any merit, is dismissed.