State (Delhi Administration) vs Smt. Kuldeep Kaur and Another

Manju Goel, J.—The appeal is directed against the judgment of acquittal in case FIR No. 461/79 P.S. Kingsway Camp, Delhi under

Sections 302/34 of Indian Penal Code (in short `IPC''). The two accused, Kuldeep Kaur and Jitender Kaur @ Veenu, were the mother-in-law

and sister-in-law of late Tarvinder Kaur (hereinafter referred to as `the deceased''). The deceased was admitted to LNJP Hospital on the evening

of 15.5.1979, with severe burn injuries on her body. She eventually expired on 19.5.1979. The two accused (respondents herein) were accused

of having killed the deceased by causing the burns. Kuldeep Kaur allegedly poured the kerosene oil on the deceased and Jitender Kaur set her on

fire by means of a matchstick. The deceased was married to Sat Pal son of Sardar Harbans Singh resident of F-3/7, Model Town, Delhi on

3.12.1978. The unfortunate incident took place on 15.5.1979. The prosecution case relies upon two dying declarations of the deceased, one

recorded by a police sub-inspector and the other by a Magistrate apart from a series of dying declarations allegedly made to the relatives of the

deceased which were made prior to the dying declarations made to the police officer and to the Magistrate. Yet the learned Sessions Judge has

acquitted the two accused/respondents. Hence the appeal.

The Sessions Judge has disbelieved the testimonies of the relatives of the deceased who claim to have heard the dying declarations from the

deceased. He has also found the dying declarations recorded by the police officer and the Magistrate unreliable, inter alia, on the ground that the

two dying declarations were not corroborated by any circumstantial or other evidence and the scientific evidence was contrary to the dying

declarations. The Sessions Judge also indicated that the prosecution had failed to establish any motive for the alleged offence.

Before we proceed to analyze the evidence on record and the contentions of the appellant, we have to keep in mind the scope within which an

appellate court can examine a judgment of acquittal.

The jurisdiction of the appellate court and the approach to be adopted by the High Court in dealing with an appeal against acquittal is now fairly

well settled, with number of judicial pronouncements. The High Court, no doubt, in its power of judicial review can review the entire case both on

facts and law and take its own decision. However, while exercising the said jurisdiction, the following principles are kept in mind. The High Court

does not interfere in appeal, if the reasons given by the trial court are good and sturdy Rang Bahadur Singh and Others Vs. State of U.P.,

Even if on the basis of same evidence, two views are possible, the appellate court will not be justified in reversing an order of acquittal, if the

same is based on evidence on record and the view taken by the trial court is a reasonable view on evidence. The High Court even on re-

appreciation of evidence does not interfere with an order of acquittal, unless there are compelling and substantial reasons for doing so and the view

taken by the trial court is a clearly unreasonable view. Reference may be invited usefully to the observations of the Supreme Court in State of

Rajasthan Vs. Raja Ram, . The Court held as under:

Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by

acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused

should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which

may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is

cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to

whether any of the accused committed any offence or not. The principle to be followed by the appellate Court considering the appeal against the

judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly

unreasonable, it is a compelling reason for interference.

From the foregoing, it would be seen that unless the view taken by the trial court is either perverse or unreasonable, manifestly wrong, leading to

miscarriage of justice, the High Court is not entitled to set aside the acquittal and convict the accused. We, Therefore, proceed to deal with the

appeal in the light of the law relating to appeal against acquittal as given by the Supreme Court.

The FIR in this case was registered on 16.5.1979, on the basis of DD No. 12 made at around 6.00 p.m. The DD was under Sections 307/34

IPC. The statement on the basis of which the FIR was registered is Ext.PW-1/A made by the father of the deceased, Shri Ram Singh. The

statement made by him, translated into English, will read as under:

I married my daughter Tarvinder Kaur to Sat Pal son of Harbans Singh resident of F-3/7, Model Town, Delhi on 3.12.1978. After marriage the

family was living jointly. Harbans Singh and Satpal Singh are the owners of Universal Auto Trading Company, Kashmere Gate, of which Satpal

Singh is the owner of 40% and Harbans Singh of 60%. Over the last six months, there were disputes between them over the business and on

several occasions there had been incidents of beating between them. About 10-12 days back Harbans Singh, Kuldeep Kaur and Jitender Kaur

quarreled with my daughter and they broke the T.V. set and sofa set of my daughter. Kuldeep Kaur took away the keys of the steel almirah which

my daughter had received in dowry and Jitender kaur threw away her articles several times and has said that her father had not given her anything

worthwhile. On 12.5.1979, Kuldeep Kaur and her daughter snatched away the bangles and other jewellery of my daughter and they have been

harassing my daughter in order to usurp her jewellery. This was told to me by my daughter. Seeing the condition of my daughter and having heard

the talk of other people, I am sure that Kuldeep Kaur, Jitender Kaur and Harbans Singh poured kerosene oil on my daughter on the last evening

and set her on fire. On hearing the shrieks of my daughter while she was burning the neighbours also arrived at the spot who have also stated that

Kuldeep Kaur, Jitender Kaur and Harbans Singh attempted to kill my daughter by setting her on fire after pouring kerosene oil so that they can

marry their son again.

The important thing to notice in this statement is the absence of any mention of any dying declaration having been made by the deceased to Ram

Singh. All that he says is that he is convinced, having seen the condition of his daughter and having heard the the talks of other people that Harbans

Singh and the two accused have burnt his daughter by pouring kerosene on her. Another thing to be noticed is that he relies upon the statements of

the neighbours who, according to him, stated that Harbans Singh and the two respondents had killed his daughter by setting her on fire with the

motive of marrying Sat Pal with another woman. The two dying declarations recorded by the police and the Magistrate were allegedly made on

17.5.1979. Before coming to the dying declarations, it will be appropriate to see the MLC, Ext. PW-17/A. As per this document, the deceased

was brought to the hospital on 15.5.1979 at 10.00 p.m. by Sat Pal with the history of getting burnt while cocking on a kerosene stove. She was

conscious and the burns were 30-35% over face, neck and chest. There is an endorsement at 10.45 p.m. on 15.5.1979 by Dr.A.K.Gupta,

Ext.PW-17/B, to the effect that the patient was unfit for a statement. A similar endorsement was made on 16.5.1979 at 12.50 p.m. which is

Ext.PW-17/D. On 17.5.1979 at 12.50 p.m. the patient was still unfit for statement and the certificate in this regard is Ext.PW-17/C.

The police officer who recorded a dying declaration is PW-23 SI Amolak Chand. He made an application seeking the permission to record the

statement of Smt.Tarvinder Kaur on which doctor on duty made an endorsement on the application, Ext.PW-23/A. She was declared fit to make

a statement. Thereafter he recorded the statement of Tarvinder Kaur. The statement has been proved on record as Ext.PW-23/B. The facts given

in this dying declaration is to the effect that on the evening of 15.5.1979, while she was reading a book sitting on the floor of the room, her mother-

in-law appeared with a tin of kerosene oil and her sister-in-law came along with mother-in-law while her husband was relaxing in the adjoining

room. She goes on to say that her mother-in-law shut the door of the room and poured kerosene oil on her and thereafter her sister-in-law Veenu

set her on fire by means of a matchstick. She further states herein that her husband reached the spot and extinguished the fire and took her to the

hospital in a car. It is this very police officer who subsequently went to Mr.P.D.Gupta, Metropolitan Magistrate, and requested him to record the

dying declaration. There are two things worth noting about this dying declaration. The first is that this dying declaration is recorded on a plain sheet

and not on a sheet on which the case dairy is written by a police officer. Secondly the document was not produced to the court along with the

challan. Why the document did not form a part of the challan is explained by the witness by saying that the investigation had been transferred from

him and, Therefore, the document could not be annexed to the challan. Thirdly the police officer himself says that he got a feeling from the behavior

of the relatives of the deceased that the statement made by Tarvinder Kaur may not have been voluntary. The question put to him in cross-

examination was whether his doubts about the statement being not voluntary was washed away after he perused the copy of the statement

recorded by the Magistrate. He answered that even till date of his appearing in the box he had not been able to make up his mind if the statement

of Tarvinder Kaur made before him was voluntary or involuntary.

The dying declaration was recorded by the duty magistrate at 6.30 p.m. on 17.5.1979 and the memo recorded by him in this respect is

Ext.PW-21/C. As per this memo the investigating officer came to his residence and requested him to record the dying declaration of Smt.Tarvinder

Kaur at the Irwin Hospital (LNJP Hospital) and he accompanied him to the hospital where Tarvinder Kaur was found admitted in the Burns Ward

No. 9. He talked to Tarvinder Kaur and asked her whether she is willing to make a statement or not. She expressed her desire to make a

statement on which the Magistrate himself ensured that the deceased was not under any pressure or threat at that time and that she is making the

statement voluntarily. Thereafter he recorded the statement at about 7.00 p.m. He read over the statement to Smt.Tarvinder Kaur who admitted

the same to be correct. The statement was thereafter forwarded to the concerned court. The application made to him by the investigating officer is

Ext.PW-21/A and the endorsement made by the Magistrate on it is Ext.PW-21/D. The dying declaration of Smt.Tarvinder Kaur is Ext.PW-21/B.

The statement translated into English reads as under:

My mother-in-law Kuldeep Kaur has been quarreling with me over dowry. On the evening of the day before yesterday I was watching T.V. alone

when my mother-in-law and my sister-in-law Veenu came. It was about 9.15 p.m. My husband at that time was in the bathroom. My mother-in-

law poured kerosene oil on me and my sister-in-law Veenu set me on fire by a matchstick. Within 2-4 minutes my husband arrived there and

attempted to save me. There was no quarrel between me and my husband.

The important thing in this dying declaration is absence of any certificate from any doctor about the fitness of the patient to make a statement.

The Magistrate, Shri P.D.Gupta, appeared in the witness box as PW-21 and said that he enquired from the doctor and the doctor had certified

that the patient was fit for a statement. The certificate was, however, not in writing. The Magistrate says that the doctor refused to give anything in

writing and gave an excuse that the superior medical authorities had instructed not to give anything in writing. On being questioned as to who was

the doctor whom he had met and asked for a certificate, the Magistrate said that the doctor was reluctant to give his name. He also disclosed that

no doctor was present at the time the statement was recorded. The fact of his consulting the doctor about the fitness of the patient, the refusal of

the doctor to give a certificate in writing and the reluctance of the doctor to give his name are not mentioned in the memo, Ext.PW-21/C. The

Magistrate admittedly did not see the case sheet pertaining to the patient. Nonetheless, he says that Tarvinder Kaur was in a fit state of mind to

make a statement and denies all suggestions that the statement was made or recorded at the instance of the father of the deceased or of the

investigating officer. Even the endorsement of the doctor on the dying declaration recorded by PW-23 Amolak Chand is not proved. The

endorsement o the doctor, Ext.PW-23/A, was required to be proved by the doctor who made the endorsement. Neither the doctor has been

produced nor has the endorsement been shown to PW-17 who proved the MLC with the other endorsements. The endorsement, Ext.PW-23/A,

is of 3.35 p.m. on 17.5.1979. At 12.50 p.m. on the same day there is an endorsement saying that the patient was unfit to make a statement. The

trial court has analyzed the evidence on this aspect and has observed that even on 16.5.1979 at 8.00 p.m. the deceased was responding only to

deep and painful stimuli and as per the examination of 18.5.1979 at 6.00 a.m. the condition of the patient/deceased was very poor. In the death

summary there is a clear mention that the general condition of the patient went on deteriorating. The trial court has thus observed that there was a

great deal of doubt about the condition of the patient/deceased when SI Amolak Chand recorded the statement, Ext.PW-23/B. The Magistrate

came to record the statement about 3 hours after the statement recorded by PW-23. Since there was nothing to suggest that the condition of the

patient had improved in any way on 17th afternoon and in the evening, the trial court could justifiably have a doubt about the mental and physical

capacity of the deceased to make an intelligible and coherent dying declaration.

The other dying declarations can now be seen in the light of these two recorded dying declarations and the statement of Ram Singh on the

basis of which the FIR was registered. Ram Singh, the star witness of the prosecution, appears in the witness box as PW-1. The relevant part of

his testimony says that at 9.30 p.m. on 15.5.1979 he received a telephone call from his other son-in-law, Amarjit Singh, that the deceased had

received burn injuries on which immediately he, his wife and his son, Harkanwaljit Singh, proceeded to the hospital and found his daughter

admitted in the emergency ward. On his enquiry at 10.30 p.m. on 15.5.1979 as to how she received the burn injuries, his daughter Tarvinder Kaur

informed him that while she was watching T.V. her mother-in-law sprinkled kerosene oil and her sister-in-law set her on fire by means of a

matchstick in the drawing room of her in-laws'' house. He says that police met him on the evening of 16.5.1979 when he made his statement,

Ext.PW-1/A, and signed the same. Now, as stated earlier, Ext.PW-1/A makes no mention of any such dying declaration made by his daughter to

him on the night of 15.5.1979. The prosecutor, Therefore, questioned him as to whether he had parted with this information while the statement,

Ext.PW-1/A, was recorded and he answered that he had told the police about the same when the statement, Ext.PW-1/A, was recorded. This,

however, does not explain away the absence of any mention of the dying declaration in Ext.PW-1/A. Ext.PW-1/A gives an impression that till the

evening of 16.5.1979 no dying declaration was at all made by the deceased. Further as per the MLC, the patient was conscious when brought to

the hospital at 10.00 p.m. There is nothing to indicate that the patient was also oriented at that time. In any case, at 10.45 p.m. she was unfit to

make a statement. It is very unlikely that at 10.30 p.m. on 15.5.1979 the deceased was mentally and physically fit to make a dying declaration as

stated by Ram Singh.

The other dying declarations relied upon are those allegedly given by the deceased to PW-2 Harkanwaljit Singh, brother of the deceased,

PW-4 Amarjit Singh, brother-in-law of the deceased, PW-8 Brij Paul Kaur, elder sister of the deceased, PW-18 Jagdish Chander, known to the

father of the deceased and to PW-6 Jitender Tuli, known to the father of the deceased.

PW-2 deposes that he reached the JPN Hospital at 10 p.m. on 15.5.1979 and on seeing him the deceased started crying and on enquiring the

cause of the injuries the deceased disclosed to him that her mother-in-law had sprinkled kerosene oil and her sister-in-law had set her on fire by

means of a matchstick. He went on to say that he came out of the ward and having come to know that the police was already seized of the matter

kept waiting for the police officer to arrive but no one from the Kingsway Camp police station visited the hospital during the night. According to

him, on the following morning he narrated the entire mater to PW-6 Jatender Tulli and together they went to P.S. Kingsway Camp and requested

for his statement to be recorded but no action was taken by the police. He says that on his complaint the investigation was transferred to Crime

Branch. However, the complaint, it turned out, was made on 25.5.1979 and even in this complaint, Ext.PW-2/A, the factum of the dying

declaration having been made has not been disclosed. The witness admitted having not disclosed to the local police about the dying declaration

even when a call was given at 11.00 p.m. to the police station Kingsway Camp. He even did not know if SI Sunder Dev of P.S. Kingsway Camp

was present in the hospital at 10.45 p.m. He attempted to cover all the shortcomings by saying that initially he did not want to disclose anything

because he expected his sister to survive. It is difficult to accept the cover assumed by the witness because the police having been approached

there could have been no hesitation to disclose all incriminating facts to the police.

PW-4 Amarjeet Singh discloses that on 15.5.1979 at around 9.30 p.m. he learnt about the incident of burning whereon he along with his wife

reached the house of the accused persons and from there to the LNJP Hospital after 10.45 p.m. and saw Tarvinder Kaur lying in the emergency

ward with her mother-in-law besides her. On his enquiry Tarvinder Kaur told him that her mother-in-law sprinkled kerosene oil on her and her

sister-in-law Veena had set her on fire by means of a matchstick while she was watching T.V. sitting on the floor at around 9 p.m. The mother-in-

law was besides her when this alleged dying declaration was made. The witness says that after learning this he came out of the ward and told about

the dying declaration to Harkanwaljit Singh. He discloses in his cross-examination that he did not confront accused Kuldeep Kaur about these

facts which were revealed to him by the deceased. It was discovered during his cross-examination that he made a statement to the police on

16.5.1979 where the factum of his having been told of the cause of the fire by the deceased was not disclosed.

PW-8 Mrs.Brij Pal Kaur is the wife of the PW-4 and elder sister of the deceased. Brij Pal Kaur and Amarjeet Singh having come to the

hospital together and having met the deceased together claim to have been the witnesses of the same dying declaration. PW-8 corroborates PW-4

on this. She also concedes that she also did not question Kuldeep Kaur and did not make any effort to remove Kuldeep Kaur by the bed-side of

the deceased. The fact of her having heard the dying declaration does not find mention in her statement u/s 161 Cr.P.C., Ext.PW-8/A. She also

concedes that she did not disclose of this dying declaration to her parents.

The next witness to the dying declaration is PW-18, Jagdish Chander, who is a friend of the father of the deceased. He claims to have entered

the emergency ward along with Amarjeet Singh, PW-4, and his wife, Brij Pal Kaur, PW-8. He heard the dying declaration that was given to PW-

4, Amarjeet Singh. Strangely this witness also says that although he met the parents of the deceased at that very date and time he did not disclose

to them the fact of the deceased having made the dying declaration in his presence.

Smt.Hardev Kaur, the mother of the deceased, is PW-20. She corroborates his son, Harkanwaljit Singh, PW-2, in respect of the dying

declaration as she claims to have been present when the alleged dying declaration was made by the deceased to PW-2. The mother-in-law,

Kuldeep Kaur, even according to this witness, was at the bed side of the deceased but despite having heard the dying declaration made by the

deceased she did not confront the mother-in-law, i.e., accused Kuldeep Kaur with the same. She could not remember if she disclosed the dying

declaration to her own husband. She reached the hospital at around 10.15 p.m. and, Therefore, the alleged dying declaration could have been

made only sometime thereafter. The witness, nonetheless, maintains that the deceased was in a condition to make the dying declaration. She denies

that the deceased was lying unconscious when she reached the hospital or that on account of heavy sedatives the deceased was unable to speak.

Referring to the various notes on the MLCs, the trial court has observed in the impugned judgment that it is very unlikely that the deceased was in a

fit state of body and mind to make any dying declaration. Further, the trial court has observed that these dying declarations do not find any place in

the complaining statement, Ext.PW-1/A, which was made about 18 hours after the incident and in the complaint, Ext.PW-2/A, that was made by

Harkanwaljit Singh, PW-2. It also raises a doubt about the truth in any of these testimonies about the dying declarations. Another important thing

noticed by the learned trial court is that instead of mentioning a dying declaration PW-1 stated in his complaining statement that having seen the

condition of his daughter and having heard the talk of the people here and there he was convinced that the accused Kuldeep Kaur, Jatender kaur

and Harbans Singh caused fire to the deceased by pouring kerosene oil on her. Further he stated therein that while the deceased was leaving the

house the neighbours had gathered who had also seen the incident. Thus, the absence of the dying declaration in Ext.PW-1/A is more than

conspicuous raising sufficient doubt about the veracity of these witnesses on this aspect. In our opinion the trial court cannot be faulted in declining

to lay any reliance on these witnesses, viz., PWs-1, 2, 4, 8, 18 & 20 on the aspect of dying declarations having been made to them at the hospital

by the deceased on the night of 15.5.1979.

The trial court was also fortified in his finding in this regard by the two statements of witnesses, PW-7 Mrs.Mohini Devi and PW-9 K.

Chander. As per them while leaving for the hospital the deceased had confirmed that she had received the burn injuries from the stove. It is this

version which appears on the OPD card of the Hindu Rao Hospital as also the MLCs and the other case sheet recorded at the JNP Hospital.

The conduct of PWs 1, 2, 4, 8, 18 & 20 witnesses also appear to be very unnatural. In case they had heard the dying declaration being made

by the deceased the immediate natural impulse would have been to throw Kuldeep Kaur out of the ward and to have immediately raised a ruckus

and to have drawn the attention of the police as well as the staff of the hospital about the attempt to murder. The learned trial court has observed

that the prosecution has put up all these witnesses only in order to support the alleged dying declaration made to the police officer, PW-23 and the

Metropolitan Magistrate, PW-21. Before discarding the prosecution version the trial court has even examined the other evidence on the record.

The circumstantial evidence on the record gives no support to the theory of the dying declarations. In the first place nothing incriminating

whatsoever was recovered from the room in which the TV was kept. No trace of any kerosene oil in that room was visible. The map, Ext.PW-

10/A, says that the room had sofas and if kerosene had been poured on her there would have been some trace of kerosene oil on the sofa covers

and cushions. There was no mark of any burning in any part of that room. One matchstick box recovered from the pellet of the room does not

indicate any crime having been committed in that room. The doctors did not find any smell of kerosene oil on her body. The prosecution did not

collect the clothes of the deceased and, Therefore, there is no evidence which could prove that kerosene oil had been poured on her. The post

mortem report, Ext.PW-25/A, says partial burnt hairs, eyebrows auxiliary and pubic hair but none of these part of the body of the deceased there

was any smell of kerosene. Dr.Bharat Singh, PW-25, says since no kerosene smell existed on the body it cannot be said with certainty if burns

were caused by a fire using kerosene oil.

All these facts together are sufficient to raise a doubt about the prosecution version of the story. The trial court accordingly gave the benefit of

doubt to the accused.

It may be stated further that the stove and the utensils in the kitchen were also sent for the forensic examination. The stove was found to be in

order. From the side of the prosecution and the appellant it is submitted that the stove which was found to function in normal condition could not

have caused such a fire. However, it is for the prosecution to prove its case and not for the defense to prove its defense. Foregoing discussion

shows that the prosecution has failed to prove its case beyond reasonable doubt. The appellate court cannot interfere with the judgment of the trial

court unless the trial court findings are found perverse in some respect. The reasons given by the trial court for arriving at the conclusions have been

found to be cogent. This court, Therefore, declines to interfere with the judgment. The appeal is accordingly dismissed.