TaxTMI 
TaxTMI 
2010 (1) TMI 1319
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....e marriage, the deceased gave birth to a girl child on January 2, 1983 at New Delhi. Thereafter, the deceased went to Chandigarh to reside with the appellant. On April 4, 1983, the appellant with his wife and child came to Delhi from Chandigarh. After visiting the parents of the appellant, they went to the house of the parents of the deceased and took dinner there. After taking dinner, the appellant and the deceased with the child returned to the house of parents of the appellant at about 11.30 pm and retired to bed. At about 2.30 am on April 6, 1983, shrieks of the deceased were heard and she was found engulfed in the flames. At about 2.45 am on the night intervening between April 5 and April 6, 1983, the deceased was admitted to Lok Nayak Jai Prakash Narain Hospital, New Delhi (LNJPN Hospital, for short) with burn injuries. The Duty Constable posted at the said hospital sent a telephonic message at about 3.00 am that Shashi, aged about 26 years, with burn injuries sustained in her house was admitted by her husband, i.e., the appellant. This message was recorded at DD No.6A. On receipt of the message, ASI Hans Raj along with Constable Umrao Singh went to the hospital. He collected....
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....s committed to Sessions Court, Delhi for trial. 5. The learned Additional Sessions Judge, to whom the case was made over for trial, framed charge against the appellant and his mother under Section 302 read with Section 34 of the Indian Penal Code. The same was read over and explained to them. The appellant and his mother did not plead guilty to the same and claimed to be tried. Therefore, the prosecution examined several witnesses and produced documents in support of its case against the appellant and his mother. On completion of recording of evidence of prosecution witnesses, the learned Sessions Judge explained to the appellant and his mother the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure, 1973. As far as the mother of the appellant is concerned, she claimed that she was falsely involved in the case and was innocent. The appellant in his further statement claimed that when he was asleep, he was awakened by the shrieks of his wife and, therefore, had come out in the verandah and had seen his wife in flames. According to him, he tried to extin....
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....ellant. In view of the said conclusions, the learned Judge, by judgment dated September 29, 1992, convicted the appellant under Section 302 IPC and sentenced him to rigorous imprisonment for life and a fine of Rs.2,000/- (Rupees two thousand only) in default rigorous imprisonment for one year and acquitted his mother. 7. Feeling aggrieved, the appellant filed Criminal Appeal No.183 of 1992 before Delhi High Court. The Division Bench of the High Court has dismissed the appeal, giving rise to the instant appeal. 8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the appeal. 9. It is not in dispute that the case against the appellant rests on circumstantial evidence. It would be advantageous to restate the well settled law relating to appreciation of circumstantial evidence. The evidence tendered in a court of law is either 'direct' or 'circumstantial'. Evidence is said to be 'direct' if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intu....
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....the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is, or are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis, except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused; and where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. 10. Having noticed the principles governing the case based on the circumstantial evidence, this Court proposes to consider the circumstances relied upon by the prosecution. 11. The first circumstance sought to be relied upon by the prosecuti....
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.... the defence to any of the prosecution witnesses that the deceased had developed suicidal tendencies. It is well to remember that the deceased was well educated and a teacher by profession. She had a three months old child. The paragraphs from the diary quoted in the impugned judgment make it more than clear that the relations between the deceased on the one hand and her husband and members of his family on the other, were strained one. However, those paragraphs do not indicate that the deceased was of feeble mind and had developed tendency to commit suicide. It is relevant to notice that it is nobody's case that the deceased was not a caring mother. The lingering doubt about the uncertain future of the infant aged three months would surely deter the deceased from committing the suicide. As noticed earlier, the deceased in the company of the appellant and her child had come to the house of the parents of the appellant from the house of her parents after taking dinner. It could not even be remotely suggested on behalf of the appellant either to the father or to the mother or to the sister of the deceased that when the deceased, in the company of the appellant, had come for dinner, s....
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....he deceased caught fire accidentally because of the flames emanating from the stove as a result of which she died. The panchnama of the place of incident establishes that the place suggested by the defence where the deceased was found engulfed in fire is a narrow passage where several articles were lying. If the deceased had died because of the flames emanating from the stove, the other articles lying nearby would have been found to be burnt. However, admittedly the panchnama of place of incident does not indicate that any article was burnt except a towel which was found partially burnt. Further, the story put forth by the appellant that at midnight the deceased had got up for boiling milk for the infant itself does not inspire confidence of the Court. The deceased who was a teacher by profession and well educated must be breastfeeding her three months old infant and it would not be reasonable to infer that the infant was being fed buffalo or any other milk. It may also be mentioned that the deceased in the company of the appellant had left her parental home between 11 pm to 11.15 pm on April 5, 1983 and must not have gone to sleep before 11.30 pm. From this fact, it would be reaso....
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....d her body were smelling of kerosene. It is also inconceivable that due to initial bhabhak, the clothes and body of the deceased would be soiled with kerosene unless it had burst. The CFSL report on the record shows that kerosene oil stove was found in normal working order. Therefore, the presence of kerosene oil on the body of the deceased and clothes put on by her, rules out the theory of accidental fire as suggested by the defence. The medical evidence on record makes it evident that soot particles were present in the stomach of the deceased. According to Dr. Bernard Knight who has authored 'Medical Jurisprudence and Toxicology' if soot particles are found in Larynx Trachea or into stomach, it is commonly a case of conflagration. The presence of soot particles in the stomach indicates that the injuries could have been sustained by the deceased only in a conflagration and that too in a closed area. The instinct of survival would have made the deceased to run into an open place but in this case, the record does not indicate that any such attempt was made by the deceased to run towards any open space and positively establishes that she was found at the end of the passage which hard....
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....e in a fake attempt to hide the homicidal death. The record of the case, as noticed earlier, establishes beyond pale of doubt that the deceased had suffered more than 90% burns of 3 rd to 5 th degree category. If the deceased had suffered extensive burns because of her clothes catching fire accidentally, she would have run for her life either in the open backyard or rolled on the floor or would have wrapped a curtain or any mattress around herself to extinguish the fire. However, the record does not indicate that any such attempt was made by the deceased. The presence of extensive burns with more than 90% burn injuries out the theory of accidental fire. Applying the principle laid down in Surinder Kumar v. State (Delhi Administration) AIR 1987 SC 692 to the facts of the present case, it becomes clear that if the stove had burst as suggested by the defence, the deceased would not have sustained burns on the face, neck, trunk, upper limbs etc. and her clothes would not have been found containing kerosene oil. Further, at no point of time, any complaint was made either by the appellant or his family members to the company which had manufactured the stove or the owner of the stove from....
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.... with Ms. Chhaya would show that he had a strong motive to do away with the deceased. Thus, the second circumstances of motive sought to be relied upon by the prosecution is also firmly established. 15. Yet another circumstance relied upon by the prosecution against the appellant is that the deceased had made a verbal dying declaration to (1) Ram Nath Mehra, her father; (2) Ravi Kanta Mehra, her mother; (3) Meena Mehra, her sister; (4) B.L. Sharma; (5) Kamlesh Sharma; and (6) Sudarshan Lal at about 12.00 Noon in Burns Ward of LNJP Hospital on April 6, 1983. It may be stated that the Trial Court found that deceased was conscious and had made statements. The Trial Court further held that the quality of evidence lead to establish the oral dying declaration was insufficient to record conviction but the same could be used as a corroborative piece of evidence. From the impugned judgment, it becomes evident that the High Court considered the question whether acquittal of mother of the appellant was proper or not in view of the principles laid down in Sunder Singh vs. State of Punjab AIR 1962 SC 1211. After considering the evidence led by the prosecution to prove oral dying declaration ....
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....ed one Assistant Sub-Inspector who was sitting inside the ward to record the statement of Shashi but the said Assistant Sub-Inspector had refused to do so and, therefore, he immediately had left the hospital and gone to the shop where he was serving which is situated in Canaught Place to bring a tape recorder. The witness has, further stressed before the Court that he had reached the hospital at about 1.30 pm with tape recorder to record the statement of injured Shashi but the hospital staff and nurses had not permitted him to take a tape recorded inside the burns ward. The reliable testimony of witness Ram Nath Mehra, father of the deceased shows that the deceased had made a statement to him in trembling voice that the appellant, his mother and other members had set her on fire. His testimony would further show that thereafter he had requested Mr. Khan, Assistant Commissioner of Police to record the statement of Shashi but the Assistant Commissioner of Police had refused to oblige saying that on her MLC, it was mentioned that she was unfit to make a statement. The witness has further stated that thereafter he had met Doctor Tiwari who was in charge of Burns Ward and requested h....
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....he witnesses with the appellant. Under the circumstances, this Court is of the opinion that their evidence could not have been rejected on the ground stated by the High Court unless the same was found suffering from inherent improbability. The evidence of Ram Nath Mehra, the father of the deceased, Ravi Kanta Mehra, the mother of the deceased, B.L. Sharma and Sudershan Lal would indicate that each of them had entreated and implored different authorities to get the statement of the deceased recorded. The testimony of B.L. Sharma would indicate that he had gone to the extent of visiting Tees Hazari Courts in the company of one Sub-Inspector deputed by the SHO of Moti Nagar Police Station and had gone to the hospital with an SDM to record the statement of the deceased. The testimony of Sudershan Lal satisfactorily establishes that when the Assistant Sub-Inspector sitting inside the Burns Ward had refused to record the statement of the deceased, he had immediately gone to the shop being run in the name of M/s. Bright Electricals situated at Cannaught Place to bring a tape recorder and had returned to the hospital with tape recorder but the hospital staff and nurses on duty had prevente....