Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal 440/2012
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Reserved on: 11 September, 2012
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% Date of Decision : 17 September, 2012
SURAJ CHAUHAN @ BITTOO ....APPELLANT
Through Mr. Purnima Sethi, Advocate.
Versus
STATE …RESPONDENT
Through Mr. Sanjay Lao, Advocate.
CORAM:
HON’BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P. GARG
SANJIV KHANNA, J.
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Suraj Chauhan @ Bittoo by the impugned judgment dated 18
October, 2011, in FIR No. 191/2008, P.S. Vasant Vihar, stands
convicted under Section 302 of Indian Penal Code 1860 (IPC) for
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murder of his wife Pooja on 30 July, 2008.
2. Prosecution alleges that the appellant had poured kerosene oil on
Pooja and burnt her in their residence in Village Basant, New Delhi.
3. There is no eye-witness and the prosecution‟s case is primarily
based upon dying declarations of Pooja. These declarations were made
to Head Constable P. Tiwari (PW-19), who had taken the victim to the
hospital along with the appellant, and Surender Kumar (PW-4), the
Executive Magistrate, who had recorded the dying declaration in the
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hospital, on 1 August, 2008. The prosecution also relies upon
Crl. A. 440/2012 Page 1 of 11
statement of Pooja, as recorded in the MLC Ex. PW-6/A, wherein it is
mentioned that Pooja was admitted with history of burns, when her
husband poured kerosene oil over her and set her on fire, after a
quarrel.
4. It is not disputed that the appellant was married to Pooja for four
years. They had no children.
5. Death of Pooja, as a result of burns, is proved from the
testimony of Dr. Shilpi Baranwal (PW-6) who had examined Pooja, on
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30 July, 2008 at 6.45 PM. She had stated that Pooja was admitted
with alleged history of burns when her husband poured kerosene oil
over her and set her on fire following a quarrel. She had examined
the appellant on the same day, and at about the same time, as the
appellant had thermal burns on his hands which it was stated were
caused when he was trying to save his wife. Pooja had 60% thermal
burns with facial and respiratory burns at the time of admission. It was
stated by PW-6 that the facial burns, as mentioned in MLC Ex.
PW6/A, meant that she had burns on her face. Dr. Sarvesh Tandon
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(PW-17) had conducted post mortem of the dead body of Pooja on 14
August, 2008. He has averred that Pooja had died in the hospital on
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12 August, 2008 at 10.20 AM. Pooja had superficial to deep burns all
over the body except major parts of lower limbs, external genitalia,
buttocks, lower parts of back. The cause of death was ascertained as
septicaemic shock due to dry flame thermal ante-mortem, burn injuries
which were sufficient to cause death in the ordinary course of nature.
6. Fundamental question is whether the appellant had thrown
kerosene and burned the deceased. We have statement of PW-1
Surender, elder brother of the appellant. He had stated that appellant
Crl. A. 440/2012 Page 2 of 11
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came home drunk on 30 July, 2008. Thereafter PW-1 heard screams
where upon he reached the place of occurrence and found Pooja
burning. He poured water on her. Pooja told him that appellant had
set her on fire, after pouring kerosene on her. He called police by
dialing No. 100 and police took Pooja to the hospital where she
subsequently died. He identified the dead body of Pooja in the
hospital. Appellant was a habitual drinker who quarreled with his wife
and other family members. The appellant was present at the time
when PW-1 reached the spot of occurrence. The appellant had stated to
PW-1 that he would provide treatment to Pooja and she would be
alright.
7. Seema (PW-3) is wife of Surender and appellant‟s sister-in-law.
In her examination in chief, she had stated that she did not know what
had happened but after hearing noise, she came out and saw that Pooja
was lying in a burnt condition. She, along with her husband, poured
water on Pooja. PW-1 then called the police by dialing 100. While
lying on the floor, Pooja was saying that she was burnt by the
appellant.
8. In cross-examination of PW-1 and PW-3, it was suggested that
appellant and PW-1 had a land dispute and they were not on good
terms. This allegation was denied by both PW-1 and PW-3. In court
no material has been put forth to show that there was a land dispute
between PW-1 and the appellant.
9. PW-1, in the cross-examination, had stated that he had not seen
the appellant pouring kerosene on Pooja and setting her on fire.
Similar statement was also made by PW-3. But they had reached the
spot immediately after the “act” and had the occasion to hear the
Crl. A. 440/2012 Page 3 of 11
deceased Pooja. Presence of PW-1 and PW-3 is natural as they were
residing in the same building. PW-1 called the police from his
telephone number. This is clear from the PCR information Ex. PW2/A
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which was recorded on 30 July 2008 at 18:01:39. PW-1 had further
stated that the appellant had also got injured. Therefore, presence of
the appellant at the spot is proved. Presence of appellant was also
proved by MLC of the appellant (Ex. PW6/B) which was recorded by
PW-6, at about 6.45 PM on the same day.
10. Head Constable P. Tiwari (PW-19) was posted in PCR at Vasant
Vihar. On receiving a call, he had reached House No. 143, C Block,
Vasant Village and had taken injured Pooja and her husband to the
hospital. He has stated that Pooja revealed to him that she was burnt
by her husband by pouring kerosene oil. She also informed that her
husband was a habitual drinker. In his cross-examination, he
confirmed that Pooja had made this statement when she was in the
hospital. He denied the allegation that Pooja was not in a fit state of
mind and he had falsely implicated the appellant at the instance of the
Investigating Officer.
11. Surender Kumar, Executive Magistrate (PW-4), had stated that
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he had received a call, on 30 July, 2008, at 7.00 PM, from S.I.
Sandeep that a lady called Pooja had been admitted in Safdarjung
Hospital with burnt injury. She was married for about four years. He
visited the hospital at 9.00 PM but the doctors had opined that she was
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not fit to make a statement. On 1 August, 2008, at about 3.15 PM, he
received a message from SI Sandeep that injured Pooja was fit to make
a statement in the opinion of Medical Officer. He recorded the
statement of Pooja vide Ex. PW4/A. The statement bears thumb
Crl. A. 440/2012 Page 4 of 11
impression of Pooja at point „A‟ and signature of PW-4 at point „B‟.
He accordingly directed the SHO to make the investigation, vide note
Ex. PW4/B. Dying declaration (PW4/A) recorded by PW-4 reads as
under:-
“Statement of Mrs. Pooja W/o. Suraj alias Bittoo R/o.
Village Basant (sic) who was admitted in SJH Delhi on
30.07.2008 at 6.45 P.M. with 60% burn. Recording of
statement begin at 4:25 P.M. after obtaining fitness at 4:15
P.M. Statement is being recorded in my own handwriting and
in total isolation.
Q. What is your name?
Ans. Pooja.
Q. When did you get married?
Ans. Suraj and I had been (sic) working together. I belonged
to Bengal and had been living here all alone. Five years ago
both of us got married in a temple on our own.
Q. How did this incident happen?
Ans. I (-sic?) had been at home at 4:00 O‟clock that Suraj
came home drunk. When I stopped him, Suraj started
quarrelling with me and he poured kerosene oil on me and lit a
matchstick. Hearing my screaming, my elder brother-in-law
(Jeth) (who lives in our neighbourhood) came and extinguished
the fire with water. Meanwhile, my elder sister-in-law
(Jethani) also came and my elder brother-in-law informed the
Police through his telephone.
Q. Did your husband beat you earlier too?
Ans. Yes. Everyday he would come drunk and after being
stopped he would beat me. I request you to take the sternest
action against Suraj.
Q. What is the address of your parental house?
Ans. Village Subhash Nagar, Police Station Bethwa, Post
Shelugram, District Nadia, West Bengal.
I am making this statement voluntarily without any
coercion in my full senses. This statement has been read-over
and explained to me and admitting it to be correct; I am putting
my right hand thumb impression on it.
Sd/-
(Surendra Kumar)
Crl. A. 440/2012 Page 5 of 11
Executive Magistrate Vasant Vihar
Govt. of NCT of Delhi
Kapashera, New Delhi
4:45 P.M.”
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12. Pooja died on 12 August, 2008. PW-4 instructed SHO to get in
touch with parents of Pooja but there was no response from them.
Surender Chauhan, elder brother of appellant, requested PW-4 to hand
over dead body of Pooja to him. At PW-4‟s request post mortem was
conducted. In cross-examination, PW-4 denied that Pooja was tutored
by the brother of the appellant and his wife. He has stated that he had
no knowledge of any property dispute. On the question of property
dispute, as noticed before, there is no material to establish the same.
No details of property or exact nature of dispute has been put forth and
set out or put in the cross-examination of PW-1 and PW-3 or in their
statement under Section 313 CrPc. Interestingly, PW-3 was cross-
examined and it was suggested and accepted by her that the appellant
had one son from an earlier marriage who could be 8-9 years, as on
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24 July, 2009. Therefore, the property belonging to the appellant
would in all likelihood be inherited by him.
13. The Investigating Officer, Sandeep Sharma (PW-24) has stated
that he had collected the MLC of Pooja (PW6/A). He also affirmed
that doctor had initially opined that Pooja was unfit for statement on
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30 & 31 July, 2008. However, she was declared fit for statement on
his application Ex. PW24/D by the doctor and thereafter PW-24
recorded her statement (Ex. PW24/A). Parents of Pooja who were
residents of Nadiya, West Bengal, were informed through wireless
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message sent to SSP. On 6 August, 2008, information was received
from SSP, Nadiya that their address was incorrect and that there was
Crl. A. 440/2012 Page 6 of 11
no such village by the said name, as stated by Pooja. Thereafter, on
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14 August, 2008, Surender Chauhan and Naresh Chauhan, brothers of
the appellant identified the dead body in the mortuary. On the basis of
affidavit, Surender (PW-1) received the dead body for cremation. On
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30 July, 2008, PW-24 had prepared the rukka which was sent through
Constable Mahesh. He also recorded statement of Surender and Seema
who reached the spot. Photographs were taken and the plastic can was
sealed and seized vide seizure memo Ex. PW7/A. Match box was also
seized vide Ex. PW7/B. Burnt clothes of Pooja were sealed and seized
vide Ex. PW7/E. He had arrested the appellant vide arrest memo Ex.
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PW10/A on 1 August, 2008, at about 12.30 PM.
14. Since prosecution‟s case is primarily based on dying
declarations made by the deceased, we would like to highlight the
prudent approach adopted by the courts while deciding whether or not
their decision can be based on such statements. Section 32(1) of the
Evidence Act makes dying declarations by the victim admissible in
respect of “any of the circumstances of the transaction which resulted
in his death”. The words “resulted in his death” most certainly include
“caused his death” and have a much wider scope. A dying declaration
may be acted upon without corroboration (see State of U.P. vs. Ram
Sagar Yadav (1985) 1 SCC 552 and the judgments mentioned therein).
However, caution and care should be exercised as the accused does not
get an opportunity to cross-examine the maker of the dying declaration.
Care has to be taken to ensure that the dying declaration is not tutored.
It should not be a product of imagination or prompting. The court
should be also satisfied that the deceased was in a fit state of mind to
make the statement and had an opportunity to observe and identify the
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assailant. The statement should be without any rapaciousness or
rancor. It should be voluntary (see State of Rajasthan vs. Wakteng
(2007) 14 SCC 550).
15. In Atbir vs. Govt. of NCT of Delhi (2010) 9 SCC 1, the Supreme
Court examined its earlier decisions and it was held that dying
declarations are entitled to great weight provided they are of such
nature as to inspire confidence of the court in its truthfulness.
Statement of a person who is on the death bed and is dying is entitled
to respect unless they are indications and doubts that the maker may
not be saying the truth. In such cases corroboration is required and
insisted. Therefore, primary duty of the court is to find whether dying
declaration is truthful or not. Once it is convinced that the dying
declaration is credible and truthful then it can be acted upon even when
uncorroborated. In the said judgment, the following principles were
enunciated:
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction
if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in
a fit state of mind at the time of making the statement
and that it was not the result of tutoring, prompting
or imagination.
(iii) Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction without
any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should
not be acted upon without corroborative evidence.
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(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration does not contain
all the details as to the occurrence, it is not to be
rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
(ix) When the eyewitness affirms that the deceased was
not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is
true and free from any effort to induce the deceased
to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to
make it the basis of conviction, even if there is no
corroboration.”
16. Keeping in view the aforesaid, we have examined the dying
declarations in the present case which includes oral dying declarations
made to PW-1, PW-3, PW-19 and (PW-6) Dr. Shilpi Baranwal‟s
endorsement in the MLC (Ex PW6/A) that Pooja had stated that her
husband had poured kerosene oil over her and after that set her on fire.
In addition, we have the dying declaration recorded by the Executive
Magistrate (PW-4) in Ex. PW4/A.
17. We do not think that Pooja could be tutored by PW-1, PW-3 or
brothers of the appellant. Right from the beginning when Pooja was
taken to the hospital in the PCR van, along with the appellant, Pooja
had blamed the appellant for pouring kerosene oil and burning her.
Her statement has been consistent throughout. As discussed before,
these dying declarations are truthful, credible and trustworthy. There
was no possibility of any false implication by Pooja at the behest of
Surender or any other person. There was no reason for Pooja to help
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PW-1, in case there was any property dispute between the appellant
and his brothers. Pooja, in all probabilities, would have helped the
appellant if there was any property dispute.
18. It was argued before us that Pooja may have committed suicide
and it is not a case of murder under Section 302 IPC. It was suggested
and submitted that the appellant had also suffered burn injuries when
he tried to save Pooja and hence it is possible that Pooja had committed
suicide. In the present factual scenario and in view of repeated dying
declarations of Pooja, we are not inclined to accept the said
submission. In the statement of the appellant, recorded under Section
313 CrPC, he did not claim that Pooja had committed suicide. MLC
Ex. PW6/A recording Pooja‟s statement, that she was burnt by pouring
kerosene oil by the appellant after quarrel, was put to the accused. He
answered that his wife may have stated so out of anger. His reply was
similar for dying declaration (PW4/A) recorded by the Executive
Magistrate. He had stated that his brother Surender and bhabhi Seema
were inimical towards him because of property dispute. Further his
bhabhi Seema used to provoke and instigate his wife. However, the
appellant accepts and admits that he was with the deceased at the time
of incident. He did not allege or state that his wife had committed
suicide by pouring kerosene oil on herself. It was stated by PW-1 that,
post the incident, appellant had stated that he would get his wife
treated. This shows that after the act, the appellant may have been
impelled to realize his wrong and heinous act. Nevertheless, this is
different from stating that the deceased had committed suicide and the
appellant had not poured kerosene oil and burn his wife.
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19. In view of the aforesaid evidence which is on record, it is clear
that the appellant has been rightly convicted, for committing murder of
Pooja by pouring kerosene oil and setting her on fire. His conviction
under Section 302 IPC and sentence of life imprisonment and fine are
accordingly sustained and upheld. The appeal is dismissed.
20. Seema (PW-3) has indicated that the appellant has a son from
his first marriage. His whereabouts were not known. Child Welfare
Committee will get in touch with Surender (PW-1) and Seema (PW-3)
and will take appropriate and required measures as per law to ensure
that he is properly educated, taken care and protected. He should not
be denied what is due to him. Copy of this judgment will be sent to the
Child Welfare Committee.
(SANJIV KHANNA)
JUDGE
( S. P. GARG )
JUDGE
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September 17 , 2012
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