IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : January 28, 2009
Judgment delivered on : February 02, 2009
CRL.A. 836/2003
02.02.2009
SABAR BHATTI ..... Appellant
Through: Ms.Anu Narula, Advocate.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate.
CRL.A. 760/2003
ZARINA ..... Appellant
Through: Ms.Anu Narula, Advocate.
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
: PRADEEP NANDRAJOG, J.
1. At 5.10 AM on 16.8.1999, vide DD No.22/A, Ex.PW-8/D, the duty
officer at Police Station Timarpur recorded the receipt of information that a
woman had been set on fire after being doused in kerosene oil at Himgiri
Enclave.
2. SI Ranbir Singh PW-22, accompanied by Const. Krishan, reached
Himgiri Enclave and learnt that the injured Meenu had been removed to the
hospital. SI Ranbir Singh proceeded to the hospital i.e. LNJP hospital.
3. Meenu was admitted at LNJP hospital at 5.45 AM by Victor alias
Raju (PW-6), brother-in-law of appellant Sabar Bhatti, a fact recorded in the
MLC Ex.PW-14/A. That Meenu was admitted at the hospital was conveyed by Const.
Raj Kumar, on duty at LNJP hospital, to his counter-part at PS Timarpur, who
made an entry of said information being lodged at the Police Station vide DD
No.23/A, Ex.PW-8/C.
4. SI Ranbir Singh PW-22, did not meet any eye witness at the
hospital. He obtained a copy of the MLC of Meenu, on which, while noting the
history as to how Meenu had sustained the burns, it was recorded:
?alleged H/O homicidal burns. She was set on fire by her husband after pouring
kerosene oil.?
On the side, it was recorded on the MLC that the said information was given by
the patient herself. The doctor who prepared the MLC is Dr.Arun Prashant PW-21.
5. SI Ranbir Singh could not record the statement of Meenu because
by the time he reached the hospital she was unfit for making a statement. He
returned to the place of occurrence where he met one Ms.Kamlesh PW-2, and
recorded her statement Ex.PW-2/A and made an endorsement Ex.PW-22/A thereon and
sent the same through Const. Krishan to the police station where HC Satyawan,
the duty officer at the police station recorded the FIR, Ex.PW-8/A at 10.00 AM.
6. The statement, Ex.PW-2/A made by Kamlesh reads as under:
?Statement of Ms.Kamlesh, wife of Sh. Radhey Shyam, r/o Himgiri Enclave, Burari,
Delhi, aged 30 years.
I reside with my family at the above noted address. At around 4.45 AM today
i.e. 16.8.1999, Sunita, sister of Sabar came to my house and requested me to
accompany her because Sabar had burnt his wife Meenu. I immediately reached
Sabar?s house. Anita, wife of Mahadev, Jamuna wife of Mani Ram, Veena wife of
Samuel and husband of Jamuna also reached the spot. Many other persons of the
locality had collected at the spot. Meenu was lying quietly covered with a
cloth, outside her house. We asked Meenu as to what had happened she responded
that Sabar had sprinkled kerosene oil on her and set her on fire?????????.?
7. SI Ranbir Singh PW-22, also met Anita PW-3, Jamuna PW-4, Mani
Ram PW-12 and Veena PW-7 at the spot. He recorded their statements Ex.PW-3/A,
ExPW-4/A, Ex.PW-12/A and Ex.PW-7/A.
8. Constable/Photographer Joginder Singh PW-16, was summoned to the
place of the occurrence on 16.8.1999 itself. He took photographs of the site
being Ex.PW-16/A1 to Ex.PW-16/A5; negatives whereof are Ex.PW-16/B1 to Ex.PW-
16/B5. SI Ranbir Singh prepared a rough site plan, Ex.PW-22/B, of the site of
occurrence and recorded marginal notes thereon. Tirath Raj Singh PW-10, took
measurements to scale at the spot and prepared the site plan Ex.PW-10/A to
scale. Meenu died the same day i.e. 16.8.1999 at around 9.05 AM, as noted in
the death summary Ex.PW-15/A. Her body was sent for autopsy and on 17.8.1999
Dr.Aakash Jhanzhi PW-18, conducted the post-mortem and recorded the findings in
the report, Ex.PW-18/A. He noted that the deceased had 90% burn injuries i.e.
90% of the body was burnt. He noted that the skin had peeled off from the burnt
areas, exposing reddish-white under-surface. Smell of kerosene being present in
the scalp was recorded. It is apparent that Meenu had suffered 3rd
degree burns.
9. Inspector Sandeep Bhayala PW-23, working as the Additional SHO
at PS Timarpur, was directed by the SHO to take over the investigation on
16.8.1999 itself. He recorded statements of Victor alias Raju PW-6, Sunita PW-5
and Toni PW-13, mark 6-A, mark 5-A and mark 13-A respectively.
10. It being a case of an unnatural death, the Sub-Divisional
Magistrate of the area, Sh.Arun Mishra was summoned by the IO and he recorded
statements of the parents of Meenu, namely, Mushtaq PW-9 and Saleema PW-11 being
Ex.PW-9/B and Ex.PW-11/A respectively. In said statements they stated that
husband of Meenu and her mother-in-law used to harass Meenu for dowry.
11. Being prima facie, a case of homicidal burning, and as per the
parents of the deceased demands of dowry being made, a charge-sheet was filed
accusing Sabar Bhatti, husband of Meenu of the offences of having murdered his
wife by setting her on fire after pouring kerosene oil on her. His mother
Zarina was charged with the offence punishable under Section 498-A/34 IPC.
Sabar Bhatti was also charged with the offence punishable under Section 498-A/34
IPC.
12. Needless to state the prosecution relied upon the MLC of the
deceased on which Dr. Arun Prashant PW-21, had recorded the history of the burns
as stated by the patient herself; namely being burnt by her husband after
pouring kerosene oil on her. Needless to state, if established, the same had to
be treated as the dying declaration of Meenu. The prosecution also relied upon
the site plan and the photographs taken at the spot as also the statements of
the various witnesses who were summoned as the prosecution witnesses.
13. PW-2 Kamlesh, deposed that on 16.8.1999 at about 4.55 AM Sunita
(PW-5), sister of the accused Sabar came to her house and informed that Meenu
had sustained injuries. She reached the house of Sabar and found Meenu lying
there in a burnt condition. She stated : ?Meenu asked me to remove her to
hospital.? After so stating, she deposed that she does not know anything beyond
this point. Being declared hostile she was cross-examined by the learned APP.
She declined having made any statement to the police but admitted that the
statement Ex.PW-2/A bore her signatures at point ?X?, but went on to state that
the statement was never read out to her and that she simply appended her
signatures thereon. She denied that on 16.8.1999 when Sunita came to her house
she informed her that Sabar had set Meenu on fire. She was confronted with the
statements recorded from point ?A? to ?A? and ?B? to ?B? on Ex.PW-2/A, she
denied having made said statement. On being cross-examined by counsel for the
accused she stated that Meenu was not in a position to speak.
14. Anita PW-3, Jamuna PW-4, Veena PW-7 and Mani Ram PW-12, all
deposed that at around 4.30-5.00 AM on 16.8.1999 when they received information
of Meenu having received burns they reached her house and found that Meenu was
badly burnt. They all disclaimed anything said by Meenu to anyone of them.
They were confronted with their statements recorded under Section 161 Cr.P.C. as
they were declared hostile. They denied having made any statement, as recorded
by the police, that when they reached the house of Meenu she told her that her
husband has set her on fire.
15. Sunita PW-5, sister of appellant Sabar, stated that she was
present in her house when her brother-in-law Toni (PW-13) came to her house and
informed that Meenu had suffered burns. She stated that she reached the house
of Meenu and found her lying in the gali outside the house. She stated that
she knew nothing further. She was declared hostile. On being cross-examined by
the learned APP she denied having made a statement that Meenu had told them that
Sabar had set her on fire. She was confronted with her statement recorded by
the police where said fact was recorded. She denied that she had said so.
16. Victor @Raju PW-6, deposed that Sabar was his brother-in-law
and he reached his house on learning that Meenu had suffered burn injuries and
that he found Meenu lying burnt outside the house.
17. Toni PW-13, stated that he was in his house when he learnt of
Meenu having suffered burn injuries and on reaching her house he found Meenu
lying in the gali. He stated that he removed her to the hospital and was helped
by Victor @Raju in doing so.
18. Dr. Arun Prashant PW-21, who had recorded the MLC Ex.PW-14/A,
deposed that he was on duty at LNJP hospital at 5.45 AM on 16.8.1999 and that
Meenu was brought to the hospital in a burnt condition; that he recorded the
history as told by the patient of being burnt by her husband after pouring
kerosene oil on her. He deposed that smell of kerosene oil was present. He
deposed that the patient was conscious and that the pulse rate was 100 per
minute. He deposed that as recorded by him in the MLC he had noted bilateral
crepts present on the chest of the patient. He explained that this meant that
due to burns there was respiratory secretion.
19. The parents of Meenu were examined as PW-9 and PW-11. Both
deposed of dowry demands being raised. Both gave particulars of the instances
when demands towards dowry were raised and made good by them. Relevant would it
be to note that when confronted with their respective statements recorded by the
SDM i.e. Ex.PW-9/A (statement of Mushtaq) and Ex.PW-11/A (statement of Saleema)
they admitted that the specific instances of demands and payment of dowry stated
by them in their deposition in court were not to be found in the statements made
by them before the learned SDM and that they never stated said facts before the
learned SDM.
20. It was argued before the learned Trial Judge that all the
public witnesses; namely PW-2 to PW-4, PW-5 to PW-7 and PW-12 and PW-13
categorically stated that when they reached the house of Meenu she had not
uttered a word. Thus, it was urged that where-from could Meenu be in a
conscious and oriented condition, to tell the doctor, PW-21, the history of the
burns. It was urged before the learned Trial Judge that as admitted by PW-21,
bilateral crepts were present which meant that due to burns there were
respiratory secretion. It was thus urged that the physical condition of Meenu
was such that she could not be in a conscious state.
21. Brushing aside the afore-noted submissions, learned Trial Judge
has held that there was no reason for Dr.Arun Prashant PW-21, to depose falsely
or to falsely implicate anybody. The result is that the MLC Ex.PW-14/A has been
treated as the dying declaration of the deceased pertaining to the recording of
the fact therein that the patient had disclosed the fact that her husband had
poured kerosene oil on her and set her on fire. Believing the testimony of the
parents of the deceased the learned Trial Judge has held that the same evidences
that Meenu was harassed for dowry and hence the charge under Section 498-A IPC
stands established.
22. At the hearing of the appeals, learned counsel for Sabar
Bhatti, Ms.Anu Narula re-urged the same very submissions which were made before
the learned Trial Judge pertaining to the death of Meenu.
23. It is a sad state of affairs in this country that the public
does not join in a police investigation; and if joins in the police
investigation, normally turns hostile. Cases are replete in law journals of
public witnesses turning hostile and the prosecution suffering. If citizens do
not shoulder the public responsibility of truthfully disclosing the commission
of an offence which they have seen, where-from can the police bring the truth on
record?
24. But, truth has the uncanny habit of some-how or the other
oozing out.
25. In the instant case, truth has emerged in the statement of
Kamlesh PW-2, who, in her deposition stated: ?Meenu asked me to remove her to
hospital?. It means that Meenu spoke to Kamlesh. Her turning turtle and there-
after deposing that she knew nothing about the incident because Meenu was not in
a position to speak is totally belied from the earlier sentence spoken by her
and as noted above. We note that PW-2 Kamlesh was cross-examined by the learned
counsel for the accused and not even a suggestion has been given to her that
Meenu never requested her to remove her to the hospital. Now, if Meenu could
request to be removed to the hospital, it was natural for her to have told as to
how she was burnt. It was natural for Kamlesh to have asked Meenu as to how did
she sustain the burn injuries.
26. Truth has further emerged when PW-5 Sunita, PW-6 Victor and PW-
13 Toni, have stated that they found Meenu lying in a burnt condition in the
gali. It means that Meenu had the energy to run out of the house; to be rescued
by somebody. The area is a crowded area. From the deposition of the eye
witnesses it is apparent that they reached the house of Meenu within minutes of
the incident. Obviously, Meenu was in a condition to speak and must have
spoken. Indeed, they truthfully disclosed to the police when their statements
were recorded under Section 161 Cr.P.C. that Meenu had, in their presence,
stated that Sabar had burnt her. In this connection we may add that PW-22 SI
Ranbir Singh has categorically deposed that he correctly recorded the statement
Ex.PW-2/A made by Kamlesh. His testimony on said point has not been challenged,
in that not even a suggestion has been put to him that he did not correctly
record the statement of Kamlesh.
27. Humans may lie but circumstances seldom do. The photographs
Ex.PW-16-A1 to 16-A5 and the site plan Ex.PW-10/A tell their own story.
28. The residence of Sabar is a single room ad-measuring 13?10? x
10?9?. The place where Meenu was set on fire has been marked at point ?1? which
corresponds to the photograph Ex.PW-16-A2. It is inside the room. The place
mark ?5? which corresponds to the photograph Ex.PW-16-A1 is outside the room, on
an open place at a distance of about 16 feet from the place where Meenu was
burnt. A burnt chatai can be seen. The place where Meenu was found by the
neighbours is mark ?7?. It is on the street outside the house being at a
distance of about 30 feet from the place where Meenu was burnt. The family had
no kitchen and the cooking was done in the open. A stove has been shown in the
site plan at point mark ?4?. The same is outside the room. The plastic can
containing residues of kerosene oil was at the point mark ?3? inside the room.
This means that Meenu was set on fire inside the room and she ran out with the
hope that she would be rescued.
29. As noted above, PW-21, the doctor who examined Meenu at the
hospital deposed that smell of kerosene was present on the body. The post-
mortem report Ex.PW-18/A also notes kerosene oil present in the scalp.
Obviously, it cannot be a case of Meenu suffering accidental burns. Kerosene
oil cannot be present in the scalp of a person who suffers an accidental burn.
Besides, the stove is outside the room and the place where Meenu received burn
injuries is inside the room. It has to be either a case of Meenu attempting to
commit suicide or being burnt by somebody. The appellants have not urged that
Meenu committed suicide. Besides, a person who attempts to commit suicide takes
all measures to ensure the success of his/her mission. Why would Meenu set
herself on fire and go about helter and skelter seeking help?
30. The facts noted herein above negate that Meenu suffered
accidental burns or committed suicide.
31. Pertaining to the plea that by the time she was examined
bilateral crepts had surfaced on the chest of Meenu, meaning thereby, due to
burns there were respiratory secretion; suffice would it be to state that in the
MLC the pulse rate recorded is 100 per minute. This means that at that point of
time the body organs of Meenu were still functioning fairly normally. The loss
of body fluids due to secretion had not achieved such proportions that Meenu
would presumably be unconscious.
32. A person who is grievously burnt or suffers 3rd degree burns,
suffers bilateral crepts, but at what stage goes into coma is difficult to say.
It is basic knowledge that as the body loses fluids and oxygen is lost, the
heart pumps faster and faster to send oxygen to the vital organs of the body.
The pulse rate of a patient affords a good index of the condition of the
patient.
33. As noted above truth has emerged in the deposition of PW-2
Kamlesh, who has categorically deposed that Meenu had asked her to be removed to
the hospital. This means that Meenu was fully conscious when the neighbours had
gathered. Her pulse being 100 when she was examined by PW-21 shows that by that
time she had not become very critical. We see no reason to suspect the
testimony of PW-21 to the effect that he recorded in the MLC, as told to him by
Meenu, that Sabar had set her on fire.
34. One last circumstance may also be noted. Meenu received burn
injuries at around 4.45 AM. It is no earthly hour for a person to get up and
start cooking. Sabar, her husband is expected to be in the house at 4.45 AM.
Where was he when the unfortunate incident took place? Indeed, if he was not
guilty, his conduct, as husband, had to be to immediately rush his wife to the
hospital. That Meenu was found lying on the street and her husband Sabar was
nowhere to be seen is also a circumstance which points the finger of guilt
towards Sabar.
35. We find no infirmity in the impugned judgment vis-?-vis the
finding returned against Sabar of having murdered his wife Meenu who died due to
internal haemorrhage resulting from shock occasioned by the burns.
36. Pertaining to Zarina and the conviction of Sabar for the
offence punishable under Section 498-A IPC, we notice that the learned Trial
Judge has simply gone by the deposition of the parents of Meenu as recorded in
Court, ignoring the vast improvements made by them vis-?-vis the statements made
by them before the learned Sub-Divisional Magistrate, in which statements they
gave no particulars of the dates when demands were made and the amounts
ostensibly paid by them as dowry demands.
37. Indeed, Ms. Richa Kapoor, learned counsel for the State did not
seriously dispute that there were improvements of a material nature in the
depositions of the parents of Meenu.
38. Insofar as Zarina and Sabar have been convicted for the offence
punishable under Section 498-A IPC, the appeals have to succeed. Insofar as
Sabar Bhatti has been convicted for the offence punishable under Section 302
IPC, his appeal has to be dismissed.
39. Crl.A.No.836/2003 is partially allowed. Impugned judgment and
order dated 10.11.2003 convicting Sabar Bhatti for the offence punishable under
Section 498-A IPC is set aside and he is acquitted of the said charge. The
appeal pertaining to his conviction for the offence of murder is dismissed and
the charge having been established is upheld.
40. Crl.A.No.760/2003 filed by Zarina is allowed. Her conviction
for the offence punishable under Section 498-A IPC is set aside. She is
acquitted of the said charge.
41. We note that Zarina is on bail. Her bail bond and surety bond
stand discharged.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
FEBRUARY 02, 2009
rk
