KAMLA Vs. STATE OF DELHI

JUDGEMENT

(1.) IN this appeal, the judgment and order of the learned Additional Sessions Judge dated 08.10.2001 in S.C. No.77/98, convicting the appellants (referred to hereafter by their names, i.e. Sanjay, Kamla and Chanderkanta) for the offences punishable under Section-302/498A/201/34 IPC, has been challenged. During the pendency of the appeal, the appellant Kamla ? (mother of the other two appellants), died. The proceedings abated as far as she was concerned.

(2.) THE prosecution alleged that information was received from Constable Ramesh, (PW-21 duty constable in DDU hospital) about the incident which occurred on 29.09.1997 at 09:30 on the second floor C-36, J.J. Colony, Khyala, Delhi. Sarla (the deceased) had sustained extensive burn injuries and was admitted by PW-6 Om Prakash (elder brother of Sanjay). This information was recorded and the case was assigned to ASI Shekhar Lal, PW-18 for further investigation. Sarla, was initially admitted to Deen Dayal Upadhyaya Hospital but was later referred to Dr. Ram Manohar Lohia, Hospital. THE police alleged that upon visiting the spot, the premises were found locked. It was alleged that Kamla used to reside on the ground floor of the premises; Chanderkanta used to live with her. Om Prakash, PW-6 used to reside on the first floor and Sarla, with Sanjay, used to live on the second floor. THE parents of Sarla were notified. Her mother Chaman Devi, PW-2 recorded a statement on 30.09.1997 to the SDM. THE prosecution's version was that Sanjay married Sarla about 1? years prior to the incident; PW-2 stated that Sarla had informed her about the ill-treatment and physical abuse at the hands of Chanderkanta and Kamla with the object of extracting dowry. It was also stated that Sanjay used to habitually consume liquor. PW-2 further stated about some demand for an over-lock machine and scooter by Sanjay and that she received information about the burning incident at about 12:30 on the mid-night of 29.09.1997.

(3.) THE Appellant's counsel urged that their conviction cannot be sustained. It was argued that the Trial Court relied predominantly on the dying declaration of the deceased Sarla which was recorded on 02.10.1997. Elaborating on this, it was stated that the Medico Legal Certificate (MLC) placed on record Ex.PW-5/A indicated that Sarla was admitted with 80% burns at 10:25 PM on 29.09.1997. It was submitted that the said document itself records a number of endorsements including those made on 30.09.1997 (at 7:15 PM,) 01.10.1997 (at 12:15 noon) and the further endorsement at 12:20 AM on 02.10.1997, to the effect that the injured Sarla was unfit to make a statement. Learned counsel emphasized that the last endorsement i.e. of 12:20 AM of 02.12.1997, clearly indicated that the patient had been administered sedatives and there was a possibility of recording her statement at 04:00 AM. THE subsequent endorsement, submitted counsel, on the document Ex.PW-5/A, was at 05:00 AM; it noted that the patient was fit for statement. THEse circumstances, according to counsel, clearly established that the injured Sarla was not in a position to make any statement on successive dates i.e. 29.09.1997, 30.09.1997 and 01.10.1997 and the early hours of 02.10.1997. Concededly, the last endorsement was made on 02.10.1997 to the effect that Sarla was fit to make a statement, at 05:00 AM. However, inexplicably, her statement was recorded only at 03:45 PM i.e. more than 10 hours later.