SUBHASH CHAND SHARMA Vs. STATE

JUDGEMENT

(1.) THE present appeal has been preferred against the judgment dated 12.09.1997 delivered by the Additional Sessions Judge, Karkardooma Courts, Shahdara, Delhi in Sessions Case No. 184/1996 which arose out of FIR No. 227/1991 under Section 302 IPC registered at Police Station Bhajanpura. THE appellant was charged for having committed the murder of his wife Smt. Reeta, who was a teacher in a public school on the allegation that he had burnt her alive in the intervening night of 16/17th of May, 1991. THEy had been married for 7-1/2 years and they also had a child by the name of Karan, who was six years of age at the time of the occurrence. THE learned Sessions Judge had found the appellant guilty of the offence punishable under Section 302 IPC and, therefore, by a separate order on sentence dated 15.09.1997, the appellant was sentenced to rigorous life imprisonment and a fine of ` 5,000/- was also imposed and, in default of the fine, he was to undergo one month of rigorous imprisonment.

(2.) THIRTEEN prosecution witnesses were examined as well as one defence witness. On going through the impugned judgment, we find that the learned Sessions Judge mainly considered three dying declarations, which are alleged to have been made by the deceased Smt. Reeta prior to her death. The first was the one recorded in the MLC Exhibit PW11/A where the alleged history was given by the patient herself. She had stated that she had a quarrel with her husband in the evening and in the night she poured kerosene oil on herself and set herself on fire. The second dying declaration referred to in the impugned judgment is Exhibit PW13/DA, which is said to have been recorded by ASI Ramjit Singh of Police Station Bhajanpura on 17.05.1991 wherein, once again, it is alleged that the deceased Smt. Reeta had stated that she had prepared tea on the gas stove in her house and when her husband had started taking tea, she poured kerosene oil on herself and set her clothes on fire. It is also indicated in the said statement that an altercation had taken place between her and her husband over some domestic issue prior to the incident.

(3.) THE learned counsel appearing on behalf of the appellant assailed the authenticity and correctness of the so-called dying declaration Exhibit PW7/A. He submitted that the said dying declaration was not recorded in the manner prescribed by Chapter 13-A of Volume III of the Delhi High Court Rules and Orders dealing with dying declarations. He further submitted that Exhibit PW7/A does not inspire any confidence inasmuch as the thumb impression of the deceased Smt. Reeta is barely visible, whereas the thumb impression of the same Smt. Reeta on Exhibit PW13/DA is clearly and distinctly visible. Thus, according to the learned counsel for the appellant, there is a serious doubt as to whether the thumb impression on Exhibit PW7/A was at all that of Smt. Reeta. Apart from this, he has also pointed out several discrepancies in the manner in which the said statement was recorded, which we shall refer to below. Consequently, it was his submission that Exhibit PW7/A cannot be considered to be an authentic and correct dying declaration of Smt. Reeta and, therefore, the conviction cannot be based upon it. He further submitted that insofar as Exhibit PW13/DA is concerned, the same was the statement made by Smt. Reeta to DW1 ASI Ramjit Singh and there is nothing which has been brought forth on behalf of the prosecution to assail the authenticity of the said Exhibit PW13/DA. He further submitted that the prosecution knew about the existence of this dying declaration but they did not produce it before the court. It is for this reason that the defence was left with no alternative but to produce ASI Ramjit Singh as a defence witness, who has come to the witness box and has proved the statement of Smt. Reeta, which is Exhibit PW13/DA. Apart from this, the learned counsel for the appellant also submitted that the MLC, which has been proved by PW11 and has been exhibited as Exhibit PW11/A, also contains the endorsement of the doctor who prepared the MLC to the effect that the alleged history was given by the patient herself and that she had clearly indicated that she had poured kerosene oil on herself and set herself on fire after she had a quarrel with her husband in the evening. Thus, according to the learned counsel for the appellant, upon examining the first two dying declarations, that is, the one recorded in the MLC Exhibit PW11/A and the other which is recorded in Exhibit PW13/DA, it is clear that the appellant has not been implicated in these two statements. It is only in Exhibit PW7/A that the appellant has been sought to be implicated. Once Exhibit PW7/A is held to be unreliable, there is no evidence against the appellant and he is entitled to be acquitted of all charges.