Amit
Kumar & ANR. Vs. State of Punjab [2010] INSC 624 (12 August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.62 OF
2006 Amit Kumar & Anr. ... Appellants VERSUS State of Punjab ...Respondent
SURINDER
SINGH NIJJAR, J.
1.
This appeal has been filed by the two appellants challenging the
judgment rendered by the High Court of Punjab and Haryana in Criminal Appeal
No.226-DB of 2002 dated 18.5.2004. By the aforesaid judgment, the High Court
has confirmed the judgment of the Sessions Judge, Faridkot dated 25.1.2002 in
Sessions Case No. 48 of 16.12.1997 and Sessions Trial No. 390 of 7.4.1998
whereby both the appellants have been convicted under Section 302 IPC for the
murder of Anita Rani, hereinafter 1 referred to as "the deceased".
However, Neelam Rani, sister-in-law of the deceased has been given benefit of
doubt and acquitted of the charges framed against her.
2.
It appears that Anita Rani, deceased was married to Amit Kumar,
appellant herein, about 4 = years prior to the date when she was set on fire,
which led to her death.
Both the
Courts have noticed the continuous history of torture and harassment of the
deceased by the appellants and their deceased mother Kailash Rani as they were
not satisfied with the dowry given to the deceased at the time of marriage.
Both the Courts have also noticed that continuous efforts had been made to
bring about reconciliation between the deceased and the in-laws.
Efforts
had been made by the panchayat also to make the in-laws of the deceased accept
the fact that her parents had given as much dowry as they could afford.
However, it appears that the family of the in-laws was not satisfied and,
therefore, decided to do away with the young bride, 2 merely 22 years of age.
She was set ablaze in broad daylight on the morning of 26.6.1997, in the
courtyard of the house belonging to her in-laws. The horror of the story lies
in the fact, that the victim lost her life, because her parents failed to
provide a refrigerator and a television.
3.
With the aforesaid tragic prelude, we can now proceed to decipher
the events which culminated in the burning of Anita Rani on the morning of
26.6.1997.
4.
According to Kimti Lal, PW1 and Gulshan Kumar, PW5, it was Asha
Rani PW2, neighbour of the deceased, who told them that Anita Rani had been set
ablaze with kerosene oil. Thereafter, they went to the house of the accused
where they saw Anita Rani lying in the courtyard, having been severely burnt.
However, the fire had been extinguished by the time they reached. On enquiry
made by Kimti Lal, PW1, Anita Rani stated 3 "Kailash Rani, Amit Kumar,
Brij Bhushan and Neelam Rani had put kerosene oil on her and set her on fire
and she should be saved." At that time, all the accused were present in
the courtyard. Kimti Lal and Gulshan Kumar took Anita Rani to Dayanand Medical
College/Hospital, Ludhiana and got her admitted there. ASI Rajpal Singh (PW 17)
received information about the incident at about 12.15 p.m. He promptly reached
the hospital (DMC), and made preliminary enquiries. Thereafter, he went to the
Duty Magistrate and moved a request application (Ex.P26) at 4.30 p.m. for
recording the statement of Anita Rani. (Endorsement Ex.P27 was made by Judicial
Magistrate i.e. on the application). Within a short period, ASI Rajpal Singh
alongwith Harjinder Pal Singh, PW13, the then Judicial Magistrate, Ist Class,
Ludhiana, reached the hospital. Opinion of the doctor regarding the fitness of
the patient was given at 5.05 p.m. (Ex.P28).
After she
was declared fit (endorsement Ex.P11), her statement (Ex.P29) was recorded at
5.25 p.m. Thereafter, 4 ASI Rajpal Singh, PW17 recorded another statement of
Anita Rani (Ex.P8) from 5.40 p.m. to 6.30 p.m. This statement was also recorded
after obtaining the opinion of the doctor (Ex.P13). On the basis of the
aforesaid statement, a ruqa was sent for the registration of the case at the
Police Station, Moga resulting in the recording of a formal FIR (Ex.P7).
Initially, the FIR was recorded under Section 307/498-A/34 IPC against all the
four accused, namely, Amit Kumar, Brij Bhushan, Kailash Rani and Neelam Rani.
However, Anita Rani died on 1st July, 1997. Therefore, the case was registered
under Section 302 read with 34 IPC against all the four accused. However, Kailash
Rani passed away before committal proceedings. Consequently, the proceedings
against her was abated.
5.
The aforesaid three accused were duly put on trial for the offence
under Section 302 read with 34 IPC. At the trial, the prosecution examined 17
witnesses. Apart 5 from giving their explanation under Section 313 Cr.P.C, the
accused also examined 9 witnesses in defence. Upon meticulous examination of
the entire evidence, the trial court convicted Amit Kumar and Brij Bhushan
under Section 302 read with Section 34 IPC for the murder of Anita Rani.
However, Neelam Rani was given benefit of doubt and acquitted.
6.
The aforesaid judgment was challenged by the two appellants by way
of Criminal Appeal No. 226-DB of 2002 before the High Court. Upon a complete
reappraisal of the evidence, the High Court dismissed the appeal filed by the
two appellants.
7.
We have heard the learned counsel for the parties at length.
8.
Challenging the findings and observations of the Courts below, the
learned counsel for the appellants submitted that this is a case of a tainted
investigation.
The
evidence of prosecution witnesses can not establish 6 the guilt of the
appellants as their evidence is only with regard to the maltreatment being
given to the deceased.
None of
them being eye-witnesses can possibly state as to whether she committed suicide
or not. Asha Rani only stated that Anita Rani had told her that she had been
burnt by them. She did not name any person as an accused. Although she says
that she saw Kailash Rani and Neelam Rani were present, she did not see any
other accused in the house. Even otherwise her evidence is worthless as she was
declared hostile, when she denied having made any previous statement, in which
she had named the accused, as having set Anita Rani on fire.
Learned
counsel further pointed out that evidence of Gulshan Kumar (DW8) who also
sustained burn injuries has been wrongly ignored. He had given a true account
of the events. He was the only eye witness. With regard to the investigation,
it is submitted that Rajpal Singh, ASI was hand-in-glove with the parents of
the deceased. He pointed out a number of procedural irregularities. He 7
actually doubted the manner in which Rajpal Singh, ASI came to know about the
incident. The sum total of the submissions of the learned counsel seems to be
that the investigation was unsatisfactory, as well being partial.
Learned
counsel also submitted that both the Courts below have committed a serious
error in relying on the dying declaration recorded by the Judicial Magistrate.
He has submitted that Anita Rani was so badly burnt, she was in no fit state to
make such a lengthy statement. It has been fabricated at the instance of ASI
Rajpal Singh.
Both the
Courts, according to the learned counsel, have erred in not giving proper
weightage to the statement made to the doctor which was recorded in the bedhead
ticket of the patient. The doctor had clearly recorded the statement of Anita
Rani that she had set herself ablaze.
It was
only subsequently at the instance of Rajpal Singh, ASI that the accused i.e.
appellants had been named by Anita Rani. Learned counsel laid considerable
emphasis on the fact that conduct of the appellants in removing the 8 injured
immediately to the hospital clearly shows that the accused made all efforts to
save Anita Rani, after she had set herself on fire.
9.
We have given our anxious thought to the submissions of the
learned counsel. We are, however, unable to accept any of the submissions of
the counsel of the appellants.
10.
The trial court as also the High Court has meticulously examined
and re-examined the entire evidence to conclude that the two appellants are
guilty of murdering Anita Rani by setting her on fire as she and her parents
had failed to meet the wholly unlawful demands of dowry. The entire body of
evidence seems to leave no manner of doubt that the trial court as well as the
High Court has correctly concluded that the two appellants are guilty beyond
reasonable doubt.
11.
From the evidence on record, it would appear that the present two
appellants and the two accused, namely, Kailash Rani and Neelam Rani were
arrested on 29th June, 1997. Kimti Lal (PW1), who is the real brother of the
deceased, has narrated the entire history of harassment of the deceased prior
to her being set on fire by the accused persons. Gulshan Kumar (PW5) is a
cousin of Anita Rani, deceased. He has corroborated the testimony of Kimti Lal,
PW1 in all details. He has deposed about the demands made by the accused for
dowry in the shape of television and refrigerator. He also talked about the
continuous maltreatment given by the accused persons to Anita Rani. Asha Rani,
PW2 had initially made a statement before the police giving a graphic account
of how Anita Rani was set on fire by the accused persons after pouring kerosene
oil on her. She, however, did not reiterate the entire sequence in Court, which
in all probability, led to her being declared hostile.
Even
then, in Court, she unequivocally stated that due to 10 the disputes over
dowry, there always used to be quarrels between the accused and the deceased.
The in-laws were always asking for more dowry and used to taunt her.
However,
so far as the tragic incident of 26.6.1997 is concerned, she only stated that
when she reached the house of Anita Rani, the fire had already been
extinguished and Anita Rani did not disclose to her as to who had set her
ablaze. In the earlier statement, she had specifically named the present
appellants actively participating in setting Anita Rani on fire by pouring
kerosene oil on her. Another witness Satnam Singh, PW3, is a Carpenter, who had
been working in the neighbourhood of the accused. He also stated that on the
day of the occurrence he had seen a fire burning in the house of the accused.
When he pushed the door open and entered the house, he had seen one person
trying to extinguish the fire. Thereafter, he also helped in extinguishing the fire.
Afterwards, he went back to his place of work. PW4 Dr. U.S. Sooch, Medical
Officer, Civil 11 Hospital, Ludhiana conducted the autopsy on the dead body of
Anita Rani on 1.7.1997 at 4.40 p.m. He observed as follows:
"The
dead body was 5 feet 4 inches long. It was naked, well built and well
nourished, Eyes and mouth were partially open. Post mortem staining was present
on the posterior surface of viscera and was patchy. The rigor mortis was
present in the upper limbs only. The vene section wound was on the left ankle
and pad ink blue in colour was present on the right big toe. He found the
following injuries on the dead body :
(1)
Superficial to deep infected burns all over the body except the grow in area,
public area, vulva and both feet, singeing of hairs of body, Scalp and face
were present. Puss and slough formation was present at multiple areas with
crust formation of the superficial wounds of burns."
He also
observed that pleura larynx, tracheae and both lungs were congested. The
stomach contained 250cc of fluids. The liver, spleen and kidneys were also
congested. Urinary bladder and uterus were healthy and empty. He has opined
that the cause of death was due to 12 septicaemia as a result of infected
extensive burns, which were sufficient to cause death in ordinary course of
nature and the burns were ante mortem in nature. He further opined that the
probable time between burns and death was about six days and between death and
post mortem was about six hours. He has further deposed that the post mortem
was conducted after observing normal formalities and upon an application made
by the police (Ex.P6). The fitness of the deceased to make the statement was
duly proved by PW7 Dr. Sanjiv Kumar Singla. At this stage, we must also notice
that the bedhead ticket (Ex.P13) pertaining to Anita Rani prepared at DMC has
been proved by Dr. Panjak Arora, PW8. In his cross-examination, he has stated
that Amit Kumar had brought Anita Rani to the hospital and she was alleged to
have sustained burn injuries after she set herself on fire because of some
dispute with the family members on 26.6.1997 at 10 a.m. Ashish Gupta, PW9,
Registrar, DMC, Ludhiana has deposed that Anita Rani 13 was admitted in the
hospital on 26.6.1997 at 11.20 a.m.
He had
sent the necessary intimation to the police station regarding Anita Rani being
brought to the hospital having approximately 90% burns of second and third
degrees.
Although
the patient had been burnt at about 10 a.m. on 26.6.1997, she was conscious and
oriented. He opined that the nature of the injuries was dangerous. He has also
stated that Anita Rani was shifted to burn Intensive Care Unit on 26.6.1997 at
about 2.00 p.m. He had further stated, during cross-examination, that after a
patient suffers 90% burn injuries, he goes into primary shock initially for 2
to 4 hours. He however further testified that according to the record, she
remained conscious throughout the period. Raj Kumar PW10 is the photographer,
who has proved the photographs (Ex.P21 to P23). Ex.P18 to P20 are the negatives
of the photographs. PW11, Gursewak Singh is the Draftsman, who prepared the
scaled site plan of the place of occurrence. Subhash Chander, PW12 is another
witness 14 produced by the prosecution to the effect that he had intervened in
the dispute of Anita Rani and her in-laws as she was being harassed on account
of demand of dowry. PW14 Mangat Ram is again a witness with regard to the
demand of dowry. He has narrated that there was a demand of TV and Refrigerator
by the appellants. He had intervened in the dispute, it was as a result of his
undertaking that Anita Rani was sent back to the matrimonial home.
12.
ASI HC Hardial Singh, PW15 delivered the special report to the
Ilaqa Magistrate on 26.6.1997 at 10.00 p.m.
HC
Gurmail Singh, PW16 produced the Roznamcha for the period from 20.6.1997 to
11.7.1997 of Police Station, Moga City - I. ASI Rajpal Singh is the
investigating officer. We may notice at this stage that the statement (Ex.P29)
recorded by the Judicial Magistrate in the vernacular language was treated as a
dying declaration 15 upon the death of Anita Rani. The translated version of
the dying declaration is:- "There used to be a quarrel on trivial matters.
My
younger Darani (my husband's brother's wife) had gone to her parents after
quarrelling. I have been residing separate from my in-laws in the same house.
My husband's younger brother washed his banyan (under garment) himself. It
happened a day before yesterday that my husband had slapped me and given fist
blows and he had refused to take meals from me. I had said that I should work
as well and bear the beatings. My husband was also saying that I was a clung
(i.e.
clunk) to
him. A day before yesterday when I had asked my husband to take meals then he
had told that "Tere Maan bap da siapa kar ke awanga" (he will go and
protest before her parents.) My husband had also told me that if I died, he
will have no worry. My husband's younger brother Babbu, mother-in-law Kailash
Rani, my husband, my husband's sister were also standing there (uni kol khari
see). Then my husband's elder brother came there and put off the fire. Kerosene
oil was sprinkled upon me by my mother-in-law, my husband's younger brother and
my husband after taking me near the kacha kotha in the courtyard of 16 our
house. When my husband, my mother-in-law and my husband's younger brother set
me on fire, then my sister-in-law was standing there. My husband's elder
brother and his wife, both saved me. When a mattress (Gadha) was demanded for
placing the same upon me, then my mother-in-law told that she had no mattress.
My in-laws were saying that neither the refrigerator nor a television has been
given in dowry and only a scooter has been given. Now I have brought utensils
from my parental house, then they said that why she had brought utensils by
demanding the same and why these utensils were not given at the time of
Marriage? I do not want to say anything more.
R.O.A.C.
Sd/- JMIC(Duty) 26.6.1997 statement recorded between 5:10 p.m. to 5:25
p.m.)".
13.
It has also come in the statement of Judicial Magistrate Harinder
Pal Singh (PW 13) that since all the finger tips of the hands of Anita Rani
were burnt, she had put the impression of her right toe on the dying
declaration. A note (Ex.P30/1) was recorded by the Magistrate in this regard. Another
note (Ex.P30/3) was also recorded, which indicated that Anita Rani had made 17
her statement voluntarily and which contains the true account of the statement
made by her. In court the Judicial Magistrate reiterated that upon reaching the
hospital, he had sought the information about the fitness of Anita Rani from
Dr. Sanjiv Kumar Singla, who was present in the burn Intensive Care Unit of
DMC, Ludhiana. The witness has duly proved the opinion (Ex.P11) made by the
doctor declaring that Anita Rani was fit to make a statement. It is
categorically stated by the Judicial Magistrate that Anita Rani understood the
questions and the answers that were being recorded. He has also stated that the
statement was made by Anita Rani out of her free will. He has proved the
statement (Ex.P29) and the endorsement (Ex.P30) by which he had certified that
Anita Rani had put impression of her right toe on the dying declaration as
impression of the finger tips of her hands could not be taken because all the
finger tips were burnt.
14.
Upon completion of the prosecution evidence, the trial court
examined the accused under Section 313 of the Criminal Procedure Code and the
incriminating circumstances appearing against the accused in the prosecution
evidence were put to them. All the accused pleaded that they were innocent and
that the witnesses being relations of the deceased are only interested in the
success of the case. The appellants Amit Kumar and Brij Bhushan run cloth shop
at Village Daroli Bhai. It was further stated by them that on the date of the
occurrence Poonam w/o Brij Bhushan had gone to her parental house. Therefore,
when Amit Kumar asked his wife Anita Rani to prepare the food for them, she had
flatly refused to do so. Consequently, both of them did not have their meal and
left for the shop at 8.30 a.m. It was only when Brij Bhushan and Amit Kumar
were standing at the tempo stand, Moga for going to Village Daroli Bhai that
they received a message that Anita Rani has set herself ablaze by sprinkling
kerosene oil on her. On the return 19 to the house, they saw that Anita Rani
had been burnt and their brother Gulshan Kumar had also got burn injuries while
extinguishing the fire. Then Amit Kumar called her parents and arranged a jeep
and took Anita Rani to DMC, Ludhiana in order to save her life. It was also
stated that Gulshan Kumar, Brother-in-law of Amit Kumar, Purshottam Lal and
Kimati Lal had also accompanied Anita Rani and Gulshan Kumar to DMC.
They
denied making any demands for dowry from Anita Rani or from her parents. It was
also the case of Amit Kumar that Anita Rani had told the doctor, who prepared
the case history that she had set herself on fire. This was all changed at
about 1.30 p.m. when his father-in- law Sant Lal reached there alongwith ASI
Rajpal Singh, who is close to them. It is also alleged that he was illegally
detained by Rajpal Singh, ASI. The appellants also examined DW1 to DW9 in their
defence. DW4 Dr.
Ashok
Kumar has proved the burn injuries suffered by Gulshan Kumar at the time of
extinguishing the fire of 20 Anita Rani on 26.6.1997. He has also proved bed
head ticket of Gulshan Kumar (Ex.D17) and Anita Rani (Ex.D18). DW8, Gulshan
Kumar, who is the brother of the accused stated that he with the help of Satnam
Singh and his wife put off the fire. He had further stated that Anita Rani had
disclosed to his wife that she had herself set ablaze. DW9, Harish Kumar is a
witness to prove the plea of Alibi set up by the accused Neelam Rani. Since she
has been acquitted, the High Court treated this as irrelevant. We need say no
more on this issue.
15.
The High Court while examining the various submissions made on
behalf of the appellants has come to the conclusion that the dying declaration
is a clinching piece of evidence as it was recorded by the Judicial Magistrate
within a few hours of the occurrence. We have also seen the contents of the
dying declaration. This statement which was recorded in the vernacular has been
translated into English with exactitude. A bare 21 perusal of the same would show
that whole statement is spontaneous and sets out the correct version of the
events leading to her being set on fire. She does not unfairly implicate
anybody who had not participated in the crime. She clearly stated that her
younger Darani i.e. husband's brother's wife had gone to her parents after
quarrelling. She also states that there was a quarrel between her and her
husband. He had slapped her and refused to take any food from her. She had
retorted that she does all the work in the house and still she has to bear the
beatings with shoes. He had earlier informed her that he was going to protest
to her parents about her misbehavior. He had categorically told that if she
dies, he would have no worries. She stated that her husband's younger brother,
mother-in-law, her husband and her husband's sister were also standing there.
But she then correctly states that her husband's elder brother tried to save
her by extinguishing the fire. In the very next line, she again states that
kerosene oil was sprinkled upon her 22 by her mother-in-law, her husband's
younger brother and her husband. This was done by taking her near the
"kacha kotha". She stated that her mother-in-law, her husband and
younger brother set her on fire. But her husband's elder brother and his wife,
both tried to save her. In our opinion, both the Courts below have correctly
relied on the dying declaration. We are unable to accept the submission of
learned counsel for the appellant that the aforesaid dying declaration ought to
be disbelieved on the basis that it may be a result of tutoring by her family
members. In fact, this very objection has been considered by the High Court. It
has been specifically noticed in the judgment of the High Court that the
statement had been recorded after an application (Ex.P26) had been moved before
the Magistrate. The Judicial Magistrate also stated that all safeguards were
observed by him before recording the statement. He was cross-examined at length
but nothing fruitful could be extracted from his statement which would show
that the 23 dying declaration was a tainted one. The Magistrate has
categorically stated in his evidence that Anita Rani was lying in the cabin at
the time when the statement was recorded. The cabin was not accessible to the
relatives of the injured and she could be seen from outside only through the
glass of the cabin. It must be remembered that at the time Anita Rani had been
taken to the Intensive Burn Injury Unit, she had received 90% burn injuries of
second and third degrees. Therefore, she was isolated in the burn unit to avoid
any chances of infection. She was so badly injured that her statement had to be
identified by the right toe print of her foot.
16.
In view of the above, we are unable to disbelieve the statement
(Ex.P29) which has ultimately been declared as a dying declaration. This Court
while stating the principles of testing the authenticity of a dying declaration
has observed in the case of Paniben (Smt.) 24 "18. Though a dying
declaration is entitled to great weight, it is worthwhile to note that the
accused has no power of cross-examination. Such a power is essential for
eliciting the truth as an obligation of oath could be. This is the reason the
Court also insists that the dying declaration should be of such a nature as to inspire
full confidence of the Court in its correctness. The Court has to be on guard
that the statement of deceased was not as a result of either tutoring,
prompting or a product of imagination. The Court must be further satisfied that
the deceased was in a fit state of mind after a clear opportunity to observe
and identify the assailants. Once the Court is satisfied that the declaration
was true and voluntary, undoubtedly, it can base its conviction without any
further corroboration. 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.
This Court has laid down in several judgments the principles governing dying
declaration, which could be summed up as under:
(i) There
is neither rule of law nor of prudence that dying declaration cannot be acted
upon without 25 corroboration. (Munnu Raja v. State of M.P. (1976) 3 SCC 104).
(ii) If
the Court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav
(1985) 1 SCC 552; Ramawati Devi v. State of Bihar (1983) 1 SCC 211).
(iii)
This Court has to scrutinise the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or imagination.
The deceased had opportunity to observe and identify the assailants and was in
a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor
(1976) 3 SCC 618).
(iv)
Where dying declaration is suspicious it should not be acted upon without
corroborative evidence.
(Rasheed
Beg v. State of M.P. (1974) 4 SCC 264).
(v) Where
the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.
(1981) Supp SCC 25) (vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (Ram Manorath v. State of U.P. (1981) 2
SCC 654) (vii) Merely because a dying declaration does not contain the details
as to the occurrence, it is not to 26 be rejected. (State of Maharashtra v.
Krishnamurti Laxmipati Naidu (1980) Supp SCC 455) (viii) Equally, merely
because it is a brief statement, it is not be discarded. On the contrary, the
shortness of the statement itself guarantees truth.
Surajdeo
Oza v. State of Bihar (1980) Supp SCC 769) (ix) Normally the court in order to
satisfy whether deceased was in a fit mental condition to make the dying declaration
look up to the medical opinion.
But where
the eye witness has said that the deceased was in a fit and conscious state to
make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram
v. State of M.P. (1988) Supp SCC 152) (x) Where the prosecution version differs
from the version as given in the dying declaration, the said declaration cannot
be acted upon. (State of U.P. v. Madan Mohan (1989) 3 SCC 390)."
27
Applying the aforesaid ratio of law we find that there is no occasion to
disbelieve the dying declaration in the facts and circumstances of the present
case.
17.
We also see no reason to doubt the presence of the witnesses PW1,
PW2 and PW5. Asha Rani had been told by Anita Rani that she had been burnt.
Similarly, Satnam Singh, PW3 came into the compound after he saw the smoke from
the fire in which Anita Rani was burning. The evidence of PW1, Kimti Lal and
PW5, Gulshan Kumar is unflinching, coherent and consistent.
Both the
witnesses have withstood lengthy cross- examination without any loss of
credibility. Their evidence cannot be discarded only on the ground that they
are close relations of the deceased. Even Asha Rani, PW2 had stated that Anita
Rani had named the appellants as the persons who set her on fire. She seems to
have changed her stand, during the long interval between the earlier statement
and the time when she 28 appeared in court, for reasons best known to her, but
not difficult to discern. But that is no reason to discard her entire evidence.
In our opinion, the course adopted by the Courts below can not be said to be
erroneous. In similar circumstances, this Court has in the case of Sat observed
as follows:
"From
the above conspectus, it emerges clear that even in a criminal prosecution when
a witness is cross-examined and contradicted with the leave of the court, by
the party calling him, his evidence cannot, as a matter of law, be treated as
washed off the record altogether. It is for the Judge of fact to consider in
each case whether as a result of such cross-examination and contradiction, the
witness stands thoroughly discredited or can still be believed in regard to a
part of his testimony. If the Judge finds that in the process, the credit of
the witness has not been completely shaken, he may, after reading and
considering the evidence of the witness, as a whole, with due caution and care,
accept, in the light of the other evidence on the record, that part of his
testimony which he finds to be creditworthy and act upon it."
29
Without reference to any case law, the Courts below have correctly applied the
aforesaid principle to the facts of the present case.
18.
There remains no doubt that the appellants had indeed set the
deceased on fire. Much emphasis was placed by the learned counsel for the
appellant on the history recorded on the bedhead ticket (Ex.P13). In this
history, it is stated that the patient had herself claimed to have set herself
on fire by using kerosene oil on account of some fight within the family
members at 10.00 a.m. on 26.6.1997. The High Court examined the bedhead ticket
and observed that the whole record is made subsequently by the doctor as he is
making repeated entries with regard to the previous history at different
stages. This was not required at all. In his enthusiasm to help the accused, at
one stage, he even goes to the extent of showing that fire was extinguished by
husband and 30 family members by using water and cloth. This was not even the
case pleaded by appellant Amit Kumar and Brij Bhushan, who had put forward a
plea of alibi to show that they were not even present at the time when Anita
Rani received the burn injuries. Similarly the testimony of Gulshan Kumar (DW8)
has been held to be unreliable as he was trying to save his kith and kin. He
has made improvements in his statement (Ex.DE), while stating that Anita Rani
disclosed to his wife she committed suicide and it was her mistake. In our
opinion, the courts below have correctly held that this was an effort made by
the witness to save his family. Clearly the appellants had resorted to telling
one lie after another to escape the conviction for the murder which they had
clearly committed.
19.
In view of the aforesaid, we find no reason whatsoever to
interfere with the verdict recorded by the 31 trial court as well as the High
Court in convicting the appellants of murder.
20.
The appeal is accordingly dismissed.
..................................J. [B.Sudershan Reddy]
...................................J. [Surinder Singh Nijjar]
NEW DELHI,
AUGUST 12, 2010.
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