Friday, 12 February 2016

Whether case diary can be called in civil proceeding or proceeding under article 32 and article 226 of constitution?

The bar under
Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not
apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for the
case diary is neither an accused nor an agent. Rejecting the contention
that the principle behind Section 172 Cr.P.C. is to exclude the report of
investigation altogether in other proceedings for it would jeopardize 
secrecy of investigation, the Supreme Court affirmatively observed that
for truth to emerge, all relevant facts to the inquiry must be brought
before the court and nothing should be shut out, otherwise the opinion
formed may be distorted or incomplete, which might result in injustice. A
judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling
competing interest requires withholding or secrecy, legislature has
provided for exceptions but the exclusion should be strictly interpreted
and not expansively construed.
 Date of Decision:11th February, 2016

1. Laxmi and her adopted daughter Jyoti, impugn their conviction vide the
judgment dated 16th December, 2011 for having murdered Asha. By
order on sentence dated 22nd December, 2011, the appellants have been
sentenced to imprisonment for life, fine of Rs.5,000/- each and in
default of payment of fine, to undergo rigorous imprisonment for six
months for the offence under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (IPC, for short).
2. Asha had got married to Sanjay Rathore (PW-2), son of Laxmi in the
year 1997. On 1st May, 2010 at about 9-9.30 A.M., Asha suffered
extensive burns at her matrimonial home at B-114A, Majlis Park,
Adarsh Nagar, Delhi. She was taken first to the Bubu Jagivan Ram CRL.A. 485/2012 Page 2 of 27
Memmorial Hospital at about 10.10 A.M on 1st May, 2010 as per the
MLC (Ex. PW13/A) and then on the same day at about 11.54 A.M.
shifted to the Lok Nayak Jai Prakash Narain Hospital. Asha died in the
same hospital on 6th May, 2010 at about 5.15 P.M. The Post Mortem
report, Ex.PW 6/A, records approximate area of burns as 90% and that
smell of kerosene was present. Infected Dermo-epidermal burns were
present all over the body except upper half of face, back of upper limbs,
front of upper abdomen and both feet. Both palms were burnt. Cause of
death was septicaemia consequent upon infected burn injuries. All
injuries were anti-mortem and caused by flames of fire.
3. As per the charge sheet, at that time of occurrence, Laxmi and Jyoti
were present with Asha at B-114, Majlis Park, Adarsh Nagar, Delhi.
Sanjay Rathore (PW-2), along with his four children was not present,
having taken his ailing children to a doctor. The scaled site plan,
marked Exhibit PW-17/A, illustrates that the accommodation consisted
of two rooms in front and two rooms on the back side with an open
courtyard with bath, WC, kitchen and a store in the middle portion.
The burns were suffered in the big room at the back side of the said
property, where a plastic bottle with kerosene, match sticks, match box
and burnt clothes (pallu of a saree) were found.
4. The charge against Laxmi and Jyoti was that they had poured kerosene
oil on Asha and had set her ablaze. Motive and cause was failure and
inability of Asha to meet and arrange for Rs. One Lac, which Laxmi
and Jyoti were demanding for purchasing a new house.
5. To prove and establish the case, the prosecution and the impugned
judgment relies on dying declarations made by Asha and recorded by CRL.A. 485/2012 Page 3 of 27
SI Kuldeep Singh (PW-21) at about 2.05 P.M. on 1st May,2010 at the
Lok Nayak Jai Prakash Hospital and statements of two neighbours,
Munna (PW-1) and Lata (PW-4), who had interacted and spoken to
Asha in the street outside the house, immediately after the occurrence.
The impugned judgment also relies upon the dying declaration recorded
on a mobile chip and deposed to by Deepak, brother of Asha. Deepak
has appeared as a court witness CW-1, in terms of the order dated 17th
March, 2011, which mentions that Deepak had made a prayer to appear
as a witness which was allowed. The application, if any, moved by
Deepak (CW-1) is not on the trial court record. Mohan Lal (PW-10)
and Jatender Kumar (PW-14) father and other brother of Asha have
also deposed about their conversation and version given by Asha to
them while she was in the hospital.
6. We begin by examining the testimony of the neighbours, Munna (PW-
1) and Lata (PW-4). Munna (PW-1) has testified that on 1st May,2010
at about 9 A.M. after visiting the urinal, he was returning to his barber
shop, when he saw Asha coming out of her house ablaze with fire on
her back side and shouting “save me save me” (“bachao bachao”).
PW-1 had used his hands to extinguish the fire on the back side of
Asha's blouse and had torn the blouse but the fire had engulfed her. He
ran and had brought a cover from a motorcycle. In the meantime,
someone had put a bed-sheet around Asha. PW-1 heard Asha was
telling Jyoti “tumne muje jalaya hai” (you have put me on fire). Jyoti
had questioned and had asked Asha to take oath and swear by her
children. Asha did not take oath. Munna (PW-1) had made a call at No.
100. The appellant-Laxmi, mother-in-law of Asha, was present. Munna
voluntarily added that he seen a match box in the hands of Asha, which CRL.A. 485/2012 Page 4 of 27
had fallen and later on taken into custody by the police. Asha was
removed to the hospital in the police control room van. Joyti had
accompanied Asha.
7. Munna (PW-1), on a leading question put to him by the public
prosecutor, affirmatively reiterated that in his presence, Jyoti had asked
Asha to take oath of her children and ascribe that Jyoti had set her on
fire and on this Asha had kept mum.
8. Munna (PW-1) was cross examined by the public prosecutor but stuck
to his version that Asha had had never stated on oath that she had been
burnt by Jyoti and her mother in law (i.e. Laxmi). PW-1 however did
accept that he had not told the police that he had seen a match box in
Asha's hands, professing that he had forgotten this fact. It was
suggested that he had been won over, but Munna (PW-1) strongly
refuted the impute. Interestingly, in his short cross examination on
behalf of the appellants, PW-1 has deposed that he had not seen Laxmi
or Jyoti putting a bed-sheet or save Asha. Voluntarily, adding that he
was told by others that Jyoti had wrapped a bed sheet on Asha.
9. Lata (PW-4), the second neighbour has deposed that she was washing
clothes at about 9.30 A.M., when she had heard someone shout “fire
fire” (“aag aag”). She had seen Asha running from her courtyard to the
street, with her pallu on fire and some persons were trying to extinguish
the fire. She had witnessed this, from her balcony. PW-4 had heard
Asha stating that she was put on fire by her mother-in-law and sister-inlaw
and had identified the two appellants who were present in the court.
In her cross-examination, PW-4 somewhat relented and altered her
statement accepting that she had not heard correctly. On court question CRL.A. 485/2012 Page 5 of 27
in view of her allude, Lata (PW-4) averred that she had heard Asha
telling her sister in law (nanad) "tumnay jalaya hai"(you have burnt me)
and she had not heard Asha state that she was burnt by her mother-inlaw
and sister-in-law. PW-4 had voluntarily stated that that she was a
tenant in the same house on the first floor. PW-4 did accept that Asha
had made a complaint against the landlord and that she had visited the
police station and given a statement in favour of the landlord.
10. Having examined the police file and scrupulously perused testimonies
of the two witnesses, we have grave doubts whether the versions given
by Munna (PW-1) or Lata (PW-4) would truly implicate and establish
that Laxmi and Jyoti had ignited the fire and set Asha ablaze. PW-1 had
primarily implicated the appellant-Jyoti and not Laxmi. The Public
Prosecutor had confronted PW-1 with a portion of his statement
recorded under Section 161 Cr.P.C. (Exhibit PW-1/A) but Munna (PW-
1) had insisted and repeatedly affirmed that Asha became quite and was
silent. Asha would not vow and troth that Jyoti had set her on fire. PW-
1 even professed that he had seen a match box in the hands of Asha.
This statement under Section 161 Cr.P.C., Exhibit PW-1/A, was
recorded by the second Investigating Officer, Inspector Mahavir
Kaushik (PW-22), who had taken over the investigation on 7th May,
2010 after Asha's death on 6th May, 2010. Munna (PW-1) had earlier
participated in the investigation on 1st May, 2010, when the
rough/unscaled site plan marked Exhibit PW21/B, was prepared. The
rough site plan was prepared by the first Investigating Officer SI
Kuldeep Singh (PW-21) in the presence of Munna (PW-1). This fact
stands duly recorded in the police case file dated 1st May, 2010. A
latter noting in the said police case file on 1
st May, 2010, records that aCRL.A. 485/2012 Page 6 of 27
statement of Munna (PW-1) was separately recorded under Section 161
Cr.P.C. The gist or content of the statement was not reproduced in the
noting portion. This statement of Munna (PW-1) recorded uner section
161 CrP.C. was never filed with the charge sheet and is not available in
the police file. The statement of Munna (PW-1) under Section 161
Cr.P.C. dated 7th May, 2010 shows that it was treated as the first
statement made by him during the investigation as the word „tatema‟ is
not mentioned thereon. The statement of Munna (PW-1) recorded by
the police on 1st May, 2010 has disappeared and vanished. We do not
know, what was narrated and stated by Munna at that time. In this
context, Munna (PW-1)'s assertion that Asha had refused to take oath
and affirm that Jyoti her Sister-in-law had burnt her is significant and
compelling. As per Munna (PW-1), Jyoti had immediately and
unbendingly protested and objected to Asha‟s assertion that she had
been set ablaze by her. Jyoti, who was presented, had asked Asha to
take oath and swear by her children and state that she (Jyoti) had set her
(Asha) on fire. Asha did not respond and kept quite. Jyoti had
accompanied and had gone to the hospital with Asha.
11. Lata‟s (PW-4) statement under Section 161 Cr.P.C. was recorded on 9
May, 2010 i.e. 9 days after the occurrence. No explanation is
forthcoming to explain this delay, at least after 6th May,2010 when
Asha had died. Examination of the police file reveals a signed undated
written statement given by Lata (PW-4) acknowledging that on 1st May,
2010 at about 9.30 P.M. she had seen Asha on fire, running from the
courtyard of her house to the street. Lata (PW-4) had then proceeded to
her canopy and saw that several persons had gathered on the street.
Some of them had tried to douse the fire. After some time, Jyoti had CRL.A. 485/2012 Page 7 of 27
draped a blanket around Asha. The police vehicle came thereafter and
Asha was taken to the hospital. Jyoti had accompanied Asha to the
hospital, while Laxmi had stayed behind at their residence. Lata (PW-
4) did not aver that she had heard Asha implicating Jyoti or Laxmi.
12. Noticing the aforesaid inscrutable and unfathomable gaps and
discrepancies, vide order dated 13th October, 2015 we had directed SI
Kuldeep Singh (PW-21) and Inspector Mahavir Kaushik (PW-22) to
appear in person on 14th October, 2015. SI Kuldeep Singh (PW-21)
who has retired from service, professed that he did not know and
cannot state as to why statement of Munna (PW-1) recorded on 1st
May, 2010 or copy thereof is not available on record. Inspector
Mahavir Kaushik (PW-22) has accepted that the signed statement of
Lata (PW-4) was given to him by Lata herself, but he had also recorded
a separate statement of Lata (PW-4) under Section 161 Cr.P.C. on 9th
May, 2010. PW-22 accepts that there was divergence on facts in the
signed statement of Lata(PW-4) and the statement recorded by him on
th May, 2010. We have noted the court deposition of Lata (PW-4) and
have pointed out that Lata (PW-4) in the cross-examination had
initially stated that she had not correctly heard Asha stating that her
mother-in-law and sister-in-law had put her on fire. Subsequently, PW-
4 asserted that she had heard Asha telling her sister-in-law (Jyoti) that
she had set her on fire, but did not hear Asha stating that her mother-inlaw
had put her on fire.
13. At this stage, it would be relevant to reproduce Section 172 Cr.P.C.
after its amendment with effect from 31st December, 2009. Post
amendment with incorporation of Sub-Sections 1A and 1B, Section
172Cr.P.C. reads as under:-CRL.A. 485/2012 Page 8 of 27
“Section 172 Diary of proceeding in investigation
(1) Every police officer making an investigation under this
Chapter shall day by day enter his proceeding in the
investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and
closed his investigation, the place or places visited by
Mm, and a statement of the circumstances ascertained
through his investigation.
(1A) The statements of witnesses recorded during the
course of investigation under section 161 shall be inserted
in the case diary.
(1B) The diary referred to in subsection (1) shall be a
volume and duly paginated.
(2) Any Criminal Court may send for the police diaries of
a case under inquiry or trial in such Court, and may use
such diaries, not as evidence in the case, but to aid it in
such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to see
them merely because they are referred to by the Court;
but, if they are used by the police officer who made them
to refresh his memory, or if the Court uses them for the
purpose of contradicting such police officer, the
provisions of section 161 or section 145, as the case may
be, of the Indian Evidence Act, 1872 (1 of 1872), shall
Section 172 Cr.P.C. mandates writing and maintenance of the case diary.
Sub-section (1) stipulates that police officer making investigation shall, on
each day, enter proceedings relating to investigation in the diary including
the time at which he began and closed his investigation, the place or
places visited by him and a statement of circumstances ascertained during CRL.A. 485/2012 Page 9 of 27
his investigation, i.e. record of the proceedings. There were judgments
that hold that `record of proceedings' would not include statements
recorded under Section 161 Cr.P.C., for the reason that the said statements
are not protected, whereas the case diaries are made available to the
accused only when pre-conditions are satisfied. (See page 813 of Sarkar's
Code of Criminal Procedure, Tenth edition, 2012). Amendment made by
the Code of Criminal Procedure (Amendment) Act, 2008, w.e.f. 31st
December, 2009, inserting Sub-section (1A), therefore, assumes
significance. The Sub-section mandates that statement of witnesses
recorded during the course of investigation under Section 161 Cr.P.C.
shall be inserted in the case diary. The said Sub-section has to be read
along with Sub-section (1B) which mandates that the case diary would be
a volume and duly paginated. The phrase, "shall be a volume and duly
paginated" ensures sanctity and purity of the case diary. The word,
'inserted' used in Sub-section (1A) does not refer to physical insertion by
placing copies of the statements recorded under Section 161 Cr.P.C. in the
case diary. The expression 'inserted' mandates incorporation of the
statement itself in the case diary, rather than a mere mention that a
statement under Section 161 Cr.P.C. of a particular person has been
recorded. What the person had stated and alluded to in his statement under
Section 161 Cr.P.C. must be inserted and recorded in the case diary itself.
The case diary has to be a volume and paginated, and cannot be a looseleaf
diary from which papers can be removed, changed or interpolated.
This is the unambiguous legislative mandate of Sub-section (1B). The
aforesaid legislative amendments, w.e.f. 31' December, 2009, reveal the
importance and relevance of the case diary as they assure solemnity and
inviolability of the record as to the manner in which the investigation was
conducted. The court can ascertain that the case as projected is true and
false or misleading statements are not made. It reflects the line of CRL.A. 485/2012 Page 10 of 27
investigation. In Bhagwant Singh versus Commr. of Police (1983) 3 SCC
344, importance of recording entries in the case diary with promptness
and sufficient details mentioning of relevant facts in chronological order
with complete objectivity is highlighted. In Khatri & Ors. versus State of
Bihar (1981) 2 SCC 493), the following passage from Queen Empress
versus Mannu ILR (1897) 19 All 390 was quoted:
"The early stages of the investigation which follows on the
commission of a crime must necessarily in the vast majority of
cases be left to the police, and until the honest, the capacity, the
discretion and the judgment of the police can be thoroughly
trusted, it is necessary, for the protection of the public against
criminals, for the vindication of the law and for the protection
of those who are charged with having committed a criminal
offence that the magistrate or judge before whom the case is for
investigation or for trial should have the means of ascertaining
what was the information, true, false, or misleading which was
obtained from day to day by the police officer who was
investigating the case and what such police officer acted."
14. In Khatri (supra), the Supreme Court has observed that the case diary
cannot be used as evidence, but is an aid in the trial or inquiry. This is
for the reason because the case diary can be referred to by the Court
but the accused or his agents are not entitled to call for such diary and
are not entitled to see it except when the case diary is used by the
police officer to refresh is memory or the court uses it for
contradicting a police officer in the trial or inquiry, and provisions of
Section 145 or 161 of the Indian Evidence Act apply. The bar under
Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does not
apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for the
case diary is neither an accused nor an agent. Rejecting the contention
that the principle behind Section 172 Cr.P.C. is to exclude the report of
investigation altogether in other proceedings for it would jeopardize 
secrecy of investigation, the Supreme Court affirmatively observed that
for truth to emerge, all relevant facts to the inquiry must be brought
before the court and nothing should be shut out, otherwise the opinion
formed may be distorted or incomplete, which might result in injustice. A
judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling
competing interest requires withholding or secrecy, legislature has
provided for exceptions but the exclusion should be strictly interpreted
and not expansively construed.
15. Statements under Section 161 Cr.P.C. are not evidence. The
depositions of witnesses on oath in the court are evidence under the
Evidence Act. Under Section 172(2) of the Cr.P.C., a criminal court
is empowered to send for the case diary and the diary can be used by
the court not as evidence in the case but to aid it in such inquiry or
trial. Under sub-section (3) to Section 172, neither the accused nor his
agents are entitled to call for diaries or nor they entitled to see them,
but where the police officer makes use of the case diary to refresh his
memory or the court uses them for purposes of contradicting the
police officer, provisions of Section 161 or 145 of the Evidence Act
apply. Therefore, we would not use the signed but undated statement
of Lata (PW-4) available on the police file as evidence to negate or
erase Lata (PW-4)‟s testimony in the court especially when she was
not confronted and questioned. Possibly, the Court was not aware and
never noticed this statement. However, issue would certainly arise as
to fairness and transparency in investigation. In Manu Sharma
versus State (NCT of Delhi), (2010) 6 SCC 1, reference was made to CRL.A. 485/2012 Page 12 of 27
Section 172 Cr.P.C. and several earlier judgments, to elucidate that
the right of an accused in relation to the police file and general diary is
a limited and a controlled one, but still the accused has been provided
with definite rights under the provisions of Cr.P.C. and the
constitutional mandate to face the charge against him by a fair
investigation and trial. Fairness in action on both accounts is
essential. Reference was made to Section 91 of the Evidence Act,
which empowers the court to summon a document or thing and
Section 207 Cr.P.C., which requires that the court without delay and
free of cost should furnish to the accused copies of the police report,
first Information report, statements and confessional statements of
persons recorded under Section 161 Cr.P.C. whom the prosecution
wishes to examine as witnesses, of course, excluding any part of
statement or documents as contemplated under Section 173(6) Cr.P.C.
It was observed:-
“220. The right of the accused with regard to disclosure of
documents is a limited right but is codified and is the very
foundation of a fair investigation and trial. On such matters, the
accused cannot claim an indefeasible legal right to claim every
document of the police file or even the portions which are
permitted to be excluded from the documents annexed to the
report under Section 173(2) as per orders of the court. But
certain rights of the accused flow both from the codified law as
well as from equitable concepts of the constitutional jurisdiction,
as substantial variation to such procedure would frustrate the
very basis of a fair trial. To claim documents within the purview
of scope of Sections 207, 243 read with the provisions of Section
173 in its entirety and power of the court under Section 91 of the
Code to summon documents signifies and provides precepts
which will govern the right of the accused to claim copies of the
statement and documents which the prosecution has collected
during investigation and upon which they rely. CRL.A. 485/2012 Page 13 of 27
221. It will be difficult for the Court to say that the accused has
no right to claim copies of the documents or request the Court
for production of a document which is part of the general diary
subject to satisfying the basic ingredients of law stated therein.
A document which has been obtained bona fide and has bearing
on the case of the prosecution and in the opinion of the Public
Prosecutor, the same should be disclosed to the accused in the
interest of justice and fair investigation and trial should be
furnished to the accused. Then that document should be
disclosed to the accused giving him chance of fair defence,
particularly when non-production or disclosure of such a
document would affect administration of criminal justice and the
defence of the accused prejudicially.
222. The concept of disclosure and duties of the Prosecutor
under the English system cannot, in our opinion, be made
applicable to the Indian criminal jurisprudence stricto sensu at
this stage. However, we are of the considered view that the
doctrine of disclosure would have to be given somewhat
expanded application. As far as the present case is concerned,
we have already noticed that no prejudice had been caused to the
right of the accused to fair trial and non-furnishing of the copy of
one of the ballistic reports had not hampered the ends of justice.
Some shadow of doubt upon veracity of the document had also
been created by the prosecution and the prosecution opted not to
rely upon this document. In these circumstances, the right of the
accused to disclosure has not received any setback in the facts
and circumstances of the case. The accused even did not raise
this issue seriously before the trial court.”
16. On the question when the lapses in investigation are inconsequential
or mere irregularities and when the lapses would result in dislodging
the substratum of the prosecution case, reference can be made to the
decision in C. Muniappan & Ors. Vs. State of Tamil Nadu (2010) 9
SCC 567, which succinctly expounds the law on this issue. An order
of acquittal or benefit of doubt need not ensue, when evidence de hors
such lapses is reliable, credible and sufficient to convict the accused.
Of course, extra caution and prudence is required while evaluating the CRL.A. 485/2012 Page 14 of 27
evidence. The Court should examine as to whether the lapses or
defects in investigation, be it in the form of negligence or omission
etc., had affected the object of finding out the truth. This is the litmus
test, which should be applied in each case.
17. In Ganga Singh Vs. State of M.P., (2013) 7 SCC 278, it was
observed that court should not acquit the accused on the ground that
there were some defects in investigation, but if the defects in the
investigation were as such as to cast a reasonable doubt about the
prosecution case, then the accused is entitled to acquittal because of
such doubt.
18. In Surjit Sarkar Vs. State of West Bengal, (2013) 2 SCC 146, after
referring to several earlier decisions, it has been held that deficiencies
in investigation by way of omission and lapses by the investigating
agency cannot themselves justify total rejection of the prosecution
case and where prosecution evidence de hors such lapses, when
carefully scrutinised and evaluated, does not affect the object of
finding of truth. At the same time, it cannot be accepted as a broad
proposition that in no case shoddy or defective investigation would
not result in acquittal. Investigation must be precise and should not be
having glaring loopholes, which create doubt as to whether the
offence was committed by the person charged or not. This is
19. We have referred to the police case file and the deposition of Munna
(PW-1) and Lata (PW-4) for it is apparent that the investigation in the
present case is apparently discoloured and shrouded. This is
unfortunate for this contrite has dented and debased the prosecution CRL.A. 485/2012 Page 15 of 27
case. Incertitude and discordant investigation has affected the
credibility of the assertions made by the two witnesses against the
appellants. It is obvious that for some reason, SI Kuldeep Singh (PW-
21) and Mahavir Kaushik (PW-22) has failed to maintain the purity,
sanctity and integrity of the police case file. To what extent this has
culled and disintegrated the dying declaration recorded by SI Kuldeep
Singh (PW-21) at 2.05 P.M on 1.05.2010 and the prosecution case has
to be examined.
20. It is pertinent at this stage to notice the defence put up by the two
appellants; the burns caused were self inflicted by Asha. It is a case of
self victimizing action. Asha and her husband Sanjay Rathore, who
has appeared as PW-2, were pressurising and compelling Laxmi to
part and give them money, for Laxmi had sold her immovable
property in February, 2010. Our attention was drawn to two
complaints; one from Sanjay Rathore (PW-2) dated 26th April, 2010,
Exhibit PW-2/J, received in different offices of the Delhi Police on
27th April, 2010 and another by deceased Asha herself dated 28th
April, 2010, Exhibit PW-14/B received and recorded as DD No. 47B
dated 30th April, 2010. The said complaints typed in Hindi and are
apparently drafted by a legal person. The two complaints as well as
dying declaration of Asha pontificate that Laxmi and Jyoti were
insisting and demanding Rs.1 lac from Sanjay Rathore (PW2) and the
deceased Asha, for buying a new house. These assertions it was
submitted are per-se false and manifest manipulation and coercive
mechanisms adopted by Sanjay Rathore(PW-2) and Asha to extract
money from Laxmi. Asha in her complaint (Exhibit PW14/B) had
asked the police authorities to protect her and her children‟s life. CRL.A. 485/2012 Page 16 of 27
Asha had insisted that Laxmi and Jyoti wanted to kill her or would
compel her to commit suicide.
21. The appellants‟ submit that Asha and her husband, needed money and
were residing in a rented accommodation. They wanted their “share”
in the sale consideration, whereas Laxmi was not willing for she did
not want to part with the sale consideration. Our attention is drawn
to the photographs marked Exhibit PW-3/A-1 to Exhibit PW-3/A-10.
It is highlighted that the half filled plastic bottle of kerosene oil can be
seen in an upright position on the floor. A match box can also be seen
on the ground, along with three cups. One cup has fallen down,
whereas two cups are upright. It is submitted that there is no
indication that there was jostling and struggle at the place where the
prosecution alleges that the deceased Asha was set ablaze after
kerosene oil was poured on her.
22. SI Kuldeep Singh (PW-21) professes having recorded the dying
declaration of Asha in the LNJP Hospital at about 2.05 PM on
01.05.2010 after she was declared fit for statement by Dr. Shalini
(PW-19). Noticeably, Dr. Shalini (PW-19) was not present when the
dying declaration was recorded. She has testified having declared
Asha fit for the statement as the patient was conscious and welloriented
in time, place and person and the endorsement was made in
the MLC report, marked Exhibit PW-13/A by her. The dying
declaration of Asha, marked Ex.PW20/A, became substratum of the
FIR marked Exhibit PW-15/A and reads as under:-
“I live with my family and I am a house wife. My mother-in-law
Laxmi Devi and sister-in-law Jyoti are living in my house for last
two months, their rooms are separate. My mother-in-law Laxmi CRL.A. 485/2012 Page 17 of 27
Devi and my sister-in-law Jyoti have been demanding Rs. 1 lacs
from me in these two months. They everyday fight with me and
my husband on this issue and say that I don't allow him (Sanjay)
to give Rs. 1 lacs to them with which they could buy a new
house. Today at 9 PM, my husband had gone to meet the doctor
and get medicine for children. At 9:30 PM Laxmi Devi and Jyoti
came to my room and immediately thereafter Jyoti had poured
kerosene oil on me. I had questioned Jyoti as to what she was
doing. At that very moment Laxmi Devi caught hold of me. I got
stunned. Jyoti lit the match stick and burnt my saree. Fire
engulfed my whole body. I shouted “bachao bachao” and came
out of the house. Neighbour and others had tried to extinguish
the fire and I became unconscious. When I regained conscious I
found myself in the hospital. My mother-in-law Laxmi Devi and
sister-in-law Jyoti have done this, with the intention to kill me as
I and my husband were not giving them Rs.1 lac. Both of them
had put kerosene oil and had lighted the fire and tried to kill me.
Please take legal action against Laxmi Devi and Jyoti. You have
recorded my statement as I've told you. Whatever I have heard,
understood and read is correct.”
23. As per the said dying declaration, Jyoti had poured kerosene oil on
Asha and Laxmi caught hold of her while Jyoti had set her on fire.
Asha was then having tea. The photographs marked Exhibit PW-3/A-1
to Exhibit PW-3/A-10 do not show any sign of struggle or Asha had
put up any physical resistance. The kerosene oil plastic bottle was
found standing upright, half filled with bluish liquid. Kerosene cannot
be spilled on the floor. The cap of the bottle can be also seen. This part
of the house and other belongings lying in the room where Asha had
caught fire, had not suffered burns.
24. The trial court record includes the police control room (PCR) forms.
The PCR form record that Jyoti had made a call to the Police Control
Room at about 9.44 P.M. that her sister-in-law had set herself on fire.
Communications received and recorded in writing thereafter, do CRL.A. 485/2012 Page 18 of 27
indicate that Jyoti had made an identical statement to the police officers
who had visited the place of occurrence. As noticed above, the
presence of Jyoti is affirmed and not denied by both Munna (PW-1)
and Lata (PW-4).
25. ASI Anil Kumar (PW-8), one of the first police officers to arrive at the
spot has testified that at about 9.43 P.M. he had learnt about fire in
house No. 114, Gali No. 1, Adarsh Nagar and had reached there and
had taken Asha to the hospital in a PCR van, along with Jyoti (whose
name he could not recollect). The last sentence of ASI Anil Kumar
(PW-8) examination-in-chief reads:-
“...I asked her as to how she caught fire and she told that
she herself had put her on fire.”
The aforesaid sentence though somewhat ambiguous, can be read as
Asha had told PW8 that the fire was self ignited. PW-8‟s testimony
would negate the dying declaration recorded by SI Kuldeep Singh
26. There is one more aspect, which dents the credibility of the dying
declaration purportedly recorded by SI Kuldeep Singh (PW-21). SI
Matadin (PW-11), in-charge of mobile crime team, has stated in his
examination-in-chief that ASI Kuldeep (obviously the reference is to SI
Kuldeep Singh (PW-21)) had told him that one lady had set herself on
fire and she had already been removed to the hospital. PW-21 on
visiting the scene of crime had observed a strong smell of kerosene oil
in the room and had noticed a two litre plastic bottle with a small
quantity of oil. He had also seen a match box and burnt pieces of saree
lying outside the house. A photographer had taken photographs. CRL.A. 485/2012 Page 19 of 27
27. SI Matadin (PW-11) had visited the scene of crime at about 10.30 A.M.
to 11.05 A.M. Till then SI Kuldeep Singh (PW-21) was of the belief
that Asha had herself set on fire and it was not a case of culpable
homicide but suicide. We agree that the statement of SI Matadin (PW-
11) would have reference to the period, before the dying declaration of
Asha was recorded by SI Kuldeep Singh (PW-21) at 2.05 P.M. on 1st
May, 2010. Further, first impression need not be correct, and truth may
be different and could have been uncovered. Albeit this was required to
be brought out and established succinctly and clearly for otherwise,
doubts would persist as to the true and truthful version. Testimony of
SI Matadin (PW-11) and ASI Anil Kumar (PW-8) do reflect that the
three police officers including SI Kuldeep Singh (PW-21) when they
had first visited the place of occurrence, were of the belief that it was a
case of self-inflicted injury/ suicide and not culpable homicide
committed by the appellant. Thus the relevance of the first statement of
Munna (PW-1) recorded under Section 161 Cr.PC on the date of the
occurrence itself i.e. 1st May, 2010, which has gone missing.
28. We have gone through the statement of Deepak (CW-1) and have
played the video CD produced by him in the Court, inspite of the fact
that there is no certificate under section 65B of the Evidence Act. He
has testified that he was with Asha in LNJP Hospital at about 8 P.M., a
day after she had received the burns. She had implicated and stated
that her sister-in-law and mother-in-law had caught hold of her hair,
poured kerosene oil and set her ablaze. He had learnt from the doctor
that Asha had suffered 90% burns and had no chance of survival. At
that time, CW-1 had spoken to Sanjay Rathore (PW-2), husband of
Asha, who was insisting that Asha should be asked and compelled toCRL.A. 485/2012 Page 20 of 27
change her statement. Fearful and perturbed CW-1 had, therefore,
made a video clipping. At that time Sanjay Rathore (PW-2) and Asha‟s
mother and maternal aunt (mausi) were also present in the room, as is
apparent from the video itself. CW-1 had questioned Asha for
recording the video and the video was saved/stored on a memory stick
marked CW-1/1 and the CD marked CW-1/2. On court questioning,
CW-1 professed that he had not edited the video clipping. The
Additional Public Prosecutor had cross-examined CW-1 and had put a
specific question; whether CW-1 had asked Asha as to who was the
person who had deceived her and broken her trust. CW-1 had then
accepted that he had not made this query and reiterated that Asha had
not revealed name of the said person. CW-1 has accepted that Sanjay
Rathore (PW-2) was present in the room when the video was shot.
29. We have played the video in the Court. It consists of three parts. In
part one, a male person possibly Sanjay Rathore (PW-2) is clearly
visible and can be seen. There are two other parts, recorded at different
times. What is discernible and a matter of concern is the apparent
rehearsed and measured manner in which the recording was made.
Direct and well thought out questions were put to Asha, who has
responded and answered with precision, making categorical assertions.
This has effected the spontaneity, which is missing and absent.
Questions and doubts persist, whether this recording was induced and
motivated? In his cross-examination, CW-1 has stated that this video
was made on 2nd May, 2010 between 7 and 8 P.M. We are also
somewhat perplexed, why and for what reason this video was made and
then held back. Was the video withheld to prevent scientific
examination to rule out modification and interpolation? CW-1 CRL.A. 485/2012 Page 21 of 27
professes that Sanjay Rathore (PW-2) wanted Asha to change her
statement and save his mother and adopted sister. We do not find any
such indication or concern reflected in the video. On the contrary, we
have on the trial court record, an application filed by Sanjay Rathore
(PW-2) dated 10th May, 2010 seeking direction to the police to arrest
Jyoti, who was at that time absconding. She was arrested on 23rd May,
2010 as per the police version on identification by Sanjay Rathore
(PW-2). It is also the prosecution case and it is not denied that Jyoti
had accompanied Asha to the hospital in the PCR van and had not
absconded after the occurrence. The reason given by CW-1 for
recording the video, therefore, is obscured. Why did he keep the video
and not reveal and hand over to the police is unfathomable. It is
possible that CW-1 may have recorded the said video for using the said
evidence, but knew the limitations and drawbacks. Having played the
aforesaid video a number of times, we have doubts and cannot say with
certainty that the answers given by the deceased Asha were not
prompted or tutored.
30. Jitender Kumar (PW-14), the other brother of the deceased Asha has
accepted that he used to reside with her sister Asha, his brother-in-law,
Sanjay Rathore (PW-2) and their four children at B-114A, Majlis Park,
Delhi. He had resided with them for about 5-6 years. He proclaimed
that the appellants used to torture and beat Asha though he would urge
and request them not to harass Asha. Jyoti would warn that she would
tear her clothes and falsely implicate PW-14. Due to threats, Asha
asked PW-14 to shift to another accommodation. PW-14 had made
allegations against Sanjay Rathore (PW-2) and referred to a letter
marked Exhibit PW-14/A written by Asha in the year 1999 to her CRL.A. 485/2012 Page 22 of 27
parents, complaining against Sanjay Rathore (PW-2). PW-14 has
testified that on 27th April, 2010, he had left for Karnataka in
connection with a job and on 28
th April, 2010, he had received a call
from Asha, who had complained that Sanjay Rathore (PW-2) and the
appellants were torturing and harassing her. Asha had again called him
and complained to him on 30th April, 2010 stating taht there was a
dispute between her and Sanjay Rathore (PW-2), and the appellants.
Next day on 1st May, 2010, he received a SMS from his brother to call
him urgently. However, due to lack of balance, he had not made any
call. He returned to Delhi on 3rd May, 2010 and had met Asha in LNJP
Hospital where Sanjay Rathore (PW-2) was also present. Initially,
Asha was hesitant and did not say anything in the presence of Sanjay
Rathore (PW-2). Only when Sanjay Rathore (PW-2) had gone outside,
Asha had told him that Sanjay Rathore (PW-2) had been pressurizing
her to change her statement. In his cross-examination, PW-14 tried to
explain that he was not in his full senses when the police had recorded
his statement and consequently had not stated the full facts.
31. Mohan Lal (PW-10), father of the deceased Asha implicated Sanjay
Rathore and claimed that he would harass Asha for not bringing dowry.
He has accepted that the appellant-Laxmi along with Jyoti had sold her
house and started living in the rented premises with Sanjay Rathore and
Asha. PW-10 claimed that on 1st May, 2010 at about 8 A.M. to 8.30
P.M. he and his wife had spoken to Asha on the telephone, when she
had informed them that the night before Asha had gone to the police
station at Adarsh Nagar to make a complaint against the appellants
(accused). CRL.A. 485/2012 Page 23 of 27
32. We have referred to the complaint made by the deceased Asha and
Sanjay Rathore on 28
th and 26th April, 2010, respectively and noticed
that Asha‟s complaint was not directed against Sanjay Rathore (PW-2),
but was directed against the two appellants after recording the fact that
appellant-Laxmi had sold the immovable property. Sanjay Rathore
(PW-2) has stated that he was residing with his wife, children and the
two appellants in a tenanted property. Laxmi and Jyoti had started
residing with them about two-three months back. PW-2, however, in
his testimony had claimed that there was no dispute between them and
her mother had never asked for dowry. On 1st May, 2010, PW-2 had
gone to the clinic to bring medicine for his two sons. However, the
four children had accompanied him. When he came back, PW-2 came
to know that his wife had suffered burn injuries, while the two
appellants were at home. He received a call from Jyoti, who had
informed that Asha had been shifted to Irwin Hospital (LNJP Hospital)
from BJRM Hospital. He claimed that Asha had told him that she had
suffered burn injuries due to LPG gas leakage. PW-2, however,
categorically denied that the appellants had demanded Rs.1 lac or any
other amount from his wife thereby contradicting his earlier complaint
dated 26
th April, 2010. PW-2 was extensively cross-examined by the
Public Prosecutor, but did not support the prosecution version.
33. Mohan Lal (PW-10) in his cross-examination has accepted that Sanjay
Rathore (PW-2) was in debt and was asking his landlord to pay him
Rs.30,00,000/- for vacating the tenanted premises. He has accepted
that his son Jatinder used to have meals with Asha and has given the
address of Asha as his postal address. He has affirmed that for about 8-CRL.A. 485/2012 Page 24 of 27
10 years, deceased Asha and Sanjay Rathore (PW-2) were staying
separately i.e. they were not living with Laxmi and Jyoti.
34. Similarly, Jatinder (PW-14) in his cross-examination had admitted that
after Asha's death, he had stayed in the Asha's house for about one
month and would look after her four children. Sanjay Rathore (PW-2)
would meet him daily in the evening. After one month, PW-14 had
asked Sanjay Rathore (PW-2) whether he could take the children to
Rajasthan, so that they could live in a different environment. Sanjay
Rathore (PW-2) had refused and had given threats.
35. Deepak (CW-1) has accepted that he had remained in Delhi for about
17 days after the death of Asha at the residence of Sanjay Rathore (PW-
2). The aforesaid evidence would necessarily reflect that before and
immediately after the death of Asha, the relationship between the
family members of Asha and Sanjay Rathore (PW-2) was cordial and
close. Differences arose subsequently, about a month after Asha's
36. In these circumstances, we cannot accept , Deepak (CW-1), Jatinder
(PW-14) and Mohan Lal (PW-10)'s assertion that Sanjay Rathore (PW-
2) was downright inimical to Asha and was supporting and biased
towards Laxmi and Jyoti or that he was compelling Asha to change her
version given to the police. Differences between Sanjay Rathore (PW-
2) and the family members of Asha arose about 30 days after her death.
37. Asha and Sanjay Rathore(PW-2) were married for 13 years and had for
several years a separate residence. As per the prosecution version,
Asha‟s two brothers were earlier residing with her and Sanjay Rathore
(PW-2). Laxmi is a widow and Jyoti was earlier married, but had CRL.A. 485/2012 Page 25 of 27
separated. Jitender Kumar(PW-14) in his examination in chief has
accepted that Laxmi and Jyoti use to reside somewhere at Kewal Park,
but they had sold their house and had started living with "us" at B-
114,A. Majlis Park, Delhi. Mohan Lal (PW-10) has similarly stated that
in March,2010 Laxmi had sold her house and started living with Sanjay
and Asha in their rented premises. The fact that Laxmi had recently
sold her house and having received the sale consideration was flushed
with funds cannot be doubted. Motive and allegation that Laxmi and
Jyoti wanted Rs.1 lac and were mistreating and torturing Asha for this
reason does appear to be out of place and some-what unusual. The two
complaints Ex.PW14/B and Ex.PW10/D are rather peculiar. Both Asha
and Sanjay Rathore(PW-2) had raised a common grievance, apparently
predicated on money matters. Obviously they had sought and taken
legal advice. The aforesaid exhibited documents, it can be urged with
some merit, prodigally expose the parsimony and pressure tactics
resorted and adopted by Asha and Sanjay Rathore (PW-2) to extract
from Laxmi a portion of her money. Was the episode and occurrence a
consequence of this perfidy in which the victim had possibly attempted
para-suicide with minimal self harm, but accidentally the fire had
engulfed her and caused serious injuries?, is a difficult question to
answer with certainty and certitude. We are unable to repel and negate
the said contention that Asha attempted “cry wolf” and the wolves had
showed up.
38. Dying declarations are an exception to the rule of hearsay and have
been recognised and accepted as admissible and when found reliable
can be of great value. Dying declaration when true can form the sole
basis for conviction even without corroboration. Dying declarations CRL.A. 485/2012 Page 26 of 27
are received and admitted in evidence for otherwise a premium would
be held out for commission of crime, as sometimes only direct
testimony against the accused is to be found in the dying declaration.
The dying declaration is also predicated on the principle that when a
person reaches the point of death and every hope has come to an end,
then motive to speak falsehood is silenced. The sense of impending
death has the same effect on a person‟s mind as when a conscientious
and a virtuous person makes a statement on solemn affirmation. At the
same time, we cannot hold that all dying declarations state the truth and
nothing but the truth. The court must make a careful and detailed
scrutiny to rule out any possibility of tutoring, prompting or
imagination and when the dying declaration is suspicious, it should not
be acted upon without corroborative evidence. This is required and
necessary as the credibility and veracity of the dying declaration
attributed to the maker, who has died, cannot be tested through the tool
of cross-examination.
39. Dying declarations relied upon by the prosecution, in our opinion, in
the present case are not completely reliable. We perceive and believe
that there are unanswered and incipient doubts, which makes it difficult
to ascertain and state with certainty that the dying declarations are not
besmirched and untrue being a product of imagination, prompting and
tutoring. In our opinion, it would be unsafe to rely upon the dying
declarations as the sole basis for convicting Laxmi and Jyoti in the light
of somewhat balancing and equipoise evidence. For conviction, we
must form a decisive opinion, and when we are unsure and indecisive,
benefit of doubt should be given. CRL.A. 485/2012 Page 27 of 27
40. In view of the aforesaid discussion, we allow the present appeal and set
aside the conviction of Laxmi and Jyoti awarded by the impugned
judgment, for they are entitled to benefit of doubt. They shall be
released forthwith unless they are required to be detained in accordance
with law in any other case.

FEBRUARY 11, 2016

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