Full Text
HIGH COURT OF DELHI
Date of Decision: 24.03.2018
JATIN DHIMAN ..... Appellant
Through : Mr. Ajay Verma, Ms. Katyayini and Ms. Sudha Reddy, Advs.
Through : Mr. Amit Ahlawat, APP.
HON'BLE MR. JUSTICE A.K. CHAWLA A.K. CHAWLA, J. (ORAL)
Aggrieved of the
JUDGMENT
ID 3 months RI for the offence under Section 302 IPC and 7 years RI with fine of Rs.3,000/- ID 1 month RI for the offence under Section 201 IPC, the appellant-convict has preferred the appeal in hand.
2. Appellant was accused of causing murder of his father Sh. Vijay Dhiman and then, setting the dead body to fire using 2018:DHC:2096-DB kerosene. As per the prosecution case, the appellant, who was 19 years of age, had strangulated his father on the midnight of 7-8 October, 2012 at their House no. 17, Gali No.3, Press Enclave, Vikas Nagar, Delhi and on the night of 9th October, 2012 set the dead body to fire using kerosene. SI Ram Bhau, who was on the patrolling duty on the intervening night of 9-10 October, 2012, on noticing the smoke coming out from the house made PCR call at no. 100 at about 3.20 midnight. Thereafter, the Police and the Fire Brigade swung into action. At the spot, the main gate of the house was found locked and on entering the house from the rear gate, which was lying open, TV, Sofa and other articles were found burning. A dead body in burnt condition was also found lying there. It is the case of the prosecution that, later, during the day i.e. 10.10.2012, the appellant came to the PS and confessed his guilt. On the completion of the investigations, the challan came to be filed. The appellant was tried for the offences under Section 302/201 IPC and convicted.
3. Prosecution in support of its case examined PW[1] Sh. Vijay Kumar Jha; PW[2] Sh. Amit Sethi; PW[3] Sh. Vijender Kumar; PW[4] Sh. Vinay Dhiman; PW[5] SI Azad; PW[6] Sh. Narender Singh; PW[7] Ct. Rajesh; PW[8] Insp. Mahesh Kumar; PW[9] Ct. Jai Singh; PW10 Sh. Sunny; PW11 Dr. Manoj Dhingra; PW12 Ct. Manish; PW13 Ct. Mandeep Kumar; PW14 SI Rambir; PW15 W/HC Anita; PW16 SI Ram Bhau; PW17 Insp. Manoj Kumar; PW18 HC Vijender; PW19 Sh.Pankaj Gupta; and, PW20 Insp. Surya Prakash and closed its evidence.
4. Incriminating evidence was put to the appellant-convict in his statement under Section 313 Cr.P.C. Appellant pleaded innocence and alleged false implication and took the plea of alibi stating that on the date of the incident, he was not at home and had gone to the house of his maternal aunt (Mausi) and that, his father was alone in the house. No defence evidence however came to be led by the appellant. Vide the impugned judgment, the appellant was convicted for both the offences and the impugned order of sentence came to be passed by the trial Court.
5. In the submissions of the learned Counsel for the appellant, it was a case of suicide. He submitted that the appellant was away to his Mausi's (aunt's) place when the incident took place and thus, took the plea of alibi. Assailing the impugned judgment, adverting to the postmortem report Ex.PW11/A, it was contended that as per the postmortem report, no external injury other than burn injury could be observed and that, no smell of any inflammable substance was found. In his submissions therefore, when the postmortem report Ex.PW11/A does not indicate the burning of the dead body by use of any inflammable substance like kerosene, the prosecution story for use of any kerosene either in causing death or for the destruction of the evidence fails. It was also submitted that there was no worthwhile and reliable evidence on record to prove that the appellant had purchased kerosene much less from PW[1] Vijay Kumar Jha, at any point of time. It was contended that PW[1] was not a trustworthy and reliable witness. To assail the veracity of the testimony of PW[1] Vijay Kumar Jha, learned counsel for the appellant drew attention of this Court to the testimony of PW[1] during cross, where he admits that he was not a seller of kerosene oil. Attention of the Court was also drawn to the fact that PW[1] during cross has also admitted that prior to 09.10.2012, he had not sold kerosene to appellant. It was thus contended that when PW[1] was neither the seller nor had sold kerosene to the appellant at any point of time prior to 09.10.2010, the appellant's just reaching to him and getting the kerosene, which is said to have been used for burning of the dead body, is highly improbable and unreliable. Then, adverting to the fire report of Delhi Fire Service Ex.PW3/A, which records that some smell like kerosene was also felt at the spot, it was contended that such part came to be recorded later is visible on the bare perusal of report and it discredits the prosecution story for the kerosene having been used in the incident. Lastly, it was contended that the disclosure statement Ex.PW9/F is inadmissible in evidence and cannot be used against the appellant as extra-judicial confession.
6. In the submission of ld. Addl. Public Prosecutor, PW[1], PW[2] and PW[6] were independent public witnesses and there is nothing on record to show that they had any enmity with the appellant to falsely implicate him and that, their unshaken testimonies by itself, are sufficient to connect the appellant to the commission of the offences in question. Also in his submissions, the appellant had made voluntary extra-judicial confession by coming to the Police Station all by himself shortly after the incident came to the light. It was also contended that there was no circumstance to indicate that the deceased had committed suicide. In his submission therefore, there was no merit in the contention that the deceased committed suicide.
7. Unfortunate event unfolded with PW-16 SI Ram Bhau, who was on patrolling duty on the intervening night of 9/10.10.2012, noticing smoke coming out of the house of the deceased and the appellant. During cross, he has deposed for having noticed the smoke coming out of the house at about 3.15 am. DD entry no. 7A Ex.PW14/A, which came to be recorded at
3.20 p.m. by PW14 SI Rambir at PS, also corroborates the unshaken deposition of PW16 that on the fateful night he had noticed smoke coming out of the house where the incident took place and had informed the police control room.
8. PW[3], a sub-officer of Jwalapuri Fire Station, in his unchallenged and unrebutted deposition has deposed that on 10.10.2012, on the receipt of information of fire at about 3.25 a.m., a fire brigade under his supervision had reached at the spot, where the room was found under fire and that, they doused the flame and reached the room after covering themselves with blankets and found that a body was lying in the room. He has also deposed for the presence of smell of kerosene in the room and had proved his report Ex.PW3/A. His such testimony is wholly unchallenged and unrebutted. Therefore, the contention raised by the learned counsel for the appellant that any addition or alteration as regards the smell of kerosene came to be made in the report Ex.PW3/A at a subsequent point of time, is wholly meritless. Suffice to say, inspite of the opportunity granted to cross-examine PW[3], not even a suggestion for any part of the report Ex.PW3/A having been tampered with later, has come to be given to PW[3]. The prosecution's another material witness PW16 besides deposing to the similar effect has also deposed that the plastic container of kerosene oil having about one and half litre besides half burnt clothes of deceased Vijay Dhiman were seized vide memo Exs.PW9/A and PW9/B, respectively. Though, during cross, this witness was unable to state either the size or the colour of the can, his such inability by itself cannot be construed to belie his deposition on the vital aspects. More so, for the reason that there is nothing to show that he was not a natural witness and had any ulterior motive. PW[1], who runs a grocery shop/general store has also identified the can Ex.P[1], which he sold to the appellant with kerosene oil. The categorical deposition of PW[1] that he had sold the can Ex.P[1], which contained kerosene oil, to the appellant on 09.10.2012 in the evening at about 9-10 p.m., though cross-examined, is unshaken and unrebutted. The bald suggestion given to him during cross that he was a planted witness ipso facto, does not cast any shadow of doubt as to the veracity of his deposition. A mere fact that he sold kerosene unauthorizedly does not discredit his deposition. Contention raised by the learned counsel for the appellant on such aspect is therefore wholly meritless. Established facts and the circumstances leave no doubt that kerosene, which was sold by PW[1] to the appellant, was used in the incident.
9. PW11, one of the doctors conducting postmortem, has proved the postmortem report Ex.PW11/A. The postmortem report Ex.PW11/A inter alia records as follows: "EXTERNAL GENERAL APPEARANCE Height:About 5 feet 8 inches. Built: Cant be ascertained due to charring of the body. Cornea: Fully burnt. Conjunctiva: Fully burnt. Natural orifices: Fully burnt.
POSTMORTEM CHANGES Hypostasis: Cant be ascertained due to charring of the body Rigor Mortis: Cant be ascertained due to charring of the body Decomposition Changes: Cant be ascertained due to charring of the body.
1. Thermal burns with charring of body tissue seen all over the body with loss of muscle & bone tissue over neck & front of upper half of chest. The external morphological features of the body has been all lost due to excessive burning & charring of the body. No external injury other than burn injury could be observed due to excessive burning & charring of the body. Hairs over the various body parts are fully burnt and singed at places. No smell of any inflammable substance appreciable. Approximate area of burn is 100% of total body surface area.
INTERNAL EXAMINATION Neck Structures: Excessive burn injury & charring of tissue seen as described under injury no.1. Chest: Collar Bone/Sternum/Ribs: No fractures seen Pleural Cavity: Charred Lung Right/Left: All thoracic structure Charred. Heart: Pericardium: Charred Myocardium: Charred Coronaries: Charred Others: NAD Abdomen Peritoneum, Peritoneal Cavity: Charred Stomach and its contents: Charred Intestines: Charred Liver: Charred Spleen: Charred Kidneys Right/left: Charred Pelvis Pelvic cavity: Charred Pelvic bones: No fractures observed Bladder: Charred Uterus, Ovaries, Fallopian Tubes: Not applicable Spinal Column: Charred Head: Scalp: Charred. Skull: No fracture seen to skull bones. Brain: Charred Time since death: Cant be ascertained due to advanced burning & charring of the body. OPINION: No opinion as to the exact cause of death can be given due to advanced burning & charring of the whole body." Though, as per the PM report, no opinion as to the exact cause of death could be given due to advanced burning and charring of the whole body, the evidence led and the attending circumstances, lead to the conclusion that the burning took place after the death of Vijay Dhiman. Had he been alive at the time he got to fire, the spot would have shown some sign of resistance. Nothing to that effect emerges from the record nor has come to be pointed out during the course of hearing. If, it was not so, at least, the extent of charring of body would not have taken place. This lends support to the prosecution case that the deceased had died on the intervening night of 7/8.10.2012 and to which effect, the appellant had made extra-judicial confession. As per the prosecution case, the deceased was strangulated to death by the appellant on that night.
10. In Sahadevan & Anr. vs. State of Tamilnadu, (2012) 6 SCC 403, the Supreme Court elaborated the principles of law to be kept in mind for placing reliance upon an extra-judicial confession made by the accused, as follows: "15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754: (2011) 3 SCC (Cri) 620] and Pancho v. State of Haryana [(2011) 10 SCC 165: (2012) 1 SCC (Cri) 223].) The principles
16. Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law." In Munna Pandit vs. State, (2014) 5 HCC (Del.) 495, adverting to the aspect of the admissibility of extra-judicial confession it was observed, as follows: "7. Extrajudicial confession when clearly proved by unimpeachable testimony and without slightest doubts, is given high evidentiary value but when confession is propounded and spoken by paid informers, treacherous associates, angry victims or over jealous officers of the law, etc., suspicion is aroused and one must proceed with caution. In such cases prudence and caution is required before acting upon extrajudicial confession and some sort of corroboration by credible evidence should be insisted upon. Thus, when witnesses claims that extrajudicial confession was made to them, the Court has to examine and decide whether the same should be relied upon. For this confession must be proved like any other fact and its reliability depends upon the veracity of the witness to whom it has been made. The confession should be voluntary and true and should not suffer from inherent improbabilities. Thus, when extrajudicial confession inspires confidence and passes the test of reliability, it can be relied upon but when there are if and buts and suspicious circumstances which create doubt, conviction should not be based solely upon extrajudicial confession and courts insist upon corroboration in form of cogent circumstances to support the prosecution version. Such caution may be justified and prudent when there is reason to suspect that the witnesses who have deposed on the extrajudicial confession were biased or inimical to the accused and may have motive for attributing unstated self-incriminating assertions to the accused. Recently Supreme Court in Sahadevan v. State of T.N. [(2012) 6 SCC 403.], held as under: