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State vs Krishan Kumar on 20 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on:20th March, 2020

+ CRL. A. 713/2019

STATE …Appellant

Through: Mr. Ashish Dutta, APP for State.
versus

KRISHAN KUMAR …Respondent

Through: Mr. Zeeshan Hashmi, Mohd.
Adil, Advocates.
CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MR. JUSTICE I.S.MEHTA

JUDGMENT

I. S. MEHTA, J.

1. Instant appeal is arising from the Judgment dated 29.08.2018
passed by the learned Additional Sessions Judge, (EAST)-SPL.
JUDGE (NDPS), Kakardooma, Delhi in Session Case No. 387/2016
emanating out of FIR No. 113/2011 registered under Sections 498A
and 302 IPC at P.S. Gazipur, Delhi, whereby the respondent/accused
was acquitted from the charges levelled against him.

2. The brief facts stated are that on receiving DD No. 41B on
11.04.2011 at 12:40 PM, SI Harpal Singh reached to LBS Hospital
where he met with injured Poonam w/o Krishan who was admitted

CRL. A. 713/2019.

Page 1 of 11

vide MLC No. 5254/11 with alleged history of intake of acid.
Thereafter, IO, SI Harpal Singh requested the concerned SDM, Preet
Vihar to visit the hospital. SDM Hukam Singh reached to LBS
hospital and met with injured Poonam and recorded her statement
Ex.PW2/A.

Statement
Smt. Poonam W/o Sh. Krishan , R/o. A-141, Harijan Basti,
Kondli, Delhi in front of S.D.M, Preet Vihar Colony, L.M.
Bandh, Shastri Nagar, Delhi at LBS Hospital, Khichari Pur,
Delhi, dated 11.04.2011 at 4:45 PM.

Q1. What is your name and narrate the incident?
Answer. My name is Poonam w/o Krishan and she resides at
above given address. Her mother got her married from her
residence E-13, Kondli with Krishan S/o Bal Krishan
resident of A-141, Harijan Basti, Kondli, Delhi on
28.11.2005 as per the Hindu Rites and Customs and dowry
was given as per their wishes but no vehicle was given due
to which accused used to quarrel with her on daily basis and
also used to threaten to kill her brother. Accused used to
quarrel with her after taking liquor. Accused was not giving
money to meet out the house hold expenses. She has a son
who has not been enrolled in any school by the accused. She
is being threatened through outsiders too. After beating her
at the Matrimonial house accused used to send her to her
parental house. The parents of accused avoid their presence
in such incident. Accused threatens her to go away from his
matrimonial house otherwise she would be killed. Every day
accused used to quarrel on one pretext or other. On
11.04.2011 at about 12:30 PM accused made her to ingest
acid and ran away. Her husband is responsible for this
incident. Legal action be taken against him and maximum
punishment be awarded to him. The above statement is read
over to her and her statement is based on the voluntariness.

Sd/
(Hukam Singh, SDM)

CRL. A. 713/2019.

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3. After recording statement of Poonam, statement of complainant
was marked to SHO PS Gazipur for necessary action. On basis of
complainant’s statement, an FIR, FIR No.113/11 was registered under
Sections 498A/328 IPC against the accused in PS Gazipur.
Investigation of the case was handed over to SI Harpal Singh and
accused was arrested on 04.05.2011. SI Harpal Singh collected MLC
of the victim. The victim Poonam was discharged from LBS hospital
on 21.04.2011. Thereafter, the victim Poonam got herself admitted in
LNJP Hospital and got medical treatment from LNJP Hospital on
27.04.2011 at 10:08 AM. She died on 23.09.2011 at about 5:45 PM.
IO SI Harpal (Retd.) consequently handed over further investigation of
the case to ASI, Bhagwat Dayal and on direction of SDM he got
conducted postmortem of deceased Poonam and dead body of Poonam
was handed over to her elder brother Lalit Kumar. On 20.05.2012 he
collected the post mortem report of deceased Poonam and thereafter,
sections 498A and 302 IPC were also added in FIR and he handed
over the file to MHC(R). On 13.07.2012, further investigation was
handed over to Insp. Ram Dhan and on 28.04.2013 accused Krishan
Kumar was arrested from house no. A-141, Kondli, Delhi.

4. After completion of investigation, chargesheet was filed and
Charges were framed under Sections 498A/302 IPC against accused
on 16.01.2014 to which he pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case, examined 14
witnesses i.e., ASI Jai Prakash (PW1), Hemant Kumar (PW2), Lalit
Kumar (PW3), Smt. Kanti Devi (PW4), Smt. Manju (PW5), Retired SI
Harpal Singh (PW6), SI Bhagwat Dayal (PW7), Retired Inspector

CRL. A. 713/2019.

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Ramdhan Singh (PW8), Sh. Hukam Singh (PW9), Dr. Rakesh Singh
(PW10), Dr. Mohit Chauhan (PW11), Ct. Yogesh (PW12), Dr.
Niranjan Kansakar(PW13) and Dr. A.K. Kakar (PW14). Thereafter,
prosecution evidence was closed.

The Statement under Section 313 Cr.P.C. of Accused Krishan
Kumar was recorded. Thereafter, defence evidence was closed.

6. After concluding arguments, Court below acquitted the accused
from charges framed against him. Aggrieved from impugned
Judgment State preferred present appeal.

7. Ld. APP, Ashish Dutta on behalf of the State has submitted that
Court below misread evidence on the record and reached to wrong
conclusion.

8. Ld. APP further submitted that Hukam Singh PW9 has proved
the Dying Declaration Ex. PW2/A of deceased Poonam and as per the
dying declaration it was the accused who kept on beating and
harassing deceased Poonam at matrimonial house and at last on
11.04.2011 he forcefully administered acid in mouth of the deceased
and ran away.

9. Ld. APP further submitted due to administration of acid into
mouth of the deceased, deceased died on 23.09.2011.

10. Ld. APP further submitted that prosecution has proved its case
on account of ocular evidence of PW2 to PW4 as well as dying
declaration Ex.PW2/A, as such, the judgment dated 29.08.2018 be set
aside and accused be convicted.

11. Per contra, Ld. Defence Counsel has submitted that prosecution
failed to prove its case beyond reasonable doubt.

CRL. A. 713/2019.

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12. Ld. Defence Counsel has submitted that Court below has rightly
appreciated evidence on the record and further submits that appeal of
the Appellant be dismissed with costs.

13. Reliance placed by Ld. Defence Counsel on judgments in
Bhagwan Kaur Vs. Krishan Sharma Ors AIR 1973 SC 1346,
Beere Gowda Vs. State of Karnataka (2010) 11 SCC 771, State of
Himachal Pradesh Vs. Jeet Singh AIR 1999 SC 1293, Shanmughan
Vs. State of Kerala AIR 2012 SC 1142, State of Himachal Pradesh
Vs. Rajiv Jassi AIR 2016 SC 2241, Vishal Yadav Vs. State of U.P.
2014 SCC Online Del 1373, Sukhar Vs. State of U.P. AIR 1999 SC
3883 and Paniben Vs. State of Gujrat AIR 1992 SC 1817.

14. Instant case of the prosecution is based on ocular evidence as
well as on dying declaration Ex.PW2/A. Prosecution has examined
PW2 Hemant Kumar, brother of the deceased, PW3 Lalit Kumar,
brother of the deceased, PW4 Kanti Devi, mother of the deceased and
PW5 Manju, sister-in-law of the accused. PW2, PW3 and PW4 are
witnesses pertaining to marriage between deceased Poonam and
accused Krishan Kumar. They deposed that demand of dowry of
motorcycle and harassment was meted out to the deceased in her
matrimonial home.

15. On the contrary, PW2 Hemant Kumar during his cross-
examination has admitted that he was on visiting terms in house of the
accused after marriage of deceased Poonam. The said admission is
reproduced as under: –

“…I was on visiting terms to the house of accused
after the marriage of Poonam.”

CRL. A. 713/2019.

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Similarly, PW3 Lalit Kumar too admits during the cross
examination that he too was on visiting terms with accused and said
admission is reproduced as under: –

“..After marriage of Poonam, I used to visit her
matrimonial home after a gap of about one week
and sometime one month and Poonam also used to
come to our home.

…I was on talking terms with accused”

Similarly, PW4 Kanti Devi too admits during the cross
examination that she too was on visiting terms with accused and said
admission is reproduced as under:

“…After her marriage, I used to visit her
matrimonial house on a gap of about one week, 3-
4 days.”

16. PW2 Hemant Kumar in examination-in-chief has deposed that
on date of the incident i.e. 11.04.2011 Manju PW5 visited their house
and informed them that deceased had consumed acid. The said
examination-in-chief is reproduced as under: –

“…On 11.04.11, I was present at my house.
Bhabhi of accused Krishan Kumar came to our
house and informed me that my sister Poonam had
consumed Tezab.”

The prosecution did not declare PW2 Hemant Kumar to be a
hostile witness and statement of the PW2 remains unrebutted on
record.

17. PW4 Smt. Kanti Devi also admits presence of PW5 Manju and
mother of the accused in LBS, Hospital, said admission during cross
examination on behalf of PW4 Kanti Devi is reproduced as under: –

CRL. A. 713/2019.

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“…I directly went to the LBS hospital. Mother and
sister-in-law (bhabi) of accused were also present
in the hospital.”

18. The statement of PW2, PW3 and PW4 establishes factum of the
marriage that took place between accused Krishan Kumar and
deceased Poonam as per Hindu Rites and Customs on 28.11.2005 and
they were on visiting and good terms till 11.04.2011 in absence of any
complaint on behalf of aforesaid witnesses and deceased Poonam.

19. PW5 Manju emerges as a material witness in the facts and
circumstances of the present case.

PW5 deposed that she was present at her home i.e. house no. A-
141 on 11.04.11 at about 12 noon, she was present at her house at the
ground floor and son of the deceased Poonam came and informed that
deceased Poonam had consumed acid. The said cross-examination is
reproduced as under:-

“…On 11.04.2011 at about 12.00 noon, I was
present at my home at the ground floor and Yash,
son of Poonam came to me and informed that
Poonam had consumed tezab.”

PW5 Manju has not been declared hostile and her statement is
corroborated with the statement of PW2 Hemant Kumar. PW2 during
the cross-examination has admitted that at time of the incident
accused was not present at home and deceased Poonam had consumed
acid and she immediately took her to hospital. The said admission is
reproduced as under: –

“…Deceased Poonam was my devrani and we
were residing as joint family. Accused Krishan was
out of house at the time of incident and on that day

CRL. A. 713/2019.

Page 7 of 11

he had left the house at about 10.30 a.m. Yash, the
son of deceased informed me that his mother had
consumed tezab. I immediately rushed to the room
of Poonam (deceased) and thereafter went to the
house of mother of deceased and informed Hemant
about the same and then came back and took her
to hospital.”

20. The statement of PW5 Manju is corroborated with the MLC
Ex.PW10/A wherein it indicates that the deceased Poonam was
brought to the hospital with the history of intake of acid. The MLC
Ex.PW10/A does not disclose forceful administration of acid on her
person.

21. The statement of PW5 indicates that on date of the incident i.e.
11.04.2011 accused was not present at the house. However, deceased
Poonam ingested acid in absence of accused Krishan Kumar.

This factum is corroborated with statement of PW4 Smt. Kanti
Devi and during her cross-examination she has admitted that mother
and PW5 Manju sister-in-law of the accused were present in LBS
hospital.

It is further corroborated with statement of PW9 Hukam Singh
when he had recorded the statement of deceased Poonam no injury
was found on her body.

22. The prosecution failed to examine the material witness to the
incident i.e. Yash, minor son of the deceased.

The whole controversy arises whether deceased was
administered acid forcibly or she has taken it herself by mistake of
fact.

CRL. A. 713/2019.

Page 8 of 11

As per statement of PW5 Manju, on receiving the information
from Yash that deceased ingested acid, she took deceased to LBS
hospital immediately after the incident. The MLC Ex.PW10/A does
not show any external injury found on her body soon after the incident
and PW9 Hukam Singh too did not find any injury on person of the
deceased at the time of recording her statement Ex.PW2/A. Had there
been forcible administration of acid, there would have been external
injuries on other parts of the body.

23. Non-finding of the external injuries on body of the deceased
indicates that it is a case of the mistaken fact and nothing else.
However, her statement Ex.PW2/A was recorded which was later on
converted into dying declaration.

Dying Declaration:-

24. Dying Declaration becomes relevant under Section 32(1) of
Indian Evidence Act as the same is based on the principal of ‘nemo
moriturus proesumitur mentiri’ which is an exception to the general
rule of inadmissibility of hearsay evidence.

25. In Atbir v. Govt. (NCT of Delhi) (2010) 9 SCC 1, the Apex
Court has laid down the following guidelines with regard to
admissibility of Dying Declaration :-

i. Dying declaration can be the sole basis of
conviction if it inspires the full confidence of the
court.

ii. The court should be satisfied that the deceased was
in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.

CRL. A. 713/2019.

Page 9 of 11

iii. Where the court is satisfied that the declaration is
true and voluntary, it can base its conviction
without any further corroboration.

iv. 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.

v. Where the dying declaration is suspicious it should
not be acted upon without corroborative evidence.
vi. A dying declaration which suffers from infirmity
such as the deceased was unconscious and could
never make any statement cannot form the basis of
conviction.

vii. Merely because a dying declaration does not
contain all the details as to the occurrence, it is not
to be rejected.

viii. Even if it is a brief statement, it is not to be
discarded.

ix. When the eyewitness affirms that the deceased was
not in fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
x. If after careful scrutiny the court is satisfied that it
is true and free from any effort to induce the
deceased to make a false statement and if it is
coherent and consistent, there shall be no legal
impediment to make it the basis of conviction, even
if there is no corroboration.

26. The dying declaration Ex.PW2/A indicates the accused at 12:30
PM administered acid to the deceased and ran away.

This part of the dying declaration does not disclose the manner
of administration of the acid on her person.

Moreover, it also does not disclose the place of the incident i.e.
room and floor of the house where she was forcibly administered with
the acid by the accused.

CRL. A. 713/2019.

Page 10 of 11

Later part of dying declaration indicates that her husband is
responsible for the incident, which means that her husband accused
Krishan Kumar was not present at time of the incident.

PW5 Manju too has specifically stated that accused was not
present in the house at the relevant time of the incident. Had there
been forcible administration on her person of the deceased, there
would have been external injury on the mouth and other parts of the
body of the deceased.

Non-examination of son of the deceased, Yash, definitely
creates suspicion whether it is a case of forceful administration of acid
on person of the deceased or it is a case of mistaken fact of self
consumption of acid, particularly when other material factors does not
corroborate with manner of the incident.

27. As discussed above, view taken by the Court below in
impugned judgment dated 29.08.2018 is upheld. We find no merit in
the Appeal to interfere with the impugned judgment and why the
Appellate Court take contrary view only on the ground that another
view too is possible. Reliance is placed on the judgment of the Apex
Court in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258.

28. The appeal is accordingly dismissed. Trial court record be sent
back along with certified copy of this Judgment.

I.S.MEHTA, J.

SIDDHARTH MRIDUL, J.

MARCH 20, 2020

CRL. A. 713/2019.

Page 11 of 11

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