Delhi High Court (July 19, 2001) 2001 (TLS)125606 2001-DLT-93-655 :: 2001-AD (Del)-7-142 VINAY KUMAR SHYAM LAL Vs. state of delhi R. S. Sodhi ( 1 ) CRIMINAL Appeal No. 125/1993 is directed against the judgment and order of the learned Additional Sessions Judge, Delhi in Sessions Case No. 32 / 1989 whereby the learned Additional Sessions Judge vide his order dated 28. 8. 1993 held the appellant guilty under Section 306, Indian Penal Code and further by order dated 30. 8. 1993 sentenced the appellant to undergo rigorous imprisonment for eight years with fine of Rs. 5,000/- and in default of payment of fine to undergo further simple imprisonment for nine months. ( 2 ) BRIEF facts of the case are that Indu Narang wife of the appellant was married to him on 19. 8. 1980 and is alleged to have committed suicide on 5. 10. 1983 at about 11. 30 p. m. at house No. J-8, Ganga Ram Vatika, Jeevani Block. ( 3 ) IT is the case of the prosecution that the incident of fire was deliberate and not accidental and that. the same was abated by Shyam Lal, the appellant herein. The prosecution, in order to prove the case examined as many as 22 witnesses. Of them Public Witness 17 states that he is the neighbour of the accused. Upon hearing screams he came to the house of the accused and found him standing outside the door of the room where Indu was sitting in an injured condition. He submits that the appellant prevented him from going inside the room but told him that only women should go inside implying that the accused was obstructing any aid to be given to Indu. This witness deposes to the effect that he extinguished the fire with his hands and removed Indu in a taxi to the hospital. He also deposes to the effect that Indu was not treated well and on one occasion was given a kick in her stomach by the accused. Surprisingly, this witness, who claims to have extinguished the fire with his hands, does not receive any burns nor is there anything on record to show that either his cloths or any other apparel was subjected to heat. ( 4 ) THE prosecution also pressed into service Public Witness 3, who states that on 5. 10. 1983, he heard commotion from the house of the accused. ( 4 ) THE prosecution also pressed into service Public Witness 3, who states that on 5. 10. 1983, he heard commotion from the house of the accused. He came there and found Indu crying in pain. He accompanied Indu to the hospital. The accused, according to him, did not accompany them in the taxi. However, this witness deposes to the effect that relationship between the accused and his wife were not bad. ( 5 ) PUBLIC Witness 6 Ravi Kumar spates that on 5. 10. 1983 the accused came to his house to make a telephone call to his father about the incident regarding the burns sustained by his wife. This witness goes on to say that the accused made a telephone call to his father but did not make a call to Indu s brother nor her maternal uncle. This witness further deposes that Indu was in senses and could talk but was in pain. The hands of theaccused had received burns. He was having difficulty in dialing the phone. Consequently, all phone calls were made by this witness at the instance of the accused. ( 6 ) THE prosecution has sought to rely upon the conduct of the accused to show that he was a cruel husband as a result whereof Indu committed suicide. ( 7 ) LEARNED Counsel for the appellant has drawn my attention to Ex. Public Witness 19/b, which is the injury report prepared by Khera Hospital in the first instance. It is mentioned there that bums have been caused due to bursting of kerosene oil stove while she was cooking food. This statement had been given by the deceased, who was then conscious but in severe agony. He further draws my attention to Ex, Public Witness 18/a, which is the MLC at Safdarjung Hospital where Indu was removed from Khera Hospital since sherequired better attention. She was brought to the Safdarjuog Hospital by the accused and the doctor notes that injuries caused by flames from kerosene oil stove on which she was cooking . He also draws my attention to Ex. Public Witness 19/c, which is the dying declaration, thumb marked by the deceased in presence of the SHO and Dr. Ajal Lal where it is recorded that the fire was accidental. He also draws my attention to Ex. Public Witness 19/c, which is the dying declaration, thumb marked by the deceased in presence of the SHO and Dr. Ajal Lal where it is recorded that the fire was accidental. While heating milk, her teri-coat clothes caught fire and that her husband was in the adjacent room and that the fire was an accident. Learned Counsel submits that there is no reason why the dying declaration should be discarded in the circumstances of this case especially when the theory of suicide was propounded after a period of 19 days of the death. Prior thereto the parents of the deceased as also the accused were jointly carrying out all the necessary ceremonies and there was not even a murmur of foul play. Going by the statement of Public Witness 6 as also the dying declaration, it cannot be said that the appellant, whose hands were burnt while rescuing his wife from flames, could have instigated the deceased to commit suicide. Even otherwise the factum of accident cannot be ruled out. Rather it is difficult to support the theory of suicide in view of the dying declaration of the deceased. The dying declaration appears to be a voluntary statement made in presence of doctors, which lends credence. I am, therefore, convinced that this is not a case where the appellant can be convicted under Section 306, Indian Penal Code. There is no evidence on record to support such a theory. The reasoning of the Trial Court is not based on material on record but is in the nature of surmises and cannot be sustained. ( 9 ) THE appellant is on bail. His bail bond and surety shall stand discharged. Appeal allowed. --- *** --- .