Excerpt: In order to establish accusations against the accused, the prosecution has examined 14 witnesses along with previous cases references cited below concluded following verdict.
Keeping in view of the facts and circumstances, it is held that the dying declaration made by the deceased is not trustworthy and there is no other incriminating evidence available on record regarding allegation of forceful administration of acid.
Since, the dying declaration is not trustworthy thus, the allegations qua the harassment on account of demand of motorcycle also reliable especially when these allegations are not supported by any previous complaint and are without material particulars.
Thus, it is held that prosecution has failed to prove the accusation against the accused FIR No. 113/2011 State Vs Krishan Kumar Vs PS Gazipur 19 of 20 beyond reasonable doubt hence accused is acquitted of the charges leveled with. Acquitted accused is directed to furnish bonds u/s 437A Cr.P.C in the sum of Rs. 20,000/-. File be consigned to record room after compliance.
List of judgements
- 1975 CRI L.J. 1500 Ram Narain vs State of Punjab
- 1997 CRI L.J. 310 Ananda Manna vs State of W.B.
- 1994 Supreme Court Cases (Cri) 1242 Raj Mani Devi vs Sate Of Bihar & Ors on 29 August, 2014
- Apex Court case of Khushal Rao vs. Bombay ,(Supra) reported in AIR 1958 SC 22
- Evidence Act and of the decided cases in the different High Courts in India- Here Madras High court
- Munnu Raja and Anr. v. State of Madhya Pradesh (1976) 3 SCC 104
- Ramilaben Hasmukhbhai Khristi v. State of Gujarat (2002) 7 SCC 56
- Bhajju @ Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327
- Hiraman v. State of Maharashtra 2013(12) SCC 586
- Apex court case Chirra Shivraj vs. State of Andhra Pradesh (2010) 14 SCC 444
- Tapinder Singh vs State of Punjab AIR 1970 Supreme Court 1566
- Supreme court State of Gujrat vs Jayrajbhai Punjabhai Varu 2016 CRI LJ 4185
- Supreme court Vipin Jaiswal Vs State of A.P. 2013(3) SCC 684
IN THE COURT OF SH. AJAY GUPTA, ADDL.SESSIONS JUDGE02 (EAST) SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI SC No. 387/16 FIR No.113/11 U/s 498A/302 IPC PS Gazipur In the matter of: State vs. Krishan Kumar S/o Late Sh. Bal Kishan R/o H.No.A141, Harizan Basti, Kondli, Delhi Date of institution : 08.08.2013 Date of argument : 14.08.2018 Date of order : 29.08.2018 JUDGMENT
1. Brief facts of the prosecution case are as under:
(a) That on 11.04.2011 at 12.40 hours, duty constable Sanjeev informed at PS Gazipur from LBS Hospital that one Poonam w/o Krishan has been admitted in the said hospital due to drinking of acid. The said informtion was reduced into DD No.41A and it was marked to SI Harpal. Thereafter, IO SI Harpal reached LBS Hospital, collected MLC No.5254/22 of Poonam who was reported to be conscious. Thereafter, IO informed SDM Preet Vihar. Sh. Hukam Singh, SDM Preet Vihar reached LBS Hospital, and recorded her statement (Ex.PW2/A) in which she stated that she got married to accused on 28.11.2005 and dowry FIR No.113/2011 State vs Krishan Kumar PS Gazipur 1 of 20 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. He 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. Accused used to get her threatened through outsiders. Accused also used to send her to her parents’ home after giving beatings to her. Accused used to threaten her to go away from his house otherwise she would be killed. That on 11.04.2011 at about 12.30 hours, accused administered acid to her and ran away. She further stated that accused is responsible for this incident and she wants legal action against him.
(b) Thereafter, statement of complainant was marked to SHO PS Gazipur for necessary action. On the basis complainant’s statement, an FIR was registered u/s 498A/328 IPC against the accused and investigation was marked to SI Harpal Singh. On 04.05.2011, accused was arrested in this case and he was granted bail on 23.06.2011. Poonam continuously remained ill. On 07.06.2011, IO obtained MLC in which doctor has opined that it is a case of corrosive poisioning with complaint of dysphogia and gastritis.
(c) That victim Poonam also got medical treatment from LNJP Hospital for some time and on 24.09.2011 vide MLC Death Summary CR No.962304, she was reported to have expired on 23.09.2011 at 5.45 pm. Since IO SI Harpal had retired, therefore, another police official, ASI Bhagwat Dayal reached LNJP hospital, got conducted postmortem of deceased Poonam. Sh. DS Pundeer, SDM Preet Vihar also reached FIR No.113/2011 State vs Krishan Kumar PS Gazipur 2 of 20 LNJP Hospital and prepared the inquest paper. Thereafter, section 498A/302 IPC were also added in the FIR and accused was again arrested on 28.04.2013. After completion of investigation chargesheet was filed.
(d)After compliance of the provisions of section 207 Cr.P.C., the case was committed to the sessions court.
(e)Vide order dt.16.01.2014, a charge for the offence punishable u/s 498A and 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
FACT IN ISSUE
2. Points which emerged for determination in this case are: “Whether accused subjected the deceased Poonam to cruelty and harassment for dowry and forcefully administered acid to her and consequent to the consumption of acid she died on 24.09.2011.”
3. In order to establish accusations against the accused, the prosecution has examined following 14 witnesses.
(3.1) ASI Jai Prakash (PW1) is the Duty Officer who recorded the FIR in the present case and brought on record copy of FIR Ex.PW1/A and endorsement Ex.PW1/B made on rukka.
(3.2) Sh. Hemant Kumar (PW2) is the brother of the deceased. This witness deposed that on 28.11.2005 her sister (deceased) got married with accused and in marriage, they had given house old articles and ornaments according to their status. After about one year of marriage, FIR No.113/2011 State vs Krishan Kumar PS Gazipur 3 of 20 accused demanded gaddi (motorcycle) from them as well as deceased and when they could not fulfill the said demand, accused gave beatings to his sister. Accused made demand of motorcycle on many occasions and gave beatings to deceased. PW2 also deposed that accused used to give beatings to deceased after consuming liquor and he and his mother tried to make the accused understand for not giving beatings to deceased. PW2 further deposed that on 11.04.2011, when he was present at his house, sisterinlaw (bhabhi) of accused came to his house and informed him that Poonam had consumed Tezab upon which he made a call at 100 number. PW2 further deposed that he along with his mother and brother went to LBS hospital where his sister was found admitted and SDM was recording her statement (Ex.PW2/A) at that time. He also deposed that on inquiry Poonam told him that “tumhare jija ne mujhe zabardasti tezab pila diya aur waha se bhaag gai te”.
(3.3) Sh. Lalit Kumar (PW3) is the younger brother of deceased. This witness deposed more or less on the similiar lines of PW2. PW3 further deposed that on 11.04.2011 he was in his office and his sisterinlaw Parvesh Kumari informed him about the incident telephonically. Thereafter, he went to LBS Hospital where his statement was recorded by the IO. He immediately went to the house of accused but no one was found and then he went to school where his mother was working and he informed his mother about the incident. Thereafter, he along with his mother rushed to LBS hospital where deceased was found admitted. PW3 further deposed that the doctor at LBS Hospital referred Poonam to LNJP Hospital and her sister expired in the hospital on 23.09.2011. He identified FIR No.113/2011 State vs Krishan Kumar PS Gazipur 4 of 20 dead body of deceased vide identification statement Ex.PW3/A and received the dead body of deceased after postmortem vide handing over memo Ex.PW3/B.
(3.4) Smt. Kanti Devi (PW4) is the mother of deceased. This witness has deposed more or less on the lines of PW2 and PW3. PW4 also deposed that when she reached hospital Poonam was not able to talk at that time and after some time she talked to Poonam who informed that accused had forcibly made her to consume tezab.
(3.5) Smt. Manju (PW5) is the sisterinlaw of the deceased. This witness deposed that on 11.04.2011 at about 12 noon, she was present at the ground floor of her home and Yash, son of Poonam came to her and informed her that his mother Poonam has consumed tezab. Then PW5 went to first floor and saw that Poonam was in pain and Poonam told her that she was having problem in her stomach. Thereafter, she took Poonam to LBS hospital and got her admitted there.
(3.6) Retired SI Harpal Singh (PW6) is the 1st IO of the case, who conducted initial investigation of the present case and after his retirement he handed over the case file to MHCR on 30.06.2011. PW6 deposed more less on the lines of 1st paragraph of the judgment and for the sake of brevity his testimony is not being disccused here.
(3.7) SI Bhagwat Dayal (PW7) is the 2nd IO. This witness deposed that on 01.09.2011 further investigation of this case was marked to him and on 24.09.2011 an information was received that Poonam had expired. The said information was reduced into DD No.8A (Ex.PW7/A) and it was FIR No.113/2011 State vs Krishan Kumar PS Gazipur 5 of 20 marked to him and thereafter, he conducted further investigation of the case.
(3.8) Retired Inspector Ramdhan Singh (PW8) is the last IO who arrested the accused vide arrest memo Ex.PW8/A, conducted his personal search vide memo Ex.PW8/B, recorded his disclosure statement Ex.PW8/C, concluded the investigation, prepared the challan and filed it before the Court.
(3.9) Sh. Hukam Singh (PW9) is the then SDM who recorded the statement of deceased. He brought on record the statement of deceased as Ex.PW2/A and direction Ex.PW9/A given to SHO for taking necessary action.
(3.10) PW10 is Dr. Rakesh Singh who proved the MLC No.5254/11 Ex.PW10/A prepared by Dr. PD Singh.
(3.11) PW11 is Dr. Mohit Chauhan who has placed on record the postmortem report of the deceased (Ex.PW11/A) conducted by Dr. Jyoti Barua and Dr. Jatin Bodwal and opined that the casue of her death was septicemia consequent upon peritonitis.
(3.12) PW12 is Ct. Yogesh who joined the investigation and accompanied PW9 Inspector Ramdhan Singh and assisted IO in arresting the accused and got conducted medical examination of accused.
(3.13) PW13 is Dr. Niranjan Kansakar. This witness has brought on record the death summary report of deceased as Ex.PW13/A prepared by Dr. Gaurav Garg and stated that the cause of death in this case was post operative case of corrosive stricture oesophagus (laprotmy with colonic FIR No.113/2011 State vs Krishan Kumar PS Gazipur 6 of 20 interpositiontranshiatal with tracheastomy with feeding jejunostmy) with Pneumonitis with anastomotic leak with septicemia.
(3.14) PW14 is Dr. A.K. Kakar. This witness deposed that on 25.06.2011 patient Poonam was referred to LNJP hospital from LBS Hospital. Initially she was admitted with the alleged history of ingestion of corrosive/acid in April 2011. Her first operation was conducted on 01.05.2011. Thereafter, she was discharged on 08.05.2011 and she was again admitted at LNJP Hospital on 25.06.2011 for treatment of corrosive stricture of esophagus with feeding jejunostomys. She was taken up for surgery on 05.09.2011 and colonic transposition and colopharyngeal and gastrocolic and colocolic with tracheostomy was carried out. PW14 further deposed that the patient Poonam developed post operative pneumonitis with anastomoticleak. She developed septicemia and passed away on 23.09.2011. The patient remained under his treatment from 25.06.2011 to 23.09.2011 in LNJP Hospital. PW14 also deposed that the stricture of esophagus in patient Poonam occurred due to ingestion of acid.
STATEMENT OF ACCUSED
4. On conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. Accused pleaded innocence and stated that he has been falsely implicated in this case. His marriage with deceased was solemnized in simple manner. He never harassed or gave beatings to deceased nor demanded any gaddi/vehicle from her or her family member. PW2, PW4 and his/her family member deposed falsely against him. He was not present on spot at the time of incident. Later on he came to know that Poonam had consumed acid/tezab and she was admitted to FIR No.113/2011 State vs Krishan Kumar PS Gazipur 7 of 20 hospital by his sister Smt. Manju. He himself surrendered before the police at PS and he did not give any disclosure statement and his signatures were obtained on blank paper forcibly. Accused opted not to lead any defence evidence.
5. I have heard Ld. Addl. P.P for the State as well as Ld. defence counsel and gone through the record of the case. Ld. Addl. PP submitted that the complainant has given a specific statement to the SDM that accused had forcefully made her drink the acid. The incident took place within seven years of marriage of the accused with the deceased. The complainant has specifically stated in her statement that her husband used to quarrel with her on daily basis after taking liquor and used to beat her and harass her on account of nonfulfillment of dowry ie gaddi. Ld. Addl. PP further stated that the testimony of deceased has been corroborated by her relatives i.e. PW2 Hemant Kumar, PW3 Lalit Kumar, both brothers of deceased and PW4 Smt. Kanti Devi, the mother of deceased. It is further argued that initially deceased got treatement from LBS Hospital and thereafter, she was referred to LNJP Hospital where her first operation was conducted on 01.05.2011 and thereafter, she was discharged on 08.05.2011. Thereafter, she was again admitted at LNJP Hospital on 25.06.2011 for treatment of corrosive stricture of esophagus with feeding jejunostomys and remained under treatement till 23.09.2011. She developed septicemia and passed away on 23.09.2011 and as per statement of PW14 Dr. A.K. Kakar, the structure of esophagus in deceased occurred due to ingestion of acid. It was the accused who forcibly made the deceased to consume acid which resulted into all these problems and consequent upon which FIR No.113/2011 State vs Krishan Kumar PS Gazipur 8 of 20 she died. Thus, it is prayed that accused may be convicted for the offences charged with.
6. Ld counsel for accused submitted that prosecution has failed to prove its case against the accused. Ld defence counsel submitted that the prosecution case is based upon the dying declaration and same is not reliable as same is inconsistent with the medical evidence. He submits that as per deceased she was forcefully given acid by the accused, however, there is no evidence that she sufferred any injury on her face or any part of her body. In this regard he has relied upon the case laws reported as (i) 1975 CRI L.J. 1500 Ram Narain vs State of Punjab (ii) 1997 CRI L.J. 310 Ananda Manna vs State of W.B. and (iii) 1994 Supreme Court Cases (Cri) 1242 Mani Ram and Ors vs Sate of UP. Healso submits that allegations regarding demand of motorcycle are general and vague and neither complainant nor witnesses have given any specific particulars about the date and time of demand. He also submits that there has not been any complaint in the past. Thus, he submits that accused may be acquitted.
7. Before dealing with the contentions relating to dying declaration raised by the Ld. counsels for both the sides, it is deemed appropriate to firstly, discuss the settled legal proposition in this regard.
8. In the case of Krishan v. State of Haryana reported as 2013(3) SCC 280, the Hon’ble Apex Court while discussing the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22 has summarized the law FIR No.113/2011 State vs Krishan Kumar PS Gazipur 9 of 20 relating to the admissibility of dying declaration. In this case. Hon’ble Apex Court has held that the dying declaration can be relied upon without corroboration but same should be true and correct. The relevant paras of this judgment are reproduced as under:
14. We are not able to see any contradiction in these two judgments of this Court. The threeJudge Bench judgment in the case of Khushal Rao (supra) had stated the principle in paragraphs 16 and 17, which reads as under :
“……16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making FIR No.113/2011 State vs Krishan Kumar PS Gazipur 10 of 20 a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.”
17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by crossexamination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.”
9. After considering the principle laid in Khushal Rao’s case (supra) Hon’ble Apex Court held in para 15 to 18 as under: “15. A bare reading of the above paragraphs shows that the Court opined that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. The Bench further clarified that where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in FIR No.113/2011 State vs Krishan Kumar PS Gazipur 11 of 20 accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
16. In the case of Ram Sagar Yadav (supra), this Court had followed the same principle and, in turn, specifically referred to the judgment of Khushal Rao (supra). Not only this, even in the case of Munnu Raja and Anr. v. State of Madhya Pradesh (1976) 3 SCC 104, this Court referred to the judgment in Khushal Rao’s case (supra). In paragraph 6 of the judgment, the Court stated the same principle that where the dying declaration suffers from an infirmity, the Courts will have to adopt a different course to adjudicate the matter in accordance with law. In the case of Ramilaben Hasmukhbhai Khristi v. State of Gujarat (2002) 7 SCC 56, this Court held as under:
“28. Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.”
11. In the case of Chirra Shivraj vs. State of Andhra Pradesh (2010) 14 SCC 444, Hon’ble Apex Court has held that court has to examine dying declaration with a microscopic eye to find out whether it was voluntarily and truthful.
FIR No.113/2011 State vs Krishan Kumar PS Gazipur 12 of 20
12. In the case of Tapinder Singh vs State of Punjab AIR 1970 Supreme Court 1566, it has been held that the dying declaration has to be subjected to very close scrutiny as accused does not get chance to test the veracity of the statement of the witness by way of cross examination. Same view has been taken by the Hon’ble Supreme Court in State of Gujrat vs Jayrajbhai Punjabhai Varu 2016 CRI LJ 4185. Relevant para is
10. In this very case, in para no.11, it has been held that Court has also to see the attendant circumstances to assess the truthfulness of the dying declaration.
10. The courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the crossexamination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. In the case on hand, there are two sets of evidence, one is the statement/declaration made before the police officer and the Executive Magistrate and the other is the oral dying declaration made by the deceased before her father who was examined as PW1. On a careful scrutiny of the materials on record, it cannot be said that there were contradictions in the statements made before the police officer and the Executive Magistrate as to the role of the respondent herein in the commission of the offence and in such circumstances, one set of evidence which is more consistent and reliable, which in the present case being one in favour of the respondent herein, requires to be accepted and conviction could not be placed on the sole testimony of PW1. A number of times the relatives influence the investigating agency and bring about a FIR No.113/2011 State vs Krishan Kumar PS Gazipur 13 of 20 dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.
11. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.
13. From the above referred legal position, it clearly emerges that a dying declaration can form the sole basis of conviction but when such dying declaration is true and reliable.
14. The present case is solely based upon the statement made by the deceased when she was admitted in the hospital after consumption of acid. The deceased was admitted in the hospital on 11.04.11 and since then she remained under constant treatment for the complication got developed due to ingestion of acid. She was operated twice in the LNJP Hospital. Second time she was operated upon dt. 5.09.11 and after operation she developed septicaemia and passed away on 23.09.11.
FIR No.113/2011 State vs Krishan Kumar PS Gazipur 14 of 20 Thus, it is clear from the medical evidence available on record that the deceased succumb to the complications which were developed due to ingestion of acid. Thus, deceased passed away due to ingestion of acid.
15. On dt. 11.04.11, the injured Poonam had given a statement to the SDM concerned upon which present case was registered u/s 498A and 328 IPC and after her demise Sec 302 IPC was added. The present case was registered on the first statement of deceased and after her demise same is to be treated as her dying declaration. As per her statement, accused had forcefully administered her acid and then fled away. Thus, deceased has indicted the accused for forcefully giving acid to her.
16. The present case is based upon the dying declaration made by the deceased. Thus, before relying upon the dying declaration Ex.PW2/A it is to be seen whether the same is trustworthy or not and for this purpose it is to be seen whether it matches with the attending circumstances or not .
17. As per deceased she was forcefully given acid by the accused. In order to prove the allegation against the accused, the prosecution has examined PW5 Smt. Manju, the sister in law of the accused. As per prosecution case, PW5 was present on the ground floor of the house and on the date of incident, at about 12 noon, Yash, the son of the deceased had come to her and told her that her mother/deceased had consumed tezab whereupon she went to first floor and found deceased in pain and then she got her admitted in LBS Hospital. Thus, as per prosecution witness, the deceased had herself consumed the acid and this information was given to her by the son of the deceased immediately after she had FIR No.113/2011 State vs Krishan Kumar PS Gazipur 15 of 20 consumed the tezab/acid. During cross examination PW5 deposed that at the time of incident the accused was not present at home and on that day he had left the house at about 10.30am. This witness is material witness as at the time of incident, she was present at home and she got the deceased admitted in the LBS hospital and had also informed the family members of the deceased about the incident. The family members of the deceased have been examined as PW2, PW3 and PW4 and PW3 and PW4 who are the brothers of the deceased also stated that they were informed by PW5 that deceased had consumed Tezab. Thus, it is clear that PW5 is a natural witness to the incident and deposed what she was informed by the son of the deceased. This witness was neither declared a hostile witness nor was cross examined on any aspect of her deposition. If the testimony of PW5 is believed then two versions of the incident are available on record, one given by the deceased herself and another one by PW5 and therefore, under these circumstances the veracity of the statement of deceased becomes highly doubtful and thus, now same is to be tested with other relevant circumstances.
18. As per PW5, at the time of incident, the son of the deceased namely Yash was present with her mother/deceased, however, the IO neither recorded his statement nor mentioned any reason for non recording of his statement. This inaction on the part of the IO creates doubt over the prosecution case as son of the deceased was the most material witness and must have been cited as a witness to the incident as at the time of incident, he was the only person present with the deceased, thus, an adverse inference should be drawn against the prosecution that he was FIR No.113/2011 State vs Krishan Kumar PS Gazipur 16 of 20 not joined investigation and cited as witness as he would not have supported the prosecution case and would have deposed in terms of the deposition of PW5.
19. Furthermore, the dying declaration should also match with the attending circumstances. As per deceased she was forcefully given acid by her husband, if it was so, she must have made some resistance and in that process some drops of acid must spill around her body especially her face and neck and consequently there to deceased would suffer some external injury on her face and neck, however, it is clear from the MLC Ex. PW10/A that at the time of her admission in the hospital there was no external injury present over her face or other parts of the body. In his cross examination, PW9 Sh. Hukam Singh the then SDM also deposed that he recorded statement of deceased at about 4.45 pm and there was no injury mark on the face of the victim when he recorded her statement. Thus, it is clear from the medical evidence available on record that there are no signs of forceful administration of acid and all these facts and circumstances indicate that it is the case of self consumption of acid by the deceased as deposed by PW5.
20. Furthermore, it is well settled law that when the prosecution evidence is inconsistence with the medical evidence then under these circumstances, the prosecution evidence is not reliable and accused is entitled to acquittal. In the instant case also, the deceased alleged in her statement that she was forcefully given acid and in case the acid would have been forcefully given the deceased would have sufferred some injuries on her face and other party of her body, therefore, under these circumstances, FIR No.113/2011 State vs Krishan Kumar PS Gazipur 17 of 20 the statement of deceased is not reliable regarding the allegation of forceful administration of acid as the same is inconsistent with the medical evidence available on record. Thus, under these circumstances, it is to be held that the dying declaration is not trustworthy and therefore, same cannot be relied upon.
21. Besides, the allegations of Sec 302 IPC, the accused is also facing charges u/s 498A IPC. In the dying declaration deceased has also stated that the accused used to quarrel with her after consuming liquor and also used to demand motorcycle and beat her. Admittedly, the deceased had got married to the accused in the year 2005 and incident occurred in 2011 and deceased and accused remained together for about six years and during this period, no complaint was ever made either by the deceased or her family members to the police regarding dowry demand or harassment. The allegations regarding harassment and demand of motorcycle are general and vague and no particulars regarding the demand or harassment on account of demand have been specified. Furthermore, the statement of the deceased has not been found trustworthy regarding the main allegation of administration of acid, thus, under these circumstances, the allegations regarding harassment on account of demand of motorcycle cannot be relied upon especially in the absence of any complaint and as the same are without specific particulars.
22. In the case of Vipin Jaiswal Vs State of A.P. 2013(3) SCC 684 the Hon’ble Supreme Court has observed that the allegations of cruelty have to be specific. The relevant para of this judgment reads as under: FIR No.113/2011 State vs Krishan Kumar PS Gazipur 18 of 20 “In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, Indian Penal Code, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased.”
23. The allegations in the present case are not specific and lack necessary particulars, thus, same are not reliable. As per prosecution case, the accused used to demand vehicle and on that account he used to give beatings to the deceased. The allegations leveled against the accused appears to be of general nature. The complainant has no where deposed in his statemen or evidence specific date, time or any particulars of such demand of dowry. None of the public witnesses have disclosed specific date and time to when accused demanded aforesaid car and gave beatings to deceased.
24. Keeping in view of these facts and circumstances, it is held that the dying declaration made by the deceased is not trustworthy and there is no other incriminating evidence available on record regarding allegation of forceful administration of acid. Since, the dying declaration is not trustworthy thus, the allegations qua the harassment on account of demand of motorcycle also reliable especially when these allegations are not supported by any previous complaint and are without material particulars. Thus, it is held that prosecution has failed to prove the accusation against the accused FIR No.113/2011 State vs Krishan Kumar PS Gazipur 19 of 20 beyond reasonable doubt hence accused is acquitted of the charges leveled with. Acqitted accused is directed to furnish bonds u/s 437A Cr.P.C in the sum of Rs.20,000/. File be consigned to record room after compliance.
Digitally signed AJAY by AJAY GUPTA Location: Delhi GUPTA Date: 2018.08.29 16:24:26 +0530 (Ajay Gupta) ASJ02/ Special Judge(NDPS) KKD/East/Delhi Announced in open court on 29.08.2018 FIR No.113/2011 State vs Krishan Kumar PS Gazipur 20 of 20