IN THE COURT OF SH. ANIL KUMAR SISODIA : ASJ 04
EAST DISTRICT : KARKARDOOMA COURTS : DELHI
SC No. 444/2016
FIR No. 205/2009
P.S. Geeta Colony
U/S : 498 A/323/302/34 IPC
State
Vs.
1. Sanjay Kumar
S/o Shri Ram Kishan,
R/o H.No. 240 A, Gali No. 3,
New Lahore Shastri Nagar, Delhi.
2. Vinod Kumar
S/o Shri Ram Kishan,
R/o H.No. 240 A, Gali No. 3,
New Lahore Shastri Nagar, Delhi.
3. Smt. Urmila
S/o Shri Ram Kishan,
R/o H.No. 240 A, Gali No. 3,
New Lahore Shastri Nagar, Delhi.
4. Govind @ Govinda
S/o Shri Ram Kishan,
R/o Village Khera, PS Pilakhwa,
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 1 of 60
Distt. Ghaziabad, U.P
& H.No. 240 A, Gali No. 3,
New Lahore Shastri Nagar, Delhi.
5. Ram Kishan
s/o Late Sh. Jagram,
R/o H.No. 240 A, First Floor,
Gali No. 3, New Lahore Shastri Nagar,
Delhi. .....Accused
Date of registration of FIR : 21.08.2009
Date of institution of the case : 10.12.2009
Date of reserving order : 07.06.2018
Date of pronouncement : 10.07.2018
APPEARANCES:
Sh. Ajit Kumar Srivastava, Addl. PP for the State.
Sh. V.K. Singh, Advocate for accused nos. 1 to 3.
Sh. R.K. Jain, Advocate for accused nos. 4 & 5
JUDGMENT
Case of Prosecution
1. The case as set out by the prosecution is that on 21.08.2009 on receipt of information regarding quarrel and burning of a woman at police station Geeta Colony vide DD No. 44B, 45B and 46B, SI Maha Singh reached SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 2 of 60 House no. 240, Gali No. 3, New Lahore Sahstri Nagar, Delhi with HC Shri Bhagwan and found that Smt. Lata in burnt condition and her brothers, husband and brothersin law in injured condition were taken to hospital by PCR van and the place of occurrence was found locked. He reached SDN hospital and came to know that Lata had been shifted to GTB Hospital. SI Maha Singh left HC Shri Bhagwan at SDN Hospital and went to GTB Hospital where Smt Lata was found under treatment. He recorded the statement of Smt. Lata who gave her statement that she was married to accused Sanjay on 25.02.2001 according to Hindu rites and ceremony. At the time of marriage, her parents had given sufficient dowry as per their capacity. Her husband was in private job but was unemployed for last three months. Her inlaws had started harassing her after two years of the marriage as she was unable to give birth to a child. Smt. Urmila, motherinlaw of Lata used to ask her to bring money from her house and was keeping her separately from her husband. Two days prior to the incident Smt. Urmila and Sanjay asked her to bring Rs. 4 lacs if she wanted to live in her matrimonial house. Smt.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 3 of 60 Lata refused and her inlaws were harassing and beating her since morning of 21.08.2009. At about 05.00 PM she informed her brothers about the incident on telephone and asked them to come to her house. However, before they could come, her brothersinlaw Vinod and Govinda caught hold of her when she was sitting in the chowk at about 06.30 PM and her motherinlaw poured kerosene oil on her from a plastic bottle and her husband lighted matchstick and set her on fire. Her father in law who was also present at the spot instigated other family members to burn her and they also gave beatings to her brothers when they reached her house. On the statement of Smt. Lata, FIR was registered against the accused persons under Section 498 A/307 IPC. Smt. Lata expired in the hospital on 27.08.2009 and Section 302 IPC was added. During investigation, accused Sanjay, Urmila, Govind @ Govinda and Vinod were arrested. Coaccused Ram Kishan was arrested on 11.02.2010 and supplementary chargesheet was filed against him.
2. Charge sheet was filed against accused persons after SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 4 of 60 completion of investigation and case was committed to the court of Sessions after compliance of provisions of Section 207 Cr.P.C.
Charge framed against the accused.
3. On 11.01.2011 Ld. Predecessor of this court, after hearing the arguments, framed charges u/s 498 A/302/34IPC against all the accused persons. Separate charge u/s 323/34 IPC was also framed against accused Vinod Kumar and Govind @ Govinda. The accused persons pleaded not guilty to the charges framed against them and claimed trial.
Witnesses examined by prosecution
4. Prosecution examined 25 witnesses in all to prove its case. The brief summary of the deposition of Prosecution Witnesses is as under: (I) PW1 Asharfi Devi is the mother of the deceased. She testified that deceased Lata was her daughter and she SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 5 of 60 was married to accused Sanjay on 25.02.2001 according to Hindu rites & customs. Lata was living peacefully with her husband but after two years of marriage she was harassed and beaten by the accused persons as she could not give birth to a child and and she was not provided food in her matrimonial home. The accused persons were demanding money from her and the said demand was fulfilled many times by her. PW1 further testified that she had given sufficient dowry to the accused persons at the time of marriage of her daughter. She has also testified that her daughter used to telephonically inform her about the beatings given by her husband as well as her motherin law. She was not provided proper food and even tea. Her daughter had to take private tuitions to maintain herself. PW1 also testified that lastly, they found the dead body of her daughter in burnt condition in the hospital as she was killed by the accused persons. Her daughter Lata had telephonically informed her that she was being beaten by the accused persons and PW1 had sent her sons Kalu Ram and Bakshi Ram to matrimonial home of Lata but they were not allowed to go upstairs and were also beaten by SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 6 of 60 the accused persons.
(ii) PW2 Bakshi Ram is the brother of deceased. He testified that his sister Lata got married to accused Sanjay and at the time of marriage he had spent Rs. 9 to 10 lacs and had also given 19 tola of gold jewellary. Accused persons started harassing his sister for dowry after two years of marriage. He had gone many times to the house of the accused persons to resolve the dispute and accused persons agreed to mend their ways but again started harassing his sister. He further testified that his sister was also harassed for not giving birth to a child and she was burnt to death on 21.08.2009. He also testified that on 21.08.2009 at about 05.00/05.30 PM his sister had called up and informed him that she was being harassed by accused persons since morning and PW2 along with his brother Kalu Ram had gone to their sister’s house. They saw their sister under flames and when they tried to go upstairs, they were beaten by accused Govinda, Vinod and Sanjay and they sustained injuries. He has further testified that he made call to PCR and thereafter police reached SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 7 of 60 there and took them and their sister to hospital in PCR van and on the way to the hospital, his sister informed that she was burnt by accused persons and there was a demand of Rs. 4 lacs from her. Lata also informed him that accused Sanjay wanted to remarry. This witness also identified the dead body of deceased Lata and proved the identification statement Ex. PW2/B and inquest proceedings as Ex.PW2/C. He also proved his signature on the request for postmortem Ex. PW2/A.
(iii) PW3 HC Suresh Chandra is the Duty Officer, who has proved the FIR as Ex.PW3/B and endorsement on the rukka as Ex. PW3/A.
(iv) PW4 Ct. Rameshwar is the DD Writer, who has proved the DD no. 44B, DD no. 45B & DD No. 46B as Ex. PW4/A to Ex.PW4/C.
(v) PW5 Dr. Devender Kumar has appeared on behalf of Dr. Virat and proved MLC of deceased Lata as Ex.PW5/A.
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(vi) PW6 ACP Niyam Pal Singh was the then SHO PS Geeta Colony and he has testified that on 21.08.2009 DD No. 44 B and other DDs regarding the incident were marked to SI Maha Singh. On 27.08.2009, Lata had expired and Section 302 IPC was added in the FIR. On 05.09.2009 he got the remand of accused Sanjay and Vinod extended. MLCs of accused Sanjay and witness Bakshi Ram were deposited by him on 07.09.2009 for obtaining the opinion and on 11.09.2009 further investigation was marked to Inspector Rohtash.
(vii) PW7 ASI Harbir Singh was Incharge of PCR Van R17. He testified that on 21.08.2009 at about 06.30 PM on receipt of information from the control room, he had reached the spot and had taken deceased Lata to SDM Hospital and from there she was shifted to GTB Hospital as it was a case of burn injury. He further testified that on the way to hospital, deceased Lata had informed him that her motherinlaw Urmila had burnt her and she also expressed apprehension that her motherinlaw will throw out her SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 9 of 60 belongings from her room.
(viii) PW8 Retd. ASI Raj Kumar was on duty on PCR Van R15 on 21.08.2009. He had reached the spot at about 06.30 PM on receipt of information from control room regarding quarrel and another information regarding burning of a lady. He found many persons at the spot and also heard noise of weeping from second floor of the house and he asked all the persons to come down. In the meanwhile 56 persons came down and on inquiry they told that their sister was burnt and they were also beaten. He took four injured persons to SDN hospital where they were medically treated.
(ix) PW9 Sh. Anil Kumar is a neighbour of the accused persons. He testified that on 21.08.2009 he was present in his house and at about 06/06.15 PM he heard noise from his adjacent house and he came down and saw 34 persons were coming out of the house of accused Sanjay. He also saw Lata coming down from the stairs, escorted by accused Sanjay and she was in somewhat burnt condition SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 10 of 60 and she was saying “Mujhse galti ho gai hai mujhe bacha lo” One PCR van took accused Sanjay, Vinod and Lata from the spot. He also testified that he never heard about any quarrel between accused Sanjay and his wife.
(x) PW10 Ct. Manoj Kumar is the photographer, who was the member of the Crime Team and he reached the scene of crime alongwith the Incharge and on the instructions of Incharge Crime Team, he took photographs of crime scene. He proved the photographs as Ex. PW10/A1 to A9 and negatives as Ex. PW10/B1 to B9.
(xi) PW11 Sunil was a tenant in the house of the accused persons. He has testified that on 21.08.2009 at about 06.30 PM he was present in his room on the ground floor when he heard alarm of “bachao bachao” on which he found 45 persons were beating accused Sanjay and Vinod on the first floor of the house and when persons public persons collected, they fled away. He also came to know that fire had taken place on the second floor. In the meanwhile police reached the spot and the police officials SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 11 of 60 brought Lata from the second floor in a burnt condition and she was crying “bacha lo bacha lo galti ho gai mujhse”.
(xii) PW12 Retd. SI Maha Singh is the first IO of the case. He had initially investigated the case. He has testified that he along with HC Sri Bhagwan reached the spot i.e matrimonial house of deceased Lata on receipt of DD no. 44B, 45B and 46B. He came to know that injured had been removed to the hospital by PCR. The second floor was found locked. He informed to the SHO who came to the spot and thereafter reached SDN Hospital where accused Sanjay, Vinod, Bakshi and Kalu Ram were found admitted. Thereafter he went to GTB Hospital, collected the MLC of Lata and recorded her statement Ex. PW12/A and came back to SDN Hospital and collected the MLCs of injured persons. He prepared the rukka Ex. PW12/B and got the FIR registered through HC Shri Bhagwan. Thereafter, he again visited the spot but house was found locked and he came back to police station. On 22.08.2009, he called the crime team and got the site photographed and also seized the burnt pieces of clothes SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 12 of 60 and broken pieces of bangles of deceased Lata and prepared rough site plan. On the same day in evening, he again went to the spot and found accused Sanjay and Vinod and they were arrested after interrogation. On 23.08.2009 he recorded the statements of Kalu Ram and Bakshi Ram in the police station. On 24.08.2009 he arrested accused Urmila from the spot. Accused Urmila also handed over one mobile phone of the victim Lata which was seized by him. He has further testified that on 27.08.2009 he received information from GTB Hospital regarding the death of Lata and he reached the hospital and got the body preserved for postmortem. On 28.08.2009 he reached Mortuary and prepared inquest papers and the postmortem was got conducted. After postmortem doctor handed over one sealed envelop containing hairs of the deceased which were seized by him. On 15.09.2009 he went to the spot with Inspector Rohtash Kumar who arrested the accused Govind @ Govinda. The witness also identified the case property i.e burnt clothes of the victim, broken pieces of bangles and the mobile phone of the deceased Lata.
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(xiii) PW13 Sh. Kalu Ram is also brother of deceased Lata. He has testified on the lines of deposition of PW2 Bakshi Ram and has corroborated the version of PW2 on material aspects.
(xiv) PW14 ASI Shri Bhagwan was on emergency duty on 21.08.2009 and he had accompanied PW12 SI Maha Singh to the spot and the house of second floor was lying locked and goods of first floor were lying scattered. They came to know that injured have been taken to hospital. He along with PW12 reached SDN Hospital where accused Sanjay, Vinod, Bakshi and Kalu Ram were found under treatment and Lata had been shifted to GTB Hospital. PW12 deputed him at SDN hospital and went to GTB Hospital. Thereafter, PW12 returned back and got the FIR registered through him. On 22.08.2009 he again went to the spot with PW12 and crime team was called. Crime Team inspected the spot, the photographs were taken, pieces of burnt clothes having smell of kerosene and broken pieces of bangles were kept in sealed parcels. The SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 14 of 60 sealed parcels were taken into possession by PW12. The accused persons Sanjay and Vinod were arrested and their personal search were conducted. The witness also identified the burnt pieces of clothes and broken bangles in the court.
(xv) PW15 Somvir Singh identified the dead body of Lata in Mortuary of GTB Hospital.
(xvi) PW16 Inspector Rajesh Sinha is the Incharge of the Crime Mobile Team, who visited the scene of crime on receiving message alongwith the photographer Ct. Manoj and other members of Crime Team. He proved his scene of crime report as Ex. PW16/A.
(xvii) PW17 HC Mohd. Iftekhar was the MHC(M) at PS Geeta Colony at the relevant period. He has proved the relevant entries in Register No. 19 as Ex. PW17/A to PW17/D. He has proved the RC no. 51/21 for depositing the exhibits as Ex. PW17/E and the copy of the receipts of deposits of exhibits with FSL has also been proved as SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 15 of 60 Ex.PW17/F.
(xviii) PW18 Dr. Anil Kohli has proved the postmortem report of deceased Lata prepared by Dr. Vivek Srivastava as Ex.PW18/A. He has testified that on external examination, she had antemortem superficial to deep flame burns present over head, neck, chest, abdomen, right thigh and upper back. The burnt area were foul smelling and covered with yellowish green pus and unhealthy granulation tissues. The burnt area involved about 45% of the total body surface. He further testified that on internal examination the organs were congested. Stomach was empty. Scalp hair were preserved under the seal of VS for detection of inflammable substance. The time since death in this case was given as about ¾ of a day. The cause of death was Toxaemia as a result of ante mortem infected flame burns involving about 45% of total body surface area.
(xix) PW19 Nazim is the neighbour of the accused. He testified that he had seen the police taking Lata in a serious SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 16 of 60 condition. He further testified that the relations between accused Sanjay and Lata was normal. On cross examination by Ld. Addl. PP, he stated that the date of incident was 21.08.2009. He also admitted that a quarrel was going on second floor of the house and police came after some time. He also admitted that Lata came down in a burnt condition and a PCR Van took her to hospital.
(xx) PW20 Mrs. Manisha was a tenant in the house of accused persons at the time of incident. She has testified that she was present in the house on 21.08.2009. At about 06.30 PM, brother of deceased Lata along with 34 persons came there who were under the influence of liquor and were having dandas in their hands and had threatened accused Sanjay and his family members and had gone upstairs at first floor. After five minute, Sanjay and Vinod came from outside and they were in stairs when the brothers of Lata and threefour persons started beating Sanjay and Vinod. On hearing the noise, she came under the jaal and saw Lata standing on the second floor of the house and she put herself on fire by lightening matchsticks SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 17 of 60 and after hearing the noise the public persons gathered and thereafter the brothers of Lata along with 34 persons started running here and there and had fled away. Thereafter, 67 police officials came and they brought Lata and accused Sanjay from the second floor and took them somewhere. This witness was cross examined by the Ld. Addl. PP and she denied the statement given to the police. She also denied that there used to be quarrel between Lata and her inlaws. She also denied that as she was on the ground floor, she could not see how Lata was burnt.
(xxi) PW21 Dr. Anil Saini has appeared on behalf of Dr. Manoj and proved the MLC of Bakshi Ram and Kalu Ram as Ex. PW21/A and Ex. PW21/B.
(xxii) PW22 Ct. Satpal had deposited the sealed parcels with FSL and had handed over the acknowledgment of deposit to the MHC (M).
(xxiii) PW23 W/Ct. Sonia Malik joined the investigation with PW12 and was a witness of arrest of accused Urmila.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 18 of 60 She has proved the arrest memo, personal search memo and disclosure statement of accused Urmila as Ex.PW12/L to Ex. PW12/N.
(xxiv) PW24 ASI Ram Narayan is also a witness of arrest of accused Urmila. He further joined the investigation with IO on 28.08.2009 and went to Mortuary of GTB Hospital where postmortem of deceased was conducted and thereafter, dead body of deceased Lata was handed over to her relatives. He further testified that after the postmortem, doctor handed over one parcel to the IO which was seized by IO vide seizure memo Ex. PW12/R and he had signed the same as a witness.
(xxv) PW25 ASI Satbir Singh was DD writer and has proved DD no. 34 B regarding death of deceased Lata as Ex. PW25/A.
Thereafter prosecution closed its evidence.
5. On 05.03.2018 Counsels for the accused persons SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 19 of 60 admitted the arrest memo and personal search memo of accused Ram Kishan and FSL result. Accordingly, the arrest memo was exhibited as Ex. C1, personal search memo was exhibited as Ex. C2 and FSL result was exhibited as Ex. C3.
Statement and Defence of accused
6. Statements of the accused persons were recorded u/s 313 Cr.P.C. and the stand of accused persons was of general denial. Accused persons claimed that on the day of incident some heated arguments had taken place between deceased Lata and Sanjay on the issue of keeping tenant on the second floor and Lata informed her brothers who came along with some other persons in drunken condition and gave beatings to accused Sanjay and Vinod. On seeing that the accused persons had sustained injuries, Lata set herself on fire to save her brothers from being implicated in any criminal case. Accused Govind and Ram Kishan also took a plea that they were not present at their house at the time of incident.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 20 of 60 Accused Ram Kishan preferred to lead evidence in his defence whereas other accused did not chose to give any evidence in their defence.
7. Accused Ram Kishan examined DW1 Pappu in his defence who has deposed that on 21.08.2009 accused Ram Kishan was present in village for his agricultural purpose and on receipt of telephone call from Delhi that wife of accused Sanjay had burnt herself, the accused Ram Kishan returned to Delhi on next morning as there is no transport facility available in the village during night time.
Thereafter accused closed evidence in defence.
Arguments and conclusion
8. Arguments have been addressed by Ld. Addl. PP for the State, Ld. Counsel for the complainant and by Ld. counsels for the accused persons.
9. Ld. Addl.P.P. for the State has argued that there is sufficient evidence on record to hold accused persons SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 21 of 60 guilty of charges. It has been argued that the identity of accused persons is not in dispute and deceased Lata had categorically mentioned the names and roles of accused persons in her dying declaration Ex.PW12/A and there is no reason to believe that she would falsely implicate accused persons, leaving behind the real culprits. It was argued that even PW1, mother of the deceased, PW2 and PW13 i.e. the brothers of deceased Lata have categorically deposed against accused persons. The presence of PW2 and PW13 at the spot at the time of incident has not been disputed by the accused persons and even the MLCs of PW2 and PW13 show that they were injured at the spot when they tried to save their deceased sister. The guilt of the accused persons also stands proved by the statements of PW7 and PW8, the officials of the PCR Van who had reached the spot and had taken the deceased and the injured to the hospital. The presence of burnt clothes and broken bangles at the scene of crime corroborates the version given by the deceased in her dying declaration.
10. Ld. Counsel for the complainant has also argued on SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 22 of 60 the lines of Ld. Addl. PP for the State and has submitted that initially the case was registered u/s 498A/307/34 IPC, but after death of Lata, Section 302 IPC was added and chargesheet was filed u/s 498A/302/323/34 IPC. The charges u/s 498A/302/34 IPC were framed against all the accused persons and charges u/s 323/34 IPC were framed against accused Vinod Kumar and Govind @ Govinda. It was argued that deceased was murdered by the accused persons in a pre planned manner. It was argued that there were three reasons for murder, (1) as deceased was unable to give birth to a child, (2) the deceased was unable to bring money demanded by the accused persons and (3) the husband of the deceased wanted to remarry. It was argued that both the brothers of deceased had gone to the matrimonial home of deceased on receipt of telephonic information on motorcycle. It is further argued that the deceased made a dying declaration recorded by the IO in which she had named all the accused persons and the same is corroborated by PCR officials. It was argued that all public witnesses have corroborated each other. The accused persons in cross examination of the public SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 23 of 60 witnesses have given contradictory suggestions. The presence of brothers of deceased at the spot is also established by PW8 and they had told him that their sister was burnt by the accused persons. It is further argued that accused Govinda had taken a plea of alibi in his statement u/s 313 Cr.P.C but no witness in his defence has been examined by him. It is also argued that accused Ram Kishan in his statement u/s 313 Cr.P.C has stated that he reached Delhi after two days of the incident but he has also failed to bring any credible witness to prove the plea of alibi. It was argued that all the accused persons are liable to be held guilty for the charges framed against them.
11. Sh. V.K. Singh, Ld. Counsel for accused Sanjay, Ram Kishan and Urmila has argued that deceased had died after nine years of marriage and there was no complaint against the accused persons either by the deceased or her brothers/mother for dowry demand. It was argued that deceased was living separately on the second floor of the house with her husband.
He has further argued that the FSL result shows that SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 24 of 60 no kerosene oil was found in the clothes, bangles or hairs of the deceased which raises a doubt about the version given by the deceased that she was burnt by her inlaws after pouring kerosene oil on her. It was also argued that the dying declaration made by deceased is also unreliable. IO did not summon the SDM/Executive Magistrate or any other higher officer before recording her statement even though the deceased expired on 27.08.2009 i.e after six days of the incident and there was sufficient time with the IO to get her statement recorded through SDM/Executive Magistrate. It was also argued that in her complaint, deceased alleged that she was being beaten since morning but no injury mark were found by the doctor at the time of preparing of MLC. It was also argued that the deceased made three dying declaration but all of them are inconsistent. As per PW9 and PW11, deceased stated that “mujhse galati ho gai mujhe bacha lo” whereas PW7 has testified that the deceased told him “meri saas ne mujhe jala diya hai, kahi wo mera samaan na nikal de” but in her complaint/dying declaration Ex. PW12/A she had mentioned the role of each accused in burning her SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 25 of 60 which amounts to material improvement. It was also argued that the statement Ex. PW12/A was not endorsed by the doctor that the deceased was fit for making the statement. It has also been argued that mother of the deceased (PW1) was also present at the time time of recording of statement of the deceased and therefore, the possibility of deceased being tutored by her mother cannot be ruled out. It is also argued that PW20 Manisha in her statement has categorically deposed that she had seen the deceased burning herself which establishes that the deceased had attempted to commit suicide to save her brothers who had attacked and injured the accused persons namely Vinod and Sanjay. It was also argued that the cause of death in the presence case was Toxemia. Ld. Counsel for the accused persons also relied upon the following judgments in support of his arguments:
(i). Budh Ram @ Pappu & Ors. Vs State, 2010 (3) JCC 2343
(ii) Raja Ram Vs State of NCT of Delhi, 2013 (1) JCC 41
(iii) Rupinder Kaur Vs State & Anr., 2016 [2] JCC 790
(iv) Manmohan Singh Vs The State (G.N.C.T. of Delhi), 2012 [2] JCC 1350
(v) State Vs Sudesh Gulati & Ors., 2015 (3) LRC 308 (Del) (DB)
(vi) Rehmat Vs State of Haryana, Criminal Appeal No. 178179 of 1989, date of decision 03.09.1996 of Hon’ble Supreme Court.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 26 of 60
(vii) Ahmed Sayeed Vs State, 2014 (1) LRC 378 Del
(viii) Tomaso Bruno Vs State of U.P, 2015 (1) Crimes 105 (SC)
(ix) Tarun @ Gautam Mukherjee VS State of West Bengal, 2000 (4) Crimes 260 (SC)
(x) Prabhash Sharma & Anr.Vs State, 2013(1)C.C.Cases (HC)
86.
12. Sh. R.K. Jain, Ld. Counsel for accused Vinod and Govinda has also argued on the lines of the arguments advanced by Sh. V.K. Singh. He has further argued that the role of the accused persons as per the complaint Ex. PW12/A is that they had caught hold of the deceased when she was burnt by the accused persons. It was argued that there are material contradictions and improvements in the testimony of PW1, PW2 and PW13. PW1 Asharfi Devi does not talk about the demand of Rs. 4 lacs allegedly made by the accused persons. It was argued that the relations between the parties were good till 2008 and there was no complaint filed by the deceased or her parents regarding the demand of dowry by the accused persons. It was argued that the brothers of deceased also attended the marriage of accused Vinod. The incident took place in the year 2009 and deceased and her husband were living separately from the other accused persons. It was argued SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 27 of 60 that the allegations of demand of dowry were vague and baseless. The prosecution has failed to explain the injuries sustained by the accused persons. There are no allegations of dowry demand by the witnesses and therefore, no case u/s 498A IPC was made out against the accused persons. It was also argued that the IO failed to recover any plastic cane or bottle containing the kerosene oil from the spot and even the FSL result rules out the presence of kerosene oil in the clothes, bangles and hairs of deceased which creates a strong doubt on the prosecution story. It was argued that the prosecution has failed to prove its case beyond reasonable doubts and hence accused persons are entitled for acquittal. He has also relied on the following judgments in support of his arguments:
(i) Dandu Lakshmi Reddy Vs State of A.P.1999[2] JCC [SC] 420.
(ii)Narain Singh & Anr. Vs State of Haryana , 2004 [1] JCC 461.
(iii) Ramsai & Ors. Vs State of M.P.1994 CRI.L.J.138
(iv)Smt. Kamla Vs State of Punjab, 1993 CRI. L.J. 68.
(v) Pashupati Nath Shah Vs State, 2018 SCC OnLine Del 8192
13. I have heard ld. Counsels for the accused persons and ld. Addl. P.P. for the State and have perused the SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 28 of 60 record carefully including the judgments relied by them.
Charges under Section 498A/34 IPC
14. Firstly, I shall deal with the charge u/s 498A/34 IPC against the accused persons.
15. The prosecution has relied upon the testimonies of PW1 Smt. Asharfi Devi, PW2 Sh. Bakshi Ram and PW13 Sh. Kalu Ram to prove the charges u/s 498A/34 IPC against the accused persons.
16. In her statement Ex. PW12/A deceased Lata stated that she got married with accused Sanjay on 25.02.2001 as per Hindu rites and customs and her father had given sufficient dowry at the time of her marriage. Her inlaws started harassing her after two years of marriage as she could not conceive. She further stated that her motherin law Urmila did not allow her husband to take up a job and used to say that she (Lata) should bring money from her house. Two days prior to the incident, motherinlaw and husband of deceased told her to bring rupees four lakhs SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 29 of 60 and when she declined, they started harassing and beating her. She further stated that she was burnt by her inlaws as she was unable to conceive, she could not bring money from her parents and her husband wanted to remarry. Apart from this, there are no averments regarding any dowry demand in the statement Ex. PW12/A.
17. PW1 Smt. Asharfi Devi is the mother of deceased Lata and she has testified that her daughter was living peacefully with accused Sanjay but after two years of marriage she was harassed and beaten by the accused persons as she could not produce any child and she was not provided food in her matrimonial house and she had to take tuitions to maintain herself. It was also stated that the accused persons were demanding money from her and the said demand was fulfilled by her many times. At the time of her marriage, she had given sufficient dowry to the accused persons. PW1 was crossexamined by ld. Addl.P.P. for the State and in her crossexamination she admitted that her daughter was being harassed for demand of dowry and she was burnt on 21.08.2009.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 30 of 60
18. PW2 Bakshi Ram is brother of deceased Lata and he has testified that after two years of marriage, the accused persons started harassing his sister for demanding dowry. He testified that he spent rupees nine to ten lakhs in her marriage and had also given her 19 Tolas of gold jewellery. Many a times they had gone to the matrimonial home of his sister to solve the matter. He also testified that his sister had called him up on 21.08.2009 on telephone at 05.00/05.30 pm and informed that she was being harassed and beaten by the accused persons.
19. PW13 Kalu Ram is another brother of the deceased Lata and he has testified that after two years of marriage of his sister Lata, accused persons started beating her on account of dowry demand. Another cause for beating was that she was not able to bear the child. He has also testified that on 21.08.2009 his brother Bakshi Ram informed him about the telephonic call received from their sister and they went to the matrimonial house of their sister. He also testified that their sister informed him that SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 31 of 60 she was burnt by accused persons because of non payment of money.
20. Apart from the aforesaid family members of deceased Lata, prosecution has also examined some neighbours and a tenant of the accused persons. However, none of these witnesses have admitted that there used to be quarrel between the deceased and the accused persons for dowry demands or any other issue.
21. PW9 Anil Kumar, who is the neighbour of accused persons, in his crossexamination has testified that during the period of 1012 years of their (accused persons) residence in the area and he never heard any quarrel or dispute between the family members of Ram Kishan or with any neighbour.
22. PW11 Sunil, who was tenant of the accused persons, has also deposed in his crossexamination he had not seen or heard any quarrel between Sanjay and Lata.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 32 of 60
23. PW19 Nazim, who is neighbour of accused persons and he testified that relations between accused Sanjay and his wife were normal. When crossexamined by ld. Addl.P.P. for the State, he denied the suggestion that there used to be quarrel at the house of the accused since last many years or he had stated so.
24. PW20 Manisha was also tenant in the house of accused persons at the time of incident and in her cross examination by ld. Addl.P.P. she had denied the suggestion that there used to be quarrel between deceased Lata and her inlaws. She also denied the suggestion that accused persons used to harass Lata and due to same there used to be quarrel in her house often.
25. Apart from the testimonies of the aforesaid witnesses, there is no other oral or documentary evidence produced by the prosecution to prove the fact that accused persons demanded dowry or that deceased Lata was harassed for nonfulfillment of dowry demands.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 33 of 60
26. From the bare perusal of aforesaid statements, it is clear that the allegations regarding demand of dowry are vague, unspecific and uncertain. No specific date has been mentioned as to when any specific dowry article was demanded by accused persons from deceased Lata or her family members. PW1, PW2 and PW13 have admitted that deceased Lata was kept well by the accused persons for two years after her marriage but thereafter she was ill treated. Admittedly, neither deceased Smt. Lata nor her mother and brothers had filed any complaint whatsoever against the accused persons prior to the incident dated 21.08.2009 that she was being illtreated or harassed for the demand of dowry. Although deceased Lata in her complaint Ex. PW12/A has mentioned about the demand of rupees four lakhs by the accused persons but her mother and brothers have not testified about this demand of the accused persons or the fact that deceased Lata was tortured for nonfulfillment of the aforesaid demand of rupees four lakhs.
27. The testimonies of PW1, PW2 and PW13 are vague SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 34 of 60 in nature and bereft of specific instances and specific dates on which the accused persons had demanded dowry or the deceased was meted out with cruelty for dowry demands.
Hence, in my considered opinion the prosecution has failed to prove the charges u/s 498A/34 IPC against all the accused persons.
Charges under Section 302/34 IPC
28. Now I shall deal with the charges u/s 302/34 IPC against the accused persons. As per the case of prosecution, deceased Lata was burnt by her inlaws on 21.08.2009. Accused Vinod and Govinda had caught hold of deceased Lata, accused Urmila had poured kerosene oil on her and accused Sanjay had lighted the matchstick and set her on fire. Accused Ram Kishan had instigated the other coaccused to burn deceased Lata and he will take care of other things.
On the other hand, accused persons in their statements recorded u/s 313 Cr.P.C have taken a defence that some heated arguments had taken place between SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 35 of 60 accused Sanjay and his wife Lata on the issue of keeping tenant on the second floor. Accused Sanjay was opposing the same and Lata had informed her brothers who came along with some other persons in drunken condition and gave beatings to the accused Sanjay and his brothers. On seeing that Sanjay and his brothers had sustained serious injuries, Lata immolated herself to save her brothers. Accused Ram Kishan and Govinda took a defence that they were not present at the spot when the incident took place.
29. On the perusal of the record, it transpires that there is no eye witness to establish the charge u/s 302 r/w Section 34 IPC against accused persons. Case of the prosecution as regards this charge is primarily based upon the purported dying declaration of deceased Lata made in the presence of PW12 SI (Retd.) Maha Singh. It has been argued that the dying declaration of deceased clearly establishes the charge of murder against accused persons. Deceased had specifically given the reasons as well as the roles of accused persons in burning her. Ld. Defence SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 36 of 60 counsels, on the other hand have strongly assailed the dying declaration and have submitted that the same is unreliable and cannot be acted upon. It was argued by the counsels for the accused persons that there are three versions given by the deceased as under: Firstly, when the deceased came down from the second floor, she stated that “mujhse galati ho gai mujhe bacha lo” in the presence of PW9 and PW11.
Secondly, when deceased was being taken to hospital in the PCR Van, she told PW7 “meri saas ne mujhe jala diya hai, kahi wo mera samaan na nikal de”. Thirdly, the complaint/dying declaration Ex. PW12/A wherein she has stated that she was caught hold by accused Govinda and Vinod and her motherinlaw Urmila poured kerosene oil on her and her husband set her on fire. Her father in law Ram Kishan instigated the coaccused to burn her.
It was argued that the aforesaid three dying declaration would show that deceased had made material improvements in each of her subsequent dying declaration which make them untruthful and unreliable. From the SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 37 of 60 perusal of first dying declaration, an impression is gathered that deceased had burnt herself whereas in the second dying declaration she blamed her motherinlaw Urmila for burning her and in the third dying declaration she implicated all the family members including accused Govind and Ram Kishan who were not even present at the spot at the time of incident.
30. It is well settled that dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering what weight is to be given to dying declaration, in as much as there could be any number of circumstances which may affect the truth. The courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the court to find that the deceased was in a fit state of mind to make the dying declaration.
It is not difficult to appreciate why dying declaration was admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. Nobody, it SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 38 of 60 has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be last to give untruth as he stand before his creator.
The Court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to Court, which on assessment of the circumstances and the evidence and material on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by signed or by gesture.
31. In Paniben Vs State of Gujarat, (1992) 2 SCC 474 the Hon’ble Supreme Court summarized the legal principles governing dying declaration as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja Vs State of M.P., (1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. V. Ram Sagar Yadav, SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 39 of 60 (1985) 1 SCC 552 and Ramawati Devi V. State of Bihar, (1983) 1 SCC 211).
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy V. Punjab Prosecutor, (1976) 3 SCC
618).
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. , (1974) 4 SCC 264).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC 25).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P., (1981) 2 SCC 654).
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 40 of 60 State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455).
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. ( See Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769).
(ix)Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration took up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P., 1988 Supp SCC 152).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, (1989) 3 SCC 390).
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be trustworthy and reliable, it has to be accepted.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 41 of 60 (See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700).
32. In Tapinder Singh Vs State of Punjab [1971 (1) SCR 599] this Court, by following an earlier decision in Kushal Rao Vs State of Bombay (1958) SCR 582) has reminded the Courts that a dying declaration should be subjected to very close scrutiny. Following observations were also made by this Court:
“The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Sec. 32 (1) of the Indian Evidence Act in a case in which the cause of that person’s death comes into question. It is true tht a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by crossexamination on behalf of the accused.
But a dying declaration is admitted in evidence SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 42 of 60 by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court on its guard while testing its reliability, imposing on it on obligation to closely scrutinise all the relevant attendant circumstances.”
33. As noted above, in the present case, the deceased had given three versions of the incident. The first version given by her leads to an inference that she had burnt herself whereas the second and third versions given by her raises a contrary inference that she was burnt by her in laws. In the second version, she has only named her mother in law as a culprit whereas in the third version she has implicated all the accused persons. Thus, there are material improvements in the three versions given by her which make her dying declarations suspectful. Hence, the same requires close scrutiny.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 43 of 60
34. Perusal of the events shows that apart from what she had stated before PW7 ASI Harbir Singh and PW9 Anil Kumar and PW11 Sunil, deceased Lata had the opportunity to inform the doctors about the reasons of her burn injuries in SDN Hospital well as GTB Hospital but she did not inform the doctors about it. PW7 ASI Harbir Singh in his cross examination has testified that the deceased did not inform the doctors at SDN Hospital or GTB Hospital regarding the incident as to how she had received the burn injuries. The statement of PW7 stands corroborated by MLC of deceased Lata Ex. PW5/A which does not disclose the names of culprits. Non disclosure of the names of culprits/offenders at the first available opportunity by deceased Lata raises serious doubt that dying declaration Ex.PW12/A implicating all accused might be a result of tutoring or prompting.
35. Further, PW12 SI Maha Singh has not recorded the dying declaration in accordance with the procedure for recording dying declaration as provided under Delhi High Court Rules. Delhi High Court Rules, Volume III Chapter SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 44 of 60 13 A deals with the procedure recording dying declaration. Rule 3 of this chapter provides that before proceedings to record the dying declaration the Magistrate shall satisfy himself that the declarant is in fit condition to make a statement and if the medical officer is present or his presence can be secured without loss of time, his certificate as to the fitness of declarant to make statement should be obtained.
36. In the present case, PW12 SI Maha Singh did not obtain any certificate or endorsement from the doctor that deceased was fit for giving statement when her statement was being recorded. In his testimony PW12 SI Maha Singh has deposed that on the MLC of deceased Lata (Ex. PW5/A) doctor had opined under observation, burns 55% and fit for statement. However, the IO did not bother to take the endorsement of the doctor on the dying declaration Ex. PW12/A, even though the statement was recorded in the emergency ward of the hospital and doctor was available outside the emergency ward nor he called the doctor at the time of recording of her statement. In SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 45 of 60 such circumstances, the dying declaration Ex. PW12/A is liable to be discarded in view of the judgment in Mohar Singh and Ors. Etc. Vs State of Punjab: 1981 CriLJ 998 where the dying declaration was recorded by the investigating officer. The Court excluded the same from consideration for failure of the investigation officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present.
37. PW12 SI Maha Singh also testified that he had recorded the statement of deceased as per the directions of Addl. SHO and in his presence but even the endorsement of Addl. SHO Inspector Rohtash was not obtained on the dying declaration. No explanation has been given as to why endorsement of Senior officer i.e Addl. SHO was not obtained when dying declaration was recorded in his presence which again creates doubt regarding the manner in which dying declaration Ex.PW12/A was recorded.
SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 46 of 60
38. It is further important to note that deceased was admitted in the hospital on the night of 21.08.2009 and she expired on 27.08.2009 i.e after about six days. There was sufficient time and opportunity with PW12 to get her statement recorded by SDM or Judicial Magistrate but no steps were taken to summon the SDM or Judicial Magistrate for recording statement of the deceased. In fact PW12 did not visit the hospital after 21.08.2009 till 26.08.2009 as is revealed from his cross examination. There is no satisfactory explanation given by PW12 as to why he did not make any efforts to summon SDM or Judicial Magistrate for recording of the dying declaration of the deceased.
39. The version given by the deceased in her dying declaration Ex. PW12/A is also not supported by medical and forensic evidence which also makes the dying declaration doubtful. As per the dying declaration, deceased was set on fire after pouring kerosene oil on her. However, the MLC Ex.PW5/A does not mention about the smell of kerosene oil from her body or scalp. The SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 47 of 60 postmortem report also does not mention about the smell of kerosene oil. The burnt pieces of clothes, broken pieces of bangles, hairs of deceased were sent to FSL for detection of the presence of kerosene oil. However, the FSL report Ex.C3 shows that on chemical, TLC and GC examination, petrol, kerosene and diesel could not be detected in the aforesaid articles. This raises a serious doubt about the truthfulness of dying declaration Ex. PW12/A. The IO could not recover plastic cane or bottle allegedly used in the incident from the spot which also raises a big question mark on the entire story of prosecution.
40. Apart from the above, perusal of testimony of PW2 and PW13 would show that they have deposed falsely regarding the information given by deceased Lata about involvement of accused persons in the incident. PW2 Bakshi Ram (brother of the deceased) has deposed in his examination in chief that while they were being taken to the hospital, her sister had informed that she had been burnt by accused persons. She informed him that her SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 48 of 60 mother in law had poured kerosene oil upon her through cane, Sanjay lit the matchstick, Vinod and Govind had held her hands, Ram Kishan father in law instigated all of them. PW13 Kalu Ram (second brother of the deceased) has also deposed on similar lines. However, their testimony stands belied from the evidence of PW7 ASI Harbir Singh and PW8 Retd. ASI Raj Kumar, both of whom have deposed that deceased Lata was taken to hospital in PCR Van R17 and PW13 Kalu Ram and PW2 Bakshi Ram were taken to the hospital in PCR Van R15. Thus, there was no opportunity or occasion available with the deceased Lata to inform her brothers about the role of accused persons in burning her. Hence, the testimonies of PW2 and PW13 on this aspect has to be discarded as false and unreliable.
41. The dying declaration Ex. PW12/A also becomes doubtful as deceased has implicated accused Ram Kishan and Govinda in her statement whereas from the perusal of evidence on record, the presence of Ram Kishan and Govinda at the spot has not been established beyond SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 49 of 60 reasonable doubts. Accused Ram Kishan has examined DW1 Pappu in support of his plea alibi. DW1 Pappu has categorically deposed that on 21.08.2009 accused Ram Kishan was present in village Khera Pilakhua, Dist. Hapur for his agricultural purposes and he received a call at about 08.30 PM from Delhi regarding the incident and he went back to Delhi next morning as there was no transport facility available during the night hours. He was cross examined by Ld. Addl. PP for State at length but his testimony could not be discredited and thus same has to be accepted as correct.
Similarly, accused Govinda in his statement u/s 313Cr.P.C has taken a plea that he was not present at home at the time of incident. At about 08.00 PM when he returned to his house, he came to know that his brothers Sanjay and Vinod were taken to hospital by the police. Although, accused Govinda had not led any evidence in his defence but perusal of the statements of PW2 and PW13 recorded by the IO under Section 161 Cr.P.C show that they have not mentioned about the presence of accused Govinda at the spot at the time of incident nor any role was attributed SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 50 of 60 by them to Govinda. Similarly, all other public witnesses examined by the IO have not mentioned about the presence of accused Govinda at the spot either in their statements under Section 161 Cr.P.C or in their depositions before the court. PW2 and PW13 have mentioned about the presence of accused Govinda at the spot at the time of incident but the said portion of their testimonies is liable to be rejected being material improvements. Thus, the false implication of accused Govinda and Ram Kishan (even when they were not present at the spot) in the dying declaration Ex.PW12/A makes the same untrustworthy and unreliable.
42. Apart from this, the testimony of PW20 Manisha who was tenant in the house of the accused persons at the time of incident assumes significance. She has deposed that on hearing the noise when she came under the jaal, she saw that Lata was standing on the second floor of the house from the jaal and was visible from there and she saw Lata putting herself on fire by lighting the matchstick. Even though she has been cross examined by Ld. Addl. PP SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 51 of 60 on the ground that she was resiling from her previous statement and suggestions were given that she had made improvements in her statement regarding the burning of Lata to save the accused persons but she denied all such suggestions. She also denied the suggestion that she did not see how the incident took place. Ld. Addl. PP has argued that this witness is not reliable and her testimony should be discarded.
However, from the evidence of this witness, it is undisputedly established that she was a tenant on the ground floor in the house of the accused persons and she was present at her house at the time of incident. Hence, she was a natural witness and it was possible for her to see the incident from the ground floor through the jaal. In order to ascertain whether a person standing on the jaal on the second floor is visible from the ground floor or not, a spot inspection was conducted by the undersigned vide Memorandum of Proceedings dated 06.06.2018 and it was found that a person standing on the jaal was visible from the ground floor. Hence, it is quite possible that PW20 Manisha had seen the incident from under the jaal and her SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 52 of 60 testimony cannot be disregarded as irrelevant on this aspect. Therefore, testimony of PW20 also creates a doubt about the correctness of the dying declaration Ex. PW12/A.
43. Thus, in view of the aforesaid reasons, I do not deem it safe and proper to rely upon any of the three dying declarations of deceased Lata and more particularly dying declaration Ex.PW12/A as they suffer from infirmities and contradiction and there is no corroborative evidence to substantiate the same. The dying declarations are accordingly rejected and are discarded. Apart from the above dying declaration of deceased Lata, the prosecution has not be able to produce any cogent and reliable evidence to prove the guilt of the accused persons beyond reasonable doubts. Hence, the accused persons are entitled for acquittal.
44. In view of the aforesaid discussions, I am of the considered opinion that the prosecution has failed to established charges under Sections 302/34 IPC against the SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 53 of 60 accused persons.
Charges under Section 323/34 IPC
45. Lastly I shall deal with the charges under Section 323/34 IPC framed against accused Vinod Kumar and Govind @ Govinda. The case of prosecution in this regard is that when PW2 Bakshi Ram and PW13 Kalu Ram reached matrimonial home of deceased Lata, they saw her sister in flames and they rushed upstairs to save her. They were stopped and assaulted by accused persons as a result of which they suffered injuries. Accused persons on the other hand have taken a defence that PW12 and PW13 along with 45 persons came to their house in drunken condition and armed with dandas and assaulted accused persons and caused injuries to them.
46. At the outset it may be mentioned that the prosecution has relied upon the testimonies of PW2 and PW13 to prove the charge against accused persons. The presence of accused persons on the spot at the time of SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 54 of 60 incident is not in dispute and injuries suffered by the accused persons have been established by their MLCs Ex. PW21/A and Ex. PW21/B respectively.
47. Ld. Counsels for the accused have argued that testimonies of PW2 and PW13 does not inspire confidence and there are material improvements and contradictions in their testimonies which make them unreliable.
48. PW2 Bakshi Ram in his examinationinchief has testified that on receipt of information from his sister, he alongwith his brother Kalu Ram rushed to her matrimonial home and when they were trying to go upstairs to save her, accused Sanjay, Vinod Govinda and Urmila did not allow them to go upstairs and they were beaten by them. He has further deposed that Govinda and Vinod picked up baseball bats and iron saria (iron rod) given by Urmila to Sanjay, with which they were beaten. He sustained injuries on his head, hands and body and his brother sustained injuries all over his body and also on eyes and they were brutally beaten by the accused persons and thereafter he made a SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 55 of 60 call to 100 number and was taken to the hospital. In his crossexamination by the accused persons, PW2 was confronted with his statement u/s 161 Cr.P.C. Ex. PW2/DA where he had not mentioned the names of accused Govinda and his mother Urmila. He was also confronted with the portion of his statement Ex. PW2/DA where baseball bat and saria were not mentioned. He was also confronted with the portion of statement u/s 161 Cr.P.C. Ex. PW2/DA where it was not mentioned that blood was oozing out from his injuries. In his crossexamination he admitted that accused Sanjay and Vinod were also taken to the SDN hospital in the same PCR. He also testified that his clothes were stained with blood but the police did not seize them. He denied that he and his brother were under the influence of alcohol when they reached the spot and he testified that doctor had given wrong report in this regard in the MLC. He also testified that he had informed the doctor as to who had assaulted him.
PW13 Kalu Ram in his examinationinchief has testified on the similar lines and has stated that when they rushed to save their sister, they were no allowed to go SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 56 of 60 upstairs and were beaten up by Sanjay and Vinod with the iron saria given by accused Urmila to Sanjay. He further testified that his brother sustained head injuries and blood started oozing out from his head and PW13 suffered injuries on his face. In his crossexamination by the counsels for the accused persons PW13 has testified that he does not know if Sanjay and Vinod were also admitted in the same hospital with them. He testified that he did not tell the doctor as to who had caused injuries to him and volunteered that doctor had not asked this fact.
49. From the bare perusal of testimonies of above two witnesses, it is apparent that there are material contradictions and improvements in their testimony which make them unreliable and unsafe to convict the accused persons. Firstly, in their statements u/s 161 Cr.P.C. none of these witnesses have mentioned about the presence of accused Govinda and Urmila but in their examinationin chief both of them have implicated accused Govinda and Urmila. Secondly, the statements u/s 161 Cr.P.C. of the two witnesses do not mention that the accused persons SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 57 of 60 had beaten them with baseball bats and iron sarias, whereas in their deposition before the court they have improved on their version and have testified that they were beaten by baseball bats and iron sarias. As noted in the foregoing paras, none of the public witnesses have mentioned about the presence of accused Govinda at the spot at the time of incident in their statements u/s 161 Cr.P.C. as well as in their depositions before the court. It is also surprising that PW13 is unable to tell that accused Sanjay and Vinod were also taken to the same hospital in the same PCR, whereas PW2 Bakshi Ram has admitted that the fact that both accused Vinod and Sanjay were taken in the same PCR to SDN Hospital alongwith these persons. Hence, I find that the testimony of these witnesses cannot be safely relied upon in view of the aforesaid material contradictions and improvements.
50. At this juncture, it would also be relevant to mention about the testimony of PW20 Manisha, who was present at the spot at the time of incident and has testified that on 21.08.2009 at about 06.30 pm brothers of Lata (deceased) SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 58 of 60 alongwith 34 persons came there, who were under the influence of liquor and were having dandas in their hands and threatened the family members of the accused persons and had gone upstairs and after about 5 minutes accused Sanjay and Vinod came outside and said brothers of Lata and 34 persons started beating Sanjay and Vinod. The deposition of this witness presents PW2 and PW13 as assailants rather than victims of assault, which is contradictory to the story of the prosecution and casts a serious doubt on it.
51. Apart from the above, it is also admitted fact that accused Sanjay and Vinod had also suffered injuries on the spot. However, the prosecution failed to explain as to how the two accused persons sustained injuries if they were the assailants. This discrepancy in the story of the prosecution also makes it unreliable.
52. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove charges u/s 323/34 IPC against the accused persons SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 59 of 60 beyond reasonable doubts.
FINAL CONCLUSION :
53. After taking into consideration the entire facts of the case and after carefully scrutinizing the evidence available on record, I am of the considered opinion that prosecution has failed to prove the charges u/s 498A/302/323/34 IPC against the accused persons. The accused persons are accordingly acquitted from the aforesaid charges. The accused persons shall file their bail bonds u/s 437(A) Cr.P.C. within a week from today. The current bail bonds of the accused persons are extended till then.
File be consigned to Record Room after due Digitally signed by ANIL compliance. ANIL KUMAR SISODIA Location: Karkardooma KUMAR Courts, East District, Delhi SISODIA Date: 2018.07.11 14:36:11 +0530 Announced in the open court (ANIL KUMAR SISODIA) th On 10 day of July, 2018 ASJ04, EAST DISTT.
KKD COURTS/DELHI SC NO. 444/2016 State Vs. Sanjay Kumar & Ors. Page 60 of 60
