Delhi District Court
State vs Shyam Narayan on 22 November, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 116/2 dated 09/03/1007
Date of Decision: 22-11-2007.
State Versus Shyam Narayan
S/o Sh. Dharam Dev
R/o WZ-257,
80 yards area,
Tilak Nagar, Delhi.
FIR No.641/2003
PS Tilak Nagar
U/s. 497 & 302 IPC
JUDGMENT
First The Facts This is a case alleging commission of offences punishable u/s 497 IPC & 302 IPC. On 22/08/2003, Shyam Narayan @ Raju (accused) is alleged to have ravished wife of Radhey Shayam (since deceased) and when objected to, poured kerosene oil on his person and set him on fire, resulting in burns on his person and consequent death.
Accusation levelled against the accused is that on 22/08/2003, Radhey Shyam (since deceased), husband of -:2:- Sangeeta, found him (accused) committing wrong act with her. When he objected to it, the accused poured kerosene oil on the Radhey Shyam and then set him on fire. Radhey Shyam succumbed to the injuries on 23/08/2003.
Case of prosecution is that on 22.08.2003 at about 6.30 a.m., Constable Sukhbir Singh posted at PP Tilak Vihar of PS Tilak Nagar, received information from DDU hospital regarding admission of a male person with burns on his body. In this regard Constable Sukhbir Singh recorded DD No. 34 and handed over the same to ASI Gyan Singh, who was on emergency duty. ASI Gyan Singh accompanied by Constable Inderjit reached DDU hospital and collected MLCs of Radhey Shyam and Sangeeta. Constable Milan is stated to have been sent by the IO to the Office of SDM, Patel Nagar, with letter of information regarding admission of Radhey Shyam in burnt condition in the hospital. ASI Gyan Singh recorded statement of Radhey Shyam appended endorsement thereto and sent Constable Inderjeet from the hospital to PS Tilak Nagar, where, on its basis present case was registered.
It was thereafter that SI Dinesh Kumar reached DDU hospital and met ASI Gyan Singh and Constable -:3:- Inderjeet Singh. The SI was informed about admission of Radhey Shyam and his wife Sangeeta whereupon he tried to talk to Radhey Shyam but the doctor disallowed his request. He then tried to record statement of Sangeeta but she refused to make any statement.
Dr. Aruna Singh medico legally examined Sangeetaand prepared MLC. Sangeeta was then referred to surgery department. As per MLC prepared by Dr. Aruna Singh, the fracture on the left frontal region was declared to be grievous in nature. Radhey Shaym son of Sita Ram, aged 31 years, was medico legally examined by Dr. Aruna Singh, and MLC No. 15411 was prepared and the patient was then referred to department of plastic surgery where he was treated by Dr. Sandeep Chauhan. Dr. Sandeep Chauhan found that Radhey Shyam was having approximately 90% superficial to deep burns. After first aid treatment was given, Radhey Shyam was referred to Safdarjung Hospital.
Radhey Shyam succumbed to the injuries. Police was informed in this regard. Copy of DD was delivered to SI Dinesh Kumar. That is how, the case was converted to U/s. 302 IPC and further investigation was assigned to Inspector Rajinder Kishore. Inspector R.K. Ojha carried out inquest -:4:- proceedings in respect of dead body of Radhey Shyam, prepared brief facts, filled in Form No. 25.35 and submitted application for autopsy on the dead body of Radhey Shyam.
Further case of prosecution is that on 25.08.2003, Dr. Prem Kumar conducted autopsy on the dead body of Radhey Shyam and prepared report. Death summary in respect of Radhey Shyam was prepared by Dr. Arya and countersigned by Dr. Pratik Kumar. Duty Constable Kanwar Singh collected sealed parcel sealed with the seal of hospital and containing burnt clothes of Radhey Shyam. ASI Gyan Singh seized this parcel.
SI Dinesh Kumar accompanied by ASI Gyan Singh reached the spot i.e. H.No. 167/17, Block No. 12, Tilak Nagar, Delhi, where PW Brij Lal met them. PW Brij Lal then took the police to a room on the first floor of his house where Radhey Shyam used to live as a tenant. At the pointing out of Brij Lal, rough site plan was prepared.
Case of prosecution is that Radhey Shyam, his wife Sangeeta and their daughter used to live as a tenant at the house of PW Brij Lal. On 22.08.2003 at 6 a.m., when Brij Lal got up, he saw Radhey Shyam having burns. He also saw Sangeeta having burns on her shoulders. At that time, Brij Lal -:5:- found Shyam Narayan accused taking Radhey Shyam and his wife to hospital in a three wheeler. Brij Lal also reached DDU hospital and then Safdarjung Hospital to which Radhey Shyam was referred. Brij Lal PW made statement before the police at Safdarjung hospital and then pointed out the place of occurrence on reaching his house.
Constable Satish received information at PP Tilak Vihar of PS Tilak Nagar at 5.30 p.m. on 23.08.2003 from Safdarjung hospital whereupon DD No. 20 was recorded.
Crime team was called and report was prepared. The report was delivered to SI Dinesh Kumar. As suggested by crime team, SI Dinesh Kumar collected a stove, a mug of plastic containing kerosene oil, some burnt matchsticks, some burnt clothes and some unburnt clothes. The SI put kerosene oil in a small glass bottle. All these items were then turned into separate parcels, sealed and then seized. HC Surender Tyagi of Mobile Crime Team reached the scene of crime and took snaps. Photographs were prepared.
Further case of prosecution is that SI Dinesh Kumar left in search of accused but he was not traceable. Deepak Manocha, employer of accused, came to SI Dinesh Kumar and told him about arrival of accused at his shop to -:6:- collect his dues. Accordingly, SI Dinesh Kumar accompanied Deepak Manocha to his shop situated near the place of occurrence and arrested accused. Memos in respect of arrest and personal search of accused were prepared.
PWs Om Prakash and Ram Sanjivan identified the dead body of Radhey Shyam on 25.08.03. The dead body was delivered to them vide receipt.
On 17.10.2003, on reaching the spot, SI Madan Pal prepared scaled site plan at the pointing out of SI Dinesh Kumar.
On 01.11.2003 at the directions of the SHO, Constable Ved Prakash collected sealed parcels from the MHC(M) vide RC No. 151/21 and deposited the same at CFSL, Hyderabad. On return, the Constable deposited receipt with the MHC(M).
CFSL reports were prepared after analysis of the contents of the samples sent to the laboratory.
On completion of investigation, challan was put in court.
Charge
Copies of documents relied upon by the
prosecution were supplied to accused free of cost. After
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compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session. Charge for offences u/s 497 and 302 IPC was framed against the accused on 02/09/2004. Since the accused pleaded not guilty and claimed trial, prosecution was directed to lead its evidence.
Prosecution Evidence
To prove its case, prosecution examined
eighteen witnesses.
It may be mentioned here that prosecution could not secure presence of Dr. Ritesh despire ample opportunities. Dr.Ritesh is stated to have attested recording of statement-dying declaration of Radhey Shyam by ASI Gyan Singh.
PW2 Brij Lal is the landlord of the house whereas Radhey Shyam (since deceased) and his wife with their daughter were living as tenants and who also saw the accused removing Radhey Shyam and his wife to hospital. He also deposed about his visit to DDU Hospital and then Safdarjung Hospital and to have made statement before the police.
PW1 Head Ct. Ram Kishan has deposed about -:8:- recording of FIR Ex.PW1/A on the basis of statement of Radhey Shyam made before the police at the hospital.
PW3 Om Prakash and PW4 Ram Sanjivan, brothers of Radhey Shyam have deposed about factum of identification of dead body of their brother.
PW5 SI Naresh Dagar, member of Crime Team, West District, has been examined to depose about his visit to the spot i.e. 167/17, Harijan Colony, Tilak Nagar, Delhi, and to have inspected the spot and prepared report Ex.PW5/A. PW6 Head Ct. Suresh Tyagi is the photographer and member of Crime Team who has been examined to prove photographs Ex.PW6/1 to 12 and negatives Ex.PW6/13 to 24.
PW7 Constable Milan has deposed about his visit to the office of S.D.M. Patel Nagar to inform regarding admission of Radhey Shyam in the hospital with burns.
Medical evidence is available in the statement of PW8 Dr. Prem Kumar; PW12 Dr. Aruna Singh; PW13 Sh. Abhay Ram, the record clerk and PW17 Dr. Rishi.
PW9 Constable Ved Prakash, PW10 Constable Inderjeet, PW11 SI Madan Pal, PW14 Constable Satish and PW15 Constable Sukhbir Singh, PW16 Inspector R. K. -:9:- Dahiya, PW18 SI Dinesh Kumar and PW-19 ASI Gyan Singh has deposed about investigation part of prosecution story.
Learned Addl. PP has also tendered into evidence reports Ex.16/D and 16/E prepared at CFSL.
Defence Plea
When examined U/s. 313 CrPC, the accused
denied all the incriminating circumstances appearing in evidence against him and claimed false implication at the hands of police.
Plea put forth by accused is as under:
"I have not knowledge about this fact. The statement if any made by Brij Lal PW is false.
...... I was not absconding at any point of time. I was picked up by the police from my shop which I used to run on the ground floor portion of my house.
..... I have been falsely implicated. I used to park Rickshaw in front of my above referred to shop. Police objected to the parking of rickshaw there. Once I was taken away by the police but released after I bribed the police. Thereafter, I was falsely implicated in this case."
Despite opportunity, accused led no evidence in defence.
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Arguments heard. File perused.
Discussion Learned Addl. Public Prosecutor has referred to the dying declaration made by Radhey Shyam and then to the statement of Brij Lal, landlord of the house where Radhey Shyam and his wife were living as tenant and medical evidence and recoveries from said house, and argued that since dying declaration finds corroboration from this other evidence, it stands established that the accused indulged in sexual intercourse with wife of Radhey Shyam and when objected to by Radhey Shyam, the accused set him on fire, and since Radhey Shyam succumbed to the burns on his person, accused is liable to be convicted and sentenced in this case.
On the other hand, learned Amicus Curiae Sh.Sanjay Dua has contended that prosecution has miserably failed to establish its case against the accused. While assailing the dying declaration, learned Amicus Curiae argued that as per medical evidence, at the time of arrival of Radhey Shyam at the hospital, was unable to speak and when there is no opinion of the doctor on record declaring Radhey Shyam fit to make statement, it is doubtful if Radhey -:11:- Shyam made any such statement attributing allegations of sexual assault and he being set on fire by the accused. It has also been submitted that the Investigating Officer did not take any step to take assistance of SDM to record statement of Radhey Shyam, and as such no reliance can be placed on such a dying declaration. Learned Amicus Curiae has also argued that no reliance can be placed on the dying declaration when there is nothing on record to suggest that Radhey Shyam was fit to make statement. In this regard, learned Amicus Curiae has referred to decision in State of Rajasthan V. Wakteng reported in VII (2007) SLT 690. Admissibility of Dying Declaration In Wakteng's case supra, it was argued that dying declaration was open to grave doubt and the same could not be treated as dying declaration as the same was neither in question-answers form nor there was any endorsement about fitness of the deceased. Therein, the Hon'ble Apex Court, observed in the manner as under:
"Though conviction can be raised solely on the dying declaration without any corroboration the same should not be suffering from any infirmity.-:12:-
While great solemnity and sanctity is attached to the words of dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the Court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the Court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancor. Once the Court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction."
It is well settled that a dying declaration can form the sole basis of conviction but Courts look for corroboration from different circumstances, the reason being that whatever stands recorded in a dying declaration cannot be tested by way of cross examination. It is also duty of the Court to scrutinize such a dying declaration since accused persons -:13:- have no right of subjecting such a statement to test by way of cross examination. In this respect, reference may be made to decision in State of Madhya Pradesh v. Mohan Lal and others, 1996 (2) Crimes 206.
Case of prosecution here is that Radhey Shyam and his wife were brought to DDU Hospital at about 6 p.m. where both of them were medico legally examined, but Radhey Shyam succumbed to the injuries on 23/08/2003 at 5 p.m. A perusal of autopsy report Ex.PW PW8/A would reveal that 90% burn injuries were observed on the dead body of Radhey Shyam by Dr. Prem Kumar.
In the opinion of the doctor, the death was due to shock caused by thermal burn injuries.
Medical evidence would reveal that at the time of his admission at 6.10 a.m, Radhey Shyam patient was unable to speak due to burns over face and lips. There were 90% burns over his body. When we refer to the statement of the ASI Gyan Singh, according to it, statement of Radhey Shyam was concluded at about 8.30 a.m and then ruqqa was sent from the hospital to the police station leading to registration of this case. The ASI started recording statement at about 7.30 -:14:- a.m after reaching the hospital at 7.10 a.m. In his chief examination, the ASI-PW19 deposed that the doctor declared Radhey Shyam and his wife fit to make statement. Generally, opinion of doctor regarding fitness or otherwise to make statement is obtained on an application and opinion is given on the MLC or on such an application. But in this case, neither is there is any application filed by the ASI before any doctor nor there is any endorsement of any doctor on the MLC declaring Radhey Shyam fit to make statement. There is no explanation on record as to why no such application is available on record and as to why no opinion of the doctor in writing is available on the MLC or any such application. When brought to the hospital the doctor recorded in the MLC that Radhey Shyam was unable to speak due to burns over his face and lips, it becomes doubtful if of Radhey Shyam was fit to make statement.
As per prosecution version, Dr.Ritesh posted as JR in Plasitc Surgery attested the statement of Radhey Shyam with his endorsement " this statement has been recorded in my presence", but it is significant to note that prosecution failed to produce in Court and examine Dr. Ritesh. Process was issued and even given to the -:15:- Investigating officer to secure presence of concerned Dr.Ritesh, but the concerned doctor could not be examined. Instead one Dr.Ritesh, who is serving in Indian Army, at Allahabad when served, appeared in Court and stated that he was not posted at the hospital during the days of occurrence. When prosecution has failed to prove endorsement made by Dr.Ritesh, fact remains that as per prosecution the dying declaration Ex.PW19/A is stated to have been recorded by ASI Gyan Singh. In the given facts and circumstances, when the ASI reached the spot at about 7.15 a.m, he should have taken steps to immediately contact the Sub Divisional Magistrate so that statement of Radhey Shyam could be recorded by him. But ASI Gyan Singh has come forward with the version that when he contacted, the SDM asked him to record statement of the patient. In this regard, there is no corroboration from the SDM. Investigating officer could examine the concerned SDM to enquire if ASI Gyan Singh had actually contacted him or not and if contacted what prevented him from reaching the hospital in the morning hours so as to record statement of Radhey Shyam. But there is nothing on record to suggest that the Investigating officer took any such step to verify this version of ASI Gyan Singh. Even -:16:- otherwise, there is no explanation as to why the ASI opted to himself record the statement of Radhey Shyam, when doctors were around and one doctor namely Dr.Ritesh, whose presence could not be secured despite opportunity, is stated to have attested the recording of statement in his presence. It was duty of the Investigating Officer to enquire from the said doctor as to why he himself did not record the statement of Radhey Shyam and as to why he opted merely to attest recording thereof. This is a case where dying declaration is stated to have been recorded by ASI Gyan Singh and not by any Magistrate. Reference may be made to decision in Dalip Singh v. State of Punjab, 1979 CrI LJ 700: (AIR 1979 SC 1173) wherein it was observed that although a dying declaration recorded by a Police Officer during the course of the investigation, is admissible under S. 32 of the Indian Evidence Act, in view of the exception provided in sub-sec. (2) of S. 162 of the Cr.PC. 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfied the court as to why it was not recorded by a Magistrate or by a Doctor. As observed in Munnu Raja v. State of Madhya Pradesh, (1976) 2 SCR 764: AIR 1976 SC 2199: (1976) Cri LJ 1718), the practice of the investigating -:17:- officer himself recording a dying declaration during the course of investigation ought not to be encouraged. Not that such dying declarations are always untrustworthy but, that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.
In view of the above discussion, it becomes doubtful if Radhey Shyam was fit to make statement or that statement Ex.PW19/A was actually made by Radhey Shyam on the given date, time and place leveling allegations against the accused.
Non recording of statement of wife of Radhey Shyam who accompanied the patient to hospital and provided alleged history of burns and setting on fire by friend of the patient.
Case of prosecution is that Radhey Shyam (since deceased) and his wife Sangeeta were together taken to DDU Hospital by Shyam Narayan son of Dharam Dev resident of WZ-257, 80 Yards area, Tilak Nagar, Delhi, and that on reaching the hospital both of them were medico legally -:18:- examined. MLC Ex.PW12/A of Smt. Sangeeta, wife of Radhey Shyam is available on record. This goes to show that Sangeeta was also medico legally examined at DDU hospital at 07:30 p.m. In the MLC, it also stands recorded that the patient did not properly give the history of burns on her right upper limb and injury over the forehead. Even if Sangeeta did not give any proper history regarding burns on her upper limbs and the injury over her forehead, ASI Gyan Singh could record her statement on reaching there at 07:05 a.m. particularly when her husband Radehy Shyam was unable to speak, as observed by the doctor in the MLC Ex.PW12/B. ASI Gyan Singh has come forward with the version that Sangeeta refused to make any statement. In the given circumstances, the investigating officer could take steps against wife of Radhey Shyam on her refusal to assist or cooperate the police in the investigation . However, for the reasons best known to the investigating officer, he did not initiate any legal action against Sangeeta on account of her refusal to make statement. This fact therefore goes against the prosecution.
Furthermore, as per dying declaration Ex.PW19/A, case of the prosecution is that Shyam Narayan -:19:- accused indulged in sexual intercourse with Sangeeta at their house at about 04:30 a.m. Had the accused indulged in sexual intercourse with Sangeeta, it was duty of the investigating officer to record her statement to know her version regarding this allegation levelled by her husband in statement Ex.PW19/A. However, ASI Gyan Singh did not record her statement in this regard. Surprisingly, Sangeeta was not even cited as a witness after registration of the case. Investigation was conducted by SI Dinesh Kumar who reached the hospital immediately after its registration. However, he too stated that Sangeeta refused to make statement. SI Dinesh could also initiate legal action against Sangeeta for non co-operating in the investigation, but for the reasons best known to SI Dinesh Kumar neither he took any legal action against her nor bothered to cite her name in the list of witnesses at the time of presentation of challan. Fact remains that there is no corroboration from the statement of Radhey Shyam Ex.PW19/A wherein he levelled allegations that his wife subjected to sexual assault and that when he raised objections, his wife hit herself on her head and it was thereafter that kerosene oil was poured on his (Radhey Shyam) head and then he was set on fire.
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Charge for an offence u/s 497 IPC was also framed against the accused but Court can take cognizance for such an offence on filing of complaint by the husband under Section 198 Cr.PC. Learned Additional Public Prosecutor submitted that since Radhey Shyam died on the following day i.e..23/08/2005 at 5 p.m., no such complaint could be filed. There is nothing on record to suggest that he gave any complaint in addition to making his statement Ex.PW19/A, while he was alive. So, no cognizance for the offence U/s. 497 IPC could be taken.
Furthermore, a perusal of dying declaration Ex.PW19/A would reveal that therein Radhey Shyam named the assailant as Raju. He did not name the accused - Shyam Narayan. As per the version narrated by the Radhey Shyam in Ex.PW19/A, Raju the assailant was his friend. However, prosecution has not brought on record any evidence that Shyam Narayan accused is also known as Raju or that he was friendly with Radhey Shyam, so as to connect him with the present case. A perusal of MLC of Radhey Shyam and his wife would reveal that the person who brought him to the hospital was Shyam Narayan but there is nothing in the two MLCs to say that any signatures or thumb impression of -:21:- Shyam Narayan were obtained therein so as to establish identity of the accused as the person who brought both of them to the hospital on 22/08/2003 at 07:30 a.m. Learned Addl. PP referred to the statement of PW2 Brij Lal, the landlord of the house, where Radhey Shyam and his wife were putting up together and argued that identity of Shyam Narayan stands established from the statement of PW2.
It is true that PW2 Brij Lal deposed that on 22.08.2003 at about 6 p.m., he got up and saw Radhey Shyam, his tenant, in burnt condition. He further stated that Sangeeta, wife of Radhey Shyam, was also having burns on her shoulder. He saw the accused taking away Radhey Shyam and his wife Sangeeta to hospital in a three-wheeler. He too reached DDU hospital from where Radhey Shyam was referred to Safdarjung Hospital, and as such, he also went to Safdarjung Hospital.
From the evidence led by the prosecution, it cannot be said beyond doubt that Shyam Narayan accused was the person who took Radhey Shyam and Sangeeta from their tenanted house to DDU Hospital and then to Safdarjung Hospital. Therefore, I do not find any merit in the contention -:22:- of learned Addl. PP for State that adverse inference be drawn against Shyam Narayan when he has denied in his statement u/s 313 Cr.P.C to have removed Radhey Shyam and Sangeeta to the hospital with burn injuries on their person. Corroboration from Independent Source As per dying declaration Ex. PW19/A, occurrence took place at about 4.30 a.m., when Radhey Shyam saw Raju indulging in sexual act with his wife and when he objected to the same his wife hit something on her head in rage and inflicted injury on her head whereas Raju poured kerosene oil on his person and set him on fire.
Had the occurrence taken place in the manner narrated by Radhey Shyam in dying declaration, the same must have attracted the attention of landlord at about 4.30 a.m. and not at about 6 a.m., as stated by PW2 Brij Lal in his statement made in court. As a result of the hue and cry in the tenanted room, in the early hours of morning, Brij Lal and persons from the neighbourhood would have rushed to the spot at once. But PW Brij Lal wants the court to believe that he saw the accused simply taking away Radhey Shyam and his wife in an auto rickshaw for the hospital. It is not believable that PW2 Brij Lal could not be attracted to the -:23:- place of occurrence prior to 6 a.m. After all, someone might have gone to hire auto-rickshaw after the occurrence. But there is no evidence as who went to bring auto-rickshaw in which Radhey Shyam and his wife were removed to hospital. It is not case of prosecution that it was the accused who hired the auto-rickshaw. It is also not the case of prosecution that PW2 Brij Lal went to hire the auto-rickshaw. There is nothing in the statement of PW2 Brij Lal that he accompanied Radhey Shyam and Sangeeta in the same auto-rickshaw or that he reached the hospital lateron. It is in the cross examination of PW2 Brij Lal that many persons from the neighbourhood were attracted to the spot and they included Dood Nath, Shyam, Pappu, Babu Lal, Ramesh and Hira Lal. PW2 furter stated that Dood Nath accompanied him to the hospital to enquire about Radhey Shyam. In the given circumstances, the investigating officer should have recorded statements of Brij Lal and Dood Nath at the hospital and the above named persons, who reached the spot. However, in his cross examination, PW2 Brij Lal stated that neither his statement nor that of Dood Nath was recorded by the police. PW2 stated that he and Dood Nath reached the hospital at about 7 or 7.30 a.m. at Safdarjung hospital. Prior thereto, he reached -:24:- DDU hospital and from there he went to Safdarjung hospital. Statement of Radhey Shyam was recorded at DDU hospital and that statement led to registration of this case. In the given circumstances, the investigating officer could record statements of Brij Lal and Dood Nath at DDU hospital. But there is nothing on record to suggest as to why their statements were not recorded. It was for the investigating officer to explain as to why statements of Brij Lal and Dood Nath were not recorded at the hospital, but he has failed to furnish explanation in this regard.
There is also nothing on record to suggest as to why statements of other persons from neighbourhood were not recorded by the investigating officer to verify the version narrated by Radhey Shyam in his statement Ex. PW19/A. Non-recording of statements of Brij Lal, Dood Nath and persons from the neighbourhood leads to the conclusion that there is no corroboration to the statement of Radhey Shyam Ex. PW19/A made before the police.
Why accused not arrested from hospital As noticed above, case of prosecution is that Shyam Narayan son of Dharam Dev, resident of 167/17, 80 yards area, Tilak Nagar, Delhi, brought Radhey Shyam and -:25:- Sangeeta to DDU hospital at about 6 a.m. This is the address of Radhey Shyam and Sangeeta i.e. the tenanted room where they were living together. It is not case of prosecution that Shyam Narayan was living at 167/17, 80 yards area, Tilak Nagar, Delhi. Therefore, in absence of any cogent and convincing evidence, once again this court finds that it cannot be said that Shyam Narayan (accused) was the person who accompanied Radhey Shyam and Sangeeta to the hospital. MLC of Shyam Narayan prepared after his arrest would reveal that he is resident of WZ-257, Harijan Colony, 80 yards area, Tilak Nagar, Delhi. This address is different from the address of Radhey Shyam and Sangeeta. In dying declaration Ex. PW19/A, it stands recorded that it was Raju, who got him and his wife admitted at DDU hospital. As noticed above, Radhey Shyam did not state in his dying declaration Ex. PW19/A that Raju was also known as Shyam Narayan and prosecution has also not led any evidence to show that Shyam Narayan accused was known as Raju. Had Radhey Shyam levelled allegations against Shyam Narayan (accused), the accused having taken them to hospital and he being present in the hospital at the time police reached there, it was not difficult for ASI Gyan Singh or SI Dinesh Kumar to -:26:- immediately arrest Shyam Narayan (accused). But in this case, the prosecution has come forward with the version that accused was arrested on 22.08.2003 at 6.30 p.m. from the shop of his employer. Moreso, it is not believable that after setting someone on fire, one would opt or dare to accompany the injured-victim.
Arrest of accused- was it from his house or some shop?
Case of prosecution is that Deepak Manocha was the employer of the accused and information was received from the employer about arrival of the accused at his shop to collect his dues and that is how he was arrested from there. In this regard, statements of police officers are in contradiction with each other. According to PW19 ASI Gyan Singh, they reached WZ-257, Harijan colony, 80 yards area, Delhi but the accused was not traceable there and that it was in the evening that they again visited the said premises and arrested the accused from there. Thus, according to ASI Gyan Singh, accused was arrested from his house. However, according to PW18 SI Dinesh Kumar, he accompanied by Deepak Manocha, employer of the accused, reached the latter's shop situated near the place of occurrence and arrested Shyam Narayn accused, who was found present at that shop, at the -:27:- pointing out of his employer. This is a material contradiction in the statements of the two police officials which create doubt regarding the time and place of arrest of the accused particularly when said Deepak Manocha, employer of the accused, has not been examined by the prosecution to support its version regarding arrest of the accused from his shop.
Identity of accused at hospital A perusal of MLC Ex. PW12/B of Radhey Shyam would reveal that the alleged history of burns was given by Shyam Narayan, the person accompanying Radhey Shyam and his wife. Sh. Sandeep Chawla, Senior Resident, mentioned at point A to A on MLC Ex. PW12/B that patient told that kerosene oil was sprinkled on him by his friend. Had Shyam Narayan accused sprinkled kerosene oil on Radhey Shyam, he would have specifically told the doctor that the person who brought him and his wife to the hospital was the person who sprinkled kerosene oil on him but Radhey Shyam is stated to have told the doctor that it was his friend who poured kerosene oil on him. Radhey Shyam is not stated to have told the doctor that it was Raju or Shyam Narayan, his companion/friend who had poured kerosene oil on him. -:28:-
Case of prosecution is that dying declaration was made by Radhy Shyam before ASI Gyan Singh in present of Dr. Ritesh. PW2 Brij Lal stated in his cross examination that Radhey Shyam told the concerned doctor of Safdarjung Hospital that Raju had burnt him. As noticed above, prosecution has not been able to secure presence of Dr. Ritesh despite ample opportunities. However, it is not case of the prosecution that any dying declaration was made by Radhey Shyam in presence of PW2 Brij Lal. In case any dying declaration was made by Radhey Shyam in presence of Brij Lal, then ASI Gyan Singh must have got the dying declaration attested from PW2 Brij Lal. Therefore, no reliance can be placed on the statement of PW2 regarding dying declaration attributed to Radhey Shyam. Seizure of articles from the spot In this case, version of prosecution is that SI Dinesh reached the spot i.e. House No. 167/17, Block No. 12, Tilak Nagar, Delhi, in the company of ASI Gyan Singh and prepared rough site plan. Crime team was called. The crime team inspected the spot and prepared report. It is also in the statement of PW18 SI Dinesh Kumar that one stove, a mug of plastic containing kerosene oil, some burnt matchsticks, some -:29:- burnt clothes and some unburnt clothes were picked up vide memo Ex.PW10/A. However, evidence led by the prosecution does not reveal that any finger prints or foot print of Shyam Narayan accused were lifted from any of the items so as to establish his presence on the given date, time and place of occurrence and to connect him with present crime.
Aforesaid recovery memo Ex.PW10/A bears attestation of ASI Gyan Singh and Ct. Inderjeet Singh. No effort appears to have been made by investigating officer to get the recovery of these items attested from any witness from the public. According to SI Dinesh Kumar, PW Brij Lal met them at the spot. Therefore, Brij Lal could be associated in the investigation at the time of seizure of these items. However, for the reasons best known to the investigating officer, he did not join PW Brij Lal or get it attested from him Ex.PW10/A. This fact adversely affects the case of prosecution.
Conclusion:
In view of the above discussion, this court comes to the conclusion that prosecution has failed to substantiate the charge leveled against Shyam Narayan beyond shadow of reasonable doubt. Extending the benefit of doubt, this court -:30:- hereby orders for acquittal of the accused.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Announced in Open Court on Dated: 22nd November, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi