Delhi District Court
State vs . (1) Sonu Singh S/O. Sh. Suraj Pal Singh on 30 August, 2014
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0326772010
Sessions Case No. 27/13
Date of Institution: 22.11.10
Date of transfer to this court: 16.01.13
Date on which reserved for orders: 14.08.14
Date of delivery of order: 30.08.14
State v/s. (1) Sonu Singh S/o. Sh. Suraj Pal Singh
R/o. H.No.337, 8 Block, Khichripur, Delhi.
(2) Neeraj S/o. Sh. Suraj Pal Singh,
R/o. H.No.337, 8 Block, Khichripur, Delhi.
(3) Jaidev @ Pankaj S/o. Sh. Janbed Singh
R/o. H.No.337, 8 Block, Khichripur, Delhi.
FIR No. 269/10
PS. Kalyan Puri
U/s. 302/34 IPC
JUDGMENT:
1. An information was received at PS Kalyan Puri from PCR, on 02/10/10 that a boy has burnt himself near H No. 328, Block No. 8, Khichdi Pur, Gurudwara wali gali from mobile No. 9310539406, the FIR No. 269/10, PS. Kalyan Puri Page 1 of 45 St. Vs. Sonu Singh etc. name of informant was mentioned as Pradeep Johar. The information was recorded as DD No. 71B at 18.30 hours and was given to HC Lalit who went to the spot. At the spot he came to know that injured Rajesh Singh Negi has been shifted to the hospital. He left Ct. Rahul at the spot and went to LBS hospital. He obtained the MLC no. 87/95/10, on which the history of offence was mentioned as self burning of body by kerosene oil, by self. The patient was not fit to give statement. HC Lalit went back to the spot. He got the spot inspected by the crime team and got it photographed. He found a bottle there, which had the smell of kerosene and a bori also having the smell of kerosene, which were seized by him.
2. On 03/08/10, investigation was handed over to SI Raj Kumar who went to GTB hospital where injured Rajesh Singh Negi was admitted in burnt ward and Dr. Arun Kumar gave the certificate of fitness. He recorded the statement of injured in presence of Dr. Arun Kumar and brother of injured Nagesh Singh Negi. As per the statement the deceased had married Bhawna sister of accused Sonu and Neeraj, who was also cousin of accused Pankaj. They did not tell about marriage to anybody initially but later on this was disclosed to the family members. Family of Bhawna took her to their house and they did not send her to the matrimonial home despite assurances that she will be FIR No. 269/10, PS. Kalyan Puri Page 2 of 45 St. Vs. Sonu Singh etc. married to the deceased as per rituals. On 02/10/10 around 05.00 pm he was talking to mother of his wife Bhawana, who is also the mother of accused Neeraj and Sonu. A quarrel ensued. Neeraj took the bottle of petrol, which he (the deceased) was having with him having brought the petrol to fill in his bike. Neeraj poured the petrol on him. He took out a match box and burnt the deceased. A case u/s. 307/34 was registered and was converted into 302/34 after the death of the injured on 07/08/10.
3. Charge sheet was filed after investigation. Charge was framed against the accused persons u/s 302/ 34 IPC, on 04/01/12, to which they all pleaded not guilty and claimed trial.
4. Prosecution examined 28 witnesses to prove its case. PW 1 ASI Sukhdev was the duty officer. He has deposed that he received tehrir sent by SI Raj Kumar through HC Lalit Kumar and on the basis of the same, he got recorded the FIR No. 269/10 u/s 307/34 IPC. Copy of FIR is Ex. PW1/B and the endorsement made by the witness on Tehrir to the effect of registration of FIR is Ex. PW 1/A.
5. PW2 Nagesh Negi is the brother of deceased. He has deposed that deceased was his elder brother. He deposed about the facts related to FIR No. 269/10, PS. Kalyan Puri Page 3 of 45 St. Vs. Sonu Singh etc. marriage of Bhawna and deceased and further deposed that on 10/06/10, Rajesh and Bhawana came to PS Kalayan Puri, where family of Bhawna asked for time of one month to solemnize the marriage of Bhawna with deceased as per customs, however, after some time they refused to solemnize the marriage. On 02/08/10, he was present in his shop at Ansal Plaza,Vaishali Ghaziabad, when he received a call after 05.45 pm, about 06.10 pm from his brother Mukesh, telling him that Rajesh had been burnt and that they were taking him to LBS hospital. He also rushed to LBS hospital where he found that Rajesh was being shifted to GTB hospital. He could not go to GTB hospital as his mother was feeling unwell and was admitted in ICU of LBS hospital. Next day around 06.00 07.00 am, he went to GTB hospital and found Rajesh with 90% burns. He sent his brother Mukesh back to house. Around noon time SI Raj Kumar came there and recorded the statement of Rajesh in presence of Doctor and himself. Rajesh disclosed that he was burnt by Sonu, Neeraj and one more boy, who had come from Kanpur. He told that the Kanpur boy and Sonu caught him while Neeraj lit the match box to cause him burn injuries. Rajesh (Mukesh) had bought a new motorcycle and he was brining the petrol to fill in the same. Thumb impression of Rajesh was taken on his statement Ex. PW 2/A and he had signed the same. Rajesh died in the morning of 07.08.10. FIR No. 269/10, PS. Kalyan Puri Page 4 of 45 St. Vs. Sonu Singh etc. In his cross examination the witness stated that police did not record his statement at any point of time. He stated that he did not make any complaint to the police from his mobile. He says that his mother was admitted in ICU of LBS Hospital and he remained with her whole night. He says that police did not record the statement of her mother that night. He says that he could not tell exact time but police had come to the GTB hospital between 12.00 noon and 04.00 pm and they were two in number. He had not accompanied the police to the duty room (of the doctor). He could not say if the doctor had signed the statement in his room or not. He denied the suggestion that he had signed the statement in the PS and that deceased did not make any statement as he was unfit. He said that land line number 22772465 was installed in his house and the number was functional on 02/08/10. He was not aware if any call was made from this number at 100 number saying that " ek ladke ne apne mei aag laga le hai". He stated that he was not aware if 9310539406 was his brother's number and that the call was made at 100 number from this number saying that " ek ladke ne apne mei aag laga le hai" or that one person Mohan Lal R/o H No 8/369, Khichi Pur had also called at 100 number "
ek ladke ne apne aap ko aag laga le hai" and calls were received at 100 number from mobile no. 8802645118 and 9213930137 saying that "ek ladke ne apne aap ko aag laga le hai". He said that in his presence his FIR No. 269/10, PS. Kalyan Puri Page 5 of 45 St. Vs. Sonu Singh etc. brother had put his thumb impression on two papers but he did not know if the same were got attested by the doctors. He said that he was not aware, if his brother had made telephonic call at 100 number several times. He knew the boy Sanjeev, who lived in the neighbourhood but he did not know if this boy had taken his brother to the hospital. He stated that from the roof of the house neither front view nor main Gurudwara his visible. The surroundings of Gurudwara are occupied by residents. He denied that police had obtained thumb impression of Rajesh Negi on blank papers and had converted it into his statement as per their choice. The statement was completed by 02.15 pm but he could not tell the time of starting of the statement. He stated that from the roof of his hose neither the front side of Gurudwara nor its main gate is visible.
6. PW3 Dr. Arun Kumar deposed that on 3.8.2010 he was a junior resident in burn and plastic surgery department of GTB hospital. He had made the endorsement about fitness of patient Rajesh Negi, who was admitted in burn ward at 1 pm and proved the endorsement as Ex.PW3/A on Ex.PW2/A. In his cross examination the witness stated that the IO did not move any application seeking separate certificate of fitness. He did not see any document of patient before giving any certificate. He did not check the medicines given to the patient before 1 FIR No. 269/10, PS. Kalyan Puri Page 6 of 45 St. Vs. Sonu Singh etc. pm and was not aware if medicine like pathdine was administered to the patient or not. He did not make attestation of thumb impression of the patient which was also not taken in his presence. He made endorsement at his duty room ( after seeing the patient) and that the IO had recorded the statement of patient in his absence. He said that he had examined the patient at 12.45 pm.
7. PW4 Dr. Meghali Kelkar proved the postmortem report ExPW4/A and the inquest papers as ExPW4/B. She said that there was no smell of kerosene or petrol on the body of the deceased. She stated that superficial to deep antemortem flame burns were present over face, chest, abdomen, back, both upper limbs, palms, genetalia, front and back of both thighs.
8. PW5 SI Mukesh Kumar had prepared the scaled site plan ExPW5/A. PW6 HC Bir Singh had recorded the DD No. 71 B ExPW6/A and he deposed that he had received a call from PCR that a boy had burnt himself. The information was given by mobile No. 9310539406. He tendered the copy of DD No. 88 B recorded at 9.50 pm by HC Lalit in the register No. A, during his cross examination and same was ExPW6/DA. FIR No. 269/10, PS. Kalyan Puri Page 7 of 45 St. Vs. Sonu Singh etc.
9. PW7 Dr. O.S.Tomar was the CMO of LBS Hospital on 2.8.2010. He deposed that at 6.50 pm HC Jogender had brought Rajesh Singh Negi with alleged history of self burning of body by kerosene oil, Informant self . Smell of kerosene was present on the body and patient was conscious, oriented, though his general condition was low. He proved MLC as Ex.PW7/A. He stated that the deceased was brought to the hospital by HC Joginder and Ct. Omjeet was also present at the time of examination of injured.
10. PW8 W/Ct. Meenakshi from PCR proved the attested copy of form no. 1 filled by her regarding the information received at PCR at 18.27 pm from mobile No. 9310539406 informing that ' Ek ladke ne apne aap ko aag laga li hai'. The name of informant has been mentioned as Pradeep Jauhar, H.No.2762, Sector3 Ballabhgarh, Pandabad, Haryana.
11. PW9 HC Lalit Kumar deposed that he was posted in PS Kalyan Puri and was on emergency duty from 8 am to 8 pm. On receipt of DD No. 71 B, he went to the spot i.e 8/338 Khichripur near Gurudwara and came to know that one boy namely Rajesh Singh Negi had burnt himself and PCR vehicle had taken him to LBS Hospital. He left beat Ct. Rahul to guard the spot and left for LBS hospital. There he obtained the FIR No. 269/10, PS. Kalyan Puri Page 8 of 45 St. Vs. Sonu Singh etc. MLC of the injured in which history of self burning by kerosene was given. General condition of injured was unfit for statement. He did not record statement of patient as he had already been referred to GTB hospital. He came back at the spot where crime team was called; inspected the site and told the facts to the SHO. One plastic bottle containing kerosene and tat bori were taken in possession by ASI Raj Kumar. In the meantime information regarding Pushpa Devi's admission in hospital was received and so he went to LBS hospital. Pushpa Devi had simple blunt injury but she was unfit for statement and so he could not record her statement. He again came at spot and made local inquiry but no one came forward to give statement so he went to PS and deposited the pullandas. On 3.8.10 he went to GTB hospital and met Dr. Arun Kumar, there. He narrated the facts to SHO telephonically, who sent SI Raj kumar to the hospital. SI Raj Kumar made inquiries from injured Rajesh Singh and finding him fit for the statement, he recorded the statement of injured, and took his right toe impression on the statement. IO had made inquiries from brother of injured, Nagesh, who was present in the hospital. IO had prepared rukka and had given it to him for registration of FIR. The statement of injured was recorded from 1 pm to 1.30 pm. After the registration of FIR he had gone to spot and handed over rukka and copy of FIR to the IO. He proved the seizure memo of tat FIR No. 269/10, PS. Kalyan Puri Page 9 of 45 St. Vs. Sonu Singh etc. bori and plastic bottle as ExPW9/A and seizure memo of parcel and sample seal given to him by Ct. Omjeet as ExPW9/B. On 7.8.2010 he had gone to GTB hospital and postmortem of dead body was conducted and thereafter dead body was handed over to the relatives vide ExPW 9/C. Doctor had handed over to him sample scalp hair of the deceased, which was seized vide memo ExPW9/D. He identified the tat bori and bottle as EXP1 and EXP2.
In his cross examination witness stated that when he reached the spot many public persons were present. He had made inquiries from those persons and they told him that the deceased had put himself on fire. He remained there for five minutes but could not find family members of the deceased. At the hospital he met Sukhpal Singh Negi brother of injured, however, he did not make any statement or mentioned any suspect. He said that he did not verify, which doctor had written not fit for statement since the MLC was given to him by the duty constable Om jeet. He had not asked the doctor to put the time under the endorsement. He remained at the spot till 9 pm and till that time it was being stated that the deceased had burnt himself but no one came forward to give statement. He had told these facts to Inspector Rajesh Kumar Sharma, who came to the spot. On 3.8.10 around 9.30 am younger brother of deceased met him but he also did not allege anything against anyone. FIR No. 269/10, PS. Kalyan Puri Page 10 of 45 St. Vs. Sonu Singh etc. Statement of deceased was signed by Dr. Arun Kumar in burnt ward at about 1 pm in his presence while he was standing at some distance but he was not aware of the distance of duty room of doctor from burn ward. He said that he had not gone to the duty room of the doctor. He denied that Dr. Arun Kumar did not sign statement in burnt ward. He stated that SI Raj Kumar had not obtained any certificate on MLC regarding fitness of injured in his presence and he himself had also not obtained any such certificate. SI Raj Kumar came to hospital at 10.30 am. Statement of Injured was recorded from 11 am to 1 pm and fitness certificate was obtained at 1 pm.
12. PW10 Bhawna has deposed that deceased was her neighbour and a friend of her brother accused Sonu. Both she and deceased were working in a company where they developed intimacy and married each other on 14.1.2010. Both of them stayed in their respective houses for 6 months after the marriage. Subsequently, deceased started coming to her house after consuming liquor, ganja and smack . He asked her to accompany him, however, she refused. Her parents had agreed for marriage however, the parents of deceased refused to get them married due to her caste as she belongs to a schedule caste. On 2.8.2010 she was present with her parents , brothers and cousins and mausi as a function FIR No. 269/10, PS. Kalyan Puri Page 11 of 45 St. Vs. Sonu Singh etc. was going on in the house. She heard the noise ' aag laga li aag laga li'. One lady came and told them that Rajesh had put himself on fire. Mother of Rajesh came and started abusing them. This happened between 6 and 6.30 pm. She proved the photographs of her marriage and copy of marriage certificate. The witness was not cross examined by Ld. Addl. PP on the aspect of alibi of accused persons but she was crossexamined on the facts of her marriage. In cross examination by Ld. Counsel she stated that her brothers were with her from 12 pm to 8 pm and Pankaj was not with them.
13. PW11 Pandit Brij Kumar Pandey had solemnized the marriage of deceased with PW10 and has proved the relevant documents as ExPW11/A and ExPW11/B.
14. PW12 Smt. Pushpa Devi is the mother of the deceased. She has deposed about the marriage of deceased with Bhawna PW10 and the disputes thereafter. Regarding the incident she says that she was present in her house. Rajesh came from her duty and told her that Bhawna had called her. Around 11.30 am brothers of Bhawna, Neeraj and Pankaj called her son and took him towards park. They showed him pistol and asked him to leave their sister but Rajesh refused saying that he had FIR No. 269/10, PS. Kalyan Puri Page 12 of 45 St. Vs. Sonu Singh etc. married her. Mother of Bhawna came there and said that ' Maine apni ladki ko vidhwa bana dia hai, vidhwa banungi'. She says that her son returned home. She says that thereafter, Lalit Kumar police official had come to her house and thereafter he had gone to the house of Urmila. Mausi of Bhawna came to her house. Thereafter, police official Lalit Kumar took Rajesh to the house of Bhawna. The entire portion up to here was confronted with her statement under section 161 Cr.P.C (ex PW12/A), where no such thing was written.
She deposed that same day around 55.15 pm she went to the terrace of her house and saw that all three accused were holding her son. She came down and while she was going outside her house in the gali, she saw all these accused persons were running after burning her son. She reached at the spot and her son told her that all the three accused burnt him. Someone informed the police. She went to the house of Bhawna where her family members beat her. She said that Rajesh told her that his phone was with accused persons and they had thrown the same on the ground. She found the mobile lying on the ground. She says that by the time police official Lalit came came at the spot, her son had already been removed to hospital by Mukesh & Sanjeev, however, on way they met PCR, which then took the deceased to hospital. She went to LBS hospital and was not checked initially but later on was provided FIR No. 269/10, PS. Kalyan Puri Page 13 of 45 St. Vs. Sonu Singh etc. treatment. In her crossexamination by Ld. Addl. PP the witness denied the suggestion that she saw the accused persons burning her son from the roof . This portion of her evidence was confronted with her statement u/s. 161 Cr.P.C. Ex.PW12/A, where it was recorded that she saw accused persons burning her son. In her crossexamination she stated that police made inquiries at her house on 02.08.10 though no statement of hers was recorded on that day.
15. PW13 Mukesh Negi is the brother of deceased. He deposed in the court about the marriage and subsequent dispute. He told about what his mother told him, about the earlier incident of the day, which is hearsay evidence and not admissible. Thereafter, he deposed about the incident of 3 pm regarding Lalit having called the deceased to the house of Bhawna, where Lalit told him that Bhawna was his wife and a compromise was arrived at. He deposed that Rajesh took Rs.100/ from him and went to buy petrol for the bike as he wanted to go to his office. He deposed that around 6/6.15 pm he was present at his house when one lady of neighbourhood came and told him that his mother had gone outside running and he should also see what had happened. He ran towards Gurudwara and found his brother in burnt condition. He made inquiries from his mother. Public persons were present there. One boy FIR No. 269/10, PS. Kalyan Puri Page 14 of 45 St. Vs. Sonu Singh etc. called the police at 100 number and also told him that Rajesh had burnt himself. He called the police and since police did not arrive, he and one boy Sanjeev took his brother on the motorcycle. The motorcycle, however, stopped on way as it did not have fuel. In between police came and Sanjeev took Rajesh in the police jeep. At the LBS hospital, he received information that his mother has been attacked and so he came home. He inquired from her mother, who told her that she went to the house of accused as she had seen the accused persons running from the spot but the mother, father of accused and one girl, attacked her. He again called at 100 number but could not tell his location. HC Lalit came at the spot at this time but he did not take his mother to hospital. He was with his brother when he was taken to GTB Hospital and he had signed some papers also. He remained in GTB Hospital till next morning. He says that Rajesh told him in hospital on the night of 4th that the accused persons burnt him. He stated that on the date of incident there was a crowd in his house and he does not know if anyone made a call from the land line to the police.
16. PW14 Ct. Vinay Kumar had joined the investigation on 27.8.2010 and in his presence the accused Sonu had pointed the place of incident vide memo EXPW14/A. PW15 Ct. Laxman joined the FIR No. 269/10, PS. Kalyan Puri Page 15 of 45 St. Vs. Sonu Singh etc. investigation on 26.8.2010 and in his presence accused Neeraj and Sonu, who had surrendered in court of Ld. MM were arrested vide memo ExPW12/A and ExPW12/B. PW17 produced the original record of GTB hospital, photocopies of which are Ex.PW17/A.
17. PW18 HC Jogender produced the record of PCR van and deposed that he had reached the spot on receiving wireless message and he had shifted the injured to LBS Hospital. He proved the original call book register of his vehicle, which was ExPW18/P1.
18. PW19 was with PW12 at the time of arrest of Neeraj and Sonu. He has proved the disclosure statement of Sonu as ExPW19/A. PW 20 Ct. Satender had taken photographs of spot and has proved the same as PW20/P1 to P4 and PW20/P5 to P8.
19. PW 21 Ct. Omjeet was Duty constable at LBS hospital and in his presence the MLC was prepared. He has deposed that the injured was examined by the doctor in his presence. He categorically stated that in his presence the injured told the doctor that he burnt himself.
20. PW22 was the Incharge of Crime team. He has proved the Scene of FIR No. 269/10, PS. Kalyan Puri Page 16 of 45 St. Vs. Sonu Singh etc. crime report as Ex.PW22/A. PW 23 Insp. Ramesh Chand had collected the PCR forms from PCR ITO and has tendered them as Ex.PW23/P1 to P8.
21. Arguments were heard. LD Addl PP argued that there is a dying declaration. The deceased had brought the petrol, which was used by the accused persons to burn him. The fact that the petrol was brought by the deceased has been corroborated by the statement of the witnesses where they say that when they were taking the deceased on the motorcycle, it stopped after sometime as there was no fuel. She argued that as per FSL report the liquid in the bottle seized from the spot was petrol. The doctor had declared the deceased fit for statement after examining him and, therefore the statement cannot be doubted.
22. Ld. defence counsel on the other hand argued that there are two set of dying declarations in the case. He says that the deceased himself told the doctor that he had immolated himself, which was his first statement regarding the facts related to his death. The second statement was recorded by the IO, which is otherwise doubtful. He argued that the statement of the deceased was recorded by the IO in absence of any independent witness. The doctor himself said that he was not present at FIR No. 269/10, PS. Kalyan Puri Page 17 of 45 St. Vs. Sonu Singh etc. the time of recording of the statement. The brother of the deceased is in police and the case was modified lateron, as per his advise
23. Dying declaration is the main evidence of the prosecution in this case.
While prosecution says that the dying declaration recorded by SI Raj Kumar gives the correct facts of the death of the deceased. The defence has argued that this dying declaration was in fact second version; is manipulated and cannot be relied.
There are two dying declarations. First is the statement given by the deceased to the doctor, when he first arrived at LBS hospital, which is recorded in the MLC. The second was recorded by the IO on the next day at GTB hospital.
Declaration on MLC : The deceased himself had given the history of incident in the MLC. The MLC says that the history given by the deceased is self burning by kerosene, which falsifies the prosecution case regarding burning by petrol. Not only did the deceased say that he had burnt himself with kerosene, the doctor also found the presence of smell of kerosene on his body and not that of petrol. The first information received at the PCR from the phone of deceased was that a boy has burnt himself. At the time of recording of MLC PW 21 Ct. FIR No. 269/10, PS. Kalyan Puri Page 18 of 45 St. Vs. Sonu Singh etc. Omjeet the duty constable of LBS hospital and PW 18 HC Joginder Incharge PCR Van, which brought the injured to the hospital, were present.
Section 32 of the Indian Evidence Act defines the dying declaration as statements written or verbal, of relevant facts made by a person, who is dead.... when the statement is made 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, in cases where the cause of his death is in question.
According to the definition any statement made by a person, which relate to the cause of his death is dying declaration in a case where cause of his death is being adjudicated upon. This makes the history of offence given by the deceased to the doctor on the MLC as the first dying declaration.
As per the first dying declaration made by the deceased he had immolated himself. Before discussing this evidence further the authenticity of second dying declaration made by the deceased shall be considered.
24. The second dying declaration was made in GTB hospital before SI Raj Kumar allegedly in presence of doctor and PW Nagesh. There are FIR No. 269/10, PS. Kalyan Puri Page 19 of 45 St. Vs. Sonu Singh etc. material errors in this declaration, which are enumerated hereunder.
(i) Timing errors. There are contradictions regarding the time of recording of this dying declaration. The witnesses have given different versions. PW 16 SI Raj Kumar says he started the statement at 12 and finished in 4045 minutes. PW 9 Nagesh Negi says that the police officials came between 12 to 4 PM. He did not remember the time of starting of the statement but as per him it was concluded at 2:15 pm and that more than half an hour was consumed in writing the statement. PW 9 HC Lalit Kumar says that he was in the hospital till 1:30 PM. The statement of deceased was started at 11.00 AM and it was concluded at 1:00 PM. The witnesses are thus giving very different timings of recording the statement. PW 9 who is a public witness says that statement concluded at 2.15 pm i.e beyond the time of registration of FIR; the two police witnesses have also not corroborated each other on timings. One witness says that the statement was recorded in 45 minutes;
the other says that it continued for two hours. In a case of murder this kind of contradiction cannot be ignored as immaterial. More so when the very of fact of recording of this statement is under dispute.
(ii) No SDM was called. A big lacuna in the prosecution case is that the SDM was not called for recording the dying declaration despite there FIR No. 269/10, PS. Kalyan Puri Page 20 of 45 St. Vs. Sonu Singh etc. being sufficient opportunity for the same. Even if it is accepted that initially there was urgency as the deceased had about 95% burns; there was sufficient time thereafter, since the deceased died after four days of incident. SI Raj Kumar was not in the hospital since morning of 03/08/2010. He came after the facts were briefed by Ct. Lalit to SHO. The deceased was brought in the hospital on the night of 02.08.10. His statement was recorded by the IO around afternoon of the next day i.e on 03.08.10. The deceased died on 07.08.10. There was plenty of time with the Investigating Officer to have called an SDM for recording the statement of the deceased. It was very important in the instant case, considering that two theories regarding the death of the deceased had been formulated. MLC was existing on record, which categorically stated that the deceased died of self immolation and a second theory was coming up i.e of murder of deceased. The IO thus should have made an effort to get the dying declaration recorded before an SDM, more so when it was clear that there are very less chances of survival of the deceased, as per his medical condition. Why no steps were taken to get the evidence recorded in presence of independent person? Why no SDM or Executive Magistrate was called? and Why the doctor was not asked to remain present at the time of recording of the statement.? This all becomes very relevant in view of the fact that the deceased was alive FIR No. 269/10, PS. Kalyan Puri Page 21 of 45 St. Vs. Sonu Singh etc. even four days after the recording of the statement by the IO and that there is nothing on record to suggest that he was unfit for statement, subsequent to the recording of statement by the IO. In fact if PW4 is to be believed the deceased had disclosed the facts of the case to him on the night of 4th when he was with deceased in the hospital.
(iii) Manner of giving fitness certificate. Fitness was given by the doctor inside the duty room and not in the burnt ward, contrary to what the IO has deposed. The doctor says that he was not present at the time of recording of dying declaration, however, IO, Ct Lalit and PW Nagesh say that the doctor was present. The doctor himself is saying that he examined the witness and gave the fitness inside his duty room. He was not present when the statement was recorded. He says that he had not seen the documents of the deceased and was also not aware if the deceased was under influence of any medicine. He is categorically saying that he gave the certificate of fitness in the duty room though he says that it was after, he had examined the patient. He had not checked the medicines, which were administered to the deceased. He categorically stated that the IO recorded the statement of deceased in his absence. This contradicts the statement of SI Raj Kumar, who is saying that he recorded the statement of Rajesh Singh Negi in presence of (PW2) Nagesh Singh FIR No. 269/10, PS. Kalyan Puri Page 22 of 45 St. Vs. Sonu Singh etc. Negi and Dr. Arun Kumar; and categorically denied the suggestion that the doctor was not present at the time of recording of statement. The witnesses of dying declaration are thus contradicting each other on a material point i.e the presence of the only independent person at the time of recording of the statement, the Doctor.
The certificate of fitness given by the doctor is also disputed as he says that he did not check the documents of the patient before giving him fitness certificate. He was not even aware if the patient was administered any drug like Pathdine etc. On what basis had the doctor formed opinion about fitness of the witness remains unanswered. In (2011)10 SCC173, Surinder Kumar Vs State of Haryana, Hon'ble Supreme Court observed that when the statement of deceased was recorded, the doctor was not present and he gave his opinion on the request of the police officer later on. The Hon'ble Supreme Court deprecated the mode of recording dying declaration where the doctor was not present when the statement was recorded by Magistrate and doctor gave the fitness later on. In the said case statement was recorded by Magistrate yet it was not accepted. In the present case statement has not been recorded by SDM but by the police officer and in absence of the doctor, coupled with the fact that SDM was not called despite availability of time makes the dying declaration all the more unbelievable. The doctor FIR No. 269/10, PS. Kalyan Puri Page 23 of 45 St. Vs. Sonu Singh etc. says that he gave the opinion after examining the deceased, however, the same becomes doubtful in view of contradictory statements of the witnesses, who have deposed differently on the fact of presence of doctor at the time of recording of statement and also on the fact as to when and how the fitness was given. The fitness admittedly was given after the recording of the statement. In the cited judgment Surender Kumar (supra) the Hon'ble Supreme Court doubted the dying declaration holding that since the deceased was under influence of Fortwin and Pethidine injections, she was not having normal alertness. In the present case the doctor did not even examine the papers of the deceased to find out if he was administered any medicines. He says that he did not see the documents to find out if the accused was given any sedatives are not. The manner of giving the certificate of fitness cannot be considered appropriate making the whole procedure and process doubtful.
(iv) The witnesses of dying declaration: Dying declaration was recorded in presence of PW2, if he is to be believed. Not only he and other witnesses have contradicted each other on timing, presence of doctor etc as held above, he also gave a statement contradicting the dying declaration. As per dying declaration, Neeraj had poured petrol on deceased and had burnt the deceased while Sonu and Pankaj were with FIR No. 269/10, PS. Kalyan Puri Page 24 of 45 St. Vs. Sonu Singh etc. him. PW2, however, says that his brother disclosed that Sonu and the Kanpur boy had caught him while Neeraj lit the match box. He is thus contradicting the statement of the deceased in his dying declaration. This is when he says that he had also read the dying declaration recorded by SI Raj Kumar. The presence of witness at the time of recording of dying declaration becomes doubtful or he appears to be deposing in vengeance and so has modified the version of deceased to implicate more persons in the direct act than stated by the deceased himself. In either case his testimony becomes doubtful.
Ld counsel for the accused has relied upon the judgments on law related to dying declaration as have been held in several cases including (2011) 10 SCC 173, Surinder Kumar Vs. State of Haryana where it was held that dying declaration has to be free from any kind of possible manipulation, to be accepted to convict a person. It was held in Rasheed Beg Vs. State of M.P (1974) 4 SCC 264 where a dying declaration is suspicious it should not be acted upon. In Ram Manorath Vs. State of UP (1981) 2 SCC 654 it has been held that the dying declaration which suffers from infirmities cannot form basis of conviction. It was held in (2006) 13 SCC 165, Sham Shankar Kankaria Vs. State of Maharashtra " This is a case where the basis of FIR No. 269/10, PS. Kalyan Puri Page 25 of 45 St. Vs. Sonu Singh etc. conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirement of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence". In (2010) 4 SCC Cri. 496496 Paniben Vs. State of Gujarat, wherein it has been held that " Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of crossexamination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness".
In State of U.P Vs. Madan Mohan (1989) 3 SCC 396 it was held that where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
He also relied upon 2010 (1) JCC 362, Sharda Vs State of FIR No. 269/10, PS. Kalyan Puri Page 26 of 45 St. Vs. Sonu Singh etc. Rajasthan. The Hon'ble Supreme Court in the cited judgment held that the third dying declaration was not believable where the deceased had not implicated anyone including the appellants in the first two dying declarations.
In AIR 2009 SC 974, State of Punjab Vs Chatinder Pal Singh where the deceased gave two dying declarations but there were different versions in as much as the second one had narration of more incidents than one; the Hon'ble Supreme Court refused to believe the dying declarations.
In Mohanlal Gangaram Gehani Vs. State of Maharashtra (1982) 1 SCC 200, the Hon'ble Supreme Court held that where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.
25. Coming to the first dying declaration i.e the version of deceased recorded on MLC. PW7 Dr. O.S.Tomar has deposed that the patient was brought by Ct. Jogender of PCR and that he had examined the patient in presence of Ct. Jogender and Ct. Omjeet, who was the duty constable at LBS Hospital. PW21 Ct. Omjeet corroborated the fact and stated that at 6.50 pm PCR had brought the injured Rajesh Negi. He had informed the PS. Doctor inquired from the injured regarding the injury FIR No. 269/10, PS. Kalyan Puri Page 27 of 45 St. Vs. Sonu Singh etc. and the injured told the doctor that he burnt himself. He stated that Ct. Jogender Singh was incharge of PCR Van No. R46 and he was also present in the casualty at the time of preparation of the MLC. Thus, there were three persons i.e the Doctor, Ct. Omjeet and HC Jogender in whose presence the deceased himself stated that he had burnt himself. This version of the deceased was his first statement related to the facts of his death As against the statement recorded by PW SI Raj Kumar, this version seems more believable being the first statement of deceased regarding his death. It having been given immediately on his admission in hospital, when he was not under influence of any medicine apparently. It was recorded by an independent person i.e CMO of the hospital in presence of two police officials. In view of judgments cited hereinabove this being the first statement given by deceased has to be given preference over the second statement recorded by the IO, which statement is otherwise is appearing to be unbelievable for the reasons stated above.
The deceased thus committed suicide as per his own version.
26. Investigation seems to have been conducted in a very hasty and casual manner. As is seen from above discussion on dying declaration; non serious approach of investigating officers during entire FIR No. 269/10, PS. Kalyan Puri Page 28 of 45 St. Vs. Sonu Singh etc. investigation is apparent.
Who took the accused to hospital? As per PW 13 Mukesh one Sanjeev and he were taking the deceased to the hospital on the motorcycle, however, in between the PCR came and Sanjeev went alongwith deceased in PCR and he went to take petrol for his vehicle. Sanjeev has not been examined by the police although he appears to be the most important and natural witness of the fact. PW HC Jogender says that he took the deceased from the spot to the place of incident. He does not speak of any Sanjeev having accompanied him. The deceased is shown to have been admitted in hospital by HC Jogender and not by Sanjeev. Ct. Omjeet is also silent on presence of any Sanjeev in the PCR Van or at the hospital. Testimony of PW13 on the fact of Sanjeev and the motorcycle therefore, remains uncorroborated by official witnesses and the documents. It raises doubt on witness's intentions to add this fact and person. Or, if he is correct then both he and PW4 Nagesh having disclosed the name of the witness and he being resident of the same locality, should have been cited as a witness. PW 13 goes to the extent of saying that he had produced Sanjeev before the police and had told that he was the boy, who helped him in taking the deceased to the hospital {cross examination dated 19/9/2013 page (3)}. The evidence of this witness would have clarified a few very important facts, for instance as FIR No. 269/10, PS. Kalyan Puri Page 29 of 45 St. Vs. Sonu Singh etc. per PW 13 it was Sanjeev, who went to the hospital with the police. PW 18 Ct. Jogender tendered in his evidence the call book register of his PCR vehicle containing particulars of movement of vehicle and information as given to control room, documents are collectively Ex.PW18/P1. As per Ex.PW18/P1 the information with HC Jogender Singh, which was conveyed by him to PCR was that Rajesh Negi had gone to his wife's house to bring her home, however, on refusal, he came back home and burnt himself, which is consistent with version given by the deceased to the doctor. Ct. Lalit Kumar the prosecution witness has deposed that when he reached at the spot, the deceased had already been removed by PCR, so he could not have told anything to HC Jogender. The fact recorded by HC Jogender would have been told to him either by deceased or by Sanjeev, as he apparently did not stay at the spot for long; and if PW 4 & 13 are to be believed in fact he met the deceased at some distance from the spot, though this fact is not supported by the police witness. The witness (Sanjeev) could have corroborated or confronted the prosecution version as recorded in the PCR log book as also the version of prosecution witnesses regarding he having taken deceased to hospital. His non examination is a loop hole in the prosecution story.
27. PW8 W/Ct. Meenakshi has proved the form no.1 filled by her FIR No. 269/10, PS. Kalyan Puri Page 30 of 45 St. Vs. Sonu Singh etc. regarding the information recorded at PCR from mobile no. 9310539406 (belonging to the deceased) - Ek ladke ne apne ko aag laga li hai. The form has the name and the address of the person, who gave the information to the PCR. As per Ex PW8/A, the information that a boy has burnt himself was given to the PCR from the phone no. 9310539406 and the name of informant was Mr. Pradeep Johar. No effort was made to find out this person and produce him as a witness. Since he made the first call to PCR from the phone of deceased, he was a very important witness, for in all probabilities he had either witnessed the incident or deceased told him that he had burnt himself. There are some other calls made to PCR by different persons named in the respective forms; none of the persons have been cited as a witness. These persons would have told as to on what basis did they say that the deceased immolated himself and was not burnt. The explanation, if believable would have helped the prosecution in discarding the suicide theory.
28. The versions of witnesses: As per PW2, the information given to him at 6.10 pm by his brother was that his brother has been burnt and not that his brother has been burnt by the accused persons. He says in his crossexamination that he was with his mother whole night and that the police did not record her statement. But does not say that her mother was FIR No. 269/10, PS. Kalyan Puri Page 31 of 45 St. Vs. Sonu Singh etc. unfit to give statement. Surprisingly, no medical document of the mother has been filed in the court, which could show that she was unfit to give the statement or that she remained in the hospital from 3rd August to 06th August. PW Nagesh says that police did not record the statement of his mother on 3rd August but does not says that it was because she was unfit to give the statement. If the documentary proof of the fact has not been brought on record it can be concluded that mother could have given the statement but her statement was not recorded and it makes the defence, that the case in fact was of suicide and so the DD was kept pending and no statement of relatives was recorded, believable. Non recording of her statement in time also raises question about the delay in registration of FIR.
29. PW9 Ct. Lalit is a material witness of prosecution. He was the first person to have visited the spot after the recording of DD No. 71B at the spot. He says categorically that the persons present at the spot told him on enquiry that Rajesh Singh Negi has burnt himself. He says that even till 9 pm, the time till he was at the spot, no one named any suspect in the incident and the general opinion was that the deceased had committed suicide.
His version corroborates the testimony of PW8 (regarding FIR No. 269/10, PS. Kalyan Puri Page 32 of 45 St. Vs. Sonu Singh etc. PCR call); the MLC proved by PW7, testimony of Ct. Omjeet Singh and also the record produced by HC Jogender of PCR Van.
30. PW12 is the mother of the deceased. The first part of her statement is an improvement from what was stated during investigation. It has been confronted from her statement u/s. 161 Cr.P.C. She has deposed about some incident of morning when her son was threatened by Neeraj and Sonu and also their mother. It is, however, not clear whether she witnessed this or she was told about this by her son. The portion being improvement cannot be considered without an explanation on why the fact was not stated during investigation. Reliance is placed on 2012 (7) LRC 24 (Delhi ) (DB), Bhupender @ Kale Vs State the Hon'ble Supreme Court in aforesaid judgment refused to rely on the statement of witnesses, which were materially improved from what was stated during investigation. The witness has deposed that police official Lalit had come to her house and had taken her son to Bhawna's house but she did not accompany them. This portion has also been confronted being improvement.
The role of Lalit, however, has been explained by PW13 Mukesh, who has deposed that Lalit had told Rajesh that he had come on complaint of Bhawna and he had told him that Bhawna was his wife and FIR No. 269/10, PS. Kalyan Puri Page 33 of 45 St. Vs. Sonu Singh etc. not unknown lady. He had also got the matter settled. Since it was Bhawna's complaint she wrote the settlement. These documents are not on record yet, even if it is to be believed that there was some incident no imputation comes on Ct. Lalit for doing his duty. There was apparently a complaint and he went to the place on the complaint. It has not been proved that he was partisan with Bhawna; on the contrary he got the complaint compromised. No document on these facts are on record and all these statements are improvement; which also explains why the documents could not be collected during investigation. Had the witnesses told these facts to the IO, the investigation on this aspect would have been carried.
31. Coming to the second part of testimony of PW12, she said that from the terrace of her house she saw that the three accused persons were holding her son, however, she said she did not see them burning her son and when she came down, her son was already burnt. Her deposition was confronted with her statement given to the police where she stated that she saw the accused persons burning the deceased. Thus the eye witness version of the witness stood confronted. She did not see the deceased being burnt by accused persons.
The witness has deposed further that her son, who was already FIR No. 269/10, PS. Kalyan Puri Page 34 of 45 St. Vs. Sonu Singh etc. burnt when she reached the spot told her that he was burnt by the accused persons. This part of her evidence was confronted with her statement given to the police where no such thing was stated. Thus as per admissible part of her evidence her son was burnt when she reached at the spot and nothing was told to her by him. However, for the sake of argument, if it is accepted that deceased did tell her about the burning, the witness having deposed that police made enquiries at her house on 02.08.10, she ought to have told the fact to the police. No document has come on record to show that she was unfit for statement till 04.08.10 and she knew that her son was burnt by accused, the information having not been shared with the police at first instance, creates a doubt about it being true. Further, if this part of her statement were to be accepted as correct the prosecution needed to explain the delay in registration of FIR.
Apparently, the incident is of around 6 pm on 02.08.10. If PW 12 is to be believed she knew around that time, having seen partly and having talked with her son that her son was burnt by the accused persons, the police should have known that it was a murder case.
Further, PW13 Mukesh says that on reaching Gurudwara he made inquiries from her mother. The mother would have either told him the facts or not. Witness does not speak further and thus it is to be inferred that mother did not tell him anything. He says in the next line FIR No. 269/10, PS. Kalyan Puri Page 35 of 45 St. Vs. Sonu Singh etc. that public persons were present and one boy told him that his brother had burnt himself. The mother was present there and apparently she did not object the fact being told to her son by the boy as incorrect. Who was this boy and why was he not confronted by the mother about disclosing incorrect fact as per her knowledge, remains unanswered. Neither, there is any investigation on who this boy was and why and on what basis did he tell PW Mukesh that his brother had committed suicide. As per PW 13 this boy had also informed PCR about the self immolation by deceased. It was not difficult to have traced this boy.
32. Another relevant fact related to this witness (PW12) is that though she was alleged eye witness of prosecution, her evidence was not recorded at first opportunity. She says that police came to her house on 02.08.10. Thereafter, she was in hospital. There is no evidence on record that she could not give the statement on 02.08.10 and 03.08.10. She herself does not say in her evidence that she was not fit to give evidence. If at all she was unfit, it is not clear, till what time was she not fit for the purpose. Her statement recorded at a later stage becomes doubtful on account of being after thought.
In AIR 2005 SC 1805 , Sheikh Mahboob @ Hetak and Ors Vs State of Maharashtra, the Hon'ble Supreme Court held : " So much FIR No. 269/10, PS. Kalyan Puri Page 36 of 45 St. Vs. Sonu Singh etc. for the gaping holes in the prosecution story based on eye witness account. Doubt arising from the eye witness account left too many question marks and too many unexplained circumstances, which contra indicated their acceptance without corroboration".
The testimony of PW12 in view above facts i.e. she having made improvements in her statement; she having not supported prosecution on the fact of her being an eye witness of the incident; she having not given the correct facts as per her knowledge to Ct. Lalit at first instance, when he made inquiries from her as per her own admission; there being no documentary evidence of her admission in LBS hospital and consequential inability to give a statement, is not trustworthy.
33. PW13 Mukesh Negi has deposed about her mother having told him about quarrel between Rajesh and Sonu & Neeraj, showing of pistol, mausi of accused having come to his house and the incident related to police official Lalit. This entire pat of evidence is inadmissible partly being hearsay and partly being improvement from the statement u/s. 161 Cr.P.C. His statement that a lady came and told him that his mother had gone out running and he should also see what had happened, was confronted with his statement Ex.PW13/DA, where he had said that he was sitting in his room when a lady told his mother that her son has been FIR No. 269/10, PS. Kalyan Puri Page 37 of 45 St. Vs. Sonu Singh etc. burnt. The mother ran and he ran after her. If the statement given to the police is believed that lady had told him and his mother that Rajesh has been burnt and thereafter, he and his mother had ran to the spot. This, however, will raise a question on the mother being on the terrace and having seen the incident and the witness having known that his brother has been burnt as told by the lady. To overcome the contradiction, the witness improved his version to cover the delay in registration of FIR and also to corroborate his mother's version by saying that the mother had already gone and the lady told him that his mother had gone running and not that Rajesh has been burnt. The improvement is on a very material fact in question i.e the time of acquiring of knowledge of incident and the mother having seen the incident from terrace or having heard it from that lady. It raises suspicion on truthfulness of the version of the witness.
34. PW13 has deposed that since the police did not come in time, he and one boy of the area Sanjeev were taking the deceased on motorcycle to the hospital. On way they met PCR and Sanjeev took the deceased to hospital in PCR. This fact has not been corroborated by the PCR witness, who says that he took the deceased from the spot. Strangely this very important witness Sanjeev has also not been examined by the prosecution.
FIR No. 269/10, PS. Kalyan Puri Page 38 of 45 St. Vs. Sonu Singh etc.
35. PW13 Mukesh has admitted that at 6.15 pm he had told the police that " Rajesh ne aag laga li hai". The document has also been filed by PW23 on record. Thereafter, a call was received at PCR from the residential landline number at the house of witness. The witness admitted that 22773465 was the land line number of his house. As per the PCR record an information was given from this phone at PCR that a boy has burnt himself. The witness says that there were many persons in his house on that day, someone might have called the police. It is difficult to believe that an unknown person would have entered the house only to give a false information to the police at PCR. A careful perusal shows that the the name of informant from this number is Mukesh. After about half an hour of informing the police that his brother has burnt himself, the witness changed his version and stated that neighbours had burnt his brother and they were quarreling with his mother. What made him change his version is not clear? If someone had told him that his brother has been burnt then he should have informed the police immediately. Relevantly he met HC Lalit at his residence as per his own admission, though HC Lalit is saying that he did not meet the family members of deceased at the spot. If they had met, the witness ought to have told HC Lalit that his brother has been burnt by the neighbours and if his FIR No. 269/10, PS. Kalyan Puri Page 39 of 45 St. Vs. Sonu Singh etc. statement could not be recorded immediately, it would have been recorded at first possible opportunity or at least intimation would have been conveyed to the PS. The direction of investigation would have changed. And if HC Lalit is to be believed, the witness is telling a lie that HC Lalit had met him at the spot. Relevantly PW Pushpa has also said that some inquiry was made by police at her house on 02.08.10. What was that inquiry has been concealed. No one has deposed as to what was communicated to the police in that inquiry. The versions of prosecution witnesses are self contradictory and are against the prosecution case as well. If the fact was conveyed yet not recorded or acted upon, the prosecution is liable to explain delay in registration of FIR as stated hereinabove also. The Hon'ble Supreme Court in 2012(1) LRC 81 (SC), Kailash Gour & others Vs State of Assam held :" there can be only two explanations for this kind of a situation. One could be that the Investigating Officer was so stupid, ill trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation.....The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of crime were nor did the witnesses not shown as witnesses of the occurrence had any idea, the investigations started without any FIR being recorded till FIR No. 269/10, PS. Kalyan Puri Page 40 of 45 St. Vs. Sonu Singh etc. late night on 15th December 1992. We are inclined to believe that the second explanation is more probable of the two."
The judgment has factual applicability on the facts of the case where many witnesses, who knew the facts are not examined and the examined witnesses have improved themselves over and over again.
The Hon'ble Supreme Court also held in the aforesaid matter that enmity between the complainant party and accused being a double edged weapon there could be a motive on either side for commission of offence as for false implication.
36. PW12 and PW13 are also contradicting each other on how mobile of Rajesh came to their possession. Relevantly this is the number from which the first call was made to the PCR. Mother says that Rajesh told her that his mobile was with accused persons and accused persons threw the mobile, which she picked from the spot. PW13 Mukesh on the other hand says that he had seen the mobile of his brother lying on the road and he had picked that phone. It is not clear why the witnesses are lying on this small issue, perhaps to cover up the call, which was made from this number to the PCR.
37. The prosecution has relied upon the evidence of PW 10 FIR No. 269/10, PS. Kalyan Puri Page 41 of 45 St. Vs. Sonu Singh etc. Bhawna wife of the deceased. She is the prosecution witness and is proving the plea of alibi of the accused persons. She says in her un confronted examination in chief that her brothers were with her in her house and Pankaj was not with them. Someone told her that Rajesh has burnt himself. Thereafter the mother of Rajesh came and started quarreling with them and so they left for her mausi's house. The prosecution thus is unsure of its case in allowing not only this witness to have been made a prosecution witness but also having relied on her statement that her brothers were in the house when the incident of burning took place.
The IO thus has examined a witness, who does not support prosecution but has not examined at least four persons, who were very important witnesses of facts i.e Pradeep Jakhar whose name and address is mentioned as the first informant to the PCR. It has not examined the lady, who allegedly told Mukesh ( and her mother as per EX PW13/DA) about the incident, to clear as to what exactly was told and who were present when the information was given. It did not examine the boy, who told Mukesh that his brother had burnt himself; apparently this boy had also called the police at 100 number, so it would not have been difficult to trace him. Fourth very important witness was Sanjeev, whose identity is not disputed anyway. In fact PW13 stated in his crossexamination FIR No. 269/10, PS. Kalyan Puri Page 42 of 45 St. Vs. Sonu Singh etc. that he had produced Sanjeev before the police and had told them that this boy helped him. Still his statement was not recorded. These four witnesses were witnesses related to important facts and in a case where there is a genuine dispute as to whether the deceased committed suicide or he was murdered, testimony of these witnesses would have helped the prosecution in bringing the truth before the court.
The Hon'ble Supreme Court in Surinder Kumar (Supra) held that nonexamination of natural witnesses raises a doubt on the prosecution case. In the said case the ladies with whom the deceased went to see movie, the boy who was present in cinema hall, landlord of deceased, and the children of deceased were not examined. Though these witnesses were not touching the cause of death of deceased, yet their non examination was considered against the prosecution case. In the present case all the four witnesses were witnesses of important facts of the case and there nonexamination would be considered as a serious omission on part of the investigating officer.
38. This is a strange case where four prosecution witnesses have deposed that as per their knowledge it was a case of suicide. These witnesses are Doctor Arun Kumar, PW 21 Ct. Omjeet, PW 9 HC Lalit and PW10 Bhawna. Ironically the prosecution has relied upon the FIR No. 269/10, PS. Kalyan Puri Page 43 of 45 St. Vs. Sonu Singh etc. statement of Bhawna and has cited her as a prosecution witness, when she in her statement u/s. 161 Cr.P.C itself had said that her brothers were at home with her, when she heard that deceased had burnt himself. She also deposed that since mother of deceased came to quarrel with them, they left for their mausi's house. Her evidence cannot be discarded since prosecution itself has relied upon her version. The other three are natural witnesses of the facts/ investigation and have deposed what they were told by public persons and the deceased himself; their testimony seems corroborative of Bhavna's version as against the prosecution story of murder.
The Hon'ble Supreme Court held in 2011 III AD (Cri) (SC) 13 ,K. P. Thimmappa Gowda Vs State of Karnataka held that if the court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty and other that he is innocent, then the benefit of doubt goes in favour of the accused. It was so held in AIR 1981 SC 950 Tara Singh Vs. State of Madhya Pradesh; 2007 (2) JCC 1636, Rahesh Kumar @ Mukri Vs. State of NCT of Delhi and in AIR 2007 SC 28, Samghaji Hariba Patel Vs. State of Karnataka, also. There are two versions of prosecution case. Both deposed by the prosecution witnesses. In view of the facts, the view that deceased might have committed suicide appears more probable. In view of above FIR No. 269/10, PS. Kalyan Puri Page 44 of 45 St. Vs. Sonu Singh etc. judgments and facts, all the accused persons are acquitted of the charges framed against them. File be consigned to record room. Announced in the open court on 30.08.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI FIR No. 269/10, PS. Kalyan Puri Page 45 of 45 St. Vs. Sonu Singh etc.