Delhi District Court
State vs . Pradeep Kumar on 26 May, 2014
IN THE COURT OF SH. J. R. ARYAN, DISTRICT & SESSIONS JUDGE,
NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI
SC No.42/11
Unique ID Case No.02402R0217862011
State Vs. Pradeep Kumar
s/o Sh. Ram Swaroop
r/o A2/482, gali no.21, Harsh Vihar,
Delhi
FIR No. 59/11
PS: Harsh Vihar
U/s 302 IPC
Date of institution of case :- 04.08.2011
Date of reserving the case for orders :- 24.05.2014
Date of passing of orders :- 26.05.2014
JUDGEMENT
1. Accused Pardeep has been charged with an offence of murder of his wife and charge under Section 302 IPC tried against accused is that on 26.04.2011 at around 5.45 am accused set Parvesh, his wife, on fire after pouring kerosene oil on her in his house A2/480, gali no.21, Harsh Vihar, Delhi and victim Smt.Parvesh died on 30.04.2011 as a result of septicaemia due to ante mortem flame burns involving about 75 % of total body surface area. Accused had claimed trial. Accused has also been put for trial for offence under Section 498-A IPC by order and proceedings dated 24.05.2014 whereby additional charge for this offence was found prima facie made out and framed. This charge in brief is that accused subjected victim-deceased Smt. Pravesh to cruelty while she was living and residing in her matrimonial home A2/480 gali no.21, Harsh Vihar and finally she suffered burn injuries on 26.04.2011 and died because of those burn injuries on 30.04.2011. Accused had claimed trial. Prosecution seeks to prove its charge from the dying declaration statement given by victim-deceased Smt. Parvesh which SC no.42/11 Page 1/22 was recorded by SDM on 26.04.2011 in GTB hospital on the date of incident and that statement is now proved as Ex. PW2/A.
2. Minor son of victim-deceased namely Himesh PW3 aged 5 years is the eye-witness of the incident and he claims to have seen accused setting his mother on fire after putting kerosene oil on her.
3. Prosecution case is that DD 7 was recorded in Police Station Harsh Vihar on 26.04.2011 at 7am on an information received from Police Control Room that a quarrel had taken place between husband and wife in house A2/480, Harsh Vihar. This information to PCR had been conveyed through mobile phone 9136766140 by PW6 Jai Prakash who is brother of deceased. PW13 HC Harkesh then on duty was given this DD call and he reached spot. and found that victim having suffered burn injuries had already been taken to GTB hospital. Accordingly, he reached GTB hospital. There he recorded statement of injured Smt.Parvesh. Doctor had recorded on the MLC of victim that she was fit to give her statement. Statement of Smt.Parvesh recorded by HC Harkesh and during trial exhibited as Ex. PW13/A was to the effect that she was resident of house A2/480, Harsh Vihar, Delhi and used to carry stitching job work. On 26.03.2011 at 6.30 morning a quarrel took place between victim and her husband when her husband was demanding money for liquor and victim did not have any money with her. She further stated that her husband Pradeep then told her that if she would not give money then he would buy liquor by selling house household articles and he further said that he would finish the matter. He put kerosene oil on her and set her on fire. Neighbouring persons and her husband then put off the fire by throwing water upon her. Someone made a 100 number call and she was brought to GTB hospital.
4. HC Harkesh conveyed these facts to SHO PS Harsh Vihar and as directed by SHO HC Harkesh then gave a phone call to SDM. SDM Sh.Vipin Garg PW2 reached GTB hospital. SDM first consulted doctor who was SC no.42/11 Page 2/22 attending upon victim to know if victim was in a fit state of mind to make statement. Doctor had recorded his opinion on MLC that victim was fit to give her statement and SDM then recorded statement of the victim which is now proved as Ex. PW2/A.
5. Victim Smt. Parvesh in that statement which is being pressed as dying declaration narrated incident that she alongwith her husband and two children was residing at A2/480, gali no.21, Harsh Vihar, Delhi. Her husband was a habitual liquor taker/drinker. He had been asking for money for buying liquor since past three days and victim did not have money and on that issue her husband had been quarrelling with her. On 26.04.2011 her husband started demanding money for liquor by around 4 o' clock morning. Victim-informant told him that she did not have money. He became angry on that issue and he brought a can which contained kerosene oil and put kerosene oil on her and set her on fire by a match stick. It was around 5.45pm when victim was put on fire. She further narrated that she raised hue and cry and neighbouring people then started banging on their door which was bolted from inside. When her husband found that door was about to be broken, he opened it. Her husband then put water upon her to put off her fire. The neighbouring persons came inside and they switched on submersible water pump and put off her fire by water. Someone informed her mother, who was also residing in Harsh Vihar and her mother and brother arrived on short and they brought her to GTB hospital.
6. On this statement of victim recorded by SDM that FIR for offence under Section 307 IPC was registered at 11.35 hours on 26.04.2011 which is now proved as Ex. PW7/A. During investigation statement of mother and brother of victim were recorded. On 30.04.2011 victim Smt. Parvesh died in hospital while she was under treatment and offence under Section 302 IPC was added. Victim's body was subjected to post mortem and post mortem report Ex. PW4/A opined cause of death as septicaemia as a result of infected SC no.42/11 Page 3/22 ante mortem flame burns involving about 75 % of total body surface area.
7. During investigation a plastic can containing some quantity of kerosene oil, match box and some match sticks, partly burnt salwar and shirt pieces were seized from the spot. Crime team took photographs of the scene of the crime and four photographs have been proved as Ex.X1 to X4. Seized exhibits i.e a can containing some kerosene oil, two cloth pieces and match box were sent to FSL and report Ex. PW9/A opined that contents of can which was approximately 10 ml was found kerosene. Clothe pieces were found to contain kerosene residue but no residue of any inflammable substance including kerosene could be detected in the match box which contained a few unburnt match sticks. With this incriminating evidence accused was charge sheeted.
8. Prosecution examined in all examined 21 witnesses who had been cited in the charge sheet. PW1 Jagwati is the mother of deceased. According to this witness she was employed in MCD and had four children. Her daughter Parvesh was the eldest amongst children and she had been got married to accused Pradeep in December, 2005. Two kids, both sons, were born to her daughter from accused and elder son Himesh who has been examined as PW3 in this case, was five years of age when this witness appeared in Court. Matrimonial home of Smt. Parvesh was A2/480, gali no.21, Harsh Vihaar, Delhi. Witness further deposed that Pardeep was not gainfully employed and used to remain without work. He was in the habit of taking liquor and was associated with bad elements. Household expenses were being met by way of some rental income and some stitching job work which Smt.Parvesh used to carry. Accused used to pick up quarrel and used to beat her. He used to demand money from Parvesh for buying liquor .
9. Witness further deposed that on 26.04.2011 at around 6.40am neighbour Vinod came and informed witness that a quarrel was going on in the house of her daughter Parvesh. This witness with her son Jai Prakash then SC no.42/11 Page 4/22 reached house of Parvesh and a crowd of people had already collected there and witness having entered inside the house found that Parvesh was lying with burn injuries and a cloth was found wrapped around her. Wearing salwar of victim was burnt to a large extent and witness got it changed by petticoat. Her son Jai Prakash then gave 100 no. call. Witness further deposed that Parvesh told her that her husband Pradeep had set her on fire after pouring kerosene oil. Accused Pradeep tried to run away but second son of this witness brought accused Pradeep home. Witness with her son Jai Prakash then took Pravesh to GTB hospital in an auto-rickshaw and Police as well SDM had recorded statement of Parvesh in the hospital. Witness identified two cloth pieces, one pick colour cloth piece part of shirt of victim and other pink colour cloth piece as part of salwar of the victim. Witness finally stated that Parvesh died after five days.
10. PW2 SDM Seemapuri who had recorded statement of victim in GTB hospital and proved that statement as Ex. PW2/A. Witness deposed that while recording statement of victim, he took that statement of victim in his mobile phone audio recording and later on he prepared CD of that audio recording from his mobile phone and witness exhibited that CD as Ex. PW2/B by identifying voice of the victim as well his voice. Witness deposed that doctor who was attending upon victim had recorded on the MLC that victim was fit to given her statement.
11. PW3 Himesh is a child aged around 5 years when examined in November, 2012 in this case. Before recording his deposition, Court satisfied itself that victim was capable to understand questions and give a rational answer and accordingly his deposition was recorded. Witness stated that on the date of incident her mother was preparing dough in the kitchen in the morning. His father Pradeep was lying on bed in the bedroom and was watching television. Witness was also lying on the floor of the room. His father then came out of room and started quarrelling with his mother. His SC no.42/11 Page 5/22 father then went inside the kitchen, picked up a kerosene oil can and poured kerosene oil on her mother and with the help of match stick he set her on fire and then he gave a push to his mother towards kitchen. His father then started taking bath and her mother extinguished her fire by putting water. Her mother raised hue and cry. This is the deposition in brief made by this witness. PW4 had conducted post mortem and exhibited report. PW5 is the doctor who had attended victim Smt Parvesh when she had been brought to GTB hospital. Doctor found victim oriented and conscious. There were burn injuries on arm, forearm, right lateral chest, left side of abdomen, left breast as well bilateral thigh and right leg and superficial burn over chin and neck and total surface area under burn injuries was around 45%. Witness proved MLC as Ex. PW5/A.
12. PW6 is witness Jai Prakash who is brother of deceased. His deposition is in consonance with the facts deposed by his mother PW1. PW7 is the Duty Officer who proved copy of the FIR. PW8 is Constable Som Dutt who had accompanied Head Constable Harkesh when DD 7A was taken up for inquiry. PW9 is expert from FSL and exhibited report as Ex. PW9/A. PW10 had also attended upon victim on 26.04.2011 when she had been brought with burn injuries. PW11 had recorded DD 7A and proved its copy as Ex. PW11/A. PW12 on the basis of information received from hospital on 30.04.2011 that victim Smt. Parvesh had expired, DD 26A was recorded by him. PW13 is Head Constable Harkesh . PW14 is Moharar Malkhana with whom exhibits seized from the spot on the date of incident had been deposited and according to this witness these sealed parcels of exhibits were sent to FSL on 17.06.2011 and those parcels alongwith FSL report was received on 05.10.2011. PW15 is Constable who had taken sealed parcel exhibits to FSL. PW16 is the final concluding Investigating Officer Inspector K. K. Upadhayay.
13. PW17 is the investigating officer, who took over investigation soon SC no.42/11 Page 6/22 after FIR had been recorded. IO ASI Prem Pal deposed that on receiving copy of FIR while in police station he proceeded and reached the spot. He called crime team which arrived and photographer Constable Neeraj took photographs. Some burnt cloth pieces were lying just outside the kitchen. He further saw a plastic can containing some match sticks and some burnt match sticks lying there. All these articles were seized by affixing. The witness further deposed that Jai Prakash, brother of deceased, then pointed out that accused Pradeep was present near the house and Pradeep was there as found by this witness and he effected his arrest by preparing his arrest and personal search memo. Accused then allegedly gave a confession to this police official, which was recorded as PW13/B and accused pin pointed the kerosene oil can which was seized. IO then recorded statement of Smt. Jagwati, mother of deceased and finally on 30.04.2011 information was received that Parvesh had expired and offence under Section 302 IPC added. On 01.05.2011 inquest proceedings were carried and body was subjected to postmortem. PW18 is the incharge mobile crime team. PW19 is a Constable who on duty in police control room on the date of incident had recorded information at 6:51:22 hours and that information conveyed from the mobile phone 9136716140 was that quarrel had taken place between husband and wife at A-2/480, Harsh Vihar, Delhi. She proved attested copy of PCR form as Ex.PW19/A.
14. PW20 is the witness Vinod, who was residing in the adjoining house of accused and witness deposed that at the time of incident he was residing in H.No. A-2/481 and accused Pradeep with his family was residing in H.No. A-2/480. Pradeep was in habit of taking liquor, but then he used to live with his wife sometime in usually normal condition and on some other occasions he used to assault her. Finally on the date of incident, date or month witness did not reall, he deposed that at around 6 o'clock morning as he got up he just came out of his house and was standing in the gali and on that occasion he SC no.42/11 Page 7/22 heard some sound and then utterance made by Parvesh. Utterance was quoted as "Mujhe Bacha Lo or Meri Maa Ko Bula Lo". At that point of time the door of the house of accused Pradeep was shut, but witness did not know if it was bolted from inside or not. Witness did not go inside the house to see what had happened and thus he did not know in what condition Parvesh was and witness then reached the house of mother of Parvesh and informed her and she followed this witness and reached the spot. Witness was got declared hostile, but then he denied if he had heard Parvesh while crying and saying that Pradeep had set her on fire. He further denied if he gave knock on the door of the house of Pradeep or it was bolted from inside or that neighbouring people collected and only then Pradeep opened the door. Witness was confronted with his previous 161 Cr.P.C statement. Finally, the PW21 is the Constable, who was part of the crime team and had taken photographs of the scene of crime and proved those photographs as Ex.PW21/1A to 4A.
15. Accused in his 313 Cr.P.C examination admitted that he was residing on the given address with his Parvesh and two sons at the time of incident. He further explained that on the date of incident, a quarrel had taken place between him and Parvesh with regard to the property. He disputed if Parvesh told Jagwati that she had been set on fire by accused. Parvesh rather told Jagwati that she herself had set her on fire. He further denied if he was in a habit of taking liquor and he denied if he had demanded money for liquor from Parvesh and pleaded had not put kerosene oil on her and had not set her on fire. He further explained that he rather tried to extinguish the fire of Parvesh by his hands wherein he sustained burn injuries on his hand and later he put water to extinguish her fire. Rest prosecution case accused denied being ignorant as he had been taken into custody by police, he finally explained defence that his mother-in-law in greed of his property and she used to instigate her daughter Parvesh to threaten accused of pouring SC no.42/11 Page 8/22 kerosene oil on herself and to make an attempt of self immolation so that accused would give up his share in the property and transfer the house property in the name of Parvesh. Jagwati in order to grab the house property of accused tutored Parvesh and son Himesh to make a false statement of the incident to get accused implicated. No defence witness has been eaxmined.
16. Ld. Addl. PP argued that when statement of deceased has been recorded by the ld. SDM and that statement Ex.PW2/A qualifies to be a dying declaration, there is no reason to disbelieve it. Deceased very specifically stated before the SDM that accused was in a habit of taking liquor and on the date of incident also accused picked up fight with deceased while demanding money for liquor and then put kerosene oil on her and set her on fire. It is further submitted that before SDM reached the hospital and recorded the statement of victim Parvesh, HC Harkesh had also recorded statement of Parvesh which has been proved as Ex.PW13/A. This statement of Parvesh as a dying declaration is consistent version of incident and as the one given by the deceased before the SDM. In this statement also deceased stated that accused had been asking for money for liquor and victim responded the accused that she did not have money and accused then uttering to deceased that he would finish her and then put kerosene oil on her and set her on fire. It is submitted that testimony of SDM regarding statement of deceased recorded as dying declaration and testimony of HC Harkesh PW13 have not been challenged in the cross-examination by any material for suggesting any doubt. It is submitted that before SDM had proceeded to record statement of deceased he had consulted the doctor attending upon the victim and doctor had already recorded his opinion that victim was in a fit condition of body and mind to give her statement. PW5 doctor who proved MLC of victim has specifically stated that patient was oriented and conscious. ld. Addl.PP argued that law is settled that dying declaration could be the basis for recording the conviction where dying declaration appeared to be truthful and inspired SC no.42/11 Page 9/22 confidence of the Court to believe it and even no further corroboration was required before the Court acted upon dying declaration. It is argued that the victim Parvesh had no reason or motive to get the accused implicated and there appears no material on record to doubt the veracity of the dying declaration.
17. It is further argued that five years old son Himesh of deceased PW3 claims to be the eyewitness of the incident and has stated very specifically that accused his father first picked up a quarrel with his mother Parvesh and then accused picked up the kerosene oil can and threw kerosene oil on Parvesh and then set her on fire by lighting a match stick. It is argued that thee is no reason to not to believe the testimony of this child. It is submitted that charge of murder stands proved and accused is liable to be held guilty.
18. Advocate Sh. N.A. Deshwal appeared on behalf of accused and submitted that dying declaration was surrounded with suspicious circumstances and it ought not to be believed to an extent of holding charge of murder proved. It is argued that when victim deceased had been brought to the hospital by her mother and brother and they were with deceased till statement of deceased was recorded initially by PW13 HC Harkesh and then by SDM, possibility of victim deceased being tutored by her mother may not be found completely ruled out. Counsel pointed out statement of Parvesh Ex.PW13/A where signatures of Parvesh appearing at point 'A' is little comfortable distance from the ending line of her statement and it may suggest if after obtaining signatures of Parvesh that statement was recorded. Counsel argued, accused himself had been a victim of cruelties being committed by his wife and her family members and on that point mother of deceased admitted in cross-examination that sometime before she (Jagwati) had given a complainant at police station Harsh Vihar, which she proved as Ex.PX, wherein she alleged that accused used to threaten them to get them implicated by committing suicide. Counsel further argued that though deceased in her SC no.42/11 Page 10/22 dying declaration statement mentioned that a crowd of locality people collected and gave a bang on the door and only then accused opened the door, not a single public person has been examined and that should created the serious doubt in the prosecution case. Counsel further submitted that as it appears from the photographs of the scene of crime, it is small kitchen space just underneath stairs and LPG stove is there meant for cooking food and thus there was no kerosene oil readily available.
19. It is further argued that witness Himesh PW3 has been introduced as his statement during investigation was recorded after more than three months and throughout that period child had been in custody of his maternal grand mother with whom he was residing. It is further argued that witness stated that his mother was preparing dough in the kitchen, but then photographs of space has shown that kitchen was all set if completely unused on the date of incident. Counsel argued that accused made an attempt to save the victim by putting off fire with his bare hands and consequently sustained burnt injuries but then this fact has been completely suppressed by the investigating agency and it reflected unfairness on the part of the investigating agency. Counsel argued that charge of murder should not be held proved.
20. "Dying Declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering the weight to be given to the dying declaration in as much as there could be any number of circumstances which may affect the truth. The Courts have always put a guard to see that dying declaration was not the result of either tutoring or prompting or product of imagination", Nallapati vs. SDO Guntur, AP, AIR 2008 SC 19. It has, however, been held in another case by Supreme Court reported as State of UP vs. Ram Sewak, AIR 2003 SC 2141 that dying declaration given by the deceased cannot be held tainted merely because deceased was carried by his relations or friends to the hospital. It is again held that there is no reason why the dying declaration which is otherwise SC no.42/11 Page 11/22 found to be true, voluntary and correct should be rejected only because the person who recorded dying declaration did not or could not take signatures or thumb impression of deceased on that statement. ld. defence counsel in the present case had argued that SDM in the present had not obtained either signatures or thumb impression of deceased on her statement.
21. Defence counsel had then argued that PW2 ld. SDM in cross-
examination admitted that he took up conversation with deceased and recorded that conversation in his mobile phone as audio recording and then he came out of the burn ward and then recorded/written statement as Ex.PW2/A and this method of recording of dying declaration should not be approved and which could not guarantee the true and correct version of deceased coming in the statement. In this regard, ld. counsel referred to cross- examination of PW2 wherein witness stated :-
"Statement of victim patient in this case was recorded in the manner that first I had conversation with the victim, which was in question and answer form and it was simultaneously recorded in audio form by my mobile phone and after completion on that conversation I came out of the room in the gallery while sitting in the gallery I recorded statement Ex.PW2/A in my own handwriting on the basis of my memory of conversation which I had with the victim patient".
It was argued that law of dying declaration emphasized that statement of deceased must come on record as per version and expression used by the deceased. Law on that point may be referred to in a case State of Karnataka vs. Sharif, AIR 2003 SC 1074, it has been held that very often deceased is merely asked as to how the incident took place and the statement is recorded in narrative form. In fact, such a statement is more natural version of incident as it had been perceived by the victim. It is again held in Balbir Singh vs. Statement of Punjab, AIR 2006 SC 3221 that law does not provide that dying declaration should be made in any prescribed manner or in the form of SC no.42/11 Page 12/22 question and answers.
22. Accordingly, the first point for determination in the present trial would be to what extent dying declaration recorded by Magistrate as Ex.PW2/A is to be believed and if it is truthful version of the incident which suffers no infirmity and/or there is no circumstance suggesting doubt in the veracity of the version and then if it could be made a sole basis for holding the charge of murder proved.
23. Second point for determination is whether the eyewitness PW3 proves guilt of accused or even to say provide necessary corroboration to dying declaration statement of deceased, accordingly evidence is to be analysed for determining the above two points.
24. Since prosecution is pressing its case on the dying declaration it may be observed, keeping in view the contention from accused side that dying declaration statement of deceased even recorded by SDM is not free from suspicion and a possibility of deceased being under the influence and tutoring of her mother and brother who had brought victim to the hospital may not be ruled out, and whereas prosecution presses its point that where statement of victim had been recorded by SDM soon after the incident and there was no sufficient intervening period for victim-deceased Parvesh to have been influenced by anybody, dying declaration should be taken to be truthful version of incident and there was no reason to not to believe it, a word of caution given by Hon'ble Supreme Court in Judgement Puran Chand versus State of Haryana 2010 (6) Scale 11 needs to be taken into consideration.
"The Courts have to be extremely careful when they deal with a dying-declaration as the maker thereof is not available for the cross-examination which poses a great difficulty to the accused persons. A mechanical approach in relying upon a dying- declaration just because is there is extremely dangerous. The Court has to examine a dying-declaration scrupulously with a SC no.42/11 Page 13/22 microscopic eye to find out whether the dying-declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. Number of times the relatives influence the investigating agency and bring about a dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents of law or other relatives."
24. Accordingly a scrutiny of evidence and material is to be taken for assessing the credibility and acceptability of the dying declaration. According to prosecution case on 26.04.2011 at around 6am victim Parvesh suffered burn injuries in her house A2/480, Harsh Vihar, Delhi that adjoining house neighbourer PW20 Vinod went to house of mother of victim as she was residing just at a distance of five minutes walk and informed them that a quarrel was going on in the house of victim Parvesh. Smt. Jagwati PW1 alongwith her son PW6 Jai Prakash then immediately reached the house of accused and they found victim with burn injuries and a cloth was found wrapped around her body. On that occasion PW6 Jai Prakash gave a 100 number call and on the basis of that call DD 7A was recorded in Police Station Harsh Vihar. Information conveyed by witness Jai Prakash was only to the effect that there was a quarrel / dispute between husband and wife. Had it been a fact situation that PW1 and PW6 saw victim Pravesh with burn injuries and PW1, as she deposed, when asked Parvesh as to how she sustained burn injuries, Parvesh replied that Pradeep had set her on fire after pouring kerosene oil on her, certainly as a natural human conduct a report should have been that accused Pradeep had set victim on fire. A look at PCR SC no.42/11 Page 14/22 form Ex. PW19/A reveals that earliest information in PCR was recorded at 07.04.04 to the effect "Jhagde me ek lady jali hui hai". Further information recorded at 07.06.21 is that "F/B (fire brigade ) moke per aa gai hai". Further information from Beker 96 recorded at 07.14.41 is "miya biwi ka jhagda hua tha jisme wife ne apne aap ko morning 05.00 am per aag laga li thi, hamare aane se pahele hi lady ko private gadi me hospital le gaye hai". Further information recorded at 07.29.02 from Beker 96 is "lady ka naam Pravesh wife of Pradeep age 23/24 years hain jike do bache hain". Finally information recorded at 07.43.09 is " Pravesh wife of Pradeep age 26 years r/o A2/480 gali no.21, Harsh Vihar GTB hospital me aaker admit hui hai jo bata rahi hain pati ne mitti ka tel dalker jalaya hai jo hosh me hai, mayke wale sath hai, doctor sahab ne 35/40% jala hua bataya hai.
25. This PCR information record mentioning that there was a quarrel between husband and wife wherein wife had put herself on fire, no evidence or material has been brought as to on what basis and how that information came to be recorded that wife had herself set on fire.
26. PW1 Jagwati in her deposition attributed wrongful and criminal act to accused by statement that accused Pradeep was not engaged in any gainful employment and he was in the habit of taking liquor. Couple used to meet their household expenses by some rental income as well some stitching job work which her daughter used to carry. Accused used to pick up quarrels and beat her and used to demand money for buying liquor. Testimony does not provide any strong circumstance or motive for accused to set deceased on fire on the date of incident. In cross examination this witness further admits that when Parvesh was got married to accused the family of accused was residing in a house in Pandav Nagar where they lived and resided for about three years and then finally that Pandav Nagar house was sold. She further admits that an amount of Rs.15,00,000/- came to the share of accused from sale consideration of Pandav Nagar house and then accused Pradeep SC no.42/11 Page 15/22 purchased two house properties in Harsh Vihar and both those house properties were purchased in joint name of Pradeep and Pravesh. One such property A2/480 was purchased on a consideration that it was located in close vicinity to the house of this witness so that witness could keep a watch about the well being of her daughter. Witness further admits in cross examination that second house property had been let out and presently she had been collecting rent from the tenants. She further admits that her children used to visit house of accused in Harsh Vihar almost every day for the reasons that there was no refrigerator in the house of this witness and accused had a refrigerator in his house and the witness used to use it for storing milk and vegetables. If this witness or her children used to visit house of accused almost every day then no deposition has come on record if any such serious quarrel or fight was ever seen or observed between accused and his wife whereby it could be inferred or taken that accused had set victim on fire.
27. As is the prosecution case victim Parvesh had been brought to GTB hospital by her mother and brother and PW1 in cross examination states that Pravesh herself had told the history of the incident that is cause of her burn injuries to the doctor but then in the MLC Ex. PW5/A it is recorded that patient was a case of alleged history of burn at around 6am on 26.04.2011 in Harsh Vihar. Had it been that Pravesh had been set on fire by accused she would have mentioned it very specifically to the doctor. Non-mentioning of this vital fact by the victim before the doctor though victim is conscious and oriented creates doubt in the dying declaration statement of victim.
28. Accused Pradeep had sustained burn injuries and MLC to that effect had been prepared at GTB hospital. This document has remained undeposed and unproved by any prosecution witness but since it is a part of the charge sheet it can be referred to. This MLC dated 26.04.2011 shows that Pradeep son of Ram Swaroop had been brought to hospital at 9.35 pm by Constable SC no.42/11 Page 16/22 Praveen as a case of alleged history of burn ( kerosene ?) suffered in right hand and wrist on 26.04.2011 at around 6.30am at home. PW13 HC Harkesh is police official who on taking up DD 7A for inquiry had reached the spot at the earliest point of time. Witness in cross examination deposed that he did not come to know the fact that Pradeep had also reached hospital alongwith Pravesh or that his MLC was prepared on the same point of time. Witness however admitted that Pradeep when apprehended, some cream was found applied on his hands and hands appeared bearing burn marks.
29. PW17 ASI Prem Pal had been entrusted with investigation of this case soon case was registered at 11.35pm. Witness deposed that in about half an hour he had reached the spot after the FIR had been registered. He then deposed that witness Jai Prakash informed witness that Pradeep was present near the house and finding Pradeep present there he arrested him by preparing arrest and personal search memos. He further deposed that Pradeep then gave a confession which was recorded as PW13/B and pursuant to confession which was a disclosure also that Pradeep pin-pointed a kerosene oil can lying in the kitchen which was seized. A complete unfairness on the part of Investigating Officer is reflected. Recovery and seizure of kerosene oil is sought to be brought within the purview of Section 27 of the Evidence Act but then photographs of the scene of the crime which had been taken as soon the crime team arrived, can in question is found nearby the LPG gas stove in the kitchen and the witnesses have admitted this fact but still PW17 Investigating Officer tries to impress through his deposition that kerosene oil can was recovered and seized as pin-pointed by accused pursuant to confession. That is unfair on the part of the Investigating Officer.
30. A serious doubt appears as regard the presence of this kerosene oil can on the spot. PW13 HC Harkesh in cross examination deposed and to quote it " it is true before arrival of Pradeep can Ex.P2 was not there seen lying SC no.42/11 Page 17/22 around the scene of crime. ASI Prem Pal tried to search that can around the room and the scene of the crime but he had not been able to see or locate it". It is surprising that can lying near the LPG gas stove as it appears in the photographs that PW13 stated that can was not there and ASI Ram Pal had not been able to trace and locate it. Whereas contrary to this deposition of PW13, IO PW17 deposed that there was a plastic can white colour which contained sum quantity of kerosene oil lying on the spot and it was seized.
31. All these circumstances that accused Pradeep sustained burn injuries on his hands and accused in his 313 Cr.P.C examination explained that as soon he saw victim Pravesh on fire, he made attempt to put off the fire by his bare hands initially and then he poured water on her, though accused Pradeep had been taken to GTB hospital by a Constable and by the time he was apprehended, PW13 observing some cream material on his burn injuries on both hands, none of the prosecution witness including IO having deposed if Pradeep had sustained burn injuries and no investigation was taken up as to how those burn injuries came on his hands, explanation by accused that he sustained those burn injuries while he tried to put off the fire on the person of Pravesh in these circumstances assumes a probability and it creates gives a doubt in the dying declaration statement by deceased. If accused had set deceased on fire then as a natural human conduct and reaction he would not rush to put off the fire by his bare hands.
32. As per the dying declaration statement Ex.PW2/A as soon victim sustained burn injuries and raised hue and cry many locality people arrived and gave knock on the door of the house of accused, but door was bolted from inside and accused opened the door only when accused found that people banging on the door would brake it. Victim further states that those people as well accused then put off her fire by throwing water on her. Prosecution then examined public witnesses PW20 Vinod, but then his examination during investigation as well his testimony in Court during trial SC no.42/11 Page 18/22 are beseeched with suspicious circumstances. According to PW1 and PW6, this public person Vinod came to their house to inform about the incident. This witness Vinod is resident of a house A-2/481, which was the adjoining house A-2/480 of accused. PW17 ASI Ram Pal initial investigating officer staes in cross-examination that initially when he reached the spot many public persons were present and he recorded statement of a public person Vinod. This evidence implies if 161 Cr.P.C statement of Vinod was recorded on the date of incident that is 26.04.2011, but then 161 Cr.P.C statement of this witness on the file was dated 25.06.2011. Subsequent investigating officer PW16 Inspector K.K. Upadhyaya then specifically deposed that he recorded statement of neighbourer Vinod on 25.06.2011. Either PW17 is telling a lie that he recorded statement of Vinod on the date of incident or statement of Vinod if recorded by him on the date of incident has been suppressed and removed from the record. PW16 has not spoken a word as to why statement of that important witness was delayed by two months. He must be aware that delay in examination of witness during investigation creates a doubt in the statement and unexplained delay would suggest a manipulation and an afterthought. This witness Vinod when examined as PW2 he was got declared hostile on the point that after hearing the sound and utterance in this incident he had gone inside the house of accused and found victim Parvesh in burn injuries and Parvesh told witness that her husband Pradeep had set her on fire. Witness deposed that on the date of incident he got up at around 6 o'clock morning and just came out of his house and was standing in gali when he heard a sound and heard victim Parvesh crying "mujhe bacha lo aur meri maa ko bula lao". Witness then rushed to the house of mother of Parvesh and informed her. ld. Addl. PP then cross-examined this witness and witness refuted suggestion if he went inside the house and Parvesh while crying said that Pradeep had set her on fire. In cross-examination by the defence counsel, this witness stated that his SC no.42/11 Page 19/22 statement was recorded after six or seven day of the incident. It again creates a doubt as to what could be that statement. Witness admitted that what he had stated to the police was version asked for and advised by mother of Parvesh. Such kind of evidence then creates doubt if investigating agency was fair in its proceedings. If false witness is being introduced and his 161 Cr.P.C statement was recorded after two month without any explanation for delay or as per testimony of initial IO PW17 that statement of this witness was recorded on the date of incident but that is not part of the record, a doubt stands created in the prosecution story.
33. When the contention of defence counsel is examined regarding victim deceased tutored or influenced by her mother and brother then contention is not to be ignored in view of above facts and circumstances creating doubt in the prosecution story. In these circumstances where accused had bought two house properties in Harsh Vihar in close vicinity of the house of mother of victim Parvesh so that mother of victim could keep a constant watch in the matrimonial life of couple and where almost every day when mother of the victim or her other family member was visiting house of accused for their need for refrigerator, where there was no any incident or instance that accused indulged in any kind of act of cruelty or criminality and finally accused in the present case incident sustained burn injuries on his hands and that aspect remained completely uninvestigated by police, then a reasonable doubt is created if dying declaration statement was on account of any tutoring or influence by mother and brother of deceased and in these circumstances dying declaration cannot be relied upon without a corroborative evidence.
34. PW3 the child witness who is the son of deceased though deposed that he himself saw his father accused Pradeep putting kerosene oil on her mother and then setting her on fire, statement of this witness during investigation was recorded on 19.07.2011 that is about three months after SC no.42/11 Page 20/22 the incident. Admittedly, during that three months period this child witness had been in custody of maternal grand mother with whom he was residing. Witness in cross-examination admitted that whenever there used to be quarrels between his mother and father when his father used to demand money from his mother she used to speak and tell that she would kill herself. He further states in cross-examination admitting that his maternal grand mother asked him and then he stated those facts to the police and which was quite many days after the incident. He further states that he came out of the room when his mother had raised hue and cry which suggests that incident had occurred by the time child came out of his room and it is difficult to believe that he saw accused putting his mother on fire. There is no other evidence to corroborate the dying declaration.
35. Dying declaration in the present case becomes unacceptable for the reasons given above. Testimony of child witness PW3 is also unbelievable and accordingly charge under Section 302 PC cannot be held proved by the prosecution and accused is entitled to be acquitted of charge of murder.
36. Then comes the charge of cruelty punishable under Section 498-A IPC. Mother of the victim-deceased deposed that accused was in the habit of taking liquor. PW3 child witness who is son of accused though restricted his testimony to the incident only of 26.04.2011, claiming to be eye witness but then in his cross examination facts put to the witness as suggestions and answered in affirmative are and it is relevant to quote it :-
" it is a fact and true fact that my father Pradeep used to take liquor quite frequently. It is true that my father used to take liquor even to an extent that he would quarrel with my mother in a loud voice and sometimes he would fall. It is true my father used to ask for money from my mother for liquor and on that issue there used to be quarrel between them. It is true that whenever there used to be quarrels SC no.42/11 Page 21/22 between my mother and father when my father used to demand money from my mother, my mother used to speak and tell that she would kill herself."
37. Again in the cross-examination of PW6 Jai Prakash who is brother of victim-deceased it is suggested and he responded affirmatively that there used to be quarrels between Pradeep and Pravesh over the issue that Pradeep used to take liquor. It is further admitted by witness answering suggestion as correct that on one occasion Pradeep inflicted serious blade injury on his person but it was refuted that injury inflicted by accused was because of being fed up with behaviour of Pravesh. Thus witnesses were given a suggestion that accused Pradeep was in a habit of taking liquor and that habit created a disturbing atmosphere in the matrimonial life of victim- deceased and disturbing situation was to an extent that even at time deceased used to tell accused that she would kill herself. This act and behaviour of accused amounted to cruelty committed by accused upon victim Smt. Pravesh and accused is liable to be convicted for an offence under Section 498-A IPC. Offence punishable with imprisonment that may extend to three years as well with fine. Accused is in custody in this case since 26.04.2011 and his custody during investigation, inquiry and trial now exceeds three years and thus substantive sentence to be awarded for this offence becomes only academic. Sentence of two years imprisonment with fine of Rs.1000/- with further default sentence of one month is awarded to accused under Section 498-A IPC and since custody period of accused during trial is more than the sentence awarded as well default sentence, let accused be set free if not required in any other case.
Announced in the open Court (J.R. ARYAN)
on this 26th day of May, 2014 District & Sessions Judge (NE)
Karkardooma Courts, Delhi
SC no.42/11 Page 22/22