Delhi District Court
State vs Anil Kr Etc on 18 January, 2024
IN THE COURT OF SH. PANKAJ ARORA: ADDL.
SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA:DELHI
SESSIONS CASE NO. 44522/2015
CNR No. DLNE01-000156-2012
FIR No. 343/2011
P.S. Jafrabad
U/s : 498A/302/34 of IPC
STATE
(i) ANIL KUMAR (expired and proceedings abated
S/o Sh. Ratan Singh vide order dt. 05-04-2021)
R/o H.No. 632, Gali No. 15,
Adarsh Mohalla,
Maujpur, Delhi.
(ii) RATAN SINGH (expired and proceedings abated
S/o late Sh. Pooran Singh vide order dt. 04-06-2016)
R/o H. No. 632, Gali No. 15,
Adarsh Mohalla,
Maujpur, Delhi.
(iii) KRISHNA DEVI
W/o Ratan Singh
R/o H. No. 632, Gali No. 15,
Adarsh Mohalla,
Maujpur, Delhi.
Date of Institution : 27-02-2012
Date of Argument : 19-12-2023
Date of Judgment : 18-01-2024
JUDGMENT
1. Brief facts of this case are that on 20.11.2011 at about 11:05 pm, an information was received at PS Jafrabad through duty Ct. Karamveer of GTB Hospital that one lady namely Santosh w/o Anil aged 30 years with burn injuries had been got SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 1 of 45 admitted at GTB Hospital by her neighbour namely Naveen. The said information was reduced into writing with DD No. 19A Ex.PW2/A, which was assigned to SI Dharmendra Pratap Singh. Thereafter, SI Dharmendra Pratap Singh along with Ct. Lalit reached at GTB Hospital and collected MLC No. A-6664/11 of victim wherein doctor has reported, "fit for statement u/o burn kerosene, 80-90% burn". SDM concerned was intimated and statement of victim Santosh was recorded wherein she stated that she was residing at H. No. 632, Gali No. 15, Adarsh Mohalla, Maujpur and she got married about eight years ago and she has three children namely Kunal, Jatin and Puskar. On 20.11.2011, in the evening, she served chowmin to her husband whereupon her husband stated to her, "Khana khalo tumhe jala dunga". She claimed that she was having quarrel with her husband for the last 8 to 10 days. In the night at about 8 to 9 pm, her mother-in-law had poured kerosene oil on her which was lying in the room in the presence of her husband and father-in-law. Thereafter, they set her on fire. On the basis of statement of victim, present FIR was registered for the offence punishable u/s 498A/307/34 of IPC. The spot was inspected, site plan was prepared. Crime team was called. One half burnt quilt, mattress, plastic cane containing kerosene oil, lamp and empty matchbox were taken into police possession vide seizure memos Ex. PW15/C and Ex. PW15/D. Statement of witnesses was recorded u/s 161 Cr.P.C. Accused Anil Kumar was arrested.
2. On 27.11.2011, the victim Santosh had expired. Her dead body was handed over to her brothers after conducting postmortem thereof. Section 302 of IPC was added.
3. On 02.12.2011, further investigation was marked to Insp.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 2 of 45Dheeraj Singh, who collected photographs related to marriage of the deceased. Father-in-law of victim namely Ratan Singh was also arrested. PM report was received wherein cause of death was opined as Septicaemic shock as a result of ante-mortem infected flame burn involving about 65 per cent as total body surface area.
4. On 02.01.2012, accused Krishna Devi had surrendered herself in the concerned court where she was formally arrested after seeking permission from concerned MM. Exhibits were sent to FSL Rohini for analysis.
COMMITTAL
5. After completion of necessary formalities, chargesheet was filed in the court of Ld. Ilaqa MM. After taking cognizance, compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions vide order dated 22-02-2012 of Ld. MM-07/NE/KKD/Delhi. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court. FSL result was filed subsequently through supplementary chargesheet.
CHARGE
6. After hearing the arguments and finding that prima facie case was made out against the accused persons for the offence punishable u/s 498A/302/34 of IPC, charges were framed by ld. Predecessor against accused persons, to which accused persons pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 26 witnesses.
PROSECUTION EVIDENCE
7. PW-1 Naveen Kumar is the neighbour of the deceased who got the deceased admitted in GTB Hospital. He deposed correctly about the role performed by him.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 3 of 45Witness was cross-examined but nothing material came out in his cross-examination.
PW2 HC Udai Veer Singh is the Duty Officer, who was posted at PS Jafrabad at the relevant time. He has proved DD No. 19A as Ex. PW2/A, whereby an information was received at PS Jafrabad from Ct. Karamvir of GTB Hospital that one lady Santosh age around 30 years with burn injuries has been got admitted by her neighbour Naveen in the GTB Hospital.
Witness was cross-examined but nothing material came out in his cross-examination.
PW3 HC Narender Kumar was also Duty Officer posted at PS Jafrabad. He has proved the factum of registration of present FIR as Ex.PW3/A on 21.11.2011; endorsement made by him on rukka as Ex.PW3/B. He has also proved one DD No. 2A Ex.PW3/C whereby an information was received regarding death of victim Santosh at GTB Hospital on 27.11.2011 at about 8:55 am.
Witness was cross-examined but nothing material came out in his cross-examination.
PW4 Om Kumar deposed that he is husband of Rajbala, elder sister of deceased Santosh. Deceased Santosh was married with accused Anil on 25.02.2003. At the time of marriage, his brother-in-law and other relatives had given dowry more than their capacity to the accused persons. However, accused persons were not satisfied with the dowry items given to them. Santosh had been harassed by the accused persons in connection with demand of dowry. In this regard, many times the meeting was held on social level. Accused persons were tried to convince but husband Anil, Krishna, mother-in-law and Rattan Singh, father-
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 4 of 45in-law did not agree. On 20.11.2011, all three accused persons burnt Santosh (teeno ne mil kar jala diya). On 27.11.2011 during treatment at GTB hospital, she expired. His statement was recorded by the IO.
In his cross-examination, he denied the suggestion that accused Anil had called his wife Raj Bala from the number 8860990970 on 9810140790 at about 9:47 pm and had given the information. He volunteered that it was not Anil but Santosh had called his wife at that time. He affirmed that mobile no. 9810140790 is of his wife and mobile no. 8860990970 is of Anil. He affirmed that this call was received by his wife. His wife had told him that it was Santosh not Anil who had called him. When he reached in the hospital, Santosh was already in the hospital. Accused Anil and Sewa Ram were present near Santosh. Besides him Sewa Ram, Brahm Singh, his wife Raj Bala, Nand Lal, Ram Pal, Om Prakash had also reached. Some other persons were also there but he did not know their names although they are related to Santosh on parental side.
PW5 Swami is permanent resident of Mahawadh, PS Badal Pur, Distt. GB Nagar, UP and having his private work. Deceased Santosh was related to him as sister. He deposed that deceased Santosh was married with accused Anil on 25.02.2003. At the time of marriage, they had given dowry more than their capacity to the accused persons. However, accused persons were not satisfied with the dowry items given to them. Santosh had been harassed by the accused persons in connection with demand of dowry. She was also beaten up by the accused persons for bringing less dowry. Many times they had tried to convince them but they did not mend their ways. Subsequently, he came to know SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 5 of 45 that Santosh was burnt and she expired. His statement was recorded by the IO.
PW6 Dr. Rahul Ambulkar, the then Jr. Forensic Medicine, GTB Hospital is the doctor who had conducted postmortem of the dead body on 27.11.2011. After conducting postmortem, he opined the cause of death as Septicaemic shock as a result of ante mortem infected flame burn involving about 65% of total body surface area. He proved the report prepared by him as Ex.PW6/A. The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
PW7 Dr. Munesh is the doctor who had examined the victim Santosh, who was admitted in the emergency ward of GTB Hospital on 20.11.2011 at about 10:30 pm. He has proved the MLC as Ex.PW7/A. The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
PW8 SI U. Balashankran is the In-charge of mobile crime team who had inspected the place of incident on 21.11.2011. He proved his scene of crime report as Ex.PW8/A and he has also identified the photographs Mark PX1 to PX5.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW9 SI Mukesh Kumar Jain is the official draftsman got engaged by the IO. He has proved the scaled site plan prepared by him as Ex.PW9/A. The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW10 W/Ct. Preeti is the police official who had SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 6 of 45 witnessed the formal arrest of accused Krishna Devi who had surrendered herself in the concerned court. She has proved the arrest memo and personal search memo of accused Krishna Devi as Ex.PW10/A and Ex.PW10/B. The witness was not cross-examined by ld. Defence counsel despite having given the opportunity.
PW11 Ct. Krishan Vashishth is the investigating police official, who on the instructions of IO, had deposited the exhibits at FSL vide Road Certificate No. 7/21/12 and obtained receipt acknowledgment therefrom. He deposed correctly about the role performed by him.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW12 Sewa Ram is the elder brother of deceased. He deposed that he is having his private job and residing at D-580, Diwan Complex, Harsh Vihar, Nand Nagri, Delhi. His younger sister namely Santosh (deceased of this case) was got married with accused Anil on 25.02.2003. From the very inception of marriage, the quarrel had started to take place. His sister was harassed and beaten by accused Anil in connection with demand of dowry. His sister used to tell the same. He had been to the matrimonial house to his sister many times. He was also misbehaved by Anil for demand of dowry. PW12, his brother namely Brahm Singh and his father talked with each other and sometime they had convinced them not to do like this but Anil used to behave in the same manner after remaining normal for about 2-3 days. Date he did not remember but sometime in the end of April, 2005 he had gone to deliver/invite the family of Anil being their brother-in-law on his marriage by handing over SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 7 of 45 the invitation card but nobody from the family of accused Anil including his mother and father received the same. When he told Anil that he wanted to take his sister i.e Santosh to his house, she was sent to his house but not in happy mood. Nobody from the accused side attended his marriage held on 11.05.2005. When he returned to his house on 12.05.2005 with his newly wedded wife, accused Anil, his father Rattan Singh and uncle of Anil perhaps his name was Umed came to his house, all these three persons abused them badly. Accused Anil threw the key of the motorbike which was given to him at the time of his marriage with his sister. He picked up the key but did not allow his sister to go with them. After about 15-20 days Anil again came to his house and tendered his apology by saying sorry etc. On this conduct of Anil, he sent his sister with him. Accused Anil had not taken his motorcycle which he had left at his house on 12.05.2005 on plea that he had come on a scooter of someone by saying that he will take the motorcycle on some other day as he cannot ride two vehicles at the same time. Thereafter, they started to live peacefully. Thereafter, again Anil started harassing his sister after some time by saying that your brother had not returned the motorcycle. He did not remember the date but it was in July, 2005, he along with his father went to the matrimonial house of his sister to return the motorcycle. On that day also accused Anil agreed that he will not harass his sister in future as motorcycle had been returned. Accused Anil thereafter banned his sister Santosh not to talk to with them over telephone nor visit their house. Sometime in the year 2006-07, Poonam, younger sister of accused Anil was married. The accused side did not invite them on the occasion of marriage. Since they were not invited, so they SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 8 of 45 did not attend the marriage. Thereafter, their visiting terms reduced. They used to visit the matrimonial home of his sister very seldom. On their visit, accused side used to object. He further deposed that on 20.11.2011 in the night, he received a call of his elder Sister namely Raj Bala and she informed him that Santosh got burnt and she was being taken to GTB hospital. He reached GTB hospital in five minutes after receiving the call. By that time neither Anil nor his sister Santosh had reached in the hospital. After sufficient time, Santosh his sister came to the hospital being accompanied by Anil only and driver of the car. None of the family members were there in the car. On reaching the car, he took of his sister from the car and got her admitted in the emergency ward. She was started getting treatment and subsequently shifted to the ward. Her position was very bad as she was badly burnt. He had given call at number 100. In pursuance of his call police officials reached in the hospital. Police officials then called to the SDM. Thereafter SDM recorded the statement of his sister after sending they people out of the ward. During her treatment upto 27.011.2011 on which date she expired nobody from the in-laws side of her sister came to see her including her mother-in-law, accused Krishna Devi, and father-in-law Rattan Singh in the hospital. Thereafter, he received the dead body of his sister on 28.11.2011 and performed the last rituals. During the treatment of his sister, she told them that she was harassed by her in laws including Anil, her mother and two sisters of Anil namely Anita and Poonam. Sometime Anil used to physically assault to his sister also. All these four persons many times had beaten his sister after closing the door. This fact was also told to him by his sister. He further deposed SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 9 of 45 that on 28.11.2011, when the postmortem upon the dead body of his sister was conducted, IO recorded his statement regarding the identification of dead body which is Ex. PW14/A. The Statement of Braham Singh, his elder brother, was also recorded in this regard as Ex.PW14/B. The in-laws of his deceased sister namely Rattan Singh, Anil Kumar, Krishna Devi, Anita, Poonam and husband of Poonam namely Mukesh gave beatings to his sister after confining her in a room after closing the door and this fact was told to him by her sister during her treatment in the hospital. Many times, the accused persons were tried to make understand by himself, his elder brother Braham Singh, Om Kumar (his brother-in-law) and his father Sh. Budh Singh, not to harass or maltreat his sister in such manner but they did not pay any heed and they kept on harassing his sister for demand of dowry. When he reached in the GTB Hospital and found that his sister was not brought there till that time, he made a call to Anil and after about 30 to 45 minutes of his call, accused Anil brought his sister in the hospital. The accused persons did not allow his sister to make a call to them and when ever she used to call them secretly, she was beaten by the accused persons namely Anil, Rattan Singh and Krishna Devi and this fact was told to him by his sister. When in the year of 2005, he went to the matrimonial house of his sister to invite the accused persons in his marriage, the accused persons namely Anil, Krishan Devi and Sunil misbehaved him and Anil and Sunil gave beatings (hath uthaya) to him in the presence of accused Rattan Singh. Police did not cooperate them in the present case, then they made a complaint to the DCP, Seelampur and thereafter, the police had taken action. All the three accused persons killed his sister after setting her on SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 10 of 45 fire by pouring kerosene upon her.
In his cross-examination, he affirmed that when treatment of his sister was started at that time, Brahm Singh, Rajbala his elder sister, Om Kumar were present with him. He affirmed that they all had talked with his sister in the hospital. He denied the suggestion that when Brahm Singh asked his sister Santosh about the incident, she replied that she had received burn injuries while filling the kerosene oil in the lamp.
PW13 Ct. Karamvir was the duty Constable posted at GTB Hospital. He has proved the factum of admission of victim Santosh at GTB Hospital on 20.11.2011. He conveyed the said information to PS vide DD No. 19A.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW14 Constable Suresh Kumar is the police official who accompanied IO/SI Dharmender Pratap Singh to GTB Hospital on 27.11.2011, where postmortem of deceased was conducted and dead body was handed over to the family members. He deposed on this aspect on the same lines on which IO/SI Dharmender Pratap (PW25) has deposed.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW15 Ct. Lalit is the police official who accompanied IO/SI Dharmender Pratap Singh (PW25) to GTB Hospital on 20.11.2011. As per his version, he remained with the IO till the medical examination of accused Anil. He deposed on this aspect on the same lines on which SI Dharmender Pratap Singh (PW25) has deposed.
The witness was cross-examined by Ld. Defence counsel SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 11 of 45 but nothing material came out in his cross-examination.
PW16 Sh. M. L. Sirohi deposed that on the intervening night of 20/21.11.2011, he was posted as SDM Seelam Pur. On that night, he received a telephonic message from SI Dharmender Pratap Singh of PS Jafrabad. After receiving the above said message, he went to GTB hospital where one lady namely Santosh w/o Anil was found admitted in burn ward. On her MLC, doctor mentioned as fit for statement. Thereafter, he also confirmed from the doctor about his fitness and doctor declared her to be fit for making her statement. Thereafter, at about 1.30 am, he recorded the statement of injured Santosh as Ex. PW 16/A. The endorsement on Ex.PW16/A is encircled in red at mark X. He also obtained the right thumb impression of the injured at point Y. The statement was read over to the injured and she had admitted it as correct. Thereafter, he directed the SHO of PS Jafrabad for further action and he made endorsement in this regard on Ex. PW16/A. Thereafter, he handed over the original statement to the IO for further action. His statement was recorded by IO in this regard.
In his cross-examination, he deposed that there is a provision to make entry (Biometric Card) for joining and leaving the office. He could not tell the time during of his duty on 20.11.2011. The MLC was not prepared in his presence. The MLC had already been prepared prior to his reaching in the hospital. He knew the High Court rules regarding the statement of patient, but, he had not gone through the Chapter 13-A of Volume-3, High Court Rules. He affirmed that the signatures of the patient is mandatory requirement for obtaining the signature/ thumb impressions of the patient, whose statement is recorded.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 12 of 45The endorsement i.e. DD No. 19-A dated 20.11.2011, PS Jafrabad is also in his handwriting on Ex.PW16/A. He could not tell what kind of clothes the patient was wearing, as patient was covered with blanket. He denied the suggestion that the statement of patient Ex.PW16/A and rukka were prepared by the police officials and he had only signed and made endorsement on the statement of the patient. He was not aware as to who were Rajbala, Sewaram and Braham Singh. He denied the suggestion that when he reached the hospital, the above-said persons alongwith other 5-6 persons were already present in the burn ward and were sitting on the bed of the patient or that they were talking with the patient at that time. He denied the suggestion that he had not met with any doctor in the hospital. He had not asked to the police as to what proceedings they had already done prior to his reaching there. He denied the suggestion that statement Ex.PW16/A is wrong and same is false and fabricated and had been got prepared by the police officials to implicate the accused persons at the instance of Smt. Rajbala, Sewa Ram, Braham Singh and other family members. The bandage was tied on both the hands however the thumbs were not tied with bandage. He denied the suggestion the patient Santosh had not given any statement to him.
PW17 Om Prakash deposed that accused Anil is his nephew (Bhanja) and he was married with deceased Santosh on 25.02.2003 and he was Mediator in that marriage. At the time of marriage, the parents of deceased Santosh had given sufficient istridhan articles. Once after 8-9 years from the marriage, Sh. Om Kumar (Saddu) of the Anil informed him that Santosh received burn injuries while pouring the kerosene oil in the lamp.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 13 of 45After receiving this information, he went to the hospital and found Santosh admitted there. Thereafter, Santosh succumbed to the burn injuries after 8-9 days in the hospital itself. Till the death, no one from the parental side or by Santosh herself made any complaint to him regarding any harassment. She lived happily after marriage.
In his cross-examination by Ld. Addl. PP for the State, he deposed that police met him in the hospital. His statement was not recorded by the police. He denied the suggestion that on 04.12.2011, his statement Mark X was recorded by the police. He denied the suggestion that after the marriage accused Anil, his mother Krishna, his father Ratan Singh started harassing Santosh on the issue of bringing more dowry or that being relating and mediator he tried to make Anil, Krishna and Ratan understand but they did not pay any heed or that due to above-said reason the relations him and the accused persons became strained and he so stated in his statement Mark X. He denied the suggestion that he had stated to the police in his statement Mark X I came to know Anil, Krishan and Ratan killed Santosh after setting fire on her and he so stated in his statement Mark X. He denied the suggestion that being the real maternal uncle (Mamma) of accused Anil, he was deposing falsely only to safe accused persons. He denied the suggestion that he was deposing falsely.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW18 Ram Pal is the brother of deceased. He deposed that he is the Farmer. Deceased Santosh D/o Sh. Budh Singh was his sister in relation who was married with accused Anil (correctly identified) on 25.02.2003 according to Hindu Rites and SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 14 of 45 Customs. He had attended the marriage of deceased Santosh. In the marriage father of Santosh had given sufficient dowry articles and marriage was solemnized with great pomp and show. After some time of the marriage, the in-laws of Santosh started harassing her on account of insufficient dowry. This fact was told to him once by Santosh herself. He was also apprised about the above said facts by the parents of Santosh (his relatives). Once he had tried to make the accused persons understand at the parental house of Santosh along with other relatives but accused and his family members did not pay any heed of their requests/advice. He further deposed that on 20.11.2011, he came to know that the in-laws had killed Santosh by setting her on fire. His statement was recorded by the IO in this regard. Witness correctly identified accused Anil, Rattan Singh and mother of Anil (the name of the mother of accused he did not remember).
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW19 Sh. P. K. Phukan, CMO, GTB hospital deposed that on 20-11-2011, he was posted at GTB hospital as CMO. On that day, Dr. Munesh, the then JR. had examined the patient Santosh, wife of Anil, brought by Naveen vide MLC no. 6664/11 Ex. PW7/A under his supervision.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW20 Ct. Vijay is the police official who had typed the contents on rukka in the computer, and obtained printout therefrom. He deposed correctly about the role performed by him.
The witness was cross-examined by ld. Defence counsel SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 15 of 45 but nothing material came out in his cross-examination.
PW21 Sh. Brahm Singh is the brother of deceased. He deposed that deceased Santosh was his younger sister who was married with accused Anil Kumar on 25.02.2003 according to Hindu rites. In the marriage, they had given sufficient stridhan Articles/dowry articles. After 5-6 months of the marriage, the in- laws of his sister started harassing to her on account of not bringing sufficient dowry articles. His sister Santosh complained regarding the above said facts to them when she came to his house along with the accused Anil. They made understand Anil Kumar and thereafter his sister left along with her husband. Thereafter, his sister lived peacefully and after some days they again started harassing his sister on account of not bringing sufficient dowry. He further deposed that in the year of 2005, the marriage of his younger brother namely Seva Ram was solemnized and when his brother Seva Ram had gone to the matrimonial house of his sister for inviting them in the marriage, the in-laws of his sister did not accept the marriage card and they also misbehaved with him. His brother Seva Ram brought his sister Santosh from her matrimonial house for the purpose of his marriage and no body from in laws of his sister find attended the marriage. When they came back (Barat) to house along with the Bride and Broom, the accused Anil and Ratan Singh, Umed Singh (uncle of Anil) also reached there and they started quarreling with them and after quarreling with them, they left the motorcycle (which was given by them in the marriage of deceased Santosh) with key. After 15-20 days accused Anil came to his house for taking back his sister with him. Initially, they denied to send Santosh with him but ultimately Santosh was sent SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 16 of 45 with him on his request and accused Anil told that no complaint would come in future from his side. At that time, accused Anil had come on two wheeler scooter and he took his sister on the same scooter while saying that he would take the motorcycle later on as it is impossible for him to take both the vehicles together. Thereafter, accused Anil did not come to his house for taking the motorcycle from there and his younger brother Seva Ram took the motorcycle to the matrimonial house of deceased Santosh. In the year of 2007, the marriage of sister of accused Anil was held but they did not invite them in the said marriage. The accused Anil and his family members started giving beating, abusing and they also did not allow his sister to go any where. They also did not allow his sister to make any phone call to them. He further deposed that on 20.11.2011, his sister Santosh made a phone call to his another sister namely Rajbala and she informed Rajbala that accused Anil, Ratan Singh and Krishana Devi set her on fire. Rajbala then informed them about the same. After receiving, the above said information of Rajbala, he told to Rajbala to make a call the house of in-laws of Santosh and asked them to bring Santosh to GTB hospital. He along with his wife and Rajbala went to GTB hospital. 1-2 neighborers were also with them. On reaching the hospital, they found that his sister Santosh was admitted in emergency ward and she was being treated. On inquiry from the doctor, they came to know that his sister was burnt about 80-85%. Thereafter, after dressing etc he talked to Santosh when she was alone and on his asking about the incident, his sister Santosh told that she had prepared chowmein (Seviya) and same was served to Anil and on this Anil told "Khana Khalo tumhe jala dunga". She further told that "Pichle SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 17 of 45 aath dus din se hamare bich me jhagda chal raha tha". His Sister further told that her mother-in-law poured the kerosene oil upon her in the presence of Anil and his father who set her on fire. His sister was only brought by Anil to hospital and driver in which vehicle she was brought was also with him at that time. His sister had expired on 27.11.2011 and till that time no person from the family member of the Anil came to see her in the hospital. Even nobody from the in laws including Anil attended the cremation of Santosh. On 21.11.2011, in the hospital when his sister was being treated, SDM had come to the hospital and statement of his sister was recorded in the hospital. A social meeting (biradari Panchayat) had also held at the matrimonial house of his sister Santosh two times and the Anil and his family members were made understand by the people who were Panch and on both the occasions, the family member of Anil and Anil had given the assurance that such type of things regarding harassment would not be repeated. Despite of their assurance, the accused persons did not stop harassing his sister and ultimately they set her on fire and killed her. Witness correctly identified all the accused persons.
In his cross-examination by Ld. Addl. PP for the State, he affirmed that he had given four photographs of the marriage of his sister to the police and same were taken into possession by the police vide Ex. 21/A. Postmortem was also got conducted by the police and before conducting the postmortem, he had identified the dead body of his sister and his statement in this regard was recorded by the IO and same is Ex.PW14/B. He further affirmed that his sister had told him that her younger sister-in-law namely Poonam, elder sister-in-law namely Anita, SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 18 of 45 brother-in-law Sunil and husband of Poonam namely Mukesh had also gave beatings to her. He further affirmed that Santosh had also told that accused Anil used to gave beatings to her after bolting the door of the room. He affirmed that initially in the presence of accused Anil, his sister told that she caught fire while filling kerosene oil but when he had asked her in the absence of Anil, she had disclosed that she was set on fire by the accused person by pouring the kerosene oil on her. He affirmed that his sister had told him that accused persons used to beat and harass her on account of not bringing sufficient dowry and she further told that accused Anil used to give beatings to her after confining her in a room by bolting the door of the said room.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW22 HC Virender Singh was the duty officer posted at PS GTB Hospital. He had given intimation regarding the death of victim Santosh at PS on 27.11.2011, which was recorded vide DD No. 2A.
Witness was cross-examined but nothing material came out in his cross-examination.
PW23 Ms. Kavita Goyal is an FSL expert who had examined seized exhibits. As per her report, she had found kerosene on all the exhibits. Her report is proved as Ex.PW23/A. The witness was cross-examined by ld. Defence counsel but nothing material came out in his cross-examination.
PW24 Dr. Jitendra Khachariya has proved the death summary report of deceased Santosh as Ex. PW24/A; death certificate issued by him as Ex.PW24/B. The witness was cross-examined by ld. Defence counsel SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 19 of 45 but nothing material came out in his cross-examination.
PW25 SI Dharmendra is the IO of the present case. He deposed that on 20.11.2011, he was posted at PS Jafrabad as SI. On that day, he was on emergency duty from 8.00 pm to 08.00 am. On that day, at about 11.00 pm, in the night he received DD No. 19A then he along with Ct. Lalit reached at GTB Hospital where victim Santosh (now deceased) w/o Sh. Anil was found under treatment vide MLC no. A 6664/11. The victim was fit for statement. As the victim was under treatment and she was burnt about 80-85%, her statement could not be recorded at that time. However, she was verbally inquired about the cause of burning. Then, he called SDM Seelampur Sh. M.L. Sirohi at the GTB Hospital through telephone. SDM Seelampur reached at GTB Hospital and he briefed him about the incident and took him to the victim. SDM Seelampur recorded the statement of the victim as Ex.PW16/A and he handed over the said statement to him for further necessary action. Then, he along with Ct. Lalit came at the spot i.e. H. No. 632, Gali No. 15, Adarsh Mohalla, Mauj Pur, Delhi-53 where a bed (gadda) was lying at the floor in a room situated at the right hand side at the first floor of the said house and a quilt (razai) was lying on the said gadda and both the said razai and gadda were smelling kerosene oil and they were also wet with the kerosene oil and both the said razai and gadda were partially burnt. Near the said gadda, there was a kerosene cane of 5 litres of white colour on which, 'volvoline' was written and the lid of the said cane was kept aside. A lamp of blue colour was also kept near the said gadda in the opened condition and there was some kerosene oil in the said lamp. He did not remember as to what was written on the said lamp. Near the said gadda, one SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 20 of 45 matchbox of Patang brand was lying in broken condition in which there was no matchstick. Then, he called Crime Team at the spot. Crime Team came at the spot and inspected the spot. As there was no photographer in the Crime Team, so he photographed the spot from different angles from his own mobile phone. He seized the above-said gadda, razai after converting them into pullanda and sealed with the seal of DS. He also seized the above-said plastic cane after converting it into pullanda and sealing it with his seal DS vide seizure memo as Ex. PW15/D. He also seized the above said lamp and matchbox after converting them into pulland and sealing them with his seal DS vide seizure memo as Ex. PW15/C. Then, he prepared rukka/tehrir as Ex. PW25/A. He handed over the said rukka to Ct. Lalit for the registration of the FIR in PS Jafrabad and Ct. Lalit went to the PS Jafrabad along with the said rukka. After registration of the FIR, Ct. Lalit came back at the spot along with copy of FIR and original rukka and handed over the same to him. He prepared site plan as Ex. PW25/B. Thereafter, he along with Ct. Lalit went to PS Jafrabad and deposited the case property in the maalkhana. Thereafter, he along with Ct. Lalit again went to GTB Hospital, where he recorded statement of SDM, Seelampur namely Sh. M.L. Sirohi and inquired about the accused persons from the family members of the victim (now deceased). Then, he alongwith Ct. Lalit came at the spot again where accused Anil (husband of the victim) met them. He made inquiry from the accused and thereafter, accused Anil was arrested in the present case vide arrest memo Ex.PW15/A. Personal search of accused Anil was conducted vide personal search memo Ex.PW15/B. Then, they took accused to the lock up of PS Seelampur where he SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 21 of 45 was kept and on the next day, accused was produced before the Court from where he was sent to JC. He further deposed that on 27.11.2011, the above-said victim expired and he received information in this regard from the PS. Then, he went to the GTB Hospital where the dead body of the victim was identified by Sewa Ram (brother of the deceased) and by Brahm Singh (another brother of the deceased) and he recorded their identification statement in this regard as Ex. PW14/A and Ex.PW14/B. He prepared inquest papers as Ex.PW25/C (colly). Postmortem of the deceased was got conducted vide postmortem report Ex.PW6/A. After postmortem, doctor had handed over the dead body of the deceased to him and he handed over the same to the family members of the deceased. Ct. Suresh had handed over a sealed jar along with sample seal to him and he seized the same vide seizure memo Ex.PW14/C and he deposited the same in the maalkhana of PS Jafrabad. Thereafter, the investigation of the present case was marked to Inspector Dheeraj Singh for further investigation. Thereafter, on 12.12.2011, Ratan Singh, father of accused Anil surrendered himself in PS Jafrabad and he was arrested by the IO Inspector Dheeraj Singh in his presence and his personal search was conducted and his disclosure statement was also recorded by the IO/Inspector Dheeraj Singh vide arrest memo Ex.PW25/D, personal search memo Ex.PW25/E and disclosure statement Ex.PW25/F respectively. Accused Ratan Singh was produced before the Court concerned on the same day from where he was sent to JC. He further deposed that on 02.01.2012, the case file of the present case was again marked to him for investigation. On that day, Smt. Krishna Devi, mother of accused Anil surrendered before the Court concerned so she was SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 22 of 45 arrested in the present case vide arrest memo Ex.PW10/A and personal search of Smt. Krishan Devi was taken by W/Ct Preeti vide personal search memo Ex.PW10/B. The accused Krishna Devi was interrogated and her disclosure statement was recorded by him as Ex.PW25/G. She was produced before the Court from where she was sent to JC. Thereafter, investigation was again handed over to Inspector Dheeraj Singh. During the course of investigation, he recorded statement of the witnesses. Witness correctly identified accused Anil Kumar and Smt. Krishna Devi. Accused Ratan Singh is already expired and proceedings qua him have already been abated. The photographs which were taken by him from his mobile phone are Mark PX-1 to PX-5.
The witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
PW26 Insp. Dheeraj Singh is the second IO. He deposed that on 02.12.2011, he was posted at PS Jafrabad, Delhi. On that day, the investigation of the present case was assigned to him and he received the case file from MHC(R). On the same day. Brahm Singh, brother of the deceased along with another person namely Om Kumar came to the PS and Brahm Singh handed over four photographs of the marriage of deceased and he took the said photographs into possession vide seizure memo Ex. PW21/A. The photographs on record are marked as 'mark PW26/1 to 4'. He recorded their statements. He further deposed that on 04.12.2011, the statements of public witnesses namely Om Prakash, Mangal Sain, Rampal and one another person whose name he did not remember at this stage were recorded by him. On 10.12.2011, he had given a notice u/s 160 Cr.P.C. to Mukesh Kumar brother-in- law of the deceased and he appeared before him on 12.12.2011 SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 23 of 45 along with father-in-law of the deceased namely Ratan Singh. He interrogated accused Ratan Singh and thereafter, he was arrested vide arrest memo Ex.PW25/D and his personal search was conducted vide memo Ex.PW25/E. During course of interrogation, accused Ratan Singh made disclosure statement Ex.PW25/F. Thereafter, accused Ratan Singh was produced before the court concerned and from there he was remanded to J/C. On 30.12.2011, he had collected the postmortem report from GTB Hospital and same is Ex. PW6/A. On 02.01.2012, co- accused Smt Krishna had surrendered herself before the court concerned and she was arrested by SI Dharmender Pratap Singh who was deputed by the SHO to investigate in the present case as he was not present in the PS on that day, vide arrest memo Ex. PW10/A and her personal search was also conducted vide memo Ex.PW10/B. On the same day Smt. Krishna was remanded to J/C. On 10.01.2012, SI Dharmender Pratap got inspected the spot through draftsman SI Mukesh Jain who subsequently prepared scaled site plan vide Ex. PW9/A. On 19.01.2012, the exhibits were sent to FSL through Ct. Krishan vide RC No. 7/21/12. He recorded the statement of Ct. Krishan in this regard. On 05.02.2012, he recorded the statements of Ct. Karamvir (duty constable of GTB hospital), Ct. Virender (duty constable of GTB Hospital), Ct. Suresh Kumar and Ct. Vijay. After completion of the investigation, the charge-sheet was filed before the court concerned and later on he had also collected the FSL report. After collecting the FSL result, it was filed in the Court. The FSL result on record as Ex. PW23/A. Witness was cross-examined by Ld. Defence counsel but nothing material came out in his cross-examination.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 24 of 45STATEMENT OF ACCUSED
8. After completion of prosecution evidence, the statement of accused Krishna Devi was recorded under Section 313 Cr.P.C. wherein incriminating facts were put to the accused, which were denied by her. She stated that she is innocent and has been falsely implicated in this case. Deceased married with her son on 25.02.2003 and she was leading happily married life with her son. Out of said wedlock, two male child born out and the deceased's son and any of her family members never harassed or beat to deceased or raised any demand of dowry from deceased or her family members prior to her marriage or after the marriage till her death. The family members of deceased or deceased had never made any written or oral complaint against her son Anil, late her husband Rattan Lal or herself or any family members from the date of marriage to till death of deceased. The deceased was met with fire accidentally and even her grandson were present. The present case has been registered falsely and frivolously. she, her late husband and her late son had never committed any offence as alleged in the FIR and facts alleged in the charge- sheet. She and her family are innocent.
Accused has examined Sh. Kunal as DW1 and Sh.
Amardeep @ Mukesh Kumar as DW2.
DEFENCE EVIDENCE
9. DW1 Sh. Kunal deposed that he is the son of deceased Santosh as well as accused Anil Kumar. He was 7½ years old when this accident took place on 20.11.2011. On the day of incident at about 9.00 PM, the electricity broke down and his mother was trying to refill kerosene oil to lit lamp. At that time, he was also present there. While she was removing the kerosene SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 25 of 45 can (dibba), accidentally she was caught on fire and his father and grand parents tried to save her and while saving her, they were also received burn injuries. His father called his Mausi and Phupha. His father and his one neighbour Naveen Kumar Kashyap took his mother to GTB Hospital. His Phupha Mukesh also reached his house. He was weeping at that time. His Phupha took him to GTB Hospital and medical treatment was given to his mother. Her entire body was wrapped with dressing. Even her legs and both hands were fully covered. In hospital, his maternal uncles namely Sewa Ram and Braham Singh and his mausi namely Rajwala and her husband were present in hospital and they were tutoring his mother to give statement against his father and grand parents in the presence of mine and his phupha. Due to fear of police, Ratan Lal and Krishna Devi left the hospital on the same day and subsequently they got treatment in GTB Hospital. His mother caught fire accidentally, his father, grandfather Late Sh. Ratan Lal and grand mother Krishna Devi did not set her ablaze.
In his cross-examination by Ld. Addl. PP for the State, he deposed that after the incident, he was residing with his grandmother. Amardeep @ Mukesh Kumar is his foofa. He had deposed on 20.12.2021 even the legs and both hands of his mother were fully covered as he had seen her in the hospital. He denied the suggestion that he had deposed this fact only on the asking of my grandmother and foofa. He denied the suggestion that he had deposed falsely that his mother received burn injuries in an accident.
DW2 Sh. Amardeep @ Mukesh Kumar deposed that late Sh. Anil (accused) was his brother-in-law (Saala) and Late Sh.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 26 of 45Ratan Lal was his father-in-law. On 20.11.2011 at about 9.00 pm, he received a call from Anil who told him to reach his house stating that Santosh caught fire accidentally while refilling kerosene oil in lamp. He reached at the house of Anil. He came to know that Santosh had already been taken to GTB Hospital by Anil and neighbour Naveen Kumar Kashyap. Kunal was weeping there and crying for his mother. He took him to GTB Hospital. On reaching there, Anil and Naveen Kumar were found there and Ratan Lal and Krishana Devi were also found in GTB Hospital with some burn injuries. Her entire body was wrapped with dressing. Even her legs and both hands were fully covered. In hospital, Sewa Ram, Braham Singh, Rajwala and her husband were present in hospital and they were tutoring deceased Santosh to give statement against Anil, Ratan Lal and Krishna Devi in his presence. Due to fear of police, Ratan Lal and Krishna Devi left the hospital on the same day and subsequently they got treatment in GTB Hospital.
In his cross-examination by Ld. Addl. PP for the State, he affirmed that the incident had not taken place in his presence.
FINAL ARGUMENTS
10. This court has heard the arguments and perused the record and written submissions filed on behalf of accused Krishna Devi. It is vehemently argued on behalf of accused Krishna Devi that it is a case of accidental firing and not murder as projected by the prosecution. Attention of the court is drawn towards the testimony of PW17 Om Prakash, who had admitted in his cross- examination that the marriage of Anil and deceased Santosh was solemnized in very simple manner. He also deposed that Om SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 27 of 45 Kumar and his wife, Brahm Singh and his wife were present in the hospital and that he reached at the hospital and found deceased in fit condition and also stated that "main lamp me tel ger rahi thi aag lag gai". Reliance is also placed on the testimony of DW1 and DW2. Further, it is submitted that there are major discrepancies in the prosecution case. PW16 M.L. Sirohi has recorded the statement of victim Santosh (Ex.PW16/A) when she was not fit for statement as PW16 had not seen the MLC before proceeding to record the statement of victim. Further, PW16 has claimed to have obtained thumb impression of the deceased on the statement recorded by him, which fact is contrary to the contents of the MLC where doctors had obtained the toe impression as her hands were covered with the bandage. PW4 Om Pal, PW5 Swami and PW12 Sewa Ram, PW21 Brahm Singh were the hearsay witnesses got examined by the prosecution. Since the relatives of the deceased were present in the hospital before recording of her statement Ex.PW16/A, there is a strong possibility that the deceased has been tutored.
11. On the other hand, Ld. Addl. PP for the State submits that the testimony of all the prosecution witnesses is sufficient to bring home the guilt of accused beyond reasonable doubts. Ld. Addl. PP has placed reliance on dying declaration Ex.PW16/A recorded by Sh. M.L. Sirohi, the SDM. It is submitted that the said dying declaration does not suffer from any infirmity. In her statement Ex.PW16/A, the deceased Santosh had categorically stated that quarrel was going on between her and her husband for the last 8 to 10 days. In the night at about 8 to 9 pm, her mother- in-law had poured kerosene oil lying in the room over her in the presence of her husband and father-in-law. Thereafter, they set SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 28 of 45 her on fire.
FINDINGS OF THE COURT
12. Since accused Anil and Ratan Singh have already expired during the trial, so there is no point in appreciating evidence led by the prosecution against them. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.
498A. Husband or relative of husband of a woman subjecting her to cruelty--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or - Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
302. Punishment for murder-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 29 of 4513. Perusal of the record would show that this case is totally based upon the dying declaration of deceased and there is no direct evidence against any of the accused persons that they committed murder of the deceased Santosh. Before deciding this case, it is necessary to ascertain legal parameters of proving such a case based upon the dying declaration. The leading case setting down the principles of evaluating dying declaration are as follow:
In Khushal Rao v. State of Bombay, 5 AIR 1958 SC 22 PART-D, the Hon'ble Supereme Court formulated the yardstick against which dying declarations may be evaluated:
"16. ... (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
(5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
In Kundula Bala Subrahmanyam And Anr vs State Of SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 30 of 45 Andhra Pradesh, 1993 SCR (2) 666, 1993 SCC (2) 684, it was held by Hon'ble Supreme Court that:
"Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit-worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same."
In the case of Irfan vs. State of U.P., 2023 SCC OnLine SC 1060 decided on 23-08-2023, it was held by Hon'ble Supreme Court of India that:
"As per the Bench, there is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. The Court reproduced certain factors to determine the same, however, clarified that these factors will only affect the weight of the dying declaration and SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 31 of 45 not its admissibility. They are: Whether the person making the statement was in expectation of death? Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity" Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person? Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party? Whether the statement was not recorded properly? Whether the dying declarant had opportunity to clearly observe the incident? Whether the dying declaration has been consistent throughout? Whether the dying declaration is a manifestation / fiction of the dying person's imagination of what he thinks transpired? Whether the dying declaration was itself voluntary? In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration? Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration? The Court said that it is unsafe to record the conviction based on a dying declaration alone, in the cases where suspicion is raised. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. Thus, in the present case although the convict has been named in the two dying declarations as a person who set the room on fire, yet the surrounding circumstances render such statement of the declarants very doubtful...."
14. Now, the case in hand has to be adjudicated in light of the above-stated guidelines. As per case of the prosecution, on 20/11/2011 at about 11 pm, Duty Officer namely Ct. Karamvir posted at GTB hospital had informed PS Jafrabad that one lady namely Santosh got admitted in burnt condition by her neighbour namely Naveen. On the basis of said information IO SI Dharmender reached at GTB hospital where victim Santosh was found under treatment vide MLC no. A6664/11. The victim was fit for statement. As the the victim was under treatment and she was burnt about 80 to 85 per cent, her statement could not be recorded at that time. SDM concerned was intimated through phone, who reached at GTB hospital and recorded the statement SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 32 of 45 Ex. PW16/A at about 1:30 am on 21-11-2011. In her statement, the victim Santosh had stated that she was about 28 years old and got married about 8 years ago. She had three children namely Kunal, Jatin and Pushkar. On 20.11.2011, in the evening, she served chowmin to her husband whereupon, her husband stated to her, "Khana khalo tumhe jala dunga". She claimed that she was having quarrel with her husband for the last 8 to 10 days. In the night at about 8 to 9 pm, her mother-in-law had poured kerosene oil on her which was lying in the room in the presence of her husband and father-in-law. Thereafter, they set her on fire. On 27-11-2011, the victim had expired. Her postmortem was conducted at GTB hospital. As per PM report Ex. PW6/A, wherein cause of death of deceased as opined as septicaemic shock as a result of antemortem infected flame burn involving about 65 per cent of total body surface area.
15. As per testimony of PW16 M. L. Sirohi, he has confirmed from the doctor about the fitness of deceased and the doctor declared her to be fit for making statement. Similarly, PW21 Brahm Singh, who is the elder brother of deceased, had categorically deposed that her deceased sister had stated to her that she had prepared chowmin and same was served to Anil and on this, Anil told "khana khalo tumhe jala doonga". She further told that "pichle 8-10 din se hamare beech me jhagra chal raha tha". Her sister further told that her mother-in-law poured the kerosene oil upon her in the presence of Anil and his father who set her on fire.
16. In the present case, the dying declaration Ex. PW16/A was recorded at earliest available opportunity i.e. at 1:30 am on 21/11/2021, within 3-4 hours of the incident. In the said dying SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 33 of 45 declaration, the deceased has expressed clearly about the manner in which she has sustained burn injuries. The role of accused Krishna Devi has also been clearly stated therein. The deceased has categorically stated that, "raat lagbhag 8-9 baje meri saas ne mere kamre me rakha mitti ka tel mujhpar daal diya". It is not in dispute that accused Krishna Devi is the mother-in-law (saas) of the deceased; the deceased was in expectation of death; the dying declaration bears right thumb impression of the deceased and that the same was recorded at the first available opportunity. PW16 in his deposition dated 10-12-2013, has categorically stated that he had also confirmed from the doctor about the fitness of the deceased and the doctor declared her fit for making a statement. In the opinion of this court, the dying declaration Ex. PW16/A has been made voluntarily and it is consistent and unambiguous throughout. Thus, there is no requirement of looking for any corroboration.
17. Hence, PW16 M. L. Sirohi has established dying declaration Ex. PW16/A of deceased Santosh and PW21 Brahm Singh has corroborated the factum of recording of said dying declaration, which is an important piece of evidence in view of section 32(1) of the Indian Evidence Act, 1872 indicating the involvement of accused persons.
18. Admittedly, the above-stated dying declaration of the deceased with accused is a material circumstance against the accused and put a burden upon the accused to explain as to what they were doing or where they were present at the relevant time. The failure of any explanation of accused to this circumstance leads to an adverse inference against the accused. In this case, accused Krishna Devi has not tendered any explanation as to SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 34 of 45 what she was doing at the relevant time.
19. Further, Section 106 of Evidence Act has put a burden upon the accused Krishna Devi to tender a plausible explanation about what transpired within the four walls of her house at the time of incident when the deceased received burn injuries to rebut this presumption of the facts within her personal knowledge. To ascertain the extent of burden, it is necessary to see section 106 of Evidence Act as under:
[Section 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the bur- den of proving that intention is upon him.
(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket on him.]
20. This above-said section provides, inter-alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. The Hon'ble Supreme Court of India had occasion to deal with this presumption of section 106 of Indian Evidence Act in State of Rajasthan v. Thakur Singh VI (2014) SLT 260 where death of wife was unnatural and witnesses turned hostile. The burden of proof was fixed upon the accused to explain the death of his wife took place within the four corners of the house. Prior to it, the Hon'ble Supreme Court of India had interpreted this section in Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well high impossible or extremely difficult for the prosecution to prove that fact. It was observed by the court as SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 35 of 45 under:
"This [section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve if of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The work "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. It the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than that he whether he did or did not."
21. The observation of the Hon'ble Supreme Court made in State of West Bengal vs. Mir Mohammad Omar, (2000) 8 SCC 282 is also relevant. The court cited an example to explain the principle behind section 106 of the Evidence Act in following words:
"During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
22. In view of the above-said interpretation of presumption of Section 106 of Evidence Act, the burden of proof to prove the facts establishing the guilt of accused does not dispense with by the prosecution, however prosecution may not prove those facts which are exclusively within the knowledge of the accused and the burden to rebut this presumption has been put upon him. If the facts established the case to raise a presumption against the SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 36 of 45 accused, then the failure to discharge this presumption would cost the accused.
23. Further, accused Krishna Devi was supposed to put forward some explanation not only during cross examination of the witnesses, who have proved the dying declaration of deceased indicating pouring of kerosene oil upon the deceased and thereafter setting her on fire, but also during their statement u/s 313 Cr.P.C. However, she just replied to all incriminating facts emerging from the evidence as "it is incorrect" or "I do not know". Nowhere she has explained as to what she was doing and how the deceased Santosh has received burn injuries at the relevant time i.e. on 20-11-2011 at around 8 pm to 9 pm in her house situated at H. No. 632, Gali no. 15, Adarsh Mohalla, Maujpur, Delhi. She was supposed to tender a satisfactory explanation to the fact which was within her personal knowledge in terms of section 106 of Evidence Act. No doubt, accused was not supposed to examine any witness to prove this fact, but she was definitely supposed to put forward some defense during prosecution evidence and also to put forward some explanation u/s 313 Cr.P.C. to rebut this presumption, which is not done by her. In one of the questions of her statement u/s 313 Cr.P.C. recorded on 09-10-2021, it was specifically put to her that on 20/21-11-2021 at about 1:30 am PW16 M. L. Sirohi, SDM Seelampur had verified from the doctor about the health condition of the victim Santosh and on being declared fit for statement, he recorded the statement of deceased which is Ex. PW16/A to which she simply stated that "I do not know".
24. The Hon'ble Apex Court has held in case titled Jagroop Singh vs. State of Punjab, (2012) 11 SCC 768 that if accused SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 37 of 45 failed to tender any plausible explanation to incriminating evidence, it would serve the purpose of fulfilling the missing link of the circumstances. The relevant observation is as under:
"36. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial."
25. In State of Maharashtra v. Suresh [(2000) 1 SCC 471 :
2000 SCC (Cri) 263], it has been held that, "when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure."
26. In view of the facts, it stands proved that accused Krishna Devi was in the company of the deceased, and has failed to tender any explanation and shall be presumed that she was involved in the incident in which deceased was killed. Thus, there is no possibility that accused has left the company of deceased Santosh.
27. As regards the allegations for the offence punishable u/s 498A/34 of IPC is concerned, it is pertinent to note that prosecution has got examined four witnesses namely PW4 Om Kumar, PW5 Swami, PW17 Om Prakash PW18 Ram Lal and PW21 Brahm Singh. Except PW17 Om Prakash, all are close relatives of the deceased. PW17 is the only independent witness got examined by the prosecution, however, he has failed to support the case of the prosecution and has been declared hostile on 21-03-2014. No specific date, time and place as to when the SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 38 of 45 deceased was subjected to cruelty by the accused Krishna Devi was revealed by any of these witnesses. Only general allegations of harassment have been levelled. Nor there is anything on record to indicate that victim Santosh or any of her relative has ever made any complaint to any authority prior to the date of incident i.e. on the intervening night of 20/21-11-2011. Nor she stated about any specific instance of beating or harassment on the part of in-laws in her statement Ex. PW16/A recorded before the SDM. In Preeti Gupta & Anr. Vs. State of Jharkhand, (2010) 7 SCC 3363, the Hon'ble Supreme Court of India stated that, "the tendency of implicating husband and all his immediate relations is not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. Hence, the courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases."
28. In Anju Vs. Govt. of NCT of Delhi & Ors., Crl. Rev. P. 730/2016 decided on 04-02-2019, the Hon'ble High Court of Delhi held that, "9. Revisional Court has in my view committed no error in coming to the conclusion that apart from general and omnibus allegations roping in all the relations, there is no material on record to justify framing of charge under Section 498A/34 IPC. It may be noted that charge has already been framed against the husband and he is facing trial.
10. For a charge to be framed, the evidence gathered by the prosecution should not only give rise to suspicion but there should be grave suspicion that the accused have committed the offence.
11. In the present case apart from bald, omnibus allegations without their being any specifics about date time or place, there is no incriminating material found by the prosecution even during investigation to give rise to grave suspicion against the respondents."
29. In Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors, Crl. Appeal no. 195/22, Arising out of SLP (Crl.) no. 6545/20 dated 08-02-2022, the Hon'ble Supreme SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 39 of 45 Court of India held that, "18. The above-mentioned decisions clearly demonstrate that this court has has at numerous instances expressed concern over the misuse of Section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general ombibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."
In light of the above-mentioned findings of the Superior Court, this court is of the opinion that the prosecution has failed to establish the charge for the offence punishable u/s 498A/34 of IPC.
30. It is argued on behalf of accused that the dying declaration Ex. PW16/A recorded by the SDM could not be relied upon as the same bears thumb impression of the deceased despite the fact that the thumb impression of the deceased was burnt. The attention of the court was drawn towards MLC Ex. PW7/A where the examining doctor had obtained right toe impression of the deceased instead of obtaining thumb impression. It is further submitted that the said statement cannot be believed as it was recorded in the presence of close relatives of the deceased and there is a strong possibility that the deceased was tutored.
31. In this regard, it is pertinent to note that there is nothing on record to indicate that the thumb of the deceased was immobile. Further, the examining doctor has not recorded any statement of the deceased and he has taken the right toe impression only for the purpose of identification. PW16 in his cross-examination dated 06-01-2014 has admitted that the suggestions put by the Ld. Defence counsel to the effect that signature/ thumb SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 40 of 45 impression of the patient, whose statement is recorded, is mandatory requirement as per the High Court Rules. He had stated that the bandage was tied on both the hands, however, the thumbs were not tied with the bandage. PW16 was not having any prior enmity or ill will with the accused persons. PW16 has categorically denied the suggestion that when he reached the hospital, one Rajbala, Sewa Ram and Brahm Singh were already present in the Burn Ward and were sitting on the bed of the patient or that they were talking with the patient at that time. As per MLC Ex. PW7/A, the deceased was fit for statement. In these circumstances, this court finds that there is no reason to believe that the dying declaration Ex. PW16/A is tutored version.
32. It is further contended that it is a case of accidental firing and not murder as projected by the prosecution. While addressing arguments, attention of the court was drawn towards the testimony of PW17 Om Prakash, who had admitted in his cross-examination that the marriage of Anil and deceased Santosh was solemnized in very simple manner. PW17 also deposed that Om Kumar and his wife, Brahm Singh and his wife were present in the hospital and that he reached at the hospital and found deceased in fit condition and also stated that "main lamp me tel ger rahi thi aag lag gai". Reliance was also placed on the testimony of DW1 and DW2. In this regard, it is pertinent to note that as per the postmortem report Ex. PW6/A, antemortem flame burn injuries have been reported in almost entire body except the feet. Further, as per the report Ex. PW23/A of Chemical Examiner, kerosene oil was also detected on the cotton mattress and quilt, which were seized by the IO. Had it been a case of accidental firing, the deceased ought to SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 41 of 45 have received burn injuries on her feet as well, which is not there in the present case. DW1 Kunal has admitted in his cross- examination that he was residing with the accused Krishna Devi since the date of incident. Further DW1 Kunal was minor at the time of incident as well as at the time of testifying in the court. Thus, possibility of tutoring DW1 could not be ruled out. DW2 Amardeep @ Mukesh Kumar has admitted in his cross- examination that incident had not taken place in his presence. Hence, the version of both DW1 and DW2 cannot be relied upon. As such, the contention that the deceased has received burn injuries due to accidental firing is, in the opinion of this court, misconceived.
33. Dying declaration Ex. PW16/A is further corroborated by MLC Ex. PW7/A and PM report Ex. PW6/A .
34. In the present case, the prosecution has also established motive of the accused persons to commit murder of deceased Santosh i.e. accused persons were not satisfied with the dowry articles brought by the deceased. The testimonies of PW4 Om Kumar, PW5 Swami, PW18 Ram Lal and PW21 Brahm Singh are consistent on this aspect. As regards the weight to be attached to the motive in deciding as to whether the prosecution has proved the case beyond reasonable doubt against an accused, the Hon‟ble Supreme Court in the case of Suresh Chandra Bahri v. State of Bihar,1995 Supp (1) SCC 80 held as under:
"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 42 of 45 charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime."
35. In Amitava Banerjee vs. State of W.B., (2011) 12 SCC 554, it was observed as under:
"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty.
42. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence.
43. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime. And yet experience about human nature, human conduct and the frailties of human mind has shown that inducements to crime have veered around to what Wills has in his book "Circumstantial Evidence" said:
"The common inducements to crime are the desires of revenging some real or fancied wrong; of getting rid of rival or an obnoxious connection; of escaping from the pressure of pecuniary or other obligation or burden of obtaining plunder or other coveted object; or preserving reputation, either that of general character or the conventional reputation or profession or sex; or gratifying some other selfish or malignant passion."
36. In Tarsem Kumar vs. Delhi Administration, 1995 Cri.L.J.470, the Hon'ble Supreme Court had repeatedly pointed out that where the case of prosecution has been proved beyond reasonable doubt on the basis of material produced before the Court, motive losses its importance but in a case which is based SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 43 of 45 on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. It was further emphasised that if each of the circumstances proved on behalf of prosecution is accepted by the Court for the purpose of recording a finding that it was the accused who committed the crime in question even in absence of any proof of a motive for commission of such crime, the accused can be convicted.
37. As regards the importance to be assigned to proof of motive in a case based on circumstantial evidence, the Hon'ble Supreme Court in case titled as Mulakh Raj Etc vs Satish Kumar And Others, 1992 AIR 1175, observed as under :
"Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The failure to prove motive is not fatal as a mater of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case."
38. In light of law discussed above, though in a case of circumstantial evidence motive assumes importance, however, failure to prove motive does not signify its non-existence. DECISION OF THE COURT
39. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to disbelieve the version of prosecution witnesses. All the ingredients of section 302 of IPC are satisfied. The prosecution has successfully proved beyond reasonable doubt its case against SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 44 of 45 the accused Krishna Devi that on 20-11-2011 at about 8 to 9 pm, at H. No. 632, Gali no. 15, Adarsh Mohalla, Mauzpur, Delhi, she along with co-accused Anil Kumar (since deceased) and Ratan Singh (since deceased) killed Santosh by pouring kerosene oil and setting her on fire. Accordingly, accused Krishna Devi is hereby convicted for the offences punishable under section 302 of IPC. However, she is acquitted for the offence punishable u/s 498A of IPC. Let the convict be heard on the quantum of sentence and grant of compensation on the next date of hearing.
Announced in the Open Court
On 18-01-2024 PANKAJ Digitally signed by
PANKAJ ARORA
ARORA Date: 2024.01.20
16:52:21 +0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/18-01-2024
SC No. 44522/2015 State Vs. Anil Kumar & Ors. Page 45 of 45