Delhi District Court
State vs . Kanta & Ors. Fir No. 181/04 Page 1 Of 29 on 20 December, 2010
IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE-03:NW:ROHINI:DELHI
SESSIONS CASE NO. 72/08.
FIR No. 181/04.
U/S: 498-A/307/304-B/302/34IPC.
P.S. Nangloi.
STATE
Versus
1. Kanta W/o Girish Kumar,
R/o X-380, Camp No. 6,
Nangloi, Delhi.
2. Bunty S/o Girish Kumar,
R/o X-380, Camp No. 6,
Nangloi, Delhi.
3. Vicky S/o Girish Kumar,
R/o X-380, Camp No. 6,
Nangloi, Delhi.
Date of Institution : 03.06.2004.
Date of Argument : 01.12.2010.
Date of Judgment : 16.12.2010.
JUDGMENT
1. Prosecution case is that on 04.03.2004 at about 3.00 pm, Duty Constable, DDU Hospital gave an information at Police Station Mangol Puri that Seema, wife of Vicky was got admitted in the hospital in a burnt condition by one Sanju. On this information, DD No. 38-B was recorded in Roznamcha. ASI Ram Diya was sent to DDU Hospital. The doctor declared the victim unfit for statement. The victim was thereafter referred to RML Hospital. Information was passed to State Vs. Kanta & Ors. FIR No. 181/04 Page 1 of 29 Sh. C. Arvind, SDM, Punjabi Bagh. On 05.03.2004, Seema was declared fit for statement by Dr. Ashok. SDM came at RML Hospital and recorded the statement of Seema. She categorically stated that yesterday i.e. March 04, 2004 at about 12.00 noon three persons namely Vicky (husband), Bunty (brother in law) and Kanta (mother in law) poured kerosene over her and lit fire. On being asked about the reason, she stated that she was being tortured by the above mentioned persons since her marriage which took place two years prior to the incident. FIR was registered under Section 498-A/307/34 IPC. During investigation, ASI Ram Diya prepared the site plan, recorded the statements of witnesses under Section 161 Cr. PC and recovered the dowry articles. On 04.03.2004, SDM Punjabi Bagh seized a blue colour burnt saree and a white colour petticoat from the spot. On 05.03.2004, a plastic can containing small quantity of kerosene oil was recovered from the spot i.e. X-380, Camp No. 1, Nangloi. Seema expired on 11.03.2004 at the hospital. Postmortem on the body of deceased was got conducted. Scaled site plan was prepared. Exhibits were sent to FSL. On the death of Seema, Section 302 IPC was added. On completion of investigation, charge sheet was filed under Section 498-A/307/304-B/34 IPC.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court by the learned MM. My learned predecessor framed charges under Section 498-A/304-B read with Section 34 IPC against all the three accused on 07.07.2004 to which, accused pleaded not guilty. Alternatively, charge under Section 302/34 IPC was also framed against the accused persons on 25.07.2006 to which, accused pleaded not guilty.
3. In order to prove its case, prosecution examined 20 State Vs. Kanta & Ors. FIR No. 181/04 Page 2 of 29 witnesses. PW-1 is Roop Kishore. He is the father of the deceased. He deposed that his daughter Seema got married with accused Vicky two and a half years ago. He had given dowry as per his capacity at the time of marriage of his daughter. After about 4-6 months of marriage, accused Vicky, his mother Kanta and brother in law Bunty demanded scooter or motorcycle in dowry but he could not arrange the same. Thereafter, Vicky, his mother and his aunt left his daughter Seema at the house of his father telling that they would not keep her at their house. He deposed that Seema had complained to him that she was being harassed by her in-laws and they used to say "Iske Parivar Wale Nange Hain, Ye Kucch Nahin Layi." He further stated that he sent the message to the in-laws of Seema that they may initiate action against them and thereafter, Banwari Lal, Phoopha of Vicky, came at his house with Vicky and took Seema to her in-laws house and assured that Seema would not be harassed again. He further deposed that after 2-3 months of this incident, he went to the house of Seema to bring her at his house on the occasion of some festival but she was not sent. After 2-3 months, he was telephonically informed that Seema had received burn injuries. On receipt of this information, he along with his wife, mother and brother in law Sunil went to RML Hospital where on enquiry, Seema told that she was being harassed since she came to her in-laws house and that they stopped providing her rice, vegetables and tomatoes etc and also told that on the day of incident, her mother in law had brought kerosene oil in a can and gave the same to Vicky telling that "Aaj Iska Khel Khatam Kar De." Accused Vicky poured kerosene oil on her and her brother in law exhorted Bunty by saying "Aag Laga De" and Bunty set her on fire. After setting her on fire, all the three accused ran away from the spot. She came out of the house while burning. Mohalla people extinguished the fire and she was brought to the hospital in a vehicle by Sanju. He stated that his State Vs. Kanta & Ors. FIR No. 181/04 Page 3 of 29 daughter remained alive for about 7-8 days. He further deposed that dowry articles were recovered by the police and the body of his daughter was released to him after postmortem vide Exbt. PW-1/B. His statement Exbt. PW-1/A was recorded by the police regarding identification of the body. In reply to a specific question put by the learned APP, he admitted that one can, one Tabeez and one more article were also recovered from the house of accused Vicky. He stated that all the accused persons were arrested. He proved the arrest memos Exbt. PW-1/H, PW-1/J and Exbt. PW-1/K. PW-2 is Sanju. He deposed that on 04.03.2004 between 12.00 noon - 1.00 pm, he was standing in front of his shop situated on the ground floor of his house. Seema, wife of Vicky came out of her house in burning condition. Mohallawalas poured water on her. Her family members were not present at that time. After the fire was put off, somebody threw bed sheet on her by which, she wrapped herself. He stated that he rushed Seema to DDU Hospital in a three wheeler. He volunteered that on enquiry from Seema as to how she had received the burns, she had replied that she does not know how she had received the burns.
PW-3 is HC Dashrath Singh, Duty Officer. He proved the FIR Exbt. PW-3/A. PW-4 is Satish Kumar. He stated that the body of Seema was handed over to her father in his presence.
PW-5 is Smt. Angoori Devi Rastogi. She is the mother of the deceased. She deposed that after about two months of the marriage, all the accused persons started harassing her daughter for State Vs. Kanta & Ors. FIR No. 181/04 Page 4 of 29 bringing insufficient dowry. They used to beat her daughter. Accused Kanta and Bunty used to say that if Seema was eliminated, the second wife of accused Vicky would bring sufficient dowry in marriage. She further stated that after two months of the marriage, accused Vicky dropped her daughter at her house and on enquiry, Vicky told that he would marry again with someone. The clothes and ornaments of Seema were kept back by accused Kanta and her daughter was provided only with 2-3 old sarees. Kanta had also kept all the ornaments of her daughter. She further deposed that her daughter resided at her house for about two months and that after about two months, Samdhi of accused Kanta came at her house along with 4-5 persons and persuaded them to send Seema with them to her matrimonial home and assured that she would not be harassed in future and would live peacefully. She further stated that as and when Seema visited her house, she told them that accused Kanta and Vicky used to demand scooter from her. Seema was harassed by accused persons as their demands of scooter were not fulfilled. She further testified that on 04.03.2004, she was telephonically informed by the neighbourers of the accused that her daughter Seema had sustained burn injuries and was admitted in DDU Hospital. She stated that on 10.03.2004, her daughter Seema told her that her mother in law Kanta had brought kerosene oil and handed over the can containing kerosene oil to Vicky and Vicky poured kerosene oil on Seema and that her Devar Bunty set her on fire. Angoori Devi was cross examined by the learned APP. In cross examination, she stated that Seema did not tell her anything on 05.03.2004 and gave the details of incident only on 10.03.2004.
PW-6 is Sh. Subhash Chander Rastogi. He identified the body of his niece Seema vide identification memo Exbt. PW-6/A. State Vs. Kanta & Ors. FIR No. 181/04 Page 5 of 29 PW-7 is Dr. Babita Gabriyal from DDU Hospital. She had examined Seema in the casualty. She deposed that on local examination, there were superficial to deep burn injuries over the whole body except both foot and strip region and there were approximately 90% burn injuries. She had referred the patient to burn and plastic surgery department. She proved the MLC Exbt. PW-7/A. PW-8 is Inspector Devender Singh, Draftsman, Crime Branch. He prepared the scaled site plan.
PW-9 is Banwari Lal. This witness was not examined by prosecution and was dropped by the learned APP.
PW-10 is ASI Ram Diya. He deposed that on receipt of DD No. 38, he went to DDU Hospital where the doctor on duty declared Seema unfit for statement on his application Exbt. PW-10/A. He then informed SDM Punjabi Bagh. Thereafter, SDM visited DDU Hospital but prior to that, Seema was referred to RML Hospital. He then came at the spot at X-380, JJ Colony, Nangloi along with SDM from where SDM seized the burnt clothes of Seema which were lying in front of the house vide memo Exbt. PW-10/B. The spot was got photographed through a private photographer. He deposed that SDM directed him to inform him as soon as Seema was declared fit for statement. On 05.04.2004, Seema was declared fit for statement. SDM was informed, who came at the hospital and recorded the statement of Seema. Thereafter, on the directions of the SDM, FIR was lodged at Police Station Mangol Puri. He then recorded the statement of Seema, Angoori Devi and Roop Kishore. One plastic can was seized from the spot in the presence of Roop Kishore vide memo State Vs. Kanta & Ors. FIR No. 181/04 Page 6 of 29 Exbt. PW-1/D and thereafter accused were arrested on the identification of Roop Kishore. On 11.03.2004, dowry articles were seized from accused Vicky vide memo Exbt. PW-1/C. After the death of Seema, ASI Ram Diya handed over the file to SHO. All the three accused persons were then arrested at the instance of Roop Kishore.
PW-11 is Sh. C. Arvind, SDM, Punjabi Bagh. He deposed that on 04.03.2004, ASI Ram Diya informed him that Seema wife of Vicky had suffered severe burn injuries and was admitted to DDU Hospital and was not in a position to give statement. On getting this information, he visited DDU Hospital at around 5.00 pm and at that time, Seema was being referred to RML Hospital for further treatment and was not in a condition to give statement. On 05.03.2004 at about 11.00 am, ASI Ram Diya informed him over his cell phone that Seema was fit for statement. He immediately rushed to RML Hospital where duty doctor certified that Seema was fit for statement. He then recorded the statement of Seema Exbt. PW-11/A in the burns ward and directed the SHO to register the case vide his endorsement Exbt. PW- 11/B. He further deposed that on 11.03.2004, he was informed by ASI Ram Diya that Seema had expired. He then got conducted the postmortem of the deceased and after postmortem, handed over the body to her mother and father. He had prepared the inquest documents and recorded the statements of identification of body.
PW-12 is SI Sudesh Ranga. He took the body after postmortem and seized the exhibits of the deceased vide memo Exbt. PW-12/A and then handed over the body to the father of the deceased.
PW-13 is Dr. Lalit Makhija from RML Hospital. He identified the signatures of Dr. Ashok on MLC Exbt. PW-7/A, who had declared State Vs. Kanta & Ors. FIR No. 181/04 Page 7 of 29 Seema fit for statement. He also produced the attendance sheet of RML Hospital which is Exbt. PW-13/A. PW-14 is Dr. Amandeep. He proved the death report Exbt. PW-14/A. PW-15 is Constable Onkar Sharma. He is the witness of investigation who assisted ASI Ram Diya in the investigation of the case. He is the witness of recovery of plastic can having some kerosene oil from the house of the accused. He is also the witness of arrest documents.
PW-16 is Dr. V.K. Jha, Medical Officer, SGM Hospital. He had conducted the postmortem on the body of the deceased. He proved the postmortem report Exbt. PW-16/A. According to him, the cause of death was Septicemia as a result of burn injury which was ante mortem in nature.
Dr. Lalit Makhija was again examined as PW-17. He identified the handwriting and signatures of Dr. Ashok on the MLC Exbt. PW-7/A. Sh. C. Arvind, SDM was again recalled and tendered as PW-18 after framing of alternative charge under Section 302 IPC and he adopted the same statement which he gave prior to framing of alternative charge.
PW-19 is Inspector Suresh Dabas. After the death of Seema, he deputed SI Sudesh Ranga for conducting proceedings under Section 176 Cr. PC under the supervision of SDM. He stated State Vs. Kanta & Ors. FIR No. 181/04 Page 8 of 29 that on 13.03.2004 after postmortem, the body was handed over to Sh. Roop Kishore, father of the deceased. He stated that SI Sudesh Ranga recorded the statement of witnesses under Section 161 Cr. PC and he himself recorded the statement of SI Sudesh Ranga, Roop Kishore, Satish and Subhash. He stated that ASI Ram Diya prepared the site plan Mark A and on completion of investigation, charge sheet was prepared and filed in court. Later he collected the FSL results Exbt. PW-19/A and Exbt. PW-19/B and filed them in court.
PW-20 is Dr. Manoj Kumar Jain from RML Hospital. He proved the death summary Exbt. PW-20/A.
4. Statements of all the three accused were recorded under Section 313 Cr. PC wherein they denied all the incriminating evidence. They took the plea that they were not present at the house at the time of incident and do not know as to how Seema caught fire.
5. In their defence, accused examined DW-1 Rashid. He stated that his house is opposite to the house of accused and that on 04.03.2004 at about 2.30 pm, Seema came out of the house in flames and that at that time, no one was present in the house of accused. He informed Gopal, son in law of accused Kanta, from a PCO. He stated that Sanju rushed Seema to hospital in an auto.
DW-2 is Smt. Kamlesh, owner of grocery shop and also having a PCO at her shop. She deposed that on 04.03.2004 at about 1.30 - 2.00 pm on hearing the noise, she came outside and saw Seema, daughter in law of accused Kanta, in flames. The persons living in the neighbourhood came at her shop and telephonically informed the son in law of accused Kanta. She further stated that State Vs. Kanta & Ors. FIR No. 181/04 Page 9 of 29 Seema was rushed to hospital by Sanju in a TSR and after about an hour, she saw accused Kanta in gali who was returning after buying vegetables from the market. She then informed Kanta that her daughter in law had got burnt and was rushed to the hospital. On hearing this, Kanta fell down and became unconscious.
6. I have heard arguments from the learned APP for the State and Sh. J.S. Khushwaha, advocate for accused and have carefully gone through the material on record.
7. The learned APP has submitted that present case is mainly based on the dying declaration given by deceased prior to her death and also on the testimonies of mother and father of the deceased. It is submitted that dying declaration has been recorded by the SDM wherein she has given vivid details of how the occurrence took place. She has also stated before the SDM that accused persons were harassing her for dowry. Her parents have also proved that deceased was being harassed for dowry by the accused persons. The learned defence counsel, however, has argued that there are four dying declarations on record and all of them are inconsistent and contradictory to each other. It is stated that dying declaration recorded by the SDM is a result of tutoring by her parents and has been recorded after a considerable delay. It is further stated that PW-2 Sanju has proved that accused persons were not at home at the time of the incident and while being taken to the hospital, deceased had told Sanju that she does not know how she had received burns and therefore dying declaration is false and has been given only at the behest of the parents of the deceased who tutored her to give such a statement. It is also argued that residues of kerosene oil were not detected from the clothes of the deceased and the plastic can falsifies State Vs. Kanta & Ors. FIR No. 181/04 Page 10 of 29 the prosecution case that deceased was burnt by pouring kerosene oil on her body. With regard to the dowry allegations, it is submitted that the allegations are vague and there are contradictions in the testimonies of mother and father of the deceased and it is not established that deceased was subjected to cruelty or harassment by the accused soon before her death. The learned defence counsel has relied on the case of Hans Raj Singh & Ors Vs. State Govt. of NCT of Delhi 2010 (2) JCC 972 wherein it has been held that there is a growing tendency these days to take revenge from the husband by implicating all his family members. Reliance has also been placed on the case of of Narender Singh Arora Vs. State (Govt. of NCT of Delhi) and Ors 2010 (4) JCC 2373 wherein the Hon'ble Court held that mentality which is now taking grip of parents of a deceased wife in the criminal cases is whenever a woman dies an unnatural death within seven years of her marriage at in-laws house, whatever be the cause of death the in-laws must be hanged. It is submitted that this is one of those cases wherein husband and his family members have been roped in to take revenge for the death of the deceased.
8. I have given my anxious consideration to the submissions made by the learned APP and the learned counsel of the accused. It is a settled principle of law that Section 32 of Indian Evidence Act, 1872 is an exception to the general rule that best evidence has to be adduced. The condition precedent for invoking Section 32 of the Act are envisaged in Section 32 itself. Sub Section (1) of Section 32 of the Act provides that when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of that person's death comes into question are relevant whether or not the same were made under expectation of death.
State Vs. Kanta & Ors. FIR No. 181/04 Page 11 of 299. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The Hon'ble Supreme Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben Vs. State of Gujarat (1992(2) SCC 474) (SCC pp.480-81, paras 18-19)
i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See: Munnu Raja Vs. State of M.P. (1976 (3) SCC 104)]
ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (See: State of UP Vs. Ram Sagar Yadav (1985 (1) SCC 552) and Ramawati Devi Vs. State of Bihar 1983 (1) SCC 211).
State Vs. Kanta & Ors. FIR No. 181/04 Page 12 of 29iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration (See: K. Ramachandra Reddy Vs. Public Prosecutor (1976 (3) SCC
618).
iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence (See: Rasheed Beg Vs. State of M.P. (1974 (4) SCC 264).
v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected [See: Kake Singh Vs. State of M.P. (1981 Supp. SC 25)]
vi) A dying declaration which suffers from infirmity cannot form the basis of conviction [See: Ram Manorath Vs. State of U.P. (1981 (2) SCC 654)]
vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra Vs. Krishnamurti Laxmipati Naidu (1980 Supp. SCC
455).
viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth (See: Surajdeo Ojha Vs. State of Bihar (1980 Supp. SCC 769).
ix) Normally, the court in order to satisfy whether the State Vs. Kanta & Ors. FIR No. 181/04 Page 13 of 29 deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail (See: Nanhau Ram Vs. State of M.P. (1988 Supp. SCC 152).
x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (See: State of U.P. Vs. Madan Mohan (1989 (3) SCC 390).
xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted (See: Mohanlal Gangaram Gehani Vs. State of Maharashtra (1982 (1) SCC 700).
10. In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. It would be therefore desirable to extract the dying declaration Exbt. PW- 11/A at this stage.
Statement of Smt. Seema w/o Sh. Vicky, R/o X-380, Camp No. 3, Nangloi before SDM Punjabi Bagh on 05.03.2004 at 12.40 pm. What is your name?
My name is Seema.
Can you answer properly?
Yes I can.
Who is your husband?
Vicky.
What happened yesterday?
State Vs. Kanta & Ors. FIR No. 181/04 Page 14 of 29Three persons namely Mr. Vicky, my husband, Mr. Bunty (Devar-brother-in-law) and my mother in law (Saas) Smt. Kanta poured kerosene over me yesterday i.e. 04.03.2004 at around 12.00 noon and lit fire.
Why did they pour kerosene?
All three of them tortured me for dowry since marriage."
When did you get married?
About two years ago.
You have any children?
No. Who were all there at at home at the time of incident? Vikcy, Bunty and Saas.
Do you want to tell anything else?
Vicky, Bunty and my Saas must be sent to jail.
The statement was recorded before me. The questions were asked in Hindi and the patient Smt. Seema replied in Hindi.
Brief Facts RFT Impression of Smt.
Recorded by me. Seema
C. Arvind Attested
05.03.04 C. Arvind
1 pm. SDM (Punjabi Bagh)
Govt. of NCT of Delhi,
Nangloi, Delhi-41.
11. It has also come in evidence that the deceased gave three more statements with regard to the cause of her death, one to her father Roop Kishore (PW-1), second to her mother Smt. Angoori Devi (PW-5) and third to ASI Ram Diya (PW-10). PW-1 Roop Kishore deposed that on receipt of information when he reached the hospital, on enquiry as to what had happened, his daughter replied that "since she has come to her in-laws house, she was harassed and they stopped providing her rice, vegetables and tomatoes etc and further told that on the day of incident, her mother in law had brought kerosene State Vs. Kanta & Ors. FIR No. 181/04 Page 15 of 29 oil in a can and gave the same to Vicky and told "Aaj Iska Khel Khatam Kar De" and subsequently, Vicky poured kerosene oil on her. Her mother in law exhorted Bunty by saying "Aag Laga De" and Bunty set her on fire and after setting her on fire, all three of them ran away from the spot. Thereafter, she came out of the house while burning. Mohalla people extinguished the fire and she was brought to the hospital in a vehicle by one Sanju."
12. PW-5 Smt. Angoori Devi stated that on 10.03.2004, her daughter told her that her mother in law had brought kerosene oil and she handed over the can containing kerosene oil to Vicky and Vicky poured kerosene oil on Seema and her Devar Bunty set her on fire. She was cross examined by the learned APP with regard to the date on which Seema had given such a statement to her but she denied that Seema had given the statement to her on 05.03.2004. In her re- examination which was recorded after the amendment of charge, she stated that the said statement was given by Seema on the day of incident.
13. ASI Ram Diya (PW-10) deposed that after the registration of the FIR, he recorded the statement of Seema. Although prosecution has not proved the said statement under Section 161 Cr. PC, but the defence has relied on the said statement to prove that this statement is in contradiction with earlier statements of the deceased. For this reason, I am referring to the statement of Seema dated 05.03.2004 recorded under Section 161 Cr. PC wherein she stated that on 04.03.2004 at about 12.00 pm, her mother in law Kanta brought a plastic can containing kerosene oil and after closing the door, asked her husband Vicky and Devar Bunty "Aaj Iska Kaam Tamam Kar Do, Main Vicky Ki Doosri Shadi Kar Doongi." Thereupon, Vicky poured State Vs. Kanta & Ors. FIR No. 181/04 Page 16 of 29 kerosene oil on her and her mother in law gave match box to her Devar Bunty asking him to lit the fire. Bunty set her on fire with burnt stick and thereafter all three of them left the house.
14. According to the learned defence counsel, there are improvements and contradictions in the dying declarations given by the deceased which are the result of tutoring by her parents and therefore dying declarations are not reliable.
15. The cause of death, as per all the four dying declarations i.e. oral dying declaration given before father and mother, written dying declaration given before SDM and IO is that accused persons had poured kerosene oil on her and set her on fire. It is true that individual role played by accused persons is not specified in the dying declaration recorded by the SDM while the other three statements vividly give the role played by each of the three accused persons. Otherwise, all the four dying declarations are consistent and there is no contradiction in the said statements and therefore in my view merely because in the dying declaration Exbt. PW-11/A the roles of the accused are not specified, would not make dying declarations contradictory to each other.
16. With regard to the delay in recording the dying declaration by the SDM, the learned defence counsel has argued that as per MLC Exbt. PW-7/A, at the time when she was brought to the hospital, she was conscious, oriented but drowsy. Her father Roop Kishore has deposed that when he met his daughter, she was in a fit state of mind. Similarly, her mother Smt. Angoori Devi also deposed that Seema was in a fit statement of mind when she made enquiry from her as to how she received burn injuries. On the basis of this, it is argued that Seema State Vs. Kanta & Ors. FIR No. 181/04 Page 17 of 29 was in a fit condition to give statement even on 04.03.2004 but her dying declaration was recorded by the SDM on 05.03.2004. This gave sufficient time and opportunity to the parents of the deceased to tutor her and therefore statement Exbt. PW-11/A is a tutored version of the deceased and is not reliable.
17. It is correct that as per MLC Exbt. PW-7/A, Seema was conscious and oriented. Dr. Babita Gabriyal (PW-7) who attended Seema on 04.03.2004 in the Casualty, stated that Seema was in a drowsy condition and was suffering from 90% burn injuries. The death report Exbt. PW-14/A and postmortem report Exbt. PW-16/A prove that Seema had sustained 96% burn injuries. On reaching the hospital, ASI Ram Diya gave application Exbt. PW-10/A seeking permission to record the statement of Seema but she was declared unfit for statement by the doctor. There is no cross examination of ASI Ram Diya with regard to endorsement of the doctor that Seema was unfit for statement. Merely because Seema, who sustained severe burn injuries was conscious, does not mean that she was in a fit state of mind to give the statement. Since she was declared unfit for statement by the doctor, her statement could not be recorded that day and therefore it cannot be said that there was any deliberate delay in the recording of the statement of Seema. PW-1 Roop Kishore and his wife Smt. Angoori Devi (PW-5) are consistent with regard to the statement given by the deceased as regards the cause of her death. It has been made clear by the Apex Court in the case of Darshana Devi Vs. State of Punjab 1996 SCC (Crl) 38 that even though an oral dying declaration can form the basis of conviction in a given case but such dying declaration has to be trustworthy and free from every blemish and inspire confidence. The learned defence counsel has failed to point out any inconsistency or blemish in the oral dying declarations given State Vs. Kanta & Ors. FIR No. 181/04 Page 18 of 29 by the deceased before her father and mother. In the case of Lakhan Lal Vs. State 1995 Crl. L.J 2699, oral dying declaration was made by deceased/wife to her father. It was found that there was no animosity between the accused and her father. The evidence given by her father regarding the said dying declaration was found quite natural. There was no material to show that there were other witnesses to the dying declaration. It was held that dying declaration of her father cannot be discarded for non-examination of witnesses in support thereof. In this case also, there is no evidence that there was any animosity between parents of the deceased and the accused and therefore the evidence of oral dying declaration of father and mother of the deceased cannot be discarded. Since there is no evidence that there was any animosity between the parents of the deceased with accused, it cannot be inferred that they had tutored the deceased to give false statement before the SDM.
18. It has been argued that the dying declaration has been recorded by SDM by itself is not a proof of truthfulness of dying declaration which in order to earn acceptability has still to pass the test of scrutiny of the court. It has been submitted that the doctor who certified the mental fitness of the deceased is not produced and therefore dying declaration is not reliable. Reliance is placed on the case of Kanchy Komuramma Vs. State of A.P. & Kanchy Ramchander Vs. State of A.P. 1996 Supreme court Cases (Cri.) 31. In the said case, prosecution did not examine the doctor who allegedly made endorsement on dying declaration that "patient was in a fit state of mind to depose." No other witness was examined to prove the certificate of the doctor. It was held that non production of doctor to prove his certificate and subject himself to cross examination when considered in the light of statement of mother of deceased who State Vs. Kanta & Ors. FIR No. 181/04 Page 19 of 29 specifically stated that the condition of the patient was not good and that she was not in a fit condition creates a doubt as to whether the patient was actually in a proper mental condition to make a conscious truthful statement.
19. PW-10 ASI Ram Diya deposed that on 04.03.2004 on receipt of DD No. 38 when he reached the hospital, the concerned doctor on duty declared Seema unfit for statement on his application Exbt. PW-10/A. PW-11 Sh. C. Arvind, SDM, Punjabi Bagh deposed that when he reached the hospital, Seema was referred to RML Hospital for further treatment and at that time, she was not in a condition to give statement. He therefore directed ASI Ram Diya to remain in continuous touch with doctors at RML Hospital and inform him as soon as she was in a position to give statement. ASI Ram Diya (PW-10) deposed that on 05.04.2004 when he reached RML Hospital, Seema was declared fit for statement by the doctor and he accordingly informed the SDM who reached the hospital and recorded the statement of Seema. There are two endorsements on the MLC Exbt. PW-7/A, one at point X recorded at 11.35 am and other at point B recorded at 12.40 pm on 05.03.2004. Dr. Ashok had declared Seema fit for statement vide endorsement at point X and point B. Prosecution could not produce Dr. Ashok as he had left the services of the hospital but Dr. Lalit Makhija, H.O.D. identified the signatures of Dr. Ashok on the MLC. Sh. C. Arvind, SDM (PW-11) deposed that on getting the information from ASI Ram Diya that Seema was in a condition to give statement, he immediately proceeded to RML Hospital where Dr. Ashok certified Seema to be fit to give statement. Thereafter, he recorded her statement and obtained her right foot thumb impression at point B on her statement Exbt. PW-11/A. In cross examination, SDM stated that endorsement "fit for statement" was given by the State Vs. Kanta & Ors. FIR No. 181/04 Page 20 of 29 doctor on the MLC in his presence. It is therefore proved from the evidence that deceased was in a fit state of mind at the time of giving dying declaration Exbt. PW-11/A. The authority cited by the learned defence counsel is therefore not applicable to the facts and circumstances of the present case.
20. The learned defence counsel has argued that MLC Exbt. PW-7/A bears the LTI and RTI of Seema and there is no reason why the right foot thumb mark was obtained on the dying declaration Exbt. PW-11/A and therefore dying declaration recorded by the SDM is shrouded with suspicion. It is correct that MLC bears the thumb marks of Seema. Dr. Babita Gabriyal (PW-7) had examined Seema in the Casualty. On local examination, she found that there were superficial to deep burn injuries over the whole body except both foot and strip region. According to her, Seema was having 90% burn injuries. SDM in his cross examination stated that the hands of Seema were burnt and she was not able to give RTI of her hand as her whole body was under protective dome or closet. LTI and RTI of Seema on the MLC may have been obtained at the time of her admission before she was provided any treatment. Since it has come in evidence that there were burn injuries on her whole body except foot and strip region, it cannot be said that dying declaration recorded by the SDM is shrouded by suspicion merely because her foot thumb impression was taken and not right hand thumb impression.
21. It has been argued by the learned defence counsel that dying declaration is recorded in English and there is no certificate of SDM that it was read over to the deceased before obtaining her right foot thumb impression and the dying declaration is also not attested by the doctor or the hospital staff.
State Vs. Kanta & Ors. FIR No. 181/04 Page 21 of 2922. It is recorded in Exbt. PW-11/A itself that the questions were asked in Hindi and the patient had replied in Hindi. In cross examination, SDM stated that statement Exbt. PW-11/A is in his own handwriting and that Dr. Ashok had come only for one or two minutes and thereafter he left and that nobody else was present when he recorded the statement of Seema. Dying declaration is recorded in question answer form. SDM is an independent witness having no animosity with accused and therefore dying declaration Exbt. PW-11/A cannot be disbelieved merely because certificate of correctness is not appended to the dying declaration or because it does not bear the attestation of the doctor. In the case of Khushal Rao Vs. State of Bombay AIR 1958 SC 22, Hon'ble Supreme Court held that 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 maker of the declaration, stands on a much better footing than dying declaration which depends upon the oral testimony which may suffer from all infirmity of human memory and human character.
23. The testimony of PW-5 Smt. Angoori Devi was recorded on 17.11.2004 wherein she stated that Seema had given the statement to her on 10.03.2004. Smt. Angoori Devi was re-examined after the framing of alternative charge wherein she stated that Seema narrated the occurrence to her on the day of incident itself. It is thus submitted that PW-5 Angoori Devi is not a trustworthy witness. She has contradicted herself by giving different dates when such statement was made by her daughter to her. The contradiction with regard to the date is not a material contradiction and may occur because of lapse of time and therefore on account of this, not much significance can be given to State Vs. Kanta & Ors. FIR No. 181/04 Page 22 of 29 the alleged contradiction.
24. ASI Ram Diya (PW-10) deposed that SDM had seized the burnt clothes of Seema which were lying in the street in front of the house. He also stated that he had seized a plastic can from the house of accused. Exhibits were sent to CFSL but as per CFSL result Exbt. PW-19/A, residues of kerosene were neither detected from the plastic can nor from the burnt clothes. On the basis of the CFSL result, it is argued that statement given by deceased that she was burnt after pouring kerosene is falsified. The learned counsel relies on the case of Jitender Kumar Vs. State of NCT of Delhi 2009 (1) JCC 491. The said case was based on dying declaration of the deceased that her mother in law had poured kerosene on her. It was held that lack of kerosene residues being detected in the clothes casts a doubt whether any kerosene was at all used. No kerosene dropping was found on the floor. The doctor had not recorded that he noted smell of kerosene from the person of the deceased. Due to the absence of kerosene on her partially burnt clothes which she was wearing at the time of the incident, it was held that possibility of deceased in a state of agitation, entered the kitchen proceeding to cook food and in the process suffering accidental burn injuries, cannot be ruled out. However, the authority cited by the learned defence counsel is not applicable to the facts and circumstances of the present case in as much as in the present case, as per MLC Exbt. PW-7/A, the doctor found kerosene smell positive and SDM also found the smell of kerosene in the house at the time of his visit at the spot. Merely because kerosene oil residues were not found in the plastic can and in the burnt clothes of the deceased, would not falsify the statement of the victim that she was burnt by pouring kerosene on her.
State Vs. Kanta & Ors. FIR No. 181/04 Page 23 of 2925. It has been argued by the defence that there are contradictions in the testimonies of ASI Ram Diya and SDM, in as much as, ASI Ram Diya deposed that SDM went at the spot on 04.03.2004 and seized the burnt clothes of Seema which were lying in the street in front of the house vide memo Exbt. PW-10/B but SDM in his cross examination stated that nothing was recovered in his presence from the spot. It is further stated that ASI Ram Diya deposed that the spot was got photographed by calling a private photographer but SDM states in cross examination that in his presence, no photographs were taken.
26. Insofar as certain inconsistencies or minor contradictions in the narration or embellishment are concerned, the Apex Court in the case of Ranadhir Basu Vs. State of West Bengal AIR 2000 SC 908 held that some inconsistencies of a minor nature in the evidence of the witness can be regarded as natural, giving more details while disposing before the court are not to be treated as improvements by such a nature as would create any doubt regarding the trustworthiness of a witness. Minor discrepancies are possible even in the version of truthful witnesses and such minor discrepancies only add to the truthfulness of their evidence. The main thing to be seen is whether the inconsistencies go to the root of the matter or pertain to insignificant aspect thereof. The discrepancies which do not go to the root of the matter and shake the basic version of the witness, cannot be annexed with undue importance, more so, when all the important probability factors echoes in favour of the version narrated by the witness. In the case of Jamir Ahmad Vs. State 1996 Crl. L. J. 2354, the Hon'ble Court held that embellishment, exaggeration, contradictions and inconsistencies are bound to creep in with the passage of time. If witnesses are not tutored, they would come out with a natural and State Vs. Kanta & Ors. FIR No. 181/04 Page 24 of 29 spontaneous version of their own. The contradictions pointed out in this case are only minor contradictions not affecting the core of the prosecution case which has been found to be truthful.
27. It has also been argued that PW-2 Sanju is the person who took Seema to the hospital and according to him, he had enquired from Seema as to how she had received burns to which, she replied that she does not know how she had received burns. This part of the statement was given by Sanju by volunteering himself in court during examination in chief. The learned defence counsel has argued that if the occurrence took place in the manner as recorded in Exbt. PW-11/A, there is no reason why she had not told so to Sanju. It is also argued that in cross examination, Sanju has stated that he had also made enquiry about the whereabouts of Vicky and Bunty and was informed by Seema that they had gone to sell bulbs on their cycles. It is thus submitted that it is proved from the testimony of PW-2 Sanju that accused were not present at the house at the relevant time and therefore the possibility of falsely implicating the accused by the deceased is an afterthought cannot be ruled out.
28. As discussed earlier, Seema had sustained 90% - 96% burn injuries as proved by medical evidence. It is not known as to in what state of mind she was while being transported to the hospital. It cannot be said that she was in a fit state of mind at that time to give such a statement to Sanju. Moreover, in his cross examination, Sanju states that while transporting Seema to the hospital, she had told him certain things. She informed him that since morning, her in-laws were telling her to take her to the hospital and now she was going to hospital of her own. There is a big question mark as to whether a lady, who had sustained 90% - 96% burn injuries, was in a condition to tell so many State Vs. Kanta & Ors. FIR No. 181/04 Page 25 of 29 things to Sanju. The possibility that PW-2 Sanju, who is a neighbour of the accused, gave such a statement to support the accused, cannot be ruled out. I therefore refuse to place much reliance on the testimony of PW-2.
29. In her dying declarations given to the her mother, father and IO, the deceased stated that accused persons fled away from the house after setting her on fire. This is why PW-2 Sanju and DW-1 did not find any family member present at the house when they saw Seema coming out of the house in a burnt condition. The defence taken by the accused that they were not present at the house at the relevant time is therefore not acceptable.
30. Thus, on a careful scrutiny of all the four dying declarations, the court is of the conclusion that they are coherent and consistent and whatever is stated therein is an unalloyed truth and the court is satisfied that the dying declarations are true and free from any effort to induce the deceased to make a false statement and therefore it is absolutely safe to act upon them.
31. PW-1 Sh. Roop Kishore and PW-5 Smt. Angoori Devi have proved that accused persons were making dowry demands and harassing their daughter for bringing insufficient dowry so much so that they had dropped her to her parents house. They have proved that accused were demanding scooter/motorcycle in dowry. PW-5 has deposed that as and when Seema visited her house, she told that accused Kanta and Vicky used to demand scooter from her and on her inability for non-fulfilling the demand of scooter, she was harassed by the accused persons. Sh. Roop Kishore and Smt. Angoori Devi have not been able to give the dates of such demands and harassment but it State Vs. Kanta & Ors. FIR No. 181/04 Page 26 of 29 has come in evidence that all this happened within two years of her marriage with Vicky. There is no cross examination of PW-1 Roop Kishore that there was no demand of dowry. There is no cross examination, not even a suggestion that there was no demand of scooter/motorcycle. The deceased in her dying declaration Exbt. PW- 11/A was questioned as to the reason for pouring kerosene oil on her to which, she replied that all the three accused had tortured her for dowry since marriage which took place two years ago. Prosecution has thus been able to prove that Seema was subjected to harassment by accused for dowry.
32. In view of the aforesaid discussion, I am of the opinion that prosecution has been able to prove that deceased was subjected to cruelty for dowry by the accused and all the three accused persons in furtherance of their common intention, poured kerosene oil over her and burnt her to death. I therefore hold all the three accused guilty and convict them under Section 498-A/302/34 IPC.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NORTH-WEST-03:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT ON 16.12.2010.
State Vs. Kanta & Ors. FIR No. 181/04 Page 27 of 29IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS JUDGE-03:NW:ROHINI:DELHI SESSIONS CASE NO. 72/08.
FIR No. 181/04.
U/S: 498-A/307/304-B/302/34IPC.
P.S. Nangloi.
STATE Versus
1. Kanta W/o Girish Kumar, R/o X-380, Camp No. 6, Nangloi, Delhi.
2. Bunty S/o Girish Kumar, R/o X-380, Camp No. 6, Nangloi, Delhi.
3. Vicky S/o Girish Kumar, R/o X-380, Camp No. 6, Nangloi, Delhi.
ORDER ON SENTENCE
1. Arguments heard on the point of quantum of sentence from the learned Additional PP as also from the learned defence counsel. The learned APP has submitted that convicts have brutally murdered a woman because of lust of dowry and therefore they do not deserve any sympathy and has prayed for imposition of death penalty. The learned defence counsel however states that mother in law of convict Kanta is still alive and is aged about 95 years and is dependent on the convicts for her survival and there is no other person in the family to look after her. It is also submitted that convicts are poor persons who are in custody since last seven years. Request has been made for taking lenient view.
State Vs. Kanta & Ors. FIR No. 181/04 Page 28 of 292. Deterrent sentence is called for in cases where the women are tortured and harassed and killed by the husband and the relatives of the husband. The offences against the women are increasing and hence sentence must always be deterrent. However, in my view, it is not a case which falls within category of rarest of rare cases for imposition of death sentence. Considering the facts and circumstances of the case, all the three convicts are sentenced with life imprisonment under Section 302 IPC coupled with fine of Rs. 5000/- each in default of payment of which, they shall undergo six months SI each. They are also sentenced with three years RI under Section 498- A IPC with fine of Rs. 3000/- each in default of payment of which, they shall undergo three months SI each. Both the sentences shall run concurrently. The convicts shall get benefit of Section 428 Cr. PC for the period already undergone in custody during investigation/trial. Copy of the judgment and order be given to convicts free of cost. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE: NORTH-WEST-O3:ROHINI:DELHI. ANNOUNCED IN THE OPEN COURT ON 20.12.2010.
State Vs. Kanta & Ors. FIR No. 181/04 Page 29 of 29