Delhi District Court
State vs Karan Singh Chauhan @ Shakti Sc ... on 17 August, 2013
1
IN THE COURT OF SH. SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGEI(NORTH): ROHINI COURTS: DELHI
SC No.52/12.
FIR NO.157/12.
PS BAWANA.
U/S. 509/306 IPC.
STATE
VERSUS
KARAN SINGH CHAUHAN @ SHAKTI
S/O. SHRI BALWANT SINGH
R/O. VILLAGE GILYANA, PSNISANG,
DISTRICT KARNAL, HARYANA
Date of Institution in this Court:27.08.2012.
Date of Arguments:02.08.2013.
Date of Judgment:17.08.2013.
JUDGMENT:
1. The brief facts of the prosecution are that on 29.4.2012 on receiving of DD No.54B by ASI Karan Singh with regard to one Rajjo W/o; Sonu, aged 27 years was admitted in the STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 1 OF 37 2 hospital in burnt condition by Krishan S/o. Baldev R/o. Krishan Vihar Colony, Bawana. Thereafter, IO obtained the MLC of victim Rajwati @ Rajjo. He recorded the statement of Rajwati, she stated that, "she has been residing at A667, J.J. Colony, Bawana and doing service in a private company and her husband is a drug addict and has been taking treatment at deaddiction centre for the last one year, but she does not know, at which centre he has been taking treatment. She further stated that, she had married about 12 years before and she has three children and at that time she was residing at Ishwar colony, Bawana, Kanjhawala Road, in the house of Kalu Pandit as tenant. She further stated that, she was telephoned per day by one Krishan Singh Chauhan @ Shakti S/o. Balwant, who was residing at Krishna Colony, near Shri Krishan Gaushala, Kanjhawala Road and he used to make vulgar phone and call her, despite her ignorance, said person had not stopped to make calls. Thereafter she went to complaint with the mother of the said person and when she was making complaint with the mother of said person, at that time, Karan Singh Chauhan @ Shakti started abusing her and due to that harassment, she had burnt herself with kerosene oil, which she had taken alongwith her from her house. She further stated that, she had burnt herself due to harassment meted out by Shakti and thus legal STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 2 OF 37 3 action be taken against him".
On 04.05.2012 IO ASI Karan Singh got registered the FIR u/s. 509 IPC. He apprehended the accused Karan Singh Chauhan @ Shakti. On 09.05.2012, IO ASI Karan Singh received DD No.6A, with regard to death of the complainant/patient Rajwati at LNJP Hospital. He got conducted the Postmortem examination of dead body of Rajwati at LNJP Hospital and obtained the PM Report and dead body was handed over to relatives. Thereafter Section 306 IPC was added in the FIR. Thereafter, he seized the case properties and mobile phones of deceased as well as accused. Thereafter completion of the investigations, he has filed the chargesheet before the court for judicial verdict.
2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions. Thereafter, it was assigned to this court.
3. Vide order dated 10.09.2012 charges under Section 306/509 IPC was framed against accused, to which he pleaded not guilty and claimed trial.
4. Prosecution in support of its case, examined 11 (Eleven) witness i.e. PW1 Raj Kumar, PW2 Ct. Pawan Kumar, PW3 STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 3 OF 37 4 Ms. Jyoti Bhardwaj, primary Teacher, PW4 Anuj Bhatia (Nodal Officer), PW5 Sree Nivas under his presence and his supervision postmortem examination had been conducted upon the deceased, PW6 HC Dharam Singh, PW7 Dr. Prasenjit Goswami, PW8 Ct. Surender Kumar, PW9 Dr. Yudhvir Singh, PW10 Sanjay and PW11 ASI Karan Singh IO of the case.
5. Besides this prosecution proved following documents i.e. copy of Daily Diary Register as Ex.PW6/D, School Admission Register as Ex.PW3/A, Copy of customer information form as Ex.PW4/A, copy of voter I car of Rajwati as Ex.PW4/B, copy of certificate u/s. 65B(4)(c) of the Evidence Act 1871 as Ex.PW4/D, Copy of CDR as Ex.PW4/C, Copy of Cell ID Chart as Ex.PW4/E, Complaint made by Rajwati as Ex.PW9/B, Endorsement made by IO ASI Karan Singh as PW6/C, copy of FIR as Ex.PW6/A, Certificate u/s. 65 B Evidence Act regarding print out of FIR No.157/12 as Ex.PW6/B, DD No. 5B as Ex.PW11/A, DD No.6A as Ex.PW11/D, copy of handing over of dead body as Ex.PW11/J, Site plan as Ex.PW11/C, Disclosure statement of accused as Ex.PW2/C, Postmortem Report as Ex.PW5/A, Report from Forensic Department as Ex.PW11/H, Death Report as Ex.PW11/E, MLC Death Summary STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 4 OF 37 5 as Ex.PW7/A, Statement of Raj Kumar as Ex.PW1/DA, dead body identification statement as Ex.PW11/F and Ex.PW11/G, MLC of deceased Rajjo @ Rajwati as Ex.PW9/A, Arrest memo of accused as Ex.PW2/A and Ex.PW2/D, personal search memo of accused Ex.PW2/B and Ex.PW2/E.
6. Statement of accused u/s. 313 Cr.P.C. has been recorded to which he denied all the incriminating evidence put to him and denied for defence evidence.
7. PW1 Raj Kumar has testified that, Rajwati is his sister and was married about ten/eleven years ago with one Sanjay at ITO Jhuggis. Later on his sister with her family shifted at J.J. Colony, Bawana and out of the said wedlock. When his brother in law was admitted in the Deaddiction Centre, his sister started working in a factory. Her sister started living in Krishna Colony with her children in a rented accommodation. Accused was also residing in another room on rent in the same premises. His sister told that, Accused Shakti used to harass her on telephone as well as on the way, when she used to go outside. He further stated that, due to the harassment caused by the accused his sister left the said house and started residing at Ishwar Colony. There also accused started STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 5 OF 37 6 harassing his sister. His sister several times asked the accused not to harass her. His sister also complaint the behaviour of the accused to the mother of the accused. Accused and her mother abused his sister. Due to said reason, his sister brought kerosene oil from her house and poured the same upon herself and set herself on fire on 29.4.2012. Accused and his mother did not try to save his sister. She suffered severe burn injuries. Thereafter, accused got her admitted in the hospital in Bawana.
He was cross examined by ld. Addl. PP for the State, in which he admitted the suggestion that he had stated to the police that his sister had told to him that, his sister had quarreled with accused on 27.4.2012 also and on that day his sister broken her mobile phone 9582468985 and accused had kept the sim of the said phone with himself.
In his cross examination by ld. Defence counsel he stated that, Police recorded his statement only once on 09.5.2012. He further stated that, he reached at the hospital at about 34pm on 1.5.2012 to meet his sister Rajwati. His elder sister Nirmala met him in the hospital. No police official met him there. His sister Rajwati told him about the fact that, harassment by accused STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 6 OF 37 7 and pouring of kerosene oil upon herself, at that time he was alone, as his elder sister had gone to call the doctor for dressing of his sister. When he reached in the ward, his sister Rajwati was lying on the bed silently. He had not told to the police in his statement, when Rajwati narrated him the incident, his elder sister had gone to call the doctor. He denied the suggestion that, he had not told the said facts to the police, as no such fact told by his sister to him. He further stated that, her sister had told her only that, when he went to meet her on 01.05.2012 that, one person namely Shakti, who resides in Bawana, harassed his sister on telephone and his sister has burnt herself in front of the house of Shakti by pouring kerosene oil, besides that his sister sister had not told anything to him. He reached at hospital on 09.05.2012 at about 10/11am. Police had recorded his statement on that day.
He further stated that, he does not know anything about the DD No.53B. He admitted that he does not know the person by the name of Krishan S/o. Baldev, who had admitted his sister in the hospital. He may be jeth of his sister, as jeth of my sister had got her admitted in the hospital. I do not know accused Karan Singh Chauhan @ Shakti (present in the court today), as he has not seen STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 7 OF 37 8 him prior to today. He voluntarily stated that, he had only heard the name of Shakti from his sister, who used to harass his sister. He cannot say whether the accused is same Shakti or not.
8. He denied the suggestion that his sister had committed suicide due to illtreatment by said Sonu and since there was disputes between his sister and Sonu or that he does not know Sonu and he was deliberately concealing the said fact to save Sonu or that he was deposing falsely against accused Karan @ Shakti to falsely implicate him in this case or that he was deposing falsely. Thus from his testimony only it is proved that his sister Rajwati told to him that, one Karan @ Shakti used to harass his sister on phone as well as on the way if his entire testimony is believed. But from his testimony it is not proved that said Karan Singh @ Shakti was accused or has he harassed his sister.
9. PW2 Ct. Pawan Kumar is the witness of arrest of accused as he had testified in his testimony that, on 04.05.2012 he alongwith ASI Karan Singh reached at H.No.35, Krishan Vihar Colony, Kanjhawala Road, Bawana. From there accused Karan Singh present in the court today, was apprehended and he was arrested vide memo Ex.PW2/A. His personal search was conducted STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 8 OF 37 9 vide memo Ex.PW2/B. He made disclosure statement vide Ex.PW2/C. He pointed out the place of occurrence.
He further stated that, on 29.5.2012 he again remained in the investigations with the IO and reached at H.No. 35, Krishna Vihar, he was again apprehended, interrogated and arrested vide memo Ex.PW2/D, his personal search was conducted vide memo Ex.PW2/E.
10. In his cross examination, he had stated that, accused's mother was present there. Accused was residing on rent in House No.35, Krishan Vihar Colony, Kanjhawala Road, Bawana. He further stated that the place of occurrence was just distance of 1520 steps from the place accused was arrested.
11. PW3 Ms. Jyoti Bhardwaj, Primary Teacher, M.C. Primary School, Pehladpur Bangar, Delhi is not a material witness as she only produced the school record about date of birth of accused as per which date of birth of accused is 12.07.1993.
12. PW4 Anuj Bhatia, Nodal Officer, Vodafone Mobile had only proved the customer application form Ex.PW4/A of mobile number 8860043987 was issued in the name of Rajwati wife of Munshi Ram R/o. 35, Krishan Vihar, Village - Bawana, Delhi. ID STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 9 OF 37 10 proof Ex.PW4/B which was given at the time of talking. He has also proved the call record of the said mobile phone w.e.f. 01.04.2012 to 19.04.2012 Ex.PW4/C, certificate u/s. 65 B Indian Evidence Act issued by him is Ex.PW4/D and Cell ID Chart of Vodafone is Ex.PW4/E.
13. PW5 Dr. Sree Niwas had deposed that on 9.5.2012, under his supervision and in his presence, Dr. Mohit Chauhan has conducted postmortem on the dead body of Rajwati w/o Sanjay aged about 27 yrs. Female. He got conducted the postmortem examination on the dead body and prepared report Ex.PW5/A. In his cross examination by ld. Defence counsel he stated that, both frontal and back side of the body was involved with burn injuries. He denied the suggestion that he deposed falsely.
14. PW6 HC Dharam Singh is the duty officer and deposed that on 04.05.2012 ASI Karan Singh handed over to me rukka on which basis he registered the FIR Ex.PW6/A and made endorsement on the rukka is Ex.PW6/C.
15. PW7 Dr. Prasenjit Goswami is not the material witness as he came on behalf of Dr. Ajay, as Dr. Ajay had left the STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 10 OF 37 11 services of the hospital that and he was acquainted with the handwriting and signatures of Dr. Ajay, as he had worked under his supervision.
16. PW8 Ct. Surender Kumar had participated in the investigation with IO ASI Karan Singh and deposed the same facts as deposed by the IO ASI Karan Singh.
17. PW9 Dr. Yudhvir Singh, had stated that on 29.4.12 at about 7.30pm one patient Rajjo @ Rajwati wife of Sanjay @ Sonu was brought by Karan S/o. Balwant with the alleged history of burn and used kerosene oil as told by the patient. He had examined the patient and patient was fit for statement. Approximate burnt area was 80%. The patient was having burn over both upper limb sparing hands, in front of abdomen, complete back, both lower limbs sparing foot, below neck (V shaped) and he would have transferred the patient to LNJP Hospital and it is mentioned in the MLC Ex.PW9/A. After the patient was declared fit for statement, one police official whose name he does not remember came to the hospital and recorded her statement in his presence and he attested the same which is Ex.PW9/B. He was not cross examined by accused.
STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 11 OF 37 12
18. PW10 Sanjay is the husband of the victim Rajwati.
He deposed that his wife was residing separately with her two children on rent in a house at Ishwar Colony. He further deposed that on 03.05.2012 he came to know that his wife Rajwanti has been admitted in LNJP hospital. Thereafter he went at the hospital on 04.05.12. Rajwanti told him that she was teased by one Shakti Singh and he was forcing her to marry with him. She further told him that, she had gone to the house of Shakti Singh for complaining about the behavior of Shakti Singh. But Shakti Singh and his mother abused her and when she abused them, they have also beaten her. Thereafter his wife Rajwanti was burnt but she had not stated about the fact of burning clearly. His wife further stated that, she was removed to the hospital by the Shakti Singh. He can not identify the Shakti Singh as he has not seen him ever. He does not remember the date when Rajwanti went to the house of Shakti Singh.
In his cross examination by ld. Defence counsel he had stated that, he was also called by the name of Rahul. He was not known by any other name. He has never been known by the name Munshi Ram. The name of his wife is Rajwanti only. The attention of the witness has been drawn towards the photograph STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 12 OF 37 13 appearing on Ex.PW4/B. After seeing the photograph on Ex.PW4/B he stated that since photograph is not clearly visible therefore can not say the photograph is of his wife. His wife had not remarried anyone else. He further stated that, he does not know any Munshi Ram. He does not know any other Rajwanti besides his deceased wife. His wife was residing in Ishwar Colony but he does not know her complete address. He had never visited to the house where his wife was residing. He does not know any Rajwanti wife of Munshi Lal. At this stage Ex.PW4/A i.e. customer application form of mobile phone 8860043987 is shown to the witness he identified that photograph on the said documents is not of his wife. He came to know about the death of his wife on 04.05.12 then he straight away reached at the hospital, he came to know about this fact of death of his wife from his maternal uncle and also told him the name of the hospital where my wife died. He had not visited that hospital before 04.05.12. His sister in law namely Nirmala met him there. His maternal uncle told him about the facts of this case. The police officials never met him in connection with the present case. Again said his statement was recorded at the time when he received the dead body of his wife deceased Rajwanti. He had received the STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 13 OF 37 14 dead body of his wife and he made his statement to this effect only. Thus statement of PW10 is not much helpful to prosecution, except that his wife told him one Shakti Singh harassed his wife and was forcing her to marry her, but that does not appeared to be much inspiring, because, victim in her statement Ex.PW1/A had not stated that accused was forcing her to marry. He did not tell about the said fact to police, as he admitted the suggestion.
19. PW11 ASI Karan Singh is the IO of the case and had stated that on 29.04.12, he was posted at PS Bawana and on that day after receiving DD No.53B, true copy of the same is Ex.PW11/A. Thereafter he alongwith Ct. Surender reached there and collected the MLC of the injured Rajjo @ Rajwati W/o. Sanjay R/o. 667, JJ Colony, Bawana. He asked the doctor on duty about the fact that injured is fit for statement or not. Doctor declared Rajwati who was having burn injuries on her person to be fit for statement. He recorded the statement of injured at the said hospital in presence of Dr. Yudhvir Singh same is Ex.PW9/B. Thereafter he discussed the matter with his senior officers and on oral direction he kept the DD No.53 B pending.
STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 14 OF 37 15 He further stated that on 04.05.12 on the direction of then SHO, PS Bawana, he prepared the rukka on the statement of injured Rajwati and same is Ex.PW11/B. He prepared the site plan of the place of occurrence same is Ex.PW11/C. Thereafter he came back at the police station. On 09.05.12 he received information vide DD No.6A, true copy of the same is Ex.PW11/D regarding the death of Rajwati at LNJP Hospital. Thereafter, he reached at LNJP Hospital. He prepared the inquest proceedings in the mortuary and same is Ex.PW11/E. Dead body of deceased was duly identified by her husband Sanjay and her brother Raj Kumar. He recorded their statements in this regard and same are Ex.Pw11/F and Ex.PW11/G. He moved an application before HOD, Forensic Medicine, MAM College and LNJP Hospital to conduct the PM on the dead body of the deceased and said application is Ex.PW11/H, then PM on the dead body of injured Rajwati was conducted and dead body was handed over to her family members by him vide receipt Ex.PW11/J. Thereafter, he collected the PM Report and other relevant documents from both hospitals. During the course of investigation, he recorded the statements of witnesses. Accused Karan Singh Chauhan was again arrested in this case as after the death of STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 15 OF 37 16 deceased Section 306 IPC was added in the investigation. Arrest memo of accused was prepared by him, same is Ex.PW2/D and his personal search Ex.PW2/E and he had made his confessional statement as Ex.PW2/C. In his cross examination he deposed that the statement of deceased was recorded at about 6.30pm, and then again said the call was at about 6.30pm and he recorded the statement at about 8.30pm on 29.4.12. He further denied the suggestion that he had not registered the FIR till 4.5.12, as no statement of Rajwati was recorded till that time. He further stated that he recorded the statement in presence of doctor who had certified that patient Rajwati is fit for statement. He had not mentioned the time of recording statement but the concerned doctor in whose presence statement was recorded had mentioned the time on the statement as 8.30pm. The doctor remained with him throughout recording of statement. The Rajwati was 80% burns as per information provided by the doctor. He had not recorded the statement of any person that accused is Shakti. He had also not taken any document during my investigation to satisfy himself that accused Karan Singh is Shakti. He further voluntarily stated that STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 16 OF 37 17 since accused was present in the hospital and introduce himself as Shakti, therefore, he did not think it necessary to record statement of any witness or obtain document. He denied the suggestion that accused Karan Singh present in court today is not known as Shakti. He further admitted that accused was not present before victim at the time of recording her statement and he had not got the accused identified through victim Rajwati that he is Shakti whose name she is taking in her statement.
20. Statement of accused u/s. 313 Cr.P.C. was recorded, in which all the incriminating evidence put to him and same were denied by the accused and he also denied to lead any evidence in his defence.
21. I have heard arguments from Shri A.K. Gupta, ld.
Addl. PP for the State and that of Shri Kundan Kumar, ld. Amicus Curiae for accused. Ld. Addl. PP for the State has argued that from the dying declaration of victim Rajwati Ex.PW9/B, it is proved that, victim had committed suicide due to harassment by the accused. He further stated that from the testimony of PW1 Raj Kumar and PW10 Sanjay Kumar also proved that victim told that, she committed suicide due to harassment by the accused. Hence, in these STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 17 OF 37 18 circumstances accused is liable to be convicted for offence u/s. 306 IPC.
22. On the other hand, ld. Amicus Curiae for the accused has argued that first of all no person has identified that accused is the person who used to harass the victim, further the dying declaration is not recorded by the Magistrate and no FIR was registered till 4.5.2012, though the incident is of 29.04.2012, hence, there is unexplained delay of five days, which creates doubt about the recording of dying declaration by PW11. He further argued that even if it is admitted that victim made dying declaration Ex.PW9/B, it is not sufficient to conclude that she committed suicide due to abetement, as she has not stated how accused harassed her, what accused said to her. Mere giving abuse by accused cannot be considered sufficient that he abetted the victim to commit suicide. Hence, accused is entitled to be acquitted.
23. It is an undisputed fact that, deceased had died due to burning by fire, which is even otherwise, proved from the PM Report Ex.PW5/A prepared by Dr. Mohit Chauhan. PW5 Dr. Sree Niwas had stated on behalf of Dr. Mohit Chauhan had conducted the postmortem examination on the body of Rajwati under his STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 18 OF 37 19 supervision and on external examination he found following injuries: On external examination, there was superficial to deep burn injuries are present all over the surface of the body except face, front of chest and shoulders, palms and hands of both sides, soles and feet of both sides and buttocks (as depicted in the diagram sheet). Superficial layers of burn skin peeled off at places revealing necrotic base covered with yellowish green pus and unhealthy granulation tissue. Body hairs were burnt and singed at places. Total area of flame burn injuries was approximately 75% of the total body surface area.
Opinion: the cause of death in this case was septicemia consequent upon infected burn injuries. All the injuries were ante mortem in nature and were caused by flames of fire. The postmortem report is ExPW5/A. Hence, it is proved that victim had died due to burn by fire.
24. There is no eyewitness to the incident, who had seen the victim committing suicide and and entire case of the prosecution. Case of prosecution is rest upon dyingdeclaration of STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 19 OF 37 20 victim Rajwati. Dying declaration is admissible in evidence by virtue of Section 32 of Indian Evidence Act, despite same being hearsay. Section 32 of the Indian Evidence Act is reproduced as under :--
32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. --Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases.
(1) when it relates to cause of death. --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 the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
25. Law of dying declaration is by now almost settled.
In Vikas and Anrs. Vs State of Maharashtra Appeal (Crl.) 321/06, STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 20 OF 37 21 dated 25.01.2008, Indian Kanoonhttp..// indiankanoon. org/ doc/401547/ it is observed by Judges of Hon'ble Supreme Court that Clause (1) of Section 32 of the Act has been enacted by the Legislature advisedly as a matter of necessity as an exception to the general rule that hearsay evidence is no evidence and the evidence which cannot be tested by cross examination of a witness is not admissible in a Court. But the purpose of cross examination is to test the veracity of the statement made by a witness. The requirement of administering oath and crossexamination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. A man on the deathbed will not tell lies. It has been said that when a person is facing imminent death, when even a shadow of continuing in this word is practically over, every motive of falsehood is vanished. The mind is changed by most powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 21 OF 37 22 answerable to his Maker for his act. Moreover, if the dying declaration is excluded from admissibility of victim may be the only eyewitness of a serious crime. Exclusion of his statement will leave the court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice"
26. In Khushal Rao V State of Bombay, 1958 SCR 552, also it is held that :--
a statement by a dying person as to cause of death has a special sanctity which should on first principles be respected if it is credible and trustworthy. There should not be any evidence to the effect that the statement was a result of tutoring, prompting or a product of imagination. Further the deceased should be in fit state of mind to make the statement. This caution and care has to be taken as the deceased is not subjected to crossexamination. The court must be fully satisfied that the dying declaration impress a truth on it, after examining the circumstances in which the dying person had made the exparte statement. If on such examination, the court is satisfied that the declaration was the true version of the occurrence, conviction could be solely based on it.
27. Statement of a dying person is sufficient to convict a person without any corroboration, if court find the same trustworthy STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 22 OF 37 23 and reliable. In Atbir vs Govt of NCT of Delhi (2010) 9 SCC 1, the Supreme Court after analyzing number of previous judgments on dyingdeclaration, in Para 16 observed as under: "The analysis of the above decisions clearly shows that :--
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v)Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi)A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii)Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii)Even if it is a brief statement, it is not to be discarded.
(ix)When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x)If after careful scrutiny, the court is satisfied that it is true STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 23 OF 37 24 and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
28. In Paparambaka Rosamma and Others V State of A.P., (1999) 7 SCC 695 it has been observed that where conviction is solely based on the dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it. Care should be taken to ensure whether it is established that the dying declaration was genuine, true and free from doubts and was recorded when the injured was in a fit state of mind.
29. Now reverting back to present case prosecution has relied upon statement of Rajwati (since deceased) EXPW9/B to prove accused has so much harassed her that she committed suicide. PW11 ASI Karan Singh/IO of the case has deposed that on 29.04.12 on receiving DD no.53B he went to M.B. Hospital and collected MLC of injured Rajjo @ Rajwati W/o. Sanjay. Doctor declared her fit for statement therefor he recorded her statement EXPW9/B in the presence of Doctor Yudhvir Singh. He Further deposed that on 4.05.12 on the direction of IO he prepared rukka on STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 24 OF 37 25 the statement of Rajwati EXPW11/B and Duty Officer registered the FIR of case. Nothing much has come out in his crossexamination to disbelieve statement EXPW9/B was not given by Rajwati.
30. PW9 Dr. Yudhvir Singh has also corroborated the testimony of PW11 he examined the patient Rajwati on 24.09.12 vide MLC EXPW9/A and declared him fit for statement and in his presence one police official recorded statement of Rajwati EXPW9/B which bear his signature at point A and he has gone through the content of statement. Thus prosecution has able to proved that statement EXPW9/B is given by victim Rajwati.
31. I do not find any force in the contention of ld.
Amicus Curiae that since dying declaration is not recorded by the Magistrate in question - answer form, therefore, it cannot be relied upon. Undoubtedly, if same is recorded by Magistrate and in question - answer form then same is best thing. But it is not follow, it cannot be rejected perse and court is requiring to see if testimony of PW who recorded the dying declaration or on whose presence statement was recorded is trustworthy or not. PW11 though is a police officer but, I do not see he has any reason to record false statement of Rajwati, which is recorded in the form of complaint. STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 25 OF 37 26 Further PW9 Dr. Yudhister, who is an independent witness has corroborate the testimony of PW11, hence, I do not find any ground to disbelieve that PW11 had not recorded the statement of victim Ex.PW9/B.
32. After her death said statement become dying declaration. In view of aforesaid judicial pronouncements if it is proved from he statement that accused abetted her in committing suicide than same is sufficient to convict the accused.306. abetement of suicide.If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. abetement has been defined in section 107 of IPC.
33. Abetement of a thing.A person abets the doing of a thing, whoFirst.Instigates any person to do that thing; or Secondly.Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.A person who, by STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 26 OF 37 27 willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab (2004) 13 SCC 129 as follows in paras 12 and 13:
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
34. In State of W.B. v. Orilal Jaiswal this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 27 OF 37 28 the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
35. Further in the case of Kishori Lal v. State of M.P. (2007) 10 SCC 797, this Court gave a clear exposition of Section 107 IPC when it observed as follows in Section 107 IPC defines Abetment of a thing. The offence of Abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete Abetment as a crime. The word literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The Abetment may be by instigation, conspiracy or intentional aid, as STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 28 OF 37 29 provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of Abetment and there is no provision for the punishment of such Abetment, then the offender is to be punished with the punishment provided for the original offence. Abetted in Section 109 means the specific offence abetted. Therefore, the offence for the Abetment of which a person is charged with the Abetment is normally linked with the proved offence [See also Kishangiri Mangalgiri Swami v. State of Gujarat (2009) 4 SCC 52]
36. Thus, Higher Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged Abetement of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 29 OF 37 30 Section 306 IPC is not sustainable.
37. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of Abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
38. The expression `Abetment' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of Abetment then the offender is to be punished with the punishment provided for the original offence.
39. Learned Addl. PP for the State, stated that it would be a case where clause `thirdly' of Section 107 IPC only would be attracted. According to him, a case of Abetment of suicide is STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 30 OF 37 31 made out as provided for under Section 107 IPC. In view of the aforesaid situation and position, I have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any .act of doing of that thing when in Explanation 2 it is provided as follows: Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.& quot;
40. Therefore, the issue that arises for the consideration is whether any of the aforesaid clauses namely firstly alongwith explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC.
41. In the present case, victim Rajwati in her dying declaration Ex.PW9/B had stated that she was doing private service. Her husband is a drug addict since one year, he is getting treatment STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 31 OF 37 32 from drug deaddiction centre. She was married 12 years ago and she has three children and she is residing as tenant in Ishwar Colony, Bawana Road in the house of Kalu Pandit. One person namely Karan Singh Chauhan @ Shakti R/o. Village Gilyana, PS Nisang, District Karnal, Haryana, used to make call to her daily and used to talk wrong things on phone (galat phone karta tha) and she had many times asked him not to make call, but he did not stop and today i.e. 29.04.2012 at about 6.30pm she went to the house of accused to complaint to his mother and when she was complaining to the mother of accused Shakti, he started abusing her. Therefore, she put kerosene oil upon her from the bottle, which she has brought from her house and set her on fire due to harassment by the Shakti. Thus from her statement Ex.PW9/B, it is evident that one Karan Singh S/o. Balwant was harassing her of making telephone call to her.
42. The first question is whether as per dying declaration, the Karan Singh @ Shakti Singh S/o. Balwant R/o. Village Gilyana, PSNisang, District Karnal, Haryana, who used to make phone calls to her is the accused Karan or not. I find force in the contention of ld. Amicus Curiae for the accused that, there is no STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 32 OF 37 33 evidence, which proved that accused is the same Karan Singh S/o. Balwant who used to harass her statement of PW1 Raj Kumar, the brother of deceased Rajwati, I found that, in his cross examination he had admitted he does not know accused Karan Singh @ Shakti present in the court today as he had not seen him prior to today and volunteered that only heard the name of Shakti from his sister. Further, PW10 Sanjay also stated in his testimony that he cannot identify accused Shakti Singh as he had not seen him ever. Further, I found that, as per the dying declaration Ex.PW9/B, that the person Karan Singh who used to harass her was residing in Krishna Colony near Bawana, Kanjhawala Road, but prosecution has placed no document on record to prove that he was residing at the said address. I am agree with the contention of ld. Amicus Curiae that possibility cannot be ruled out that there are more person by the name of Karan Singh Chauhan S/o. Balwant. Onus was on the prosecution to prove beyond doubt that accused is the same person, whereas name victim Rajwati has taken in her dying declaration. But, prosecution has not examined any witness to fix the identity of the accused. IO had not examined landlord or the tenant or the neighbourer of the said house where deceased was residing to STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 33 OF 37 34 prove that accused was residing in another room in the same house. Further, prosecution has failed to prove on record any document that, accused was residing in Krishna Colony near Bawana, Kanjhawala Road, as in her arrest memo his address is mentioned as H.No.57, House of Rajbir Pahelwan, Kishan Colony, Bawana, near Shri Krishan Gaushala,
43. Further, prosecution has also failed to prove by which phone accused used to call the deceased Rajwati. As per confessional statement accused Ex.PW2/C recorded by the PW11 ASI Karan Singh, accused used to make call to the Rajwati from his phone number 8860043987 to the Rajwati's phone number 9582468985, but said contention stated is not admissible in evidence by virtue of Section 25 & 26 of Indian Evidence Act.
Further ld. Addl. PP for the State has argued that accused had deliberately given wrong phone number in his confessional statement whereas he was using the phone number 9582468985 and victim was using phone number 8860043987. Even I admit the said contention even then nothing incriminating came. Both phone numbers are neither in the name of the accused nor in the name of victim Rajwati. No witness has been examined to prove STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 34 OF 37 35 that either of the phone used by either accused or by the victim. Hence, prosecution has failed to prove the basic plank of their case that accused Karan Singh @ Shakti used to make phone call to victim Rajwati. Hence, in these circumstances, I held that, prosecution has failed to prove that, accused Karan Singh @ Shakti Singh is the person who used to harass victim on phone.
44. Further, even if I presume that accused was making call to the deceased Rajwati, even then, in my view the necessary ingredients of abatement as defined u/s. 107 IPC is not proved that the victim Rajwati had only stated that, accused used to make wrong phone call to her, but she had not stated what accused used to say to her so that, she became so perturbed that she thought for committing the suicide. She had stated in her dying declaration that she had brought bottle of kerosene oil from her house which means she had come to the house of accused with prior intention and planing that she will commit suicide. Hence, her statement that, since accused had abused her, therefore, she put kerosene oil and set herself on fire does not appear to be much convincing. The victim had stated in her statement that she never made complaint to the police or any other authority prior to the day STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 35 OF 37 36 when she attempted to commit suicide that, accused was making phone calls to her and harassing her. I do not see any reason why she did not like any complaint if accused was harassing her. Moreover, victim had not stated in her statement that, how accused was harassing her, what he wants from her what he used to say to her. Though, PW10 Sanjay had stated that on 04.12.2012, he went to the hospital and Rajwati told that, Shakti Singh was forcing her to marry with him, but said fact had not been stated by victim in her dying declaration had not stated that accused went to marry her. Hence, I do not know find the testimony of PW10 reliable that victim stated to him that accused interested to marry her. Further, In my view, accused had abused the victim Rajwati, he intentionally instigated or facilitate Rajwati to take such an extreme step of committing suicide. Victim Rajwati bringing kerosene oil from her home indicate that she came at the spot with the intention to force the accused to do something which accused was not agree and that could not be stopping harassment, as if that could be came, she could make complaint to police.
45. Hence, in these circumstances, I held that prosecution has failed to prove beyond reasonable doubt that STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 36 OF 37 37 accused was the person, who used to make telephone call to harass the victim or that accused intentionally aided of his act by making call to her or abusing her, which led to victim Rajwati to commit suicide.
46. In view of the aforesaid facts and circumstances, I give the benefit of doubt to the accused Karan Singh Chauhan @ Shakti and he stands acquit him from all the offence in which he has been charged. He is in JC, he be release from JC forthwith, if not required in any other case. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR)
On 17.08.2013 ADDITIONAL SESSION JUDGE:
ROHINI COURTS: DELHI
STATE VS KARAN SINGH CHAUHAN @ SHAKTI SC NO.52/12//FIR NO.157/12//PS - BAWANA//U/S. 509/306 IPC PAGE 37 OF 37