Delhi District Court
State vs . 1. Rohtash, on 19 December, 2017
1
IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Rohtash,
S/o Sh. Raghubir Singh,
2. Santosh,
W/o Sh. Rohtash,
3. Sumit @ Vicky,
S/o Sh. Rohtash Singh,
4. Jitender @ Tinku,
S/o Sh. Rohtash Singh,
All R/o Village Kanganheri,
New Delhi.
● CNR No. : DLSW010001772017.
● Registration No. of the Case : 440948/2016.
● SC Number : 130/2015.
● FIR Number : 210/2012.
● PS : Chhawla.
● Under Section : 302/304B/498A/34/174A IPC.
● Date of Institution : 15.12.2012.
● Case Committed to the
Court of Sessions for : 22.12.2012.
● Case Received by this Court
by way of Transfer on : 09.02.2015.
● Case Reserved for
Judgment on : 30.11.2017.
● Judgment Announced on : 19.12.2017.
Page No. 1 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
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JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 The incident came into light on registration of DD No. 5A dated 15.09.2012 of PS Chhawla, when an information was given at 12.15 am from the hospital that one Rakhi W/o Sumit @ Vicky (accused) had been admitted in the hospital in burnt condition by her brotherinlaw (jeth) Pradeep (PW21). Thereafter, the patient was shifted to Safdarjung Hospital. 1.2 The FIR was registered on the complaint of Nisha (PW3), sister of the deceased, recorded by SDM (PW12) on 15.09.2012 with following facts. She alongwith her sister Rakhi were married to Pradeep and Sumit @ Vicky respectively, both sons of accused Rohtash, and few days after their marriage, her motherinlaw Santosh, fatherinlaw Rohtash, brotherinlaw Jitender @ Tinku and husband of the deceased namely Sumit @ Vicky started abusing and beating both the sisters. Accused Sumit @ Vicky had even damaged the articles given in the Page No. 2 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
3 marriage and on 04.09.2012, all the accused persons beaten them and then removed them from matrimonial house and her child aged 1516 days was also snatched from her. Thereafter, with the intervention of the police, her child was given to her. Further, both of them went to their parental house. Further, on 09.09.2012, accused Sumit @ Vicky, her husband and other relatives came to their parental house and after settling the dispute, they took both of them to their matrimonial house. However, they were again beaten on 10.09.2012 by their mother inlaw, fatherinlaw and brotherinlaw. Further, on 14.09.2012, accused Sumit @ Vicky was quarreling with and beating Rakhi since 8.00 am and at about 9.00 pm, she went in their room, but accused Sumit @ Vicky asked her to get out of the room. At about 10.30 pm, Sumit took Rakhi on the first floor of the house and then she also followed them and behind her, her fatherinlaw, motherinlaw and brotherinlaw also came there. Then she saw that accused Sumit @ Vicky poured kerosene oil on Rakhi and when she asked her inlaws to stop accused Sumit @ Vicky, they did not do anything. Then accused Sumit @ Vicky set Rakhi on fire. She shouted, but nobody helped her. After about 10 minutes, neighbours came for help and doused the fire. 1520 minutes after that her husband Pradeep came and took Rakhi to Page No. 3 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
4 the hospital.
1.3 In the hospital, statement of Rakhi was recorded by the Executive Magistrate/Tehsildar on 15.09.2012, whereby she alleged that she was tortured for demand of car and two fridges by all the accused persons and her husband Sumit @ Vicky had set her ablaze in the presence of other accused persons. She succumbed the burn injuries on 21.09.2012.
1.4 During investigation, burnt/half burnt clothes, bottle of kerosene oil, matchbox, burnt slippers, etc., were seized from the spot. Further, medical documents of the deceased were collected and the accused persons were arrested.
2. After culmination of investigation, the accused persons were chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
3. In light of the above stated facts and proceedings, vide order dated 11.02.2013, Ld. ASJ framed charges under Sections 302/304B/498A/34 IPC against accused persons Rohtash, Page No. 4 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
5 Santosh and Sumit @ Vicky, whereas, vide order dated 01.05.2013, charges were framed under Sections 302/304B/498A/34/174A IPC against accused Jitender @ Tinku, to which they pleaded not guilty and claimed trial.
4. For proving its case, prosecution has produced 35 witnesses.
4.1 The only eye witness of the incident Nisha (PW3), sister of the deceased, has also deposed about physical and mental torture given by the accused persons to the deceased. 4.2 PW1 Kitabo Devi (mother of the deceased), PW5 Ram Chander (father of the deceased), and PW7 Anup @ Suresh (brother of the deceased) were examined to show that the deceased was subjected to cruelty in connection with dowry demands.
4.3 PW9 Shiv Kumar and PW22 Ishwar Singh were examined as independent witnesses to corroborate the allegations.
4.4 PW12, Satish Kr. Rawat, the then Tehsildar, was examined to show that he had recorded the dying declaration of Rakhi in the hospital.
4.5 PW21, Pradeep, brother/son of the accused persons, was Page No. 5 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
6 examined to show that Rakhi was subjected to cruelty by her husband Sumit @ Vicky and that he had taken the deceased to the hospital.
4.6 PW2, Dr. Vikram, DDU Hospital, proved MLC of the deceased Ex. PW2/A. PW24, Dr. Vinayak Sidharth, Safdarjung Hospital, proved MLC of accused Sumit @ Vicky Ex. PW24/A and death summary of deceased Rakhi Ex. PW24/B. PW25, Dr. Abhishek Yadav, Safdarjung Hospital, proved postmortem report of the deceased Ex. PW25/A prepared by Dr. Shrawan Kumar and Dr. Lohith Kumar.
4.7 Rest of the witnesses were formal witnesses or remained associated with investigation.
5. Statement of the accused persons was recorded u/s 313 CrPC. When the accused persons were briefed on all the incriminating evidence and documents, they denied the allegations. Further, accused Rohtash mentioned that after hearing the noise from the roof, he went there and found that Rakhi was sitting in burnt condition and hands and face of accused Sumit @ Vicky were also burnt and at the time of incident, accused Jitender @ Tinku was not in house. He further mentioned that Nisha was standing quite a distance from Rakhi Page No. 6 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
7 and his wife Santosh and son Pradeep took Rakhi to the hospital alongwith his two nephews namely Rahul and Shammi. Further, accused Sumit @ Vicky mentioned that he had never maltreated his wife Rakhi, who was in habit of creating quarrels and used to go to her parental house without any cause or reason. He further explained that Rakhi set herself on fire and when he tried to extinguish the fire, he also received burn injuries and though Nisha was present on the roof, but she did not make any effort to douse the fire. He also mentioned that Rakhi was not happy in his company and wanted to reside with the person with whom she had affair prior to her marriage. Further, accused Jitender @ Tinku mentioned that at the time of incident, he was not at his house and had gone to attend birthday of his friend Hariom.
6. The accused persons opted to lead evidence in their defence and produced 4 witnesses.
6.1 DW1, Rajo @ Raj, deposed that after hearing the screams of "bachaobachao", she went to the house of accused Rohtash and knocked the door and on opening the door by accused Santosh, she informed about the fire at upstairs in her house. Then they all went upstairs and found that Rakhi was sitting in burnt condition, whereas, accused Sumit @ Vicky was Page No. 7 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
8 standing in burnt condition.
6.2 DW2, Hariom, deposed that accused Jitender @ Tinku is his friend and on 14.09.2012, he was celebrating his birthday at his home and invited accused Jitender @ Tinku for celebration and from 8.00 pm till 11.15 pm, accused Jitender @ Tinku remained at his house.
6.3 DW3, Subhash Chander, mentioned that at the time of incident, he was roaming on the terrace of his house and when he heard the sound of quarrel, he went to house of accused Rohtash and then he alongwith accused persons Rohtash and Santosh went upstairs and found that Rakhi was sitting in burnt condition, accused Sumit @ Vicky was standing there in burnt condition and Nisha was standing at a distance of 1012 steps from them.
6.4 DW4, Krishan Kumar, deposed on the lines of DW1.
APPRECIATION OF EVIDENCE:
7. I have heard the State through Sh. Pramod Kumar, ld. Additional PP for State assisted by Sh. Ashok Ahlawat and the accused persons through ld. counsel Sh. R.S. Malhan. Record is also gone through.
Page No. 8 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
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8. It is summed up by ld. Additional PP that testimony of eye witness of the incident namely Nisha (PW3) has clearly proved that accused Sumit @ Vicky forcibly took Rakhi upstairs and thereafter, he set her on fire in the presence of other accused persons. Further, it is mentioned that even the dying declaration Ex. PW12/C substantiates the case that accused Sumit @ Vicky had set ablaze Rakhi by pouring kerosene oil in the presence of his family members/coaccused persons and PW12 has proved that he had recorded dying declaration when the deceased was in fit state of mind. Further, it is concluded that the forensic and medical reports have corroborated that the deceased had died due to burn injuries and thus, the accused persons are liable to be convicted for offences u/s 498A/302/34 IPC. On the other hand, ld. defence counsel argued that there are material contradictions in the dying declaration, FIR and the deposition of the complainant in the Court qua role of the accused persons. Further, it was argued that the dying declaration was neither properly certified by the doctor nor signatures of the deceased were taken on it and since it was recorded by the police official (PW30), it cannot be relied upon. Further, it is stated that there is no convincing evidence on record to show that the deceased or Page No. 9 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
10 the complainant were ever subjected to cruelty in connection with dowry demands and thus, the accused persons should be given benefit of doubt.
9. In this case, there are following important points of determination:
(i) Whether accused Sumit @ Vicky, in furtherance of common intention with other accused persons, had set his wife Rakhi on fire after pouring kerosene oil on her with an intention to kill her;
(ii) Whether the accused persons subjected the deceased to cruelty in connection with demand of dowry;
(iii) Whether the deceased died under suspicious circumstances within seven years of her marriage;
(iv) Whether soon before her death, deceased Rakhi was subjected to cruelty or harassment by the accused persons in connection of demand of dowry; and
(v) Whether accused Jitender @ Tinku failed to appear in concerned Court within stipulated period as required by proclamation u/s 82 CrPC published against him.
Page No. 10 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
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10. The prosecution case rests on the testimony of sole eye witness Nisha (PW3) and the dying declaration Ex. PW12/C to prove that the accused persons, in furtherance of their common intention, had set Rakhi on fire with intention to kill her and further that she was subjected to physical and mental cruelty for nonfulfillment of the dowry demands prior to the incident.
11. First, the Court will deal with the version of complainant Nisha (PW3). In her statement Ex. PW3/A recorded by the Executive Magistrate immediately after the incident, she had mentioned that the accused persons starting abusing and beating her and her sister Rakhi few days after their marriage and used to taunt them in connection with dowry articles. Further, she has mentioned that on 04.09.2012, both of them were removed from their matrimonial house after beating them, but on account of settlement, they were brought back in matrimonial house on 09.09.2012, but again they were beaten on 10.09.2012. Further, she has disclosed that on 14.09.2012, accused Sumit @ Vicky had quarreled with Rakhi in the morning at about 8.00 am, then in the afternoon at about 2.00 pm and there was again a quarrel in the night at about 10.30 pm and Page No. 11 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
12 thereafter, accused Sumit @ Vicky forcibly took Rakhi on the first floor. She further disclosed that he set her on fire after pouring kerosene oil in the presence of other accused persons and despite shouting and requests, nobody saved Rakhi.
12. If her aforesaid statement is examined in light of her deposition given in the Court, it can be observed that there are number of material contradictions and improvements qua role of the accused persons. In the Court, the complainant (PW3) deposed that the accused persons used to taunt and beat them as their father had not given refrigerator and washing machine in their marriage. Further, she deposed that after 45 months of the marriage, accused Sumit @ Vicky and his family members had beaten Rakhi mercilessly and accused Sumit @ Vicky had cut the vein of Rakhi and moreover, the accused persons had also broken istridhan articles including television given by her parents in the marriage. Further, she deposed that on 03.09.2012, the accused persons gave beatings to Rakhi and when she intervened, she was also beaten and thereafter, both of them went to their parental house. She further testified that after settlement, both of them were brought back to matrimonial house from parental house, but they were again beaten on that Page No. 12 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
13 day and after 23 days, accused Sumit @ Vicky had again quarreled with Rakhi and had beaten her. She further stated that after sometime, she saw that accused Sumit @ Vicky forcibly took Rakhi on the roof of the house and she also followed them and then she saw that accused Jitender @ Tinku was pouring kerosene oil on her sister Rakhi and though she objected, but in the meanwhile, accused Sumit @ Vicky lit a matchstick and set Rakhi on fire and when she tried to save her sister, accused persons Rohtash and Santosh caught hold of her. She further deposed that thereafter, all the accused persons left them there and no one came forward to rescue them and then she brought her sister on the ground floor and after some time, her husband took her to the hospital.
13. Thus, it is evident that PW3 had improved her version during her deposition in the Court regarding two important aspects, firstly, by alleging harassment in connection with dowry demands and secondly, by attributing active participation of all the accused persons in the alleged incident of setting Rakhi on fire.
14. The accused persons are facing prosecution for offences Page No. 13 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
14 of murder and dowry death. First, the charge related to more serious offence of murder would be dealt with. It is the prosecution case that all the accused persons, in furtherance of their common intention, had set Rakhi ablaze in order to kill her. The version of the complainant regarding the incident has already been discussed above. Admittedly, she is the only eye witness of the incident and her presence at the spot at the time of the incident is not challenged, rather her presence at the spot has been specifically admitted by accused persons in their statement u/s 313 CrPC and by DW1, DW3 and DW4. However, it is evident that the complainant (PW3) had stated for the first time during her deposition that accused Jitender @ Tinku had poured kerosene oil and her fatherinlaw Rohtash and mother inlaw Santosh caught hold of her when accused Sumit @ Vicky set Rakhi on fire. It can be seen that no active role was assigned to any accused except accused Sumit @ Vicky by her in the statement recorded by the SDM as she had only disclosed that they kept standing near the place of incident and did nothing to save Rakhi.
15. It is settled proposition of law that testimony of sole eye witness may be the basis of the conviction, but in that case, the Page No. 14 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
15 testimony has to be wholly reliable. On this aspect, the legal position has been made clear by Supreme Court of India in the case titled as "Govindaraju @ Govinda Vs. State By Sriramapuram PS & Another", 2012 (3) JCC 1714, in following words:
"11. ... ... ... It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of "Lallu Manjhi & Another Vs. State of Jharkhand", (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
a. Wholly reliable;
b. Wholly unreliable; and
c. Neither wholly reliable nor wholly unreliable.
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye witness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. ... ... ..."
Page No. 15 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
16
16. In view of above, this court is of the view that the testimony of the complainant (PW3) is neither wholly reliable nor wholly unreliable and thus, the Court is required to look for corroboration to make her statement as a foundation of conviction. Apart from deposition of PW3, the prosecution side has emphasized that the dying declaration of Rakhi Ex. PW12/C, which was recorded by PW12 in the hospital, in itself is sufficient to prove the charge of murder against the accused persons. Thus, now the Court needs to examine as to whether the said dying declaration can be relied upon to convict the accused persons.
17. The legal position in respect of dying declaration has been settled by the Supreme Court of India through catena of decisions. The general principles governing the dying declaration were summed up by Supreme Court of India in the case titled "Paniben (Smt) Vs. State of Gujarat", (1992) 2 SCC 474, as under:
"18. 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 Page No. 16 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
17 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 deceased was not as a result of either tutoring, 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 assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. ["Mannu 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. ["State of U.P. Vs. Ram Sagar Yadav", (1985) 1 SCC 552; "Ramawati Devi Vs. State of Bihar", (1983) a SCC 311]
(iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. ["K. Ramachandra Reddy Vs. Public Prosecutor", (1976) 3 SCC 618]
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. ["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. ["Kake Singh Vs. State of M.P.", AIR 1982 SC 1021]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. ["Ram Manorath Vs. State of U.P.", (1981) 2 SCC 654]
(vii) Merely because a dying declaration does not contain the Page No. 17 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
18 details as to the occurrence, it is not to be rejected. ["State of Maharashtra Vs. Krishnamurti Laxmipati Naidu", AIR 1981 SC 617]
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. ["Surajdeo Oza Vs. State of Bihar", AIR 1979 SC 1505]
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. ["Nanahau Ram Vs. State of M.P.", AIR 1988 SC 912]
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. ["State of U.P. Vs. Madan Mohan", (1989) 3 SCC 390]"
18. In view of aforesaid principles, if the dying declaration given in this case is considered, following important aspects, some of which are pointed out by ld. defence counsel, come under scrutiny of this Court:
(i) Dying declaration is recorded by PW30 ASI Paras Kumar in his handwriting in the hospital;
(ii) Dying declaration does not bear the signatures of the deceased and it only bears her thumb impression;
(iii) The medical fitness of the deceased to make the dying declaration has not been established; and
(iv) Dying declaration has not been recorded in Page No. 18 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
19 questionanswer form.
19. It is evident that dying declaration Ex. PW12/C clearly accuses accused Sumit @ Vicky of first pouring kerosene oil on her and then setting her on fire with matchstick in the presence of coaccused persons and complainant Nisha. First of all, the Court has to see whether the deceased was in fit state of mind at the time of making her statement to PW12. It is the prosecution case that her medical fitness to give statement was certified by the doctor vide making an endorsement from point "X" to "X1"
on the application Ex. PW30/A moved by PW30 ASI Paras Kumar. The endorsement reads that "Pt. conscious, oriented not under influence of sedatives pt. fit to give statement at 9.10 pm on 15.09.2012". Though ld. defence counsel rightly pointed out that PW30 was not the investigating officer of this case, but on this aspect, PW30 has explained that he was asked by the SHO to check the condition of injured Rakhi regarding her fitness to make statement and after taking opinion of the doctor regarding fitness, he gave the information to IO SI Prakash Chand (PW34), who then informed the concerned SDM for taking statement. Further, even the Executive Magistrate (PW12) has mentioned that he had received a call from the IO that injured Page No. 19 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
20 Rakhi had been declared fit by the concerned doctor for statement and thereafter, he reached at the Safdarjung Hospital, where IO had shown him the endorsement made by the doctor on the application moved by the IO. Further, PW12 has mentioned that he had also inquired from Rakhi whether she is giving statement voluntarily and when she replied in affirmative, he started recording her statement. Further, though ld. defence counsel has rightly pointed out that all the family members of the deceased i.e. PW1, PW3, PW5 and PW7 have deposed that condition of Rakhi remained serious in the hospital and the doctors did not permit them to meet her at any point of time, but their version in itself is not sufficient to disbelieve the deposition of PW12 and PW30 that the Rakhi was declared fit for making statement by the doctor. Otherwise also, it is not the defence that the endorsement at point "X" to "X1" on the application Ex. PW30/A is forged or manipulated and no suggestion was put to any doctor that Rakhi was not fit to make statement at relevant time. Thus, there remains no doubt about medical fitness of the deceased at the time of making dying declaration.
20. Regarding the issue that the dying declaration is in handwriting of police officer (PW30), PW12 has explained that Page No. 20 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
21 since the victim Rakhi had received severe burn injuries, she was not able to speak loudly and was merely whispering and that is why, whatever he was hearing from her, the same was being dictated to the police officer (PW30). Even PW30 has mentioned that since the patient was speaking very slowly and in very feeble voice, Tehsildar had given instructions to him to record the statement. In view of this Court, the said explanation is found satisfactory. Further, ld. defence counsel had argued that though the deceased was literate and used to do signatures, but still her thumb impressions on the dying declaration were taken and it creates doubt on the truthfulness of the allegations. It is evident that as per MLC of the deceased Ex. PW2/A, she had received severe burn injuries at both her arms, chest, abdomen and face and in such condition, she can not be expected to sign her statement. Furthermore, the defence side has not made any effort to ask the concerned doctor to explain whether the condition of the injured could have allowed her to do the signatures easily and in absence of that no adverse inference can be drawn for taking thumb impression of the deceased on her dying declaration. Otherwise also, there was no reason before PW12, who was a public servant, for not taking the true account of the incident disclosed by deceased.
Page No. 21 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
22
21. Further, it is observed that the dying declaration in question is brief and its shortness inspires confidence about truth. Further, it is not disputed that the prosecution version is not different from the version given in the dying declaration as far as role of accused Sumit @ Vicky is concerned and, therefore, it is quite reliable. Overall, it is found that the dying declaration appears to be true account of the incident and is not found to be result of tutoring, prompting or imagination.
22. Thus, this Court is of the view that the dying declaration Ex. PW12/C and testimony of the complainant regarding role of accused Sumit @ Vicky corroborate each other and leave no room for doubting that accused Sumit @ Vicky had poured kerosene oil on his wife Rakhi and thereafter set her on fire with matchstick.
23. To establish motive of accused Sumit @ Vicky to murder his wife Rakhi, the prosecution has placed on record sufficient evidence to show that he was not having cordial relations with his wife and had tortured and harassed her mentally and physically on several occasions prior to the incident. Real brother Page No. 22 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
23 of the said accused namely Pradeep (PW21) has deposed that his brother Sumit @ Vicky was an alcoholic and he usually used to pick up quarrels with his wife and sometimes, even he used to beat her. During cross examination, he mentioned that in April 2012, police was called at their house as a complaint was made when his brother had thrown television after excessive drinking and fighting with his bhabhi (deceased). Further, he has testified that he is not aware if his bhabhi had tried to cut her nerve, but he has seen some cut marks on her wrist. Further, he stated that in September 2012, his wife informed him that his bhabhi (Rakhi) was beaten by his brother. Further, even complainant Nisha (PW3) has deposed that 45 months after their marriage, accused Sumit @ Vicky had cut the vein of Rakhi. To corroborate the aforesaid allegations against accused Sumit @ Vicky, the prosecution has also placed on record DD No. 5 dated 26.04.2012 Ex. PW18/A recorded at 1.35 am, whereby police was informed that a quarrel has taken place (at the house of the accused persons). Further, another DD No. 7 dated 26.04.2012 Ex. PW18/B was recorded at 4.05 am to the effect that Pradeep (PW21) informed that his brother (Sumit @ Vicky) had tried to cut vein of his wife and had also beaten her.
Page No. 23 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
24
24. Further, the complainant (PW3) has deposed that even on the date of incident, accused Sumit @ Vicky was quarreling with Rakhi since morning and she was beaten by him too. Further, PW21 has also mentioned that after the incident, when he reached house, he came to know that a fight had taken place between his brother and his wife and found that his brother was heavily drunk and he also slapped his brother and asked him as to what he did with his wife, but he did not respond. Further, it is seen that he mentioned in his cross examination conducted by ld. Additional PP that he did not tell the police that his brother Sumit @ Vicky had pretended to extinguish the fire and his clothes were burnt while doing so. In view of this Court, PW21, being real brother of accused Sumit @ Vicky, has no reason to depose falsely against his brother and his testimony inspires confidence about the truthfulness of the facts disclosed by him. Thus, it emerges that even PW21 had raised suspicion over his brother behind the incident in which Rakhi received fatal burn injuries.
25. Further, even PW22 has deposed that on the date of incident accused Sumit @ Vicky was drunk and a quarrel had happened between him and his wife Rakhi and at about 10.30 Page No. 24 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
25 pm, he saw that Rakhi was complaining about drinking habit of accused Sumit @ Vicky, who was shouting that either he would survive or she would. It is pertinent to mention here that accused did not utilize the opportunity given to him u/s 313 CrPC to explain the circumstances in which he had received the burn injuries, however, he opted to deny even the facts disclosed by both prosecution and defence witnesses, viz., he was under
influence of liquor and there was a quarrel between him and his wife just before the incident. Thus, it is clear that accused Sumit @ Vicky had strong motive to kill his wife, who used to object his habit of drinking and assaulting her.
26. Further, accused Sumit @ Vicky has taken the defence that he had only tried to save his wife who committed suicide and in the process, he had also received burn injuries. In his statement u/s 313 CrPC, accused Sumit @ Vicky had disclosed that at the time of incident, he was on the roof of the house and then he noticed that Rakhi had burnt herself with a matchstick, but he did not notice as to when she poured kerosene oil on her. Further, he mentioned that he immediately ran towards her and tried to extinguish the fire with his hands and in the process, he also got burn injuries. It is not disputed that even accused Sumit Page No. 25 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
26 @ Vicky had received burn injuries in the incident and was admitted in the hospital for treatment. However, the aforesaid defence of the said accused is found to be baseless and false. First of all, it is observed that as per his MLC Ex. PW24/A, he had received burn injuries on his chest and face, whereas, the said accused has claimed that he tried to douse the fire with his hands and in that case, the injuries should have come on his hands.
27. Secondly, accused Sumit @ Vicky failed to give any explanation as to why he did not get himself admitted in the hospital immediately after the incident. It is evident that accused was admitted in Safdarjung Hospital on 15.09.2012 at 2.30 pm, whereas, his wife was admitted on 14.09.2012 at 11.35 pm. Further, it is noteworthy that DD No. 16A dated 15.09.2012 of PS Chhawla was recorded at 12.28 pm, whereby the informant had called from mobile phone number 8750587888 [belonging to one Chander Prakash and was being used by Pradeep (PW21)] that he had received burn injuries on account of fire of gas cylinder. It is noteworthy that the said information was given about 14 hours after the incident and accused Sumit @ Vicky was admitted in the hospital about 2 hours after that call. There is Page No. 26 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
27 no explanation from defence side for waiting for 16 hours for taking medical treatment. Further, PW30, who was assigned with the said DD, has also mentioned that he did not find the injured at his house and moreover, PW35 Inspector Rajesh Malik has deposed that he did not find any clue about burst of cylinder at the spot. All this indicates that accused Sumit @ Vicky became scared after the incident apprehending his arrest and, therefore, he had hidden himself for few hours after the incident and then a false information was given by him or on his behalf about 14 hours after the incident to mislead the police authorities regarding the cause of receiving burn injuries. Certainly, the aforesaid act and omission on the part of accused completely demolish his defence.
28. Further, it can be observed that vide seizure memo Ex. PW19/A, partially burnt blue shorts (nikker) and a white vest (baniyan) were seized from the spot apart from other burnt clothes, matchstick, matchbox, slippers, kerosene oil bottles, etc. Though PW3 was asked about the person to whom the said clothes (shorts and vest) were belonging, but she could not name the person. Considering the facts established on record that only the deceased and accused Sumit @ Vicky were present at the spot Page No. 27 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
28 at the time of the incident and received burn injuries, an inference can be drawn that the said clothes were belonging to accused Sumit @ Vicky. Moreover, no suggestion was given by defence side that these were not the belonging to accused Sumit @ Vicky. Further, as per FSL report Ex. PW23/A, it was found that the said clothes were having kerosene residue. It means that these clothes caught fire on account of kerosene oil on it and thus, it falsifies the defence of the said accused that he reached near his wife when she had already caught fire and he did not see her pouring kerosene oil. Rather, these circumstances corroborate prosecution case that accused Sumit @ Vicky had poured kerosene oil on Rakhi and in the process, it was also spilled over his clothes and thus, these also caught fire.
29. In view of above, it is held that the prosecution has been successfully able to establish the charge of offence punishable u/s 302 IPC against accused Sumit @ Vicky.
30. Regarding role of other accused persons in the incident of murder, it was observed earlier that PW3 has improved her version by alleging that accused Jitender @ Tinku had poured kerosene oil on Rakhi and accused persons Rohtash and Santosh Page No. 28 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
29 had caught hold of her when she attempted to save Rakhi. It is evident that this improved version is in contradiction with the dying declaration Ex. PW12/C, which do not impute any active role on all accused persons except accused Sumit @ Vicky. The complainant has further contradicted her own version given to the Executive Magistrate by deposing that she had brought down her sister to the ground floor. Thus, this Court is of the view that later part of testimony of the complainant regarding the role of accused persons Rohtash, Santosh and Jitender @ Tinku is not trustworthy. Overall, it only appears that the said accused persons had gone to the roof of the house, where incident took place, after Nisha and by that time, accused Sumit @ Vicky had already set Rakhi on fire. It can be observed that it is not the prosecution case that accused persons Rohtash, Santosh and Jitender @ Tinku had abetted accused Sumit @ Vicky to pour kerosene oil and set Rakhi on fire in any manner. In view of this Court, no incriminating evidence has come on record to show that accused Sumit @ Vicky had set his wife on fire in furtherance of common intention with his parents and brother, who are coaccused in this case. It is admitted case that just before the incident accused Sumit @ Vicky and Rakhi were quarreling in their room and they had gone upstairs first and the Page No. 29 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
30 complainant and other family members went there later on.
31. Furthermore, ld. defence counsel has also argued that family members of accused Sumit @ Vicky cannot be attributed any criminal liability for merely remaining standing near the spot as even Nisha (PW3) had not made any effort to save her sister. It can be seen that in the FIR, the PW3 has not given any reason as to why she did not make any effort to save her sister. Furthermore, her testimony does not make it clear whether the accused persons Rohtash and Santosh had already reached on the roof of the house, when kerosene oil was thrown on deceased. At the same time, accused Rohtash has mentioned in his statement u/s 313 CrPC that when he reached on the roof of the house, fire on the person of Rakhi had already been extinguished and he had even covered her with his "lungi". Further, accused Sanotsh had stated in her statement u/s 313 CrPC that when she reached on the roof of the house, Rakhi was sitting in burnt condition. Further, DW1, DW3 and DW4 have also mentioned that they had rushed to the roof of the house alongwith accused persons Rohtash and Santosh after hearing the screams of the deceased. Further, accused Jitender @ Tinku had mentioned in his statement u/s 313 CrPC that he was not present in the house Page No. 30 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
31 at the time of incident and in his defence, he examined DW1, who mentioned that the said accused was at his house to celebrate his birthday at the relevant time. Thus, on the basis of evidence led by both sides, it is held that accused persons Rohtash, Santosh and Jitender @ Tinku had played no role in the incident of murder and thus, charge u/s 302/34 IPC fails against them.
32. Another charge against the accused persons is of causing cruelty to deceased Rakhi on account of dowry demands. However, this court finds that the prosecution has produced inconsistent and contradictory evidence related to dowry demands. It is observed that in the FIR, only vague allegations were made that the complainant and her deceased sister were taunted in connection with dowry articles given at the time of their marriage. It is pertinent to mention here that the FIR, which was registered on the statement of PW3 recorded by the Executive Magistrate, is silent as to which specific dowry articles were demanded by the accused persons, either at the time of marriage or afterwards. Similarly, even mother of the deceased (PW1) has not alleged about any dowry demand in her statement Ex. PW1/A recorded by the Executive Magistrate. However, the Page No. 31 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
32 complainant (PW3) had improved her version and mentioned during her deposition that one refrigerator and washing machine was demanded by the accused persons. Even her improved version is in contradiction with the improved version of her mother (PW1), who has deposed that at the time of marriage, they had given only one washing machine and one refrigerator to the accused persons though there was demand of two of each articles. Furthermore, it is also evident that the complainant was confronted with various facts, which were stated by her for the first time in her deposition, viz., giving of sufficient istridhan articles during their marriage and demand of dowry form her and her sister. Further, PW5 (father of the deceased) and PW7 (brother of the deceased) had also mentioned that the accused persons demanded washing machine and refrigerator. It is pertinent to mention here that in the photographs Ex. PW14/A4 and Ex. PW14/A16, which are of the house of the accused persons, one fridge and washing machine can be clearly seen, but it has not been explained as to whether these articles were given on the occasion of marriage of the deceased or as to whether the accused persons were really in need of second fridge and washing machine. It is also noteworthy that none of the prosecution witnesses has alleged that any dowry was demanded by the Page No. 32 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
33 accused on the marriage of the deceased. Admittedly, no list of dowry articles has been placed on record.
33. Further, PW1 had also improved from her statement given to the SDM by stating that even at the time of "chhuchhak", one motorcycle and gold chain were demanded. Further, PW5 mentioned that the accused persons taunted them for not giving motorcycle and gold chain to Nisha, whereas, PW7 mentioned that on the occasion of "chhuchhak" ceremony of his sister Nisha, the accused persons demanded motorcycle. Though there is no consistency in respect of allegations of demand of articles on the occasion of "chhuchhak", but otherwise also, it is not disputed that "chhuchhak" was not related to deceased Rakhi. Moreover, demand of articles at the time of "chhuchhak" cannot be said to be dowry demand. Reference can be have to the decision of Supreme Court of India report as "Satvir Singh & Others Vs. State of Punjab & Another", (2001) 8 SCC 633, whereby it was laid down that dowry mentioned in Section 304B IPC should be any property or valuable security given or agreed to be given in connection with the marriage and some customary payments in connection with birth of a child (chhuchhak) or Page No. 33 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
34 other ceremonies prevalent in different societies do not fall in the ambit of dowry.
34. Furthermore, it was argued by ld. Additional PP that in the dying declaration Ex. PW12/C, the deceased has clearly alleged about demand of all accused persons for car and two refrigerators from her. It is evident that none of the family members of the deceased including her real sister (PW3), who was residing in the same matrimonial house, has mentioned about demand of car. Moreover, even demand of two refrigerators was not alleged by any of them. In absence of specific and convincing evidence to the effect that the parents of the deceased were in a position to fulfill the demand of said articles i.e. car, motorcycle, refrigerators, washing machines, etc. and in the light of vague, general and inconsistent allegations regarding the demanded articles, it is difficult to believe version of family members of deceased regarding demand of dowry articles and cruelty subjected to the deceased in that regard.
35. It can be seen that the allegations of cruelty levelled by complainant Nisha and other family members of the deceased are either related to frequent quarrels between accused Sumit @ Page No. 34 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
35 Vicky and his deceased wife or related to custody of child of complainant Nisha, which arose few days prior to the incident. It is pertinent to mention here that though DD No. 16A dated 03.09.2012 Ex. PW33/A registered at PS Chhawla at 10.39 am mentions that the informant has complained that her motherin law and brotherinlaw had beaten her, but it can be seen that there was no allegation of dowry demand. Moreover, PW33 HC Maha Singh has clarified that when he went at the spot, he found that the PCR had already reached there and the matter had already been settled. Further, he mentioned that nobody had sustained any injury and there was an oral altercation in the family and thus, he filed the said DD. It is found that there is no evidence on record to show that accused persons Rohtash, Santosh and Jitender @ Tinku have harassed the deceased or the complainant mentally or physically in connection with dowry demand. In such circumstances, it emerges that the prosecution has not been able to establish that the accused persons had ever demanded dowry from the deceased or the complainant or had ever subjected them to cruelty for nonfulfillment of dowry demands. Even otherwise, the alleged act of beating deceased Rakhi by accused persons Sumit @ Vicky or Santosh or Jitender @ Tinku ipso facto does not fall within the definition of cruelty Page No. 35 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
36 provided u/s 498A IPC. It is also to be noted that accused persons have only been charged for offence of cruelty related to dowry demands and thus, the charge u/s 498A IPC remains unestablished. Consequently, charge u/s 304B IPC also fails.
36. Further, though accused Jitender @ Tinku has also been charged for offence u/s 174A IPC, however, it is observed that the prosecution has not led any evidence to establish the said charge. It was required on the part of the prosecution to examine the IO to prove that NBW issued against accused Jitender @ Tinku could not be executed, but his deposition is silent on this aspect. Further, the Process Server, who had published the proclamation u/s 82 CrPC against accused Jitneder @ Tinku, was also not examined and even the court order, by which the said accused was declared proclaimed offender, was not proved as per provisions of Indian Evidence Act. In view of this, charge u/s 174A IPC is bound to fail.
CONCLUSION:
37. For the reasons recorded above, this Court is of the opinion that the prosecution has proved its case u/s 302 IPC Page No. 36 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.
37 against accused Sumit @ Vicky beyond reasonable doubt and thus, he stands convicted for that offence. However, rest of the charges could not be established against accused Sumit and no charge has been proved against other accused persons. Therefore, accused persons Rohtash and Santosh are acquitted for offences u/s 498A/302/304B/34 IPC; accused Jitender @ Tinku is acquitted for offences u/s 498A/302/304B/174A/34 IPC; and accused Sumit @ Vicky is acquitted for offences u/s 498A/304B/34 IPC.
Announced in the open Court on 19th day of December 2017.
(total 37 pages) (VIVEK KUMAR GULIA) ASJ03 & Special Judge (Companies Act) Dwarka Courts (SW), New Delhi.
Page No. 37 of 37. State Vs. Rohtash & Others; FIR No. 210/12 of PS Chhawla.