Delhi District Court
St. vs Mohd. Ahmed @ Pappu @ Taj Mohd on 23 January, 2010
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE; NEW DELHI
Date of Institution : 12.08.2004
Date of judgment reserved on : 20.01.2010
Date of decision:23.01.2010
Sessions Case No. 172/08
St.Vs Mohd. Ahmed @ Pappu @ Taj Mohd
FIR No.335/04
U/s 302 IPC
P.S Kalkaji
Mohd Ahmed @ Pappu @ Taj Mohd
S/o Nabi Ahmed
R/o B-259 Navjeevan Camp
Govindpuri,
New Delhi.
J U D G M E N T:-
Accused Mohd Ahmed @ Pappu has been tried for a charge of murder and the charge is that on 6/4/2004 at around 8 pm accused caused the death of Amar Singh S/o Kali Charan by putting the victim on fire in his house B-259 Navjeevan Camp, Govindpuri, Delhi and thereby committed offence U/s 302 IPC. The prosecution case is primarily based upon the dying declaration. This dying declaration firstly came to be recorded by the doctor now examined PW-3 who had attended the victim deceased as soon after the 2 incident victim had been brought to AIIMS hospital. The dying declaration being relied by the prosecution from this document is the recording by the doctor and to reproduce it.
''Alleged history of sustaining burn injury when his Makan Malik (Taj Mohammad, Navjeevan Camp, Gobindpuri, N.D) put kerosene oil on his body and put on fire according to enmity behind it''.
Another dying declaration being relied by the prosecution is the statement of the victim deceased Amar Singh recorded by the investigating officer ASI Veer Sain on 6/4/2004 itself. Even otherwise there is no eye witness of the incident and neither the prosecution relies upon any other incriminating circumstance. The case entirely rests upon the dying declaration and the question before the court is whether this dying declaration is reliable and suffers no infirmity to disbelieve it or to seek any corroboration and thereby then accused could be held guilty on the basis of this dying declaration.
The facts of this case in brief are :-
DD 39 was recorded at police post Gobindpuri on 6/4/2004 at 8.55 pm on the basis of an information received from S-50 WT message that a person was lying near Hanuman Mandir Gobindpuri in burnt condition on the road. The DD was handed over to ASI Veer Sain and this 3 police official along with Ct.Prem Kumar reached the place of incident. There he found victim Amar Singh son of Kali Charan, Resident of B- 259 Navjeevan Camp, Gobindpuri lying on the road with burn injuries.
Meanwhile a constable Ramesh Chand also arrived and leaving Ct.Ramesh Chand on the spot, ASI Veer Sain took victim Amar Singh to Safdarjung hospital in a private TSR where MLC of the victim was recorded. Victim patient was further declared by the doctor mentally fit to make statement on the request application of the IO EX PW 14/B but then despite efforts put it by the ASI victim could not give his statement as he was crying for water. Since no eye witness was there found on the spot and since doctor had recorded in MLC the alleged history of sustaining burns when the landlord of the victim deceased had put victim on fire, offence U/s 307 IPC was found committed and accordingly ASI recorded his rukka at 11.10 pm on DD No.39 and F.I.R. of this case EX PW 6/A was recorded at 11.45 p.m in Police Station Kalkaji.
Meanwhile ASI Veer Sain also recorded the statement of the victim injured which is being pressed in to by the prosecution as the dying declaration. According to this statement of the victim he was residing as a tenant in B-259 Navjeevan Camp, Govindpuri and was a rickshaw puller by profession. On the date of incident at 4 around 8 pm he reached home and on the issue of victim deceased having been found to have taken liquor there was a quarrel between him and his wife which was intervened by a neighbour. Wife of the victim deceased then went to a shop to buy some articles and then the landlord Taj Mohammad arrived to the victim and asked for liquor and the victim declined when the landlord asked the victim to vacate the house and on that issue a quarrel took place them and in that quarrel he threw kerosene oil on the victim and set him on fire. Victim concluded his statement before police that he had been put on fire after throwing kerosene on him by Taj Mohammad.
Deceased victim meanwhile died in the hospital on 7/4/2004 at around 5.20 am and offence U/s 302 IPC was added. Inquest proceedings EX PW 1/B were carried out and body of the deceased was got subjected to postmortem. Postmortem report EX PW 4/P opined death of the victim due to hypo voluminic shock with 95% homicidal burn which were antemortem scalp hair were preserved and later on these scalp hair along with certain burnt clothes and a stove recovered and seized from the place of occurrence were got examined from CFSL, Hydrabad and report EX PW 19/C was received to the effect that clothes which comprised a partially burnt pant, yellow blue maroon pink white coloured clothes, wooden plank and match box along with metallic pump stove with empty tank when examined by gas chromatography method were found with resoles of kerosene oil. As regards scalp hair no kerosene oil or resoles could be detected in that exhibit.
5During investigation the place of occurrence which was found to be the first floor of jhuggi B-259 Navjeevan Camp, Gobindpuri was inspected where in an open space on the roof in front of a room one stove which did not contain the lid of its oil tank, some half burnt clothes and one match box were found lying and all these articles were seized in to a pulanda and its seizure memo EX PW 8/A was prepared. The spot was got photographed and these photographs have now been proved as EX PW 15/1 to 4. Accused was arrested and he was chargesheeted for the offence of murder primarily on the basis of the dying declaration made by the victim deceased.
On the committal of case to Sessions Court that charge was framed and the trial commenced when accused pleaded not guilty.
In all 19 prosecution witnesses have been examined and the most material witnesses on the point of the dying declaration by accused PW-3 Dr. Kali Prasad from Safdarjung hospital who had attended the deceased when brought to the hospital and then the witness ASI Veer Sain PW-14. Doctor Kali Prasad in his evidence deposed that on 6/4/2004 at about 9.30 pm patient Amar Singh was brought to Safdarjung hospital by ASI Veer Sain with alleged history of sustaining burn injuries when his when his Makan Malik Taj Mohammad, Navjeevan Camp, Gobindpuri, N.D put kerosene oil on his body and put on fire. The patient was having sustained 95% burn injury. Doctor proved MLC as EX PW 3/A which he prepared in this examination of the patient. Nature of injuries found sustained by the patient was opined dangerous. He further stated that whole of the body of the patient except gluteal part where having burn injuries.
6He explained '' gluteal part '' as like hip portion to say that when patient was in a sitting position. The second material witness on the dying declaration is the IO PW-14. Besides deposing in evidence that after removing victim from the spot to the hospital that MLC of the victim was prepared and on his request application doctor opined the patient was fit to make statement, he however deposed that injured could not give statement as he was crying for water and accordingly he got the case registered by sending rukka on the DD. He further deposed that he then reached the spot where wife of the injured met him and along with her he came again to the hospital and on that occasion he recorded statement of the victim injured which he proved as EX PW 14/E. Victim put his thumb impression on that statement which the witness proved appearing at point X. He then recorded the statement of the wife of the deceased and then reached again the place of occurrence and then he recovered and seized articles like a stove, one match box and some partially burnt clothes and seized them through memo EX PW 8/A. Rest other witnesses are formal and police officials. PW-1 & 2 are the relatives of deceased who had identified his body and took the body and after the postmortem for cremation. PW-4 has proved the postmortem report and deposed that cause of the death was hypovolemic shock caused by antemortem 95 % homicidal burn. He also proved the fact that deceased had succumbed to injuries on 7/4/2004 at 5.20 am. PW-5 had prepared a scaled site plan of the place of occurrence and proved it as EX PW 5/A. PW-6 has proved the F.I.R. PW-7 is a witness who was duty constable at Safdarjung hospital and on 7/4/2004 when deceased expired he conveyed this information at Police Station Kalkaji where DD 15 EX PW 7/A was 7 recorded.
PW-8 is the wife of the deceased victim. This witness was found hostile when she deposed outrightly that she did not know anything about this case and denied to have given any statement to the police. She was confronted with her 161 Cr P.C statement where she had claimed to be mother of five children, accused her husband a labour by profession who was a liquor addict taking liquor almost every day but she denied if after taking liquor he used to quarrel with her or that for that reason the landlord accused Mohammad Ahmed wanted them to vacate the jhuggi. She also denied if on the date of incident she met her husband at around 6 pm when she was going to attend her work but then as asked for by the deceased she came along with him or that there was a quarrel and fight between them or that it was intervened by a neighbour Manoj. She further denied if she went away and by around 9 pm when she returned to her jhuggi she found that her husband Amar Singh had been removed to hospital after having sustained burn injuries or that she then went to Safdarjung hospital and found him unconscious or that in her presence police had seized a kerosene oil stove , some burnt clothes and a match box from the place of occurrence. She was confronted with her statement containing all these facts.
Another public person witness Manoj residing in the neighbourhood of the victim deceased when examined as PW-9 also turned hostile. He denied to have any knowledge of this case and denied to have ever seen deceased victim quarrelling with his wife. He was also confronted with his 161 Cr P.C statement where he stated to the police that on the date of incident deceased came under the effect of Alcohol or that at around 6 pm on that date he had 8 intervened in a quarrel between deceased and his wife or that at around 8.15 pm he heard victim deceased crying for help or that he went to the jhuggi of Amar Singh and found him in flames or that he tried to extinguish his fire by putting water. He denied to have stated any of these facts before the police.
Rest other witnesses are police officials. PW-14 is the initial investigating officer whose evidence shall be discussed and examined when the dying declaration is taken up for its analysis. PW- 13 Ct.Prem Kumar and PW-18 Ct.Ramesh Chand are the witnesses who had been on the place of incident with the investigating officer ASI Veer Sain just after this incident and finally PW-19 was the investigating officer who took over the investigation after the death of the victim.
Accused while explaining this evidence against him denied his involvement when examined U/s 313 Cr.P.C. He pleaded and explained that at the time of alleged incident he was at his shop which was about 5 to 7 minutes walk from the place of alleged incident there he was informed by a person that one person had sustained burn injuries at the house of accused and accordingly accused reached his residence. By that time deceased had already come on the road and even before, accused says, he could physically see the victim he had already been removed to the hospital by his wife. Accused then examined witness Abdul Kayum who had come to accused to inform him about this incident and this witness supported the defence version pleaded by accused with that trial concluded.
I heard both sides. Defence counsel Mr.Sanjeev Manan challenged the prosecution case primarily on the plea that dying declaration was not reliable piece of evidence. Law requires that a 9 dying declaration should be recorded in question answer form before it can be considered to be a reliable and acceptable evidence. Counsel relied on judgment by Delhi High Court reported as 2006 (1) CCC 373 where it has been held and observed that when dying declaration was not recorded by the Magistrate nor the same had been recorded in question answer form, the prosecution case based not only on oral evidence but also on the strength of dying declaration which was shaky and doubtful could not be held proving the charge against accused. Counsel submitted that the wife of the victim deceased and the neighbour PW-9 have not supported the prosecution case and thereby there is no support and corroboration to alleged dying declaration. It is further submitted that the alleged history recorded by the doctor in MLC which prosecution seeks to rely as a dying declaration was in fact a history given by the police officer and thereby it could not be treated to be a dying declaration.
On the other hand Ld APPP argued that the earliest first version of the incident came to be recorded in this case in the form of a dying declaration which was recorded in the form of the history of incident given by deceased himself to the doctor wherein it has been specifically recorded that victim sustained burn injury when his Makhan Malik Taj Mohammad had put kerosene oil on the victim and then put him on fire. LdAPP submitted that doctor who recorded this history while examining the victim in the hospital now when examined as PW-3 was put a specific defence in the cross examination that the alleged history of the patient in fact had been given by the police officer and not by the patient and the doctor has categorically replied the suggestion as wrong and incorrect. LdAPP submitted that there was no reason to not to accept this dying declaration as recorded in 10 MLC EX PW 3/A particularly when there appears no apparent reason for victim deceased to name accused as the person who put him on fire nor there is any circumstance to suggest that doctor would incorporate this history in the MLC for any reason other than what in fact was narrated to him by the patient and there was also no reason for the investigating officer ASI Veer Sain even to get accused named in this alleged history as recorded in the MLC. Ld APPP relied on Delhi High Court judgment in a case Kuldeep Singh Vs State reported as 2009 (4) JCC 3208 where law has been discussed very elaborately with reference to several Supreme Court judgments and it has been held as a proposition of law that it does not necessarily mean that in every case where the investigating officer failed to requisition services of Magistrate for recording dying declaration, statement of the deceased which turned to be a dying declaration should be rejected. When dying declaration was the basis of registration of the F.I.R., ruling out any possibility of such a statement being fabricated, there was no reason to reject or disbelieve it. LdAPP pointed out that in the reported judgment the victim deceased, wife of the appellant, was admitted in the hospital with burn injuries on 25/10/1992. Her statement was recorded by the police officer when doctor had certified patient to be conscious oriented though she was found to have suffered first and second degree burns to the extent of 85%, statement of the victim was endorsed for the registration of the F.I.R. and it was registered. Victim finally expired on 4/11/1992 and in such a situation a question arose if statement of the victim deceased could be relied as dying declaration suffering no infirmity including a point raised by defence side while relying upon a Supreme Court judgment in a case Smt. Laxmi Vs Om Prakash 2007 V AD 245 where the 11 practice of dying declaration being recorded by police official was deprecated and discouraged, still in the circumstances and the facts of the case dying declaration by the victim deceased in this reported judgment was found reliable and conviction based on such dying declaration was found to be confirmed and upheld. Ld APP relying strongly on this judgment has argued and submitted that accused was liable to be convicted.
Having appreciated contentions from both sides and having gone through the evidence and material on the file I am of my considered opinion that prosecution fails to prove its charge on the basis of dying declaration. Let us be cleared about the law on the point of dying declaration. For the acceptance of a dying declaration court must ensure that the statement was not as a result of torturing, prompting or a product of imagination. It is for the court to ascertain from the evidence brought before it that the deceased was in a fit state of mind. Since the accused has no opportunity to cross examine, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. (Sher Singh Vs State of Punjab 2008 (4) SCC 265.) Corroboration of a dying declaration - only where a dying declaration appeared to be suspicious that it could not be acted upon without corroborative evidence ( Panneer Sevam Vs State of Tamil Nadu 2008 (2) Crimes 273 ). While recording dying declaration as regards fit state of mind, doctor certificate is only a rule of caution. What is essential is that the person recording dying declaration must be satisfied the deceased was in a fit state of mind (Sher Singh Vs State of Punjab 2008 (2) S.C 74).
12While analysing the priciples governing dying declaration as discussed and laid down in a judgment Vikas Vs State of Maharashtra 2008 (1) Supreme 433 one such principle has been held that where the prosecution version differs from the version as given in the dying declaration, such declaration cannot be acted upon.
Let us now take the analysis of the evidence relating to the dying declaration in this case. The first dying declaration being relied by the prosecution is the history of an incident as came to be recorded in the MLC. PW-3 doctor deposed on this point and to quote the relevant part ;
''On 6/4/2004 at about 9.35 pm patient Amar Singh was brought to Safdarjung hospital by ASI Veer Sen with alleged history of sustaining burn injuries when his makan malik(landlored) Taj Mohammad, Navjivan Camp, Govindpuri, New Delhi has put him on fire after putting kerosene oil on his body. On examination the patient was found having sustained 95% burn injuries. I had personally examined this patient vide MLC EX PW 3/A which bears my signature at point A.'' Testimony rather suggests that patient brought by ASI Veer Sain with the alleged history of sustaining burn injuries. It does not specifically suggest that history was given by the victim patient himself. Same is the recording of this fact in the MLC. It does not suggest that alleged history of sustaining burn injury had been given by the victim patient himself. It leaves a little doubt if it could be taken to be a statement given by the victim himself who later on died. Doctor or the attending police official who had brought victim to the hospital ought to have been cautious that if such a history of the the incident was to be treated as the statement of the victim and in the event of death of the 13 victim such a statement be treated as a dying declaration then it should have been recorded and mentioned that it was the statement of the victim. Ld APPP refer to the cross examination on doctor wherein it is stated and deposed;
''It is wrong to suggest that the alleged history of the patient have been given by ASI Veer Sen and not by patient Amar Singh himself.'' This suggestion in the cross examination might have been recorded as a suggestion to the witness given in routine. The prosecution should not rely on the suggestion in the absence of an affirmative and positive evidence that the history of incident recorded by the doctor was the statement given by the victim.
Another infirmity in the case creating a little doubt on this dying declaration is the spot situation where incident occurred as finds reflected from the seizure memo EX PW 8/A. Articles found as lying on the place of occurrence were one stove with lid of the oil tank missing, some half burnt clothes and one match box. All these articles were seized. The investigating officer has not cared to record any such observation if the stove oil tank contained any quantity of kerosene oil. No article or material is shown recovered from the spot where from kerosene oil could have been thrown on the victim before setting him on fire. It is again a matter of fact that wearing clothes on the person of victim deceased were not seized and got examined for the presence of any kerosene oil on those clothes. At the time of the postmortem scalp hair of deceased were seized through memo EX PW 10/A but then those scalp hair when got examined at CFSL, its report EX PW 19/C shows kerosene or its residues could not be detected in that exhibit scalp hair. Postmortem report EX PW4/A did mention in a column ''smell of kerosene oil'' as present but then there 14 is no further elaboration as to what particular part of the body or the clothes that such kerosene smell was found. We have the case before us that half burnt clothes recovered and seized from the spot along with the stove when got examined at CFSL were found containing residues of kerosene . Situation then suggests that some kerosene oil of the stove came out which fell on the clothes lying over there and thereby there happened to be kerosene residues detected in those clothes.
We then come to the statement recorded by ASI Veer Sain of the victim deceased Amar Suingh and the IO has proved this statement as EX PW 14/E. Text of this statement has already been reproduced in the earlier part of this judgment. Question arise if such a statement was made by the victim and recorded as such by the IO. ASI Veer Sain has not recorded even the time at which this statement was recorded. When deceased was admitted in the hospital and his MLC was prepared by the doctor IO moved a request application EX PW 14/B for recording the statement of the patient and the doctor recorded his opinion ''patient is mentally fit to give statement''. But then admittedly on that occasion ASI Veer Sain did not record statement of the victim. IO has deposed now in evidence that inability to record his statement was that victim was crying for water and was unable to make a statement.
IO deposed '' doctor opined the patient mentally fit for giving statement but injured could not give statement and was crying for water at that time''. This testimony of the IO create a mark of doubt if the history of incident recorded in MLC was given by the patient.
IO then deposed that when victim was unable to give statement he got the case registered by sending rukka on DD No.39 15 and then he returned to the spot. He got photographs taken of the site by the crime team. He further deposed that meanwhile wife of the injured met him but she refused to give a statement and insisted upon first to see and meet her husband. IO says that he along with wife of injured then reached hospital and on that point of time injured was ready to give statement and he recorded that statement. He further deposed that thereafter he recorded the statement of Sapana. In cross examination recorded on 29/7/2005 at page 2 IO admits that it was around 1.15 am that he recorded the statement of the victim. There is a gap of around 4 hours in between the time when victim was brought to the hospital and his MLC was prepared and when his statement was recorded by the police official. Admittedly no doctor's opinion was obtained that the patient was in a fit state of mind and was able to speak when this statement EX PW 14/E was recorded. Admittedly wife of the deceased Sapna PW-8 was not joined as a witness in recording of the statement. Another serious infirmity in this dying declaration appears from the fact that IO having recorded statement of Amar Singh victim he thereafter recorded the statement of his wife Sapna U/s 161 Cr.P.C. Both these statements gave an account of event which was at variance with each other. According to victim deceased he was a rickshaw puller and reached home at around 8 pm after having consumed liquor and on that issue he had a quarrel with her which was intervened by neighbour and then his wife went to some shop for buying some articles. Contrary to it facts narrated by Sapna in her 161 Cr.P.C statement are that her husband was a habitual drunkard, in a habit of quarrelling and fighting with her and neighbours after taking liquor and for that reason their landlord owner Mohammad Ahmad had been asking them to vacate the 16 premises. She further states in her 161 Cr. P.C statement that on 6/4/2004 at around 6 pm while she was on the way going to attend her work that her husband met her, prevented her from going to attend her work and brought her to jhuggi and started quarrelling with her and neighbour Manoj Kumar intervened. IO is introducing this story from the statement of wife of victim which have recorded immediately after recording the statement of the deceased and the presence of deceased is shown at 6 pm. It all creates a serious doubt in this alleged dying declaration EX PW 14/E. In the absence of a certificate from doctor that victim brought to the hospital with 95% burns was in a fit condition physically and mentally to make his statement, it cannot be relied. Admittedly IO has no where recorded either while recording the statement or while appearing as a witness before the court that he found victim in a fit state of mind and body to give his statement. Such a dying declaration could not be relied upon and reliance can be placed on a case State of Rajasthan Vs Wakteng 2007 (5) Supreme 183.
Both PW-8 wife of the victim and PW-9 another independent witness has absolutely resiled in giving any kind of support to the prosecution case.
Place of incident was the first floor of a house B-259 Navjeevan Camp, Govindpuri and the victim was found lying on the road near Hanuman Mandir Nav Jeevan Camp, Govindpuri but then in the site plan EX PW 14/D which ASI Veer Sain prepared no such point has been shown where body of the victim was found lying in burnt condition what to speak of mentioning of the distance between the house and that point X Judgment referred to by Ld Ld. Addl. PP for State is 17 distinguishable on the facts as in that case victim when brought to the hospital at 7 pm had been certified by the doctor conscious and oriented though she had suffered 85% burns and in that situation where statement of the victim was recorded by the police official and F.I.R. was registered on the basis of that statement it was found reliable and there was no circumstance creating any kind of suspicion in that statement which was finally treated to be the dying declaration. In the present case statement of the victim has been found to be doubtful statement. There is no any other incriminating evidence against accused. Once the dying declaration is found to be unreliable accused cannot be held guilty for the charge, in this case he is acquitted of the charge. File be consigned to the record room.
Announced in the Open (J. R. ARYAN)
court on 23/01/2010. ADDITIONAL SESSIONS JUDGE
NEW DELHI.
18
St. Vs. Mohd Ahmed @ Pappu @ Taj Mohammad
F.I.R. No.335/04
P.S Kalkaji
20/1/2010
Present: Addl. PP for State.
Accused on bail with Sh.Sanjeev Kumar Manan, amicus Arguments heard. Matter adjourned and be listed for orders on 23/01/2010.
ASJ/New Delhi 20/01/2010 23/1/2010 Present: Addl. PP for State.
Accused on bail with Sh.Sanjeev Kumar Manan, amicus Vide separate judgment accused is acquitted of the charge.
File be consigned to record room.
(J.R.ARYAN) ASJ/New Delhi 23/01/2010