Delhi District Court
State vs . Rafiuddin @ Rafe on 28 January, 2014
IN THE COURT OF SHRI ATUL KUMAR GARG: ADDL.
SESSIONS JUDGE-03 (CENTRAL), DELHI
SC No.: 102/11
State ....... Complainant
Versus
Rafiuddin @ Rafe
S/o Fazluddin
R/o E-7, DDA Flat Turkman Gate,
Delhi.
....... Accused
FIR No. 06/11
PS : Town Hall
U/S : 302/304 B/498 A/34 IPC
Date of institution : 05.05.2011
Date of arguments: 13.01.2014
Date of judgment : 28.01.2014
JUDGMENT
1. Vide DD No. 4 dated 19.1.11 at about 1:30 a.m., police was informed about the lady setting herself into fire. That information was assigned to H. Ct. Samra Munda. The Chowki Incharge along with H. Ct. Samra Munda reached to the House No. 5062, First Floor, Kucha Rehman, Chandni Chowk, Delhi-6 where he came to know that injured was shifted to the LNJP hospital. On the spot, there was a smell of kerosene oil, articles of kitchen and sewing FIR No. 06/11 Page No.1 State Vs. Rafiuddin @ Rafe machines were lying there. Burnt clothes of injured, empty bottle of kerosene oil and other bottle of oil were also lying there. Water was scattering around. Crime team was called. Inspector Wasim Akram, SI Chowki In charge along with SI Bharat Rattan reached to the LNJP Hospital and collected the MLC bearing No. 8094 of injured Gul Fiza D/o Aaftab R/o H. NO. 5062, First Floor, Kucha Rehman, Chandni Chowk, Delhi-6 where doctor has mentioned alleged history of burn at home address at around 12:53 a.m. Patient was declared fit for statement. Gul Fiza has given the statement in the presence of her two sisters and uncle where she had stated that she herself set into fire due to mental pressure, so the DD entry was kept pending. At about 9:25 pm on 19.1.2011 the parents of the injured Mohd. Aftab and Tahira Begum had come to the police station and informed that their daughter Gul Fiza has married secretly with Rafiuddin and Gul Fiza want to give her statement again to the police. SDM Kotwali was informed. SDM had appeared in the LNJP hospital where he recorded the statement of Gul Fiza. In her statement, she has stated that she did the job of fashion designer at her house bearing No.5062, First Floor, Kucha Rehman, Chandni Chowk, Delhi-6 and got married with Rafiuddin on 26.11.2010. The marriage was solemnized in Fatehpuri Masjid registered at Registration No. 12/A/2010. The above said fact was concealed by her from her parents. She further stated to the SDM that even after getting married with Rafiuddin she was living with her parents and used to meet Rafiuddin outside the house.
FIR No. 06/11 Page No.2State Vs. Rafiuddin @ Rafe Rafiuddin used to quarrel with her on one reason or the other. Rafiuddin actually demanded the money from her and she has given an amount of Rs.1,75,000/- to him. On 18.1.2011 at about 9:00 a.m. Rafiuddin had called her to meet. She had gone to meet him at Baghwali Masjid where he had come on his blue colour Pulsur motorcycle. He demanded Rs.50,000/- from her which she refused. He started quarreling with her. Thereafter, she has come to her house and switched off her mobile phone. After 20-25 minutes, Rafiuddin came to the first floor of her house and quarreled with her and when she refused he abused her. She sat herself near the gas Chulha. Thereafter, Rafiuddin had poured the kerosene oil from the bottle lying behind and set her into fire. When she cried all the three sisters had come and poured water and blanket (Kambel). In the meanwhile, Rafiuddin tried to run away after taking away the mobile phone. Rukhsar had caught hold Rafiuddin. Rafiuddin had pushed Rukhsar and run away after taking away her mobile hand set. She also deposed that she has not stated to the police that on 19.1.2011 Rafiuddin had threatened her that he will abduct her younger brother and sister. The above said statement was endorsed by the police and got registered the case. During the course of the investigation, IO collected the evidence, recorded the statement of witnesses and arrested the accused. After completion of investigation, IO has filed the charge sheet in the court.
2. After being heard, vide order dated 30.5.2011 accused FIR No. 06/11 Page No.3 State Vs. Rafiuddin @ Rafe Rafiuddin was charged for the offence punishable under Section 498A/304 B IPC and alternatively charge U/s 302 IPC. Accused pleaded not guilty and claimed trial.
3. In order to substantiate the charge, prosecution has relied upon as many as twenty-four witnesses namely Mohd. Aftab, Smt. Tahira Begum, Kumari Rukhsar, Kumar Razia, Abrar Ahmed, HC Somra Munde, HC Sanjay Kumar, HC Dheeraj Kumar, Ct. Ganender, SI Dheeraj Kumar, Ct. Ravinder, DO HC Amitabh, Ct. Sandeep Hooda, HMC(M) HC Raghubir Singh, R.K.Sharma, Nodal Officer, Concerned Dealing Clerk, W/Ct Renu, Mohd. Imran Parvej, SI Manohar Lal, Dr. Anju Rani, Dr. Kul Bhushan, SI Mahipal Singh, Inspector P.S. Chahal. In fact, the prosecution has examined twenty-six witnesses in all.
4. Prosecution consists of three sets of evidence. First set of evidence consists of testimonies of Mohd. Aftab, Smt. Tahira Begum, Rukhsar, Mohd. Razia, Abrar Ahmed, Mohd. Imran examined by the prosecution as PW 1, PW 2, PW 5, PW 6, PW 7, PW 11. Second set of evidence consists of Dr. Anju Rani (PW 16), Dr. Kulbhushan (PW 20), Dr. Ravi Kumar (PW 25) and Dr. Varsha Gupta as PW 26. Remaining witnesses are the police officer or the persons who had carried out the investigation.
5. PW12 was posted at police control room in the intervening night of 18/19.2011. He has received a telephonic call at about 1.00 a.m. whereby the informant had given an information that one lady had set herself into fire and tried to commit suicide. He has FIR No. 06/11 Page No.4 State Vs. Rafiuddin @ Rafe recorded the said information in his PCR form. The same is Ex.PW12/A bearing his signatures at point A. He has passed the said information on the concerned net. PW9 received information in the intervening night of 18/19.1.2011 in PS Ballimaran, Delhi and he has recorded the information at Serial No.4. He has also witnessed the arrest of the accused on 2.2.2011. Disclosure statement of the accused was recorded by the IO in his presence. Accused Rafiuddin had got recovery of mobile phone from the car bearing no. DL3C AQ 6761. PW14 was the duty officer posted at Town hall from 9.00 p.m. to 9.00 a.m. On 20.1.2011 he had received a rukka handed over by HC Sanjay Kumar. He had got recorded the FIR bearing no.6/11 of the present case through computer operator. He has proved the said FIR as Ex.PW14/A.
6. PW13 was the photographer in the crime team, who reached to the spot after receiving the information. He had taken the photographs of scene of crime from different angles. He has proved the photographs placed on judicial record as well as negatives as Ex.PW13/X-1 to PW13/X-11 and negatives as Ex.PW13/Y-1 to Ex.PW13/Y-11. PW13 was crime team incharge. He had found SI Mahipal Singh at the spot alongwith his staff. He inspected the scene of crime. He prepared the detailed crime report and submitted the same to the IO. He has proved the same as Ex.PW13/A bearing his signatures at point A.
7. PW18 has brought the record of vehicle make Santro X-ing bearing registration No.DL 3C AQ 6765, which was registered in FIR No. 06/11 Page No.5 State Vs. Rafiuddin @ Rafe the name of Sh.Daljeet Singh on 29.1.2007 and lateron the same was transferred in the name of Rafiuddin S/o Fazluddin on 17.11.2008 and till date the said vehicle stands registered in the name of Rafiuddin. He has proved the record as Ex.PW18/A.
8. PW4 HC Somra Munda was posted as HC at PP Ballimaran.
He has received information about somebody who had set herself into fire. They reached to the aforesaid place where SI Mahipal Singh was also met. The injured has already been taken to the hospital and on the spot, burnt clothes, one plastic bottle having kerosene oil and another bottle having the sewing machine oil, one match box lying on the pillar in the room were found. The above said articles were taken into possession by the IO SI Mahipal Singh vide seizure memo Ex.PW4/A.
9. PW17 was the person, who had reached to the spot after receiving the information in police post through DD no.4 in respect of death of a young woman. He along with HC Sumara Munda, Ct. Sandeep reached at house no. 5062, Kucha Rehman, First Floor within no time. SI Bharat Ratan, Insp. M.S. Negli along with other staff also reached there. There they came to know that the said lady namely, Gulfiza in injured condition had already been shifted to JPN Hospital by PCR. On the first floor, i.e. the spot, water was lying on the floor and the partially burnt clothes pieces were also lying. Sewing machines were there on the said floor, one gas stove and two bottles out of which in one bottle, there was oil used for lubricating sewing machines. Some burnt match sticks and one FIR No. 06/11 Page No.6 State Vs. Rafiuddin @ Rafe match box make 'Ship' containing some live match sticks were also lying there. Crime team was called at the spot. He inspected the spot; photographs had been taken by the photographer. He went to JPN hospital. There they have received the MLC of the injured Gulfiza. Dr. declared her fit for statement. He recorded her statement already Ex.PW6/DA bearing thumb impression of Gulfiza at point X attested by him at point Y. He has also obtained the signatures of Razia and Ruksar respectively at points A & B on Ex.PW6/DA, being the sister of Gulfiza and also of the uncle of Gulfiza, namely, Nasiruddin at point Z. As per the statement of Gulfiza Ex.PW6/DA, there was no foul play as such, DD No.4 was kept pending vide DD no.5 PP Ballimaran. From the hospital, he again reached at the spot and lifted the exhibits from there i.e. the partially burnt cloth pieces of Gulfiza in which smell of kerosene oil was there, one white plastic bottle having yellow cap on which, RCQ was found written with green colour containing machine oil, one plastic bottle and its cap which was lying separately, containing machine oil, one match box male Ship containing six live match sticks. All the above said articles were wrapped in cloth and four separate pulandas were prepared and were sealed with the seal of NPC. He further deposed that about 9:25 p.m. on 19.1.2011, parents of Gulfiza, namely, Mohd. Aftab and Tahira Begum arrived at the PP and they told him that their daughter, namely, Gulfiza had concealed the fact of her marriage with the accused Rafiuddin from them but now, Gulfiza had disclosed everything to them and FIR No. 06/11 Page No.7 State Vs. Rafiuddin @ Rafe Gulfiza wishes to give her statement. They also handed over to him the photocopies of Nikahnama of Gulfiza and Rafiuddin, mutual marriage agreement, affidavit regarding date of birth and affidavit regarding marriage. All the above said documents were seized by him vide seizure memo Ex.PW1/D signed by him at point X. In this regard, he recorded a DD No.28 in the Rojnamcha and obtained the signatures of Aftab and Tahira Begum at point A & B respectively on DD no.28. He passed this information to the senior officers and telephonically informed and requested Sh.R.K. Sharma, SDM Kotwali to reach burn ward no.20 JPN Hospital and he also left the PP along with HC Sanjay and parents of Gulfiza and reached burn ward no.20 JPN Hospital. SDM also reached there and on his request, after getting declared Gulfiza fit for statement from the doctor on duty, he recorded the statement of the complainant Gulfiza already Ex.PW3/A. He handed over the statement of the Gulfiza Ex.PW3/A to him. Thereafter, he prepared a Tehrir Ex.PW17/C signed by him at point X and handed over the same to HC Sanjay for getting the FIR registered. He prepared the site plan Ex.PW17/D. He got the Nikahnama Ex.PW7/A verified from Fatehpuri Masjid, which was found to be genuine. On 31.1.2011, he received an information regarding the death of Gulfiza during treatment. He immediately reached the hospital and by that time, dead body had already been shifted to the mortuary. Thereafter, he went to the office of SDM Kotwali and made a written request for conducting the inquest under Section 176 FIR No. 06/11 Page No.8 State Vs. Rafiuddin @ Rafe Cr.P.C. and proved the said request as Ex.PW17/E. On 1.2.2011, the postmortem of the body was conducted by the doctor and as per the order of SDM. The dead body of Gulfiza after the postmortem was handed over to her parents. On 2.2.2011, he joined the investigation of the present case along with Inspector P.S. Chahal, HC Dheeraj, Ct. Gyanender and they all along with driver left the police station at about 5:30 p.m. in search of accused Rafiuddin and reached at Mata Sundri Chowk near Kamla Market and their IO Insp. P.S. Chahal received a secret information that the accused Rafiuddin would come from Connaught Place side and will go towards Turkman Gate. At the instance of informer, accused was apprehended. He was arrested and his personal search was conducted, disclosure statement was recorded. Accused led the police party to the courtyard of Dharampura Lodge Subzi Mandi Ghanta Ghar and pointed out a car make Santro bearing registration No. DL 3CAQ 6765, which was found parked in front of H. No. 7699 of one Nisar. He got recovered the mobile phone black and white colour make Nokia. Thereafter, they had come back. PW17 had also identified the case property i.e. one plastic bottle having kerosene oil, match box as Ex.PW6/P1 to Ex.PW6/P4. He has also identified the mobile pone Ex.D1.
10. PW22 has prepared the scaled site plan and proved the same as Ex.PW22/A. PW23 was MHC(M). He has proved the relevant entry regarding entry and exist of case property and proved the copy of the same as Ex.PW23/A & B respectively. PW24 Insp. P.S. FIR No. 06/11 Page No.9 State Vs. Rafiuddin @ Rafe Chahal deposed that after registration of the case, he himself had taken the investigation being SHO of the police station. He has arrested the accused Rafiuddin in the present case and got recovered a mobile phone from Santro Car bearing registration No.DL 3CAQ 6765. He prepared the site plan, place of recovery of mobile, pointing out memo and he has also identified the case property.
11. PW20 is the material witness. He was the SDM at the relevant point of time. He has received message from SI Mahipal Singh on 20.1.2011, whereby he was asked to reach LNJP Hospital. He further deposed that he found one lady namely, Gulfiza admitted their in Ward no.20 in burnt condition. There he inquired from her, after she was declared fit for statement. He recorded her statement which is already Ex.PW3/A. Right feet thumb impression was taken of the victim. Thereafter, he endorsed the same on Ex.PW3/A. He further deposed that on 31.1.2011, he was informed by the IO that Gulfiza was expired in the hospital due to burn injuries. Thereafter he again visited the hospital, filled the form no.25.35(1)(B) and same is Ex.PW20/A bearing his signatures at point A. Dead body of Gulfiza was identified by her father Mohammad Aftab and mother Tahira Begum as Ex.PW20/B and Ex.PW20/C bearing his signatures at point A. On the same day, statement of Mohd. Aftab, Tahira Begum, Razia and Ruksar was recorded by the IO on his dictation. Statement of Ruksar, Razia and Tahira Begum are Ex.PW20/E to Ex.PW20/G bearing his FIR No. 06/11 Page No.10 State Vs. Rafiuddin @ Rafe signatures at points A respectively.
12. PW25 had examined Gulfiza on 19.1.2011 when brought at LNJP Hospital with the alleged history of burn at home address at about 12:53 a.m. She had examined the patient and prepared the MLC. There was a smell of kerosene, patient was 65% burnt. He prepared the MLC Ex.PW21/A. Thereafter, the patient was referred to burn and plastic surgery.
13. PW26 Dr. Varsha Gupta was deputed by the MS Lok Nayak Hospital to depose in the court about handwriting and signatures of the Dr. Sidharth and Dr. Avinash. He had seen the MLC no.8094 of patient Gulfiza S/o Sh. Aftab aged about 20 yrs. female who was brought to casualty by HC Naresh and sister Razia with the alleged history of burn at home address. On 19.1.2011 on the said date, the patient was declared fit for statement by Dr. Sidharth on the MLC already Ex.PW21/A. On 20.1.2011, the patient was declared fit for statement by Dr. Rajesh Junior resident on the MLC already Ex.PW21/A. He had identified the handwriting and signatures of both the doctors who had left the hospital because Dr. Rajesh has worked under his supervision as a junior resident. She further deposed that she had also seen the death summary of patient Gulfiza dated 31.1.2011, which is in the handwriting of Dr. Avinish Kumar Dubey. She also identified the hand writing and signatures as she had seen him writing and signing during the course of her job as Dr. Avinash Kumar Dubey was also working under her supervision. She had proved the death summary of patient as FIR No. 06/11 Page No.11 State Vs. Rafiuddin @ Rafe Ex.PW26/C.
14. PW16 and PW19 had conducted the postmortem of the deceased on 1.2.2011 at Lok Nayak Mortuary. On external examination the infected demo-epidermal burn injury present over head, neck and face, front and back of chest, front upper half of abdomen, back of right half of upper abdomen, front and back of both upper limbs including palms, front and back of both thighs and genitalia were found. The superficial layer of skin were burnt and peeled off at places revealing yellowish green base covered with foul smelling pus. Unhealthy granulation tissue present and margins showing partial healing. Singing of body hairs over burnt area present. No smell of kerosene was present and no mechanical injuries present. The approx. area of burn was 68% of total body surface area. On internal examination all internal organs were found congested and lungs were consolidated showing exudation of pus on cut section. The opinion regarding the cause of death was that the death was due to septicemia consequent upon burn injuries. All injuries were ante-mortem and were caused by flames of fire. He proved the postmortem report as Ex.PW16/A running into three pages signed by him at point A on both sides.
15. PW1, 2, 5, & 6 are the important witnesses. PW1 & 2 are parents of the deceased. Admittedly, both of them were not found at home when the incident had happened. They were at Shikohabad Distt. Firozabad. Both had returned to Delhi after receiving the information at about 1.00 p.m. from her daughter. He deposed that FIR No. 06/11 Page No.12 State Vs. Rafiuddin @ Rafe their daughter Gulfiza on seeing them started crying bitterly and told them that she had not told them about Rafiuddin anything because of fear and she had got married with him secretly. He deposed that her daughter told that the accused Rafiuddin had set her into the fire by pouring kerosene oil. Both of them deposed that their daughters was expired on 13.1.2011. He submitted the copy of the Nikahnama as well as complaint filed by the other wife of the accused to the IO, which was taken into possession by the IO.
16. PW5 and 6 were the witnesses to the incident. They deposed that they had come immediately after hearing the cry of his sister, who was burnt. PW5 deposed that his sister Gulfiza was running a small factory where stitching work was done and the said factory was inside their house. He along with his sister Razia used to help Gulfiza in stitching work. He deposed that in the intervening night of 18-19.01.2011 her parents had gone to Sikohabad, UP to attend the ceremony as his grandfather had died on 14.1.2011. On that night, he along with his sister Razia and Gulfiza were present at their house. He along with his sister Razia was present in the room and after watching TV, she slept in the night. His sister Gulfiza was present inside the factory at their house. At about 1.00 a.m. she heard the cries of his sister Gulfiza. She woke up and went inside the factory of his sister Gulfiza. His sister Razia was already there. He found fire on the clothes of his sister Gulfiza. Accused Rafiuddin was present there at that time. However, accused pushed him and his sister and managed to escape from there. However, he FIR No. 06/11 Page No.13 State Vs. Rafiuddin @ Rafe tried to chase him and caught the colour of his jacket which he was wearing at that time. However, accused pushed him and his sister and managed to escape from there. His sister Razia extinguished the fire from the clothes and body of his sister Gulfiza by putting blanket upon her and also poured water on the blanket. Someone from neighbourhood informed the police at 100 number, PCR was reached at the spot. His sister Gulfiza was removed in the said PCR and was taken to LNJP hospital. He further deposed about the articles taken into possession by the IO.
17. PW6 Razia had also deposed the same facts as deposed by PW5. She deposed that while he was watching TV, she slept in the midnight and suddenly she woke up and saw through the hole in the wooden partition and she found one person was pouring kerosene oil on his sister Gulfiza and he burnt a match stick and set her sister on fire. She screamed on seeing this and rushed to save her sister. His sister Gulfiza was in blaze and was saying that "Rafiuddin Ne Mere Upaer Mitti Ka Tel Daal Kar Aag Laga Di". Rafiuddin was standing there. She immediately put blanket on her sister and tried to extinguish the fire but when fire could not be extinguished, she put water on her. In the meanwhile Rukshar caught hold of Rafiuddin and slapped him. Accused Rafiuddin took up the mobile phone Nokia of her sister Gulfiza which was at the factory.
18. PW7 has brought the original Nikahnama register pertaining to the marriage certificate register No.12/A/10 dated 26.11.2010.
FIR No. 06/11 Page No.14State Vs. Rafiuddin @ Rafe He deposed that he had performed the Nikahnama of Rafiuddin with Gulfiza daughter of Mohd. Aftab.
19. PW11 was another important witness. He was present when the Nikahnama of Rafiuddin was performed with Gulfiza at Fatehpuri Masjid, Chandni Chowk. He had identified the signatures on marriage certificate .
20. In order to explain the circumference appearing in evidence, the accused was examined under Section 313 Cr.P.C. Entire incriminating evidence was put to the accused, accused claimed innocence and falsely implication. However, he did not prefer to examine any witness in defence.
21. On behalf of the State, ld. Addl. PP for the State has presented the facts and stated that from the evidence of PW16 & PW19, the prosecution had proved the fact that deceased was died due to septicemia consequent upon burn injuries and the injuries were opined by doctor as ante-mortem and was caused by flame of fire. He further submitted that testimony of PW 1 & 2 have proved the fact that the deceased herself has stated to them that it was the accused who had poured the kerosene oil upon her and set her into fire. PW1 & 2 on the alleged date were in Sikohabad. It is stated that they were informed by their daughter. So far so PW5 & 6 are concerned, they are the ocular witness. In their presence, the accused had set her sister into fire. They have woken up after hearing the cry. Therefore, the prosecution has proved its case against the accused both under Section 302 IPC. Not only this, the FIR No. 06/11 Page No.15 State Vs. Rafiuddin @ Rafe deceased in her statement has stated before the SDM that accused had harassed her over the demand of dowry.
22. On the other hand, ld. Counsel for the accused had rebutted the arguments and stated that in the present case there were three dying declaration. Two dying declaration have been given by the patient immediately when she was admitted in JPN Hospital. Alleged history was told to the doctor by the victim herself as burn at home address at 12.50 p.m. The patient was found conscious and oriented. He further submitted that the deceased was declared fit by the doctor for making statement and it was investigating officer first who had recorded the statement of the deceased at that very moment. There deceased has not blamed upon the accused, rather then it has been stated by the deceased herself that at about 11.00 p.m. she herself poured the kerosene oil upon her and set ablaze. After hearing her cry, three sisters had come. They had put blanket upon her and taken her to the hospital. She had deposed that she has not been set into fire by any one and she had taken the said steps due to loss in the business. The above said statement has been given by the deceased in presence of her sisters as well as doctor. Signatures of Nasiruddin, uncle of the deceased Razia and Rukshar were also found on his statement. Right thumb impression of Gulfiza was also there, while after twenty hours, the statement of witness was allegedly recorded by the SDM and it was the right foot impression was taken. It is submitted that the above said statement is tutored one and cannot be relied upon and the same FIR No. 06/11 Page No.16 State Vs. Rafiuddin @ Rafe was recorded by the police and taken approval of the SDM. He has also drawn attention of this court towards the testimony of PW2, where he has admitted that when he reached the hospital, one of the sister of Gulfiza was present and her parents were not present. Nurses and doctors were also present in the ward. He further submitted that he did not come through the contents of the statement recorded by the IO nor sister has asked the injured whether she tendered her statement before the IO. He further drawn attention of this court towards the testimony of PW20, where he has admitted that he was not aware whether he had mentioned in his proceedings that he he asked from injured regarding her willingness to make her statement. He has admitted that he did not record the statement in question answer form. He further admitted in his cross examination that statement was recorded by the IO under his dictation. He submitted that even the patient is not able to put his right hand thumb impression on his statement as her condition was serious and she cannot speak in way as the statement has been recorded in such circumstances. Statement must have been recorded in question answer form. It is admitted by PW20 that the statement has been recorded by the IO means that the witness had stated before the SDM in substance form, which is quite impossible in such situation. He has further drawn attention towards the documents Ex.PW3/A where the right foot impression has been taken. If the statement has been recorded in substance manner as of the deceased the right foot impression FIR No. 06/11 Page No.17 State Vs. Rafiuddin @ Rafe has been taken below after finishing the statement. Here, it is not so and he submitted that dying declaration in such circumstances cannot be believed. So far so the testimony of PW3 and PW4 are concerned, these witnesses had already stated at the time of first statement given by the deceased to the IO whereby she has not blamed any one for his injury. He has relied upon the judgment of Kanshi Vishwanath Vs. State of Karnataka 2013 IV AD (Crl.) SC 141, wherein it was held that "consistency in the dying declaration is the relevant factor for placing full reliance thereupon. It was further held that prosecution has failed to state as to why three dying declarations were recorded in Kannada, if the deceased, was talking in Telugu. He has further relied upon Harchand Singh and another Vs. State of Haryana AIR 1974 SC 344 where it was held that "in a case where the prosecution leads two sets of evidence, each one of which contradicts the other, it is difficult to found the conviction of the accused". He further relied upon Shakuntla & others Vs. The State 25 (1984) DLT 33, where it was held that "a dying declaration whether oral or written is a solemn and important statement since it comes from a person at a time when he is apprehending death and, therefore, normally not expected to lie. We can understand that an oral declaration made by the deceased before a number of persons may be reproduced by them in different words and sequence but surely a witness is not competent to add or improve upon what he was told. If a person has made a statement regarding the cause of his death the witness FIR No. 06/11 Page No.18 State Vs. Rafiuddin @ Rafe must faithfully reproduce it and make no additions or improvements and in case he does a serious infirmity is introduced in the alleged dying declaration and the court shall have no option except to reject it". He has further relied upon The State of UP and another Vs. Jaggo @ Jagdish and others AIR 1971 SC 1586 wherein it was held that "All witnesses of prosecution need not be called but witness whose evidence is essential to the unfolding of the narrative must be called. His absence seriously affects the truth of the prosecution case."
23. By citing the above said case law, ld. Counsel for the accused has stated that from the evidence, the prosecution has failed to prove its case against the accused. Dying declaration Ex.PW3/A cannot be relied upon.
24. I have heard the arguments, perused the record and analyze the evidence. Here in the present case there are three dying declaration on record. First dying declaration has been made to the doctor by the deceased herself when admitted in the hospital where she had stated the history to the doctor, burn at home address at around 10.50 p.m. The patient was declared fit for statement on 19.1.2011 at 2.00 a.m. SI Mahipal Singh reached to the hospital and recorded the statement of Gulfiza in presence of doctors as well as one Nasiruddin, Razia and Rukshar. Deceased herself had stated to him that she had poured kerosene oil upon herself in her factory at about 11.00 p.m. while her sisters went away after taking the dinner in other rooms. After hearing her cry, all the three sisters FIR No. 06/11 Page No.19 State Vs. Rafiuddin @ Rafe had come and poured water as well as blanket. Thereafter, they had taken her to the hospital. She held herself responsible for making attempt to commit suicide. The above said statement has been witnessed by all the three witnesses. Thereafter, after more eighteen or nineteen hours, the parents of the deceased appeared in the police station and stated that the deceased wants to give statement. SDM was informed and SDM reached hospital, recorded her statements where deceased held responsible the accused for setting her into fire by pouring kerosene oil while her two sisters had witnessed the above said thing and stated that they tried to apprehend the accused but he had ran away after taking her mobile. On that date, the statement of other persons were not recorded by the SDM. Statement of four persons, and two sisters of the deceased were recorded during the inquest proceedings conducted by the SDM after the death of the deceased.
25. From the postmortem report Ex.PW16/A, it has been proved on record that death was due to septicemia consequent upon burn injuries. Doctor conducting the postmortem opined that all the the injuries are ante mortem caused by flame of fire. Now, court has to see whether dying declaration Ex.PW3/A can be relied. Incidentally in the present case, there are three dying declaration. First dying declaration has been given to the doctor by the patient himself. Dr. examining the patient had written that patient himself told to her burn at home address. When the police official SI Mahipal PW17 reached to the hospital, he found the deceased FIR No. 06/11 Page No.20 State Vs. Rafiuddin @ Rafe admitted in the hospital and he had recorded the statement of the injured where she has not put any blame to anybody for setting her into fire. The above said statement has been witnessed by Razia and Rukshar as well as one Nasiruddin. The above said statement even has been recorded in the presence of the doctor. Crime team report Ex.PW13/A had also stated that girl named Gulfiza poured kerosene oil herself from bottle and set her into fire for unknown reason. PCR form document i.e. Ex.PW12/A also depicts that it was the deceased who had set herself into fire by pouring kerosene oil due to tension of his business. It was also mentioned in the said document that her sister Razia was with him. The said information was sent to the control room by the PCR at 12:51 p.m. Therefore, the document suggest that initially the police was apprised by all in one voice that the deceased set herself into fire by pouring kerosene oil. These are crime team incharge PCR official as well as local police. None of the persons present with the deceased at that time stated about the role of Rafiuddin though two of them has allegedly witnessed the incident.
26. Now, come to the third dying declaration. As per the IO, parents of Gulfiza had appeared in the police station at about 9/9.30 p.m. on 10.01.2011 They have stated that Gulfiza wants to make a statement. SDM was called and the Gulfiza had given statement. If we go through the statement of PW3/A, then it appears that the same has not been given by Gulfiza in conscious state, because as per SDM right foot impression was taken on the FIR No. 06/11 Page No.21 State Vs. Rafiuddin @ Rafe statement in the middle. Statement is admittedly recorded by some police official as per statement of PW20. If patient was not in a position even to put his right thumb impression, then it must have been in question and answer form. Patient who is in such a situation cannot narrate the version as recorded in Ex.PW3/A. Moreover, right foot impression was taken at the second page in the middle. If the statement has been concluded, then right foot impression of the deceased was taken below the conclusion of the statement but here it has not been so. Further PW 20 had admitted that he did not remember the name of doctor who had declared the patient fit. He did not record the statement of doctor in this regard. MLC Ex.PW 26/B speaks the 65 % burn on face, neck, both arms on ( anterior and posterior aspect ) and on chest above breast. It reflects that the deceased might have poured the kerosene upon herself because if a person pours the kerosene oil from behind then it shall cause burn injury on the back not on the front chest as well as face, neck and arms. For these reasons, I am not persuaded to accept the dying declaration Ex.PW3/A recorded by PW20 of the deceased as true.
27. Now, come to the testimony of PW1, PW2, PW5, PW6.
PW1 and PW2 are here-say witnesses. They have not seen the accused pouring kerosene oil or setting her daughter into fire. They have told by their daughter. So far so the testimony of PW5 & PW6 are concerned, they have not deposed anything on 19.1.2011 itself when first time deceased was admitted in the hospital though FIR No. 06/11 Page No.22 State Vs. Rafiuddin @ Rafe they had witnessed the statement given by the deceased to SI Mahipal. PW17 SI Mahipal recorded the statement of the deceased in the presence of one Nasiruddin but but statement of Nasiruddin has not been recorded. Further SDM has not recorded the statement of these witnesses even on 20.1.2011 when he had recorded the statement of the deceased. Their statement had come on record only on 31.1.2011 when the deceased was expired. Therefore their testimonies can not be relied.
28. In view of the above discussions, the prosecution has failed to prove its case against the accused under Section 302 or 304-B IPC beyond reasonable doubt. Further, the prosecution has no iota of evidence on record that the accused has ever demanded money from her in-laws or has harassed her daughter over the demand of dowry. This is an admitted fact that marriage of the deceased with the accused has been concealed by the deceased herself. Dying declaration Ex.PW3/A has not been believed by the court. Therefore charge under Section 498-A cannot be said to be proved. Benefit of doubt is given to the accused. Accused is acquitted from the charge under Section 302/304-B and 498-A IPC. His bail bond and surety bond stand cancelled and discharged. File is consigned to record room.
Announced in open court (ATUL KUMAR GARG)
on 28th January 2014 Addl. Sessions Judge-03 (Central)
Delhi
FIR No. 06/11 Page No.23
State Vs. Rafiuddin @ Rafe
FIR No. 06/11 Page No.24
State Vs. Rafiuddin @ Rafe