Delhi District Court
State vs Giriraj Kishore Bhardwas on 9 April, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28270/2016)
FIR No. 130/2014
Police Station Sarai Rohilla Railway Station.
Charge-sheet filed under Sections 302/174A IPC
Charges framed against accused 302/174A IPC.
State Versus Giriraj Kishor Bhardwaj @ Shaym Naga
S/o Sh. Barhamdev,
R/o B-68, Parves Nagar,
Dabas Mubarakpur, Delhi
Also at:-
A-43, Ram Vihar, 60 foota road,
Loni, Ghaziabad, Uttar Pradesh.
...Accused.
Date of Institution of case 09.09.2015
Date of Arguments 04.04.2025
Judgment reserved on 04.04.2025
Judgment pronounced on 09.04.2025
Decision Convicted
JUDGMENT
1. Accused Giriraj Kishor Bhardwaj @ Shyam Naga is facing trial for the offences punishable under Sec. 302/174A IPC. The story of the prosecution is that on 24.09.2014 at about 09:30 am at FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 1 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga DISDC, Railway Track, 15 km milestone, Miyawali Nagar, Sarai Rohilla Railway Station, accused Giriraj Kishor Bhardwaj @ Shyam Naga committed murder of his wife namely Smt. Kusum by pouring upon her some inflammatory liquid and burning her with a match stick. Further accused failed to appear before the Court on specified date and time as required by proclamation published under Sec. 82(1) Cr.PC issued by the Court of Ld. MM (Central), Tis Hazari Courts, Delhi and he was declared Proclaimed Offender by the said court vide order dated 27.05.2015.
2. The brief facts which are borne out from the record of the case are that on 24.09.2014 on receipt of DD No. 11PP, Ex. PW-24/A, regarding setting ablaze of a lady namely Kusum, W/o Sh. Giriraj Kishor Bhardwaj on railway track between Mangolpuri and Nangloi Railway Station from PS Miyanwali Nagar, PW-33 IO/Retd. SI S. P. Singh along with PW-10 Inspector Hari Kishan, Ct. Rajesh & Ct. Kishan went to spot of incident i.e. Railway Track behind DSIDC Industrial Area, Miyanwali Nagar, where SHO PS Miyanwali along with his staff met them. Thereafter, PW-18 ASI M. K. Khan of PS Miyanwali, to whom call was assigned from PS Miyanwali, handed over a written statement of victim/deceased Kusum, Ex. PW-18/B to PW-33 IO/Retd. SI S. P. Singh as the incident had occurred within the jurisdiction of PS Sarai Rohilla Railway Station. Thereafter, IO prepared rukka, Ex. PW-33/A on the basis of statement of victim/deceased Kusum and got the present FIR registered under Sec. 307 IPC through Ct. Rajesh.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 2 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga During investigation, IO got inspected the spot of incident through Crime Team and prepared site plan, Ex. PW-33/B at the instance of one eyewitness namely PW-6 Sh. Pramod Kumar. IO also seized the exhibits i.e. one pair of rexin slipper, one empty quarter bottle, burnt cloth of deceased and one matchbox from the spot of incident vide seizure memos Ex. PW4/A and Ex. PW4/B. During investigation, IO also recorded statement of eyewitness Sh. Pramod Kumar,father of deceased namely Sh. Mahipal Singh, mother of deceased namely Smt. Kunti Devi and Smt. Naresh Kumari. During investigation, IO deposited the exhibits to FSL Rohini and also tried to trace the accused but accused could not be traced and thereafter IO obtained NBWs against him. IO got recorded statement of deceased Kusum under Sec. 164 Cr.PC by the Ld. MM. On 30.11.2014, injured/victim Kusum succumbed to the injuries and further investigation was entrusted to PW-10 Inspector Hari Krishan.
3. During investigation, IO got conducted the postmortem of deceased Kusum and after postmortem the dead body was handed over to her family members. IO also collected the postmortem report of deceased Kusum, got prepared the scaled site plan, Ex. PW-10/A and he tried to search the accused but he was not found and thereafter accused was declared proclaimed offender by the order of Ld. MM dated 27.05.2015. Thereafter on 09.06.2015, information regarding arrest of accused by Crime Branch was received, vide DD No. 2A at PS which was entrusted to PW-33 SI S. P. Singh. Thereafter PW-33 SI S. P. Singh filed an application FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 3 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga for formal arrest and interrogation of accused, before Ld. Concerned Court which was allowed by Ld. MM.Thereafter, PW-33 SI S. P. Singh interrogated accused Giriraj Kishor Bhardwaj and arrested him in the present case. PW-33 SI S. P. Singh also recorded his disclosure statement. During investigation, IO obtained CDRs from mobile companies, FSL report, recorded statements of witnesses and on completion of investigation, charge-sheet was filed by the IO before the Court through the SHO.
4. Vide order dated 0 4 . 0 9 . 2 0 1 5 , copy of the charge-sheet under Section 207 Cr.P.C was supplied to the accused and the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 22.09.2015 the Ld. Predecessor Court was pleased to frame charges under Sec. 302/174A IPC against accused Giriraj Kishor Bhardwaj @ Shyam Naga, to which he pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 35 witnesses. The accused has not examined any defence witness in his defence. The testimonies of prosecution witnesses along with its nature has been discussed briefly in the following paragraphs:-
7. PW-1 HC Manoj Kumar, was the Duty Officer who proved DD No. 15A regarding information from PCR that acid had been FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 4 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga thrown on a lady at G-9, Gate No. 1, Udhyog Nagar as Ex. PW-1/A. In his cross-examination, he denied the suggestion that DD No. 15A was ante-timed.
8. PW-2 Sh. Mahipal Singh, was the father of deceased/victim Kusum. He deposed that his deceased/victim Kusum was married to the accused about 12 years ago from the date of incident and she was having two sons aged about 10 years and 7 years. He further deposed that accused was a mason and he used to consume alcohol and drugs and he also used to sell those to others. He further deposed that accused used to beat his daughter and also was not giving any money to meet daily household expenses. He further deposed that his daughter Kusum Lata was earning and he also used to help her financially. He also deposed that she was residing separately along with her two sons from last one year prior to the incident. He further deposed that on 24.09.2014, in the morning hours, he had taken his wife to a doctor where his daughter-in-law Hem Lata came to him and told him that Kusum Lata had been burnt by the accused and had been taken to Sanjay Gandhi Memorial Hospital. He also deposed that at Sanjay Gandhi Hospital, his daughter deceased/victim Kusum Lata told him that she had been burnt by the accused. He proved the dead body identification statement and dead body handing over memo as Ex. PW-2/A & Ex. PW-2/B. In his cross-examination, he deposed that he and his wife were getting old age pension totaling Rs. 9,000/- approximately. He also deposed that he was not keeping any account of the money given by him to Kusum Lata to support her.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 5 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga He also deposed that after Kusum Lata started residing separately from the accused, she had started living in a rented accommodation which was close to his house and the rent was Rs. 1,000/- per month. He also deposed that Kusum Lata had filed a complaint to the police regarding harassment by accused and he had not given documents relating to said complaint to the police during investigation and they were lying with the Advocate. He denied the suggestion that accused and Kusum Lata were living together and were having cordial relationship. He also denied the suggestion that accused had gone to attend satsang of Sh. Ashutosh Maharaj at Jatkhor, Haryana, two days prior to occurrence.
9. PW-3 Sh. Naresh Gaur, was the brother of deceased/victim Kusum. He deposed that the relationship of accused with his sister was not good and he used to beat Kusum after consuming liquor and he did not do any work. He further deposed that for last few days, his sister Kusum was residing separately from accused in his neighbourhood of H. No. B-67 and she used to work in a sleeper/chappal factory. He also deposed that accused used to harass his sister even at H. No. B-67 and he used to run away when they interfered in the matter. He also deposed that accused Giriraj was also residing in the same locality. He further deposed that on 24.09.2014 at about 09:30 am, his sister Kusum informed his wife Hemlata on telephone that accused Giriraj was following her and after taking her near railway line, he had poured acid on his sister Kusum. He further deposed that his wife informed his father in this regard and his father went to hospital after receiving information, FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 6 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga he also reached the hospital. He further deposed that his sister Kusum was referred to Safdurjung Hospital where she expired on 30.11.2014. He proved dead body identification memo of deceased as Ex. PW-3/A. In his cross-examination, he deposed that deceased used to go for her work around 08:00 am and she used to return till 06:30 normally but sometime she came late. He also deposed that first of all, he had gone to Sanjay Gandhi Hospital and then went to his house and then went to Safdarjung Hospital where his sister was found admitted in ICU. He also deposed that he did not talk to his sister on that day as she was unconscious. He also deposed that his statement was recorded in Safdarjung Hospital in the evening, after one or two days. He also deposed that the mobile number of his wife was 9711460214 and the mobile number of his sister Kusum was 9718807182 and both the mobile numbers were issued on his ID. He denied the suggestion that he was using both the mobile numbers. He also denied the suggestion that no information was given by his sister to his wife or that he was deposing falsely.
10. PW-4 Ct. Naresh Kumar, deposed that on 24.09.2014 he joined the investigation in the present case and he along with SI S. P. Singh and Ct. Krishan reached at the spot. He further deposed that HC M. K. Khan and SHO PS Mianwali Nagar met with the IO and handed over one hand bag, Ex. P-1 to him, which was seized by the IO vide seizure memo Ex. PW-4/A. He also deposed that one pair sleeper/chappal of black colour, Ex. P-5, one match box, Ex. P-4, one empty quarter bottle on which impact grain wishkey FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 7 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga for sale in Haryana only, Ex. P-2 and some pieces of burnt clothes, Ex. P-3 were also seized by the IO from the spot of incident vide seizure memo Ex. PW-4/B. He further deposed that at about 02:30 pm, Ct. Rajesh came to the spot and handed over one DD to the IO and after making endorsement, SI S. P. Singh got the case registered through Ct. Rajesh and he also prepared site plan. He further deposed that during investigation, accused Giriraj was produced in the court by Crime Branch and after taking permission from the Ld. Concerned court, accused was arrested vide arrest memo Ex. PW-4/C and he also made his disclosure statement Ex. PW-4/D. In his cross-examination, he deposed that some public persons were present at the spot and they were 8-10 in number. He also deposed that some public persons were requested to become the witness in this case but none agreed. He also deposed that the articles were recovered at the instance of HC M. K. Khan. He also deposed that Crime Team was called in his presence but no fingerprint was lifted from any articles. He denied the suggestion that the entire case property was planted.
11. PW-5 Smt. Kunti was the mother of deceased. She deposed that deceased Kusum was married to accused Giriraj. She also deposed that accused Giriraj was working as mason and was habitual of consuming liquor as well as other drugs like Sulpha, Ganja and his daughter Kusum objected for the same. She further deposed that accused used to give beatings to her daughter and he used to give filthy abuses to her during her lifetime. She further deposed that accused was not giving money to his daughter for FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 8 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga running household and her daughter started working at Street No. 4 in a factory. She further deposed that on 24.09.2014 when she returned to her house, her daughter-in-law namely Hemlata told her that she had received a telephone call from Kusum who told her that accused Giriraj had put something on her body at railway line and had set her on fire by using a matchstick. She further deposed that after sometime, her husband also came to the house and she had also visited the hospital. On putting a leading question by Ld. Addl. PP for the State, she admitted that in his presence threat was given by Giriraj to her daughter and many times accused had threatened his daughter to kill her and her husband and she tried to make him understand but in vain. In her cross- examination, she deposed that her husband had made complaint to the police when the accused threatened to kill her daughter Kusum but police did not take any action. She also deposed that in the said rented accommodation her daughter used to live alone with her children whereas accused used to live in a rented shop. She also deposed that during the day hours when Kusum used to be at her work place, her children stayed with her. She also deposed that Kusum was earning Rs. 5,000/- per month and she was giving rent of Rs. 700/- per month and children of Kusum were studying in government school. She denied the suggestion that there were property dispute between her children. She denied the suggestion that Kusum got married to one Raj Kumar, resident of Badayun or that she lived with Raj Kumar for about two years at Uttam Nagar, Delhi.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 9 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
12. PW-6 Sh. Pramod Kumar was the eyewitness of alleged incident. He deposed that he worked in a factory situated at DSIDC. He further deposed that he did not remember the date, month and year but the incident had taken place about two years back. He also deposed that on that day at about 08:30 PM, he had gone behind DSIDC shed under railway line at vacant place in order to ease him out. He further deposed that he heard voice of a woman who was loudly saying ' hai papa, hai daiya'. He further deposed that he became frightened and went away from there and thereafter he got prepared and proceeded to his work place and while he was on the way to his factory, some person told him that police was searching him. He also deposed that police made inquiry from him and he was relieved thereafter. He could not identify the accused in the court during his deposition. This witness was cross-examined by Ld. Addl. PP for the State in which he did not support the story of prosecution at all and this witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-6/A on various points. In his cross-examination, he admitted that accused had not contacted him at any point of time regarding this case and he was making his statement today out of his own free will. He also admitted that he had not put his thumb impression or sign on any document of this case.
13. PW-7 Smt. Naresh Kumari, deposed that she used to run tea stall in front of gate of factory no. H-1, DSIDC Shed, Miyawali Nagar, Delhi. She further deposed that she did not remember the date, month or year but about two years back while she was sitting FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 10 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga at her tea shop at about 09:00-09:15 am, she saw one female under flames who came to her shop and she was crying for help. She also deposed that she asked for her to give her chunni as her clothes were got burnt and she gave her chunni to her. This witness was cross-examined by Ld. Addl. PP for the State in which she deposed that she did not remember if the said woman had told her 'Behanji mere pati ne mujhe jala diya, mere kapdre jal gaye, mujhe apni chunni de do' and said woman had taken the chunni which she was wearing at that time. She admitted that the said woman had made a telephone call to police from her mobile phone in her presence and after some time police had come to her shop. She also admitted that the said woman was not known to her and was taken by police vehicle to the hospital. She denied the suggestion that the complete facts were duly remembered by her and she was not disclosing some facts on the ground of lapse of memory purposely in order to save the accused from punishment being won over by him. In his cross-examination, she deposed that it takes about five minutes on foot in reaching the railway line from her shop. She also deposed that there was no shop or house in between railway line and her shop. She admitted that neither accused nor his family members or any other person on his behalf ever contacted her regarding this case.
14. PW-8 Sh. Pawan Dabas, deposed that he was doing business of property dealing in the area of Meer Vihar, Kanjhawala, Mubarikpur. He further deposed that one Gulshan used to do work of the whitewash in the area of Mubarikpur and he asked him to FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 11 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga provide someone for whitewash of his house. He further deposed that Gulshan had sent accused Giriraj for whitewash of his house and told him that Giriraj was his brother-in-law. He further deposed that on 24.09.2014, while whitewash of his house was going on, accused Giriraj came to his house at around 08:00-09:00 am and told him that he will come later on for whitewash, however, Gulshan and another one labour were doing whitewash on that day but accused did not turn up on the day. He further deposed that at around 06:00-07:00 pm, he made call to the accused for making payment to Gulshan and another labourer on which accused Giriraj told him that he would pay Rs. 300/- to Gulshan and Rs. 500/- to another labourer. He further deposed that when he asked accused as to why he did not come today for whitewash, the accused told him that a quarrel took place between him and his wife and he had thrown acid upon his wife. He further deposed that thereafter he abused him and disconnected the phone. He further deposed that after sometime, wife of Gulshan came to his house and told that accused Giriraj had thrown acid upon his wife (sister of Gulshan) thereafter he asked Gulshan to leave the work and go to see his sister. In his cross-examination, he deposed that he had no document to show that Gulshan was doing white wash on 24.09.2014. He also deposed that he did not make call to Police as he did not know the address of accused Giriraj. He also deposed that he had not disclosed the mobile number of accused Giriraj to the Police. He denied the suggestion that nothing has happened in his presence or that he had not made any call to the accused Giriraj on 24.09.2014 and that he did not disclose anything on the phone.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 12 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga This witness was recalled for his further examination under Sec. 311 Cr.PC vide order dated 10.10.2017 in which he deposed that he was using mobile phone no. 9212287068 for the last 8-9 years and the said mobile phone connection was taken in the name of Smt. Jivni Devi, W/o Sh. Mange Ram, grandmother of his friend Vikas Dabas. He also deposed that on 24.09.2014 he made call to accused Giriraj by the said mobile phone. In his further cross- examination, he deposed that he did not remember the said date when he started using the said mobile phone. He denied the suggestion that he did not make any call on 24.09.2014 to accused Giriraj. PW- Smt. Jivni Devi could not be examined as PW as report was received that she was 86 years old and bedridden.
15. PW-9 Inspector Harpal Singh, was the SHO PS Sarai Rohilla Railway Station GRP. He deposed that on 24.09.2014 an information was received from Safdarjung Hospital that a lady in injured/burnt condition had been admitted in the hospital accordingly SI S. P. Singh went to the hospital for obtaining statement of said lady but she was not fit for statement. He further deposed that on 30.11.2014, information was received at PS regarding death of victim Kusum in the hospital and thereafter he added Sec. 302 IPC in the case diary. He further deposed that on 01.12.2014 he got identified the dead body of deceased through her father and brother vide identification statements, Ex. PW-2/A & Ex. PW-3/A and conducted inquest proceedings, Ex. PW-9/A along with other documents, Ex. PW-9/B. He proved copy of DD No. 17A, FIR No. 130/2014 and his request letter for conducting FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 13 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga autopsy as Ex. PW-9/C to Ex. PW-9/E. He also deposed that since HC Mohd. Kaunain Khan from PS Miyan Wali Nagar had recorded the statement of victim at Sanjay Gandhi Hospital, therefore, he did not record her statement again. In his cross- examination, he deposed that he himself neither recorded statement of Kusum nor her statement was ever recorded in his presence.
16. PW-10 Inspector Hari Krishan was the second IO in the present case. He narrated about proceedings conducted by him after assignment of further investigation of this case on 05.12.2014 and proved scaled site plan and FSL result as Ex. PW-10/A and Ex. PW-10/B. In his cross-examination, he denied the suggestion that he did not collect the scaled site plan or CDRs. He also denied the suggestion that the scaled site plan was prepared in the police station without actually inspecting the site.
17. PW-11 Ms. Hemlata, was the sister-in-law of deceased Kusum. She deposed that on 09.11.2014, she received a call on her mobile phone made by deceased Kusum, who told her that her husband accused Giriraj was chasing her in the bus and she asked her to enter into the crowd. She further deposed that after sometime, she again called her and informed that her husband Giriraj had thrown acid upon her. She also deposed that she told the said fact to her husband telephonically. On putting a leading question by Ld. Addl. PP for the State, she admitted that she received the call of her sister-in-law on 24.09.2014. In her cross-
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 14 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga examination, she deposed that she received the call of her sister-in- law Kusum at around 10:00 am and after attending the call of her sister-in-law Kusum, she made call to her husband and informed about the incident. She also deposed that after knowing the said incident, her father-in-law left the house for hospital. She also deposed that Kusum did not make call to any other her family member on that day. She admitted that her sister-in-law and accused Giriraj were residing separately but she denied the suggestion that her sister-in-law Kusum got married with another person namely Raj Kumar. She also denied the suggestion that her sister-in-law Kusum was residing with the said Raj Kumar on the day of the incident.
18. PW-12 Dr. Mukesh Kumar Bansal, has proved his detailed postmortem report of deceased Kusum as Ex. PW-12/A. He also opined about that death of deceased was due to septicemia as a result of antemortem thermal burn injuries involving about 45% of total body surface area which were sufficient to cause death in ordinary course of nature. This witness was not cross-examined on behalf of accused despite opportunity given to him.
19. PW-13 Dr. M. Das, CMO, Sanjay Gandhi Memorial Hospital deposed that on 24.09.2014, he examined Kusum Sharma and found burn injury on her face, neck, head, back and both arms i.e. approximately 40% over her total body. He also deposed that after initial examination and treatment, patient was referred to Surgery Department. He also deposed that patient was fit for FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 15 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga statement at the time of her medical examination. He proved MLC of deceased Kusum as Ex. PW-13/A. In his cross-examination, he deposed that in his presence, statement of injured Kusum Sharma was not recorded. He also deposed that initially, injured herself disclosed about the burn injuries.
20. PW-14 Dr. Linga Raj Sahoo, Senior Scientific Officer has proved his detailed report Ex. PW-10/B regarding examination of exhibits. He also deposed that on the Gas Chromatography examination residue of Kerosene/Diesel/Petrol could not be detected in exhibits '1', '2', '3' & '4'. This witness was not cross- examined on behalf of accused despite opportunity given to him.
21. PW-15 Dr. Jagminder Singh, Addl. Senior Civil Judge has proved the proceedings and recording of statement of victim/deceased Kusum under Sec. 164 Cr.PC alongwith certificate Ex. PW-15/A to Ex. PW-15/F. In his cross-examination, he deposed that doctor had not given any written certificate regarding fitness/unfitness of the patient to make a statement before he recorded the statement of victim.
22. PW-16 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. has proved scanned copy of CAF, voter id card of Naresh Kumar, CDR for the period 01.07.2014 to 15.10.2014 of mobile phone no. 9718807182 issued in the name of Naresh Kumar along with certificate under Sec. 65B of Indian Evidence Act as Ex. PW-16/A to Ex. PW-16/D. In his cross-examination, he deposed that the FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 16 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga system by which he had taken the printout was in his exclusive possession. He denied the suggestion that CDR given by him were manipulated.
23. PW-17 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Ltd. has proved photocopy of CAF, voter Id card of Naresh Kumar, CDR for the period 01.07.2014 to 15.10.2014 of mobile phone no. 9711460214 issued in the name of Naresh Kumar along with certificate under Sec. 65B of Indian Evidence Act as Ex. PW-17/A to Ex. PW-17/D. He also proved photocopy CAF, voter id card of Giriraj Sharma, CDR for the period 01.07.2014 to 15.10.2014 of mobile phone no. 8376863561 issued in the name of Giriraj Sharma along with certificate under Sec. 65B of Indian Evidence Act as Ex. PW-17/E to Ex. PW-17/H. In his cross-examination, he denied the suggestion that CDR produced by him were manipulated.
24. PW-18 ASI M. K. Khan deposed that on 24.09.2014 he was posted at PS Miyawali as Head Constable. He further deposed that on that day at around 09:45 am, on receiving DD No. 15A, Ex. PW-1/A, he along with Ct. Sandeep went to Gate No. 1, Railway Crossing, DLSA Udyog Nagar where he came to know that someone had thrown acid on one lady and she was shifted to Sanjay Gandhi Hospital by PCR. He further deposed that he went to Sanjay Gandhi Hospital where he collected MLC of injured Smt. Kusum, W/o Giriraj and on the MLC doctor had opined that injured was fit for statement and she was referred to Safdarjung FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 17 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga Hospital. He further deposed that doctor had also handed over sealed pullanda of burnt cloth of injured which was seized by him vide seizure memo Ex. PW-18/A. He also deposed that thereafter he reached Safdarjung Hospital where injured Smt. Kusum was found admitted in the burn ward where he recorded her statement Ex. PW-18/B. He further deposed that she was having one burnt black colour purse containing a mobile phone make Spice and one currency note of Rs. 100/-, which was seized by him vide seizure memo Ex. PW-18/C. He further deposed that from Safdurjung Hospital, he along with Ct. Sandeep return to the spot of incident where, on direction of SHO PS Mianwali and PS Sarai Rohilla Railway Station, he handed over the statement of injured Kusum along with aforesaid pullanda of purse to SI S. P. Singh of PS Sarai Rohilla Railway Station as the place of incident came under the jurisdiction of PS Sarai Rohilla Railway Station. He also deposed about seizure of one pair slipper of the lady, one empty quarter bottle of liquor and one match box from the spot and he proved their seizure memo Ex. PW-4/B. In his cross-examination, he deposed that he had not recorded the statement of lady who helped the victim by putting her chunni on the body of victim. He also deposed that he recorded statement of victim in the burn patient's ward in Safdurjung Hospital at about 11:00-11:30 am. He also deposed that a black colour rexine purse was taken into possession by him at Safdurjung Hospital. He also denied the suggestion that the said purse was handed over to him later on by the family members of the deceased or that its seizure memo was prepared later on. He denied the suggestion that the recovered slippers and FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 18 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga quarter bottles were thrown by the passengers. He denied the suggestion that no recovery was effected from the spot in his presence.
25. PW-19 Ct. Shashi Dev, deposed that on 10.06.2015 he joined the investigation in the present case along with IO. He further deposed that on that day, accused Giriraj Kishor led them to the spot of incident i.e. Railway line, near 15 km mile stone, DISDC, Mianwali Nagar and disclosed that he had set his wife on fire at that place only and he had thrown the empty quarter bottle of petrol on the railway line. He proved pointing out memo of spot of incident by the accused Ex. PW-19/A. In his cross-examination, he deposed that he did not remember the DD number vide which departure was made. He also deposed that no public person was available at the spot at that time. He denied the suggestion that no pointing out was done by the accused or that the aforesaid memo was prepared by the IO while sitting in the PS.
26. PW-20 Ct. Sudhir, deposed that on 17.10.2014 he deposited four sealed cloth parcels at FSL Rohini vide RC No. 55/21/14, Ex. PW-20/A. He proved acknowledgment issued by FSL regarding deposit of case property as Ex. PW-20/B. This witness was not cross-examined on behalf of accused despite opportunity given to him.
27. PW-21 Ct. Naveen, was the Photographer at Mobile Crime Team, Central. He proved photographs of the spot Ex. PW-21/A-1 FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 19 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga to Ex. PW-21/A-7. He also proved negatives of photographs Ex. PW-21/B-1 to Ex. PW-21/B-2. This witness was not cross- examined on behalf of accused despite opportunity given to him.
28. PW-22 HC Kuldeep, was the Duty Officer at PS Sarai Rohilla Railway who recorded DD No. 17A, Ex. PW-22/A on receiving information regarding death of Kusum from duty Ct. Ranjeet at Safdurjung Hospital. This witness was not cross- examined on behalf of accused despite opportunity given to him.
29. PW-23 HC Ram Gopal, was the Duty Officer at PS Sarai Rohilla Railway Station who recorded DD No. 2A, Ex. PW-23/A on receiving information about arrest of accused Giriraj Kishore by Crime Branch. In his cross-examination, he denied the suggestion that DD No. 2A was ante-dated and ante-timed.
30. PW-24 WHC Neelam Sharma, was the DD Writer at PP Kishan Ganj under PS Sarai Rohilla Railway Station who recorded DD No. 11PP, Ex. PW-24/A on receiving wireless message from control room by HC Manoj from PS Miyawali Nagar regarding admission of Kusum, W/o Giriraj in Sanjay Gandhi Hospital in burn condition and the incident had taken place at behind of DSIDC Udhyog Nagar between Mangolpuri and Nangloi railway station. This witness was not cross-examined on behalf of accused despite opportunity given to him.
31. PW-25 ASI Hem Chand, was the duty officer who proved FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 20 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga copy of FIR No. 130/2014, certificate under Sec. 65B of The Indian Evidence Act and his endorsement on rukka as Ex. PW-25/A to Ex. PW-25/C. In his cross-examination, he deposed that at the time when he received rukka, he informed the SHO who was present in the PS. He also deposed that SHO did not make any departure entry in his presence for visiting the spot. He denied the suggestion that FIR was ante-dated and ante-timed.
32. PW-26 Retd. ACP Harish Chander Pathak, was the Nodal Officer at CPCR, PHQ. He proved PCR Form No. 24SEP141370149 dated 24.09.2014 as Ex. PW-26/A as well as certificated under Sec. 65B of The Indian Evidence Act as Ex. PW-26/B. This witness was not cross-examined on behalf of accused despite opportunity given to him.
33. PW-27 SI Abhay Singh, was the PCR official. He deposed that on 24.09.2014 on receiving DD No. 11PP Kishanganj, PS Sarai Rohilla, he went to the spot of incident i.e. railway line, between Nangloi Railway Station and Udyog Vihar where a dead body of one lady namely Kusum was found at the spot and he shifted the same to SGM Hospital, Mangolpuri in PCR. In his cross-examination he deposed that he came to know about the fact that Kusum, W/o Giriraj par uske pati ne tejaab daal kar aag' vide DD No. 11PP. He admitted that he did not have any personal knowledge about the incident.
34. PW-28 Sh. Rajeev Ranjan, Nodal Officer, TATA Tele FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 21 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga Services Ltd. has proved CAF, voter id card of subscriber along with senior citizen card, CDR of mobile phone no. 9212287068 along with certificate under Sec. 65B of Indian Evidence Act as Ex. PW-28/A (colly). This witness was not cross-examined on behalf of accused despite opportunity given to him.
35. PW-29 SI Ajay Kumar, deposed that on 08.06.2015 he was posted at Crime Branch, Central Range. He further deposed that on that day, he received secret information about a person who was wanted in a murder case of his wife would come near Nigambodh Ghat, Hanuman Mandir at about 09:00 pm. He deposed about the proceedings conducted by him for the arrest of accused. He proved arrest memo and personal search memo of accused Giriraj under Sec. 41.1C Cr.PC as Ex. PW-29/A & Ex. PW-29/B. He also proved seizure memo of belongings of accused, DD No. 17 regarding arrival of secret informer as well as his departure, DD No. 19 regarding his arrival and Kalandra as Ex. PW-29/C to Ex. PW-29/F. In his cross-examination, he admitted that at the time of apprehension of accused at the the spot, it was heavy rush. He also admitted that at the time of apprehension and arrest, accused fully cooperated with the police party.
36. PW-30 SI Ravi Dutt, deposed that on 11.03.2014 he was handed over the NBWs of accused Giriraj and thereafter he along with Ct. Naresh went to the house of accused i.e. A-43, 60 foota road, Rama Vihar, Roini Road, Ghaziabad, UP where accused was not found. He proved his report in this regard as Ex. PW-30/A. He FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 22 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga also deposed that on 17.04.2015, he also went to the house of accused for execution of process under Sec. 82 Cr.PC. He narrated about proceedings conducted by him at the address of accused regarding execution of process under Section 82 Cr.PC and proved his report in this regard Ex. PW-30/B. This witness was not cross- examined on behalf of accused despite opportunity given to him.
37. PW-31 ASI Madhusudan, was the MHC(M) who proved the entries made by the him in register no. 19 and 21 exhibited as Ex. PW-31/A, Ex. PW-31/B. This witness was not cross-examined on behalf of accused despite opportunity given to him.
38. PW-32 ASI Ramesh Chand, was the process server who executed the process under Sec. 82 Cr.PC against accused Giriraj Kishore at his address of native village at Bulandshahar, UP. He proved his departure entry, entry made in local police station, arrival entry and his detailed report regarding execution of 82 Cr.PC as Ex. PW-32/A to Ex. PW-32/D. This witness was not cross-examined on behalf of accused despite opportunity given to him.
39. PW-33 Retd. SI S. P. Singh is the first IO in the present case. He deposed that on 24.09.2014 on receipt of DD No. 11PP, Ex. PW-24/A, regarding setting ablaze of a lady, he along with Inspector Hari Kishan, Ct. Rajesh & Ct. Kishan went to spot of incident i.e. Railway Track behind DSIDC Industrial Area, Miyanwali Nagar, where SHO PS Miyanwali along with staff met FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 23 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga them. He further deposed that HC M. K. Khan of PS Miyanwali, to whom call was assigned from PS Miyanwali, handed over a written statement of deceased Kusum, Ex. PW-18/B to him. He further deposed that he prepared rukka, Ex. PW-33/A on the basis of statement of deceased and got the present FIR registered through Ct. Rajesh. He further deposed that he got inspected the spot of incident through Crime Team and prepared site plan, Ex. PW-33/B. He further deposed that he also seized the exhibits i.e. one pair of rexin slipper, one empty quarter bottle, burnt cloth of deceased and one matchbox vide seizure memo Ex. PW-4/A. He further deposed that he also moved application, Ex. PW-33/C to CMO, Safdarjung Hospital for obtaining statement of injured/deceased but patient was not conscious and not fit for statement at that time. He also deposed that on 30.11.2014 the injured lady succumbed to the injuries and further investigation was assigned to Inspector Hari Krishan. He narrated about receiving information from Crime Branch about apprehension of accused. He also proved arrest memo and disclosure statement of accused Giriraj as Ex. PW-4/C & Ex. PW-4/D. He also proved pointing out memo Ex. PW-19/A of spot of incident by accused. He correctly identified accused as well case properties during his testimony in the court. In his cross-examination, he deposed that the injured had already gone to hospital before his reaching at spot. He also deposed that he did not record the statement of the person who made call which was received at PP Kishanganj. He also deposed that police official of PS Miyanwali Nagar had not handed over any statement of the caller whose information was received in FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 24 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga PS Miyanwali Nagar. He also deposed that no chance print could be developed by the Crime Team officials from the exhibits especially from empty bottle and matchbox lying at the spot. He denied the suggestion that litter was usually thrown away by the passers-bye. He denied the suggestion that it was factory area at the spot or that he did not inquire or record statement of shopkeepers/factory workers/public persons intentionally. He admitted that he could not record statement of injured since she remained unfit.
40. PW-34 Retd. SI Om Prakash, has proved scaled site plan of the spot prepared by him at instance of SI S. P. Singh as Ex. PW-34/A. In his cross-examination, he deposed that he did not remember exact time of visiting the spot. He denied the suggestion that he had destroyed rough notes on the asking of the IO or that prepared false scaled site plan at the instance of IO.
41. PW-35 Inspector Devender Singh, was the In-charge Mobile Crime Team. He proved his detailed report Ex. PW-35/A. In his cross-examination, he deposed that he did not remember as to whether public person including family members of deceased were present at the spot or not. He denied the suggestion that there was nothing at the crime scene except pair of black ladies chappal. He also deposed that he did not remember whether IO had recorded statement of any person at the spot in his presence.
42. After closing of Prosecution Evidence, statement of accused FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 25 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga Giriraj Kishore Bhardwaj @ Shyam Naga was recorded under Sec. 313 Cr.PC, wherein he denied all the charges against him. He claimed that his wife deceased Kusum had again married with one Raj Kumar and she was residing with him in his house during the existence of his marriage with her and he had raised objection for the same but later on, he left the matter of his wife but he used to go to the house of his in-laws to meet his children where they were residing. He further claimed that his in laws had falsely implicated him in the present case due to the reason that he visited the house of his in-laws to meet his minor children for which his mother-in- law did not allow. Accused did not lead any defence evidence.
43. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Ms. Kanchan Dewan, Ld. Deputy Legal Aid Defence Counsel for accused Giriraj Kishore Bhardwaj @ Shyam Naga.
44. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that victim/deceased Kusum Lata has given two dying declaration in which she has specifically named accused Giriraj Kishor and both are dying declarations are consistent and hence these should be relied upon. He also argued that motive of the commission of offence that accused was not having cordial relationship with deceased Kusum and both were living separately FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 26 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga and this fact has been brought on record by the prosecution through the testimonies of PW-2 Sh. Mahipal Singh, PW-3 Sh. Naresh Gaur, PW-5 Smt Kunti and PW-11 Smt. Hemlata. He further argued that the accused has made extra judicial confession to PW-8 Sh. Pawan Dabas and same has been duly proved by the prosecution. He further argued that the defence taken by the accused are contradictory in nature and are without any substance. He also argued that the accused did not appear before the Court after the issuance process under Section 82 Cr.P.C against him and he has not taken any defence in this regard. He also argued that the all the proceedings have been duly proved by the police witnesses and all the prosecution witnesses have also corroborated the versions of each other and hence the accused Giriraj Kishore Bhardwaj @ Shyam Naga should be convicted under all the Sections of law under which charges have been framed against him.
45. Per contra, Ld. Deputy Legal Aid Defence Counsel for accused argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate her point, she argued that the investigation in the present case has been conducted in an arbitrary manner. She also argued that no chance prints could be lifted from the articles found at the spot of incident. She argued that there is no eye witness of the alleged incident. She also argued that the case property has been planted upon the accused. She also argued that deceased was married to one Raj Kumar during the subsistence of her first marriage and she was FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 27 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga residing with Raj Kumar at the time of incident. She also argued that no CCTV footage of alleged incident has been collected by the IO. She also argued that the prosecution is not clear as to whether acid was used or kerosene oil was used for the commission of offence. She also argued that prosecution has failed to prove any motive for the commission of offence. She also argued that accused had changed his address and there was no fault on his part and he was declared PO. She also argued that the testimonies of prosecution witnesses are suffering from material contradictions. She also argued that since the prosecution has failed to prove its case against the accused beyond reasonable doubt, accused Giriraj Kishore Bhardwaj @ Shyam Naga should be acquitted under all the sections of law under which charges have been framed against him.
46. In the present case, charges under 302/174 A IPC have been framed against the accused. These Sections have been elaborated as under:-
Section 302 IPC provides punishment for the commission of offence of murder which has been defined U/s 300 IPC.
300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly- If it is done with the intention of causing FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 28 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 When culpable homicide is not murder. Culpable homicide is not murder if the offendor, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person my mistake or accident.
The above exception is subject to the following provisos:-
First-That the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 29 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga servant in the lawful exercise of the powers of the public servant.
Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanations: Whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact.
Exception 2: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm then is necessary for the purpose of such defence.
Exception 3: Culpable homicide is not murder if the offendor, being a public servant or adding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4: Culpable homicide is not murder if it is committed without pre meditation in a sudden fight in FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 30 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga the heat of passion upon a sudden quarrel and without the offendor's having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his own consent.
174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974:-
Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub- section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
47. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Deputy Legal Aid Defence FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 31 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga Counsel for accused Giriraj Kishore Bhardwaj @ Shyam Naga.
48. The only eye witness PW-6 Sh. Pramod has turned hostile and has not supported the case of prosecution. The present case is based on the dying declarations of the deceased/ victim Ms. Kusum, extra judicial confession made by the accused, medical evidence on record and the circumstantial evidence. Thus, to reach to a just decision, this court has to appreciate the dying declarations of the deceased/ victim Ms. Kusum, medical evidence on record and the circumstantial evidence.
49. The complainant in the present case is deceased/victim Ms. Kusum who could not be examined as prosecution witness as she expired during her treatment in the hospital on 30.09.2014. The FIR in the present case was registered on the statement of deceased/ victim Ms. Kusum Ex. PW 18/B which was recorded by PW-18 ASI M.K. Khan (the then HC) on the date of incident itself and has been duly proved by him. The deceased/victim Ms. Kusum has also given her statement u/s 164 Cr.P.C Ex. PW15/D on 16.10.2014. to the Ld. MM. Both the statements have been duly signed by deceased/ victim Ms. Kusum.
50. The two dying declaration i.e. dying declaration recorded by HC M.K. Khan Ex. PW18/B and the dying declaration in the form of statement under Section 164 Cr.P.C recorded by Dr. Jagminder Singh, Ld. MM are hereby reproduced for the proper appreciation of evidence.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 32 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
51. The dying declaration of deceased/ victim Ms. Kusum Ex. PW18/B which has been duly signed by her and has been duly attested by PW-18 ASI M.K. Khan on the basis of which present FIR has been registered reads as under:-
"Bayan kiya ki mein uprokt pata pe rehti hu aur udyog nagar mein 4 number mein kaam karti hu. Meri shaadi ko karib 15/16 saal ho gaye hai mere do bache hai ek ka naam Abhishek 13 saal aur dusra Prince 02 saal ka hai. Mera aadmi nasha mein rehta hai aur koi kaam nahi karta jis karan se pichle 03/04 maah se mein apne pati se alag reh rahi hu aur khud kama kar apna gujara karti hu aaj subah kareeb 09:30 baje mein kaam apne par aa rahi thi jo nangloi bus stop ke paas jab mein pedal jaa rahi thi to mera pati Giriraj mujhe mila aur kehne laga ki mein nasha chhor kar ek nayi factory mein kaam kar raha hu chalo tumhe dikha deta hu taaki wakt jarurat mil sake jo mein Giriraj ke saath ho gayi. Giriraj mujhe lekar railway ki patri ke beech mein jaane laga jo Giriraj ruka aur mein usse aage ho gayi jo usne ekdam se mere peeche se upar koi cheej daali aur maachis ki teeli laga di jo mein jalne lagi. Mein ekdam se bhaagi aur udyog nagar G-9 ki taraf bhaag kar pahuchi aur ek mahila se mujhe bacha lo keh kar madad maangi jisne apni chunni di aur 100 number par PCR call kr diya jo PCR aayi mujhe Sanjay Gandhi Aspatal lakar bharti kara diya. Giriraj ne mere upar koi jalshila padarth daal kar aag lagai va maarne ki koshish ki hai aap aspatal aaye aur mera bayan aspatal mein likha. Giriraj ke khilaf kanuni karwahi ki jaaye. Byan sun liya samajh liya theek hai"
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 33 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
52. It is pertinent to mention that PW-18 ASI M.K. Khan has narrated the version of deceased given by her in her statement Ex. PW18/B to ASI M.K. Khan.
53. The second dying declaration recorded by Dr. Jagminder Singh, Ld. MM Ex. PW15/D which has been duly signed by deceased/victim Kusum and has been duly attested by Ld. MM reads as under:-
"Q. Aapka kya naam hai?
A. Kusum
Q. Aapke saath kya hua?
A. Mere .... aadmi ... ne ... jalaya... mere ....upar ....kuch
daala...
Q. aapke aadmi ka kya naam hai?
A. Giriraj
Q. Kaha par jalaya aapko?
A. wo...04 number....railway line....
Q. Aap kaha jaa rahe the?
A. .....? .....ha ... Anil....Gulshan...Renu....?
Q. Phir kya hua kuch aur batao?
A. ...ha...?..
54. After the above said questions and answers, deceased stopped speaking and despite repeated requests and efforts, she could not tell anything and hence proceedings were concluded by the Ld. MM.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 34 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
55. The question before this court is that as to whether the statements of deceased/ victim Ms. Kusum Ex.PW18/B and Ex. PW15/D can be considered as dying declarations and if same are considered as dying declarations, whether the same are reliable and admissible as per the established principles of law. Section 32 of Indian Evidence Act deals with dying declaration which reads as under :
"Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases : -
(1) when it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) xxxxxxxxx (3) xxxxxxxx
56. Section 32 of the Indian Evidence Act 1872 deals with two FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 35 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga kinds of statements i.e. (i) statement by a person as to cause of his death and (ii) statement by a person as to any of the circumstances of the transaction which resulted into his death. The deceased/ victim Ms. Kusum in the present case sustained injuries in the alleged incident due to which the she expired in the hospital on 30.09.2014 during treatment. The present case is duly covered under both the situations i.e. the injuries sustained in the incident are the cause of death as well as indicate the circumstances which resulted in the death of deceased/ victim Ms. Kusum. Thus, the statements Ex.PW18/B and Ex. PW15/D falls within the purview of Section 32(1) of the Indian Evidence Act 1872 and hence, are dying declarations. In the present case there are two dying declarations. When there are multiple dying declarations of same person, these have to be read as one statement for the proper appreciation of evidence.
57. The admissibility of the statements of deceased/ victim Ms. Kusum Ex.PW18/B and Ex. PW15/D are to be seen in the light of law laid down by the Hon'ble Supreme Court of India. Hon'ble Supreme Court of India in landmark judgment of Mukesh and others Vs. State for NCT of Delhi and others cited as AIR 2017 SC 2161 has observed as under :
"173. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If a dying declaration is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration. However, the court, while admitting a dying declaration, must be FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 36 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga vigilant towards the need for 'Compos Mentis Certificate' from a doctor as well as the absence of any kind of tutoring. In Laxman v. State of Maharashtra MANU/SC/0707/2002 :
(2002) 6 SCC 710, the law relating to dying declaration was succinctly put in the following words:
3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 37 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga truthful nature of the declaration can be established otherwise.
174. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court, in Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, taking into consideration the earlier judgment of this Court in Paniben v. State of Gujarat MANU/SC/0346/1992 : (1992) 2 SCC 474 and another judgment of this Court in Panneerselvam v. State of Tamil Nadu MANU/SC/7726/2008 : (2008) 17 SCC 190, has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 38 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
175. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to examine the contents of the dying declarations in the light of the various surrounding facts and circumstances. In Shudhakar v. State of Madhya Pradesh MANU/SC/0590/2012 :
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 39 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga (2012) 7 SCC 569, this Court, after referring to the landmark decisions in Laxman (supra) and Chirra Shivraj v. State of Andhra Pradesh MANU/SC/0992/2010 : (2010) 14 SCC 444, has dealt with the issues arising out of multiple dying declarations and has gone to the extent of declining the first dying declaration and accepting the subsequent dying declarations. The Court found that the first dying declaration was not voluntary and not made by free will of the deceased; and the second and third dying declarations were voluntary and duly corroborated by other prosecution witnesses and medical evidence.
In the said case, the accused was married to the deceased whom he set ablaze by pouring kerosene in the matrimonial house itself. The smoke arising from the house attracted the neighbours who rushed the victim to the hospital where she recorded three statements before dying. In her first statement given to the Naib Tehsildar, she did not implicate her husband, but in the second and third statements, which were also recorded on the same day, she clearly stated that the accused poured kerosene on her and set her on fire.
The accused was convicted Under Section 302 Indian Penal Code. In this regard, the Court made the following observations:
21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 40 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters.
390. Multiple Dying Declarations: In cases where there are more than one dying declarations, the Court should consider whether they are consistent with each other. If there are inconsistencies, the nature of the inconsistencies must be examined as to whether they are material or not. In cases where there are more than one dying declaration, it is the duty of the Court to consider each one of them and satisfy itself as to the voluntariness and reliability of the declarations. Mere fact of recording multiple dying declarations does not take away the importance of each individual declaration.
Court has to examine the contents of dying declaration in the light of various surrounding facts and circumstances. This Court in a number of cases, where there were multiple dying declarations, consistent in material particulars not being contradictory to each other, has affirmed the conviction. [Vide Vithal v. State of Maharashtra MANU/SC/8618/2006 : (2006) 13 SCC 54].
397. When a dying declaration is recorded voluntarily, pursuant to a fitness report of a certified doctor, nothing much remains to be FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 41 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga questioned unless, it is proved that the dying declaration was tainted with animosity and a result of tutoring. Especially, when there are multiple dying declarations minor variations does not affect the evidentiary value of other dying declarations whether recorded prior or subsequent thereto. In Ashabai and Anr. v.
State of Maharashtra MANU/SC/0011/2013 :
(2013) 2 SCC 224, it was held as under:
15. ....As rightly observed by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted.
The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other."
58. Similarly, Hon'ble Apex Court in case titled as Pawan Kumar Vs. State of HP cited as AIR 2017 SC 2459 has also reiterated the principles w.r.t. the admissibility of dying declaration. The Hon'ble Apex Court has observed as under :
"25. In Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:
The analysis of the above decisions clearly FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 42 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 43 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
59. The Hon'ble Apex Court in the case titled as Sandeep and ors. Vs. State of Haryana cited as MANU/SC/0645/2015, while convicting the accused on the basis of multiple dying declarations has observed as under :
"9. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same."
60. The first and foremost condition of the dying declaration is that the person making the dying declaration must be in fit state of mind at the time of making such statement. In the present case, the deceased/ victim Ms. Kusum was declared fit for statement at the time of recording of her statement Ex.PW18/B and this fact has been specifically mentioned in her MLC Ex.PW13/A. PW-18 ASI M. K. Khan in his testimony has specifically mentioned that deceased/ victim Ms. Kusum was declared fit for statement and thereafter he recorded her statement after consultation with the Doctor of Safdarjung Hospital and he attested the same at point B. FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 44 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga PW-13 Dr. M. Das who examined deceased Kusum and declared fit for statement has specifically deposed that the patient was fit for statement at the time of her medical examination. PW-15 Dr. Jagminder Singh, Ld. MM has specifically deposed that he called the concerned Doctor through IO for clarification of conditon of patient/deceased Kusum and the Doctor after checking shifted the wind pipe from the neck of deceased and stated that now she can speak and hence the Ld. MM had recorded the statement of deceased/victim Ms. Kusum with ther permission of Doctor which means that she was in fit state of mind at the time of recording of her statement Ex. PW18/B. The accused has not given any suggestion to PW-13 Dr. M. Das who proved the MLC of the deceased/ victim Ms. Kusum Ex.PW13/A and declared her fit for statement. The accused has failed to put any dent on the version of PW-13 Dr. M. Das regarding the fitness of deceased/victim Ms. Kusum for making statement to the IO.
61. The second dying declaration Ex.PW15/D of the deceased/ victim Ms. Kusum was recorded by the PW-15 Dr. Jagminder Singh, Ld. MM on 16.10.2014. The said dying declaration is consistent with the first dying declaration Ex.PW18/B. In both the dying declarations, deceased/ victim Ms. Kusum has specifically stated that accused poured some material upon her and she was put to fire by her husband i.e. accused Giriraj. She has not named any other person except accused Giriraj for the said act. Deceased/ victim Ms. Kusum has specifically stated in her dying declaration Ex. PW18/B that accused Giriraj always used to remain under the FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 45 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga influence of drugs and she was living separately from him. Thus, through her statement Ex. PW18/B , the deceased has clarified that the relationship between her and accused were not cordial and hence the accused had the motive to commit the said offence. Deceased Kusum in her dying declaration Ex. PW18/B and Ex. PW15/D has specifically stated that accused had poured something upon her from behind and put her on fire with matchstick.
62. Hon'ble Apex Court in Nagabhushan Vs. State of Karnataka cited as (2021) 5 SCC 222 held that each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. The court has to consider each of them in its correct perspective and satisfy itself as to one of them or which of them reflects the true state of affairs, and accordingly, adjudicate the matter. Similarly, Hon'ble Apex Court in State of UP Vs. Veerpal cited as (2022) 4 SCC 741 held that merely because there are two / multiple dying declarations, all the dying declarations are not to be rejected. In such a situation, case must be decided on the facts of each case and the court will not be relieved of its duty to carefully examine the entirety of the material on record as also the circumstances surrounding the making of different dying declarations.
63. In the cross examination of PW-2 Sh. Mahipal (father of deceased), PW-3 Sh. Naresh Gaur (brother of deceased), PW-5 FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 46 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga Smt Kunti (mother of deceased), PW-11 Smt Hemlata (bhabhi of deceased) and PW-13 Dr. M. Das, nothing has come on record that the deceased/ victim Ms. Kusum was tutored at the time of recording of her statements Ex.PW18/B and Ex.PW15/D.
64. Deceased/ victim Ms. Kusum in her statement / dying declaration Ex.PW18/B has specifically stated that accused Giriraj took him to the railway line and thereafter poured something upon her and put her on fire by using matchstick due to which she got burnt. This version of the deceased/ victim Ms. Kusum has been corroborated by her in her statement Ex. PW15/D recorded by the Ld. MM. There is complete consistency in both the statements Ex. PW18/B and Ex. PW15/D of deceased/ victim Ms. Kusum. Thus, both the dying declarations are consistent on material facts w.r.t. the alleged incident and hence, both the dying declarations are clear, cogent and reliable. Hence, applying the law / principles laid down by the Hon'ble Supreme Court of India in the above said discussed judgments, this court is of the considered opinion that the dying declarations of the deceased/ victim Ms. Kusum Ex.PW18/B and Ex.PW15/D satisfy all the principles / conditions of a valid dying declaration that is :
(i) The deceased/ victim Ms. Kusum was in fit state of mind at the time of giving both the dying declaration;
(ii) The dying declarations of the deceased/ victim Ms. Kusum have been made by the victim without any coercion FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 47 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga or pressure and this fact has been mentioned by PW-15 Dr. Jagminder Singh, Ld. MM in the certificate Ex. PW 15/E.
(iii) There are no indications of tutoring of deceased/ victim Ms. Kusum and accused persons have failed to put a dent on the dying declarations of the deceased/ victim Ms. Kusum in this regard;
(iv) The dying declarations are corroborated by the other material and circumstantial evidence on record including the medical evidence.
65. Therefore, in view of afore-said discussion and applying the law laid down by the Hon'ble Apex Court in Mukesh & Ors (Supra), Pawan Kumar (Supra) and Nagabhushan (Supra) and Veerpal (Supra), this court is of the considered opinion that the statements of the deceased/ victim Ms. Kusum Ex.PW18/B recorded by the PW-18 ASI M.K. Khan and the statement Ex. PW15/D recorded by the Ld.MM are consistent and hence are reliable.
66. PW-2 Sh. Mahipal Singh, father of deceased/ victim Ms. Kusum deposed that accused used to beat his daughter Kusum and he was not giving any money to her to meet daily household expenses and she was residing separately from accused with her two sons. He also deposed that accused used to consume alcohol and drugs. Similarly, PW-3 Sh. Naresh Gaur also deposed that FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 48 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga relationship of accused and his sister deceased Ms. Kusum were not good and he used to beat deceased Ms. Kusum after consuming liquor. He also deposed that deceased Ms. Kusum was residing separately from accused in his neighbourhood. PW-5 Smt Kunti, mother of deceased has corroborated the version of PW-2 Sh. Mahipal Singh and PW-3 Sh. Naresh Gaur by deposing that accused was in habit of consuming liquor as well as other drugs like Sulpha and Ganja and he used to give beatings to her daughter deceased Kusum and also used to give filthy abuses to her. She also deposed that deceased/ victim Ms. Kusum was residing separately in a rented accommodation. Similarly PW-11 Smt. Hemlata, bhabhi of deceased in her cross examination admitted that deceased/ victim Ms. Kusum and accused Giriraj were residing separately. Thus, through the dying declarations of deceased Kusum Ex. PW18/B and Ex. PW15/D, statement of PW-2 Sh. Mahipal Singh, PW-3 Sh. Naresh Gaur, PW-5 Smt Kunti and statement of PW-11 Smt. Hemlata, the prosecution has established the fact that accused was in habit of consuming alcohol/drugs and he used to beat deceased/ victim Ms. Kusum and relationship between the accused and deceased were very bad and they were residing separately. The accused has failed to put any dent on the versions of PW-2 Sh. Mahipal Singh, PW-3 Sh. Naresh Gaur, PW-5 Smt Kunti and PW-11 Smt. Hemlata either in their cross examination, statement under Section 313 Cr.P.C or through any defence evidence. Thus, the prosecution has proved the motive for the commission of offence by accused Giriraj and same is relevant under Section 8 of Indian Evidence Act, 1872.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 49 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
67. PW-7 Smt. Naresh Kumari deposed that she was running a tea stall in front of factory no. H-1, DSIDC Miyanwali Nagar, Delhi and on the date of incident, at about 09:00-09:15 PM, she saw one female under flames who came to her shop and she was crying for help. She further deposed that she asked her to give her chunni to her as her clothes had got burnt and thereafter she gave her chunni to her. She also deposed that the said woman had made a telephonic call to police from her mobile phone in her presence and thereafter the said woman was taken to hospital by the police. Deceased Kusum in her dying declaration Ex. PW18/B has specifically stated that when she was burning, she ran and reached towards Udyog Nagar, G-9 where she met with one lady and asked her for help and said lady gave her chunni to her. In her dying declaration, deceased Kusum has specifically stated that she made call at 100 number and PCR took her to Sanjay Gandhi Hospital. On the call made at 100 number, DD no. 15 A was recorded at PS Miyanwali Nagar. PW-1 HC Manoj Kumar has proved DD no. 15 A Ex. PW1/A. As per the contents of DD no. 15 A, Ex. PW1/A, acid was poured on one lady and the said call was made at 100 number by using mobile phone number 9718807182. PW-3 Sh. Naresh Gaur has specifically deposed that the above said mobile number was issued in his name and same was being used by her sister deceased Kusum. PW-15 Sh. Pawan Singh, Nodal Officer has proved CDR and CAF of mobile phone number 9718807182 alongwith certificate under Section 65 B Evidence Act Ex. PW16/A to Ex. PW16/D and deposed that the said mobile phone FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 50 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga number was issued in name of Sh. Naresh Kumar, S/o Sh. Mahipal Prasad, R/o B-68, Parvesh Nagar, Mubarak Pur. As per the CDR of mobile phone number 9718807182, a call was made at 100 number from that mobile phone at 9:34:54 and the duration of said call was 73 seconds. PW-18 ASI M.K Khan has proved the seizure memo of lady's purse and mobile phone Ex. PW18/C and he has also identified the said mobile phone make Spice having two IMEI numbers 911340154626202 and 911340154626210 Ex. P-8. Thus, there is complete consistency in the dying declaration of deceased Kusum Lata Ex. PW18/B and version of PW-7 Smt Naresh Kumari qua the fact that deceased Kusum Lata got burnt at the spot of incident, the deceased asked for help from PW-7 Smt. Naresh Kumari, Smt. Naresh Kumari gave her chunni to deceased Kusum. The prosecution has also successfully proved that a phone call was made by deceased Kusum at 100 number on the basis of which DD no. 15 A was registered in which she had told about the incident and the said mobile phone was issued in the name of PW-3 Sh. Naresh Gaur S/o Sh. Mahipal Gaur R/o B-68, Parvesh Nagar, Mubarak Pur and same was seized by the IO.
68. PW-11 Smt Hemlata deposed that on 24.09.2014, she received call on her mobile phone from deceased Kusum who told her husband accused Giriraj was chasing her in the bus and she asked her to enter into the crowd. She further deposed that after some time deceased Kusum again called her and informed that her husband Giriraj had thrown acid upon her. PW-3 Sh. Naresh Gaur has specifically deposed that mobile phone number 9718807182 FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 51 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga was issued in his name and was being used by her sister deceased Kusum and mobile phone number 9711460214 was also issued in his name and was being used by his wife Hemlata. PW-16 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. and PW-17 Sh. Israr Babu have proved the CDR and CAF of above said mobile phone number Ex. PW16/A to Ex. PW16/D and Ex. PW17/A to Ex. PW17/D alongwith certificate under Section 65 B Evidence Act. On the perusal of CDR of mobile phone number 9718807182 Ex. PW16/C and CDR of mobile phone number 9711460214 Ex. PW17/C which were being used by deceased Kusum and PW-11 Smt. Hemlata, it is revealed that the conversation had taken place between deceased Kusum and PW-11 Hemlata on 24.09.2014 at 10:53:14 and the duration of call was 43 seconds. From the CDR, the earlier calls between both have not been brought on record and only single call which had taken place while deceased was admitted in the hospital was proved by the prosecution. Ld. Addl. PP for the State has argued that deceased Kusum was using dual sim mobile phone Ex. P-8 which has been duly proved by the prosecution and there is a possibility that previous two calls have been made by other number by the deceased which are reflected in the CDR of Hemlata but IO has not collected the CDR of other number used by deceased Kusum. It is the duty of the prosecution to prove the facts against the accused and hence the argument of the Ld. Addl. PP for the State in this regard does not inspire confidence. However, the prosecution has successfully that the conversation had taken place between deceased Kusuma and PW-11 Smt. Hemlata at the time when she was admitted in the FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 52 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga hospital and at that time she may have informed Hemlata about the incident.
69. PW-8 Sh. Pawan Dabas deposed that accused Giriraj and his brother in law Sh. Gulshan were doing work of white wash at his house situated at Village Mubarak Pur, Dabas, Kanjawala, Delhi. He further deposed that on 24.09.2014, while the white wash of his house was going on, accused Giriraj came to his house at about 08:00/09:00 AM and told him that he will come later on for the white wash. He further deposed that Gulshan and another labourer were doing the white wash at his house on that day but accused Giriraj did not turn up on that day. He further deposed that the work of white wash of his house was completed on that day at about 06:00/07:00 PM and at that time he made call to accused Giriraj for asking the payment to be made to Gulshan and other labourer on which accused told him that Rs. 300/- were to be paid to Gulshan and Rs. 500/- were to be paid to another labourer. He further deposed that when he asked accused Giriraj as to why he did not come on that day for white wash, accused Giriraj told him that a quarrel had taken place between him and his wife and he had thrown acid on his wife. He further deposed that thereafter he abused accused Giriraj and disconnected the phone. Thus, accused Giriraj has made extra judicial confession to PW-8 Sh. Pawan Dabas. The relevancy and admissibility of the extra judicial confession is to be appreciated in light of the established principle of law. Hon'ble Supreme Court of India in judgment titled as State of Rajasthan Vs. Raja Ram cited as AIR 2003 SC 3601 has FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 53 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga observed as under:-
"18. Confessions may be divided into two classes, i.e. judicial and extra-judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? And
(ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 54 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involusterlingntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 55 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 56 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga free and voluntary confession is deserving of highest credit, becauseit is presumed to flow from the highest sense of guilt. [See R. v.
Warwickshall; (1783) Lesch
263. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt so contrary to the feelings and principles of human nature, if the facts confessed were not true.
Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So there the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made an threat of prosecution if it is not. A promise is always attached to the confession, alternative while a threat is always attached to the silence-alternative; thus, in the one case the prisoner is measuring FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 57 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonials untrustworthy, the inducement, threat or promise must be such as is calculated to lead to a untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it be would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 58 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 59 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-
judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
20. If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."
70. Thus, PW-8 Sh. Pawan Dabas has deposed regarding the confession of accused Giriraj made to him by the accused on mobile phone. PW-8 Sh. Pawan Dabas further deposed that he was using mobile phone number 9212287068 for the last 8-9 years and the said mobile phone connection was issued in name of Smt Jivni Devi W/o Mange Ram who was grandmother of his friend Vikas Dabas and was her neighbour and said connection was post paid connection and was taken to get the benefit of Senior Citizen plan. Smt Jivni Devi was cited as PW and summons were issued to her for her examination in this regard. However, as per the order sheet dated 10.02.2017, Sh. Rajroop S/o Smt Jivni Devi appeared before the Court and submitted that Smt. Jivni Devi was 86 years old and was bed ridden and she was not able to come to Court. Thus, PW-
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 60 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga Smt Jivni could not be examined as prosecution witness. On the submission of Sh. Rajroop, Ld. Addl. PP for the State filed an application for further examination of PW-8 Sh. Pawan Dabas for proving the fact that the said mobile phone number which was issued in the name of Smt. Jivni was being used by him and said application was duly allowed by the Court by the order of even date and PW-8 Sh. Pawan Dabas in his further examination dated 03.11.2017 deposed that he was using the above said mobile phone number for 8-9 years which means that even at the time of his deposition in the Court, he was using the above said mobile phone number. It is pertinent to mention that IO at the time of recording of statement of PW-8 Sh. Pawan Dabas under Section 161 Cr.P.C has specifically mentioned mobile number 9212287068 alongwith his other particulars in the heading of said statement. PW-28 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services has proved the CDR and CAF of mobile phone number 9212287068 Ex. PW28/A. As per the CAF of abovesaid mobile phone number was issued in the name of Smt Jivni Devi W/o Sh. Mange Ram R/o Mubarak Pur Dabas. Thus, the prosecution has proved that mobile phone number 9212287068 was being used by PW-8 Sh. Pawan Dabas and same was issued in name of Smt Jivni Devi. As per the CDR of mobile phone number 9212287068, a phone call was made from that number to mobile phone number 8376863561. PW-17 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services has proved the CDR and CAF of mobile phone number alongwith voter ID card of subscriber alonwith certificate under Section 65 B Evidence Act Ex. PW17/E to Ex. PW17/H. As per FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 61 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga the CAF of mobile phone number 8376863561, the said mobile phone number was issued in the name of Giriraj Sharma S/o Sh. Brahm Dev Sharma i.e. in name of accused. The voter ID Card of accused Ex. PW17/F which was given by him at the time of obtaining the above said mobile connection has also been proved by PW-17 Sh. Israr Babu. In the cross-examination of PW-17, accused has not denied that the above said mobile phone connection was not issued in his name. Thus, the prosecution has successfully proved that mobile phone number 9212287068 was being used by PW-8 Sh. Pawan Dabas while mobile phone number 8376863561 was issued in the name of accused Giriraj and was being used by him. As per the CDR of mobile phone number 9212287068 Ex. PW28/A and CDR of mobile phone number 8376863561 Ex. PW17/G, a phone call was made on 24.09.2014 at 06:22:27 PM from mobile phone number 9212287068 which was being used by PW-8 Sh. Pawan Dabas on the mobile phone number 8376863561 issued in name of accused Giriraj and being used by him and the duration of said call was 251 seconds.
71. The extra judicial confession of accused Giriraj is to be tested on the touchstone of Section 24 of Indian Evidence Act 1872. As per the mandate of Section 24 of Indian Evidence Act, the confession made by accused is irrelevant if the confession appears to the Court to have been caused by any inducement, threat, promise having reference to the charge against the accused, proceeding from a person in authority and insufficient in the opinion of the Court to give the accused person ground which FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 62 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him. On the basis of testimony of PW-8 Sh. Pawan Dabas, his cross examination by accused Giriraj, veracity of PW-8 Sh. Pawan Dabas and the CDR and CAF proved by PW-28 Sh. Rajeev Ranjan, following facts have come on record:-
(i) Mobile number 9212287068 was issued in name of Smt Jivni Devi but same was being used by PW-8 Sh. Pawan Dabas and mobile phone number 8376863561 was issued in name of accused Giriraj Kishore and was being used by him.
(ii) On 24.09.2014, at about 06:22 PM, a call was made by PW-8 Sh. Pawan Dabas from his mobile phone number 9212287068 on the mobile phone number 8376863561 of accused Giriraj Kishore and the conversation between them lasted for 251 seconds.
(iii) Accused Giriraj Kishore has not taken the defence that his mobile phone was being used by any other person. Accused has also not explained as to what conversation took between him and PW-8 Sh. Pawan Dabas and in these circumstances, the version of PW-8 Sh. Pawan Dabas is reliable.
(iv) Nothing has been brought on record by the accused Giriraj that the confession made by him to PW-8 Sh. Pawan Dabas was FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 63 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga not voluntarily.
(v) Accused Giriraj has not taken any defence that PW-8 Sh.
Pawan Dabas had either threatened him or had given any inducement to him for making such confession.
(vi) PW-8 Sh. Pawan Dabas was a property dealer and he was not in a authority who could help the accused in reference to charge against him.
(vii) At the time of making call on 24.09.2014, at 06:22 PM, neither PW-8 Sh. Pawan Dabas nor accused Giriraj were aware about the registration of FIR in the present case.
(viii) PW-8 Sh. Pawan Dabas is an independent witness and he is not connected in any way with the deceased Kusum or her family members. Moreover, PW-8 Sh. Pawan Dabas has no enmity with the accused.
72. In view of above said discussion and law laid down by Hon'ble Supreme Court of India in Raja Ram (Supra), this Court is of considered opinion that accused Giriraj Kishore voluntarily made a confession to PW-8 Sh. Pawan Dabas on telephonic call on 24.09.2014 at 06:22 PM and there was no inducement, threat or promise from side of PW-8 Sh. Pawan Dabas for making such confession by the accused Giriraj Kishor and hence version of PW-8 Sh. Pawan Dabas which is clear, cogent and reliable is FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 64 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga hereby accepted.
73. As per the case of the prosecution, either acid or kerosene was poured upon deceased Kusum by accused Giriraj Kishor and therefore she was set on fire. PW-33 SI S.P. Singh deposed that he seized one pair rexin chappal, one empty quarter bottle, burnt clothes and one match box vide seizure memo Ex. PW4/A. As per the prosecution story, the acid or kerosene was kept by accused in the bottle seized by the IO. All the above said exhibits were sent to FSL for examination. PW-14 Dr. Lingaraj Sahu has proved his report Ex. PW 10/B and has deposed that on chromatography examination of residue of kerosene/diesel/petrol could not be detected in exhibits 1, 2, 3 and 4 i.e. burnt lady's rexine bag, burnt clothes, empty glass bottle and burnt clothes. Thus, kerosene/diesel/petrol was not detected in all the above said exhibits. It is the property of kerosene/diesel/petrol that these liquids wipe out in an open environment and since those exhibits were sealed after a gap of some hours, the possibility of wiping off of kerosene/diesel/petrol from the said exhibits cannot be ruled out. However, it has come on record that the deceased was burnt either with acid or kerosene/petrol/diesel and hence it does not make any difference as to which material was used by the accused Giriraj for burning the deceased.
74. PW-13 Dr. M. Das has proved the MLC of deceased Kusum. He deposed that on 24.09.2014, injured Kusum Sharma W/o Giriraj Sharma aged about 35 years was brought to the hospital by FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 65 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga HC Ajay with the alleged history of burn injury. He further deposed that he examined patient Kusum Sharma and found that there were burn injuries on her face, neck, hand, back and arms and the total injuries were about 40 per cent over her body. He also deposed that the patient was referred to Surgery Department. He proved the MLC of deceased Ex. PW13/A. PW12 Dr. Mukesh Kumar Bansal has proved the post mortem report of deceased of Kusum Ex. PW12/A. He deposed that he found infected epidermal to dermal thermal burn injuries present over face, neck, anterior and posterior aspect of both upper limbs and back. He also deposed that the skin peeled off at places revealing yellowish green foul smelling pus covering necrotine pace and total area of burn was approximately 45 per cent of total body surface area. He deposed that in his opinion death of deceased was caused due to Sapticimia as a result of ante mortem thermal burn injuries involving about 45 per cent of total body surface area which was sufficient to cause death in ordinary course of nature. Since, the injury was sufficient to cause death in ordinary course, the case of the prosecution squarely falls within the purview of clause thirdly of Section 300 IPC. Thus, the prosecution has successfully proved that deceased Kusum was admitted to the hospital with the alleged history of burn injuries which were cause of her death and said burn injuries were caused by accused with the intention to cause such injury which was sufficient to cause death in ordinary course of nature and death has been caused in the present case by such injuries.
75. As per the prosecution story, accused was residing in the FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 66 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga vicinity of deceased and he absconded just after the incident and was arrested by PW-29 SI Ajay Kumar on 08.06.2015 i.e. after lapse of about 09 months of commission of the offence. The conduct of accused is relevant under Section 8 of Indian Evidence Act. Accused has not explained as to why he was absconding. Deceased Kusum was wife of accused but he did not attend her last rites nor he visited to her to the hospital during her treatment which raises serious doubts on his conduct and points out towards his guilt. Accused Giriraj was declared P.O by the Ld. MM vide order dated 27.05.2015. PW-30 SI Ravi Dutt and PW-32 ASI Ramesh Chand have proved the proceedings under Section 82 Cr.P.C Ex. PW30/A to Ex. PW30/B and Ex. PW32/A to Ex. PW32/D conducted by them at the available addresses of accused but he was not found there. These witnesses were not cross examined on behalf of accused despite opportunity granted to him. It has been argued by the Ld. Deputy LADC that after the incident, accused had changed his address and he was not absconding and there was no fault on his part. Nothing has been brought on record by the Ld. Dy. LADC to show that accused was not absconding nor she had provided his changed address. Accused was having mobile phone and the Investigating Agency had made sufficient efforts to trace him but he was not traceable. Thus, the conduct of accused in absconding just after the incident is relevant under Section 8 of Indian Evidence Act, 1872 and the prosecution has successfully proved the ingredients of offence punishable under Section 174 A IPC against the accused.
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 67 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga
76. Accused has taken different defences which are contradictory in nature. In the cross examination of PW-2 Sh. Mahipal, father of deceased, accused has given the suggestion that accused and deceased Kusum were living together and they were having cordial relationship which have been denied by PW-2 Sh. Mahipal. However, in the cross examination of PW-5 Smt. Kunti, accused has given the suggestion that deceased was residing with her second husband in her rented accommodation at the time of her death which has been denied by PW-5 Smt. Kunti. In the cross examination of PW-11 Ms. Hemlata, accused has given the suggestion that accused Giriraj and deceased Kusum was residing separately and deceased Kusum got married with another person namely Raj Kumar and she was residing with him. In his statement under Section 313 Cr.P.C, accused for the first time had taken the defence that he has been falsely implicated in the present case due to the reason that he visited the house of his in laws to meet his minor children for which his mother in law i.e. PW-5 Ms. Kunti did not allow. It is pertinent to mention that this defence has not been taken by accused in the cross examination of PW-2 Sh. Mahipal and PW-3 Sh. Naresh Gaur, PW-5 Smt. Kunti and PW-11 Smt. Hemlata. Accused has not taken defence of alibi under Section 11 of Indian Evidence Act, 1872. Under Section 105 of Indian Evidence Act, the accused has to prove defences in his favour. In the present case, accused has not brought anything on record to prove that there were cordial relationship between him and deceased or that deceased was married to some other person namely Raj Kumar and she was residing with said Raj Kumar or FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 68 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga that he was not allowed to meet his children. The defences taken by the accused are not consistent and are contradictory as well as vague in nature and he has failed to put any dent on the prosecution story through the defences taken by him.
77. The basic purpose of recording of statement of accused under Sec. 313 Cr.P.C is to put in the incriminating evidence brought on record against him by the prosecution and to accord him an opportunity to explain the circumstances appearing against him.
78. Hon'ble Supreme Court of India in Judgment titled as Neel Kumar Vs. State of Haryana cited as (2012) 5 SCC 766 has held that:-
it was the duty of the accused to explain incriminating circumstances proved against him while making statement u/s 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance was an additional link in chain of circumstances to sustain charges against you.
79. Similary Hon'ble Supreme Court of India in Judgment titled as Phula Singh Vs. State of Himachal Pradesh AIR 2014 SC 1256 has held that:-
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 69 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga if the accused remains silent or in complete denial, the Court can take adverse intense against you.
80. Hon'ble Supreme Court of India in judgment titled as Sidhartha Vashisht Vs. State (NCT of Delhi) cited as (2010) 6 SCC 1 while convicting the accused and taking adverse inference against him with respect to the false answers given by him u/s 313 Cr.P.C observed as under:-
"130. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused in the present case, the appellant Manu Sharma has inter alia has taken false pleas in reply to question no. 50, 54, 55, 56,57,64, 65,67,72,75 and 201 put to him under Section 313 of the Code."
81. In the present case, the statement of accused under Sec. 313 Cr.PC was recorded and in reply to the most of the questions put to him he has stated either 'it is incorrect' or 'I have no knowledge'. In answers, he has also stated that he has been falsely implicated in the present case. Accused has not taken any specific defence either in the cross examination of prosecution witnesses or in his statement recorded under Sec. 313 Cr.PC. The answers given by the accused are evasive in nature and he has not explained as to FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 70 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga why, the prosecution witnesses have deposed against him or as to why deceased named him as offendor or as to why he was absconding. In these circumstances, applying the law laid down by Hon'ble Supreme Court of India in 'Neel Kumar (supra), Phula Singh (Supra and Sidharth Vashisth (supra)' this court is of considred opinion that accused has not furnished any explanation for these circumstance hence these circumstances are additional link in the chain of circumstances evidence against him.
82. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
83. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 71 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 72 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
84. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 73 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
85. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
86. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW-2 Sh. Mahipal Singh, PW-3 Sh. Naresh Gaur and PW-5 Smt Kunti are witnesses of sterling quality as their versions are natural and they have also withstood the test of cross examination. This court is of the considered opinion that the testimonies of injured PW-2 Sh. Mahipal Singh, PW-3 Sh. Naresh Gaur and PW-5 Smt Kunti are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses, dying declaration of deceased Kusum and FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 74 of 75 State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga medical evidence on record and the circumstances. The dying declarations of deceased Kusum Ex. PW18/B and Ex. PW15/D have been duly proved by the prosecution. Extra judicial confession made by the accused to PW-8 Sh. Pawan Dabas has also duly been proved by the prosecution.
87. The prosecution has successfully proved beyond reasonable doubt that accused Giriraj committed the murder of deceased Kusum by pouring acid/kerosene upon her and putting her on fire. Prosecution has also proved that accused Giriraj failed to appear before the Court at specific date, time and place in pursuance of proclamation under Section 82 Cr.P.C issued against him. Thus, the prosecution has successfully proved the ingredients of offences punishable under Section 302/174 A IPC against the accused Giri- raj Kishor.
88. Accordingly, accused Giriraj Kishor Bhardwaj @ Shyam Naga is hereby convicted for the offences punishable under Sec. 302/174 A IPC.
Digitally signed
VIRENDER by VIRENDER
KUMAR
KUMAR KHARTA
Announced in the open court KHARTA Date: 2025.04.09
on 9th day of April, 2025 16:16:38 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:09.04.2025
FIR No. 130/2014, PS Sarai Rohilla Railway Station, Page No. 75 of 75
State Vs. Giriraj Kishor Bhardwaj @ Shyam Naga