Delhi District Court
(I) Thurukanni Pompiah And Another vs State Of Mysore, Air on 22 August, 2007
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IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI.
SESSION CASE NO. 10/05.
DATE OF INSTITUTION BEFORE THE
LEARNED TRIAL COURT:-15.10.2004.
DATE OF ALLOCATION OF THE
CASE TO THIS COURT:-23.02.2005.
DATE ON WHICH THE JUDGMENT
HAS BEEN RESERVED:-06.08.2007.
DATE ON WHICH THE JUDGMENT
HAS BEEN DELIVERED:-20.08.2007.
FIR NO. 457/04
PS KAROL BAGH.
U/S 302/34 OF IPC.
STATE
VERSUS
1. RAKESH @ SANJAY PARCHA,
S/O RAMESH CHAND,
R/O 10812, BALMIKI COLONY,
KAROL BAGH.
DELHI.
2. NARESH KUMAR,
S/O RAMESH CHAND,
R/O 10812, BALMIKI COLONY,
KAROL BAGH.
DELHI.
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3. RAMESH PARCHA,
S/O RAM SINGH,
R/O 10812, BALMIKI COLONY,
KAROL BAGH.
DELHI. (DISCHARGED VIDE ORDERS DATED 11.03.2005.)
4. SATISH PARCHA,
S/O RAM SINGH,
R/O 10812, BALMIKI COLONY,
KAROL BAGH.
DELHI. (DISCHARGED VIDE ORDERS DATED 11.03.2005.)
JUDGMENT:-
1. This case was registered on the statement dated 16.07.2004 of one Sanjay Kumar S/O Late Sh. Kishan Lal, R/O House No. 12, Patel Chest Quarters, Maurice Nagar, Delhi, wherein he has stated that he resides at the above address and is working as Office Attendant in Patel Chest. He has further stated that he got married with Seema R/O House No. 10812, Gali No. 5, 100 quarters, Karol Bagh, Delhi, about three years before.
2. He has stated that few days before, a minor quarrel took place with his wife and she went to her parental house, when today i.e. on 15.07.2004 in the night at about 8.00-8.30 PM, he had gone to his in- 3 laws house to bring back his wife Seema, where Ramesh Parcha, Satish Parcha, Naresh Parcha and Sanjay Parcha met him and refused to send his wife with him and angrily threatened him to go away otherwise they will set him on fire by pouring petrol on him. On hearing this, he came outside of the house but the above said persons also abused him outside the house, meanwhile, his brother-in-laws Naresh and Sanjay poured petrol on him and set him on fire. He fell down on the ground.
3. On this statement, a rukka was prepared by ASI Vijay Kumar and got registered the case FIR no. 457/04 under section 307/34 of IPC. During investigation, site plan was prepared by the IO. Crime team was called. Photographs of the spot were taken. Some articles were lifted and seized from the spot. Complainant Sanjay Kumar died on 16.07.2004 at 7.10 AM and proceedings under section 174 of Cr. P. C. were conducted. Postmortem was conducted on his dead body and the same was handed over to the relatives after identification. The case was converted under section 302/34 of IPC.
4. Scaled site plan were prepared. Sealed envelope was seized, which was received from the doctor. Three letters were also seized from Patel Chest Institute, Maurice Nagar, Delhi.
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5. The questioned documents and admitted handwritings were sent for examination to FSL. Accused Rakesh @ Sanjay Parcha and Naresh Kumar Parcha were arrested, whereas according to charge sheet, there was no evidence to arrest accused Ramesh Parcha and Satish Parcha, hence they were shown in column no. 2 of the charge sheet.
6. After completion of investigation, charge sheet was filed against the accused persons before the court of concerned learned Metropolitan Magistrate. It was committed to the court of sessions and was assigned to this court.
7. On 11.03.2005, after hearing the arguments, charge was framed against the accused Rakesh @ Sanjay Parcha and Naresh Kumar Parcha under section 302/34 of IPC, to which they both have pleaded not guilty and claimed trial. However, accused Ramesh Parcha and Satish Parcha were discharged in the said orders.
8. To prove its case, prosecution has examined PW-1 to 23 in all.
9. Relatives of the deceased are PW-2,6 and 7.
10. PW-2 is Ram Avtar. He has stated that the deceased Sanjay was the son of his maternal aunt. On the night of 15.07.2004, he 5 received a call on telephone that his cousin Sanjay had been burnt by someone and is admitted in JPN hospital. He reached at the hospital at about 11.30 PM and that time police was recorded his statement in his presence, deceased made a statement to the police that accused Rajesh Parcha, Naresh Parcha, Ramesh Parcha and Satish Parcha had beaten him and had put him on fire. In the morning, they came to know that he had expired. He identified the dead body of Sanjay and made a statement Ex. PW-2/A. Later on, he received the dead body vide receipt Ex. PW-2/B.
11. PW-6 is Rajinder Kumar. He has stated that deceased Sanjay was his younger brother. He was in government service at Patel Chest Institute. He used to reside at quarter no. 12, Patel Chest Staff Quarter, Maurice Nagar, Delhi. He was married to Seema on 08.12.2000. His mother, youngest Sister, his deceased brother and his wife used to reside in the said quarter. On 15.07.2004, he received a phone call from his brother in law namely Ashok Kumar. He went to Irvin Hospital at Ward No. 20 and found his brother Sanjay in critical position having burns on his body. His brother was making a statement to the IO in the presence of a doctor that his brother in law namely Sanjay Parcha and 6 Naresh Parcha had poured petrol upon him and set him on fire. He also told that Ramesh Parcha and Satish Parcha had abused him and asked him to run away from that spot otherwise the accused person shall brake his hands and legs and would also burn him.
12. He has further stated that the wife of the deceased was at that time residing at her parents' house and his brother had gone to his in- law's house to bring his wife. He has also stated that his brother used to complain him that he apprehends danger to his life from his in laws but he told him that his fear is unfounded as these things happen in relation.
13. PW-7 is Ashok Kumar. He has stated that deceased Sanjay was his younger brother in law. He was residing in Maurice Nagar. He was married on 08.12.2000 with Seema D/O Ramesh Parcha. The mother and younger sister of the deceased also used to reside with him. They were residing peacefully in the flat. On 15.07.2004, at about 10.30 PM, he received a phone call and he rushed to Irvin Hospital at 11 PM and found him admitted in Burns Ward of Irvin Hospital. Deceased Sanjay told that he had gone to his in laws house to bring back his wife Seema but there accused Rakesh @ Sanjay Parcha, Naresh Parcha alongwith Ramesh Parcha and Satish Parcha had misbehaved to him 7 and asked him to run away lest he would be burned by pouring petrol. Thereafter, Sanjay tried to run away from the spot when incident occurred. He told that accused Rakesh @ Sanjay Parcha and Naresh Parcha had burnt him by pouring petrol on him. He had informed Rajinder and other relatives.
14. Witnesses to the investigation are PW-
4,8,9,10,11,12,13,16,17,18,19,20,21 and 23.
15. PW-4 is SI Ashok Kumar, Incharge, Mobile Crime Team, Central District. He has stated that on 15.07.2004, he was informed by DO police station Pahar Ganj about the receipt of call from police station Karol Bagh, Delhi and to visit Gali No. 5, Balmiki Colony, police station Karol Bagh. He alongwith crime team including HC A. K. Krishanan, Photographer and the driver and a helper, reached at the spot at about 11 PM and examined the spot for 40 minutes and prepared the report Ex. PW- 4/A.
16. PW-8 is constable Ram Babu. On 15.07.2004, he was posted as duty constable at LNJP Hospital and his duty hours were from 8 AM to 8 AM next morning. At about 10.45 PM on 15.07.2004, Sanjay Kumar S/O Hari Kishan was brought in burnt condition by PCR officials. He 8 was totally burnt from head to toe. He was not having any clothes on his body.
17. PW-9 is HC Rajpal. On 15.07.2004, he was posted in Central Zone PCR. At about 10.15 PM, when he was on PCR Van 0-49 as IC van, he received one information that one person had burnt. He reached at the spot. Crowd was gathered there. He met one person in burn condition, who told his name Sanjay, who was crying. He also saw one wet pillow stained with flour, one plastic cane and wet surface of the gali. He shifted that burnt person to JPN hospital in PCR. He was admitted in the hospital at 10.45 PM. Duty constable present in the JPN hospital was informed by him. On the next day, IO of the case contacted him and on his pointing, IO prepared the site plan of the place of occurrence at 11 AM. IO also recorded his statement.
18. PW-10 is A. K. Krishnan. On 15.07.2004, on the request of DO police station Karol Bagh, he alongwith the crime team reached at Gali No. 5, 100 quarters, Balmiki Colony, Karol Bagh. He saw burnt wood, one plastic cane, some flour (atta) and one wet pillow. He took 4 photographs. Positives of the same are Ex. PW-10/A to Ex. PW-10/D and the negatives of the same are Ex. PW-10/E to Ex. PW-10/H. 9
19. PW-11 is constable Diwan Singh. On 15.07.2004, he was posted at police station Karol Bagh. He alongwith ASI Vijay was in the area on a call. Information was received by ASI Vijay Kumar from DO about a person in burning condition at Gali No. 5, House No. 10812, Balmiki Colony, Karol Bagh, Delhi. Then he alongwith ASI Vijay Kumar reached there. From the spot, they came to know that the person in burning condition had already been removed by the PCR to the hospital. They found one wet pillow at the spot, two fire wood sticks and one sieve (chanani) alongwith one plastic cane. Meanwhile beat constable Tara Chand came at the spot. The articles found at the spot were in partly burnt condition. They left constable Tara Chand at the spot and went to JPN hospital. MLC of the injured was obtained. Statement of the injured Sanjay was taken by the ASI Vijay Kumar. They came back at the spot. Crime Team was called. Photographs of the spot were taken. ASI Vijay Kumar prepared a rukka and he took the same to the police station for registration of the case and returned at the spot. The aforesaid items were sealed with the seal of VKJ in four separate polythene bags and were marked as 1 to 4 and were kept in sack and sack was sealed with the seal of VKJ and were seized vide memo Ex. 10 PW-11/A bears his signatures at point A1. His statement was recorded. He has also identified the case property before the court.
20. PW-12 is ASI Rattan Kumar. On 20.08.2004, he joined the investigation with SI Baljeet Singh and had gone to Patel Chest Institute, Delhi University, Maurice Nagar and there they met one Gobind Ram, Assistant Registrar, Delhi University, who produced three letters written by deceased Sanjay. The same were seized by the IO vide memo Ex. PW-3/A which bears his signatures at point B. The letters are placed in the file as Ex. PW-1/A, PW-3/B and Ex. PW-3/C.
21. PW-13 is constable Tara Chand. On 15.07.2004, he was posted in police station Karol Bagh. He was present in his beat area near Balmiki Colony at about 10.30 PM and when reached in Gali No. 5, 100 quarters, Balmiki Colony, ASI Vijay Kumar with constable Diwan Chand met him there. The call was regarding burning of a man, who was removed by the PCR van to JPN hospital. ASI Vijay Kumar and constable Diwan Chand went to the hospital and he remained at the spot. Crime Team also arrived at the spot. Photographs of the spot were taken. ASI Vijay Kumar came back at the spot and prepared site plan. The articles lying at the spot, one wet pillow, chanani, one burnt 11 plastic cane, two burnt wooden pieces. All the articles were kept in separate polythene bags and then kept in a gunny bag and the same were sealed with the seal of VKJ. The seizure memo Ex. PW-11/A was prepared which bears his signatures at point B.
22. He has also identified the case property before the court. He has further stated that on 16.07.2004, he was on duty at Mortuary JPN hospital and the postmortem on the dead body of Sanjay Kumar was conducted. Till the dead body remained in his custody it was not tampered with in any manner.
23. PW-16 is Inspector Davinder Singh. On 22.09.2004, on request of IO, Inspector Shiv Dayal, he reached at the place of occurrence i.e. Mandir Guru Gorakh Nath, 100 quarters, Balmiki Colony, Karol Bagh. There he took rough measurement on the pointing out of ASI Vijay Kumar. On the basis of those rough notes and measurement, he prepared scaled site plan Ex. PW-16/A which bears his signatures at point A1. After preparation of the scaled site plan, rough notes were destroyed.
24. PW-17 is ASI Vijay Kumar. He has stated that on 15.07.2004, he was posted at police station Karol Bagh. On that day, on receipt of 12 DD No. 38A at 10.15 PM, he alongwith constable Diwan had gone to Gali No. 5, 100 quarters where he came to know that one injured Sanjay was taken by PCR to JPN Hospital. During this time, beat constable Tara Chand also reached at the spot. He directed him to remain at the spot to preserve the same. He alongwith constable Diwan reached at JPN hospital. He collected MLC of injured Sanjay. Then he went to burnt ward. Injured Sanjay was fit for the statement and on the MLC it was mentioned that patient was brought with alleged history of assault burning caused by his relatives. Patient was stated to be having 85% burns. He recorded the statement Ex. PW-17/A of Sanjay, in his handwriting as per the facts narrated to him by Sanjay which bears thumb impression of Sanjay at point A1. He prepared rukka Ex. PW- 17/B which bears his signatures at point B1 and gave the same to the constable Diwan for registration of case. Constable Diwan left for the police station. He came back at the spot. The spot was photographed by the Crime Team after due inspection by the Incharge of Crime Team.
25. At the instance of Incharge, PCR, Rajpal, he prepared site Plan Ex. PW-17/C which bears his signatures at point C1. He had found one plastic cane, one half burnt wet pillow on which burnt skin was also 13 found, some pieces of burnt wood and one plastic sieve at the spot. He had sealed the above articles in four separate pullandas with the seal of VKJ and seized the same vide seizure memo Ex. PW-11/A which bears his signatures at point A. He had not collected any article from the hospital.
26. Constable Diwan had brought the copy of FIR at the spot alongwith rukka which was given to him. He had recorded the statement of public witnesses namely Rajinder and Ashok. He also recorded the statements of police officials. In the morning, information was received regarding the death of Sanjay vide DD no. 11B. True copy of DD No. 11B is Ex. PW-17/D which bears his signatures at point D1. True copy of DD no. 38A is Ex. PW-17/E which bears his signatures at point E1. Thereafter, the investigation was transferred from him.
27. He has also identified the case property before the court. Two wooden burnt pieces, one half burnt pillow, one sieve and one half burnt plastic cane as Ex. P-1 to P-4.
28. PW-18 is HC Jagbir Singh. On 16.07.2004, he was working as Malkhana Moharrar at police station Karol Bagh. On that day, ASI Vijay Kumar had deposited four pullandas sealed with the seal of VKJ which 14 were deposited vide entry no. 2502 in register no. 19.
29. On 16.07.2004 itself, SHO Inspector Shiv Dayal had also deposited a pullanda sealed with the seal of MAMC which was also deposited vide entry no. 2502 in register no. 19.
30. On 13.10.2004, the pullandas were sent to FSL, Hyderabad. Thereafter, on 28.12.2004, result with case property was received which was deposited by HC Prem Singh. Entry to this effect was also made in the register. He has brought the original register no. 19. Copy of entry no. 2502 is Ex. PW-18/A and Ex. PW-18/B. Entry of sending the exhibits is Ex. PW-18/C and entry of receipt of result is Ex. PW-18/D. Original register seen and returned.
31. PW-19 is HC Daya Nand. On 16.07.2004, he was working as duty officer at police station Karol Bagh from 1.00 AM to 9.00 AM. On that day, ASI Vijay Kumar had sent a rukka through constable Diwan, on the basis of which he registered FIR No. 457/04, under section 307/34 of IPC. Copy of FIR is Ex. PW-19/A which bears his signatures at point A. His endorsement on the rukka is Ex. PW-19/B which bears his signatures at point A. He has brought the original FIR register. Original register seen and returned.
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32. PW-20 is SI Baljeet Singh. On 19.07.2004, he was posted at police station Karol Bagh. On that day, he was on patrolling in the area near Tonga Stand, Karol Bagh. SHO Inspector Shiv Dayal met him alongwith other staff and he was joined in the investigation of the present case. Inspector Shiv Dayal had information that accused persons whom they were looking for, were likely to come at their residence. Informer took them to 100 quarters, Balmiki Colony, Gali No. 5 and both the accused persons Sanjay @ Rakesh and Naresh Kumar were apprehended and arrested in the present case.
33. Personal Search of accused Rakesh @ Sanjay Ex. PW-20/A and Personal Search of accused Naresh Ex. PW-20/B were conducted. Both bear his signatures at point A each. He has also prepared arrest memo of accused Rakesh Ex. PW-20/C and of accused Naresh Kumar Parcha Ex. PW-20/D. Both bear his signatures at point A each. On 20.07.2004, the disclosure statement of accused Rakesh Ex. PW-20/E and of accused Naresh Ex. PW-20/F were recorded. Both bear his signatures at point A each.
34. On 20.08.2004, as per the directions of Inspector Shiv Dayal, he alongwith ASI Rattan Kumar had gone to Patel Chest Institute, Delhi 16 University and from there he had collected three letters which were concerning the death of deceased Sanjay Kumar. One of the letter was dated 15.07.2004 which was relating to his death allegedly written by deceased himself and two letters were dated 04.11.1999 and 02.04.2002 which were admitted handwriting of the deceased. All the three letters were seized vide seizure memo Ex. PW-3/A which bears his signatures at point C. The documents were collected from Assistant Registrar, Gobind Ram. He had also recorded his statement. He had also examined PS to Director, Radha Krishnan, who had received the letter dated 15.07.2004 from deceased. He recorded the statement of Radha Krishnan and ASI Rattan Kumar. The letters are Ex. PW-1/A, Ex. PW-3/B and Ex. PW-3/C. On 20.09.2004, he had taken the letters vide RC No. 413/04 from record and deposited the same at FSL, Rohini for obtaining the comparison reports.
35. PW-21 is Inspector Shiv Dayal. On 16.07.2004, he was posted at police station Karol Bagh as SHO. The present case was being investigated by ASI Vijay Kumar and was initially registered under section 307/34 of IPC. Information was received from the hospital vide DD no. 11B that injured Sanjay Kumar had expired. He took up the 17 investigation and Section 302 of IPC was added. Special report was also sent to Senior Police Officers as well as to the learned Area Magistrate. He prepared the inquest papers which are collectively Ex. PW-21/A running in six pages, all bear his signatures at point X each. He got the postmortem conducted on the dead body.
36. Dead body was handed over to the relatives of the deceased vide receipt Ex. PW-2/B which bears his signatures at point X. He also recorded the statement of witnesses. He had also seized scalp hair sealed in a pullanda sealed with the seal of MAMC alongwith sample seal vide seizure memo Ex. PW-21/B which bears his signatures at point X. He had arrested the accused persons namely Rakesh @ Sanjay and Naresh Kumar. Personal Search of accused Rakesh @ Sanjay Ex. PW- 20/A and Personal Search of accused Naresh Ex. PW-20/B were conducted. Both bear his signatures at point X each. He has also prepared arrest memo of accused Rakesh Ex. PW-20/C and of accused Naresh Kumar Parcha Ex. PW-20/D. Both bear his signatures at point X each. The disclosure statement of accused Rakesh Ex. PW-20/E and of accused Naresh Ex. PW-20/F were recorded. Both bear his signatures at point X each. He had also visited the place of incident and got 18 prepared the scaled site plan Ex. PW-16/A.
37. On 21.07.2004, he had also received letter Mark X in the Office through Dak received from DCP Office. He had sent SI Baljeet Singh to make enquiry regarding the letter Mark X and SI Baljeet Singh had obtained letter Ex. PW-1/A from Patel Chest Institute. SI Baljeet Singh had obtained the admitted handwriting of deceased Sanjay Kumar. Letter Mark X and Ex. PW-1/A with admitted handwriting were sent to FSL, Rohini for comparison. Report Mark B was received from FSL, Rohini. He had also recorded the statement of witness whenever the witness joined the investigation. On completion of investigation, the challan was filed by him.
38. PW-23 is ASI Satya Pal. On 15.07.2004, while he was posted at police station Karol Bagh, he was given the DD no. 18A by DD writer, on which he alongwith constable Surinder had gone at the spot. He met one Sanjay, his wife and his daughter there. Sanjay was talking to his in-laws and told him that he had come to meet his wife and children. He obtained in writing the statement of Sanjay regarding the arrival at House No. 10812, which is Ex.PW-23/A which bears his attestation at point A1 and signatures of the deceased at point A2 which is encircled 19 as A4 in blue.
39. The statement Ex. PW-23/B of brother of wife of Sanjay was obtained which bears his attestation at point B1 and signatures of the person who made the statement are at point B2. Sanjay had left the spot in his presence. He came back to the police station and lodged DD no. 24A regarding his arrival in the police station.
40. He has brought the DD register dated 15.07.2004, copy of DD no. 18A is Ex. PW-23/C and copy of DD No. 24A is Ex. PW-23/D. Original seen and returned.
41. Official witnesses are PW-1 and 3.
42. PW-1 is Sh. K. Radhakrishnan. He has stated that he is working as PS to the Director VP Chest Institute, University of Delhi. Deceased Sanjay Kumar was working in their office as an Office Attendant. On 15.07.2004 at about 5.30 PM, deceased came to him and delivered a letter to him. The letter was written in Hindi and was addressed to Director. He has further stated that as he could not read Hindi so he asked the deceased to read out the same to him but the deceased asked him to deliver the letter to the Director urgently but by that time Director had left the office. Next morning, he delivered the 20 letter to Director.
43. He has further stated that on receipt of letter, he put his signatures at portion A with timing and date. The letter is Ex. PW-1/A which also signed by deceased.
44. PW-3 is Govind Ram, Assistant Registrar, V.P. Chest Institute, University of Delhi. He has stated that deceased Sanjay was working in their office as an Office Attendant. Deceased had delivered a letter in the office which was received in the office in due course. On 20.08.2004, he had handed over three letters dated 04.11.1999, 02.04.2002 and 15.07.2004 to the police which were seized by police vide memo Ex. PW-3/A, bearing his signatures at point A. The letters are Ex. PW-1/A, Ex. PW-3/B and Ex. PW-3/C.
45. He has further stated that the letter Ex. PW-3/C is regarding confirmation of deceased. All the three letters bear the signatures of deceased and the letter Ex. PW-1/A and Ex. PW-3/C are in the handwriting of deceased Sanjay.
46. Witnesses to the MLCs are PW-5,14,15 and 22.
47. PW-5 is Dr. Arvind Mohan. On 15.07.2004, he was working as CMO in LNJP Hospital in the department of causality. At about 10.45 21 PM, one Sanjay Kumar S/O Hari Kishan, 28 years, Male was brought by HC Rajpal of PCR with the alleged history of assault, burning caused by his relatives, as told by the patient himself. The patient was conscious but irritable. He was found having more than 85% burns all over the body. He advised him for admission in the burn ward for detailed examination, expert opinion and further examination. The MLC Ex. PW- 5/A is in his handwriting and bears his signatures at point A.
48. PW-14 is Dr. Kavish Rohatgi. On 15.07.2004, when he was posted in burns ward in Burns and Plastic Surgery Department, in Lok Nayak Hospital. He had certified on the MLC of Sanjay Kumar Ex. PW- 5/A that the patient was fit for statement as mentioned on MLC Ex. PW- 5/A at portion B. He had also prepared the death summary Ex. PW-14/A of the patient Sanjay Kumar vide CR No. 456336 which is in his handwriting and bears his signatures at point A. The patient was having burns on 90% of total body surface area.
49. PW-15 is Dr. Rohit. On 16.07.2004, he had conducted the postmortem examination on the dead body of Sanjay Kumar and prepared his detailed postmortem report no. 465/04, which is Ex. PW- 15/A which runs into 4 pages and bears his signatures at portion A. In 22 his opinion, the cause of death was due to shock consequent upon dermo-epidermal burns. All the burns were ante mortem and was recent in duration and could be due to flame as a result of fire. The hairs were preserved to detect the presence of petrol / K. Oil remnant. The opinion is expressed at portion B of the report.
50. PW-22 is Sh. Anurag Sharma. He is M. Sc. In Chemistry. He has about 14 years experience in the field of Forensic. Till today, he has examined more than thousand documents and have reported and opined in approximately 250 cases.
51. On 20.09.2004, exhibits in the FIR no. 457/04, under section 307/302/34 of IPC, police station Karol Bagh, were received in the office which were given to him for detail analysis and opinion. The exhibits were questioned documents Q1 to Q-9, admitted writing and signatures were A1 to A4. He examined questioned documents and admitted handwriting and signatures by various scientific methods with the help of stereo microscope. Video Special comparator - IV, Docu-center and VSC-2000/HR and under different lighting conditions. His detailed report running into three pages is Ex. PW-22/A which bears his signatures on all the three pages at point A1 and his seal at point B1. 23
52. In his opinion, the person who wrote the red enclosed writing and signatures stamped and marked A1 to A4 also wrote the red enclosed writing and signatures similarly stamped and marked Q1 to Q9.
53. On 11.10.2004, SI Baljeet Singh collected questioned documents Q1 to Q9 and admitted handwriting and signatures A1 to A4 alongwith report Ex. PW-22/A. The report was handed over to him in a sealed envelope sealed with the seal of DOC FSL.
54. He has seen Q1 to Q9 and A1 to A4 on the file and these are the same which were examined by him scientifically. Q5 to Q9 are already Marked X. Covering letter Ex. PW-22/B bears his signatures of their Director at point Y.
55. After completion of the evidence, statement of both the accused persons were recorded. Both the accused persons have denied the evidence on record and stated that they are innocent and have been falsely implicated in the present case. In fact, the deceased who was their brother in law, committed suicide after pouring petrol upon himself in their locality and made a false statement to implicate them in the present case. However, he had also given letter to DCP stating therein that he was going to commit suicide and he also wrote a letter to Patel 24 Chest Institute. Both the letters are on record. They have not committed any offence.
56. In defence, accused persons examined DW-1 to 6 in all. Out of which, DW-1 is Sh. Hira Lal. He has stated that on 23.08.2004, he was posted in the Central District, Vigilance Cell, Minto Road. A complaint of one Rajinder Singh was marked to him by Inspector Vigilance and he had conducted enquiry on that complaint. In the enquiry, he recorded the statement of Rajinder Singh. He also conducted enquiry in the local area of the incident regarding the death of one Sanjay. He also recorded the statement of Puran Chand, Suresh Chand, Kamal Kumar, Ved Parkash, Surinder Maan and Nand Lal. On the basis of enquiry and material collected, he had given his report to DCP, Central District. As per local enquiry, it was a case of suicide. As the case was pending investigation, hence SHO, police station Karol Bagh to complete the investigation immediately and to submit the challan.
57. He has brought the file. Photocopy of the complaint, statements and his report is collectively Ex. DW-1/A running into nine pages including letter of Additional DCP, Sh. Alok Kumar. Original seen and returned.
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58. DW-2 is Sh. Suresh Chand. He has stated that Seema is his niece and daughter of Ramesh Parcha. On 15.07.2004 at about 12- 12.30 PM, he was present in his house. He came to know regarding some hue and cry in his brother's house. He went there and found Sanjay husband of Seema, who was asking to send Seema with him. They refused the same on the pretext that Seema was a TB patient and was not well. She was also advised for three months rest but Sanjay insisted that Seema be sent with him. On this, they asked him to call any responsible person either his mother or his brother who could have assured about the responsibility of the treatment of Seema. Even after this, Sanjay did not desist and they make a call on 100 number.
59. PCR and local police reached at the spot. ASI Satpal from local police make him understand and agreed that he will take Seema with him after the treatment and left the spot. Later on, he came to know that Sanjay had again come back on the said day at about 9-9.30 PM and put himself on fire after pouring either kerosene oil or petrol. He reached at the spot and from there he came to know that Sanjay had already been removed to LNJP hospital. He also reached in the hospital. Family members from both the sides were present there. Family 26 members of Sanjay started abusing them there and to avoid any further controversy, he came back to his house.
60. His statement was recorded in Vigilance enquiry of the case which bears his signatures at point A1 and A2 in Ex. DW-1/A (enquiry report) at page no. 6.
61. DW-3 is Kamal Kumar. He has stated that on 15.07.2004 at about 12 noon, he was present in his house and Sanjay son in law of his brother Ramesh Parcha had come to his house to take his wife Seema with him. His brother and his other family members were not ready to send Seema with Sanjay as Seema was suffering from TB and was not getting proper treatment at the house of Sanjay. He had also persuaded Sanjay not to take Seema till she is treated properly of her illness but Sanjay started abusing. Police had come. They made Sanjay to understand and he went away.
62. Thereafter, in the evening at about 10 PM, he came to know that Sanjay had committed suicide after pouring oil on him. When he reached at the spot, Sanjay had already been removed to LNJP hospital. He came to know from Nand Lal, Puran Chand and other persons gathered at the spot that Sanjay had poured oil himself and committed 27 suicide. His statement was recorded by one SI Hira Lal. His statement is in the enquiry report Ex. DW-1/A at page no. 6 which bears his signatures at point A3.
63. DW-4 is Nand Lal. On 15.07.2004, he was present outside his house at about 9.30 PM. He saw one person coming from the side of gali no. 5 hurling abuses to somebody. He was having a petrol cane in his hand from which he poured the petrol on his body. He was giving abuses to the family of Parcha's. That man had lit fire and burnt himself. He rushed towards him and tried to save him. He found that he was Sanjay, son in law of Mr. Ramesh Parcha. Some public persons collected there. Someone had called PCR on number 100. Local police also arrived. Sanjay was removed to hospital. He had gone to LNJP hospital. His statement was recorded in an enquiry by SI Hira Lal on 28.08.2004. Ved Parkash was also with him at that time and he had signed the statement of Ved Parkash agreeing to the facts as stated by Ved Parkash. He had also told the same facts to the police which were disclosed by Ved Parkash. Statement of Ved Parkash is at page 7 on Ex. DW-1/A which bears his signatures at point A1.
64. DW-5 is Surinder. On 15.07.2004 at about 9.30-9.45 PM, he 28 was present in front of his house. He saw one person was coming while abusing from gali no. 5 to gali no. 6. He was holding a cane. In the meantime, he poured the petrol upon himself and set himself on fire. He rushed to save him. Public persons gathered there. He identified that person as Sanjay, son-in-law of Ramesh Parcha. Police was called at 100 number. Police officials reached at the spot and Sanjay was removed to hospital. When deceased Sanjay set himself on fire, accused both were not present at the spot but were inside their house and came outside the house later on.
65. His statement was recorded in the police station. Thereafter, in a vigilance enquiry, one police official Hira Lal came to his house and recorded his statement which is at page no. 8 in the enquiry report Ex. DW-1/A which bears his thumb impression at point A1.
66. DW-6 is Puran Chand. In the 7th month of year 2004, he was serving Kavarias in Gali no. 6., at about 9.30 PM, one person was coming from gali no. 5 and was going to gali no. 6 and he poured oil/petrol on himself and set himself on fire. He reached there immediately. Meanwhile, the said person fell down on the road. The said person was abusing Mr. Parcha. He was Sanjay, his son in law. 29 Some public persons poured water on his body. Someone called police on 100 number. Local police also came there and he was removed from the spot. Then, he went to the hospital. Mr. Parcha and his family had also gone to the hospital. His statement was recorded by one police official, Sh. Tara chand.
67. After about one month of the incident, one police official Hira Lal came to his house at about 1.30 or 2.00 PM and made enquiries from him. He narrated the facts to him. He signed the statement of one Ved Parkash which are point A2 on page 7 of the enquiry report Ex. DW-1/A.
68. I have heard the learned APP for the State and counsel Sh. S. A. Hashmi for both the accused persons and also gone through the material placed on record.
69. The learned defence counsel has contended that during the investigation, police seized two letters. One was written by the deceased to the DCP and another was to the Director, Patel Chest Institute, Delhi University, Delhi, in which he has requested that after his death, all of his service benefits be given to his younger sister and mother and nothing be given to his wife. This clearly shows that the deceased had made up his mind to commit suicide.
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70. It is further contended by the learned defence counsel that both these letters were sent to FSL with the admitted handwriting of the deceased for comparison and according to the report of FSL, the above letters were written by the deceased himself.
71. It is also contended that there are three inconsistent dying declaration, one is addressed to DCP, Second is addressed to Patel Chest Institute and third is the statement given to the police on which the present FIR was registered.
72. It is contended that PW-2,6 and 7 are the relatives of the deceased and they are not the eye witnesses of the incident. They have improved their statements and have been confronted with their previous statements. It is also contended that a vigilance inquiry was also conducted and during the inquiry, statements were recorded and according to the result of the said inquiry, the deceased had committed suicide and falsely implicated his in-laws.
73. It is further contended by the learned defence counsel that DW- 2 and 3 have proved that the deceased committed suicide and they witnessed the incident.
74. It is also contended that the case of the prosecution is based on 31 inconsistent dying declarations and as per the settled law, conviction can not be based on the inconsistent dying declaration and has relied upon the following judgments :-
(i) Thurukanni Pompiah and another Vs State of Mysore, AIR 1965 SC 939.
(ii)State of Gujarat Vs Khumansingh Karsan Singh and Others, AIR 1994 SC 1641.
(iii)Lella Sromovasa Rap Vs State of Andhra Pradesh, AIR 2004 SC 1720.
(iv)Smt. Kalawati Vs State of Rajasthan, 1994 Cri. L. J. 691.
(v)Maniram Vs State of Madhya Pradesh, AIR 1994 Supreme Court 840.
(vi)Darshan Singh and Others Vs State of Punjab and Joga Singh and Others Vs State of Punjab, AIR 1983 Supreme court 554.
75. It is further contended by the learned defence counsel that the prosecution has miserably failed to brought on record any explanation as to why the third dying declaration was not recorded by the doctors although ample opportunity was available on the part of police to get it 32 recorded in the proper manner.
76. It is also contended by the learned defence counsel that the basic ingredients are missing in the present case. It is further contended that neither offence under section 302 of IPC or 306 of IPC is made out, hence accused both be acquitted.
77. The sequences of the circumstances as per record are that a DD no. 18A dated 15.07.2004 was recorded at Police Station Karol Bagh on the information received from HC Kishan Chand of PCR at about 1.45 day that one person was causing trouble at 100 quarters, Gali no. 5, Karol Bagh, hence some officers be sent.
78. Thereafter, DD no. 24A was also recorded on the same day at about 3 PM day on the information of one ASI alongwith constable Surender Kumar that one Sanjay Kumar S/O Sh. Kishan Lal had come to meet his wife and daughter at his in-laws at 10812, Gali No. 5, Balmiki Colony and the same was objected by his in-laws and they called the police. Now he has left the spot.
79. Thereafter DD no. 38A was recorded on the same day at about 10.15 PM night on the information received from HC Ram Roop of PCR that one person has set himself on fire at House no. 10812, 100 33 Quarters, Gali No. 5, Balmiki Colony, Karol Bagh. The said DD no. 38A dated 15.07.2004 was handed over to ASI Vijay Kumar, who reached at the spot and came to know that the said person had already been removed to hospital by PCR van. He met with beat constable Tara Chand at the spot. He left the constable at the spot and reached at JPN hospital and found one Sanjay Kumar admitted in Burns Ward. According to the opinion of the doctor, he was fit for the statement, hence he recorded the statement of Sanjay Kumar, which is Ex. PW- 17/A.
80. In the statement, deceased Sanjay Kumar told that he is working as attendant in the office of Patel Chest institute. He has further stated that he got married with Seema R/O House No. 10812, Gali No. 5, 100 quarters, Karol Bagh, Delhi, about three years before.
81. He has stated that few days before, a minor quarrel took place with his wife and she went to her parental house, when today i.e. 15.07.2004 in the night at about 8.00-8.30 PM, he had gone to his in- laws house to bring her back, where Ramesh Parcha, Satish Parcha, Naresh Parcha and Sanjay Parcha met him and refused to send his wife with him and angrily threatened him to go away otherwise they will put 34 him on fire by pouring petrol on him. On hearing this, he came out of the house but the above said persons also abused him outside the house, meanwhile, his brother in law Naresh and Sanjay poured petrol on him and set him on fire. He fell down on the ground.
82. On this statement, rukka was prepared and the present case was registered. Later on, according to DD no. 11B dated 16.07.2004 recorded at 8.15 AM on information received from constable Babu from JPN hospital that Sanjay Kumar, who was admitted in the Burns Ward on 15.07.2004 was declared dead.
83. During the investigation, Ex. PW-1/A and Mark X were seized by the police. Statements were recorded in consequence of DD no. 18A and 24A of 15.07.2004. He also seized Ex. 23A and 23B.
84. Now, the sole question to decide before the court is whether deceased was killed by the accused persons or he committed suicide and what is the evidenciary value of the letters written by the deceased to the DCP and to the Director, Patel Chest Institute, Delhi University and the statement Ex. PW-17/A given by the deceased against the accused persons.
85. A Letter written to the Director, Patel Chest is Ex. PW-1/A, 35 which is only to the extent that all his service benefits be given to his younger sister Arti and his mother and nothing-else. It is also mentioned that his service benefits be not given to his wife Seema. The nature of the documents is a sort of change of nomination. Another letter is Mark X. In this letter, the deceased has alleged that he was harassed at various times by his in-laws and he was also threatened by them to kill him and also threatened to set him on fire by pouring petrol on him.
86. Both these letters were sent for opinion regarding the handwriting and have been examined by the official of the FSL, Rohini. Report is Ex. PW-22/A. According to report, the person who wrote the red encircled writings and signatures stamped and marked A1 to A4 ( A1
- Ex. PW-3/C, A2 - Ex. PW-3/B, A3, A4 - Ex. PW-23/A) also wrote the red encircled writing and signatures similarly stamped and marked Q1 to Q9 (Q1 to Q4 is Ex. PW-1/A, Q5 to Q9 is Mark X). This means that both the letters i.e. the letter written to the Director, Patel Chest Ex. PW-1/A and the letter the written to DCP, Darya Ganj, Mark X, are in the handwriting with the signatures of the deceased.
87. Public witnesses in this case are PW-2, 6 and 7.
88. PW-2 is Ram Avtar. He has stated that the deceased Sanjay 36 was the son of his maternal aunt. On the night of 15.07.2004, he received a call on telephone that his cousin Sanjay had been burnt by someone and is admitted in JPN hospital. He reached at the hospital at about 11.30 PM and that time, police recorded his statement in his presence. Deceased made a statement to the police that accused Rajesh Parcha, Naresh Parcha, Ramesh Parcha and Satish Parcha had beaten him and had put him on fire. In the morning, they came to know that he had expired. He identified the dead body of Sanjay and made a statement Ex. PW-2/A. Later on, he received the dead body vide receipt Ex. PW-2/B.
89. The witness has deposed in a different manner from the statement Ex. PW-17/A of the complainant Sanjay. It is mentioned in Ex. PW-17/A that on 15.07.2004, when he reached at his in-laws to bring back his wife, he met with accused Rajesh Parcha, Naresh Parcha, Ramesh Parcha and Satish Parcha and they refused to send his wife with him and threatened him to set him on fire by pouring petrol on him and also abused him. Meanwhile, only Naresh and Sanjay poured petrol on him and set him on fire, whereas PW-2 has stated that they all four put the deceased on fire, and it has also been mentioned in Letter Mark 37 X that when the deceased reached at his in-laws house on 15.07.2004 at 12.30 PM day, they started abusing him and threatened him to kill him by pouring petrol on him and by setting him on fire. He came outside from the house and the police was called by his in-laws.
90. Similarly, PW-6 Rajinder Kumar has stated that deceased Sanjay was his younger brother. On 15.07.2004, he received a phone call from his brother in law namely Ashok Kumar. He went to Irvin Hospital at Ward No. 20 and found his brother Sanjay in critical position having burns on his body. His brother was making a statement to the IO in the presence of a doctor that his brother in law namely Sanjay Parcha and Naresh Parcha had poured petrol upon him and set him on fire.
91. PW-6 has also told that Ramesh Parcha and Satish Parcha had abused him and asked him to run away from that spot otherwise the accused person shall brake his hands and legs and would also burn him. He has further stated that his brother used to complain him that he apprehends danger to his life from his in laws but he told him that his fear is unfounded as these things happen in relation.
92. PW-7 Ashok Kumar has stated that deceased Sanjay was his younger brother in law. On 15.07.2004, at about 10.30 PM, he received 38 a phone call and he rushed to Irvin Hospital at 11 PM and found him admitted in Burns Ward of Irvin Hospital. Deceased Sanjay told that he had gone to his in laws house to bring back his wife Seema but there accused Rakesh @ Sanjay Parcha, Naresh Parcha alongwith Ramesh Parcha and Satish Parcha had misbehaved him and asked him to run away lest he would be burned by pouring petrol. Thereafter, Sanjay tried to run away from the spot when incident occurred. He told that accused Rakesh @ Sanjay Parcha and Naresh Parcha had burnt him by pouring petrol on him. He had informed Rajinder and other relatives.
93. From the collective reading of PW-2,6 and 7, it is clear that PW- 6 and 7 were present in the hospital, when the statement of the deceased was being recorded by the IO and in their presence, deceased told the facts as mentioned in Ex. PW-17/A. Whereas PW-2 has also stated that deceased Sanjay told him the facts as mentioned in Ex. PW- 17/A. Two of the accused persons were already discharged and later on application under section 319 of Cr. P. C. to summon those two accused persons was also dismissed, hence the testimony of PW-2 in respect of involvement of these two accused persons, who have been discharged already can not be read in any manner.
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94. In the cross examination, PW-2 has stated that in the hospital, there were two police officials present out of which one was ASI and one was constable. He has further stated that he had stated to the police that the injured had given a dying declaration in his presence. He had also stated to the police that injured had stated that he was beaten by accused Rakesh, Naresh, Ramesh and Satish and thereafter they had put him on fire. He has been confronted with his statement Ex. PW-2/A and Ex. PW-2/DA, where it is not mentioned that accused Ramesh and Satish also poured petrol on him and set him on fire. PW-2 has denied the suggestion that he had not visited the hospital or that the statement of injured was not recorded in his presence. Presence of PW-2 is natural as the deceased was the son of his maternal aunt.
95. In the cross examination, PW-6 has denied the suggestion that deceased Sanjay had not made any statement in his presence or that he was not told about the manner of incident by Sanjay or that no one had given him threats.
96. The learned defence counsel has contended that in the cross examination, PW-2 has stated that when the statement of the deceased was being recorded by the IO, he was asked to go out. But this fact is 40 not much material because PW-6 has stated in the cross examination that the doctor was present at the time of recording of the statement of deceased Sanjay. Similarly, in the cross examination PW-7 has also stated that IO recorded the statement of the deceased in his presence. PW-6 and 7 have also stated that deceased Sanjay told them the facts and the manner in which incident took place with him.
97. The learned defence counsel has further contended that according to the cross examination of PW-6, the doctor was present at the spot when the statement of the deceased was being recorded by the IO, but the signatures of the doctor does not reflect on the statement Ex. PW-17/A, hence the dying declaration has not been recorded as prescribed in the law.
98. I am not agree with the contention of the learned defence counsel because opinion of the doctor was taken by the IO on the MLC Ex. PW-5/A of deceased Sanjay. According to which, injured was fit for statement at 12.15 AM and it has been mentioned in the rukka Ex. PW- 17/B that injured was fit for statement, hence his statement was recorded. The presence of PW-6 is also natural as the deceased Sanjay was his younger brother and on receipt of telephone call, he reached in 41 the hospital.
99. In the cross examination, PW-7 has stated that firstly his relatives reached the hospital and thereafter police came. He has also corroborated with PW-6, who has stated that he reached in the hospital. PW-7 has further corroborated with the fact that PW-6 was also present with him when the statement of the deceased was being recorded. PW- 7 has denied the suggestion that he had not met Sanjay in the hospital or that Sanjay had not told him anything or that he had given the false statement or that Sanjay had not made any statement to the police in his presence.
100. From the depositions of PW-2,6 and 7, who are the relatives of the deceased Sanjay and their presence were natural in the hospital and they all have corroborated each other, it is clear that deceased Sanjay made a statement Ex.PW-17/A to the IO. PW-2,6 and 7 inspire confidence and nothing has been brought on record as to why they have deposed falsely before the court for the manner of incident which was told to them by the deceased and as also told by the deceased to the IO in his statement recorded as Ex. PW-17/A.
101. MLC Ex. PW-5/A also corroborated in respect of the fact that 42 deceased was fit for the statement at about 12.15 AM and thereafter statement Ex. PW-17/A of the deceased Sanjay was recorded by the IO, on which rukka Ex. PW-17/B was prepared.
102. The learned defence counsel has further contended that the dying declaration Ex. PW-17/A is inconsistent with other dying declaration PW-1/A in the form of a letter written to Director, Patel Chest, which shows that the deceased Sanjay had already made his mind to commit suicide.
103. It is also contended by the learned defence counsel that another dying declaration Mark X in the form of a letter written to DCP, Central District, Darya Ganj, also shows the status of mind of the deceased that he lost his self control and decided to end his life when his wife was not sent back with him by his in-laws.
104. It is also contended by the learned defence counsel that none of the dying declaration can be relied upon and the deceased committed suicide out of frustration.
105. The whole of the incident started from DD no. 18A, which was recorded at about 1.05 PM, when the deceased reached at his in-laws house. He had gone there to meet his wife and child, which was 43 objected by his in-laws, hence the police was called. These DDs are Ex. PW-23/C and Ex. PW-23/D. During the investigation of these DDs, statement of the parties were also recorded. Statement of the deceased is Ex. PW-23/A, wherein he has stated that at about 12.30 PM, he had gone to his in-laws house, but his in-laws were not willing to send back his wife and child. Ex.PW-23/B is the statement of in-laws of deceased Sanjay, wherein they have stated that their sister and her daughter were residing with them and she is well. They are not sending their daughter with deceased Sanjay. But in these statements, no cause has been mentioned as to why the in-laws of the deceased were not sending the wife and daughter of the deceased with him. Both these statements Ex. PW-23/A and Ex. PW-23/B are of dated 15.07.2004.
106. The letter Ex. PW-1/A is also dated 15.07.2004, wherein deceased changed the nomination for his service benefits from his wife to his younger sister and mother, which was received in the office of the Director, Patel Chest, Delhi University, Delhi, at about 5.30 PM on 15.07.2004.
107. Thereafter, the deceased also wrote a letter to DCP, Central District, Darya Ganj, by narrating all the facts as to how and in what 44 manner his family life was disturbed and destroyed by his in-laws. He has stated that his in-laws took back his wife Seema on 17.06.2004 and thereafter did not sent her back to join his company and alleged that he used to harass their daughter. They have filed a case in Women Cell and stated that he also used to consume liquor and also gave beatings to their daughter.
108. In this letter, he has further mentioned that on 13.07.2004 at about 9.30 PM, he had gone to get back his wife and daughter but they refused on the ground that he had caused TB to their daughter and did not sent his wife and daughter with him. When again on 15.07.2004, he reached at his in-laws house to get back his wife and daughter, his in- laws started abusing him and threatened him to kill him and also threatened him that they will set him on fire. He objected on this but they started beating him. He raised hue and cry. Public persons collected there. He narrated the facts to the public persons. Police was called and matter was patched up and under threat, his signatures were obtained on Ex. PW-23/A by his in-laws.
109. It is further mentioned that his in-laws will be responsible for his death. In the end, it has been also mentioned that due to harassment 45 caused by his in-laws, he is going to commit suicide and for his death his in-laws will be responsible.
110. From the FSL report Ex. PW-22/B,which is admissible in evidence under section 293 of Cr. P. C., it has been proved that this letter was written and signed by the deceased. The time of letter is 7.15 PM. From the DDs Ex. PW-23/C and Ex. PW-23/D, statements Ex. PW- 23/A and Ex. PW-23/B and statement Ex. PW-1/A and Mark X, it is clear that deceased was harassed by his in-laws and they were not sending his wife and his daughter on one or other pretext. Nothing has been brought on record to prove that the deceased Sanjay used to harass his wife and/ or used to consume liquor. PW-22 and 23 have not been cross examined by the learned defence counsel in any manner.
111. It has also not been brought on record that wife of deceased Sanjay was suffering from TB in any manner. No sufficient reason/explanation has been given as to why they were not sending the wife and daughter of the deceased Sanjay to join the company of the deceased Sanjay since 17.06.2004.
112. From the overall reading of the DDs, statements, change of nomination and letter to DCP, it is clear that in-laws of the deceased 46 threatened him and to kill him by pouring petrol on him. From the timings of these documents, it is clear that deceased reached at his in- laws house at 12.30 PM on 15.07.2004 and there some quarrel took place and matter patched up and thereafter he changed the nomination for his service benefits and given the letter at 5.30 PM in his department.
113. Thereafter, he also wrote a letter to DCP at 7.15 PM. After the incident, deceased also made a statement Ex. PW-17/A to the police. After the letter written by the deceased at 7.15 PM, he again went to his in-laws house at about 8/8.30 PM to bring back his wife and daughter but his in-laws refused to sent his wife and child with him and threatened him that if he will not leave the spot then they will set him on fire by pouring petrol on him. He went outside but his in-laws started abusing him and meanwhile accused Naresh and sanjay poured petrol on him and set him on fire.
114. The learned defence counsel has contended that as per DD no. 38A, the deceased committed suicide by setting himself on fire. This DD has not been proved by the prosecution in any manner. In this DD, information was given by HC Ram Saroop from PCR but this person has neither been cited as a witness nor the accused persons have called 47 this witness in their defence. Accused persons have also not proved this DD no. 38A in their defence in any manner. Even PW-9 HC Rajpal has not been cross examined by the learned defence counsel that HC Ram Saroop was with him on the PCR van and it was a case of suicide. Moreover, PW-9 has nowhere stated that the deceased committed suicide in his presence. He reached at the spot at about 10.15 PM. He saw one person in burn condition, who told his names as Sanjay, who was crying. It is also not suggested to PW-9 that deceased Sanjay told him at the spot that he had committed suicide.
115. It is not in dispute that statement Ex. PW-17/A is admissible in evidence. The objection of the learned defence counsel is that Ex. PW- 17/A is inconsistent with Mark X and has not been recorded according to the provisions of law. The contention of the learned defence counsel is not tenable in any manner because in letter Mark X, deceased has already mentioned that his in-laws threatened him that they will kill him by pouring petrol on him and by setting him on fire.
116. In this respect, I would like to rely upon the judgment Jai Prakash and Others Vs State of Haryana, (1998) 7 Supreme Court Cases 284, wherein it was contended that no weight ought to have been 48 given to that statement as it was not attested by the doctor and no endorsement was made thereon to show that the statement was made by Sushma while she was mentally and physically fit to make such a statement. This submission is also misconceived as it proceeds on an erroneous assumption that what was recorded by the police officer was a dying declaration. As he recorded a complaint, it was not necessary for him to keep any doctor present or obtain any endorsement from him.
117. It was next submitted that when she was taken to the hospital at 7.30 A.M., she was not replying to the question properly as deposed by the first doctor who had examined her. This submission has also no substance because thereafter she was given treatment and the evidence shows that thereafter she was in a fit condition to make a statement. It was not even suggested to the police officer that she was not able to speak clearly. No attempt was made in the cross examination of the doctor to show that her condition had not improved between 7.30 a.m. And 1.30 p.m. and therefore, this submission also deserves to be rejected.
118. I would also like to further rely upon the judgment Munna Raja and another Vs The State of Madhya Pradesh, AIR 1976 Supreme 49 Court 2199, wherein it has been held "After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under Section 32 (1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.
119. It was further observed "It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement can not be subjected to cross examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated."
120. It was contended by the learned counsel for the appellants that the oral statement which Bahadur Singh made cannot in the eyes of law constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death. There is no substance in this contention because in order that the Court may be in a position to assess the evidenciary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its 50 tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring."
121. I would also like to rely upon the judgment Najjam Faroqui Vs State, 1992, Crl. L. J. 2574, wherein it has been held "Both on authority and on principle, it must be taken to be the law that a conviction can be based solely on a dying declaration without corroboration, if the Court otherwise finds the same to be reliable and not to suffer from any inherent improbability or any other infirmity. But whether in a given case, it is or is not safe to do so would depend on the facts and circumstances of that case and other materials on record and the question must be left to the Court concerned without any attempt at generalization."
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122. The other fact which is helpful is the site inspection. During the investigation, some articles were seized by the IO from the spot vide memo Ex. PW-11/A. One plastic cane having words Shell with monogramme on it, one wet old pillow having skin of the deceased, one burnt wood having flour on it alongwith another burnt wooden piece, one plastic sieve, which was also having flour on it, were recovered from the spot. Admittedly, nothing has been recovered from the spot, with the help of which accused could have set himself on fire after pouring petrol on him.
123. The accused persons have examined DWs in this respect that the deceased committed suicide. These DWs are DW-4,5 and 6.
124. DW-4 Nand Lal has stated that on 15.07.2004, he was present outside his house at about 9.30 PM. He saw one person coming from the side of gali no. 5 hurling abuses to somebody. He was having a petrol cane in his hand from which he poured the petrol on his body. He was giving abuses to the family of Parcha's. That man had lit fire and burnt himself. He rushed towards him and tried to save him. He found that he was Sanjay, son in law of Mr. Ramesh Parcha. Some public persons collected there. Someone had called PCR on number 100. 52 Local police also arrived. Sanjay was removed to hospital.
125. DW-5 Surinder has stated that on 15.07.2004 at about 9.30- 9.45 PM, he was present in front of his house. He saw one person was coming while abusing from gali no. 5 to gali no. 6. He was holding a cane. In the meantime, he poured the petrol upon himself and set himself on fire. He rushed to save him. Public persons gathered there. He identified that person as Sanjay, son-in-law of Ramesh Parcha. Police was called at 100 number. Police officials reached at the spot and Sanjay was removed to hospital. When deceased Sanjay set himself on fire, accused both were not present at the spot but were inside their house and came outside the house later on.
126. DW-6 Puran Chand has stated that in the 7th month of year 2004, he was serving Kavarias in Gali no. 6., at about 9.30 PM, one person was coming from gali no. 5 and was going to gali no. 6 and he poured oil/petrol on himself and set himself on fire. He reached there immediately. Meanwhile, the said person fell down on the road. The said person was abusing Mr. Parcha. He was Sanjay, his son in law. Some public persons poured water on his body. Someone called police on 100 number. Local police also came there and he was removed from 53 the spot. Then, he went to the hospital. Mr. Parcha and his family had also gone to the hospital.
127. In the cross examination, DW-4 has stated that when Sanjay burnt himself, Ramesh Parcha, Naresh Parcha, Satish Parcha and Rakesh Parcha had come at the spot. They all tried to save Sanjay. Whereas in the cross examination, DW-5 has stated that before the arrival of PCR van, accused Naresh and Rakesh had come out of their house after hearing the hue and cry. DW-6 has stated that both the accused persons were present in the hospital alongwith their other family members.
128. In the scaled site plan Ex. PW-16/A, point B shows the place where Sanjay was set on fire after pouring petrol on him by the accused persons. It is in the corner of house no. 10800. House no. 10798 and 10785 are not shown in the site plan. The houses which have been shown in the site plan are 10810 and 10811. both DWs i.e. DW-4 and 5 have stated that on 15.07.2004, they were present outside their house at about 9.30 PM, whereas the incident took place at 8-8.30 PM. This clearly shows that neither they were present at the time of incident nor point B, where the incident took place, was visible from their houses in 54 any manner.
129. DW-6 is resident of house no. 10785. This house has also not been shown in scaled site plan, hence it can not be said that he was also the witness to the incident.
130. In unscaled site plan Ex. PW-17/C, prepared by the IO, none of the house numbers have been shown of DW-4,5 and 6.
131. Other defence witnesses have been examined by the accused persons are DW-1,2 and 3.
132. DW-1 Hira Lal has stated that on 23.08.2004, he was posted in the Central District, Vigilance Cell, Minto Road. A complaint of one Rajinder Singh was marked to him by Inspector Vigilance and he had conducted enquiry on that complaint. On the basis of enquiry and material collected, he had given his report to DCP, Central District. As per local enquiry, it was a case of suicide.
133. DW-2 Suresh Chand has stated that Seema is his niece and daughter of Ramesh Parcha. On 15.07.2004 at about 12-12.30 PM, he was present in his house. He came to know regarding some hue and cry in his brother's house. He went there and found Sanjay husband of Seema, who was asking to send Seema with him. They refused the 55 same on the pretext that Seema was a TB patient and was not well. She was also advised for three months rest but Sanjay insisted that Seema be sent with him. Rest of the part of his evidence is that he came to know that Sanjay had committed suicide by pouring petrol on himself and set himself on fire.
134. According to MLC Ex. PW-5/A, deceased Sanjay reached in the hospital at about 10.45 PM on 15.07.2004, whereas in the cross examination, DW-2 has stated that he came back from the hospital at about 10.30 PM and met with ASI Vijay Pal at his brother's house. This fact itself falsify the depositions of DW-2 because in the examination in chief, he has stated that when he reached at the spot, he came to know that Sanjay had already been removed to LNJP hospital. He also reached in the hospital, whereas as per MLC Ex. PW-5/A, the deceased was removed to hospital and he reached there at about 10.45 PM.
135. DW-3 is Kamal Kumar, who has stated that on 15.07.2004 at about 12 noon, he was present in his house and Sanjay son in law of his brother Ramesh Parcha had come to his house to take his wife Seema with him. His brother and his other family members were not ready to send Seema with Sanjay as Seema was suffering from TB and was not 56 getting proper treatment at the house of Sanjay.
136. He has further stated that he came to know from Nand Lal, Puran Chand and other persons gathered at the spot that Sanjay had poured oil himself and committed suicide. His statement was recorded by one SI Hira Lal. His statement is in the enquiry report Ex. DW-1/A at page no. 6 which bears his signatures at point A3. Neither he is the eye witness nor witness to the circumstances, hence he is not helpful to the accused persons in any manner.
137. It is not the defence of the accused persons that they were not present in their house at the time of incident. None of the DW has stated as to with which help the deceased lit fire and burned himself.
138. As per scaled site plan, point B is not far away from the house of the accused persons and it was not impossible for them to come back in their house after committing the murder of the deceased by pouring petrol on him and by setting him on fire.
139. From the seizure Memo Ex. PW-11/A, it is clear that no match box/ any other instrument with the help of which fire could have been lit, was found at the spot then how the deceased Sanjay set himself on fire. DW-4,5 and 6 have also not explained as to how deceased set himself 57 on fire. This clearly shows that deceased was set on fire by the accused persons because they were nearest to the deceased and were having every opportunity to go back to their house after setting the deceased on fire. It is further clear that deceased was not carrying any match box or any other instrument with him to set himself on fire to commit suicide because no match stick/ any other instrument, with the help of which fire could have been lit, was found at the spot. It can not be expected from a person, who is going to commit suicide that after setting himself on fire, he will put the match box/ any other instrument in his pocket. Even remains of the match box / any other instrument, have not been found in the articles, which were found at the spot.
140. The presence of the one wet pillow also shows that someone tried to save the deceased because skin of the deceased was found on the same and the sieve also shows that some lady reached at the spot and tried to save the deceased, who might have been working in the kitchen at that time and on hearing the hue and cry, she reached at the spot and tried to save the deceased.
141. From the statement Ex. PW-17/A, it is clear that incident took place in front of the house of the in-laws of the deceased. In the 58 statement, the deceased has stated that he came out of the house where his in-laws started abusing him and meanwhile, accused Naresh and Sanjay poured petrol on him and set him on fire. In these circumstances, it was very easy for accused both to went back inside their house after committing the murder of deceased and because of that they were not seen by the witnesses at the time of the incident.
142. The deceased told the facts to PW-2,6 and 7. Nothing came out from their cross examination. Their testimonies can be relied upon in all manner and inspire confidence because they have corroborated with Ex. PW-17/A. In this respect, I would like to rely upon the judgment Kapoor Singh Rana Vs State of Delhi, ILR (2005) II Delhi 961, wherein it has been held that it is important that all the material facts given by a witness during investigation should be recorded under section
161. But the statement under section 161 is obtained by the investigating officer on interrogation. Therefore, certain aspects may not find their place in a statement under section 161 Cr. P. C. In the present case the evidence of the mother of the victim, PW-1, says that she arrived at the spot immediately after the occurrence. She being the mother of the victim, the natural sequence of events on her arrival at the 59 spot and on finding her daughter in distress will be an enquiry as to what had happened and as to who did it. The natural reaction of the mother would be first to ask as to what had happened and having got the answer to this question would be to ask as to who has done it. Although, the immediate concern will be to get medical aid to the daughter, the mother's anxiety to know these details will be equally urgent. The statement under section 161 Cr. P. C. makes no mention as to any talk between the two.
143. It has been further held that it is clear that the statement has not been recorded in respect of the important fact of any talk with the daughter altogether. At the same time, it cannot be believed that the mother and the daughter did not talk about this detail at all. Perhaps the investigating officer felt assured with the statement of the victim herself and, therefore, did not require another witness to give these facts. Obviously, he did not put this question to the witness and, therefore, the statement under section 161 Cr. P. C. is lacking in these details. Such omissions as in the present case should not be taken as contradiction.
144. I further relied upon the judgment Kapoor Singh Rana Vs State of Delhi, ILR (2005) II Delhi 961, wherein it has been held that 60 suffice it to say that the statement is a part of the res gestae as codified in Section 6 of the Indian Evidence Act. It has come to be a rule of exception to the hearsay evidence. A fact or a statement of fact or opinion, which is so closely associated in time, place and circumstances with some act or event, which is in issue, that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence. The justification given for the reception of such evidence is that the light that it sheds upon the act or event in issue is such that in its absence, the transaction in question may not be fully or truly understood and may even appear to be meaningless, inexplicable or unintelligible. The testimony of the mother in respect of what the victim told her immediately on her arrival at the spot can, therefore, safely be read in evidence.
145. It has been also held that it is a well settled principle of law that it is not the quantum of evidence that matters. If the evidence of the prosecution is sufficient to convince the court about the culpability of the accused he can be convicted even on the testimony of one witness. The rule of corroboration as it is commonly said, is a rule of prudence only, not a mandatory rule for acceptance of any evidence. 61
146. In view of the settled proposition of law, it is clear that depositions of PW-2,6 and 7 are admissible in evidence as told to them by the deceased and also as told by the deceased to the IO.
147. According to Ex. PW-21/A, which is a request letter given by the IO Inspector Shiv Dayal, to conduct autopsy on the body of deceased Sanjay Kumar. Short history has been mentioned that the victim has stated that he has been set on fire by his relatives. Similarly, in the death summary Ex. PW-14/A, short history as given by the patient himself was only of homicidal flame burn by pouring petrol over him by his in-laws and set him on fire. PW-14 has not been cross examined by the learned defence counsel in any manner nor it was suggested that the deceased committed suicide.
148. In Ex. PW-15/A i.e. postmortem examination report, alleged brief history has been given that Sanjay was being burned by his brother in-laws on 15.07.2004 at 8.30 PM. PW-15 has also not been cross examined by the learned defence counsel in any manner and it has also not been suggested to the witness that this was the case of suicide.
149. In the MLC Ex. PW-5/A, it is mentioned that alleged history is assault, burning caused by his relatives as told by the patient himself. 62 PW-5 has also not been cross examined by the learned defence counsel in any manner and neither it has been suggested to the witness that this was the case of suicide nor it has been suggested that the alleged history was forged and fabricated.
150. From the above, it is clear that the alleged history as given by the patient was consistent and was in accordance and in corroboration of statement Ex. PW-17/A. Even in letter Mark X, the deceased has mentioned that he was threatened by his in-laws that he will be killed by pouring petrol on him and by setting him on fire.
151. The motive to kill the deceased Sanjay is clear from the circumstances, which are mentioned in letter Mark X and also from the change of nomination Ex. PW-1/A read with statement Ex. PW-23/A and Ex. PW-23/B.
152. The letter Ex. PW-1/A is written by the deceased to the Director, Patel Chest, regarding the change of nomination. In letter Mark X, he has alleged that his in-laws threatened him to kill him by pouring petrol on him and by setting him on fire. Simultaneously, it is mentioned that he is going to commit suicide and for his death, his in-laws will be responsible. In respect of the theory of the suicide as projected by the 63 learned defence counsel, all the DWs examined by the accused persons have not been able to depose inspiring confidence truthfully that they have seen the deceased committing suicide. DWs have not corroborated each other in any manner and also their testimonies are inconsistent with the evidence brought on record by the prosecution and documents proved by the prosecution. The testimonies of the DWs have contradicted even with the record proved by the prosecution in this case.
153. PW-1 is Sh. K. Radhakrishnan. He has stated that he is working as PS to the Director VP Chest Institute, University of Delhi. On 15.07.2004 at about 5.30 PM, deceased came to him and delivered a letter to him. On receipt of letter, he put his signatures at portion A with date and time. The letter Ex. PW-1/A is also signed by deceased. This witness has also not been cross examined by the learned defence counsel in any manner.
154. PW-3 is Govind Ram, Assistant Registrar, V.B. Chest Institute, University of Delhi. He has stated that deceased had delivered a letter in the office, which was received in the office in due course. On 20.08.2004, he had handed over three letters dated 04.11.1999, 64 02.04.2002 and 15.07.2004 to the police which were seized by police vide memo Ex. PW-3/A, bearing his signatures at point A. The letters are Ex. PW-1/A, Ex. PW-3/B and Ex. PW-3/C.
155. He has further stated that the letter Ex. PW-3/C is regarding confirmation of deceased. All the three letters bear the signatures of deceased and the letter Ex. PW-1/A and Ex. PW-3/C are in the handwriting of deceased Sanjay. This witness has not been cross examined by the learned defence counsel in any manner.
156. PW-12 is ASI Rattan Kumar. He has corroborated with PW-1 and 3 and has stated that on 20.08.2004, he joined the investigation with SI Baljeet Singh and had gone to Patel Chest Institute, Delhi University, Maurice Nagar and there they met one Gobind Ram, Assistant Registrar, Delhi University, who produced three letter written by deceased Sanjay. The same were seized by the IO vide memo Ex. PW- 3/A which bears his signatures at point B. The letters are placed in the file as Ex. PW-1/A, PW-1/B and Ex. PW-3/C. PW-12 has not been cross examined by the learned defence counsel in any manner.
157. PW-4 is SI Ashok Kumar, Incharge, Mobile Crime Team, Central District. He has stated that on 15.07.2004, he was informed by 65 DO police station Pahar Ganj about the receipt of call from police station Karol Bagh, Delhi and to visit Gali No. 5, Balmiki Colony, police station Karol Bagh. He alongwith crime team including HC A. K. Krishanan, Photographer and the driver and a helper, reached at the spot at about 11 PM and examined the spot for 40 minutes and prepared the report Ex. PW- 4/A.
158. PW-10 is A. K. Krishnan. On 15.07.2004, on the request of DO police station Karol Bagh, he alongwith the crime team reached at Gali No. 5, 100 quarters, Balmiki Colony, Karol Bagh. He saw burnt wood, one plastic cane, some flour (atta) and one wet pillow. He took 4 photographs. Positives of the same are Ex. PW-10/A to Ex. PW-10/D and the negatives of the same are Ex. PW-10/E to Ex. PW-10/H.
159. According to the report Ex. PW-4/A, they found one four litre cane, one sieve, half burnt wood, flour and one wet pillow and seized these articles.
160. Both these witnesses have not been cross examined by the learned defence counsel in any manner. It is not suggested to the witnesses that the said articles were not found at the spot. It is also not suggested to the witness that he did not inspect the spot and did not 66 take the photographs of the spot.
161. PW-9 HC Rajpal has stated that on 15.07.2004, he was posted in Central Zone PCR. At about 10.15 PM, when he was on PCR Van 0- 49 as IC van, he received one information that one person had burnt. He reached at the spot. Crowd was gathered there. He met one person in burn condition who told his name Sanjay, who was crying. He also saw one wet pillow stained with flour, one plastic cane and wet surface of the gali. He shifted that burnt to JPN hospital in PCR. He was admitted in the hospital at 10.45 PM. Duty constable present in the JPN hospital was informed by him. On the next day, IO of the case contacted him and on his pointing, IO prepared the site plan of the place of occurrence at 11 AM. IO also recorded his statement.
162. PW-8 is constable Ram Babu. He has further corroborated with PW-9 that on 15.07.2004, he was posted as duty constable at LNJP Hospital and his duty hours were from 8 AM to 8 AM next morning. At about 10.45 PM on 15.07.2004, Sanjay Kumar S/O Hari Kishan was brought in burnt condition by PCR officials. He was totally burnt from head to toe. He was not having any clothes on his body. Both these witnesses have not been cross examined by the learned defence 67 counsel in any manner.
163. PW-17 is ASI Vijay Kumar. He has stated that on 15.07.2004, he was posted at police station Karol Bagh. On that day, on receipt of DD No. 38A at 10.15 PM, he alongwith PW-11 constable Diwan had gone to Gali No. 5, 100 quarters, where he came to know that one injured Sanjay was taken by PCR to JPN Hospital. During this time, PW-13 beat constable Tara Chand also reached the spot. He directed him to remain at the spot to preserve the same. He alongwith PW-11 reached at JPN hospital. He collected MLC of injured Sanjay. Then he went to burn ward. Injured Sanjay was fit for the statement and on the MLC, it was mentioned that patient was brought with alleged history of assault burning caused by his relatives. Patient was stated to be having 85% burns. He recorded the statement Ex. PW-17/A of Sanjay. He prepared rukka Ex. PW-17/B and gave the same to PW-11 for registration of case, who left for the police station. He came back at the spot. The spot was photographed by the Crime Team after due inspection by the Incharge of Crime Team.
164. At the instance of PW-9, he prepared site Plan Ex. PW-17/C. He found one plastic cane, one half burnt wet pillow having burnt skin on it, 68 some pieces of burnt wood and one plastic sieve at the spot. He had sealed the above articles in four separate pullandas with the seal of VKJ and seized the same vide seizure memo Ex. PW-11/A. PW-11 had brought the copy of FIR at the spot alongwith rukka which was given to him. He had recorded the statement of public witnesses namely Rajinder and Ashok. He also recorded the statements of police officials. In the morning, information was received regarding the death of Sanjay vide DD no. 11B. True copy of DD No. 11B is Ex. PW-17/D. True copy of DD no. 38A is Ex. PW-17/E. Thereafter, the investigation was transferred from him.
165. PW-11,13 and 17 have identified the case property before the court. Two wooden burnt pieces, one half burnt pillow, one sieve and one half burnt plastic cane as Ex. P-1 to P-4.
166. PW-11 and 13 have not been cross examined by the learned defence counsel in any manner. PW-17 has been cross examined by the learned defence counsel. PW-17 has admitted that as per DD no. 38A, the information received was that one person has set himself on fire. He has denied the knowledge of any vigilance enquiry or its findings. He has also denied the suggestion that during the investigation, 69 neighbourers and other persons of the gali told him that the deceased committed suicide. He has also denied the suggestion that statements were given by Puran Chand, Surinder, Ved Parkash, Nand Lal, Jai Parkash, Atma Ram and Dharam Pal and he had intentionally concealed those statements. He has further denied the suggestion that deceased gave him a false statement. He has further denied the suggestion that deceased gave his statement Ex. PW-17/A before death as tutored by his family members.
167. PW-16 is Inspector Davinder Singh, who on 22.09.2004, on the request of IO, Inspector Shiv Dayal, reached at the place of occurrence and took rough measurement on the pointing out of ASI Vijay Kumar. On the basis of those rough notes and measurement, he prepared scaled site plan Ex. PW-16/A. After preparation of the scaled site plan, rough notes were destroyed.
168. PW-18 is HC Jagbir Singh, who on 16.07.2004, was working as Malkhana Moharrar at police station Karol Bagh. On that day, ASI Vijay Kumar had deposited four pullandas sealed with the seal of VKJ which were deposited vide entry no. 2502 in register no. 19. On 16.07.2004 itself, SHO Inspector Shiv Dayal had also deposited a pullanda sealed 70 with the seal of MAMC, which was also deposited vide entry no. 2502 in register no. 19.
169. On 13.10.2004, the pullandas were sent to FSL, Hyderabad. Thereafter, on 28.12.2004, result with case property was received which was deposited by HC Prem Singh. Entry to this effect was also made in the register. Copy of entry no. 2502 is Ex. PW-18/A and Ex. PW-18/B. Entry of sending the exhibits is Ex. PW-18/C and entry of receipt of result is Ex. PW-18/D.
170. Both these witnesses have not been cross examined by the learned defence counsel, hence their testimonies went unrebutted and unshaken.
171. The further investigation was carried by PW-20 and 21, who have stated that on 19.07.2004, they both alongwith other staff searched for the accused persons. Accused persons were arrested from their residence at 100 quarters, Balmiki Colony, Gali No. 5. Personal Search of accused Rakesh @ Sanjay Ex. PW-20/A and Personal Search of accused Naresh Ex. PW-20/B were conducted. He has also prepared arrest memo of accused Rakesh Ex. PW-20/C and of accused Naresh Kumar Parcha Ex. PW-20/D. On 20.07.2004, the disclosure statement of 71 accused Rakesh Ex. PW-20/E and of accused Naresh Ex. PW-20/F were recorded.
172. On 20.08.2004, as per the directions of PW-21, PW-20 alongwith ASI Rattan Kumar had gone to Patel Chest Institute, Delhi University and from there he had collected three letters which were concerning the death of deceased Sanjay Kumar. One of the letter was dated 15.07.2004 which was relating to his death allegedly written by deceased himself and two letters were dated 04.11.1999 and 02.04.2002 which were admitted handwriting of the deceased. All the three letters were seized vide seizure memo Ex. PW-3/A. The documents were collected from Assistant Registrar, Gobind Ram. He had also recorded his statement. He had also examined PS to Director, Radha Krishnan, who had received the letter dated 15.07.2004 from deceased. He recorded the statement of Radha Krishnan and ASI Rattan Kumar. The letters are Ex. PW-1/A, Ex. PW-3/B and Ex. PW- 3/C. On 20.09.2004, he had taken the letters vide RC No. 413/04 from record and deposited the same at FSL, Rohini for obtaining the comparison reports.
173. PW-21 has further stated that the present case was being 72 investigated by ASI Vijay Kumar and was initially registered under section 307/34 of IPC. Information was received from the hospital vide DD no. 11B that injured Sanjay Kumar had expired. He took up the investigation and Section 302 of IPC was added. Special report was also sent to Senior Police Officers as well as to the learned Area Magistrate. He prepared the inquest papers which are collectively Ex. PW-21/A running in six pages. He got the postmortem conducted on the dead body. After the postmortem, dead body was handed over to the relatives of the deceased vide receipt Ex. PW-2/B. He also recorded the statement of witnesses. He had also seized scalp hair sealed in a pullanda sealed with the seal of MAMC alongwith sample seal vide seizure memo Ex. PW-21/B.He had also visited the place of incident and got prepared the scaled site plan Ex. PW-16/A.
174. On 21.07.2004, he had also received letter Mark X in the Office through Dak received from DCP Office. He had sent SI Baljeet Singh to make enquiry regarding the letter Mark X and SI Baljeet Singh had obtained letter Ex. PW-1/A from Patel Chest Institute. SI Baljeet Singh had obtained the admitted handwriting of deceased Sanjay Kumar. Letter Mark X and Ex. PW-1/A with admitted handwriting were sent to 73 FSL, Rohini for comparison.
175. In the cross examination, PW-20 has admitted that letter Mark X was also sent for comparison to FSL, Rohini. It is again suggested to PW-20 that if there was any vigilance enquiry conducted regarding this incident. He has denied the knowledge if the statements of Puran Chand, Surender , Ved Parkash, Nand Lal, Jai Parkash, Atma Ram and Dharam Pal were recorded in that enquiry.
176. PW-21 has not been cross examined by the learned defence counsel on any material aspect.
177. To prove the MLC and postmortem report, prosecution has examined PW-14 and PW-15.
178. PW-14 is Dr. Kavish Rohatgi, who had certified on the MLC of Sanjay Kumar Ex. PW-5/A that the patient was fit for statement as mentioned on MLC Ex. PW-5/A at portion B. He had also prepared the death summary Ex. PW-14/A of the patient Sanjay Kumar vide CR No. 456336. The patient was having burns of 90% on total body surface area.
179. PW-15 is Dr. Rohit. He has stated that on 16.07.2004, he had conducted the postmortem examination on the dead body of Sanjay 74 Kumar and prepared his detailed postmortem report no. 465/04, which is Ex. PW-15/A. In his opinion, the cause of death was due to shock consequent upon dermo-epidermal burns. All the burns were ante mortem and were recent in duration and could be due to flame as a result of fire. The hairs were preserved to detect the presence of petrol / K. Oil remnant. The opinion is expressed at portion B of the report.
180. Both these witnesses have not been cross examined by the learned defence counsel in any manner. Nothing has been suggested to PW-14 that deceased was not fit for the statement and was not capable to make any kind of statement or was not able to speak clearly as recorded by the IO as Ex. PW-17/A.
181. From the depositions of PW-2,6 and 7, the prosecution has been able to prove the fact that the deceased Sanjay was killed by the accused persons by pouring petrol on him and by setting him on fire. The testimonies of PW-2,6 and 7 are unshaken and inspire confidence. The testimonies of these witnesses are admissible in view of the judgments relied upon by me as cited above.
182. The statement of the deceased Sanjay Ex. PW-17/A is also proved by the prosecution beyond reasonable doubts with the 75 depositions of PW-14, who has given his opinion that patient was fit for the statement and accordingly, statement of the deceased Sanjay was recorded by the IO on which the rukka Ex. PW-17/B was prepared and on the basis of which FIR Ex. PW-19/A was recorded. The alleged history as given in MLC Ex. PW-5/A, is of burning caused by his relatives.
183. The material recovered from the spot, which was seized vide memo Ex. PW-11/A also shows that deceased was set on fire by the accused persons by pouring petrol on him. No match box or any other instrument, was recovered. After setting the deceased on fire by pouring petrol on him, both the accused persons went back inside their house because the spot is just outside the house of the accused persons and it has also not been brought on record that it was impossible for the accused persons to reach back in their house from the spot after pouring the petrol on deceased and setting him on fire. If the deceased was having an intention to commit suicide then he would have carried with him a match box or any other instrument to set himself on fire but the same has not been recovered from the spot, which shows that he had neither any intention to commit suicide nor he committed 76 suicide.
184. From the DD Ex. PW- 23/C and Ex. PW-23/D alongwith the statements Ex. PW-23/A and Ex. PW-23/B and thereafter letter Ex.PW- 1/A by which the deceased changed the nomination and letter Mark X, which has been proved to be in the handwriting of the deceased and bearing his signatures and from the report of FSL Ex. PW-22/B, it is clear that the accused persons were having motive to commit murder of the deceased. Identity of the accused persons are not in dispute as they are brother-in-laws of the deceased. The letter Mark X shows the mental status of the deceased on that day. It is also mentioned that the accused persons threatened him to kill him by pouring petrol on him and by setting him on fire. The in-laws of the deceased were not sending back the wife and daughter of the deceased with him. On that day, since morning, the deceased approached again and again his in-laws to send back his wife and daughter. No sufficient reason has been brought on record as to why they were not sending the wife and dau ghter of the deceased with him. It is claimed that the wife of the deceased was suffering from TB but strangely the wife of the deceased has not been examined by the accused persons in their defence. 77
185. During the investigation, police officials prepared site plan and scaled site plan. MLC of deceased was collected. Deceased died in the hospital after sometime, during the investigation, information regarding the death of the deceased was received vide DD no. 11B Ex. PW-17/D. Postmortem of the dead body was conducted. According to the opinion of the doctor, the cause of death was due to shock consequent upon dermo-epidermal burns. All the burns were ante mortem and were recent in duration and could be due to flame as a result of fire. After the postmortem, the dead body was handed over to the relatives of the deceased vide receipt Ex. PW-2/B. Accused both were arrested and their personal search and arrest memos were prepared.
186. The prosecution witnesses have corroborated each other in all manner and inspired confidence and have completed the chain of evidence against the accused persons beyond reasonable doubts. On the other hand, the defence witnesses examined by the accused persons have not corroborated each other. Their depositions are contradicted with the facts and circumstances and also with the timings of the incident. The outcome of the vigilance enquiry has no effect on the case of the prosecution in any manner.
78
187. The judgments relied upon by the counsel for the accused persons are not applicable to the facts and circumstances of the present case. Had it been the intention of the deceased to commit suicide then he would not have mentioned about the threats which were given by the accused persons to kill him by pouring petrol on him and setting him on fire in letter Mark X. In the letter mark X, deceased has stated that he is going to commit the suicide and for his death, his in laws will be responsible. From the depositions of the witnesses and the circumstances brought and proved on record, it is clear that deceased had not committed suicide rather he was killed by the accused persons by pouring petrol on him and by setting him on fire.
188. In view of the above discussions, prosecution has been able to prove beyond reasonable doubts offence punishable under section 302/34 of IPC against both the accused persons namely Rakesh @ Sanjay Parcha and Naresh Kumar Parcha, hence both are held guilty and are convicted for the same.
ANNOUNCED IN THE OPEN COURT ON 20.08.2007.
(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.
7920.08.2007.
Present :- APP for the State.
Accused both present on bail with counsel Sh. S. A. Hashmi. An application under section 311 of Cr. P. C. to recall PWs-5, 14, 15 and 17. Heard. Said PWs were recorded long back i.e. on 26/09/2005, 12/04/2006, 12/04/2006 and 27/04/2006 respectively. The application is moved at a highly belated stage. Today the matter is already fixed for orders, hence such application can not be entertained at this stage. Accordingly, the same is dismissed.
Vide judgment announced of even date on separate sheets, accused Rakesh @ Sanjay Parcha and Naresh Kumar Parcha are held guilty for offences punishable under section 302/34 of IPC and are convicted for the same.
Adjourned for arguments on sentence on 22/08/2007.
(V. K.GOYAL) ASJ/DELHI.
20.08.2007.
80IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI. SESSION CASE NO. 10/05.
STATE VERSUS
1. RAKESH @ SANJAY PARCHA, S/O RAMESH CHAND, R/O 10812, BALMIKI COLONY, KAROL BAGH.
DELHI.
2. NARESH KUMAR, S/O RAMESH CHAND, R/O 10812, BALMIKI COLONY, KAROL BAGH.
DELHI.
ORDER ON SENTENCE :-
22.08.2007.
Present :- APP for the State.
Both the accused/convicts produced from JC with counsel Sh. S. A. Hashmi.
Heard on sentence.
It is submitted by the learned counsel for the convicts that convict Rakesh @ Sanjay is aged about 37 years and is having two minor children. Accused Naresh is aged about 35 years and has been married in February, 2007 and his wife is pregnant. It is further submitted that father of both the convicts has suffered heart attack and is not well. There is no male member to look after their father. It is also submitted that they are the only bread earner of their family. Both the convicts have not involved 81 previously in any case nor habitual offender and have not been convicted by any court in any matter.
On the other hand, the learned APP has contended that considering the offence proved against the convict both, maximum punishment be awarded.
I have considered the submissions of the learned defence counsel and learned APP, both the accused are convicted for offence punishable under section 302/34 of IPC, which is punishable with death or imprisonment for life.
The learned defence counsel has contended that case of both the convicts does not fall within the ambit of rarest of rare case. In view of the above, sentence of imprisonment for life is imposed for offence punishable under section 302/34 of IPC with a fine of Rs.25,000/-each upon both the convicts. In case of default, both the convicts to undergo further three years RI.
Out of the total fine amount i.e. Rs.50,000/-, Rs.35,000/- be given as compensation to the younger sister Arti and mother of the deceased after expiry of the period of appeal or if appeal preferred then after the disposal of the appeal.
Benefit of section 428 of Cr.P.C. be given to both the convicts. Fine not deposited. Convicts both are remanded to serve the sentence. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 22.08.2007.
(V. K.GOYAL) ADDITIONAL SESSION JUDGE, DELHI.
8222.08.2007.
Present :- APP for the State.
Both the Convicts produced from JC with counsel.
Vide judgment and order on sentence announced of even date on separate sheets, sentence of imprisonment for life is imposed for offence punishable under section 302/34 of IPC with a fine of Rs.25,000/- each upon both the convicts. In case of default, both the convicts to undergo further three years RI.
Out of the total fine amount i.e. Rs.50,000/-, Rs.35,000/- be given as compensation to the younger sister Arti and mother of the deceased after expiry of the period of appeal or if appeal preferred then after the disposal of the appeal.
Benefit of section 428 of Cr.P.C. be given to both the convicts. Fine not deposited. Convicts both are remanded to serve the sentence. File be consigned to record room.
(V. K.GOYAL) ADDITIONAL SESSION JUDGE/DELHI.
22.08.2007.