Delhi District Court
Down By The Hon'Ble Supreme Court In ... vs . on 22 August, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE, FAST TRACK COURT
ROHINI : DELHI
SC No. 1/2 dated 02.11.2006
Date of Decision: 22nd of August, 2007
State
Versus
1) Rajender Singh
S/o Sh. Om Prakash
R/o Jhuggi No.15A,
139, Indra Vikas Colony,
Nirankari Colony,
Delhi.
2) Om Prakash
S/o Late Sh. Jai Pal
R/o Jhuggi No.15A,
139, Indra Vikas Colony,
Nirankari Colony,
Delhi.
3) Smt. Angoori
W/o Sh. Om Prakash
R/o Jhuggi No.15A,
139, Indra Vikas Colony,
Nirankari Colony, Delhi
FIR No. 529/2004
PS Mukherjee Nagar
U/s. 498-A, 304-B, 201 IPC r.w. Section 34 IPC
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JUDGMENT
First the Facts Rajender Singh (accused) is son of his co- accused Om Parkash and Angoori Devi. Mamta Rani (since deceased) wife of Rajender Singh died on 8.12.2004 on account of burns on her person at the matrimonial home i.e. 139, Indra Vikas Colony, Nirankari Colony, Delhi. All the three accused are alleged to have subjected Mamta Rani to cruelty on account of non fulfillment of their demand of dowry and then caused her death and thereby made themselves liable for offences under Section 498 A IPC and 304 B IPC.
Case of prosecution is that Mamta Rani (since deceased), sister of Rohtash Singh, was married to Rajender Singh accused, in the year 2001. After the marriage, there used to remain dispute between Rajender Singh and his wife (since deceased), on account of dowry. All the accused and Bala sister in law of Mamta Rani (since deceased) used to beat her (Mamta), on account of dowry. As and when accused persons expelled Mamta Rani (since deceased) from the matrimonial home, she used to visit her parental house and tell her parents about the beatings given by accused -:3:- persons.
Case of prosecution is that Rajender Singh and Om Prakash accused put forth demand of a motor vehicle from Rohtash Singh, a year prior to death of Mamta Rani (since deceased). At that time, accused had expelled her from the matrimonial home. Rohtash Singh and his mother came to the house of accused persons to enquire as to why Mamta was given beatings. While Rohtash Singh and his mother reached the matrimonial home of Mamta Rani (since deceased), accused tried to give them beatings. Rohtash Singh informed PCR staff whereupon Rajender Singh and Om Prakash accused were arrested by the police. Both the accused were found drunk and got medically examined.
On 07.12.2004, Mamta Rani was brought to LNJPN hospital with alleged history of burns. She was so brought to the hospital by PCR staff. There, she was medico legally examined by Dr. Arvind Gupta.
On the same day at 2.05 p.m, Wireless Operator of P.S. Mukherjee Nagar, informed ASI Bhagwan Devi, the duty officer, that there was a message from Lady Constable Jitender Kaur of PCR, that a lady was burning at 138, Nirankari Colony, near Gurudwara and Pepsi factory. ASI -:4:- Bhagwan Devi then recorded DD No. 12A and handed over the same to Constable Devender Kumar for its delivery to SI Ranbir Singh. Rohtash Singh received information from his brother Mukesh Kumar that Mamta had been set on fire. Thereupon, Rohtash Singh accompanied by his brother, his maternal aunt, his mother's sister and maternal grandmother reached the house of accused.
Further it is case of prosecution that a week prior thereto the present occurrence, Mamta, (since deceased) visited the house of her brother Rohtash Singh and told that the accused and Bala, her sister in law, were maltreating her on account of dowry.
On 07.12.2004, on reaching the house of accused and then Irwin Hospital. On reaching the hospital, Rajender Singh accused was found present there whereas Mamta was lying on a bed. She told her brother Rohtash Singh in the hospital that all the accused and her sister in law Bala were giving her beatings and that when she tried to flee away, all of them, caught hold of her, bolted the door and set her on fire.
On the same day, SI Ranbir Singh, IO of this case, accompanied by HC Jaipal Singh, reached jhuggi No. N-15A, 139, Indira Vikas Colony, Delhi i.e. house of accused, -:5:- after receiving DD No. 12A. On reaching there, police learnt that injured had already been removed to LNJPN hospital by CATs vehicle. A girl aged 8 years, named, Pooja, met the police at the spot. The IO left one constable at the spot and himself reached the hospital. Dr. Ajay Sagar opined that Mamta was fit to make statement. SI Ranbir Singh recorded statement of Mamta.
Sh. Bansh Raj Ram, SDM, Model Town, received information from P.S. Mukherjee Nagar, about admission of Mamta at LNJPN hospital in burnt condition and that she was married about four years prior thereto. Sh. Bansh Raj Ram was also informed that injured was unfit to make statement. At 8.20 p.m., the SDM reached the hospital but at that time, she (Mamta) was still unfit to make statement.
From the hospital, SI Ranbir Singh returned to the spot inspected it and found one patila (a utensil) and a stove lying there and seized the same. PW Atam Prakash, Photographer, reached the spot, took snaps of the place of occurrence where a stove and a patila were lying.
On 08.12.2004 left this world. Police was informed. SI Ranbir Singh accompanied by HC Jaipal also reached the hospital. The SDM, was also informed at about -:6:- 8.45 a.m. The SDM reached the hospital. The SDM instructed the IO for removal of dead body to mortuary of Maulana Azad Hospital. The SDM then reached the mortuary. He recorded statements of Mahender Singh-father, Rohtash Singh-brother; Premwati-mother of the deceased. The SDM then issued directions to the SHO to take immediate action under the law. On the basis of ruqqa sent by SI Ranbir Singh, ASI Ravi Singh (then HC), recorded FIR. Rajender Singh and Om Prakash accused were arrested. He also submitted application for autopsy whereupon Dr. Vinod conducted autopsy and submitted his report.
In the opinion of the doctor, cause of death of Mamta Rani was shock consequent upon burns involving about 85% of the total body surface area; all the injuries were antemortem in nature; recent in duration and could be caused due to flames of fire. However, the doctor preserved viscera to rule out possibility of any con-incidental common unknown poisoning. After autopsy, the dead body was delivered to Mahender Singh, her father. The sealed parcels collected by the IO from the doctor, after autopsy of Mamta, were seized.
On 08.12.2004, SI Ranbir Singh arrested Angoori accused. Reports were received from CFSL.On completion of -:7:- investigation challan was put in court.
Charge
Copies of documents relied upon by the
prosecution came to be supplied to the accused persons by learned Metropolitan Magistrate. It was thereafter that the case was committed to the Hon'ble Court of Session. Prima facie case having been made out, on 18/07/2006, charge for offences u/s 498A, 304B read with section 34 IPC was framed against all the three accused. Since the accused pleaded not guilty and claimed trial, prosecution was called upon to lead its evidence.
Prosecution Evidence In order to prove its case, prosecution examined following fourteen witnesses:
PW-6 Rohtash Singh is brother; PW-12 Mahender Singh is father whereas PW-13 Premwati is mother of Mamta Rani (since deceased).
Medical evidence is available in the statements of PW-3 Dr. Ritu Saxena who has been examined to prove handwriting and signatures of Dr. Arvind Gupta on MLC Ex.PW-3/A prepared on 07/12/2004, on medico legal -:8:- examination of Mamta. PW-8 Dr. Ajay Sagar proved his endorsement at point A to A on MLC Ex.PW-3/A to the effect that Mamta was declared fit to make statement. PW-9 Dr. Vinod has been examined to prove autopsy report Ex.PW-9/A on the dead body of Mamta.
PW-1 Sh. Bans Raj Ram, is the concerned S.D.M., who, on receipt of information regarding admission of Mamta in LNJPN Hospital with burns, reached the hospital at 08:20 p.m. on07/12/2004 but found that she was unfit to make statement. It was on 08/12/2004 that the SDM received information about death of Mamta and thereupon reached the mortuary, submitted written request for autopsy. PW-1 also deposed about recording of statements of parents and brother of Mamta. Those statements are Ex.PW-1/B to PW-1/D. He also proved his directions Ex.PW-1/E to the SHO for action in accordance with law. The witness also deposed about delivery of the dead body to father of the deceased.
PW-2 ASI Raj Singh has proved recording of FIR Ex.PW-2/A on the basis of ruqqa received from ASI Ranbir Singh.
PW-4 ASI Bhagwan Devi has proved recording of DD No.12A Ex.PW-4/A, on 07/12/2004 at 02:05 p.m., on -:9:- receipt of information that a lady was burning at 138, Nirankari Colony, near Gurudwara, Pepsi Factory.
PW-5 Atam Prakash is the photographer who reached the spot and took snaps of the place of occurrence where the stove and patila were found lying. Negatives Ex.PW-5/1 to PW-5/4 and positives Ex.PW-5/5 to PW-5/8 have been also proved.
PW-7 Ct. Vinod deposed to have collected the sealed parcel containing viscera from the MHC (M) and to have deposited it at C.F.S. L., Kolkata.
PW-10 Head Ct. Saira Bano, PW-11 Head CT. Jai Pal Singh, PW-14 SI Ranbir Singh deposed about the investigation part of the prosecution story. Defence Plea When examined u/s 313 Cr.P.C, the accused persons admitted the factum of marriage of Mamta with Rajender Singh but came forward with the plea that the marriage took place on 25/02/1997 and not in the year 2001 as put forth by the prosecution. They also admitted inter-se relationship. However, all of them denied all other incriminating circumstances appearing in evidence against -:10:- them.
As regards the incident dated 07/12/2004, Rajender Singh accused pleaded in the manner as under:
"On 07-12-2004, I was not at my house. I was away to a factory in the area of Azadpur to do my job. I returned home at about 7:7:30 p.m. At that time, my daughter told me that clothes of my wife caught fire while she was boiling water on stove. On that day, my father was away to Karnal. When I returned to my house, my mother was not present there. Rest I do not know."
Om Prakash accused denied all the incriminating circumstances appearing in evidence against him. As regards the incident dated 07.12.2004, Om Prakash accused came forward with the plea that he was away to Karnal.
Angoori accused also denied all the incriminating circumstances appearing in evidence against her and as regard incident dated 07/12/2004, she came forward with the plea that she was away to a village in Gurgaon for the last two days.
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In defence, accused have examined DW-1 Sh. Phool Singh. According to DW-1, on 07/12/2004, at about 2 p.m., one ambulance reached Indra Vikas Colony where he was putting up. Persons alighted from the Ambulance and went towards the house of the accused while he stood by the side of ambulance. He further deposed that the aforesaid person brought Mamta from the house of the accused and asked him to help the removal of Mamta to the ambulance. He helped them and also accompanied to Irwin Hospital where Mamta was got admitted and medico legally treated. It is also in his statement that at about 4 p.m., the investigating officer reached the hospital while Mamta was unconscious. She regained consciousness at 06:30 p.m. Doctor reached there at about 06:30 p.m. and declared Mamta fit to make statement and it was thereupon that the investigating officer recorded her statement.
In his statement, DW-1 further stated as to what was told by Mamta to the investigating officer. As per his version, Mamta told that on that day she was boiling water at her house at about 01:45 p.m. on the stove as she wanted to take bath. At that time, flames of stove set her on fire. The witness proved his signatures at point B on the statement -:12:- made by Mamta which is Ex.PW-14/A. Arguments heard. File perused.
Discussion As noticed above, all the accused persons have been facing trial for offences u/s 498-A & 304-B IPC. In a case u/s 304-B IPC, prosecution is required to prove following essentials "(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(2) Such death must have occurred within 7 years of her marriage;
(3) Soon before her death the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry."
In this respect reference may be made to law laid down by the Hon'ble Supreme Court in Harjit Singh Vs. State of Punjab, 1 (2006) DMC 11 (SC).
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So far as demand of dowry is concerned, provision of Section 2 of Dowry prohibition Act defines Dowry. Under this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly.
(a) by one party to a marriage to the other party to a marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person
(c) at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to who the Muslim Personal Law (Shariat) applies.
In this case, as per medical evidence available in the statement of Dr. Ritu Saxena, Mamta was brought to hospital with alleged history of burns and in this respect MLC -:14:- Ex.PW-3/A was prepared by Dr. Arvind Gupta. Autopsy report Ex.PW-9/A proved by PW-9 Dr. Vinod would reveal that following injuries were observed on the person of Mamta:
On external examination superficial to deep antemortem burn injuries present all over the body except lower half of front of right lower limb, back of right lower limb and both soles covering about 85% of the total body surface area. Redness was present at places. Blackening was present at places. Singing of hair was present at place. Peeling of skin was present at places exposing reddened & hardened base. No smell of kerosene was present.
In the opinion of the doctor, cause of death was shock consequent upon burn injuries involving about 85% of total body surface area; that all the injuries were antemortem, recent in duration and could be caused due to flames of fires. Viscera was preserved and sent for analysis at CFSL, Kolkatta. On analysis of contents of viscera, vide report Ex.PX, the expert observed that no common poison could be detected in the contents of each of the exhibits.
From the medical evidence, it stands established that Mamta left this world on 08.12.2004 because of burns. -:15:- Whether Mamta died within seven years of her marriage?
Learned defence counsel has challenged the version of prosecution regarding the date of marriage of Mamta. Therefore, the question arises as to whether Mamta died within seven years of date of her marriage. As regards date of marriage of Mamta, prosecution has examined PW6 Rohtash Singh, PW-12 Mahender Singh and PW-13 Premwati, brother, father and mother of the deceased respectively. According to PW-6, Mamta her younger sister was married in the year 2001. He denied that her marriage was solemnised on 25/02/97. Even according to PW-12, his daughter Mamta was married to Rajender accused on 25/02/2001. He denied the suggestion that her marriage was solemnised on 25/02/97. Even PW-13 Premwati deposed that Mamta was married four years prior to her death. In her cross examined, she denied that her daughter was married on 25/02/97.
Learned defence counsel has referred to the prosecution version narrated to PW-14 SI Ranbir Singh wherein he deposed that on 07/12/2004 when he accompanied by Constable Jai Pal reached the spot i.e Jhuggi No. N-15, B-39, Indra Vikas Colony, a female child, -:16:- aged about 8 years met them and told that her mother Mamta caught fire while she was burning the stove and that she had been removed to hospital, and argued that when the female child, aged about 8 years represented herself as daughter of Mamta, it cannot be said that Mamta was married in the year 2001. It is true that SI Ranbir Singh himself stated in court that on reaching the spot, a female child aged 8 years met them and told that her mother Mamta had caught fire. It stands recorded in ruqqa Ex.PW-14/B, sent by SI Ranbir Singh, for registration of the case that one Poonam, daughter of Prakash, met him at the spot. It does not stand recorded therein that the girl, aged 8 years, represented that she was daughter of Mamta or that of Rajender Singh S/o Om Prakash. Accused could lead evidence that any daughter was born from the wedlock of Mamta and Rajender Singh accused, about 8 years prior to the present occurrence. However, in this respect, no evidence has been led by the accused.
In Baljeet Singh & Anr. Vs. State of Haryana 2004 [1] JCC 627, Hon'ble Supreme Court observed that it was for the prosecution to produce evidence regarding date of marriage. It was further observed that the question whether -:17:- the defence has been able to establish its version regarding date of marriage is immaterial because in the first instance it was for the prosecution to establish the fact.
In this case, prosecution has not placed on record any documentary evidence to prove the date of marriage of Mamta (since deceased).
In view of the above discussion, when the parents and brother of the deceased have come forward with the version that Mamta was married in the year 2001 and prosecution has not led any cogent, convincing and documentary evidence regarding date of marriage, it can not be said that Mamta died "within seven years of her marriage". Whether there was any demand of Dowry from any of the accused?
In a case, under section 304-B IPC, it is for the prosecution to establish that demand of dowry was raised by the accused. As noticed above, in view of provisions of Section 2 of Dowry Prohibition Act, prosecution is also to establish that the demand was made before the marriage or at the time of marriage or after the marriage, and that too in connection with marriage.-:18:-
In this case, PW-12 Mahender Singh, father of Mamta deposed that six months after the marriage, Rajender accused put forth demand of a motorcycle. He then deposed that this demand was also put forth by Om Prakash accused, but he could not fulfill this demand. As to who told him about this demand, PW-12 replied in his cross examination that it was his daughter Mamta who told him and his wife in presence of their son Lalit Kumar and daughter Rakhi. However, he could not tell the date of this demand.
Present case was registered on the statement Ex.PW-1/B made by Mahender Singh before S.D.M. In that statement, Mahender Singh stated that three-four months after the marriage, all the three accused put forth demand of motorcycle. Therein he further stated that this demand was put forth in his presence and through his daughter. This version available in Ex.PW-1/B is therefore in contradiction with his statement made in court wherein he stated that the demand was put forth six months after the marriage; that it was put forth only by two accused namely Rajender Singh and Om Prakash. While making statement in court, Mahender Singh did not depose as to before whom this demand was put forth by them.-:19:-
As to when and by whom demand was put forth, in his cross-examination, recorded on the next date, PW12 deposed that after six months of the marriage of Mamta, when she was expelled from the matrimonial home, he visited the matrimonial home and it was at that time that Om Parkash accused put forth demand of motor cycle. For the second time, when he visited the matrimonial home of Mamta after a year of her marriage, all the accused put forth demand of motor cycle.
Had PW12 visited the matrimonial home of his daughter twice, PW6 and PW13 must have deposed about the same. It is pertinent to note that neither PW6 nor PW13 deposed that PW12 ever visited the matrimonial home of Mamta or that on return he told that demand of motor cycle was put forth even before him at the time of each of his visits. Had any such demand been put forth at the time of any such visit, PW6 and PW13 would not have omitted to state so.
PW-13 Premwati, mother of Mata deposed that her daughter told her after the marriage that the accused persons used to demand motorcycle but they could not supply any motorcycle as they were not in a position to supply any motorcycle. Ex.PW-1/D is the statement made by PW-13 -:20:- before the SDM. Therein it does not stand recorded that the accused persons put forth any demand of motorcycle. Had any such demand been raised by any of the accused, PW-13 would not have omitted to state so while making statement Ex.PW-1/D. There is nothing on record to suggest that any complaint was lodged with the police by Mamta or any of her relatives from the parental family to show that demand of motorcycle was put forth by any of the accused.
PW-6 Rohtash Singh has made statement in contraction with the statement of his father PW-12 by stating that Rajender and his father put forth demand of scooter and that too about a year prior to the death of his sister Mamta. As noticed above, according to PW-12, motorcycle was demanded and it was only six months after the marriage i.e. in the year 2001. Mamta died in the year 2004. So according to PW-6 demand was put forth in the year 2003, which is in contradiction with the version narrated by his father. .
In view of the above noticed inconsistencies in the statements of the three PWs regarding the demand, it is doubtful, if any such demand was put forth by any of the accused, at any point of time.-:21:-
Whether Mamta was subjected to any harassment or cruelty?
PW12 Mahender Singh deposed that he refused to fulfill the demand of motor cycle and it was thereafter that they started giving beatings to his daughter. He further deposed that usually Rajender, Om Parkash and Angoori used to give beatings.
He further deposed that as and when accused persons expelled his daughter from the matrimonial home, she used to visit parental house and tell them about beatings. In cross-examination, he told that his daughter visited the parental house 3/4 times after her marriage. It is significant to note that while making statement Ex.PW1/B made before the SDM, PW2 did not state that his daughter used to be expelled from the matrimonial home after beatings. He could not tell as to on which date he was told about the beatings. Had she been so ill-treated, either Mamta or her parents or brother could report the matter to police. PW2 admitted to have never informed police at the time of beatings to his daughter or at the time she was expelled from the matrimonial home.
PW13-Premwati deposed that after the marriage, all the three accused used to beat her daughter in connection -:22:- with dowry. A perusal of her previous statement Ex.PW1/D made before the SDM would reveal that therein she did not state that the accused persons used to beat her daughter. There is no explanation as to why in her statement Ex.PW1/D she did not state so. Therein, she stated that after the marriage, they started harassing her daughter. As noticed above, she nowhere stated before the SDM that accused persons had put forth demand of motor cycle. It is also pertinent to mention that in her statement Ex.PW1/D before the SDM, PW13 did not state that her daughter ever apprised her of any such demand. In the given circumstances, when in her statement made before the SDM she did not refer to any demand of motor cycle, it remains unexplained in her statement as to what else led to beatings to Mamta.
She further stated that when she accompanied her son Rohtash to the matrimonial home of Mamta, the accused persons gave beatings to Rohtash and as such PCR staff was informed, whereupon police took away all the three accused to the police station. In her cross-examination, she deposed to have so accompanied her son when her grandson was 5/6 months old.
On the other hand, according to PW6 Rohtash as -:23:- noticed above, that it was demand of a scooter (not that of motor cycle as stated by other PWs) which was put forth and that too one year after the marriage and further that it was on that occasion that he and his mother went to the house of the accused as to why his sister was given beatings. He further stated that at that time Rajinder and his three four companions tried to give beatings to him and his mother, whereupon her reported the matter to police. He further deposed to have informed PCR staff, whereupon Rajinder and Om Parkash accused were arrested and medically examined l since they were found drunk.
It may mentioned here that had PW6 and PW13 gone to the matrimonial home of Mamta, PW12 must have deposed about it. But PW12 nowhere stated about visit of his son and wife. Rather, he deposed about his own two visits to the matrimonial home.
Secondly, prosecution has not placed on record any evidence from PCR that after one year of the marriage of Mamta, Rohtash ever so called PCR staff or that PCR staff reached the house of the accused and then removed Rajinder and his father, accused, for medical examination and then they were arrested. In his cross-examination he categorically -:24:- stated that PCR prepared report and both these accused were arrested by police in his presence. However, no record from local police or PCR staff or any hospital has been produced on record in this regard to lend corroboration to the statement of PW6. There is nothing in the statement of Investigating Officer that he collected any such record from local police or PCR staff.
Thirdly, whereas PW13 deposed that he and her son were given beatings and that too by the accused persons, PW6 simply deposed about an attempt to give them beatings and further that such an attempt was made by Rajinder and his three/four companions (and not that his co accused joined him in such an attempt). It also remains unexplained as to how Om Parkash could be taken away by the PCR staff on that day in case he was not accompanying his son in an attempt to give beatings.
Fourthly, in chief-examination PW6 deposed that demand of scooter was put forth by Rajinder and his father, one year before the death of his sister and during those days his sister had been expelled from the matrimonial home and as such she was at parental house. So, according to PW6, he and his mother visited the house of the accused in the year -:25:- 2003. But, according to PW13, they came to the house of the accused when her grandson was 5/6 months old. She did not depose to have visited the house of the accused at the time her daughter was at the parental house or that she had been expelled from the matrimonial home.
Fifthly, it is nowhere in his statement Ex.PW1/C that he had gone to the house of the accused, to enquire from them as to why Mamta was given beatings. Therein, he also did not state that it was at the time of his visit in the company of his mother that they were given beatings. He simply stated therein that once the accused had given beatings to him and his mother.
Sixthly, while deposing in Court PW6 levelled allegations of beatings to Mamta at the hands of Bala, her sister in law. This is not only in contradiction with the statements of his parents PW12 and PW13 but also an improvement in his previous version narrated to the SDM in Ex.PW1/C as name of Bala does not stand recorded therein. PW6 tried to explain that he had named Bala as well, while making statement Ex.PW1/C, but Reader of the SDM refused to write down her name. In the next breath, he deposed that his statement was recorded by the Reader while SDM was -:26:- not present there. Then he deposed that the SDM was sitting in a vehicle lying parked at a distance of 50 feet from there. Thus, PW6 has disputed even recording of his statement Ex.PW1/C by or in presence of the SDM.
PW6 also stated in Court that a week prior to the present occurrence dated 07.12.2004 Mamta had come to parental house and told that Rajinder, his sister Bala and mother were maltreating her and that Om Parkash was also maltreating her on account of dowry. However, in this regard statement of PW6 is of no avail to the prosecution as in his cross-examination, he stated that he was not present at his house on that date and his sister could not tell him any incident of maltreating. Thus, statement of PW6 in this regard is hearsay evidence.
PW12 and 13 nowhere deposed about visit of Mamta at the parental house about a week prior to the presence occurrence.
In view of the above discussion, this court finds it difficult to believe the prosecution version that any of the accused at any point of time subjected Mamta to cruelty or harassment on any ground.
But it still remains to be adjudicated as to what led -:27:- to death of Mamta.
What led to death of Mamta?
Learned Addl. Public Prosecutor has argued that the accused persons set Mamta on fire resulting in her death, and as such they are liable to be convicted and sentenced under Section 304 B IPC. In this regard, learned Addl. Public Prosecutor has referred to the statements of brother and parents of Mamta and the oral dying declaration made by her in the hospital that she was set on fire by all the three accused.
On the other hand, learned defence counsel has referred to the evidence available in the statement of PW11 HC Jaipal Singh and PW14 SI Ranbir Singh, Investigating Officer, who were told by Puja, daughter of Mamta aged 8 years, that her mother caught fire while she was operating stove and that she had been removed to hospital. Learned counsel has also referred to the dying declaration Ex.PW14/A made by Mamta before SI Ranbir Singh in the hospital, wherein she stated to have caught fire while heating water on a stove so as to take bath with hot water.
As regards the oral dying declaration before PW6, -:28:- learned defence counsel contended that since Mamta was unfit to make statement at the time he and his parents reached the hospital, she could not make any such dying declaration, and as such there is no merit in the contention of learned Addl.Public Prosecutor that Mamta made oral dying declaration before her brother leveling allegations against the accused persons.
To appreciate the respective contentions of learned counsel for the parties, reference to the sequence of events and circumstances during the days of occurrence is of much significance. Case of prosecution is that on 7.12.2004 at 2.05 p.m. police received information from PCR staff that a lady on fire had been saved. In this respect, DD No.12 A ex.PW4/A recorded at the police station stands duly proved by PW4 ASI Bhagwan Devi, then posted as Duty Officer.
MLC Ex.PW3/A would reveal that Mamta was brought to LNJPN hospital, at 2.45 p.m by the staff of Alfa 9 CATS ambulance. Name of Pardeep Kumar of staff of ambulance stands recorded in the column meant for name or relative or friend of the patient. In the MLC, name of Rajendra Kumar husband of the patient also stands recorded as the person who brought the patient to the hospital. Medical -:29:- evidence would reveal that Mamta was brought with 80 burns. It was at about 5.55 p.m, that Dr.Ajay Sagar declared the patient fit to make statement.
PW14 SI Ranbir Singh accompanied by PW11 Head-Constable Jaipal reached the spot i.e. Jhuggi No.N-15, B-39, Indira Vikas Colony and then hospital. PW14 further deposed that the doctor declared Mamta fit to make statement, whereupon he recorded her statement Ex.PW14/A. Further according to PW14, this statement was attested by Phool Singh present in the hospital. Prosecution did not examine said Phool Singh. He was given up being unnecessary. Said Phool Singh has been examined as DW1, He has proved factum of making thereof by Mamta in the hospital and the factum of its attestation. It is well settled that a dying declaration recorded by a police officer is to be scrutinized with more care and caution. In this case, prosecution has itself placed reliance on the dying declaration Ex.PW14/A recorded by SI Ranbir Singh. MLC would reveal that at the time of admission in hospital, the patient was conscious and at 5.55 p.m. declared fit to make statement. It was thereupon that the Investigating Officer opted to record statement of Mamta in presence of DW1 Phool Singh. There -:30:- is nothing on record to suggest that Investigating Officer was interested in the accused. Phool Singh is an independent witness from the locality. Statement of a prosecution witness when examined by the defence is of equal importance and admissible in evidence. There is no fact in his statement to suggest his interestedness in the accused party.
In view of the above discussion, it is safe to rely on the dying declaration Ex.PW14/A. A perusal of Ex.PW14/A would reveal that therein Mamta did not level any allegation against any of the accused. She clearly stated therein to have caught fire while heating the water on a stove. She categorically stated that none was responsible for this incident.
As noticed above, even at the time of arrival of SI Ranbir Singh and Ct.Jaipal Singh at the spot only one girl, aged 8 years, was found present there. None of the accused was found present there. According to SI Ranbir Singh, the girl named Puja told that her mother had caught fire while she was burning stove and that she had been removed to hospital. The fact narrated by Puja before SI Ranbir Singh soon after his arrival at the spot lends corroboration to what stands recorded in the dying declaration Ex.PW14/A. -:31:- On the other hand, PW6 Rohtas deposed that he came to know from his brother Mukesh Kumar that Mamta had been set on fire. There is no evidence to suggest as to who told Mukesh Kumar that she had been set on fire. Mukesh Kumar has not been examined in Court to prove this fact.
PW12 Mahender Singh, father of Mamta, deposed that on 7.12.2004 he received information that Mamta had suffered injuries due to fire, whereupon he immediately went to the matrimonial home and from there he reached the hospital. He came to know of the hospital from a chit produced by the children present inside the house. Said chit is stated to have been given to the children by the police.
PW13 Prem Wati, mother of Mamta, stated to have learnt from her mother that Mamta had suffered burns. She did not state to have learnt that Mamta had been set on fire.
Prosecution could examine any one from the locality of the accused to prove as to what anyone of them had noticed in the evening of 7.12.2004. But there is no such evidence except that of DW1 who has proved dying declaration which Mamta made in the hospital leveling no -:32:- allegation against any of the accused. There is nothing in the statements of PW6,12 and 13 or the police officials that any person from the neighbourhood told them that any quarrel or dispute took place between Mamta or any other family member.
According to PW12 Mahender Singh, when he reached the hospital, his daughter told him that all the accused poured kerosene oil on her and then set her on fire. In his cross-examination, he deposed that he reached the hospital in between 7-8 p.m. and at 8.30 p.m, his daughter talked to him. But the MLC would reveal that Mamta was declared unfit to make statement at 8.20 p.m. Even otherwise, had his daughter so told him, he would have stated so in his statement Ex.PW1/B made before the SDM on the following day. But in Ex.PW1/B, he did not state that his daughter so told him in the hospital. Therein, he stated that he was confident that his daughter had been burnt by the accused. However PW12 did not state as to what led him to be so confident.
It is significant to note that in statement Ex.PW1/B of PW12 Mahender Singh made before the SDM following one complete sentence appears to have been -:33:- inserted lateron:
"Yesterday on 7.12.2004 in day time I met my daughter and she complained to me against these people"
However, while appearing in Court PW12 nowhere stated that to have met his daughter during day time on 7.12.2004 or that she complained to him against the accused persons. It appears that this sentence appears to have been inserted later on to create evidence of cruelty soon before death of Mamta.
PW13 Premwati deposed that when she met her daughter, the daughter told that all the accused had killed her after pouring kerosene oil on her and then setting her on fire. According to the witness, she reached the hospital at about 10.30 p.m. while her husband and son were away to police station. A perusal of MLC of Mamta would reveal that she was declared unfit to make statement at 8.20 p.m. on 7.12.2004. Once she was declared unfit to make statement at 8.20 p.m, the version narrated by PW13 that her daughter talked to her at 10.30 p.m cannot be accepted. Furthermore, had her daughter told her any such fact, PW13 must have stated so in her statement Ex.PW1/D made before the SDM on 8.12.2004. -:34:- However, this fact does not find mention in her statement Ex.PW1/D. PW6 Rohtas Singh deposed that in the hospital, his sister told him that the three accused and Bala were giving her beatings and further that when she tried to flee away, all of them caught hold of her, bolted the door and set her on fire. According to PW6, he reached the hospital at about 7 p.m. He further stated that when Mamta told him the aforesaid fact, his maternal grandmother and aunt (Mami) were also present there. However, neither PW6 nor PW13 deposed that Mamta so told her brother or in presence of grandmother or other relative (Mami). Prosecution has examined neither maternal grandmother nor Mami to support this version narrated by PW6.
It is in the statement of PW6 that police was present in the hospital, but neither his statement nor that of PW12 or PW13 was recorded in the hospital. Had Mamta made any such oral dying declaration before anyone of them, they must have made statement before the police present in the hospital. PW6 put forth explanation that the police present in the hospital referred him to P.S.Mukherjee Nagar and when he reached the police station, he was sent back to the -:35:- hospital on the ground that police officer was away to hospital. Even then they could make statements before the police officer. Fact is that none of them made any statement before the police. A perusal of statement of PW1 Sh.Bansh Raj Ram, SDM would reveal that he too reached the hospital on 7.12.2004 at about 8.30 p.m. but at that time Mamta was still unfit to make statement. Even if Mamta was declared unfit to make statement, PW6, 12 or 13 could make statement before the SDM at the time he reached the hospital. But the fact remains that even before the SDM, they did not make any statement leveling any allegation against any of the accused or by telling him that Mamta had made oral dying declaration that she was set on fire by the accused persons.
In view of the above discussion, it is not believable that Mamta made any such oral dying declaration before PW6, PW12 or PW13 or any other relative.
Viscera was preserved to rule out possibility of any coincidental common unknown poisoning. Report Ex.PX received from CFSL, Kolkotta would reveal that no common poison could be detected in the contents of the viscera. It is true that vide report Ex.PY, CFSL observed that extract from the sample hair analysed on 15.3.2005 gave positive tests for -:36:- presence of high fractions of petroleum hydrocarbons resembling those of high boiling fractions of kerosene oil. Had kerosene oil been poured over Mamta by the accused persons, as PW6 wants the Court to believe, at the time of autopsy of the dead body, the concerned doctor must have observed presence of boiling fractions of kerosene oil. A perusal of autopsy report Ex.PW9/A reveal that at the time of autopsy, the doctor did not observe presence of any kerosene oil, and as such he opined that there was no smell of kerosene oil present on the dead body. But in view of the dying declaration Ex.PW14/A made by Mamta herself before the police that her clothes caught fire while she was boiling water to take bath and as to what Poonam, girl aged 8 years, told the police immediately on their arrival at the spot, it cannot be said that kerosene oil was poured over her or that thereafter she was set on fire by any of the accused. Conduct of her husband being present by the side of Mamta at the time she was got admitted at hospital, shows his bona fide. Conclusion In view of the above discussion, this court finds that:
i) prosecution has failed to prove that it -:37:- is a case of dowry death or that Mamta died on account of any cruelty or harassment at the hands of any of the accused on account of or in connection with any demand of dowry, so as to attract provisions of Section 304 B IPC;
ii) prosecution has also failed to prove that any of the accused ever subjected Mamta to cruelty or harassment so as to attract provisions of Section 498 A IPC.
iii) It stands established that Mamta suffered burns when her clothes caught fire while heating water on a stove at the matrimonial home;
iv) It stands established that despite opportunity PW6, PW12 and PW13 close relatives of Mamta did not make any statement before the police or before the SDM on 7.12.2004 although they were present in the hospital;-:38:-
v) It also stands established that there are material improvements in the statements of PW6, PW12 and PW13 close relatives of Mamta in comparison to the version narrated by them before the SDM on the following day.
As a result, this court finds that prosecution has failed to bring home guilt against any of the three accused under any of the head of charge for which they have been facing trial. Consequently, all the three accused are acquitted in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on Dated: 22nd of August 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi 22-08-2007