Delhi District Court
The State vs Ajay Bharti @ Pandit on 30 May, 2014
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 100/14
UID NO . : 02404R0175412006
FIR no : 41/2006
P. S : Prashant Vihar
u/s 302 IPC
The State versus Ajay Bharti @ Pandit
S/O Late Kusheshwar Bharti,
R/O Village Sarai Dinesh,
P.S Deshari,Distt Vaishali,
Bihar.
Date of committal to session court : 09.06.2006
Date of argument : 20.05.2014
Date of order : 30.05.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 1 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC
a) On the intervening night of 20/21.1.2006, at about 9:00-9:15 pm one lady Bimla @ Rani ( deceased) wife of Lal Singh was brought by some rickshaw puller at emergency gate of BSA Hospital . HC Khiladi Ram , who was posted at there as duty constable found that she(deceased) was having acid burn injuries as such she was admitted in the hospital.
b) HC Khiladi Ram and Doctor questioned Bimla @ Rani who told them that one Ravi is known to her and she also disclosed the mobile number of Ravi as 9891150037 and requested to call him.
c) HC Khiladi Ram made a call on the number of Ravi informed him about the condition of the Bimla @ Rani and asked him to come to the BSA Hospital. Bimla @ Rani (deceased) disclosed to HC Khiladi Ram that Ajay Bharti (accused) had thrown acid on her .
d) Ravi Kumar Verma reached BSA Hospital and met Bimla @ Rani (deceased) and found that she was having injuries due to throwing of acid on her. He asked Bimla @ Rani as to who had thrown acid on her and she replied to him that Ajay took her to Japanese park for outing and poured acid on her there and ran away .
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 2 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC
e) Dr. Deepti Bhalla , CMO , BSA Hospital, on 20.1.2006 at about 10:10 pm examined Bimla @ Rani and found that Bimla @ Rani was having chemical burn injuries all over her body.
f) On 20.1.2006, HC Khiladi Ram gave the said information to P.S Prashant Vihar regarding admission of Bimla @ Rani w/o Lal Singh in BSA Hospital with burn injuries. Said information was recorded by Constable Ravinder Singh vide DD no. 67 B dated 20.1.2006. Said DD was marked to S.I C.L Meena .
g) On 20.1.2006, W.S.I Shashilata on receipt of DD no. 67 B reached BSA Hospital and there it was revealed that Bimla @ Rani has been shifted to some other hospital. On the basis of DD no.67 B and MLC's of patient, WSI Shashi Lata made endorsement, prepared the rukka and FIR was got registered.
h) On 21.1.2006 S.I Shashi Lalta visited Ram Manohar Lohia hospital where she met Ravi Kumar Verma and recorded his statement. Dr. Sanjukta on 24.1.2006 declared Bimla @ Rani ( deceased) fit for statement and WS.I Shashi Lata recorded her statement in the presence of Ravi Kumar Verma and on the said statement , SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 3 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Bimla @ Rani (deceased) put her thumb impression and it was also endorsed by Ravi Kumar Verma. Bimla @ Rani stated in her statement that accused Ajay Bharti took her to Japenese park on the pretext of picnic and there immediately became angry and threw acid on her.
i) On 27.1.2006 said Bimla @ Rani( deceased) expired in the Ram Manohar Lohia Hospital . In this regard DD no. 11 A was recorded and offence u/s 302 IPC was added vide DD no.20 A dated 27.1.2006. Inspector Ram Mehr Singh prepared inquest papers and Dr. Upender Kishore conducted postmortem on the body of Bimla @ Rani (deceased ) and opined cause of death septicemia as a result of infected burn wounds produce by the corrosive acid, all injuries ante mortem in nature and sufficient to cause death in ordinary course of nature.
j) As per the story of the prosecution , deceased Bimla @ Rani w/o Lal Singh had left Lal Singh in the year 2006 and started living with accused Ajay Bharti. It is also alleged that accused Ajay Bharti was of suspicious nature and he suspected that Bimla @ Rani is having relations with SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 4 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Ravi. On the date of occurrence , he took Bimla @ Rani( deceased) to Japenese Park for roaming and allegedly throw acid on her from where she was shifted to BSA hospital by unknown persons as stated herein above.
k) After the completion of investigation, accused Ajay Bharti @ Pandit was chargesheeted for offence u/s 302 IPC.
l) Vide order dated 1.05.2006, Ld MM took the cognizance of the offence and subsequently, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 09.06.2006 case was committed to the court of sessions.
2. Vide order dated 24.08.2006, ld predecessor of this court decided the charges and accordingly, accused Ajay Bharti @ Pandit was charged for the offences u/s 302 IPC to which he pleaded not guilty and claimed to be tried.
3. In order to prove its case, prosecution has examined as many as thirty two witnesses.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 5 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
4. Public witnesses examined by the
prosecution are being detailed as under:
i) PW1 Pankaj Rai : He is the owner of house no. N -917, Mangol Puri , Delhi. As per the story of prosecution, accused resided in that house as a tenant for a period of one month alongwith deceased Bimla @ Rani but he has not supported the case of the prosecution and he was declared hostile.
ii) PW3 Lal Singh : He is the husband of the deceased Bimla @ Rani. He deposed that Bimla @ Rani( deceased ) was his wife and he alongwith his wife and kids have come to Delhi and were residing in tenanted premises in Mangolpuri . In the month of January 2006, when he alongwith his wife and kids were planning to visit their village in Agra to attend a relative marriage, his wife Bimla @ Rani had left the house. On 27.1.2006 , he received a telephone from Balram , brother of his wife, that somebody has thrown acid on his wife . He came to Delhi and identified the dead body of his wife vide ExPW3/A1. He was not cross examined by the accused despite opportunity.
iii) PW4 Hori Lal : He is the brother of Lal Singh PW3 . He also identified the dead body vide ExPW4/A. He was not cross examined by the accused.
iv) PW5 Pappu Sahni @ Bangali: He is the witness who was known to accused Ajay Bharti and they used to meet frequently as both of them used to ply rickshaw in the area of Rohini and were good friends . He deposed that when accused Ajay Bharti went to his native village in Bihar, at that time Bimla @ Rani (deceased) started living with a person namely Ravi. When accused Ajay Bharti came back from Bihar, he came to know about the said fact and accused Ajay Bharti and Bimla ( deceased) started quarreling with each other on the ground that Bimla@ Rani had started living with Ravi . He further deposed that on 20.1.2006 at about 9/9:30 pm at Rithala Metro station, when he was waiting for some passengers, accused SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 6 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Ajay Bharti came alongwith his rickshaw to him and at that time he was frightened . He noticed that there were burn marks with acid on the hand and shirt of accused Ajay Bharti . Accused Ajay Bharti told him that he had poured acid on Bimla @ Rani (deceased) and have received burn injury on his hand. Accused Ajay Bharti also stated that he have committed a wrong deed and requested him to took his rickshaw to your house. PW5 parked his rickshaw there and locked the same and took the rickshaw and accused Ajay Bharti to his house situated at Village Begum Pur . He further deposed that police recorded his statement ExPW5/A. As per the story of the prosecution he is the witness before whom accused made extra judicial confession about the crime. He was cross examined by the ld counsel for the accused.
v) PW13 Balram : He is the brother of the deceased Bimla @ Rani (deceased) who on 20/21.1.2006, received telephonic message from Ravi to the effect that someone had thrown acid on his sister Bimla and she is admitted in R.M.L hospital. On 28.1.2004, he also identified the dead body of the deceased Bimla @ Rani vide ExPW13/A.
vi) PW14 Ravi Kumar Verma : He is the public witness and was known to the deceased Bimla @ Rani as well as the accused. He deposed that during the year 2006, accused Ajay Bharti and his wife Bimla @ Rani used to reside in H. NO D 4/120, Sector 20 , Rohini. Accused was having some cycle rickshaw and the same was mode of his livelihood. Accused was of very suspicious nature and used to quarrel with Bimla @ Rani frequently . He further deposed that on 20.1.2006, he received telephonic call from some unknown person from BSA hospital that some one had thrown acid on Bimla @ Rani (deceased) and caller asked him to reach BSA Hospital. He reached BSA Hospital and met Bimla @ Rani (deceased) and found that she was having injuries due to throwing of acid on her . He asked Bimla @ Rani (PW14) as to who had thrown acid on her and she replied to him that Ajay took her to Japanese park for outing and poured acid on her and ran away. He SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 7 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC further deposed that on 20.1.2006 at about 7-8 pm , when he was present in the area of M2K Rohini and in front of M2K Rohini , accused Ajay Bharti alongwith Bimla @ Rani (deceased) met him . At that time, they were going somewhere in rickshaw. He stopped him and asked whether they had settled their dispute with Bimla @ Rani (deceased) and then accused Ajay Bharti replied that they have settled their dispute with Bimla @ Rani( deceased) and now they both are going for enjoyment and thereafter accused Ajay Bharti alongwith Bimla @ Rani (deceased) left for Japenese Park. Thereafter, he came back to his house and at about 9-9:15 pm, he received the said telephonic call regarding throwing of acid on Bimla. He further deposed that WS.I Shashi Lata( PW30) recorded statement of Bimla @ Rani ExPW14/A in his presence and Bimla @ Rani put her thumb impression on her statement ExPW14/A and he also endorsed the same at point A. PW14 is also the witness to the arrest of the accused vide memo ExPW14/H, personal search memo ExPW14/G , disclosure statement of accused Ajay Bharti ExPW14/B ,pointing out memo ExPW14/C of accused Ajay Bharti and various other memo's .
As per story of prosecution, PW14 is the last seen witness as well as a witness before whom deceased Bimla @ Rani made the declaration that accused Ajay Bharti @ Pandit had thrown acid on her. PW14 was cross examined at length by the ld counsel for the accused.
vii) PW20 Gyan Singh : He is the witness who sold one bottle of Tejab( acid) to accused Ajay Bharti in the month January 2006. He correctly identified the accused in the court. He was cross examined by the accused.
viii) PW25 Sh Karan Singh : He is a formal public witness who has not supported the case of the prosecution. Prosecution cited him as a witness to prove that accused was residing with deceased Bimla @ Rani at sector 20, Rohini Delhi but he did not support the prosecution in this regard.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 8 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
5. Following police officials were examined as prosecution witnesses:-
i) PW2 HC Ishwar Singh : On 21.1.2006, he was posted as duty officer at P.S Prashant Vihar. On receipt of rukka brought by constable Ashok Kumar, he recorded the FIR no. 41/2006 ExPW2/A and made endorsement on the rukka ExPW2/B.
ii) PW6 S.I Manohar Lal : On 4.4.2006 , he reached the spot i.e service road Japenese Park , Sector 10, Rohini ,Delhi and on the pointing out of S.I C.L Meena (PW31) prepared scaled site plan ExPW6/A .
iii) PW7 Ct. Ravinder Singh : On 20.1.2006, he was posted as DD writer, P.S Prashant Vihar . He received information from Ct. Khiladi Ram (PW16) regarding admission of Bimla @ Rani w/o Lal Singh in BSA Hospital with burn injuries and said information was recorded vide DD no. 67 B ExPW7/A dated 20.1.2006 . He was not cross examined by the accused.
iv) PW9 HC Shiv Charan : He was posted as MHC(M) during relevant time at P.S Prashant Vihar and pullanda's were got deposited with him by the IO. He also got deposited the case properties and obtained the results.
v) PW10 HC Bijender : He proved DD no.26 B dated 11.12.2005 ExPW10/A registered at P.S Sultan Puri which was pertaining to a call to the effect that caller( accused) has been injured at D-4/119 , sector 19 Rohini. This witness appears to have been cited by the prosecution to show that in the month of December 2005 , accused was residing at the aforesaid address. On that day he was given beatings by someone and he made a call to the police.
vi) PW11 ASI Manishas Sharma : On 27.1.2006, he was posted as DO at P.S Prashant Vihar and received information that said Bimla @ Rani( deceased) expired in the Ram Manohar SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 9 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Lohia Hospital . He recorded DD no. 11 A ExPW11/A in this regard. He was not cross examined by the accused.
vii) PW12 ASI Sajjan Kumar : He was posted with Crime team , North West and on 2.2.2006 alongwith crime team reached at the spot and took the photographs ExPW12/A-1 to ExPW12/A-7 and their negatives are ExPW12/A1 to ExPW1/A 6.
viii) PW15 ASI Hans Raj Bhardwaj : On 11.12.2005, on receipt of DD no.26 B regarding quarrel, he reached at D-4/119, Sector 19, Rohini and found that injured has already been shifted to SGM Hospital. Thereafter, he reached there and found accused Ajay Bharti under treatment but there accused Ajay Bharti did not give any statement to him and subsequently left the aforesaid address and shifted to unknown place. DD no.26 B was kept pending vide DD no.37 A dated 11.12.2005 ExPW15/A. He is also a witness on the line of HC Bijender (PW10) who proved that in the month of December,2005 accused was residing at the aforesaid address.
ix) PW16 HC Khiladi Ram : On the intervening night of 20/21.2.2006, he was posted at BSA hospital, Rohini as duty constable . At about 9:00 -9:15 pm one lady Bimla @ Rani ( deceased) wife of Lal Singh was admitted by some rickshaw puller. At that time Bimla @ Rani was having burn injuries over her body. PW16 and Doctor questioned Bimla @ Rani who disclosed the mobile number of Ravi as 9891150037 and requested to call him. He made a call on the number of Ravi and told him about the condition of Bimla and asked him to come to the BSA Hospital. He deposed that Bimla @ Rani (deceased) disclosed to him that accused Ajay Bharti had thrown acid on her body.
He is also one of the important witness before whom deceased disclosed that accused Ajay Bharti had thrown acid on her body. PW16 was cross examined by the accused.
x) PW18 IO Inspector Ram Mehar Singh : He deposed that investigation of the case was handed over to him after section SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 10 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC 302 IPC was added in the present case. On 28.1.2006, he went to BJRM Hospital and prepared inquest papers i.e request for Post mortem , application ExPW18/A , Brief notes are ExPW18/B and death report form no25.35 (1)(B) is ExPW18/C. Dead body after postmortem and identification was given to the husband and brother of the deceased vide ExPW18/D. On 2.2.2006, witness Ravi came to P.S and informed him that he had seen the accused in Rohini area . He alongwith police officials and Ravi went there and apprehended the accused from Deepali Chowk and arrested him vide arrest memo ExPW14/H and his personal search was conducted vide memo ExPW14/G . Disclosure statement ExPW14/B was recorded. Rickshaw was seized vide ExPW14/F. Pointing out memo ExPW14/C was prepared . Crime team was informed and called who inspected the site and took photographs of the place . Broken glass pieces and small stone pieces were sealed and seized vide memo ExPW14/D. Accused led them to his house at village Begumpur and got recovered his pant which he was wearing at the time when he attacked the deceased with acid. Said pant was having burn marks. It was also sealed and seized vide memo ExPW14/E. Accused was got medically examined and report ExPW28/B was obtained. PM report was also collected and after completion of investigation chargesheet was filed. He was cross examined by the ld Amicus Curiae for the accused.
xi)PW22 Ct. Ashok Kumar : He is the witness who was with WSI Shashi Lata , during investigation.
xii) PW23 HC Dharminder : He is the witness who had gone to RML hospital with WSI Shashi Lata and remained there for safe custody of dead body of Bimla @ Rani.
xiii) PW26 HC Tejbir Singh : He is witness who was with the IO Insp. Ram Mehar Singh (PW18) during the investigation of the present case and has deposed more or less on the line of PW18. He was cross examined by the accused.
Xiv) PW28 Insp. Parveen Kumar : He is formal witness
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 11 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
who only obtained the MLC of the injured from the hospital.
xv) PW29 Insp. Ravi Singh : During relevant time he was posted as incharge crime team and on 2.2.2006 went to the spot. He inspected the spot, got the photographs of the spot taken and prepared report ExPW29/A. xvi) PW30 S.I Shashi Lata : She deposed that on 20.1.2006, on receipt of DD no. 67 B , she reached BSA Hospital and met there Inspector Ram Mehar Singh (PW18) , S.I Praveen Kumar (PW28) . There it was revealed that Bimla @ Rani has been shifted to some other hospital. On the basis of DD no.67 B and MLC's of patient, WSI Shashi Lata made endorsement on DD no.67 B prepared the rukka ExPW30/A and it was sent to P.S Prashant Vihar for registration of FIR . On 21.1.2006, she visited Ram Manohar Lohia hospital where she met Ravi Kumar Verma (PW14) and recorded his statement. On 24.1.2006, when Bimla @ Rani ( deceased) was declared fit for statement she recorded her statement ExPW14/A in the presence of PW14 Ravi Kumar Verma and on the said statement ExPW14/A, Bimla @ Rani (deceased) put her thumb impression and it was also endorsed by Ravi Kumar Verma (PW14) at point A. She is also one of the witness before whom deceased Bimla @ Rani made dying declaration before her death on 24.1.2006. She was cross examined by the accused.
xvii) PW31 Inspector C.L Meena : He also joined investigation of the present case with IO Inspector Ram Mehr (PW18).
xviii) PW32 Ct. Ravinder Singh : He is the witness who took the pullandas of case property to FSL from MHC(M) and deposited the same there.
Medical Evidence :
i) PW 8 Dr. Deepti Bhalla : She was posted as CMO at Baba SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 12 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Sahib Ambedkar Hospital (BSA), Delhi and on 20.1.2006 at about 10:10 pm examined Bimla @ Rani , who was brought by the public persons to the casualty of BSA Hospital. She deposed that patient gave alleged history of sexual assault with her followed by patient sustained burn injuries over her body on the same day and the history was given by the patient herself on examination. On examination, she found that Bimla @ Rani was having chemical burn injuries all over her body.
Bimla @ Rani was given first aid and she was referred to SR, Surgery and SR Gyane for internal examination and for expert opinion . MLC pertaining to Bimla @ Rani is ExPW8/A . PW8 was not cross examined by the accused despite opportunity.
ii) PW17 Dr. Kuldeep Singh : On 2.2.2006, he examined accused Ajay Bharti @ Pandit vide MLC ExPW17/A and noticed /found old wound over right wrist and over Dorsum of left hand and over nose right side on the person of accused Ajay Bharti @ Pandit. Aforesaid wound were brownish scab and relates to the period, as told by accused Ajay Bharti i.e 20.1.2006.
iii) PW19 S.Mehto, medical record officer, RML Hospital : He proved the death summary of Bimla ExPW 19/A and death report of Bimla @ Rani ExPW19/B.
iv) PW21 Dr. Vinita Gupta : She proved the examination of deceased Bimla @ Rani by Dr. Nidhi Khandelwal vide MLC ExPW8/A. She deposed that the examination of Dr. Nidhi Khandelwal is at point C on the MLC ExPW8/A and patient was referred to Sr. Surgery.
v) PW24 Dr. Santosh Kumar Singh : Prosecution has examined him to prove the endorsement I.e "patient is fit of statement" made by Dr. Sanjukta, HOD ,Burn and Plastic Surgery , RML Hospital. He proved the said endorsement at point X on MLC ExPW8/A.
vi) PW28 Dr. Upender Kishore : He conducted postmortem SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 13 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC on the body of deceased Bimla @ Rani and gave PM report ExPW28/A. On 3.2.2006, he also examined Accused Ajay Bharti and gave detail report ExPW28/D regarding the injury on the person of accused Ajay Bharti @ Pandit.
6. Thereafter prosecution evidence was closed and statement of accused u/s 313 Cr. PC was recorded wherein accused denied the allegations. However, he did not opt to lead any evidence in his defence.
7. I have heard the Ld Addl. P P for the state and the ld Amicus Curiae for the accused . I have also perused the record very carefully.
8. Accused Ajay Bharti is facing trial on the allegation that he has thrown acid / Tejab on Bimla @ Rani due to which she expired. There is no eye witness to the incident and the case of the prosecution rests upon the circumstantial evidence and dying declaration.
9. The legal position regarding the standard of proof and the test which the circumstantial SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 14 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC evidence must satisfy is well-settled by a long line of decisions of Hon'ble Supreme Court. It is unnecessary to burden this judgment by making reference to all such decisions. I may content with reference to decisions in Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, wherein Hon'ble Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 15 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC
10. In the case in hand the prosecution in order to prove its case mainly relied on the following circumstances:
a) Deceased Bimla @ Rani was known to accused and resided with the accused for some period
b) There used to be quarrel between Bimla @ Rani (deceased) and the accused as accused was having suspicious nature.
c) On the day of incident i.e 20.1.2006 , accused was last seen with the deceased Bimla @ Rani.
d) Accused also sustained acid injuries due to throwing of acid on Bimla @ Rani and pant worn by him at the time of incident was having the effect of Tejab/acid .
e) Accused made extra judicial confession before Pappu Sahni @ Bengali (PW5).
f) Deceased Bimla @ Rani made dying declaration before PW16 HC Khiladi Ram, PW30 WSI Shashi Lata and PW14 Ravi Kumar Verma.
g) Deceased died due to the acid thrown by the accused on her .
a) Deceased Bimla @ Rani was known to
accused and resided with the accused for
some period.
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FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
11. PW 3 Lal Singh , who is the husband of the
deceased Bimla @ Rani deposed that Bimla @ Rani was his wife. About 6-7 years back from the date of incident, he came to Delhi from his village UP alongwith his wife and 4 kids and took accommodation on rent in Mangol Puri . In the month of January 2006, when he alongwith his wife and kids were planning to visit their village in Agra to attend a relative marriage, his wife Bimla @ Rani had left the house. He made search but of no avail. PW3 has not not been cross examined by the accused and his testimony has gone un-rebutted.
12. PW5 Pappu Sahni @ Bangali deposed that he knows accused Ajay Bharti who used to ply rickshaw and he used to meet him frequently. Both of them ply rickshaw in the area of Rohini and were good friends. He deposed that accused Ajay Bharti used to reside with his wife Bimla @ Rani (deceased) in Sector 20, Rohini. Accused Ajay Bharti went to his native village in Bihar. During the stay of accused in SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 17 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Bihar, Bimla @ Rani (deceased) wife of accused Ajay Bharti started living with a person namely Ravi. PW5 was cross examined by the accused but even during his cross examination, PW5 supported the case of the prosecution to the effect that deceased Bimla @ Rani (deceased) was known to the accused and they both were residing together. During his cross examination he replied that accused is known to him for last 6-7 years. He admitted the suggestion that when ever accused asked him to take his wife Bimla @ Rani to some place, he would took her with the permission of the accused. He further replied that he knows that Bimla @ Rani has left her earlier husband alongwith four children.
13. PW5 deposed that accused was residing with Bimla in Rohini which is corroborated by PW10 and PW15. PW10 HC Bijender deposed that on 11.12.2005, he was posted at P.S Sultan Puri as DD writer. On that day at about 11:30 am, he received a PCR Call that at D-4/119, sector 19, Rohini the caller was beaten/injured by 8-10 persons. He recorded DD SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 18 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC no. 26 B ExPW10/A and sent the information to ASI Hansraj(PW15).
14. PW15 ASI Hansraj Bhardhwaj deposed that on receipt of said DD no. 26 B, he reached at D-4/119, Sector 20 , Rohini and came to know that injured has already been shifted to SGM Hospital. He reached there and found Ajay Bharti ( accused) present in the court, under treatment. PW10 and PW15 have not been cross examined by the accused despite opportunities. During the statement recorded u/s 313 CrPC regarding DD no.26 B ExPW10/A, accused Ajay Bharti replied that on 11.5.2005, Ravi Kumar Verma had given beatings to him because he demanded money back from him. He further replied that he had given the statement to the police but no action was taken. Meaning thereby, accused has not disputed that for some time, accused was residing at D-4/119, Sector 19, Rohini, Delhi.
15. PW14 Ravi Kumar Verma deposed that accused Ajay Pandit and his wife Bimla @ Rani SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 19 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC used to reside at D-4/120, Sector 20, Rohini. Accused was having some cycle rickshaw and the same was mode of his livelihood. Even during his cross examination this part of his testimony has gone un- rebutted. Rather, he replied that he was their neighbor. He supported the case of the prosecution to the effect that deceased Bimla @ Rani was residing with accused Ajay Bharti. During the statement recorded u/s 313 CrPC, accused replied that in the year 2006, he was residing at Rohini in pocket D 4, section 20 in a house which was adjacent to Ravi Kumar Verma. From the testimonies of aforesaid witnesses, it stands proved beyond reasonable doubt that deceased Bimla @ Rani was known to the accused and she resided with the accused at Rohini , Delhi for some time .
b) There used to be quarrel between Bimla @ Rani (deceased) and the accused as accused was having suspicious nature.
16. PW5 Pappu Sahni @ Bengali deposed that SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 20 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC accused Ajay Bharti went to his native village Bihar. During his stay at Bihar, wife of accused Ajay Bharti started living with Ravi. When Ajay Bharti returned back from the Bihar he came to know that Bimla@Rani is residing with Ravi. Accused Ajay Bharti and Bimla @ Rani started quarreling on the ground that wife of accused had started living with Ravi. During his cross examination he replied that he was on visiting terms at the house of accused. He admitted that there was some relationship between Ravi and Bimla @ Rani and it developed when the accused was not there and had gone to Bihar. He further replied that he does not remember whether after quarrel Bimla started living with Ravi. This shows that even accused has admitted that earlier Bimla @ Rani was residing with accused Ajay Bharti and after quarrel she started residing with Ravi.
17. Testimony of PW5 finds corroboration from the testimony of PW14 Ravi Kumar Verma. Relevant para of testimony of PW14 regarding the quarrel between the accused and the deceased Bimla @ Rani and SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 21 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC about the suspicious nature of the accused is being reproduced as follows:
"... the accused was suspicious by nature and he used to suspect his wife. He also suspected that she may be having relations with others and also with me and used to enter into heated arguments. Once , when I was present at my house and was cleaning his teeth , at that time, I vomited and Bimla provided me a glass of water being my next door neighbor at that time accused Ajay came there from outside and he felt annoyed on it as why Bimla provided me with a glass of water in that condition and thereafter accused Ajay Pandit gave severe beatings to Bimla. The accused again gave beatings to Bimla on the next day also and due to said beatings Bimla left her house and later on I came to know that after leaving accused Ajay she had shifted to N-Block, Mangol Puri. Accused Ajay used to go to meet her at her new accommodation at N-Block Mangorl Puri. Once or twice I had also visited that area and met Bimla...."
18. The aforesaid testimony of PW14 has gone unchanged and there is no material contradiction. It is true that there are some improvements but the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 22 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC same are not so significant and material one for which this part of the testimony can be rejected. The testimony of the witness as a whole is to be appreciated to find out if the witness is reliable or not. In the present case, I do not find anything to disbelieve the entire testimony of PW14 Ravi Kumar Verma. During cross examination, PW14 replied that he had told the police in his statement that during the quarrel between the accused and Bimla (deceased), he used to settle their dispute. He further deposed that deceased Bimla had left the company of accused when accused had given beatings to her. Prosecution has been able to establish that accused Ajay Bharti @ Pandit was having suspicious nature and due to this reason he used to quarrel with the deceased.
c) On the day of incident i.e 20.1.2006 , accused was last seen with the deceased Bimla @ Rani.
19. PW14 deposed that on 20.1.2006, at about 7-8 SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 23 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC pm, when he was present in front of M2K Rohini, accused Ajay Bharti alongwith Bimla @ Rani (deceased) met him while going somewhere in rickshaw. He stopped them and asked whether they had settled their dispute with Bimla @ Rani (deceased) and then accused Ajay Bharti replied that they have settled their dispute and now they both are going for enjoyment and thereafter accused Ajay Bharti alongwith Bimla @ Rani (deceased) left for Japenese Park. Thereafter, he came back to his house and started making meals for him and at about 9-9:15 pm , he received the said telephonic call regarding throwing of acid on Bimla.
20. During his cross examination also PW14 has denied the suggestion that he has not seen Ajay and deceased Bimla @ Rani who were going to Japenese park, near M2K on the fateful day. This is was the only cross examination regarding the last seen deposition of PW14. As stated herein above, there is nothing on record to disbelieve the testimony of PW14. He was put to cross examination but SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 24 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC nothing could be brought from his mouth to discredit his testimony. Again there may be some improvement but testimony of PW14 as a whole is reliable and convincing.
21. PW14 is speaking about having seen the accused with the deceased on 20.1.2006 at about 7-8 pm on a rickshaw. PW5 Pappu Sahni @ Bangali deposed that on 20.1.2006 at about 9-9:30 pm accused came to him and confessed of throwing acid on Bimla @ Rani and he came with his own rickshaw. PW14 is also referring that he has seen accused with rickshaw and after incident accused came to PW5 and made extra judicial confession and at that time also he was having the rickshaw with him. This shows that prior to immediately before the incident accused Ajay Bharti was seen with the deceased Bimla @ Rani on rickshaw .
d) Accused also sustained acid injuries due to throwing of acid on Bimla @ Rani and pant worn by him at the time of incident was having the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 25 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC effect of Tejab/acid .
22. PW20 Gyan Singh deposed he used to sell Tejab(acid) in the street while roaming . He sold one bottle of acid in the Mandawali area, near Laxmi Nagar but he does not know the name of the buyer. He further deposed that, that person was known to him as he has seen him plying rickshaw . PW20 was not supporting the case of the prosecution and he was cross examined by the ld Adll PP for the state. During his cross examination, he admitted that he gave statement ExPW20/A to the police. He further admitted that he knows one Raju who was resident of District Ambedkar Nagar and previously residing in his neighborhood and in the year 2006, he was plying rickshaw in Rohini area. He further admitted that in the month of January 2006, Raju came to him alongwith his friend and after talking to him he had demanded Tezab for cleaning his box and he had given him an acid bottle on asking of Raju. He further admitted that the person to whom he had sold the bottle of Tejaz/acid in the month of January on the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 26 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC asking of Raju is present in the court and he correctly identified the accused Ajay Bharti. PW20 further deposed that he can identify said Raju if brought before him.
23. Even during his cross examination by the accused, PW20 replied that he was doing the business of acid since 1- 1 ½ year prior to his statement was recorded. He further replied that he is doing the business of selling acids and Raju was known to him prior to one year from 2006. Although, he stated that he could not identify all the purchaser who purchased acid from him in the year 2006 but denied the suggestion that accused was shown to him by the police officials before deposing. PW20 Gyan Singh has categorically stated that he had sold the bottle of acid to accused on asking of his friend Raju.
24. PW5 Papu Sahni@ Bangali , before whom the accused made extra judicial confession , after the incident deposed that accused came to him and at SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 27 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC that time he was frightened and he noticed that there were burn marks of acid on the hands and shirts of the accused. Accused told him that he had received burn injuries on his hand and he (accused) has done wrong deed. He further stated that he is not in position to pull rickshaw and at the request of accused, PW5 took him to his (accused) house.
25. Further PW17 Dr. Kuldeep Singh deposed that on 2.2.2006 at about 11:35 pm , he medically examined accused Ajay Bharti @ Pandit brought by constable Ashok Kumar with alleged history of acid burn over right wrist and left hand on 20.1.2006, as told by patient himself. On local examination he found old wound over right wrist, old wound over dorsum of left hand and old wound over nose right side. Both the aforesaid wounds were healthy and no sign of any infection was there. The condition of the wounds was in corroboration with the date as told by patient Ajay Bharti i.e 20.1.2006 on which he suffered said injuries. PW17 Dr. Kuldeep Singh prepared the MLC ExPW17/A. The aforesaid SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 28 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC testimony of PW17 has gone un-rebutted and un- challenged. Only one suggestion was put to this witness during his cross examination. The MLC ExPW17/A stands proved.
26. During the statement recorded u/s 313 CrPC accused has not denied that he was examined by the aforesaid doctor. He replied that he has stated to the doctor that injury pertains to 20.1.2006 under the pressure of the police. This all shows that the accused has not disputed the aforesaid deposition. Merely saying so that under the pressure of police he stated that injury pertains to 20.1.2006, is not sufficient.
27. As per MLC ExPW17/A, there is mention that patient himself stated about the injury dated 20.1.2006. Aforesaid testimony is corroborated by the examination done by PW28 Dr. Upender Kishore who deposed that on 3.2.2006, an application regarding injuries present on the accused Ajay Bharti was given for opinion whether the wounds were by corrosive SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 29 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC acid burns. He examined the patient and injuries present on his body. PW28 further deposed that as per his opinion , the wounds over the body of accused Ajay Bharti produced by corrsive acid and of about two week duration. He gave detail injury report ExPW28/D. PW28 has not been cross examined by the accused despite opportunity therefore, there is nothing on record to disbelieve the same.
28. As per report ExPW28/B, accused had received injuries over right wrist, wound over dorsum of left hand and old wound over nose right side. The opinion of Doctor Upender Kishore found matched with the opinion given by Dr. Kuldeep Singh on MLC ExPW16/A. Prosecution has been able to establish that on 20.1.2006, accused Ajay Bharti @ also sustained acid burn injuries .
29. Further, the accused got recovered one blue pant from his residence situated at village begum pur which was converted into a parcel with the help of SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 30 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC white cloth and sealed with the seal of RS and was seized vide seizure memo ExPW14/E. PW14 Ravi Kumar Verma and IO Inspector Ram Mehr (PW18) are the witnesses to the recovery of said pant. They were cross examined by the ld counsel for the accused but even during their cross examination nothing could be brought on record to doubt the same.
30. As per the story of the prosecution accused was arrested on 2.2.2006 vide seizure memo ExPW14/H . During the statement recorded u/s 313 CrPC, accused admitted that he was arrested from Deepali Chowk on the aforesaid date vide memo ExPW14/H. The recovery of the pant has been made on the same day. It has come on record that accused was residing at a house situated at village Begum Pur from where said pant was recovered . In these circumstances, recovery of the pant at the instance of the accused stands proved.
31. The said pant was sent to FSL, Rohini for examination. As per the FSL report ExPW18/F, the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 31 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC said pant was given as exhibit '1' and on chemical and ion chromatography examination the said exhibit '1' was found to contain mineral acid :
sulphuric acid. This also goes against the accused.
e) Accused made extra judicial confession before Pappu Sahni @ Bengali (PW5).
32. PW5 Pappu Sahni@ Benali has deposed that on 20.1.2006, at about 9-9:30 pm, when he was present at Rithala Metro Station and was waiting for some passengers, in the meantime accused Ajay @ Pandit came to him and at that time he was frightened and he noticed that there were burn marks on the hand and shirt of the accused Ajay @ Pandit. He further deposed that accused came to him with his own rickshaw and told him that he had poured acid on Bimla @ Rani and he received burn injuries on his hands. He further stated that he had committed a wrong deed " Bhai Maine Bimla @ Rani par Tejab daal diya hai mere haath jal gaye hai" and he was not able to pull the rickshaw and requested him to take SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 32 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC the accused to his (accused) house . PW5 stated to the accused that he has committed a blunder and he will not drop the accused at his house but the accused repeatedly requested him to drop him at his house. PW5 parked his rickshaw there and locked the same and took the rickshaw of accused to his(accused) house in village Begumpur. He stayed during night at the house of the accused. The accused also told about the incident to his mother and brother on which they got angry .
33. PW5 further deposed that police recorded his statement ExPW5/A. During his cross examination he replied that he had been known to accused for last 6-7 years. Accused was having 5-6 rickshaw's and he would lend them also . Sometime he also used to borrow rickshaw from the accused. He admitted that whenever accused asked him to take his wife Bimla to some place, he would take her with permission of the accused. He further replied that he knew that Bimla had left her earlier husband alongwith four children. He has denied the suggestion SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 33 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC that he got accused falsely implicated in the present case as there was some enmity between them. He further replied that there was some relationship between Ravi and deceased Bimla. PW5 stated that the aforesaid relationship was developed when the accused was not there and he had gone to Bihar. He replied that when accused came to make extra judicial confession, at that time none of the police officials were present. He has denied the suggestion that accused has not made any extra judicial confession before him.
34. There is no doubt that in the present case, there is no eye-witness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 34 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
35. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, Hon,ble Supreme Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Court, further expressed the view that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 35 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
36. Accepting the admissibility of the extra-judicial confession, Hon,ble Supreme Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that:-" There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material".
37. Hon,ble Supreme Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740] laid down the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
The Principles are ;
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 36 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law.
38. In the instant case, from the testimonies of prosecution witnesses it is crystal clear that PW5 Pappu Sahni @ Bangali was known to the accused Ajay Bharti @ Pandit. Both were plying rickshaw's in the area of Rohini. PW5 is speaking about that he took the accused to his village at Begum Pur. It is not denied by the accused that at that time, he was was not residing at Begumpur. PW5 further deposed that accused stated the aforesaid fact of throwing acid to his mother and brother. This has also not been SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 37 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC denied that his mother was residing with accused at that time.
39. During the argument ld counsel for the accused submitted that if extra judicial confession was made by the accused, as claimed by the PW5 Pappu Sahni@ Bangali , why he did not report to the police?.
40. I am of the opinion that even if PW5 did not report the matter to the police at that moment it would not make much difference. It has come on record that PW5 and accused were good friends as deposed by the PW5. They were known to each other. Both were plying rickshaw in the same area and some time PW5 used to borrow rickshaw from the accused. In the background of the good relationship between PW5 and accused, it is possible that PW5 may not have reported the matter to the police and he came forward later on to make the statement to the police after the death of Bimla @ Rani. This is not a ground to doubt the varacity of SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 38 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC this witness. The testimony of PW5 Pappu SahnI @ Bangali , before whom the aforesaid extra judicial confession was made is supported and corroborated by the other evidence which I would be discussing a little further .
41. There is no ground to disbelieve PW5 Papu Sahni @ Bangali . PW5 inspire the confidence of this court as it is having the ring of truthfulness. The testimony of PW5 does not suffer from any material discrepancies and inherent improbabilities.
f) Deceased Bimla @ Rani made dying declaration before PW16 HC Khiladi Ram, PW30 WSI Shashi Lata and PW14 Ravi Kumar Verma.
42. PW16 HC Khilari Ram deposed that on the intervening night of 20/21.1.2006, he was posted at P.S Rohini . On that night his duty hours, as duty constable at BSA Hospital, were from 8:00 pm to 8:00 am. On that night at about 9/9:15 pm one lady Bimla @ Rani w/o Lal singh r/o Naharpur was SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 39 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC dropped by some rickshaw puller at emergency gate of BSA Hospital. She was having acid burn injuries as such she was admitted in the hospital and on being questioned by him and Doctor, Bimla @ Rani told them the name of Ravi and also gave the mobile number 9891150037 of Ravi and requested them to call him. PW16 further deposed that he made a call on the said number of Ravi from the telephone installed at BSA Hospital . He informed him regarding the condition of Bimla @ Rani and asked him to come to BSA hospital. Doctor prepared MLC of Bimla @ Rani and handed over him three pullandas sealed with the seal of SD alongwith sample seal stated to be containing, clothes worn by Bimla @ Rani, her vaginal swab and slides etc. PW16 further deposed that on his asking Bimla @ Rani told him that one Ajay Bharti had thrown acid on her body. IO recorded his statement . He handed over the sample seal and pullandas to the IO which were seized by the IO vide seizure memo ExPW16/A.
43. During his cross examination PW16 HC SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 40 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Khilari Ram replied that he had not seen the rickshaw puller who had brought the Bimla to the hospital. Ravi reached at the hospital within 30 minutes of making telephone call to him. Local police reached at the hospital after Bimla@ Rani was referred to Safdarjung hospital and she has left the BSA hospital in an Ambulance Van. He further replied that Ravi remained with Bimla @ Rani at BSA hospital for about 10 minutes. He does not remember whether Bimla was having acid burn injuries over her face or not but she was having acid burn injuries over her body. He replied that his statement was recorded on the same day at the hospital and doctor who prepared MLC of Bimla was also present there when on his asking Bimla named Ajay Bharti. Doctor has not recorded the statement of Bimla. He does not remember the name of doctor. He denied the suggestion that he is deposing falsely and Bimla did not name accused Ajay Bharti.
44. It was an oral declaration made by the victim Bimla @ Rani soon before her death i.e 6-7 SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 41 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC days prior to her death , to PW16 HC Khilari Ram which is supported by the other prosecution witnesses and it cannot be ignored.
45. From the testimony of PW16 HC Khilari Ram , 2-3 things are crystal clear that on 20.1.2006, he was posted as duty constable at BSA Hospital and his duty hours were from 8:00 pm to 8:00 am . On that day at about 9:00 -9:15 pm, deceased Bimla @ Rani was brought to BSA Hospital by some rickshaw puller. At that time deceased was having burn injuries and she disclosed the name of Ravi known to him. It has not been explained by the ld defence counsel as to why PW10 HC Khilari Ram would falsely implicate the accused Ajay Bhati. PW16 HC Khilari Ram is the first person besides Doctor who had seen Bimla @ Rani. Incident appears to have taken place at 7:00 pm at Japenese Park. Accused Ajay Bharti made extra judicial confession before PW5 Pappu Sahney @ Bangali at around 9-9:30 pm. Bimla was brought to the BSA hospital at about 9:00-9:15 pm .
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 42 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
46. Dr. Deepti Bhalla (PW8) who
examined the patient Bimla @ Rani on 20.1.2006 at
about 10:10 pm deposed that patient gave alleged history of sexual assault with her followed by which the patient sustained burn injuries over her body on the same day and the history was given by the patient herself on examination. She prepared MLC ExPW8/A . As per MLC ExPW8/A patient was brought by general public which support and corroborate the testimony of PW16 HC Khilari Ram that some rickshaw puller brought the deceased at Emergency gate of BSA hospital. Had there been no burn injury on the body of deceased Bimla @ Rani then, there would have been no occasion for Dr. Deepti(PW8), who first time examined deceased, to mention that victim Bimla @ Rani had burn injury over her body . Even during the cross examination of PW16 nothing material could be brought which could dent the case of the prosecution.
47. Further,PW16 is talking about that at the time when Bimla was brought to BSA hospital, SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 43 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC she disclosed the name of one Ravi Kumar Verma and asked him to call him. He made a call to Ravi Kumar Verma and called him in the hospital. Said Ravi Kumar Verma appeared in the witness box as PW14 . He deposed that on 20.1.2006, he received telephonic call from some unknown person from BSA hospital that someone had thrown acid on Bimla @ Rani. The caller asked him whether Bimla @ Rani is known to him. He replied in affirmative. Then he reached at BSA hospital and met Bimla @ Rani. She was having injuries due to throwing of acid on her and she was crying "Bachao-bachao". PW14 further deposed that he asked Bimla @ Rani that who had thrown acid on her and she replied to him that "Ajay Pandit mujhe japani park le gaya aur mere ooper tejab fenk kar bhag gaya".
48. The said call was received by him on his mobile from the BSA hospital. Bimla was referred to RML hospital. On this part of deposition also he was cross examined by the ld defence counsel. He replied that on 20.1.2006, the caller from BSA SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 44 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC hospital had not revealed his name to him. He only stated that he is speaking from BSA Hospital. It is quite natural that when a person is making a call from the hospital there is possibility that he would not tell his name and he or she would simply say that they are calling from the hospital. PW16 HC Khilari Ram stated that he made a call to Ravi (PW14) from phone installed at BSA hospital. PW14 further replied that caller met him in BSA hospital and he told him that he had made a call to him and thereafter, he took him to the room where Bimla @ Rani was there. He did not ask his name. He replied that one police personal was there at that time and no other police person arrived at BSA hospital till Bimla @ Rani shifted to RML hospital.
49. PW 14 has supported and corroborated the testimony of PW16 with regard to his ( Ravi) visit immediately when the Bimla @ Rani was admitted to BSA hospital and of having met her. The testimony of PW16 is also finds support from the testimony of PW7 Constable Ravinder Singh. PW7 SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 45 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC deposed that on 20.1.2006, he was posted at Prashant Vihar and was working as DD writer from 5:00 pm to 1:00 am. At about 10:40 pm, he received telephonic call from HC Khilari Ram(PW16) duty constable BSA hospital regarding the admission of Bimla @ Rani in the hospital with burn injuries . On the basis of said information, he recorded DD no. 67 B dt. 20.1.2006 ExPW 7/A.
50. The testimony of PW14 is further corroborated by the testimony of PW13 Balram who is the brother of deceased Bimla @ Rani. He deposed that on the intervening night of 20/21.1.2006, one Ravi telephonically informed him that someone had thrown acid on his sister Bimla and she is admitted in RML hospital. From the testimonies of PW7 Const. Ravinder , PW8 Dr. Deepti Bhalla, PW13 Sh Balram, PW14 Ravi Kumar Verma and PW16 HC Khilari Ram following facts stands established beyond reasonable doubts:
a) That on 20.1.2006, Bimla @ Rani was brought to the BSA hospital by some public persons and she was admitted there.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 46 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
b)She was examined by Dr. Deepti Bhalla and at that time she was having burn injuries.
c) Bimla @ Rani (deceased) disclosed to HC Khilari Ram (PW16) that accused Ajay Bharti has thrown acid on her.
d) HC Khilari Ram (PW16) made a call to Ravi Kumar Verma (PW14) and thereafter Ravi Kumar Verma reached at the hospital.
e) In the hospital Bimla @ Rani also stated to the Ravi Kumar Verma (PW14) that " Ajay Pandit mujhe japani park le gaya aur mere ooper tejab fenk kar bhag gaya".
f) Information regarding admission of deceased Bimla @ Rani in the hospital with burn injuries was given to the police station , which was recorded vide DD no. 67 B ExPW7/A.
51. Now, it take me to the further dying declaration made by the deceased Bimla @ Rani to S.I Shashi Lata(PW30) . S.I Shashi Lata is the Ist IO. She deposed that on 20.1.2006, duty officer informed her about DD no.67 B and on pursuant to that information she reached BSA hospital. On enquiry it was revealed that injured Bimla Rani has been shifted to Safdarjung/RML hospital. She also met Inspector Ram Mehar Singh (PW18) , S.I Praveen Kumar (PW28) SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 47 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC and constable Ashok Kumar . She further deposed that all the police officials went to Safdarjung hospital but injured Bimla @ Rani was not found there then they reached RML hospital and injured Bimla @ Rani was found admitted in the RML Hospital and at that time she was unfit for giving statement. No eye witness met her in the hospital. She made endorsement on the DD no.67 B and prepared the rukka ExPW30/A and got registered the FIR .
52. PW30 WSI Shashi Lata further deposed that on 21.1.2006, she again visited Ram Manohar Lohia hospital alongwith constable Ashok. One person namely Ravi was found sitting besides injured Bimla @ Rani. She recorded his statement. On that day also injured Bimla @ Rani was unfit for statement. She further deposed that she regularly visited RML Hospital from 21.1.2006 to 24.1.2006 but the injured was found unfit for statement and on 24.1.2006, when injured was found fit for statement then she recorded her statement in the presence of Ravi Kumar Verma (PW14) and the statement is SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 48 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC ExPW14/A. She further stated that after recording her statement injured Bimla @ Rani put her thumb impression at point 'C' and Ravi Kumar put his signatures at point 'A'. On 27.1.2006 vide DD no.11/A it was reported to the police station that injured Bimla @ Rani has expired.
53. S.I Shashi Lata (PW30) was cross examined by ld counsel for the accused. During her cross examination she replied that she stayed at BSA Hospital for half an hour for first time. When she visited RML hospital no family member of injured Bimla @ Rani met her there. Rukka was sent at about 3:30 am. She replied that public witness Ravi met her in RML Hospital on 21.1.2006 at about 1
-2:00 pm. Ravi was known to injured Bimla @ Rani. Ravi did not met her in the police station either on 22.1.2006 or 23.1.2006. She further replied that she does not remember whether she had moved any application to the Doctor for obtaining the information whether injured was fit for statement or not. Face of the injured Bimla @ Rani was covered SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 49 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC with the bandage but nose and mouth were opened.
54. PW30 S.I Shashi Lata further replied that on 24.1.2006 , when she recorded statement of injured Bimla @ Rani, at that time she was in separate room of the hospital and she does not remember if she had called any doctor when she had recorded the statement of Bimla @ Rani but admitted that at that time deceased was lying on the bed. She replied that she recorded the statement of Bimla @ Rani after confirming from the Doctor on emergency duty and she does not know the name of the doctor concerned. She replied that endorsement "fit for statement" was mentioned by the doctor on the MLC ExPW8/A and it took about 30-45 minutes in recording the statement. PW30 has denied the suggestion that at that time Bimla@ Rani was not in a position to speak and facts have been manipulated by S.I Shashi Lata at the instance of Ravi Kumar Verma(PW14).
55. Now, the question arises if deceased SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 50 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Bimla @ Rani had given the statement ExPW14/A or not. The said statement being the dying declaration is material piece of evidence and it holds the key of the present case. For the sake of convenience the translated contents of the aforesaid statement ExPW14/A are being reproduced as follows:
" I am residing at above mentioned address. My husband and four children lives in Agra , UP. Three children are girls and one is boy . I am having 4-5 rickshaw's and used to give them on rent which is the only source of upbringing of her children. I am living in Delhi for about 8-9 years. Ajay Bharti, rickshaw puller resident of Sector 24 Rohini is known to me for two years and we were in talking and visiting terms with each other. On 20.1.2006 at about 7:00pm , he asked me to come to his house and meet his mother as his mother wanted to go back to her village . He said that they will put up the proposal/talks about their marriage before his mother . I stated to him that I will not marry him. He took me to Japenese park on the pretext of outing and there immediately became furious and threw acid on me . He has not done anything wrong deed (sexual) with me. I raised alarm 'Bachao -Bachao" and some unknown rickshaw's puller bring me to the hospital and got admitted me in the hospital. I am giving this statement in my complete senses. Appropriate action may be taken against Ajay .".
56. During the argument ld counsel for the accused vehemently argued that the said statement SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 51 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC has been manipulated subsequently at the instance of Ravi Kumar Verma(PW14) as the deceased was known to him. She submitted that no Doctor is witness to the said statement therefore it does not carry any value . Ld counsel for the accused further submitted that since said statement was made to the police official, therefore , it cannot be relied upon. I do not find any force in the argument of the ld defence counsel.
57. PW30 S.I Shashi Lata who had recorded the statement of deceased Bimla @ Rani has categorically stated that on 24.1.2006, injured was found fit for statement and it has been reflected in MLC ExPW8/A. The said MLC is on the record. There is endorsement of Dr. Sanjukta at point 'X' where it is mentioned that "patient is fit for statement". The said endorsement was proved by Dr. Santosh, who appeared in the witness box as PW24. He deposed that he was deputed on behalf of Dr. Sanjukta by HOD , Burn and Plastic Surgery from RML Hospital. He further deposed that he knows the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 52 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC handwriting and signatures of Dr. Sanjukta. He also brought the record from the hospital. After seeing the MLC ExPW8/A, he deposed Dr. Sanjukta had declared the patient fit for statement on 24.1.2006 and she made the endorsement at point 'X' and signed by her on MLC ExPW8/A at point 'X1'. PW24 was not cross examined on the aforesaid material deposition and the said testimony has also gone un-rebutted. That being so the endorsement made by Dr. Sanjukta on MLC ExPW8/A to the effect that on 24.1.2006, patient Bimla @ Rani was found fit for statement stands established.
58. PW30 is also referring the presence of Ravi Kumar Verma (PW14) and deposed that Ravi Kumar Verma (PW14) put his signatures at point 'A'. Ravi Kumar Verma(PW14) in this regard deposed that ExPW14/A bears his signatures at point A and the said exhibit ExPW14/A is the statement of Bimla @ Rani recorded by the SHO/IO in the hospital in his presence whereupon he signed at point A and also mentioned on the side margin in his own SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 53 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC handwriting" Mere Samne Bimla ne byan khud apni marji se diya hai ". This endorsement is encircled at point 'B' on ExPW14/A.
59. He further deposed that in her statement ExPW14/A Bimla @ Rani stated to the IO that accused Ajay has thrown acid on her and thereafter he ran away. She was referring that accused had done so due to some quarrel with her however, he did not pay much heed. During his cross examination also he replied that on 24.1.2006, he had gone to RML hospital to see the condition of the Bimla @ Rani and there the statement of Bimla @ Rani was recorded in his presence. PW14 further replied that he had seen Bimla lastly on 24.1.2006 at RML Hospital and when police reached there he was already present there. Even during the cross examination, he has denied the suggestion that statement of Bimla @ Rani ExPW14/A was not recorded in his presence. He stated that she was fit and was speaking comfortably . He further replied that her statement was not recorded in question SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 54 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC answer form but in narrative manner that whatever she had narrated that has been recorded by the IO. Even during his cross examination nothing could be brought out from the mouth of this witness which could be sufficient to disbelieve the contents of the statement ExPW14/A.
60. In Paras Yadav v. State of Bihar 1999 (2) SCC 126 and also in Balbir Singh v. State of Punjab 2006 (12) SCC 283, it has been held that a dying declaration would not lose its efficacy merely because it was recorded by a police officer and not by a magistrate. In Paras Yadav case (supra), it has been held that the statement of a deceased recorded by a police officer as a complaint and not as a dying declaration can in fact be treated as a dying declaration if the other requirements in this regard are satisfied.
61. In Atbir v. Government (NCT of Delhi) 2010 (9) SCC 1 after an elaborate consideration of several decisions of Hon,ble SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 55 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC Supreme Court, the following propositions have been laid down with regard to the admissibility of a dying declaration:
22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 56 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
62. If aforesaid principles are applied to the present case , then there is no hesitation in saying that the deceased Bimla @ Rani made a dying declaration in the form of her statement to S.I Shashi Lata (PW30) which was witnessed and endorsed by Ravi Kumar Verma (PW14). All the prosecution witnesses have supported and corroborated each other in this regard also .
g) Deceased died due to the acid thrown by the accused on her .
63. Postmortem on the dead body of the deceased was conducted by Dr. Upender Kishore. He deposed that on 29.1.2006, he conducted postmortem of the body of Bimla with the alleged history of pouring acid. On general examination of SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 57 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC the body he found the following injuries and opined :
External Injury : Deep deremal (full thickness) burns present over the front of face, front of neck, front of chest and front of upper abdomen, both upper arms in front, inner aspect of forearms, back of heard, back of chest and upper abdomen. Trickling present, fat exposed in the shoulder rigion, eschar formation with lifting of eschar present, puss material found under the eschar, charring and blackening present at right outer aspect of right arm , left ear, cartilage seen in ramants. The skin in black in color, thickened like leather. The total surface area of the burns is about 40 percent of the total body surface.
Internal finding: all internal organs were congested and oedematous, no injury to vagina seen , stomach empty NAD.
Cause of Death :Septicemia as a result of infected burn wounds produce by the corrosive acid, all injuries ante mortem in nature and sufficient to cause death in ordinary course of nature. Scalp hair and skin tissue for histo pathological study was preserved.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 58 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
64. The detail Postmortem report given
by Dr. Upender is ExPW28/A . PW28 has not been cross examined and his testimony has gone un- rebutted and un-challenged with regard to the cause of death is concerned. The testimony of PW28 finds support from the other medical evidence on record. PW19 S. Mehto, medical record officer proved the death summary of Bimla @ Rani prepared by Dr. Amit Kaul ExPW19/A and death report prepared by Dr. Safifulla ExPW19/B. The said death summary and death report also tell that deceased Bimla @ Rani expired due to the burn injuries caused by acid.
65. In view of the facts and circumstances, discussed above , I find that it has been sufficiently proved on record that deceased was known to the accused and due to his suspicious nature accused used to quarrel with her. It also stands proved that deceased Bimla @ Rani suffered around 40% burn injury due to the acid thrown on her by the accused, due to which she expired subsequently.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 59 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
66. It may be argued that at the best in
these circumstances, accused may be held guilty for committing an offence punishable u/s 326 IPC or 304 part II IPC and not u/s 302 IPC.
67. In the case of State of Madhya Pradesh v. Ram Prasad, reported at AIR 1968 Supreme Court 881, one, Ram Prasad, was living with his mistress at Munar. There were frequent quarrels between them. One day he put kerosene oil on her and set her on light. His mistress was extensively burnt. The appeal filed by the State in a case, which was tried by the Court of Session under Section 302 IPC, the person was convicted by the Session Judge under Section 324 IPC, the High Court convicted him under Section 304 Part II and sentenced him to four years rigorous imprisonment.
Paras 8 and 10 read as under:
"(8) The question then arises, what was the offence which Ram Prasad can be said to have committed?
The offence of causing injury by burning is a broad spectrum which runs from s 324 causing- simple injury by burning through S 326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself. The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 60 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC account. The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder. We think that the matter goes a little further than this. As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad calls within culpable homicide not amounting to murder or the higher offence of murder itself. Here we see that death has actually been caused by the criminal act; in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions or extenuating circumstances, must be borne by the person who, caused it. The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder. The question is whether the offence falls in any of the clauses of S. 300 Indian Penal Code. In this connection it is difficult to say that Ram Prasad intended causing the death of Mst. Rajji although it might well be the truth. That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of S. 300, but all the other clauses also. We do not -wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst. Rajji. That would be a matter of speculation. In our opinion, this matter can be disposed of with reference to clause fourthly of S. That clause reads as follows :-
....... culpable homicide is murder..... if the person committing the act knows that it is so imminently dangerous that it must in all probability, cause SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 61 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC death or such bodily injury as is likely to cause death, and commits' such act without any excuse for incurring the risk or causing death or such injury as aforesaid."
It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death. The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause. Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of S. 300, Indian Penal Code. In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death.
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 62 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.
We accordingly allow this appeal, substitute the conviction under S. 302 of the Indian Penal-Code in place of the conviction under S. 304 Part II and sentence Ram Prasad to imprisonment for life.
68. In Sudershan Kumar vs. State of Delhi (1975) 3 SCC 831, a 19 year old woman died due to septicemia that developed after an acid attack which had caused 35% burns. It was held that the fact that the deceased lingered for 12 days after the attack was irrelevant.
The conviction under Section 302 IPC was upheld having regard to Explanation 2 to Section 299. The fact that the deceased had developed symptoms of malaena and respiratory failure which also contributed to the death did not affect the verdit that the injury caused by the acid burns was the direct cause of her death.
69. In the case of Subhash Vs. State 196(2013)DLT206 it was held " we are fully satisfied that the connection between the act of the appellant in throwing the acid on Nirmala and her death is established. The death of Nirmala would not have occurred but for act of the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 63 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC appellant throwing acid on her and causing substantial burn injuries. The causal connection is established and proved."
70. The decisions of the cases i.e Sudhershan Kumar and Subhash ( supra ) are squarely applicable to the present case. Further, the case in hand is somewhat similar to the case of State of Madhya Pradesh (supra), however, the only difference is that in the said case kerosene oil was thrown on the victim and then set a light, whereas in the present case the acid was thrown on the deceased. It cannot be said that the accused was not aware that in case he throws acid it would not cause death of Bimla@Rani .
71. In the light of aforesaid discussion, Court is of the view that prosecution has been successful in establishing the guilt of the accused in respect of offence u/s 302 IPC. Consequently, accused namely Ajay Bharti @ Pandit stands convicted u/s 302 IPC.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 30.05.2014 ASJ-5, North
Rohini Court
SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 64 of 70 )
FIR no.41/06
D.O.D 30.05.2014 P.S Prashant Vihar
u/s 302 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL: ASJ-05, NORTH:ROHINI COURTS: DELHI.
SESSION CASE NO. : 100/14
UID NO : 02404R0175412006
FIR no : 41/2006
P. S : Prashant Vihar
u/s 302 IPC
The State
Versus
Ajay Bharti @ Pandit ( convict)
S/O Late Kusheshwar Bharti,
R/O Village Sarai Dinesh,
P.S Deshari,Distt Vaishali,
Bihar.
ORDER ON SENTENCE
30.5.2014
Present: Sh D.K Singh , Ld Additional Public Prosecutor for
the state.
Ms Sadhna Bhatia , ld Amicus Curiae for convict Ajay Bharti @ Pandit.
I have heard both the sides on the quantum of sentence. I have also perused the record.
Vide my separate judgment announced in the open court today, accused Ajay Bharti @ Pandit was convicted for the offence u/s 302 IPC with the finding that deceased Bimla @ Rani suffered around 40% burn injury due to the acid thrown on her by the convict, due to which she expired subsequently.
It is argued by the ld Amicus Curiae for the convict that convict is not previously involved and is facing trial for near SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 65 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC about eight years. Ld counsel further submitted that convict is having clean antecedents and the offence of convict does not fall within the category of rarest of rare case. Hence, ld counsel submits that lenient view be taken.
Convict Ajay Bharti @ Pandit also made a request to take a lenient view stating that his father has already expired and there is nobody to look after his old age mother.
On the other hand, ld Additional P.P for state argued that convict is not entitled for any leniency as he has thrown acid on Bimla @ Rani due to which she suffered homicidal death. Hence the act of convict is quite grave and prayed that maximum sentence i.e death penalty be awarded to the convict under given facts and circumstances.
In a case State of M.P Vs Najab Khan & Ors. , 2014 II AD (S.C) 194, It was held that " In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime , the conduct of the accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 66 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment" .
One of the most horrifying forms of gender-based violence, a growing phenomenon in India, is acid attack. Though acid attack is a crime which can be committed against any man or woman, it has a specific gender dimension in India. Most of the reported acid attacks have been committed on women, particularly young women, for spurning suitors, for rejecting proposals of marriage, for denying dowry etc. The acid is used with malicious intent to take revenge, disfigure and harm the person. Some men ego will not allow them to accept rejection and when their advances are spurned they retaliate by throwing acid at the woman. An acid attack is a terrifying experience. Acid melts human flesh and even bones. It causes excruciating pain and terror. The victims are left mutilated and scarred for the rest of their lives. Some suffer permanent disabilities such as blindness and some victims even die as a result of their injuries.
Dealing with this cruelest menace, the Hon'ble Supreme Court in a recent case of Laxmi v. Union of India reported in 2012 (9) SCALE 291 directed the State governments and the Union territories to make appropriate rules for the sale of acid in states and union territories respectively. The Hon'ble Apex Court also directed the government to take appropriate measures for proper treatment, SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 67 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC after care, rehabilitation and payment of compensation to the victims of acid attack.
Acid attack, especially on women, has seen an alarming growth in India. Acid attack or 'vitriolage' is often referred to as a 'crime of passion' fuelled by jealousy and revenge. Acid throwing is the easiest way to hurt a woman and often used as a form of revenge on refusal of sexual advances, proposal of marriage and demands of dowry. Perpetrators of acid attacks intend to disfigure and cause extreme physical and mental suffering to victims.( Naeem Khan v. State Criminal Appeal No. 980/2009 ,Decided on October 7, 2013) Throwing of acid on helpless victims, mostly women, is on the rise, which is a dastardly and cowardly act and the same is to be controlled with an iron hand. It sometimes leaves them disfigured, blind and, as in this case, even death.( Nitin Kumar Arora v. State (NCT) of Delhi Crl. A. 182/2010 & Crl. M. (Bail). 1309/2013,Decided on August 30, 2013) Attacking with acid is a violence against the society in general . The intention of perpetrator of such crime is to permanently brand someone and make them feel ashamed knowingly well that it may even cause the death of the victim.
Generally, acid violence is a form of gender based violence that reflects and perpetuates the inequality of women in society and as such is prohibited by international law. The facts of this case tell that convict Ajay Bharti @ Pandi planned and then executed an act of pure, calculated and deliberate evil. He decided to SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 68 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC wreck the victim's life by throwing acid on her .
Section 302 IPC prescribes death or life imprisonment as a penalty for murder. Death sentence is ordinary ruled out and can only be imposed for "special reasons", as provided in section 354(3) CrPC.
Having gone through the case laws i.e Bachan Singh vs State of Punjab : AIR 1980 SC 898, Machhi Singh vs State of Punjab : AIR 1983 SC 957 , Babloo @ Mubarak Hussain Vs State of Rajasthan: AIR 2007 SC 697 , Sushil Sharma vs State of NCT of Delhi: Crl Appeal Number 693/07 dated 08.10.2013 (SC) and taking into account all the incriminating and mitigating circumstances, in my view the case does not fall within the category of rarest of rare case , as explained in the judgments mentioned above.
After considering the entire facts and circumstances of the present case and the discussion made herein above, the convict Ajay Bharti @ Pandit is sentenced to Life Imprisonment alongwith fine of Rs 2000/- for offence u/s 302 IPC. In default of payment of fine, he shall undergo S.I for two months.
Fine not paid.
Benefit of section 428 CrPC shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict has been informed that he has a right to prefer an appeal against this judgment . He has been apprised that in case he cannot afford to engage an advocate, he can SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 69 of 70 ) FIR no.41/06 D.O.D 30.05.2014 P.S Prashant Vihar u/s 302 IPC approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37,Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of cost.
File be consigned to record room after necessary compliance.
( Rajesh Kumar Goel) ASJ-5, North /30.5.2014 SC No. 100/14 State vs Ajay Bharti @ Pandit ( "convicted") (Page 70 of 70 )