Delhi District Court
Evidence. It Has Been Held In Smt Laxmi vs Om Parkash & Ors 2001 V on 24 December, 2008
1
IN THE COURT OF SH. DEEPAK GARG
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 32/1
Date of institution of the case: 22.11.08
Date of Decision: 24.12.08
State
Versus
Jitender Kumar @ Pappu
S/o Ram Lal
R/o C-331, J.J. Colony
Khiyala, Delhi.
FIR No. 1034/00
PS Tilak Nagar
U/s. 302 IPC
Judgment
1.The present FIR was registered on the statement of deceased namely Smt Sujata who made statement to Investigating Officer SI Kehar Singh in hospital that she was married to Jitender Kumar on 19.11.81 and that she had two sons aged 18 years and 10 years respectively. She further stated that her husband was in the habit of consuming liquor and that he used to quarrel with her and beat her after consuming liquor. She further stated that on the relevant date her husband came in the drunken position and started beating her. She further stated that when she tried to pacify him, her husband poured kerosene oil on her and said that he will silence her for all the time and by saying so put her on fire with the help of matchstick.
2. Smt Sujata was brought to the hospital and she had 85-95% deep burns on her body and she made the above said statement to 2 Investigating Officer SI Kehar Singh. On the basis of it, Investigating Officer prepared the tehrir and he got the present case registered.
3. After the registration of the case, police carried out investigation into the case. Smt Sujata expired in the hospital and after the finalization of investigation, police filed the present chargesheet, against her husband i.e Jitender Khanna u/s 302 IPC.
4. After the committal of the case to the Court of Sessions charge u/s 302 IPC was framed against the case by My Ld Predecessor Court vide order dated 08.05.01 to which the accused plead not guilty and claimed trial.
5. In support of its case prosecution has examined 22 witnesses in total.
6. As per the case of the prosecution, Sh. Rampal was the eye witness of the commission of the offence. Sh. Rampal has been examined as PW1, but he has turned hostile. As per him there was a fight between the accused Jitender Kumar and his wife and the accused was telling his wife that he would sell the house but his wife was objecting to the same and they continued fighting for some time and then his wife went inside the house and brought a plastic bottle containing kerosene oil and came in the gali and poured kerosene on her and set herself on fire and then she started running towards the gali and the accused followed her and he tried to douse the fire with the help of the other persons. He has been cross examined by the Addl.P.P for State, but nothing has come out.
7. PW2 Sh. Harish Khanna is the son of the deceased and the 3 accused. He has stated that on 20.12.2000, he was not present in the house and in the evening when he came to know that her mother was admitted in the hospital, he alongwith his Mama went to hospital where her mother i.e. the deceased told him that his father in drunken condition has put her on fire after putting kerosene oil on her.
8. PW3 Dr. Vikas Gupta had directed the admission of the deceased in the hospital while his order Ex. PW3/A. He further stated that she was examined by Dr. Tejender Pal Singh and Dr. Sanjeev Arora and her MLC was prepared which is Ex. PW3/B. As per the report, the patient was having superficial as well as deep burns around 85-90%.
9. PW4 Sh. Rajender Singh stated that on 20.12.2000 he had gone to the house of the accused as accused wanted to settle the term for the sale of his house no. 331, J.J Colony, Khayala. He Stated that when he reached there, husband and wife started quarreling with one another as the wife of the accused was against the selling of the house and in the mean time the wife of the accused went to the kitchen and brought a plastic bottle filled that kerosene oil and poured the kerosene oil and herself and put herself on fire. He further stated that he also put a water on her to extinguish the fire. He was also declared hostile by the State and was cross examined by Ld P.P but nothing has come out in his cross examination.
10. PW5 Head Constable Rohtash Singh had got the accused medically examined and he handed over the medical report of accused Jitender to SI Kehar Singh.
11 PW6 Sh. Gulshan Kumar is the brother of the deceased who 4 stated that accused Jitender Khanna was in the habit of taking liquor and he used to beat his sister under the influence of liquor. He further stated that accused also wanted to sell the house but the same was opposed by his sister. He further stated that both the children of his deceased sister were living with him since childhood as accused was not giving them proper education. He further stated that on 20.12.2000 he received intimation that his sister had been burnt by accused Jitender Khanna and when he reached hospital his sister namely Sujata stated him that accused had burnt her.
12 PW7 is Sardar Tirath Raj Singh who at the instance of SI Kehar Singh took measurement of the place of occurrence i.e. C-331, J.J. Colony, Khayala and on the basis of the pointing out and rough measurement, he prepared scaled site plan which is Ex.PW7/A and ammonia print of the same is Ex. PW7/B. 13 PW8 Constable Ravinder Kumar had reached at DDU hospital along with SI Kehar Singh on receipt of DD No.18 and he further stated that SI Kehar Singh recorded the statement of Sujata and on the basis of same SI Kehar Singh prepared rukka and he took the same to the Police station and got the FIR registered. He further stated that he came back at the hospital with the copy of the FIR and original rukka and handed over the same to SI Kehar Singh. He is also a witness of the preparation of the site plan and seizure of half filled kerosene oil bottle and a match box which were stated to be sealed after preparing his pullanda. He is also the witness of arrest of the accused vide personal search memo Ex. PW8/A and Ex. PW8/B respectively.
514 PW9 Head Constable Jagdish Parsad who was posted as MHC(M) on 20.12.2000 at PS Tilak Nagar and he stated that on that day SI Kehar Singh had deposited 3 sealed pullanda sealed with the seal of KS with him. He further stated that on 21.02.2001 all the 3 parcels were sent to FSL, Hyderabad by Constable Raj Kumar vide RC No. 340/21. He further stated that on 26.03.01, the said parcels were received back from FSL, Hyderabad with FSL report and its entry was made in the register no.
19. The entry in register no.19 was proved as Ex. PW9/A. The relevant entry contained in RC no. 340/21 was also proved as Ex. PW9/B and the receipt of CFSL regarding parcels were proved as PW9/C. 15 PW10 Constable Om Parkash had recorded DD no.18 dated 20.12.2000 regarding admission of Smt Sujata in DDU hospital and the copy of said DD was proved as Ex.PW10/A. He also recorded DD no. 8 dated 21.12.08 regarding death of Smt Sujata and the copy of said DD is Ex. PW10/B. 16 PW11 Constable Brij Kishore had gone to the Safdurjung hospital after receipt of DD no.8 which was regarding the death of Smt Sujata and he stated that he remained there till 22.12.2000, 10.00 a.m when SI Kehar Singh and ASI Om Parkash Meena reached there. 17 PW12 Dr. Alexender had conducted the postmortem examination on the body of Smt Sujata and in his opinion, death in this case was due to shock caused by antemortem thermal burn injuries and time since death was approximately 27 hours and he proved his detailed report in this regard which is Ex. PW12/A. 18 PW13 Head Constable Ram Chander was the Duty officer on 6 20.12.2000 who registered the FIR in question on the basis of rukka brought by Constable Ravinder which was sent by SI Kehar Singh and on the basis of same he registered the FIR in question and proved the copy of same as Ex. PW13/A. 19 PW14 Constable Kamal Singh was posted at DDU hospital on 20.12.2000 and after the admission of Smt Sujata in the said hospital and he informed PP Khayala about her admission which was recorded vide DD no.19.
20 PW15 Constable Mahesh Chand was posted at Safdurjung hospital on 21.12.2000 and after the admission of Smt Sujata in Safdurjung hospital he informed PP Khayala vide DD no. 8A. 21 PW16 Constable Nirmal Singh took the exhibits to CFSL, Chandigarh but as per him the authorities there refused to accept the same due to shortage of staff and hence he returned back to the police station and handed over the exhibits of this case to the MHC(M). 22 PW17 Inspector J.L. Meena joined the investigation of this case on 22.12.2000 and got conducted the postmortem on the dead body of Smt Sujata. He along with SI Kehar Singh called the draftsman and got the scaled site plan has been prepared. On 14.02.01 he also sent the exhibits to CFSL, Chandigarh through Constable Nirmal Singh but as per him the said constable came back to Delhi stating that the CFSL authorities had refused to accept the exhibits due to shortage of staff. On 16.02.01 he was transferred and hence he deposited the file with the MHC(R).
23 PW18 Constable Raj Kumar collected the exhibits of this case 7 from MHC(M) vide RC no.340 and deposited the same in the office of CFSL, Hyderabad.
24 PW19 Hardeep Singh medical Record Technician, Safdurjung hospital brought the original case sheet containing 9 pages pertaining to Smt Sujata and proved the same vide Ex. PW19/A to PW19/9A. 25 PW20 Dr Sudhir Rathee had examined Smt Sujata on 20.12.2000 at 7.30 p.m in Safdurjung hospital where the patient herself mentioned to the doctor that she was burnt by pouring kerosene oil over her head by her husband and was flamed by matchstick and that her husband was drunkard. This alleged was recorded by the doctor on Ex. PW19/A. 26 PW21 Dr Aruna Singh identified the signature of Dr. Tejender pal on the MLC Ex. PW3/B wherein Dr Tejender Pal mentioned that patient Sujata wife of Jitender was brought in the ward of casualty with alleged history of burns by fire after putting kerosene by husband as told by the patient.
27 PW22 SI Kehar Singh is the Investigating Officer of the case. He stated that he alongwith Constable Ravinder reached DDU hospital on receiving DD no.18 and he collected the MLC of injured Smt Sujata and recorded her statement which is Ex. PW22/A. On the basis of the same, he prepared tehrir Ex.PW22/B and got the FIR registered through Constable Ravnder. He also got the accused medically examined vide his MLC Ex. PW22/B1 in which Dr had declared that smell of alcohol was present. He recorded statement of public witnesses Rajender Singh and at his instance prepared site plan Ex. PW22/C and he took the photograph 8 on the spot by his own camera and the said photograph are Ex. PW22/D1 to PW22/D4 and the negatives are collectively exhibits as Ex. PW22/D5. One match box containing some sticks and half filed bottle containing kerosene were taken into possession by him. He also recovered some burnt clothes and burnt skin and the same was taken into a plastic bag and the same were taken into possession vide memo Ex. PW2/A and arrested the accused Jitender vide arrest memo Ex. PW8/B. He also recorded the statement of another public witness namely Rampal and got conducted the postmortem on the body of the deceased. He also collected death summary of the deceased vide Ex. PW22/E and postmortem report Ex. PW12/A. On 22.2.01 he sent the exhibits to CFSL, Hyderabad through Constable Rajinder and subsequently collected the report which is Ex. PW22/F and he prepared the challan and filed the same in Court. He also identified the case property containing of plastic bottle, one matchbox having some matchstick, burnt cloths of deceased which are exhibits P1 to P3 respectively. And he arrested accused Jitender vide arrest memo Ex. PW8/B. He also recorded the statement of another public witness namely Rampal and got conducted the postmortem on the body of the deceased. He also collected death summary of the deceased vide Ex. PW22/E and postmortem report Ex. PW12/A. On 22.02.01 he sent the exhibits to CFSL, Hyderabad through Constable Rajkumar and subsequently got the report collected which is Ex. PW22/F and he prepared the challan and filed the same in Court. He also identified the case property consisting of plastic bottle, one matchbox having some matchsticks, burnt cloths of deceased which are P1 to P3 9 respectively.
28 Statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence and circumstances appearing in evidence against him were put to him by the Court. He showed his ignorance about investigation conducted by the police and stated that his wife was unconscious at the time of his admission in the hospital and she did not tell anything to the doctor. He further stated that at the relevant time he was unemployed and it was not possible for him to run the expense of the house and hence he and his wife had discussion and decided to sell the house to pay the loan and to purchase some other house in another colony. He further stated that they both had gone to property dealer and there they stated their willingness to sell the house and hence Sh. Rajinder Singh who is the property dealer came to his house in connection with the sale of the house and suddenly his wife told him that she would not allow the house to be sold. He further stated that he told the property dealer to continue with the discussion and that he would prevail upon his wife to sell the house in question and in the mean time his wife went inside the house and brought a bottle containing kerosene and she poured the kerosene upon herself and set her on fire outside the house and started running away. He further stated that after few steps she fell down and he followed her to save her and he tried to extinguish the fire and in the process he also received burn injuries on his hands. He further stated that Sh. Rajinder Singh also put water upon his wife to extinguish the fire and subsequently she was taken to the DDU hospital. 29 The accused has examined one defence witness namely Sh. 10 Sachin Khanna(DW1) who is the son of the accused and the deceased. This witness had deposed that on 20.12.2000 he was residing at the house of his Nanaji and on receiving intimation that his mother had been admitted in hospital, he reached Safdurjung hospital where his brother Harish and Mama Gurlshan had also accompanied him. He stated that his mother was unconscious. He further stated that Sh. Rampal and Sh. Rajinder were also present there and on the query of his Mama Gulshan as to how the incident had occurred, Sh Rampal and Rajinder Singh told him that there was some quarrel between his father and mother and his mother had brought a bottle of kerosene oil and a matchstick and she poured kerosene oil on herself and put herself on fire and she ran in gali. He further deposed that his mama namely Gulshan pressurized his brother Harish stating that Harish should give statement against his father and when he declined to say as per the wishes of mama, he was slapped by the mama. He further stated that his mama had also threatened him that he will be shunted out of the house in case he does not give statement against his father and Mama also given beatings to his brother Harish on the day when he examined in the Court as a witness. He further stated that their mama was bearing the expenses of their education and clothing etc. and hence they could not muster courage to speak against their mama.
30 In view of the testimony of DW1 Sh. Sachin Khanna, the Court summoned his brother namely Sh. Harish Khanna who was earlier examined as PW2 to ascertain the state of affairs in which he had made statement before the police and also before the Court. Sh Harish Khanna 11 (PW2) when examined as Court witness, corroborated the testimony of DW1 Sh. Sachin Khanna and stated that on the relevant day, his mama Gulshan had beaten him and had asked him to give statement against his father and that he had also threatened him that if he did not obey his wish, he will be shunted out of the house. He further stated that he was completely dependent upon his mama for his education and clothing etc. and there was no other person to take care of them and hence under these circumstances he had to make false statement against his father to the police as well as in the Court. He further testified that his mother had remained unconscious throughout in the hospital and that she did not say anything to him or to anybody else.
31 At the time of arguments, Ld APP for State laid on emphasis on the statement of Smt. Sujata recorded by IO SI Kehar Singh which is Ex. PW22/A stating that this could be taken as her dying declaration and is fully reliable in which she has clearly stated that her husband i.e. accused had poured kerosene oil on her and had put her on fire with the help of matchstick. He further stated that the deceased Smt Sujata also stated the same to the Dr. Tajender PW, DDU hospital and to Dr. Sudhir Rathi (PW20) in Safdurjung hospital where it clearly finds mentioned on the MLC concerned.
32 It is relevant here to state that it is not the case purely based on circumstantial evidence or on the alleged statement of the deceased to the Investigating Officer and to the doctors concerned but as per the case of the prosecution itself there were two public witnesses namely Sh. Rampal and Sh. Rajender Singh who were present on the spot when the 12 incident in question occurred. As stated above, both the said public witnesses have categorically stated that there was quarrel between husband and wife and the wife i.e. deceased in the mean time went to the kitchen and brought a plastic bottle filled with kerosene oil and poured the same on herself in the gali and put herself on fire and she ran in the gali. They have been cross examined by Ld APP but nothing has come out in their cross examination. There is nothing on record to suggest that those public persons have been won over by the defence or that they have made false statement in Court.
33 There is contradiction in the version given by the said public persons and version as given by the deceased in her statement Ex. PW22/A to the doctors at DDU hospital and Safdurjung hospital and this contradiction is creating doubt in the case.
34 As stated above, both the sons of the deceased have been stated in Court that they were pressurized by their mama namely Sh. Gulshan (brother of the deceased) to make false statement to the police so as to implicate their father in the case. They both have further stated that at that time they were totally dependent on their Mama for their food and education etc and hence they could not afford to defy the wishes of their Mama. From the same it is clear that Sh. Gulshan i.e. brother of the deceased wanted that Sh. Jitender Kumar who was his brother in law and the husband of the deceased should be implicated in the case rightly or wrongly. In this background, this Court has to see the recording of statement of the deceased recorded by the Investigating Officer which is Ex. PW22/A. There is nothing on record as to at what time the said 13 statement was recorded by Investigating Officer. Further, there is nothing on record that the Investigating Officer took endorsement of the doctor that she was in fit state of mind to make the statement. Investigating Officer in his cross examination has stated that he did not obtain in writing from the doctors that Smt Sujata was fit to make the statement. In such circumstances, there can be apprehension that the said statement of the deceased could be recorded by the Investigating Officer under the influence of the brother of the deceased.
35. The law relating to dying declaration is well settled. The dying declaration is admissible in evidence and as a piece of evidence, it stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the law of surrounding circumstances and its weight determined by the reference to the principles governing the weighing of evidence. It has been held in Smt Laxmi Vs Om Parkash & Ors 2001 V AD (S.C.) 245 If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. 36 Even if the statement of the deceased which is Ex.PW22/A is accepted to be correct, there is contradiction in the version as stated by her and the version which has been given by Sh. Rampal and Sh. 14 Rajender Singh who have been examined as PW1 and PW4 respectively. In view of the clear contradiction, it was desirable that there should have been some other evidence to corroborate the statement of the deceased but the same is completely missing in the present case. 37 As per the statement of Sh. Harish Khanna (when examined as Court witness) and Sh. Sachin Khanna, their mother was unconscious throughout in the hospital and that she did not make any statement to any person. Although their statement is in contradiction of the medical record of the deceased but the same is also creating doubt in the case. 37 In view of the clear testimony of Sh. Rampal and Sh. Rajender Singh who have been examined as PW1 and PW4 respectively and in view of the statement of Sh. Harish Khanna and Sh. Sachin Khanna who are sons of deceased and who have given statement exonerating the accused, it would not be wise for this Court to rely solely on the statement of the deceased recorded by Investigating Officer in the hospital or alleged history given by her to the doctors in the hospital. As stated above, there is no evidence on record to corroborate and strengthen the statement of the deceased and further as discussed above the making of the statement of the deceased to the Investigating Officer is itself in doubt.
38. In view of the above discussion, I am of the view that prosecution has miserably failed to prove the guilt of accused beyond reasonable doubt. Accordingly, the accused Jitender Khanna is acquitted in this case.
39. Case property, if any, be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to 15 decision thereof.
40. File be consigned to record room.
Announced in Open Court on 24.12.08 ( Deepak Garg ) Additional Sessions Judge Fast Track Court Rohini : Delhi