Delhi District Court
State vs Abhishek Sharma on 28 April, 2009
-::1::- FIR No 615/07
PS: Model Town
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI
FIR no. 615/07
Police station Model Town
U/s 302 IPC
State V/s Abhishek Sharma
1. Session Case no. : 01/08/23/01/08
2. Name of the accused : Abhishek Sharma
and parentage S/o Shri Kishore Kumar Sharma
R/o E-2/13, Model Town-1,
Delhi.
3. Date of commission of : 21/09/2007
offence
4. Arguments concluded : 17/04/2009
on
5. Date of Judgment : 28/04/2009
6. Date of final order : 30/04/2009
JUDGMENT
1. According to the prosecution case accused Abhishek Sharma and deceased Mandeep Kaur were working as Customer Care Executive (CCE) and Team leader/Operation's manager respectively with M/s Sai Telecom at B-304, Second floor, Saraswati Vihar, Delhi. Deceased Mandeep Kaur was working since 02/01/2006 whereas accused Abhishek Sharma was working ::1::
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PS: Model Town since January 2007. Both of them developed friendship and Abhishek Sharma often used to drop her in his car at her residence after their duty hours in the office. Their working hours in the office were from 3.30 P.M to 12.00 A.M in the night. On the night of intervening 20th and 21st September 2007 deceased Mandeep Kaur and accused Abhishek Sharma had left their office at about 12.15/12.30 A.M in the car of the accused. The accused was alleged to have been extending threat to the deceased for the last few days as he suspected her to be in love with her company boss whereas he wanted her to love him. On that day, the accused did not drop her at her residence and forcibly took her near Queen Marry School Model Town-III. After parking the car, the accused got down and also made her to come out of the car, then he brought out a bottle containing oil and poured oil on her body by saying that she did not love him and instead was in love with her company boss. They quarreled with each other on this question of love and in between accused set her on fire as a result her body clothes had got fired. In between a PCR van reached on the spot and the accused fled away from the spot. The PCR van rushed her to Jai Prakash Narain hospital. The information regarding burning of the deceased near Queen Marry School, Model Town was ::2::-::3::- FIR No 615/07
PS: Model Town recorded in Police Station Model Town at about 1.55 A.M vide DD no. 8A wherein it was stated that Mandeep who was working in a Call Center had been set on fire by her friend Abhishek Sharma. The said information was passed on to SI Balwant Singh for necessary action who went to JPN hospital alongwith Ct Paramjit Singh and obtained her MLC and recorded her statement. On the basis of her statement, case FIR under section 307 IPC was registered in Police Station Model Town. SI Balwant Singh then went to spot, prepared site plan at the instance of SI Anoop Singh of PCR. During investigation the accused was arrested at about 8.30 P.M from Model Town and his Alto car was seized. Injured Mandeep Kaur expired on 03/10/2007 at Mahraja Agarsen hospital. On completion of the investigation chargesheet was filed.
2. On 6/2/2008, a charge under section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial. On 03/5/2008, Ld Addl. PP for the state moved an application for amendment of the charge on the ground that the deceased had not mentioned the kerosene oil in her statement had infect mentioned only oil and as such after hearing the Ld counsel for the accused the charge was suitably amended and the word "kerosene oil" was deleted from the charge framed on ::3::
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PS: Model Town 6/2/2008 and amended charge under section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case the prosecution has examined in total 25 witnesses.
4. The brief summary of the deposition of the prosecution witnesses is as under:-
1. FORMAL WITNESSES PW1 HC Rajiv Kumar deposed that on 21/2/2007 he was posted at Police Station Model Town as duty officer from 1.00 A.M to 9.00 A.M . On that day at about 1.55 A.M the wireless operator had given an information to the effect that Incharge, PCR van C-63, ASI Anoop Singh had informed that a girl was found on fire behind Queen Marry school Quarters, Model Town; her name was disclosed as Mandeep; ASI Anoop Singh had given this information from Burn ward, JPN hospital; he had lodged DD no. 8A on this information and had handed over the same to Ct. Rameshwar for entrustment to SI Balwant Singh and he proved the original DD copy of which is Ex. PW1/A. He further deposed that at about 3.30A.M ::4::-::5::- FIR No 615/07
PS: Model Town Ct.Paramjit Singh came to him with a rukka sent by SI Balwant Singh and he recorded the FIR u/s 307 IPC on the basis of the rukka; he has proved the original FIR copy of which is Ex.PW1/B; he handed over the copy of the FIR and original rukka to Ct. Paramjit Singh for handing over the same to SI Balwant Singh; He made the endorsement on the rukka which is Ex. PW1/C. PW2 Ct. Dalbir Singh who is photographer deposed that on the intervening night of 20-21/09/2007 he had gone to Queen Marry School at about 3.15 A.M alongwith Crime Team Incharge, ASI Satpal Singh and had taken six photographs of the scene of crime. He has proved the negatives which are Ex.PW2/1 to Ex. PW2/6 and the positive are Ex. PW2/7 to Ex.PW2/12.
PW4 SI Manohar Lal, draftsman, deposed that on 01/12/2007 he alongwith ASI Suresh Chand visited the place of occurrence and on the pointing out by ASI Suresh Chand he had prepared rough notes of the site on the basis of which he prepared scaled site plan which is proved as Ex. PW4/A. PW9 Ct. Mukesh deposed that on 13/10/2007 he had taken two parcels sealed with the seal of BS and two ::5::-::6::- FIR No 615/07
PS: Model Town envelopes sealed with the seal of KG BJRM and had deposited the same at CFSL, Calcutta alongwith a sample seal vide RC no. 136/21 and brought the acknowledgment on the reverse of the RC and handed over the same to the MHC(M).
PW10 HC Pramod Kumar deposed that on 21/9/2007 he was posted as MHC (M) and on that day SI Balwant Singh had deposited two parcels sealed with the seal of BS vide entry at serial no. 3595. He further deposed that on 03/10/2007 SI Balwant Singh deposited two envelopes sealed with the seal of KG BJRM alongwith sample seal vide entry no. 3604 and on 13/10/2007 he had sent the aforesaid parcels sealed with the seal of BS and envelopes sealed with the seal of KG BJRM besides the sample seal to CFSL, Calcutta through Ct. Mukesh Kumar vide RC no. 136/21. He has proved the relevant entries as Ex. PW10/A (two pages) and Ex. PW10/B. He further deposed that on 09/04/2008 the result was received from the CFSL, Calcutta alongwith remnants of the sample and the result was handed over to Inspector Harish Chander, Addl. SHO Police Station Model Town on 10/04/2008 and remnants were kept in malkhana.
PW11 HC Naresh Kumar deposed that on
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PS: Model Town
03/10/2007 he had accompanied SI Balwant Singh to Maharaja Agarsen hospital; the IO had obtained the death summary and other documents regarding the death of deceased; he had recorded the statement of Smt Jasmer Kaur mother of deceased and Hemant brother-in-law of deceased; SI Balwant Singh had handed over the dead body to him which he had taken to BJRM hospital mortuary for conducting postmortem; after the postmortem the dead body was handed over to the relatives of the deceased alongwith certificate; the autopsy Surgeon had handed over to him three parcels containing blood sample, scalp hair and sample seal and handed over the same to the IO which were seized vide memo Ex. PW11/A. PW14 ASI Suresh Chand deposed that on 21/09/2007 on the direction of the SHO Police Station Model Town he had gone to the spot where a bottle and remnants of the clothes were lying and bottle was smelling like petrol; the crime team reached the spot and photographs of the scene of crime were taken; Crime team handed over to him the bottle recovered from the spot and remnant of the cloth which were handed to SI Balwant Singh and prepared separate parcels ::7::-::8::- FIR No 615/07
PS: Model Town sealed with the seal of SB; seal after use handed over to Ct.Paramjit Singh. He further deposed that on 01/12/2007 he had taken SI Manohar Lal draftsman to the spot and had shown the place of crime.
PW21 Sh. K.D. Sharma, record clerk from Maharaja Agarsen hospital proved the ultrasound chest (portable) report dated 27/09/2007 of deceased Mandeep Kaur which was given by Dr. Jyon Sen as Ex. PW21/A and identified the signature of Dr. Jyon Sen at point - A who has left the service from the hospital.
PW23 Inspector Harish Chander has collected the offer and acceptance letter of accused and deceased from Yashin Nagpal and seized the same vide Ex. PW6/C on 13/12/2007 . He has also got the site plan prepared by SI Manhor Lal, the draftsman on 01/12/2007 and on 26/10/2007 he had recorded statement of MHC(M) Pramod Kumar and Ct. Mukesh Kumar.
2. MATERIAL WITNESSES PW16 ASI Anoop Singh was posted as Incharge PCR Van Commander 63 and was on duty from 8.00 P.M to ::8::-::9::- FIR No 615/07
PS: Model Town 8.00A.M in the intervening night 20th and 21st September, 2007 and at about 1.00 A.M after taking permission from the headquarter for taking tea he alongwith his colleagues was going to Azadpur via Prince road and when they reached near Queen Marry school on the Prince road, they saw a girl on fire who was crying "bachao, bachao"; they stopped the van and put off the fire on the body of the girl with the help of a blanket which was with them in the van; they took her to LNJP hospital and got her admitted there and reported the matter to Police Station Model Town. He further deposed that on enquiry by him the girl had told her name as Mandeep Kaur resident of Shalimar Bagh and further told that one of her colleague Abhishek Sharma who was working with her at the Call center had set her on fire by pouring oil on her body. He was called by the Investigating Officer and the site plan was prepared at his instance and his statement was also recorded.
In his cross-examination by Ld defence counsel he has deposed that they had noticed the girl when they had come near to her and did not notice anybody or any vehicle nearby the spot; he did not notice any guard at the gate of the school;
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PS: Model Town the site plan was prepared at his instance at about 8.30 P.M and his statement was recorded after about 15 minutes of preparation of the site plan; local police had not asked him to come to the spot at the night time;
PW15 Ct. Subodh Kumar had accompanied PW16 ASI Anoop Singh on the PCR van and has fully corroborated the version of PW16 stating that when they were travelling on the ring road nearby Queen Marry School, they saw a girl in flames and was crying "bachao, bachao"; they had put a blanket on her body and had doused the fire and then took her to JPN hospital. He further stated that the said girl did not tell about the happening to him.
In his cross-examination by Ld Addl. PP for the State he clarified that the girl might have told the fact of her being working at M/s Sai Telecom Call Center and that Abhishek Sharma was responsible for the incident to the Incharge of the PCR van and he had not heard because he was driving the PCR van while keeping the siren on. When confronted with the statement Ex. PW15/A on that point he had stated that they stopped the PCR van and put off her flames with the help of putting a blanket on her body, he ::10::-::11::- FIR No 615/07
PS: Model Town stated that at the said time he was sitting in the PCR Van and might have forgotten those facts because of lapse of time.
PW17 SI Balwant Singh deposed that on 21/9/2007 at about 1.55 A.M on receiving DD no. 8A he went to JPN hospital alongwith Ct. Paramjit Singh and obtained the MLC of injured Mandeep Kaur and recorded her statement Ex.PW17/A and made endorsement on it Ex. PW17/B and sent the rukka through Ct. Paramjit Singh to the Police Station for registration of the case; he then reached at the spot, where ASI Suresh Chand was already present; he had taken into possession the remnants of burnt clothes vide memo Ex.PW13/A; Ct. Paramjit Singh had come to the spot alongwith the copy of the FIR and the rukka; he had prepared a parcel of the remnants of the burnt clothes Ex. PX2 and sealed with the seal of BS; he had also taken earth control from the spot and sealed with the same seal; he had also seized a plastic bottle Ex. PX1 on which "GH2" had been printed on the label which was smelling of oil and sealed with the same seal. He further deposed that ASI Anoop Singh of the PCR was called to the spot at about 8.15 A.M and site plan Ex.PW17/C was prepared at his instance; he recorded the ::11::-::12::- FIR No 615/07
PS: Model Town statement of ASI Suresh Chand, Ct. Dalbir Singh and ASI Anoop Singh. He further deposed that accused was arrested at about 8.30 P.M from a place near Naini Lake, Model Town vide arrest memo Ex. PW13/C and had taken the personal search vide memo Ex. PW13/B; he recorded the disclosure statement of accused vide memo Ex. PW17/D; at the instance of accused he took into possession an Alto car Ex.PX of black colour vide memo Ex. PW13/D; he got the accused medically examined; he obtained the attendance sheet from the employer of the accused as well as the deceased Ex. PW6/E which was taken into possession vide memo Ex. PW6/A; he had also recorded statement of Yashin Nagpal (PW6). He further deposed that on 03/10/2007 he had received DD no. 5D about death of Mandeep Kaur at the Maharaja Agarsen hospital.
In his cross-examination by Ld defence counsel he deposed that he had recorded the statement of injured in the burn ward and when he met the injured in the emergency, the doctors had already prepared papers for shifting her to burn ward and was shifted to burn ward within 2-3 minutes of his reaching in the emergency ward; after the injured shifted to ::12::-::13::- FIR No 615/07
PS: Model Town burn ward, he had immediately approached the doctor and sought the permission for recording the statement of the injured and thereafter recorded the statement of injured; he had obtained the fitness certificate of the injured on the MLC.
PW13 Ct. Paramjit Singh had joined the investigation with SI Balwant Singh and deposed that after the doctor certified that she was fit for statement, SI Balwant Singh had recorded statement of Mandeep Kaur; SI Balwant Singh had made endorsement on her statement and sent him to Police Station for registration of the case and after the case was registered and he returned and gave the copy of the FIR and the Rukka to SI Balwant Singh at the spot; on the spot SI Balwant Singh had taken into possession remnants of burnt clothes, a plastic bottle and Raakh (ashes) vide Ex. PW13/A. He further deposed that the accused was arrested in his presence vide memo Ex. PW13/C, Jamatlashi carried out vide memo Ex. PW13/B and Alto car DL 8CH 9828 was seized from accused vide Ex. PW13/D. PW5 Smt Jasmer Kaur is mother of deceased and deposed that after being informed about the incident she had come Delhi on 22/09/2007 alongwith her son and went to ::13::-::14::- FIR No 615/07
PS: Model Town Maharaja Agarsen hospital where her daughter Mandeep Kaur was admitted for treatment; Mandeep Kaur was under dressing and had told her that Abhishek had taken her in a car from her office and did not drop her at her residence but had taken her at a place in Model Town where she was made to come out of the car , since she did not come out , she was beaten up by Abhishek and as soon as she came out from the car , Abhishek poured petrol on her and set her on fire. She further deposed that Mandeep Kaur had died on 3/10/2007 in hospital.
In her cross-examination she has deposed that on 17/9/2007 while Mandeep Kaur was with her at Ropar she had received a telephone call from Abhishek; she had told the police that Mandeep had met her in Agarsen hospital while she was admitted there and had told her that Abhishek had taken her to a place in Model Town and had beaten up her and after getting her out of his car, he had poured petrol on her person and set her on fire. She was confronted with the statement Ex.PW5/DA where above facts are not recorded. She further clarified that the aforesaid facts were told by Mandeep to her on 22/9/2007 and she had remained with Mandeep ::14::-::15::- FIR No 615/07
PS: Model Town Kaur while she was not on ventilator for about 6 days.
PW6 Sh. Yashin Nagpal is partner of M/s Sai Telecom where deceased and accused were working as Team Leader/Operation's Manager and Customer Care Executive (CCE) respectively. He has deposed that Mandeep Kaur deceased was working with them since 2nd January 2006 and Abhishek Sharma accused was working with them since January 2007; on the night intervening 20th and 21st September, 2007 Mandeep Kaur and Abhishek Sharma had left their office at about 12.15/12.30 A.M on 21/9/2007 in the car belonging to the accused; at about 2 .00 A.M we received a call from the police that Mandeep Kaur had been set on fire by Abhishek Sharma by pouring petrol on her body. He further deposed that on the next morning i.e 21/9/2007 police had come to his office and collected the attendance sheet in respect of Mandeep Kaur and Abhishek Sharma and seized the same vide Ex. PW6/A; the attendance sheet in 7 pages was Ex. PW6/B collectively; after death of Mandeep Kaur the police came on 13/12/2007 and obtained offer of appointment letters of Mandeep Kaur and Abhishek Sharma Ex. PW6/D and Ex. PW6/E and seized the same vide Ex.
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PS: Model Town PW6/C. In his cross-examination by Ld defence counsel he has deposed that the hours of working in their office were from 3.30 P.M to 12.00 A.M; he used to come office at 3.30 P.M and returned after the closure of the office; they were maintaining Cabs for the employees but the accused and the deceased used not to take the Cab; he did not remember the registration number of the car belonging to the accused but it was a Maruti Alto and accused and deceased were working in a team and on the date of incident he had left the office at about 12.15 A.M .
PW3 Hemant Aneja brother in law of deceased Mandeep Kaur deposed that on 21/9/2007 at about 5.00A.M he had received a message from Inderjit his brother in law on telephone that Mandeep Kaur had been set on fire and admitted in LNJP hospital; he reached at LNJP hospital at about 6.00 A.M and about 11.00 A.M he had shifted Mandeep Kaur to Maharaja Agarsen hospital in his own car where she remained admitted till 03/10/2007.
In his cross-examination he has stated that Mandeep Kaur had remained on ventilator for 6 days prior to her death but she could talk during her admission in the ::16::
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PS: Model Town hospital before she was put on ventilator.
3. MEDICAL WITNESSES AND FORENSIC WITNESSES PW7 Dr. Lata Sr. Resident from Maharaja Agarsen hospital has deposed that on 3/10/2007 she has prepared the death summary of deceased Mandeep Kaur which is proved as Ex. PW7/A and the computerised copy of the death summary as Ex. PW7/B. PW8 Dr. S.N. Basna who was working as CMO in LNJP hospital deposed that on 21/9/2007 patient Mandeep Kaur was brought to the hospital by ASI Anoop Singh with the alleged history of burnt at in front of Queen Marry School, North Land, Model Town, Delhi at around 1.40 A.M on 21/9/2007 by Abhishek; history was given by the patient who was examined by Dr. Raj Junior Resident under his supervision. He further deposed that the burns were approximately 30% and he had signed the MLC Ex. PW8/A after the same had been prepared by Dr. Raj; he was present with Dr Raj at the time when she had examined the patient who had given the history.
In his cross-examination he has denied the ::17::
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PS: Model Town suggestion that the words "by Abhishek" at point -A in the MLC had been inserted later on and voluntarily deposed that had it been introduced later on, it would have been countersigned by the doctor who prepared the MLC and also by him.
PW12 Dr. K. Goyal has conducted the postmortem on the dead body of Mandeep Kaur on 3/10/2007 and gave his opinion as under:-
"The cause of death was scepticaemia consequent upon infected burn injuries. Burns were ante-mortem in nature caused by flame burn involved about 25% of body surface area and were severely infected.
He further deposed that the scalp hair and blood sample in gauze piece of the deceased were sealed and handed over to the police. His detailed postmortem report is proved as Ex. PW12/A. He further deposed that he has received total 10 inquest papers including application for postmortem.
PW18 Dr. Raj has examined the deceased Mandeep Kaur in Lok Nayak hospital when she was brought there in injured condition by SI Anoop Singh of PCR. She deposed that ::18::-::19::- FIR No 615/07
PS: Model Town on 21/09/2007 Mandeep was brought in the hospital by SI Anoop Singh at 2.15 A.M with the alleged history of burn in front of Queen Marry School Model Town, Delhi at around 1.40 A.M on 21/9/2007 as told by the patient by Abhishek. On examination the doctor found approximately 30% burn area. At the time of examination the patient was fit for statement and the said fact is also mentioned on the MLC Ex. PW8/A. She has written on MLC Ex. PW8/A at point- X-3 "fit for statement" at the time of examination.
In her cross-examination she deposed that the word "by Abhishek" on the MLC was not written subsequently at the instance of police. She further deposed in cross-examination that she had asked the patient as to how it had happened.
PW19 Dr. Sanjay S.R. Surgery, has examined the accused Abhishek Sharma on 21/9/2007 in Hindu Rao hospital. On examination, he found vesicular blister present over right middle finger 2 in number and right ring finger 2 in number. The MLC was Ex. PW19/A. In his cross-examination by Ld defence counsel he stated that the vesicular blister could be present over extensor aspect or palmer- aspect and that the similar blister can occur ::19::-::20::- FIR No 615/07
PS: Model Town if boiled water falls on the finger.
PW20 Dr. Geeta Ramakrisan, Micro Biologist has examined the blood sample of Ms. Mandeep Kaur vide her report Ex. PW20/A. PW22 Dr. Ashish Sharma has proved the MLC prepared by Dr. Ajay on 21/9/2007 in Hindu Rao hospital and has also proved the notes prepared by Dr. Ajay as Ex. PW22/A. He has deposed that as per the notes prepared by Dr. Ajay on 21/9/2007 Abhishek was examined by him who had complained burn area on right middle finger and right ring finger and vesicular blisters were present over right middle finger and right ring finger.
PW24 Shri Pradeep Kumar Misra, Junior Scientific officer, CFSL, Calcutta has examined the blood sample Ex. 1 and hair sample Ex. 2 and found human blood on Ex. 1 and Ex.2. Blood group-A was detected on Ex. 1 however, the blood group could not be detected on Ex. 2. He has proved his report as Ex. PW24/A. PW25 Shri Bijayanta Mukhopadhyay, Junior Scientific officer, CFSL, Calcutta has examined/chemically analyised the plastic bottle with lid and some burnt material ::20::-::21::- FIR No 615/07
PS: Model Town (ashes), unburnt and semi burnt cloth material and found presence of mixture of hydro-carbon resembling as that of petroleum hydro-carbon. His detailed report is Ex. PW25/A.
5. Accused was examined u/s 313 CrPC in which he stated that the alleged history in the MLC was manipulated by the doctor and the words "by Abhishek" were inserted later on; the Alto car was seized from his residence; the attendance sheet Ex. PW6/D and Ex. PW6/E were manipulated by Yashin Nagpal. He further stated that on the date of incident he left his office alone at about 12.00 'O' clock and at that time Mandeep Kaur was present in the office on the top floor and she habitually used to take the Cab. He further stated that he is innocent and falsely implicated and did not desire to lead evidence.
6. Shri B.S. Rana Ld counsel for the accused has argued that the prosecution has tried to prove its case while relying upon the alleged dying declaration of the deceased which has been proved by different witnesses examined by it and has assailed the prosecution case on the following grounds:-
(a) Ld counsel submitted that the first dying declaration relied by the prosecution is proved by PW16 ASI ::21::-::22::- FIR No 615/07
PS: Model Town Anoop Singh of the PCR van who reached on the spot and allegedly found the injured Mandeep Kaur burning, put off her fire with the help of a blanket and then removed her to LNJP hospital. It is argued that Mandeep Kaur has not stated anything to ASI Anoop Singh because Ct. Subodh Kumar PW15 who was with ASI Anoop Singh in the PCR van has not supported the prosecution and stated that nothing was stated by Mandeep Kaur when she was taken to hospital in their PCR van. Ld counsel argued that this fact shows that ASI Anoop Singh has manipulated the facts of narrating of the incident by the injured while implicating the accused as the Author of the crime.
(b) Regarding the second dying declaration in the form of history of burn injuries recorded by doctor Raj PW18 on the MLC Ex. PW8/A, Ld defence counsel argued that the words "by Abhishek" in the said MLC has been inserted later on to falsely implicate the accused. It is argued that the deposition of PW18 Dr. Raj who examined the injured in LNJP hospital and prepared the MLC Ex. PW8/A was neither coherent nor reliable because in her cross-examination she has stated that she remember the version of the patient but did not ::22::-::23::- FIR No 615/07
PS: Model Town remember the version of the IO .
(c) Regarding the third dying declaration in the form of statement Ex. PW17/A proved by SI Balwant Singh, Ld defence counsel argued that the IO has obtained signature of the injured in the hospital on a blank paper and manipulated the same for falsely implicating the accused because in his cross-examination SI Balwant Singh admitted that initially in the emergency ward the injured refused to make a statement.
It is further argued that the injured died after about 12 days of recording her statement Ex. PW17/A and during that time admittedly SI Balwant Singh did not try to get her statement recorded by the SDM. The statement recorded by him is not attested by the doctor attending the injured and admittedly the IO did not request the doctor to record the statement of injured. It is therefore argued that statement Ex. PW17/A is neither reliable nor trustworthy and the same does not qualify to be the dying declaration because it has been fabricated and manipulated in order to falsely implicate the accused.
(d) Regarding the fourth dying declaration in the form of narration of the incident by the deceased to her mother PW5 Jasmer Kaur, it is argued that at the alleged time when ::23::
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PS: Model Town PW5 had met the injured in the hospital , there is no evidence on record to prove that the injured was able to speak and that she has narrated the incident to PW5 as is being claimed by her. It is further argued that PW5 has admitted in her cross- examination that her daughter Mandeep Kaur remained on ventilator for about 6 days, therefore in order to establish the said dying declaration,the prosecution must have proved the fact that injured has made narration of the incident implicating the accused as author of crime to her mother PW5 in the presence of a doctor attending the injured and further it is required to establish that PW5 actually remained with the injured in the hospital when the injured allegedly made the statement to her implicating the accused. It is further argued that PW5 being mother of the deceased is an interested witness being near relative of the deceased and for that reason also the statement made to her by the injured is not established to be of that nature which can be considered to be a reliable and trustworthy dying declaration.
(e) The case of the prosecution suffers from inherent contradictions which is clear from statement Ex. PW17/A because no sane person would accompany another persons ::24::-::25::- FIR No 615/07
PS: Model Town in his car who is allegedly threatening to cause death for the last few days. This shows that the complainant had not accompanied the accused on the alleged date of incident and the accused has been falsely implicated. The statement of the deceased has been fabricated by making it basis of FIR after manipulation despite the fact that DD no. 8A Ex.PW1/A was sufficient to constitute an FIR in this case.
7. Ld defence counsel vehementally argued that because of these inherent contradictions and infirmity in the prosecution case and the fact that one of the material witness PW15 Ct.Subodh Kumar had turned hostile and therefore prosecution has failed prove its case against the accused beyond reasonable doubt and the accused was entitled to acquittal.
8. Ld defence counsel referred and relied upon following case law in support of his contentions:-
(1) Balak Ram Vs State of U.P, 1974 S. C.C (criminal) 837.
In this case the dying declaration recorded by the Investigating Officer in his case diary in a hast before the all columns of FIR were filled up and the same was recorded in violation of Rule ::25::
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PS: Model Town 115 of U.P Police Regulations which requires the Investigating Officer to record a dying declaration if at all, in the presence of two respectable witnesses and after obtaining the signatures or mark of the declarant at the foot of the declaration. The said dying declaration was not considered to be reliable and it was held that it was necessary to examine closely the circumstances attendant upon the dying declaration. However, the dying declaration recorded by Sub-divisional Magistrate was found to be reliable and trustworthy and conviction of Balak Ram was upheld by the Apex court.
(II) 1997 JCC 119, (SC) Paramjit Singh & Others Vs. State of Punjab. In this case the dying declaration was recorded by Station House Officer (SHO) and the declarant was immediately rushed to hospital because of bleeding and on the way, he became semi-conscious and did not regain consciousness till he died in the hospital after about 1½ month of the incident and admittedly after recording the dying declaration the SHO did not record his remarks on the dying declaration that the maker was in a fit condition to make such a statement. It was held that in these circumstances it would be totally unsafe to accept the testimony of the SHO to hold that the declarant of the dying ::26::
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PS: Model Town declaration was in a fit condition to make the dying declaration. (III) Meera Vs. State of Rajasthan II (2004) CCR (5) SC. In this case the dying declaration was recorded by Head Constable Amar Singh PW7 who admitted in the course of his examination that the Tehsildar was available one mile away from the hospital but on account of paucity of time he was not called for recording the dying declaration and no time was mentioned on the alleged dying declaration. The explanation for not summoning the Magistrate for recording the dying declaration was held not to be convincing because according to doctor police had come to the hospital and recorded dying declaration at 8.00 P.M and the deceased died at 9.15 P.M . It was held that looking to the circumstances in which the dying declaration was recorded by the police officer and not by the Magistrate, and having regard to the other facts and circumstances of the case, the prosecution has not proved its case beyond reasonable doubt and the appellant was entitled to benefit of doubt. (IV) Samadhan Dhudaka Koli Vs State of Maharashtra criminal appeal no. 637 of 2006 decided on December 18,2008, the Hon'ble Apex Court has ruled a dying declaration made before a judicial magistrate has a higher evidentiary value.
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PS: Model Town The judicial magistrate is presumed to know how to record a dying declaration. He is neutral person .......... not only the contents of a dying declaration , but also the manner in which it is recorded and the details thereof play a significant role in the matter of appreciation of evidence. A Judgment of conviction can be recorded on the basis of dying declaration alone, but the court must have been satisfied that the same was true and voluntary. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declaration, they should not be accepted on their face value. In any event, as a rule of credence, corroboration must be sought from the other evidence brought on record. (V) Jagdish B. Rao Vs. Govt of the Union Territory of Goa, Daman and Diu and another, 1976 Cri. L. J 132. In this case it was held that if a telephonic message is given by a known person who discloses his identity and it contains all necessary facts which can constitute an offence, and is reduced into writing by the Station House officer, it can be treated as a first information report (relied by Ld counsel for accused to press ::28::-::29::- FIR No 615/07
PS: Model Town his arguments to the effect that DD no. 8/A Ex. PW1/A was sufficient to constitute an FIR in this case).
9. Ld Addl. PP for the State on the other hand argued the prosecution has proved its case by examining material witnesses and the fact about word "by Abhishek " in the MLC Ex. PW8/A has been sufficiently explained by Dr. Raj PW18 and Dr. K. Goyal,CMO PW12 in their cross-examination and the defence counsel failed to assail their deposition on that aspect. The rukka has been sent at 2.15 A.M very promptly and there is no question of delay and manipulation in the FIR. Regarding the evidence Ct. Subodh which is highly relied by the Ld defence counsel to contradict the material witness ASI Anoop Singh PW16, Ct Subodh has clarified in his cross-examination that he might have not heard the communication between the injured and ASI Anoop Singh while the injured was being transported in the PCR van because he had been driving the van with its siren blowing. Regarding the contention that the doctor has not attested the statement of injured by writing "the patient was fit for making the statement", it is argued that the said fact is clearly mentioned by Dr. Raj on the ::29::
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PS: Model Town MLC Ex. PW8/A. It is further argued that the SDM was not called for recording statement because the deceased was having only 30% burn and there was no apprehension of her death because till 26/9/2007 she was able to speak. Ld Addl. PP for the state has referred and relied upon following cases in support of her arguments :-
1. Sher Singh & Anr V. State of Punjab, AIR 2008 SC 1423, it was held that evenif the dying declaration is not certified by the doctor, it will still have to be accepted because the person recording it had stated that the victim was fit to make the statement and had said that he took the doctor's opinion regarding the same. The requirement for endorsement by the doctor is only matter of prudence and the ultimate test is that whether the dying declaration is voluntary and truthful. It was further held that :-
"14. Acceptability of a dying declaration is greater because of the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the ::30::-::31::- FIR No 615/07
PS: Model Town court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.
15. In the present case, the first dying declaration was recorded on 18.7.1994 by ASI Hakim Singh (DW-1). The victim did not name any of the accused persons and said that it was a case of an accident. However, in the statement before the court.
Hakim Singh (DW-1) specifically deposed that he noted that the declarant was under pressure and at the time of recording of the dying declaration, her mother-in-law was present with her. In the subsequent dying declaration recorded by the Executive Magistrate Rajiv Prashar (PW 7) on 20.7.1994, she stated that she was taken to the hospital by the accused only on the condition that she would make a wrong statement. This was reiterated by her in her oral dying declaration recorded by SI Arvind Puri (PW 8) on 22.7.1994. The first dying declaration exonerating the accused persons made immediately after she was admitted in the hospital was under threat and duress that she would be admitted in the hospital only if she would give a statement in favour of the accused persons in order to save her in-laws and husband. The first dying declaration does not appear to be coming from a person with free mind without there being any ::31::
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PS: Model Town threat. The second dying declaration was more probable and looks natural to us. Although it does not contain the certificate of the doctor that she was in a fit state of mind to give the dying declaration but the Magistrate who recorded the statement had certified that she was in a conscious state of mind and in a position to make the statement to him. Mere fact that it was contrary to the first declaration would not make it untrue. The oral dying declaration made to the uncle is consistent with the second dying declaration implicating the accused persons stating about their involvement in the commission of crime. The third dying declaration recorded by the SI on the direction of his superior officer is consistent with the second dying declaration and the oral dying declaration made to her uncle though with some minor inconsistencies. The third dying declaration was recorded after the doctor certified that she was in a fit state of mind to give the statement."
2. Dharam Pal & Ors. Vs. State of U.P 2008 Criminal. L.J 1016 (SC), wherein it was held that :-
".......... the report of occurrence was dictated by the deceased himself and the same was read over to him after which he had put his thumb impression on the same. This report is admissible under section 32 of the Evidence Act as a dying declaration. It is true that the original document signed by the deceased was not brought on record, but in our view, the FIR has rightly been admitted as a dying declaration.
11. That apart, the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration. To ascertain this aspect, we may refer to some of the general propositions relating to a dying declaration. Section 32 (1) of the Indian Evidence Act deals with dying declaration and lays down that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, such a ::32::-::33::- FIR No 615/07
PS: Model Town statement is relevant in every case or proceeding in which the cause of the person's death comes into question. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceedings in which the cause of his death comes into question. The principle on which a dying declaration is admissible in evidence is indicated in the Maxim Nemo Moriturus Praesumitur Mentire, which means that a man will not meet his maker with a lie in his mouth. Thus it is clear that a dying declaration may be relating to :-
a) as to the cause of death of the deceased, b) as to "any of the circumstances of the
transaction" which resulted in the death of the deceased.
It is also clear that it is not necessary that the declarant should be under expectation of death at the time of making the statement. If we look at the report dictated by the deceased in the light of the aforesaid propositions, it emerges that the names of the accused and the important features of the case have been clearly mentioned in the report. It contains a narrative by the deceased as to the cause of his death, which finds complete corroboration from the testimony of eye-witnesses and the medical evidence on record. There is nothing on record to show that the deceased was not in a position to speak at the time when he dictated the report of occurrence. On the other hand, the materials and the other evidence on record would conclusively shows, as rightly held by the High Court, that the deceased was in a position to speak when he dictated the report of occurrence. Therefore, in our view, the High Court was fully justified in holding that the deceased was in a fit state of mind at the time of making the statement. In the present case, as noted hereinabove, the dying declaration was fully corroborated by the other evidence on record. That apart, in our view, the submission of the learned counsel for the appellants that the dying declaration which was given the shape of an FIR could not be made the basis of conviction when the original document signed by the deceased was not brought ::33::
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PS: Model Town on record is not acceptable............................"
10. I have considered the rival submissions made at bar and gone through the material on record.
11. The testimony of PW18 Dr. Raj who has examined the deceased Mandeep Kaur in the Lok Nayak hospital when she was brought there in the injured condition by SI Anoop Singh of the PCR and testimony PW8 Dr. S.N. Basna in whose supervision the deceased was examined by PW18 Dr. Raj and PW12 Dr.K.Goyal who has conducted the postmortem on the dead body of deceased Mandeep Kaur, has established that the deceased Mandeep Kaur has died because of burn injuries sustained by her which were ante-mortem in nature and has been caused by flame or fire. The testimony of these medical witnesses find corroboration and support from the ocular testimony of PW16 ASI Anoop Singh, PW17 SI Balwant Singh, PW5 Smt Jasmer Kaur, PW6 Yasin Nagpal and PW25 Shri Bijayanta Mukhopadhyay, Jr. Scientific Officer, CFSL, Calcutta who has examined/chemically anlaysied the plastic bottle and some burnt material, semi burnt cloth material recovered from the spot of the occurrence and found the presence of mixture of Hydro-carbon resembling as that of petroleum ::34::-::35::- FIR No 615/07
PS: Model Town hydro-carbon as per his detailed report Ex. PW25/A. This give credence to the prosecution case that the deceased was set on fire by pouring oil upon her. It is thus established that the deceased Mandeep Kaur has sustained burn injuries because of pouring of oil upon her as a result she has died in the hospital. The only question left is whether she was set on fire by accused Abhishek Sharma as is being alleged by the prosecution.
12. Let us examine the prosecution evidence to ascertain whether it has established the fact that deceased Mandeep Kaur was put on fire by accused Abhishek. In order to establish the above fact the prosecution is relying upon the DD no. 8A Ex.PW1/A, MLC Ex. PW8/A along with deposition of Dr. Raj PW18, testimony of PW16 SI Anoop Singh, PW17 SI Balwant Singh PW5 Smt Jasmer Kaur and PW6 Yasin Nagpal.
13. Since the deposition of Dr. Raj along with MLC Ex. PW8/A, the testimony of PW16 ASI Anoop Singh and the testimony of PW17 SI Balwant Singh along with statement of deceased Ex.PW17/A and testimony PW5 Smt Jasmer Kaur has been relied being as piece of evidence admissible u/s 32 of Indian Evidence Act, therefore, in order to appreciate the said piece of evidence whether it qualify to be dying declaration of the deceased ::35::-::36::- FIR No 615/07
PS: Model Town admissible u/s 32 of Indian Evidence Act, it is necessary to discuss the relevant law on the admissibility and probative value of the dying declaration. In Jai Karan Vs State of NCT Delhi, AIR 1999 Supreme Court 3512, it was held that :-
"A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rue forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence can not be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak- and can be acted upon without corroboration if it is found to be otherwise true and reliable. MANU/SC/0523/1991 Padmaben Shamalbhai Patel V.State of Gujrat Para 8. In Panneerselvam V State of Taimil Nadu,(SC) 2008(3) R.C.R. (Criminal) 54:2008 (3) R.A.J.549 , it was held that :
"7. This is a case where the basis of conviction of the ::36::-::37::- FIR No 615/07
PS: Model Town accused is the dying declaration. The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
8.Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of min d after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It can not 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. This court has laid down in several judgements the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben V. State of Gujarat, 1992(3) RCR (Criminal) 552; (AIR 1992 SC 1817):
(i) There is neither rule of law nor of prudence that dying declaration can not be acted upon without corroboration. (See Munnu Raja & Anrs. v. The State of Madhya Pradesh (1976) 2 SCR 764).
(ii)If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(See State of Uttar Pradesh V. Ram Sagar Yadav and Ors., 1985(1) RCR (Crl.) 600:
(AIR 1985 SC 416) and Ramvati Devi v.
::37::-::38::- FIR No 615/07
PS: Model Town State of Bihar (AIR 1983 SC 164)
(iii)the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K.Ramacharandra Reddy and Anr. V. the Public Prosecutor (AIR 1976 SC 1994).
(iv)Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC
264).
(v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(see Kaka Singh v State of M.P. (AIR 1982 Sc 1021)
(vi)A dying declaration which suffers from infirmity can not form the basis of conviction. (See Ram Manorath and Ors. V. State of U.P. (1981 (2) SCC 654).
(vii)Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617).
(viii)Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Oza and Ors.v State of Bihar (AIR 1979 SC 1505).
(ix)Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was ::38::
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PS: Model Town in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (see Nanahau Ram and Anr. V. State of Madhya Pradesh (AIR 1988 SC 912).
(x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. V. Madan Mohan and Ors.(AIR 1989 SC 1519).
(xi)Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839).
In Amol Singh Vs State of M.P., (SC) 2008(3) R.C.R. (Criminal) 602: 2008 (4) R.A.J. 343: 2008 (5) S.C.C. 468, it was held that :
"13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (see :
Kundula Bala Subramanyam v. State of A.P. (1993) 2 SCC 684). However, if some inconsistencies are noticed ::39::-::40::- FIR No 615/07
PS: Model Town between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
14. In the light of law referred above let us discuss the dying declarations relied by the prosecution:-
(A) The first dying declaration is proved in the statement of PW16 ASI Anoop Singh of the PCR van who had reached on the spot and found the injured Mandeep Kaur burning. He has deposed that when he alongwith his colleagues was going to Azadpur via Prince road and when they reached near Queen Marry school on the Prince road, they saw a girl on fire who was crying "bachao, bachao"; they stopped the van and put off the fire on the body of the girl with the help of a blanket which was with them in the van; they took her to LNJP hospital and got her admitted there and reported the matter to Police Station Model Town. He further deposed that on enquiry by him the girl had told her name as Mandeep Kaur resident of Shalimar Bagh and further told that one of her colleague Abhishek Sharma who was working with her at the Call center had set her on fire by pouring oil on her body. The presence of ::40::-::41::- FIR No 615/07
PS: Model Town this witness and the fact that he had rushed the injured to the hospital undisputedly stands established from the MLC Ex. PW8/A where his name find mentioned as the person who has brought the patient to hospital. There is nothing in the cross- examination of this witness so as to impeach his credibility. Ld defence counsel in his arguments has assailed his deposition on the grounds that Ct. Subodh PW15 who was with him has stated that Mandeep Kaur while being taken to hospital has stated nothing in his presence. The deposition of Ct. Subodh PW15 in his cross-examination by Ld Addl. PP for the State has clarified that the girl (deceased) might have told the fact that Abhishek Sharma was responsible for the incident to the Incharge, PCR van (SI Anoop Singh PW16) and he has not heard because he was driving the PCR van while keeping the siren on. The clarification given by PW15 seems to be probable and the fact that he was driving the PCR van with its siren on shows that he might have not been able to hear the communication between the deceased Mandeep Kaur and PW16 ASI Anoop Singh. Thus the facts stated by the deceased to PW16 while she was being taken to hospital stand established and there is nothing to show that the deceased had no occasion to state those fact and that ::41::-::42::- FIR No 615/07
PS: Model Town she was tutored to falsely implicate the accused. (B) The second dying declaration is in the form of history of burn injury given by the patient himself to Dr. Raj PW18 who has examined her in the hospital and had prepared the MLC Ex.PW8/A under the supervision of Dr. S.N. Basna PW8 who was working as CMO. PW18 Dr. Raj has deposed that on 21/9/2007 Mandeep was brought in the hospital by SI Anoop Singh at 2.15 A.M with the alleged history of burn in front of Queen Marry School, Delhi at around 1.50 A.M as told by the patient by Abhishek. She further deposed that at the time of examination the patient was fit for statement and said fact is also mentioned on the MLC at point- X-3. In her cross-
examination she deposed that the word "by Abhishek" on the MLC was not written subsequently at the instance of police. Her deposition has been corroborated by Dr. S.N.Basna PW8 who has also in cross-examination stated that, "had the word "by Abhishek" been introduced lateron, it would have been countersigned by him as well as by the doctor who prepared the MLC." In view of this unchallenged testimony of both these doctors, the contentions of Ld defence] counsel regarding the evidence of PW18 Dr. Raj being not reliable, does not hold ::42::
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PS: Model Town water. Thus deposition of PW18 Dr. Raj duly corroborated and supported by the testimony of PW8 S.N. Basna in whose supervision PW18 has examined the deceased and prepared the MLC Ex. PW8/A, is found to be coherent, consistent and reliable because there is nothing to prevent a doctor to record a dying declaration of a patient who is severely burnt and stated the history of receiving those burning injuries which has resulted into her death. The statement of deceased Mandeep Kaur recorded by Dr. Raj in the form of history of burn injury as find mentioned in the MLC Ex. PW8/A, therefore, qualifies to be a statement of a deceased which is admissible under section 32 (1) of the Indian Evidence Act.
(C) The third dying declaration is the statement Ex.
PW17/A of the deceased proved by SI Balwant Singh on the basis of which the present case FIR was registered. The statement Ex. PW17/A has been assailed by the Ld defence counsel on the ground that the IO has only obtained the signature of the injured in the hospital on a blank paper and manipulated the same as FIR despite the fact that the DD entry no. 8/A Ex. PW1/A was sufficient to constitute an FIR. Even this argument of the Ld defence counsel does not benefit the ::43::
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PS: Model Town accused because DD no.8/A Ex. PW1/A has clearly mentioned that the girl Mandeep who was found burning has told that Abhishek Sharma her friend has done this mischief with her. There is nothing for the accused to escape the predicament of his involvement suggested by DD no. 8A Ex.PW1/A and statement Ex. PW17/A which points towards him as the author of the crime. PW17 SI Balwant Singh has sufficiently explained that he had not tried to get the statement of injured recorded by the SDM because there was no apprehension of death of the injured who was speaking well till 6 days of sustaining injuries. I do not find force in the argument of Ld defence counsel wherein it was argued that the statement Ex. PW17/A was not attested by the doctor and the doctor has not given certificate on the said statement to the effect that the patient was fit for statement when the said statement was recorded. In this regard the arguments of Ld Addl. PP for the state are forceful and the case relied by her i.e AIR 2008 SC 1423, Sher Singh and others Vs. State of Punjab (Supra) is relevant wherein it was held that the requirement of the endorsement by the doctor is only matter of prudence and the ultimate test is whether the dying declaration is voluntary and truthful. PW18 Dr. Raj has clearly deposed that ::44::-::45::- FIR No 615/07
PS: Model Town at the time of recording the statement of injured by the police, the patient was fit for statement and she has mentioned those facts on the MLC Ex.PW8/A. Thus, the statement of deceased Mandeep Kaur Ex. PW17/A also qualifies to be a dying declaration and is admissible under section 32 of Indian Evidence Act. In the said statement she has detailed the circumstances in which accused had extended threat to her, took her to a lonely place poured oil upon her and set her on fire. The relevant portion of her statement is as under:-
I am working as Office Manager in Sai Telecommunication, Saraswati Vihar; today at about 1.00A.M after my duty was over, I alongwith my friend Abhishek Sharma resident of Model Town left the office in his car for going home as we were doing daily. Abhishek Sharma was threatening me with death for the last few days and today instead of dropping me at Shalimar Bagh at my house forcibly took me to Queen Marry School Model Town and parked his car and got down; he also forced me come out of the car and brought out a bottle containing oil and poured oil upon her by saying that she did not love him and was in love with the Company boss . He alleged that I did not love him and had a quarrel because of that and Abhishek had ignited ::45::-::46::- FIR No 615/07
PS: Model Town the oil smeared cloth of her with a match stick as result her clothes got fire and she sustained burn injuries on her body. In the meantime PCR van came there and Abhishek fled from the spot and the PCR van took her to JPN hospital and got her admitted there. Abhishek had tried to kill me by pouring oil upon me"
In the above statement of the deceased she has clearly shown the motive of the crime and the intention of the accused to kill her because he was frustrated as the girl (deceased) was suspected by him to be in love with her company boss whereas he wanted her to love him.
(D) The fourth dying declaration is the narration of the incident by the deceased to her mother PW5 Smt Jasmer Kaur. PW5 deposed that Mandeep Kaur was admitted in hospital and had told her that Abhishek had taken her in a car from her office and did not drop her at her residence but had taken her at a place in Model Town where she was made to come out of the car, since she did not come out, she was beaten up by Abhishek and as soon as she came out from the car, Abhishek poured petrol on her and set her on fire. She further deposed that Mandeep Kaur had died on 3/10/2007 in ::46::-::47::- FIR No 615/07
PS: Model Town hospital.
In her cross-examination she has deposed that on 17/9/2007 while Mandeep Kaur was with her at Ropar she had received a telephone call from Abhishek; she had told the police that Mandeep had met her in Agarsen hospital while she was admitted there and had told her that Abhishek had taken her to a place in Model Town and had beaten up her and after getting her out of his car, he had poured petrol on her person and set her on fire. She further clarified that the aforesaid facts were told by Mandeep to her on 22/9/2007 and she had remained with Mandeep Kaur while she was not on ventilator for about 6 days.
1. Thus the deposition of PW5 in her examination in chief as well as cross-examination clearly shows that whatever was told by the deceased to her was stated in a fit state of mind and the deceased was able to speak at that time because during above 12 days of her survival after injuries she has remained on ventilator only about 6 days prior to her death.
2. The above discussions shows that there is no material contradictions and inconsistencies in the dying declarations relied ::47::-::48::- FIR No 615/07
PS: Model Town by the prosecution. All the four dying declarations are found to be consistent and had been voluntary made in a fit mental condition and are therefore reliable. These dying declarations are found to be reliable because it has been established that the deceased who has made these declarations, had the opportunity of identifying the accused and has made the same in a fit state of mind, on the basis of her personal knowledge, without being influenced by others.
3. The deposition of PW6 Yasin Nagpal, employer of the deceased and the accused has sufficiently established that the deceased was last seen in the company of the accused when they left their office at about 12.30 A.M on 21/9/2007 in the car of the accused. As per the deposition of PW16 SI Anoop Singh he has found the deceased burning at about 1.00 A.M. The time gap when the deceased was last seen alive in the company of the accused and when she was found in burning condition is not very large. This circumstance duly stands established from the evidence on record leads to the conclusion that it was the accused who is the author of the crime. A reliance can be placed upon Raju Vs. The State 2009 III AD (SC) 610 wherein it was held that:-
" According to him (PW7) he had seen the ::48::-::49::- FIR No 615/07
PS: Model Town deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was non payment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime."
4. In his statement u/s 313 CrPC the accused had taken the defence that on the date of incident he had left the office alone at 12.00 A.M and at that time Mandeep Kaur was in the office and that she habitually used the Cab. When the deposition of PW6 Yashin Nagpal wherein he deposed that accused and deceased left office at about 12.30 A.M in the car of the accused was put to him, the accused has simply stated that the said deposition was incorrect as he left the office alone at about 12.00 'O' clock and at that time Mandeep Kaur was in the office on the top floor. The accused has not substantiated the said defence either by examining any witness from his office or by examining himself on Oath. The prosecution has established the said fact by examining PW6 Yasin Nagpal whose deposition in that regard is unchallenged and unassailed and in the light of his reliable testimony, the defence taken by the accused is found to be false ::49::
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PS: Model Town and happens to be an after thought.
5. From the above discussion, I am of the considered opinion that prosecution has succeeded in bringing home the guilt of the accused by proving its case against the accused beyond reasonable doubt. The evidence of prosecution witnesses is found to be worthy of reliance and from their testimony it stands established that on 21/9/2007 at about 1.40 A.M in front of Queen Marry school, Model Town-III, Delhi with an intention to cause death of Mandeep Kaur D/o Late Sardar Harender Singh, the accused Abhishek Sharma had set her on fire as a result she sustained burn injuries on her body and because of those burn injuries died in the hospital on 03/10/2007. I, therefore hold the accused guilt and convict him under section 302 IPC.
ANNOUNCED IN THE OPEN COURT ON 28/4/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI ::50::
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PS: Model Town IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS):
TIS HAZARI COURT: (WEST) DELHI.
FIR no. 615/07 Police station Model Town U/s 302 IPC State V/s Abhishek Sharma ORDER ON SENTENCE Present: Ld Addl. PP for the State.
Accused is in judicial custody with Ld.Counsel Sh.Sanjay Aggarwal.
I have heard Ld counsel for the accused who argued that the accused was not a previous convict in any other offence; he is of young age i.e. 24 years and being the eldest child in the family, his parents and grant father are financially dependent upon him. His grant father has suffered heart-attack and his mother had recently suffered various ailments. His father is earning only about Rs.8,000/- while working in a NGO. It is, therefore, submitted that in these given circumstance a lenient view may be taken against accused while awarding sentence to him.
Ld.Addl.PP for the State argued that the deceased Mandeep Kaur was also a young girl aged about 22 years ::51::-::52::- FIR No 615/07
PS: Model Town and was also earning for her family and because of act and deeds of the accused, a life was lost in its prime youth. Ld.Addl.PP, therefore, submitted that maximum sentence be awarded to the accused.
I have considered the rival submissions made at bar and also carefully examined the facts and circumstances of the case.
Considering the gravity of offence and the fact that a young life was lost because of the acts and deeds of the accused, the accused is sentenced to imprisonment for life and fine of Rs. 20,000/- (Rupees Twenty Thousands only) for the offence u/s 302 IPC. In default of payment of fine the accused shall undergo simple imprisonment for a period of two months.
Benefit of Section 428 CrPC is given to the accused. The period of imprisonment already suffered by him during trial be set off against the sentence of imprisonment awarded to the accused Copy of the judgment and order on sentence be supplied to accused free of cost.
File be consigned to record room.
Announced in the open court on 30/4/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIAL JUDGE (NDPS) (WEST)DELHI ::52::