Delhi District Court
State vs . 1. Dharam Pal on 23 July, 2014
FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 129/1 Unique Case ID No. 02404R0102612012 State Vs. 1. Dharam Pal S/o Sh. Hosiyar Singh R/o Village & Post Khevra, District Sonepat, Haryana. 2. Sunil S/o Sh. Dharam Pal R/o Village & Post Khevra, District Sonepat, Haryana. 3. Neetu D/o Sh. Dharam Pal Village & Post Khevra, District Sonepat, Haryana. 4. Sanjay Kumar S/o Sh. Inder R/o H.No. 244, Village & Post Khera Kalan, Delhi. FIR No. : 133/11 Police Station : Alipur Under Sections : 302/34 IPC Date of committal to Sessions Court: 28.08.2012 Date on which judgment was reserved: 23.07.2014 Date on which Judgment pronounced: 23.07.2014 State V/s Dharampal Etc. ("Acquitted") Page 1 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 JUDGMENT
The case of prosecution as mentioned in the charge sheet is as under:
(i) On 23.4.11 at about 7.52 P.M, intimation was received in PS Alipur that father of caller was set on fire by in laws of the caller at House No. 2050, Narela Road, Alipur, Delhi. The said intimation was recorded vide DD no. 36A and copy thereof was sent to SI Mukesh Kumar for appropriate action.
(ii) On receipt of DD no. 36A, SI Mukesh Kumar alongwith Ct. Sanjeev No. 1678/OD reached the spot where on enquiry, it was revealed that said injured himself poured oil and set him on fire. One kurta, Pagri, wrist watch, spectacle alongwith its cover and mobile phone were found lying on water cooler. One burnt plastic bottle, one burnt match stick, one match stick of make Ship and one pair of jutti (sleepers) were also found lying on the roof. Crime Team was also called at the spot which was got photographed.
(iii) One witness namely Ms. Tulsi W/o Sh Ashok Kumar met and gave statement to SI Mukesh Kumar wherein she claimed that on 23.4.11 at about 7.45 P.M, she alongwith her husband Ashok went inside the house no. 2050, Narela Road, Alipur, Delhi while Bijender (since expired) had gone upstairs. Her son namely Mukesh aged about 10 years came to her and told that Bijender uncle had gone upstairs alongwith bottle of liquor. After State V/s Dharampal Etc. ("Acquitted") Page 2 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 sometime, smell of oil started coming. They also heard cries on which she called her neighbourer namely Sh. Prem Singh and all of them went upstairs and saw that said Bijender was burning in the flames and his son namely Harjit Mann alongwith his twothree friends were dousing the fire with the help of water. They also shifted Bijender to a hospital in private car.
(iv) On the basis of said statement, SI Mukesh Kumar got FIR no. 133/11 U/s 309 IPC registered at PS Alipur; prepared site plan of the place of occurrence; seized the aforesaid articles lying on the roof and went to the hospital where he recorded the statement of injured Bijender in the presence of his son Harjit Mann after getting permission from concerned doctor.
(v) On the next day i.e 24.4.11, intimation regarding death of said Bijender during treatment in Safdarjung Hospital was received in PS Alipur which was recorded vide DD no. 7B on which SI Mukesh Kumar went to Mortuary of Safdarjung Hospital; got the postmortem of dead body conducted and handed over the dead body of deceased to his relatives.
(vi) On 25.4.11, SI Mukesh Kumar collected postmortem report of deceased Bijender in which cause of death was opined as shock due to ante mortem burnt injury caused by flame.
State V/s Dharampal Etc. ("Acquitted") Page 3 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014
(vii) Before his death, deceased Bijender had given statement before SI Mukesh Kumar wherein he alleged that his daughter in law (wife of his son Harjit Mann) used to harass them and also used to lodge false complaint with the police. On 23.4.11 at about 6.00/6.30 P.M, his daughter in law, Sunil i.e brother in law of Harjit Mann, father in law of Harjit Mann and Sanjay who was son of maternal uncle of Harjit Mann, came to the roof of his house. He further alleged that Sunil poured petrol on him and father in law of Harjit Mann gave match stick to said Sunil on which Sunil set him on fire. After sometime, two police officials came who had doused the fire. He also alleged that at the time of incident, his daughter in law was also present there. In the meantime, his son Harjit Mann came and removed him to the hospital.
(viii) On 30.05.11, Harjit Mann(son of deceased Bijender) filed complaint case in the Court of Ld ACMM wherein he made allegations against his in laws namely Dharampal(father in law), Sunil(brother in law), Neetu(wife), Ankush(cousin brother of wife Neetu), Sanjay(cousin brother of wife Neetu) and Praveen Kumar @ Mixture that all of them had committed murder of his father by pouring petrol on him and setting him on fire.
(ix) On 02.08.11, investigation was entrusted to Inspector Satyavir Janaula who added offence U/s 302 IPC during the course of investigation and filed status report before the Court of Ld ACMM in this State V/s Dharampal Etc. ("Acquitted") Page 4 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 regard. He also carried out further investigation including preparation of sealed site plan; seizure of pair of Hawai Chappals make Relaxo of grey colour as produced by complainant Sh Harjit Mann on 16.02.12 by claiming said chappals to be of his father in law namely Dharampal which he was wearing at the time of incident on 23.4.11. He also got the exhibits deposited in FSL, Rohini on 14.2.12.
(x) After completion of investigation, charge sheet in respect of offence U/s 302/34 IPC was prepared and same was filed before the Court through concerned SHO by keeping the present four accused persons namely Dharampal, Sunil, Neetu and Sanjay Kumar in column no. 11 of the charge sheet but without arresting them.
After compliance of Section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charge u/s 302/34 IPC against all the four accused persons vide order dated 22.01.13 to which they pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as 34 witnesses namely PW1 Smt. Tulsi, PW2 Sh. Mukesh, PW3 Sh. Praveen, PW4 Sh. Harjeet Maan, PW5 Sh. Shivraj Singh Mann, PW6 Sh. Sh. Ajay Kumar, PW7 SI Neeraj Kumar, PW8 SI Sandeep Tushir, PW9 Smt Rajwanti, PW10 Sh Inder Singh, PW11 SI Mukesh Kumar, PW12 Sh Nishant Chhajer, PW13 State V/s Dharampal Etc. ("Acquitted") Page 5 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 Sh. Ranjan, Nodal Officer, Tata Teleservices Ltd, PW14 Dr. Gaurav Nayyar, Senior Resident, Department of Burns & Plastic Surgery, Safdarjung Hospital, New Delhi, PW15 Dr. G.A Sunil Kumar Sharma, Associate Professor Department of Forensic Medicine, Safdarjung Hospital, New Delhi, PW16 Sh. R.K Singh, Nodal Officer, Bharti Airtel, PW17 Ct. Pramil Kumar, PW18 Ct. Sanjiv, PW19 SI Anil Kumar, PW20 Ct. Hansraj, PW21 Ct. Sunil Kumar, PW22 Inspector Satyavir Janaula, PW23 Sh Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services, PW24 HC Sushil Kumar, PW25 HC Jagpal, PW26 Inspector Mahesh Kumar, Draftsman, PW27 ASI Suraj Bhan, PW28 HC Deshpal Singh, PW29 Ct. Raj Kumar, PW30 HC Devender Singh, PW31 ASI Omender Singh, PW32 Ct. Sanjeev, PW33 Ct. Sumit Kumar and PW34 HC Jitender Singh.
Thereafter, statements U/s 313 Cr.PC of all the four accused persons were recorded wherein incriminating evidence, which came on record, had been put to them which they denied. All the four accused persons took the defence that they have been falsely implicated in the present case. However, all the accused persons opted not to lead any evidence towards their defence.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The said testimonies are detailed as under: State V/s Dharampal Etc. ("Acquitted") Page 6 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 PUBLIC WITNESSES PW1 Smt. Tulsi was residing as a tenant in the house of deceased Bijender. She deposed that on 23.4.11 at about 7.45 P.M, her son namely Mukesh aged about 10 years informed her that Bijender uncle had gone upstairs having bottle of liquor. After sometime, she felt smell of burning and also heard cries of Bijender on which she called neighbourer Sh Prem Singh. In the meantime, two police officials also came there and doused the fire. After sometime, Sh. Harjit Mann who was son of Bijender, also reached there and removed his father to the hospital in private vehicle. Police recorded her statement Ex PW1/A on 23.4.11.
She was cross examined by Ld Additional Public Prosecutor during which she denied the suggestions that all the four accused persons had set Bijender on fire and she had given statement Ex PW1/A at the instance of accused persons in order to save them. However, she has not been cross examined on behalf of accused despite grant of opportunity.
PW2 Sh. Mukesh is the minor son of PW1 Smt. Tulsi. After putting preliminary questions to said child witness in order to ascertain mental capability and understanding of the witness, his statement was recorded wherein he corroborated the statement made by his mother i.e PW1 Smt. Tulsi by deposing that he had seen Bijender uncle going upstairs having a bottle of liquor with him on which he had told this fact to his mother. He did not see any other person going upstairs except Bijender uncle and after sometime, police reached there. This child witness was also cross examined State V/s Dharampal Etc. ("Acquitted") Page 7 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 by Ld Additional PP during which he also denied the suggestions that it were the accused persons who had put Bijender on fire and he had given statement to the police at the instance of accused persons. However, he has not been cross examined on behalf of accused persons despite grant of opportunity.
PW3 Sh. Parveen deposed about the matrimonial discord between complainant Sh Harjit Mann and his wife namely Neetu(one of the accused herein). He narrated the incident of 23.4.11 when he had visited PS Alipur on the request of Bijender (since expired)with regard to matrimonial dispute between his son Harjit Mann and accused Neetu. He testified that at about 6.00/6.30 P.M on 23.4.11, he had visited PS Alipur where both the parties including all the accused persons were present there. However, he did not find Bijender present in the PS on which he(PW3) made a call on his mobile phone when said Bijender told him that "Main Harjit or Neetu Ke Roj Roj Ke Jaghde se Tang Aa Chuka Hu Aur Ab Mai Koi Aisa kaand Karunga Jisse Neetu Aur Neetu Ke Sare Gharwale Phas Jayenge"
PW3 further deposed that he tried to make Bijender understand but he disconnected the call. Bijender had also told him that he will set himself on fire. He again made a call to Bijender but Bijender did not talk to him at that time. When he told Harjit Mann about his conversation with Bijender and asked him to go to his house in order to prevent any unforeseen mis happening to his father, Harjit Mann rushed to his house.
PW3 further claimed that he had also told about his entire conversation with Bijender to the police officials on which police officials State V/s Dharampal Etc. ("Acquitted") Page 8 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 also immediately left the PS to the house of Bijender to prevent any mis happening. He categorically deposed that while he was talking to Bijender on phone, accused persons were constantly present in the PS with him and other police officials at that time. After sometime, he heard that Bijender had set himself on fire on which he visited his house and found his belongings i.e Kurta, Pagri, Mobile phone, Wrist watch, Bidi Ka Bundle lying on the cooler and one match box, one burnt match stick and one bottle of petrol/kerosene which almost empty, lying on the floor. Police had seized all those articles vide seizure memo Ex PW3/B. His statement Ex PW3/A was also recorded by the police.
PW3 was cross examined at length by Ld Additional PP wherein suggestions were put to him on the lines of prosecution case which he denied. PW3 was also confronted by Ld Additional PP with relevant portions of his police statement Ex PW3/A. However, he has not been cross examined on behalf of accused persons.
PW4 Sh. Harjit Mann is noneelse but son of the deceased Bijender as also complainant in the present case. He deposed about the matrimonial disputes which were going on between him and accused Neetu. He also deposed about the incident of 22.4.11 by claiming that accused Neetu had given injury to his mother on that day. He also deposed about some quarrel having taken place between accused Neetu and his mother on 23.4.11 and complaint being lodged by accused Neetu with the police by making a PCR call at 100 number. He claimed that all of them including his mother, his inlaws namely Dharampal, Sunil, Ankush, Sanjay and his wife Neetu as State V/s Dharampal Etc. ("Acquitted") Page 9 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 also Sh. Parveen who was mediator in his marriage and was also friend of his father, had a meeting with senior police officers in the PS. His father Bijender had also visited PS Alipur and tried to solve the situation but matter could not be solved. After sometime, his father Bijender was found missing from the PS on which he asked Parveen about the whereabouts of his father when said Parveen told him that his father had claimed before leaving the PS that he is going to do some "Kaand".
PW4 further deposed that he had received telephone call from mobile phone no. 9899157933 of his father Bijender, on his mobile phone no. 9211112070 that he had reached the house. Since his father was sounding depressed and was upset, he immediately rushed to his house on sensing some trouble. Police officials of PS Alipur also followed him. When he reached the house, his father was in burning condition on which he shifted his father to Saroj Hospital with the help of neighbourers and from said hospital, his father was shifted to Safdarjung Hospital.
PW4 categorically stated during chief examination itself that he cannot say about the reason as to how his father had got burnt and he cannot say whether his father had committed suicide or he was burnt by the accused persons. He further stated that his father did not tell him any incriminating fact against the accused persons while shifting him to the hospital. He also stated that his father did not give any statement to the IO or to any other police official or doctor in his presence against the accused persons. His signatures were obtained by police on several papers State V/s Dharampal Etc. ("Acquitted") Page 10 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 but he did not go through their contents. His father did not give any dying declaration in his presence. He explained that Ex PW4/A (which is the alleged dying declaration of deceased recorded by PW11 SI Mukesh Kumar) was bearing his signature but same was blank when his signature was obtained on it. However, he stated that he had identified the dead body of his father vide identification statement Ex PW4/B and had received the dead body after postmortem examination vide receipt Ex PW4/C. PW4 was cross examined at length by Ld Additional PP during which all the relevant suggestions on the lines of prosecution story were put to him which he denied. During such cross examination, PW4 deposed that his father was not in a position to speak since the time when he had got him down from first floor of his house and his father did not state anything either to him or to any other person in his presence. He denied the contents of his police statement Ex PW4/E. He has not been cross examined on behalf of accused persons despite grant of opportunity.
PW5 Sh. Shiv Raj Singh Maan is the formal witness in whose presence, dead body of deceased Bijender was handed over to Harjeet Maan (PW4) on 24.04.2011 vide receipt Ex.PW4/C on which he (PW5) had signed as an attesting witness. He has not been cross examined by accused persons despite grant of opportunity.
PW6 namely Sh. Ajay Kumar is the witness who had accompanied PW4 Harjeet Singh Maan alongwith deceased Bijender at Safdarjung Hospital while deceased was in burnt condition. He categorically State V/s Dharampal Etc. ("Acquitted") Page 11 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 deposed that injured Bijender was not in a position to speak and also that injured did not tell him or doctor anything in his presence. He further deposed that nothing was handed over to the police by Harjeet Maan (PW4), in his presence. He admitted that seizure memo Ex.PW6/A bears his signature but explained that he had signed the document in Mortuary at the time of identification of dead body in the hospital.
The said witness was also cross examined by Ld. Additional Public Prosecutor as he was not supporting the case of prosecution. During such cross examination, he denied the relevant suggestions put to him on the lines of prosecution story. He denied that PW4 Harjeet Maan had handed over pair of hawai chappal found at the spot. PW6 also denied that any such pair of hawai chappal was seized by the police in his presence vide memo Ex.PW6/E or that he had signed the said memo after going through its contents. He also denied the contents of statement U/s 161 Cr.P.C. Mark PW6/A dated 16.02.2012 having been made to the police. He categorically denied that so called dying declaration (Ex.PW4/A) of deceased Bijender was recorded in Safdarjung Hospital in his presence. He explained that he did not know anything about the present case except the fact that he had identified dead body of deceased Bijender. He has not been cross examined by accused persons despite grant of opportunity.
PW9 Smt. Rajwanti is none else but wife of deceased Bijender. She deposed that there was matrimonial dispute going on between her son Harjeet Maan (PW4) and accused Neetu. She deposed about the incident of 22.04.2011 when kalandra was prepared in PS Alipur against both the parties. State V/s Dharampal Etc. ("Acquitted") Page 12 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 She also deposed about the incident of quarrel having taken place between them and accused Neetu on 23.04.2011 as also about the factum regarding visit of all the accused persons as well as her husband i.e. deceased Bijender besides her and PW4 at PS Alipur during evening hours. She categorically stated that Parveen (PW3) who had mediated in the marriage of his son with accused Neetu, had also reached at PS Alipur at that time. After sometime, she found her husband (deceased Bijender) missing from the police station. On enquiry, she was told by said Parveen (PW3) that her husband had told him before leaving the police station that he was going to do some kand on that day. After sometime, her son Harjeet Maan (PW4) had received a call on his mobile phone when she was informed that her husband had reached the house. However, her son had told her that deceased Bijender was quite depressed and upset as no conciliation could take place at the police station. They apprehended some trouble due to which her son immediately rushed to the house followed by police officials of PS Alipur. Lateron, she came to know that her husband had burnt himself. She testified that accused persons had no role in burning her husband.
In view of aforesaid testimony of PW9, she was subjected to cross examination by Ld. Additional Public Prosecutor who put all the relevant suggestions to this witness on the lines of prosecution story and also put the relevant portion of her statement u/s 161 Cr.P.C. Mark PW9/A but she denied having made such statement to the police. She also denied all the relevant suggestions put to her on the lines of prosecution story. The said State V/s Dharampal Etc. ("Acquitted") Page 13 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 witness was not cross examined by accused persons despite grant of opportunity.
PW10 Sh. Inder Singh is the witness who was residing in the neighbourhood of house of deceased Bijender. He deposed that on coming to know about the fire at the house of Bijender on 23.04.2011, he alongwith other public persons had reached the said house where deceased Bijender was lying in burnt condition outside his house and Harjeet Maan (PW4) had removed injured Bijender in Alto car to Saroj Hospital and from Saroj Hospital, injured Bijender was taken to Safdarjung Hospital in an ambulance. This witness has not been cross examined by accused persons despite grant of opportunity.
PW13 Sh. Rajeev Ranjan is Nodal Officer of Tata Tele Services Pvt. Ltd. who proved Call Details Record of mobile no. 9211112070 for the period 23.04.2011 as Ex.PW13/A and Certificate U/s 65B of Evidence Act issued by him as Ex.PW13/D. According to this witness, said mobile number was issued in the name of Harjeet Maan (PW4). In this regard, this witness proved copy of Customer Application Form (CAF) and copy of driving licence furnished by applicant as his identity proof at the time of issuance of said number as Ex.PW13/B and Ex.PW13/C respectively. He also proved Cell ID Chart in respect of said number for said date as Ex.PW13/E. He has not been cross examined by accused persons despite grant of opportunity.
PW16 Sh. R.K. Singh, is the Nodal Officer of Bharti Airtel who proved Call Details Record of mobile no. 9910590606 for the period 23.04.2011 as Ex.PW16/A and Certificate U/s 65B of Evidence Act issued by State V/s Dharampal Etc. ("Acquitted") Page 14 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 him as Ex.PW16/D. According to this witness, said mobile number was issued in the name of Parveen Kumar (PW3). In this regard, this witness proved copy of Customer Application Form (CAF) and copy of Election I Card furnished by applicant as his identity proof at the time of issuance of said number as Ex.PW16/B and Ex.PW16/C respectively. He also proved Cell ID Chart in respect of said number for said date as Ex.PW16/E. He has not been cross examined by accused persons despite grant of opportunity.
PW23 Sh. Israr Babu, is the Alternate Nodal Officer of Vodafone Mobile Services, who proved Call Details Record of mobile no. 9899157933 for the period 23.04.2011 as Ex.PW23/A and Certificate U/s 65B of Evidence Act issued by him as Ex.PW23/B. According to this witness, said mobile number was issued in the name of Bijender Singh (deceased). In this regard, this witness proved copy of Customer Application Form (CAF) and copy of identity proof at the time of issuance of said number as Ex.PW23/C and Ex.PW23/D respectively. He has not been cross examined by accused persons despite grant of opportunity.
POLICE WITNESSES PW7 SI Neeraj Kumar and PW8 SI Sandeep Tushir are the police officials who, at the first instance, had reached the house of deceased Bijender during evening hours of 23.04.2011. Both the said witnesses deposed that some quarrel had taken place between accused Neetu and her motherinlaw (PW9) on 22.04.2011 due to which ASI Omender (PW31) had prepared State V/s Dharampal Etc. ("Acquitted") Page 15 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 kalandra u/s 107/150 Cr.P.C.
PW7 further deposed that on 23.04.2011 at about 5 pm both the parties had visited PS Alipur while deceased Bijender had reached there at about 7 pm. As no settlement could take place between the parties, deceased Bijender had left the police station. PW7 further deposed that Parveen (PW3) had told him after having conversation with deceased Bijender on phone that deceased Bijender was going to do some kaand. Parveen requested him to rush to the house of Bijender. At that time, he had seen accused persons standing at the gate of PS Alipur whereas Harjeet Maan son of deceased Bijender had rushed towards his house followed by him (PW7) and PW8 SI Sandeep Tushir.
Both the said witnesses further deposed that when they reached the house of deceased Bijender, several persons were standing there and had claimed that Bijender had burnt himself. When they reached at the terrace of the house, they found Bijender burning in the flames of fire. Both the said witnesses testified that accused persons herein were not present at the terrace at that time. Harjeet (PW4) had also reached at the terrace simultaneously and all of them doused the fire. Then, Harjeet made PCR call at 100 number after which SI Mukesh Rana (PW11) alongwith Ct. Sanjeev (PW32) and crime team came there. Crime team inspected the spot and photographs were also taken.
PW7 further deposed that he had returned back to police station where he had recorded statements of accused Dharam Pal and Sunil as also State V/s Dharampal Etc. ("Acquitted") Page 16 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 that of Ankush who were present in the police station. DD no.60B Ex.PW7/A was recorded by him at PS Alipur on 23.04.2011 in this regard.
Both the aforesaid witnesses were cross examied by Ld. Additional Public Prosecutor and suggestions were put to them from the side of prosecution that they did not state true and actual facts to the IO and made false statement in favour of accused persons in connivance with them but those suggestions were denied by both the witnesses. In their respective cross examination on behalf of accused persons, both the said witnesses deposed that they had reached the terrace first before reaching of Harjeet Maan.
PW11 SI Mukesh Kumar alongwith PW32 Ct. Sanjeev had reached the spot on receipt of DD No. 36A Ex.PX. Both the said witnesses deposed that on enquiry made at the spot, it was revealed that injured Bijender had burnt himself on the terrace of his house. When they reached to the terrace, one kurta, pagri, wrist watch, spectacles with its cover and one mobile phone were found lying on the cooler in safe condition. There was one burnt plastic bottle, one burnt match stick, one match box make Ship and one jutti (sleeper) also found lying on the terrace. Crime team was called at the spot which inspected the spot and took the photographs.
PW11 further deposed that he had recorded statement Ex.PW1/A of eye witness Smt. Tulsi (PW1) on the basis of which he prepared rukka Ex.PW11/A and got the FIR registered in respect of Section 309 IPC. After registration of FIR, he had carried out investigation in the case during which he prepared site plan Ex.PW11/B and seized the aforesaid exhibits lying on State V/s Dharampal Etc. ("Acquitted") Page 17 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 the cooler as also one bundle of biri of Kishan brand and another open bundle of biri of brand Pataka 502 vide seizure memo Ex.PW3/B. He further deposed that aforesaid march box, burnt match stick, burnt plastic bottle, cap of bottle and remnants of burnt cloth were also seized by him vide seizure memo Ex.PW11/B1. Both the jutti of red cherry and one jute bag were also seized by him vide memo Ex.PW11/C. He had also recorded statements Ex.PW11/CA and Ex.PW11/CB of public persons namely Ashok Kumar and Prem Singh who were also present there.
PW11 further deposed that he had gone to Safdarjung Hospital where he had recorded statement Ex.PW4/A (so called dying declaration) of injured Bijender, in the presence of his son Harjeet Maan (PW4) on which injured Bijender had put LTI of his left leg at pointB. He also deposed that concerned doctor had declared injured Bijender as fit to give statement vide his certificate Ex.PW11/C2 given on his application Ex.PW11/C1.
PW11 further deposed that on 24.04.2011 on receipt of information regarding death of injured Bijender in hospital vide DD no. 7B Ex.PW11/D, he had gone to the hospital where he had carried out inquest proceedings Ex.PW11/E (colly.). The dead body was identified by Harjeet (PW4) and Ajay Kumar (PW6) vide their identification statements Ex.PW4/B and Ex.PW6/A respectively. He also collected crime team report Ex.PW11/E. He also deposed about MLC Ex.PW4/B and PM report Ex.PW11/F of deceased Bijender and also exhibited photographs taken by crime team as Ex.PW11/G1 to Ex.PW11/G10.
PW11 also deposed that during the course of his treatment, he State V/s Dharampal Etc. ("Acquitted") Page 18 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 had recorded statement of injured Bijender who had raised allegations against all the four accused persons. Harjeet who was son of injured Bijender had also levelled allegations against the accused persons. He identified the aforesaid exhibits lifted from the spot by him, as Ex.P1 to P3 (colly.).
During his cross examination on behalf of accused persons, PW11 deposed that information regarding admission of Bijender in Safdarjung Hospital was received in PS Alipur at about 11.55 pm. He admitted that it took about 1 - 1½ hours in reaching to Safdarjung Hospital. Patient was not in a position to speak properly at that time. At the time of recording statement of deceased Bijender, his son alone was present in the ward. Although he had made request to concerned doctor for becoming a witness at the time of recording statement of deceased Bijender but concerned doctor refused and went away. No other medical staff was asked by him to become witness at the time of recording the statement of deceased. He claimed that statement of deceased Bijender was recorded within 56 minutes and no doctor, nurse or any other medical staff came inside the ward while he was recording the statement of Bijender. PW11 claimed that he did not lodge any complaint to CMO or to any other higher officer about the conduct of doctor. He also did not issue any written notice to the said doctor for not joining the proceedings without any reasonable cause. He denied the suggestion that he had obtained signature of deceased on blank papers and fabricated statement Ex.PW4/A as also that deceased Bijender was not in a position to speak at all, due to which his statement could not have been State V/s Dharampal Etc. ("Acquitted") Page 19 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 recorded and deceased did not make any statement before him.
PW17 Ct. Parveen Kumar is the formal witness who had deposited the exhibits in FSL Rohini on 14.02.2012. He has not been cross examined by accused persons despite grant of opportunity.
PW18 Ct. Sanjeev and PW31 ASI Omender deposed about the factum regarding receipt of intimation regarding quarrel in police station Alipur vide DD No. 15B Ex.PW21/A and DD No. 16B Ex.PW21/B on which they had visited the place of quarrel i.e. H. No. 1111 (old no. 2052), Narela Road, Alipur, Delhi. Both the said witnesses deposed that kalandra U/s 107/150 Cr.P.C. Ex.PW11/H was prepared against both the sides vide DD No. 52B of PS Alipur. Both the said witnesses have not been cross examined by accused persons despite grant of opportunity.
PW19 SI Anil Kumar and PW20 Ct. Hans Raj are the Incharge and photographer of Mobile Crime Team, which had reached the spot and had carried out inspection. PW19 proved crime team reports Ex.PW19/A while PW20 proved the photographs and their negatives as Ex.PW20/A1 to PW20/A20 and Ex.PW11/G1 to Ex.PW11/G10. Both the said witnesses have not been cross examined by accused persons.
PW21 Ct. Sunil Kumar is the formal witness who had recorded DD No. 15B and 16B (Ex.PW21/A and Ex.PW21/B respectively) in PS Alipur on 22.04.2011. He has not been cross examined by accused persons despite opportunity given.
PW22 Inspector Satyavir Janaula is the main IO of this case. He has deposed about the investigation carried out by him in this case. He State V/s Dharampal Etc. ("Acquitted") Page 20 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 deposed that scaled site plan was got prepared through SI Mahesh Kumar Draftsman and same was seized by him. On 16.02.12, Sh Harjeet Maan who was son of deceased, had handed over one pair of hawai chappal make Relexo of grey colour and claimed that said chappal was left by accused Dharampal at the time of leaving the spot after the incident on 23.04.11. He had seized the said pair of chappal vide memo Ex PW6/A after preparing its pullanda which was sealed with the seal of SJ. He had also recorded statements of said Harjeet Maan as well as of one Ajay Kumar in whose presence, the said pair of chappal was handed over to him.
He further deposed that on 02.04.12, Ct. Sushil Kumar had collected medical papers regarding case sheet of deceased Bijender from MRD Section, Safdarjung Hospital on his direction and same were seized by him vide memo Ex PW22/A. He also exhibited the photocopies of case sheet of deceased Bijender as Ex PW22/B(11 pages).
He also deposed that he had collected call details record of SIM numbers 9211112070, 9910590606 and 9899157933 from service providers. Out of said three numbers, SIM number 9899157933 was issued in the name of deceased Bijender.
He further deposed that case property was got deposited by him in FSL Rohini and subsequently, FSL result Ex PW22/C was collected and was filed before the Court. He also identified the pair of slippers as Ex PX during trial.
During his cross examination on behalf of accused persons, he admitted that as per investigation conducted in this case, all the accused State V/s Dharampal Etc. ("Acquitted") Page 21 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 persons were found present in PS Alipur at the time of incident in question. He also admitted that as per detailed enquiry conducted by him from neighbourers of deceased Bijender, the accusations/ allegations made by Harjeet Maan and the statement(alleged dying declaration) made by deceased Bijender on 24.04.11 could not be substantiated and he has also mentioned these facts in the charge sheet filed before the Court.
PW22 also deposed during cross examination that he did not carry out any independent investigation to ascertain as to whether pair of hawai chappal collectively Ex PX, was actually belonging to accused Dharampal or not. He also did not carry out any independent investigation to ascertain whether pair of chappal Ex PX was actually present at the place of occurrence or not. However, he admitted that no such pair of hawai chappal was visible in the photographs Ex PW11/G1 to Ex PW11/G10. He also deposed that as per enquiry made by him from previous IO namely SI Mukesh Rana and photographer namely Ct. Hans Raj of Mobile Crime Team, no such pair of hawai chappal was present at the place of occurrence on 23.04.11. He also admitted that there is no mention of presence of any such hawai chappal in site plan Ex PW11/B. However, PW22 denied the relevant suggestions given by accused persons that hawai chappal Ex PX was not belonging to accused Dharampal and same was not recovered from the place of occurrence and he had fabricated statements U/s 161 Cr.PC of Harjeet Maan and Ajay Kumar in this regard.
PW24 HC Sushil Kumar is also formal witness who had State V/s Dharampal Etc. ("Acquitted") Page 22 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 collected photocopy of medical treatment record of deceased Bijender from Safdarjung Hospital on 02.04.2012 vide memo Ex.PW22/A. Photocopies of said medical treatment record has been exhibited as Ex.PW22/B (colly.). He has not been cross examined by accused persons despite grant of opportunity.
PW25 HC Jagpal is another formal witness who had recorded DD No. 36A on 23.04.2011 at about 7.52 pm in PS Alipur that one person had been set on fire. He proved copy of said DD as Ex.PW25/A. During cross examination, he denied the suggestion that DD No. 36A was fabricated and manipulated at the instance of IO and the interested parties.
PW26 Inspector Mahesh Kumar is Draftsman who had prepared scaled site plan Ex.PW26/A after visiting the place of incident and taking rough notes and measurement over there. He has not been cross examined by accused persons despite grant of opportunity.
PW27 ASI Suraj Bhan is the Duty Officer who has proved the factum regarding registration of FIR initially U/s 309 IPC in the present case. He proved copy of FIR as Ex.PW27/B and his endorsement Ex.PW27/A regarding registration of FIR. During cross examination, he denied the suggestion that no rukka was received by him or that FIR was ante timed at the instance of IO.
PW28 is the MHC(M) who deposed that exhibits were got deposited in FSL Rohini through Ct. Parmil on 14.02.2012. He proved copy of R.C. No. 17/21/12 as Ex.PW28/A and copy of receipt of FSL as Ex.PW28/B. This witness has not been cross examined by accused persons despite opportunity given.
State V/s Dharampal Etc. ("Acquitted") Page 23 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 PW29 Ct. Raj Kumar is formal witness who had collected PM report of deceased Bijender alongwith inquest papers from Safdarjung Hospital on 25.11.2011 on the basis of authority letter issued by concerned SHO of PS Alipur. He deposed that he had handed over the same to SI Mukesh. Nothing material has come on record during the cross examination of this witness.
PW30 HC Devender Singh is also MHC(M) who deposed about factum regarding deposit of exhibits by SI Mukesh in Malkhana on 24.04.2011. He proved copy of relevant entry at serial no. 169 of register no. 19 as Ex.PW30/A. He also deposed that on 16.02.2012, Inspector Satyavir Janaula had deposited another sealed parcel in Malkhana. He proved copy of relevant entry at serial no. 188 of register no.19 as Ex.PW30/B. He has not been cross examined by accused persons despite grant of opportunity.
PW33 Ct. Sumit Kumar is the Computer Operator who had recorded the FIR in question in PS Alipur. He proved certificate U/s 65B of Indian Evidence Act issued by him for registration of FIR as Ex.PW33/A. He has not been cross examined by accused persons despite grant of opportunity.
PW34 has proved PCR form regarding receipt of intimation from caller namely Harjeet Maan from his mobile no. 9911112070 in PCR as Ex.PW34/A. During cross examination, he denied the suggestion that PCR form Ex.PW34/A was forged and fabricated document.
I have already heard Sh. Pankaj Bhatia, Ld Additional PP for State, Sh. Hakikat Yadav Adv on behalf of all the accused persons except accused Sanjay Kumar and Ld counsel Sh Pardeep Rana Adv on behalf of State V/s Dharampal Etc. ("Acquitted") Page 24 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 accused Sanjay Kumar. I have also gone through the written arguments filed by accused persons as well as the authorities cited at the bar.
ARGUMENTS ADVANCED & CASE LAW CITED Although, Ld Additional PP fairly conceded that there is no direct eye witness account relied by prosecution in order to prove the charges levelled against accused persons but he vehemently argued that there is circumstantial evidence against the accused persons available on record. The circumstantial evidence as pointed out by Ld Additional PP can be noted as under:
1. Statement Ex PW4/A of deceased Bijender made before PW11 SI Mukesh Kumar at the time of his death. In the said statement, it is mentioned that accused persons had visited on the first floor roof of the house of deceased and set him on fire with a match stick after pouring petrol upon him. It is further mentioned therein that two police officials had doused the fire and he was removed to hospital by his son Harjeet Maan.
2. Photocopy of medical treatment record of deceased Bijender which is collectively exhibited as Ex PW22/B(11 pages) showing that deceased had suffered 98% burn injuries.
3. Testimony of PW14 namely Dr. Gaurav Nayyar, Senior Resident of Department of Burns and Plastic Surgery Safdarjung Hospital who had declared patient Bijender as fit for statement vide his declaration Ex PW11/C2. He also proved death summary of deceased Bijender as Ex PW14/A. State V/s Dharampal Etc. ("Acquitted") Page 25 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014
4. Testimony of PW15 Dr. G.A Sunil Kumar Sharma, Associate Professor of Department of Forensic Medicine of Safdarjung Hospital who had conducted postmortem examination on dead body of deceased Bijender and deposed that there was smell of kerosene/petrol present over the skull of the deceased and cause of death was shock due to ante mortem injuries caused by flames. He has proved PM Report as Ex PW11/F. While referring to the statement Ex PW4/A of deceased Bijender, Ld Additional PP argued that said statement is dying declaration made by deceased before PW11 SI Mukesh Kumar soon before his death. He further submitted that in the said dying declaration, deceased has clearly named all the accused persons to be the offenders who had set him on fire after pouring petrol upon him. He contended that said dying declaration is free from doubt and therefore, same alone can be made basis of convicting the accused persons as held by Hon'ble Apex Court and by various High Courts in catena of judgments delivered from time to time.
On the other hand, Ld defence counsels vehemently argued that prosecution has miserably failed to prove its case against the accused persons. It has been argued on behalf of accused persons that alleged dying declaration Ex PW4/A is not free from suspicion and same has been fabricated by the police in order to create false evidence against them. For the said purpose, Ld defence counsel argued that deceased was under the influence of various injections/medicines due to which he cannot be supposed to be having normal alertness. They further argued that deceased was very depressed on account State V/s Dharampal Etc. ("Acquitted") Page 26 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 of matrimonial dispute between his son and daughter in law( accused Neetu) and thus, possibility of false implication of accused persons cannot be ruled out. They further argued that statement Ex PW4/A is not shown to have been recorded in the presence of any doctor or any nursing staff or any independent public person and deceased was not in a fit state of mind on account of severe burn injuries received by him. In this regard, they also referred to the relevant portions of the testimonies of PW12 Dr. Nishant Chajjar and PW14 Dr. Gaurav Nayyar.
Ld defence counsels also referred to the CPR notes of Safdarjung Hospital as placed on record by prosecution, in order to show before the Court that deceased Bijender was continuously under the influence of sedatives right since the time of his admission in Safdarjung Hospital i.e 10.00 P.M on 23.4.11 till the time of his death i.e 2.15 A.M on 24.4.11.
On the basis of above said submissions, it has been argued on behalf of accused persons that statement Ex PW4/A is fabricated one and thus, same should not be relied upon by the Court.
As discussed above, the entire case of prosecution is rested upon circumstantial evidence and there is no direct evidence even relied by prosecution in order to prove the charges levelled against the accused persons.
It is settled law that criminal jurisprudence begins with the presumption that unless otherwise proved, the person facing the trial would be deemed to be innocent. The burden to prove the charge against the accused is on the prosecution and not on the accused. The prosecution, if fails to connect the State V/s Dharampal Etc. ("Acquitted") Page 27 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 act of the accused with the ultimate crime and where the material links constituting the evidence are found missing then the benefit of the same goes in favour of the accused. Also, in a case based on circumstantial evidence, the settled legal position is that the circumstances from which the conclusion of guilt is drawn should be fully proved and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
Hon'ble Apex Court in the matter titled as " Sharad Birdhichand Sarda Vs. State of Maharashtra"reported at (1984) 4 SCC 116, has laid down the following five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this Court in ShivajiSahebraoBobade Vs. State of Maharashtra, 1973 CriLJ 1783 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance State V/s Dharampal Etc. ("Acquitted") Page 28 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
As is quite evident from the above discussion, the entire case of prosecution mainly hinges upon alleged dying declaration Ex PW4/A purportedly made by deceased Bijender before PW11 SI Mukesh Kumar. No doubt, dying declaration can form sole basis of conviction as submitted by Ld Additional PP but at the same time, law provides that due care and caution must be exercised by the Court in considering the weight to be given to dying declaration as there could be several circumstances which may affect the truth. It needs no emphasis that dying declaration is an exception to the Hearsay Rule. Therefore, Courts are required to be cautioned while appreciating the dying declaration in order to satisfy themselves that dying State V/s Dharampal Etc. ("Acquitted") Page 29 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 declaration was not the result of either tutoring or prompting or a product of imagination. It is also pious duty of the Court to find out that deceased was in a fit state of mind to make the dying declaration and for the said purpose, Courts are supposed to look after the medical opinion.
In the celebrated judgment delivered in the matter titled as "Smt. Paniben Vs. State of Gujarat", reported as 1992 Cri LJ 2919, Hon'ble Supreme Court while noting that dying declaration is entitled to great weight however, cautioned that accused has no power of cross examination. Hon'ble Apex Court summed up the principles governing dying declaration as laid down in several judgments, as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration(Mannu Raja Vs. State of M.P: 1976 CriLJ 1718).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.(State of U.P Vs. Ram Sagar Yadav : 1983 CriLJ 221)
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.(K. Ramchandra Redyy Vs. Public Prosecutor: 1976 CriLJ 1548)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence( Rasheed Beg Vs. State of MP: 1974 CriLJ 361) State V/s Dharampal Etc. ("Acquitted") Page 30 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.( Kake Singh Vs. State of M.P: 1982 CriLJ 986)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.(Ram Manorath Vs. State of U.P: (1981)3SCR 195)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra Vs. Krishnamurti Laxmipati Naidu: 1981 CriLJ9)
(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.( Surajdeo Oza Vs. State of Bihar: 1979CriLJ 1122)
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.( Nanahau Ram and Anbr. Vs. State of M.P: 1988 CriLJ 936)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.(State of U.P Vs. Madan Mohan: 1989CriLJ 1485).
In the case in hand, the prosecution has heavily relied upon statement Ex PW4/A by terming it as dying declaration within the meaning of Section 32 of Indian Evidence Act. Ld Additional PP argued that dying declaration Ex State V/s Dharampal Etc. ("Acquitted") Page 31 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 PW4/A is free from doubt and same can form sole basis of conviction of accused persons. However, I fail to to persuade myself to accept the said argument advanced by Ld Additional PP on behalf of State for several reasons.
Firstly, the CPR Notes of Safdarjung Hospital Ex PW22/B(11 pages) goes to show that deceased Bijender had been admitted in Safdarjung Hospital on 23.4.11 at about 10.00 P.M. As per medical treatment given to him, Ringer Lactate(R/L) and Tramadol amp Hydrocortison 100 mg were administered to him. Thereafter, Ringer Lactate 500 ml was being given to him after every 30 minutes till 12.30 A.M. It is recorded in said proceedings that the patient was gasping and his pulse rate was feeble and his BP was not recordable at 1.45 A.M on which he was given dose of Adrenalini I.V 1 ap and Deciphythin I.V 1ap through injection. The patient was shown to be still gasping and his BP was not recordable and said condition continued till 2.15 A.M when he was finally declared dead.
It is needless to mention here that the drug namely 'Tramadol' acts as pain reliever which causes less respiratory depression, sedation, constipation and has its side effect. It also causes dizziness, nausea, sleepiness and the effect of single dose of 100 mg is lost for about 46 hours. That being the position, deceased Bijender who was given Tramadol 100 mg at 10.00 P.M would have been under the influence of sedatives somewhere till 1.002.00 am.
As per the case of prosecution, the alleged dying declaration Ex PW4/A State V/s Dharampal Etc. ("Acquitted") Page 32 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 of deceased Bijender was recorded at about 1.00 A.M on 24.4.11. In view of the discussion made herein before, deceased was continuously under the influence of sedatives drugs from the time when he was admitted in hospital till he was declared dead and therefore, it is not safe to rely upon the said dying declaration.
The facts of the present case are squarely covered by the decision rendered by Hon'ble Apex Court in the matter titled as " Surender Kumar Vs. State of Haryana" reported at (2011) 10 SCC 173. In the said case also, deceased was under the influence of 'Fortwin' and ' Pethidin' injections and she had allegedly suffered 97% burn injury and was under constant medication. In this backdrop, it was held by Hon'ble Apex Court that she was not supposed to be having normal alertness and her dying declaration was hold to be shrouded by suspicious circumstances.
Secondly, the prosecution has its own case that deceased Bijender had suffered 98% burn injury at the time of his admission in Safdarjung Hospital. This fact is also corroborated by the testimonies of PW12 namely Dr. Nishant Chajjer, PW14 Dr. Gaurav Nayyar and PW15 Dr. G.A Sunil Kumar Sharma who had conducted the autopsy. It has been admitted by PW4 namely Sh. Harjit Maan (who is noneelse but the real son of deceased Bijender) that condition of deceased was such that he was not in a position to speak anything. PW6 namely Sh. Ajay Kumar who is an independent public witness examined by prosecution itself during trial, also categorically deposed during chief examination itself that deceased Bijender was not in a position to speak State V/s Dharampal Etc. ("Acquitted") Page 33 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 anything at the time of his admission in Safdarjung Hospital. In this backdrop, the so called dying declaration Ex PW4/A is required to be scrutinized. The perusal of said dying declaration revealed that same has been written by PW11 SI Mukesh Kumar in a flow and deceased had purportedly disclosed individual role of each and every accused while setting him on fire. This itself creates reasonable doubt in the mind of Court to treat the said dying declaration as genuine one as it cannot be expected from a person who had suffered 98% burn injuries and who is not in a position to speak properly, that he would disclose individual roles of the accused persons in his statement and that too when he is already under the influence of sedative drugs. In such mental and physical condition of a patient, it would be quite impossible to believe that he would narrate the details in such a vivid manner and coherent way.
In the matter titled as " State of Maharashtra Vs. Sanjay" reported at AIR 2005 SC 97, the deceased had received 95% burn injuries and as per the case of prosecution, victim was set on fire by accused after pouring petrol on her. After considering the entire facts and circumstances of the case, Hon'ble Apex Court held that dying declaration of patient who is in serious condition but still went on responding to the questions to the extent of even giving details regarding the clothes worn by her etc, was liable to be discarded under the law.
Thirdly, the dying declaration Ex PW4/A is not recorded in the presence of any doctor or nursing staff despite their availability. PW11 SI State V/s Dharampal Etc. ("Acquitted") Page 34 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 Mukesh Kumar claimed during his cross examination that at the time of recording statement Ex PW4/A of deceased, his son i.e Harjit Maan(PW4) alone was present in the said Ward. He further deposed that he had made a request to concerned doctor to become witness of the statement to be made by deceased Bijender but he refused and went away. However, PW4 Sh. Harjit Maan disowned the said part of testimony of PW11. PW4 categorically stated that his father (deceased Bijender) had not told any incriminating facts before him to the IO or to any police personnel or to any doctor against the accused persons. Rather, PW4 claimed that his signatures were obtained by police on several papers but he did not go through their contents. He had been specific when he testified during cross examination that his father did not give any dying declaration in his presence. No doubt, PW4 admitted that statement Ex PW4/A bears his signature at point A but he clarified that his signatures were obtained on it at the time when it was blank.
Likewise, PW14 Dr. Gaurav Nayyar claimed during cross examination that IO did not request him to join at the time of recording the statement of patient Bijender(deceased) and no such statement of said patient was recorded in his presence. Similarly, PW12 Dr. Nishan Chajjar, Senior Resident of Burn & Plastic Surgery Department, Safdarjung Hospital explained during cross examination that whenever investigating officer ask him to witness the recording of statement of any patient in the absence of SDM, it is duty of doctor to assist and to witness such proceedings. In view of the relevant portions of testimonies of these three witnesses, the entire claim of PW11 SI Mukesh Kumar that no doctor had agreed to become witness at the time of State V/s Dharampal Etc. ("Acquitted") Page 35 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 recording statement/dying declaration of deceased Bijender or that PW4 Harjit Maan was present at the time of recording statement Ex PW4/A, fall flat to the ground.
It has been held by Hon'ble Apex Court in the matter titled as "Dalip Singh & Ors. Vs. State of Punjab" reported at AIR 1979 SC 1173 as under: "We may also add that although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in Subsection(2) of Section 162 of the Cr.PC 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. As observed by this Court in Mannu Kaja Vs. State of Madhya Pradesh, the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged...."
Fourthly, PW12 Dr. Nishant Chajjar supra testified during cross examination that at the time of admission of Bijender in Safdarjung Hospital, his BP was not recordable and the BP of said patient was not recordable even thereafter and more particularly till after 1.00 P.M. It has been further explained by PW14 Dr. Gaurav Nayyar that in case pulse is not recordable either manually or through machine then it is said that patient is in shock and usually in such condition, the patient is not able to speak. In case BP of deceased Bijender was not recordable since the time of his admission in the hospital till he was declared dead, the argument of Ld defence counsel carries State V/s Dharampal Etc. ("Acquitted") Page 36 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 force that one cannot expect patient Bijender to give statement of the type and in the manner as recorded in Ex PW4/A. Fifthly, it is an undisputed fact that there was matrimonial dispute going on between Harjit Maan who was son of deceased and his daughter in law namely Neetu( who is one of the accused herein). Kalandara U/s 107/150 Cr.PC Ex PW11/H had also been prepared against both the parties on 22.04.11 i.e one day prior to the incident in question due to which deceased was under
great depression. It has also come on record during testimonies of prosecution witnesses more particularly that of PW3 namely Parveen and PW4 namely Harjit Maan that deceased had left PS Alipur to his house in the evening of 23.4.11 without informing anyone else. Not only this, deceased had told PW3 Parveen that he was going to do some ' Kaand' so as to teach a lesson to accused Neetu and her family members. Thus, there was a motive for deceased to falsely implicate the accused persons in order to take revenge from them and that is why, possibility of accused persons being falsely implicated cannot be ruled out.
Sixthly, the prosecution story provides that deceased Bijender had put LTI of his left leg on his alleged dying declaration Ex PW4/A if that is so then the particles of ink would have been appearing on thumb of his left leg and same would have also been noticed by the concerned doctor conducting autopsy on the dead body of deceased. However, the PM report Ex PW11/F is completely silent on this aspect.
In view of the aforesaid facts and circumstances, Court is of the view State V/s Dharampal Etc. ("Acquitted") Page 37 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 that it would not be safe to record conviction of accused persons solely on the basis of dying declaration Ex PW4/A which does not inspire confidence in the mind of the Court and deserves to be discarded in toto.
PLEA OF ALI BI Ld defence counsels argued that all the accused persons were present in PS Alipur at the time of incident in question which is another strong circumstance which goes against the case of prosecution and therefore, accused persons are entitled to be acquitted in this case. In this regard, Ld defence counsels placed reliance upon the testimonies of PW1 to PW4, PW7 to PW9, PW11 and PW22 mentioned supra.
The aforesaid contention raised on behalf of accused persons carries significance force in as much as several prosecution witnesses which includes not only public witnesses i.e PW1, PW2, PW3, PW4 and PW9 but also police witnesses i.e PW8, PW11 and PW22 who deposed that all the accused were present at PS Alipur at the time of incident in question.
PW22 Inspector Satyavir Janulla has also admitted this fact in his cross examination that all the accused persons were present in PS Alipur at the time of incident in question. PW11 SI Mukesh Kumar also deposed during his testimony that on enquiry made at the spot, it was revealed that deceased Bijender had burnt himself on the terrace of his house.
PW7 SI Neeraj Kumar and PW8 SI Sandeep Tushir are the police officials who had reached the house of deceased Bijender immediately after the incident in question. These two police officials were the first ones who State V/s Dharampal Etc. ("Acquitted") Page 38 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 had reached there and had doused the fire. Both the said witnesses categorically stated during trial that when they reached the house of deceased Bijender, accused persons were not present there. They also testified that several public persons who were standing near the house of deceased, had claimed that deceased had burnt himself.
The testimonies of said two police witnesses are duly corroborated by the testimonies of three public witnesses namely PW1 Smt. Tulsi, PW2 namely Sh Mukesh(child witness) and PW3 namely Sh. Parveen. Out of said three public witnesses, PW1 and PW2 stated during their depositions that deceased Bijender alone had gone up stairs having a bottle in his hand. Both these public witnesses were residing on ground floor of the same house in which incident had occurred as per the case of prosecution. In other words, both these public witnesses had seen deceased Bijender returning back to his house and going to the first floor of the said house. According to testimonies of both these witnesses, deceased was alone at that time and after few minutes, they had heard crises of deceased while he was in the gulf of fire.
Further more, PW4 namely Sh. Harjit Maan and PW9 namely Smt Rajwanti who are noneelse but son and wife of deceased Bijender have also stated during their respective statements that none of the accused persons was present at the place of occurrence as also that accused persons were present in PS Alipur.
It may also be noted that PW7 namely SI Neeraj Kumar had also recorded DD no. 60B Ex PW7/A when he had returned back from the house of deceased Bijender to PS Alipur on the date of incident in question. The State V/s Dharampal Etc. ("Acquitted") Page 39 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 perusal of said DD Ex PW7/A shows that entire sequence of facts leading to the incident had been recorded by PW7 SI Neeraj Kumar in the said DD entry. PW7 mentioned in the said DD entry that deceased Bijender had suddenly left PS Alipur without informing any one and also that PW7 was informed by Parveen(PW3) that deceased Bijender had told him during telephonic conversation that he was going to do some 'Kaand'. PW7 has also mentioned in DD Ex PW7/A that when he along with SI Sandeep Tushir(PW8) had reached the place of incident, public persons found present there, had been claiming that deceased Bijender had burnt himself on terrace of the house on which they rushed there and doused the fire.
In view of the oral testimonies of aforesaid prosecution witnesses coupled with the documentary evidence in the form of DD no. 60B Ex PW7/B, it has been shown to the Court that all the accused persons were not present at the place of incident in question and were present in PS Alipur at that time.
There is another reason due to which the story as propounded by the prosecution does not stand to reasoning and for which no explanation is forth coming from the prosecution witnesses. It has come on record that all the belongings of deceased Bijender i.e kurta, pagri, nokia mobile phone, wrist watch, spectacles alongwith its cover, etc (which are collectively exhibited as Ex P3), were found lying safely on cooler situated on terrace of first floor of the house. It is nowhere the case of prosecution that there was no sign of resistance noticed by investigating agency at the place of incident. These State V/s Dharampal Etc. ("Acquitted") Page 40 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 circumstances point out that deceased had kept all his belongings in safe condition on the water cooler before committing suicide. If the case of prosecution that accused had set Bijender on fire is presumed to be correct for the sake of argument then it does not stand to reasoning as to why the accused persons would have kept the above mentioned belongings/articles of deceased in such a manner on water cooler before setting the deceased on fire and as to why the deceased did not try to resist the acts of accused persons when they were setting him on fire after pouring kerosene /petrol over him.
At this juncture, it is relevant to note that in the inquest papers Ex. PW11/E filed by prosecution alongwith charge sheet, it is mentioned that there was possibility of suicide by the deceased. It is also appropriate to observe here that initially, the FIR in question was registered U/s 309 IPC as per rukka Ex.11/A sent by PW11 SI Mukesh Kumar on the basis of enquiry made at the spot that the deceased had committed suicide. Same can be noticed from copy of FIR Ex PW27/A and copy of DD no. 60B Ex PW7/B. The offence U/s 302 IPC was added by investigating agency at a very belated stage. Even at that time, the investigating agency had not come across sufficient evidence in respect of offence U/s 302 IPC. That was precisely the main reason for which investigating agency did not find sufficient ground to effect arrest of accused persons during investigation and the charge sheet was filed without arrest of accused persons in the Court.
In the light of aforesaid discussion, I am of the considered opinion that prosecution has miserably failed to prove its case against all the four accused persons beyond reasonable doubt. Consequently, all the four accused persons State V/s Dharampal Etc. ("Acquitted") Page 41 of 42 FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014 namely Dharam Pal, Sunil, Neetu and Sanjay Kumar are hereby acquitted of the charge levelled against them.
Announced in open Court today (Vidya Prakash)
Dt. 23.07.2014 Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Dharampal Etc. ("Acquitted") Page 42 of 42
FIR No. 133/11; U/s 302/34 IPC; P.S. Alipur DOD: 23.07.2014
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