Delhi District Court
State vs . 1. Sujata W/O Rajeev on 30 April, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE : NORTH EAST
KARKARDOOMA COURTS : DELHI
Unique ID No. 02402R0021502010
SC No. 46/2011
FIR No. 304/2009
Police Station Khajuri Khas
U/Section 302 IPC
Reserved for orders on 29.04.2013
Judgment announced on 30.04.2013
State Vs. 1. Sujata W/o Rajeev
R/o H. No.859, Gali No.11,
PartI, A Block, Sonia Vihar,
Delhi.
2. Guddi, W/o Jagdish Chand
R/o H. No.883, Gali No.13,
Part II, Zero Pusta, Sonia Vihar,
Delhi.
3. Rajeev S/o Narender Kumar
R/o H. No.A859, Gali No.11,
Part I, Ist Pusta, Sonia Vihar, Delhi.
:J U D G M E N T:
1.The above named accused persons were charge sheeted by SHO PS Khajuri Khas and have faced trial for having committed offence punishable U/s 302/34 IPC.
State Vs. Sujata etc. (SC No.46/2011) Page 1 of pages 40
2. FACTUAL MATRIX: It is the case of the prosecution that on 25.10.2009 an information regarding quarrel at Ist Pusta, Gali No.11 A858, Sonia Vihar was received at PS Khajuri Khas and the said information was recorded vide DD No.9A and was assigned to ASI Tilomani Bhutt, who alongwith Ct. Jeewan Singh went to the spot and reached at the room, where the incident had taken place. Smell of Kerosene oil was there in the said room and some burnt cloths, some sticks of match and one plastic cane without its cap (dhakkan), which was half filled up with kerosene oil, were found there. However, by that time injured Smt. Nisha had already been removed to GTB Hospital by the PCR vehicle. ASI Tilomani Bhatt on coming to know that marriage of Nisha took place five years prior to the date of occurrence passed the information to Inspector Pankaj Sharma and Ex. Magistrate Seelampur and Insp. Pankaj Sharma alongwith his staff reached at the spot. Crime Team and Photographer were also called at the spot. Crime Team inspected the spot and photographer took the photographs of scene of crime. Inspection Report and photographs were taken into police possession. Thereafter, ASI Tilomani Bhatt, after leaving HC Sanjeev at the spot for its preservation, alongwith Ct. Jeevan Singh reached at GTB Hospital, where Insp. Pankaj Sharma alongwith his staff later on also reached. In hospital, Smt. Nisha was found to be under treatment vide MLC No. 14928/09 dated 25.10.2009 and she was declared fit for statement by the doctor, who had attended her. Sh. P.K. Sofat, Ex. Magistrate, Seelampur, Delhi also came at GTB Hospital and he recorded the statement of Smt. Nisha W/o Sunil aged st 25 years R/o H. No.A859, gali no.11, 1 Pusta, Sonia Vihar, Delhi, wherein she stated that she got married with Mr. Sunil State Vs. Sujata etc. (SC No.46/2011) Page 2 of pages 40 five years prior to the date of incident according to Hindu rites and customs in Delhi. Her husband was having three brothers namely Chander Prakash (jeth), Bhupender Kumar and Rajiv (dewars). Bhupender Kumar was living separately at Jungpura, Delhi, whereas Rajiv and Chander Prakash were living with them in the same house. Rajiv and his wife Sujata were th quarreling with her mother in law for 1/4 share in the property and when she tried to intervene (beech bachav), her sister in law (dewrani) Sujata, brotherinlaw (dewar) Rajiv and Guddi (mother of her dewrani and mother in law (Saas) of Rajiv) caught hold of her and her brotherinlaw Rajiv after pouring kerosene oil on her set her on fire (mer devar ne mujh par mitti ka tail dalkar aag laga di). At the time of said incident only her mother in law was at home, whereas her husband had gone to Ludhiana for work (kaam par gya hai) and her brother in law namely Chander Prakash (jeth) also had gone out for his job. Her three year old daughter namely Bhawan had also gone to her Mausi's house. The incident took place at 9.30. After recording her said statement, P.K. Sofat took the thump impression of foot on the statement of Nisha and also attested the same. Thereafter, the said statement was handed over to Insp. Pankaj Sharma for proceeding further in the matter and upon the said statement Insp. Pankaj Sharma made an endorsement for the offence U/s 307/34 IPC and handed over the further investigation to ASI T.M Bhatt. During investigation, ASI Tilomani Bhatt called the crime team at the spot and got inspected the spot and also collected the report. Scene of crime was photographed from different angles. From the spot one plastic cane which was half filled up with kerosene oil, some pieces of burnt cloths and burnt match stick were taken into police possession after sealing the same through Fard. At State Vs. Sujata etc. (SC No.46/2011) Page 3 of pages 40 the instance of Smt. Shanti Devi, site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Accused Sujata and Guddi were formally attested in this case. Their disclosure statements were recorded. Exhibits pertaining to the instant case were deposited in Malkhana. On 26.10.2009, during treatment Smt. Nisha expired at GTB Hospial. Said information was conveyed to Ex. Magistrate Sh. P.K. Sofat and Sec.307 IPC was converted into Sec.302 IPC and further investigation was handed over to Insp. Pankaj Sharma. Thereafter, IO got identified the dead body of Nisha and then after got conducting the postmortem on the dead body of Smt. Nisha, handed over the dead body to her husband. During investigation, accused Sujata and Guddi were produced before the court and were sent to JC. By that time, accused Rajiv was absconding in the case. Then after completing the investigation in this case, charge sheet was filed before the court of concerned Ld. MM (NE). After filing of charge sheet, accused Rajiv surrendered before the court on 15.03.2010 and accused Rajiv was formally arrested in this case on 16.03.2010 and after carrying out investigation, supplementary charge sheet was filed against the said accused. After supplying copies etc., vide order dated 05.04.2010 case was committed to the Sessions being the offence alleged exclusively triable by the court of sessions. Than, after hearing arguments on the point of charge, charge U/s 302 IPC was framed against all the accused, to which accused pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. To prove its case, prosecution examined eighteen witnesses in all.
4. PW1 Smt. Shanti, the star witness of the prosecution, in State Vs. Sujata etc. (SC No.46/2011) Page 4 of pages 40 th th her testimony deposed that on 25 or 26 October, 2009 at about 9.00 or 9.30 a.m, she had returned home from Satsang of Kripalu Baba. Her son Rajiv questioned her as to what she had done for him and she replied him that as per her capacity, she had done everything for him. Thereafter, some altercation (TU TU ME ME) occurred between Sujata and Rajiv and she sat on Pooja in temple located in that very house. After some time, she heard commotion and she saw that flames were coming from the room of Nisha and she became perplexed. She saw that Nisha was burning. She threw water on her and got the fire extinguished. In the meantime police came there and Nisha was taken to hospital. She did not disclose as to how the fire was broken out or Nisha sustained burn injuries and she claimed that Nisha did not utter anything to her as to how she got burnt. She also claimed that police had not inquire anything from her at any point of time.
The said witness was declared hostile by Ld. Addl. PP for the State and was cross examined by him after taking permission of the Court. During cross examination she confirmed that incident took place on 25.10.2009 at about 9.00 a.m but she denied that her daughter in law Sujata and her son Rajiv quarreled with her in respect to property of their share, however, she admitted that during that period accused Guddi had also reached at the spot. Guddi and Sujata quarreled with her and Guddi abused her. She denied that Guddi and Sujata quarreled with Nisha in her presence or that Sujata and her mother Guddi caught hold of Nisha and Rajiv picked up Kerosene oil lying there and poured the same over Nisha while saying that he would finish the entire matter that day. She further denied that Rajiv lit match stick and threw on Nisha consequently Nisha got fired and sustained serious burn State Vs. Sujata etc. (SC No.46/2011) Page 5 of pages 40 injuries. She denied of having made such statement to the police. She conceded that she had visited hospital with Nisha but she denied that Magistrate had come in the hospital and he recorded the statement of Nisha in her presence. She denied that her daughter in law Nisha was burned by her son Rajiv, his wife Sujata and his mother in law Guddi.
During cross examination by Ld. Counsel for accused persons, she stated that she reached at the hospital at about 9.30 a.m. Nisha was got admitted in the hospital by him and in her presence Nisha did not tell anything to the police. Police had obtained thumb impression as well as toe impression on some papers in the vehicle as well as in the hospital. She could not tell as to what was written on those papers.
PW2 HC Sanjeev testified that on 25.10.2009 he was on petrolling duty in the area of Sonia Vihar and at about 9.30 a.m, he came to know that a quarrel was going on in street no. 11 and accordingly he reached there, where ASI T.M. Bhatt, Ct. Jeevan and SHO PS Khajuri Khas were present at the spot. He saw that on the first floor of house no.A859 some burnt pieces of cloth, burnt match stick and one plastic cane without its cap half filled with kerosene oil were lying there and smell of burnt cloths and kerosene oil was coming from the said room. Crime team officials had reached at the spot and took photographs of the site, lifted some print etc. SHO and ASI T.M. Bhatt proceeded for hospital and he was left at the spot for guarding the spot.
During cross examination by Ld. Counsel for accused persons he stated that no articles were lifted from the spot in his presence by the IO. He remained at the spot for about one and a half hours. He conceded that spot is a residential area and many persons were gathered at the spot when he reached State Vs. Sujata etc. (SC No.46/2011) Page 6 of pages 40 there.
PW3 Lady Ct. Nisha confirmed that accused Guddi and Sujata were arrested by the IO on 25.10.2009 at about 6.30 PM vide memos Ex.PW3/A & Ex.PW3/B. She stated that she took the personal search of both the accused vide memo Ex.PW3/C & Ex.PW3/D. PW4 HC Ram Prakash (on the directions of IO) took three sealed parcels, two sample seal and FSL Form from MHC(M) Khajuri Khas and deposited the same at FSL Gandhi Nagar, Gujarat vide RC No.131/21 and after depositing the same at FSL Gandhi Nagar, Gujrat, he handed over the receipt of the same to MHC(M).
PW5 Sunil Kumar (husband of deceased Nisha) testified that on the day of occurrence i.e. on 25.10.2009, he was in Ludhiana, where he received a telephonic call from his wife Nisha that Sujata and her mother Guddi had come to her room and were quarreling with her. After some time, his son telephonically informed him that his wife was got burnt by Sujata and Guddi. Immediately, he returned to Delhi and came to know that his wife Nisha was admitted in GTB Hospital. He went to GTB Hospital and found his wife admitted in ICU Ward. He was not allowed to enter inside the ICU. In the night of 25/26.10.2009, he was informed by the doctor that his wife has expired due to burn injuries. Next day i.e. on 26.10.2009, the dead body of his wife was handed over to him after postmortem. Before postmortem, he had identified the dead body during the inquest proceedings by the Ex. Magistrate.
The said witness was cross examined by Ld. Addl. PP for the State as he was resiling from his earlier statement given to police, wherein he stated that his statement was recorded by the police on 26.10.2009. He conceded that his younger State Vs. Sujata etc. (SC No.46/2011) Page 7 of pages 40 brother alongwith his wife Sujata and his mother in law Guddi th usually quarrel with his mother for 1/4 share of their property. He denied that he came to know that on the day of incident accused Sujata and Guddi caught hold of his wife Nisha, while his brother Rajeev poured kerosene oil over her and burnt her. However, he clarified that he had only heard the voices of Sujata and Guddi quarreling with his wife Nisha when Nisha telephoned him on 25.10.2009. He further denied that he had not deposed the true facts regarding the role played by his brother Rajeev and his wife Sujata and his mother in law Guddi for burning his wife Nisha on the day of incident to save them being the close relative of the accused persons.
During cross examination by Ld. Counsel for accused persons he stated that his first wife namely Shanti left him without getting divorce. He brought Nisha (deceased) second wife to Sonia Vihar since about 6/7 months back of the incident. He conceded that he could not produce any documentary evidence with regard to his marriage with Nisha. Accused Sujata was residing on the ground floor and the incident took place at the first floor. He conceded that he and his mother never raised any objection of living Sujata alongwith her husband at ground floor. However, he clarified that his mother used to raise objection only when she used to ask th about the selling of property and to give her 1/4 share. He denied that Sujata had never asked his mother to sell the th property to get the 1/4 share or that accused Guddi (mother of Sujata) had never come to their house to interfere in the family matters.
PW6 ASI Tilomani Bhatt (first IO of the case) confirmed that on 25.10.2009 on receipt of DD No.9A, he alognwith Ct. Jeevan Singh went to A859, Gali No.11, First Pusta, Sonia State Vs. Sujata etc. (SC No.46/2011) Page 8 of pages 40 Vihar, Delhi. They went to first floor of the said house and found smell of kerosene was coming and burnt cloths were lying there. He also found one half filled container of kerosene oil and some match sticks inside the room. SHO Khajuri Khas with staff also reached there. He informed the Crime Team and SDM of area. He went to GTB Hospital, after giving directions to HC Sanjeev to remain at the spot, where he found Smt. Nisha W/o Sunil Kumar was admitted there. He collected the MLC of Smt. Nisha. Sh. P.K. Sofat, Ex. Magistrate Seelampur also came to hospital and recorded the statement of injured Smt. Nisha and than he directed the SHO to register an FIR on the basis of statement of injured Nisha and accordingly as per directions of SHO, a case U/s 307/34 IPC was registered. He further stated that after registration of case, the case was marked to him for further investigation and accordingly he went to the spot. The spot was photographed by the Crime Team. He sealed the cape of kerosene container with the seal of TM and also collected the burnt cloths and the match sticks lying in the room by keeping them in pullanda and sealed it with the seal of TM. Aforementioned articles were seized vide memo Ex.PW6/A. He also stated that mother of injured Nisha came to the spot and as per her pointing out he prepared Site Plan Ex.PW6/B with correct marginal notes. He recorded the statements of witnesses and arrested accused Guddi and Sujata vide arrest memos Ex.PW3/A & Ex.PW3/B respectively. Their personal search were also conducted by Lady Ct. Nisha vide memo Ex.PW3/C & Ex.PW3/D respectively. Both the accused persons were interrogated thoroughly and their disclosure statements were recorded vide memo Ex.PW6/C and Ex.PW6/D respectively. The accused persons were medically examined. He further testified that on 26.10.2009 at State Vs. Sujata etc. (SC No.46/2011) Page 9 of pages 40 about 3.15 a.m, he received information regarding the death of injured Nisha. Thereafter, the case file was handed over to SHO Pankaj Sharma for further investigation and he joined investigation with him and they went to GTB Hospital. Inquest proceedings U/s 176 Cr.P.C was conducted by Sh. P.K. Sofat, Ex. Magistrate Seelampur. Postmortem on the dead body of Nisha was conducted and after postmortem, the dead body was handed over to the husband of deceased. The doctor, who conducted postmortem, handed over him one sealed pullanda and one sample seal, which he seized vide memo Ex.PW6/E. He correctly identified the case property i.e. a plastic container with its cap and found containing some kerosene oil inside it as Ex.PW6/P1 and some burnt cloth pieces and match sticks as Ex.PW6/P2 (colly.).
During cross examination he stated that he did not record the statement of public person who were present in the gali. Shanti Devi, the mother in law of deceased, was present in the hospital till he left and he left the hospital at about 1.30 PM. The accused Guddi and Sujata were arrested from the house of Guddi on the same day at about 6.30 PM. He conceded that he did not seize the mobile of Nisha during investigation. Statement of deceased Nisha was recorded by SEM at around 12.30 PM. In his presence, the SEM had not asked the doctor regarding the fitness of injured before recording of her statement.
PW7 Ct. Shyam Lal is the photographer, who alongwith the Incharge Crime Team reached at the spot and took the photographs Ex.PW7/9 to 16. He produced on record the negatives Ex.PW7/1 to 8 of the aforesaid photographs.
PW7A SI E.S. Yadav, the Incharge Crime Team, confirmed that he inspected the spot and at his directions Ct.
State Vs. Sujata etc. (SC No.46/2011) Page 10 of pages 40 Shyam Lal took the photographs Ex.PW7/9 to 16. He proved his Crime Inspection Report Ex.PW7A/A. During cross examination he conceded that he did not take any finger prints from the oil cane and the match box at the spot. As the match box and oil can as they we wet with oil, so no finger prints were found thereupon. He however conceded that he had not mentioned the reason for not taking the finger prints in his report.
PW8 W/HC Sunita confirmed that on 25.10.2009, he had recorded DD No.9A, copy thereof is Ex.PW8/A. She proved the said DD by producing the original DD register. She further confirmed that on the same day she recorded formal FIR No.304/2009 on receipt of the order of SDM and after recording of FIR, the FIR and original order of SEM were handed over to ASI Tilomani Bhatt for further investigation. She proved the copy of said FIR Ex.PW8/B and her endorsement Ex.PW8/C. PW9 SI Mukesh Kumar Jain, the Draftsman, confirmed st that on 14.12.2009 he went to the spot i.e. 1 Floor of H. No. st A859, Gali No,.11, 1 Pusta, Sonia Vihar, Delhi where he inspected the spot and took measurement and prepared rough notes of the spot at the instance of the IO Insp. Pankaj Sharma and subsequently on the basis of rough notes and measurement, he prepared scaled Site Plan Ex.PW89/A. Thereafter, he destroyed the rough notes and measurements.
During cross examination he claimed that one public person was present at the spot during his visit but he did not obtain his signatures at any of the documents prepared by him at the spot.
PW10 Dr. Ashish Rai stated that on 25.10.2009, he was working as Specialist in GTB Hospital. The patient namely State Vs. Sujata etc. (SC No.46/2011) Page 11 of pages 40 Nisha was admitted in surgery emergency vide MLC NO.C4928/09 with 95% burn injury (TBSA burn). Lateron she was transferred to burn ward, where she was managed conservatively on I.V fluid, antibiotic, anelgesics, ASB. Patient condition was deteriorated progressively and inspite of all the available and best effort, patient could not be revived and declared clinically dead at about 1.30 am on 26.10.2009. The death certificate and death summary was prepared by his junior Dr. Dhruv as per his directions. He proved on record the death certificate and death summary prepared by Dr. Dhruv as Ex.PW10/A and Ex.PW10/B bearing his signatures at points A and B. During cross examination he denied the suggestion that a person can not give statement with 95% burn injuries. As per record, except part of right hand and right forearm, all the body was having burn injury. He conceded that they used to record the alleged history on the MLC as narrated either by the injured or her/his attendant. He also conceded that no separate certificate regarding fitness for making the statement of the injured was given by him. Though he added that injured was declared fit by the attending doctor in her MLC.
PW11 Dr. Meghali Kelkar confirmed that on 26.10.2009 she conducted the postmortem on the dead body of deceased Nisha. There was alleged history of burn by flame by relatives at around 9.50 am and the patient was brought to GTB Hospital casualty vide MLC No.C4928/09 dated 25.10.2009 at 10.25 a.m and was admitted. The patient died on 26.10.2009 at 1.30 AM during the course of treatment. On general observation, it was observed as under: "It was dead body of an adult female of average built wearing no cloths State Vs. Sujata etc. (SC No.46/2011) Page 12 of pages 40 and wrapped in a plastic body bag.
Surgical antiseptic dressing present all over the body. Eyes closed, mouth partially opened, all other natural orifices NAD. Singeing of eyelashes, eyebrows and body hair seen, blueish ink stain present on right great toe. Rigor mortis present in developed stage. Postmortem staining can not be commented upon due to burns on the body. No signs of decomposition seen."
Following antimortem injuries were noticed: Superficial to deep flame burn injuries antimortem in nature present all over the body sparing genitalia, adjoining some part of lower abdomen and soles. The burnt areas were reddish/erythematous and inflamed. A characteristic smell of kerosene like substance present in hairs. Singeing of scalp hair, eyelashes, eyebrows and body hair seen. The burns injury involved 95% of total body surface area.
IN INTERNAL EXAMINATION:
Scalp, Skull - NAD
Brain 1200 gm in weight and was congested.
Neck soot particles seen in trachea.
Ribcage NAD
Lungs Right 550 gm and left 500 gm both were
congested and edematous.
Heart 200 gm - NAD
Stomach Empty, walls were NAD.
Intestine Contains Fluid and Gases of putrefaction.
Walls were NAD.
State Vs. Sujata etc. (SC No.46/2011) Page 13 of pages 40 Liver was 1200 gm, spleen 100 gms, kidneys right and left 120 gms each, all were congested.
Uterus Empty Pelvis & Vertebrae NAD Urinary bladder - Empty.
FINAL OPINION: Time since death about 12 hours. A cause of death shock as a result of antimortem flame burns involving 95% total body surface area.
She proved on record her detailed postmortem report as Ex.PW11/A. During cross examination she stated that after receiving 95% burn injury all over the body surface area the possibility of fit for making statement of the injured can not be ruled out. She further stated that as per the MLC prepared by the doctor (who had initially examined the patient), the patient was conscious oriented and was fit for statement and as per her opinion in the given circumstances the patient could speak as no internal oral burn were noticed. She had already opinion that all other natural orifices were NAD.
PW12 Sh. P.K.Sofat confirmed that on 25.10.2009 he went to GTB Hospital where the injured Smt. Nisha was found admitted vide MLC No.C4928/09 and he inquired from the doctor regarding fitness of the injured and the doctor declared the injured fit for statement. Thereafter, he recorded the statement of Nisha vide Memo Ex.PW12/A. After recording the statement, he took foot impression at point X on her statement Ex.PW12/A. Thereafter, he directed SHO Khajuri Khas to take necessary legal action as per law. On 26.10.2009 after receiving the information regarding the death of Nisha, he State Vs. Sujata etc. (SC No.46/2011) Page 14 of pages 40 went to GTB Hospital and conducted the inquest proceeding and vide memo Ex.PW12/B he requested the doctor to conduct the postmortem on the dead body. The dead body was identified by Sunil Kumar and Vijay Kumar vide memo Ex.PW12/C & D. After postmortem the dead body was handed over to Sunil Kumar the husband of deceased Nisha.
During cross examination he stated that there is no practice in his department to record any entry in any register maintained by them, before proceeding to the spot for recording the statement of witness. He received the information regarding incident at about 10.00 AM and then he went to the GTB Hospital. After inquiry from the IO regarding the facts of the case, he went to the ward where injured was admitted. He claimed that except the paper on which the statement Ex.PW12/A was recorded, he did not use any other paper during the proceeding. He claimed that he took the opinion of the doctor before recording the statement of injured regarding mental and physical fitness of the injured but he did not mention the name of said doctor and regarding his opinion in the statement Ex.PW12/A. He also observed the injured and in his opinion the injured was fit for making the statement at that time. He stated that he had put certain preliminary questions for ascertaining the mental and physical fitness of the injured but the said questions are not mentioned in the proceedings. Certain questions like her name, husband's name etc. were also put the injured to ascertain her memory. He firstly stated that he did not put any question to the injured regarding her voluntariness for making the statement, however, lateron he claimed that he had asked the injured if she was making the statement voluntarily or without any threat or pressure but the same has not been mentioned in the State Vs. Sujata etc. (SC No.46/2011) Page 15 of pages 40 proceeding. At the time of recording of the statement of injured, she was not shouting. He conceded that the statement was not recorded in question answer form by claiming that as per practice they used to ask the question from the victim and used to record the same in statement form. He claimed that he had recorded the DD number and PS as per the information given by the IO and inadvertently he wrote PS Bhajan Pura instead of Khajuri Khas though IO had stated the police station as PS Khajuri Khas. He stated that he firstly asked the name of the injured, then name of her husband and thereafter, the question regarding her marriage. Then he asked about her family members, whereabout of her husband and regarding her residence. He claimed that the injured told her name as Nisha but inadvertently he noted down the name as Nita but subsequently he corrected the same. The name of injured was corrected from Nita to Nisha in starting of statement as well as at the end where she put her foot thumb impression and the said correction was made at the same time. He conceded that the process of recording of the statement was started by him after 34 hours of the incident. At the time of the recording of the statement, no one was present near the bed of injured. At the time of recording the statement, no visible injury was seen as the body, except thumb of foot, was fully covered with the dressing. He stated that he had taken the thumb impression of the right foot of deceased on her statement as it might be that the left foot of the deceased was dressed.
PW13 HC Ranjeet Singh, the Incharge PCR Vehicle B28, confirmed that on receipt of information at about 9.35 PM from Control Room, he went to the spot and found a woman in burnt condition, he immediately shift that lady alongwith her mother in law Shanti Devi to GTB Hospital where she was got State Vs. Sujata etc. (SC No.46/2011) Page 16 of pages 40 admitted. He claimed that it took him about five minutes to st reach at house No.A858, 1 Pusta Gali No.11. 12 family members were present inside the house alongwith Shanti Devi and many public persons were present outside the house. It took half an hour in reaching GTB Hospital from Sonia Vihar.
PW14 HC Kanchi Singhno confirmed that on 25.10.2009 he was working as MHC(M) at PS Khajuri Khas and on that day ASI Tilomani Bhatt deposited two sealed pullanda in the Malkhana. The entry to the effect he recorded in register no.19 vide Sl. No.1701 Ex.PW14/A. On 26.10.2009, Insp. Pankaj Sharma deposited one sealed envelop with sample seal of MK in malkhana and entry to that effect was recorded in Register No.19 vide Sl. No.1702 Ex.PW14/B. On 19.10.2009, as per directions of the IO he sent the three sealed pullandas alongwith sample seal to FSL Gandhi Nagar Gujrat through Ct. Ram Prakash vide RC No.137/21.
PW15 Dr. Sanju Kohli proved the MLC of injured Nisha Ex.PW15/A, prepared by Dr. Sudhanshu Shekhar by identifying his handwriting and signatures as Dr. Shekhar had left the service of the hospital without telling his whereabouts. He confirmed that as per MLC the injured was conscious oriented at the time of examination and was fit for making statement. The patient was having 95% burn injury on her body.
During cross examination he conceded that the MLC was not prepared in his presence and the observations given by him was not in his knowledge. Although, as per MLC the injured was conscious and fit for making statement but he could not give any personal opinion as to whether she was fit to make statement or not. He claimed that the presence of doctor/concerned doctor is not mandatory at the time of State Vs. Sujata etc. (SC No.46/2011) Page 17 of pages 40 recording of the statement of injured by SDM/Executive Magistrate.
PW16 Ct. Jeevan Singh stated that on 25.10.2009 he alongwith ASI Tilomani Bhatt went to house no.A859 Gali NO.
st 11, 1 Pusta, Sonia Vihar, Delhi where at the first floor, they found that the smell of kerosene oil was coming. A cane containing kerosene oil and match box was lying on floor. On inquiry, they came to know that injured had been shifted to GTB Hospital. In the meantime SHO PS Khajuri Khas, Beat HC Sanjeev and Crime Team also reached there. Photographs of the spot was taken. Area SDM was informed and thereafter he alognwith ASI Tilomani Bhatt went to GTB Hospital where the injured Nisha was found admitted with burn injury. SDM recorded the statement of injured. He accompanied ASI Tilomani Bhatt to PS where the rukka was handed over to DO for registration of FIR and thereafter he went to spot and handed over the copy of FIR to IO. IO recorded the statement of Smt. Shanti Devi, the mother in law of injured Nisha. He also seized the burnt cloths, match stick and cane containing kerosene oil vide memo Ex.PW6/A. Lady Ct. Nisha came to the spot and the accused Guddi and Sujata, present in the court, were arrested vide memo Ex.PW6/A & B respectively. Their personal search was conducted by lady Ct. Nisha. Their Disclosure Statements Ex.PW6/C & D respectively were also recorded. He identified the case property i.e. plastic cane containing some kerosene oil Ex.PW6/P1. He also identified burnt cloth pieces and match sticks Ex.PW6/P2 (colly.).
During cross examination he neither could not tell the time of reaching of crime team at the spot nor the name and number of any officials from Crime Team. He stated that IO had not inquired Nisha in his presence. SEM had not recorded State Vs. Sujata etc. (SC No.46/2011) Page 18 of pages 40 the statement of Nisha in his presence as he was presence out side the ward of hospital. When they reached at the spot for the first time, Shanti Devi was not present there. No public witness was cited/shown as a witness in the seizue memo of kerosene oil cane, burnt cloths and match sticks.
PW17 Insp. Pankaj Sharma confirmed that on 26.10.2009 after addition of Sec.302 IPC, he took over the investigation of this case. PW12 had conducted the inquest proceeding and he assisted him in the proceeding. After postmortem, autopsy surgeon handed him one sealed parcel with the seal of MK stated to be scalp hair of the deceased and sample seal of MK to which he seized vide memo Ex.PW6/E. The accused Guddi and Sujata were arrested by ASI Tilomani Bhatt and subsequently the investigation was taken over by him. He made search for coaccused Rajiv but of no avail. On 14.12.2009, draftsman SI Mukesh Kumar Jain visited the spot with him and took the measurements and subsequently he handed over him the scaled site plan Ex.PW9/A. On 24.12.209 the fresh NBWs were issued against the accused Rajiv but of no avail. The priority letter for sending the exhibits to expert was obtained and accordingly on 29.12.2009, the exhibits were got deposited in FSL Gandhi Nagar Gujarat through Ct. Ram Prakash. On 04.01.2010, the proceeding U/s 82 Cr.P.C was got initiated against the accused Rajiv. The charge sheet against Sujata and Guddi was prepared and filed before the court of Ld. MM. Subsequently, accused Rajiv surrendered before the court and he was formally arrested in the case and then on completion of investigation supplementary charge sheet qua the accused Rajiv was filed in the court. FSL result containing three pages including forwarding letter is collectively Ex.PW17/D. State Vs. Sujata etc. (SC No.46/2011) Page 19 of pages 40 During cross examination he stated that the investigation of the case remained with him w.e.f. 26.10.09 to filing of charge sheet including supplementary charge sheet. He had visited the place of occurrence during the course of investigation including the first day along with staff namely HC Sanjeev, ASI Tilomani and other staff. Nobody came forward to stand as witness despite his efforts of the locality. No written notice was given to anyone. He had seen two minor children of the deceased on the spot. He had seen the remnants of burnt items on the spot. There was no occasion for him to take the burnt items into police possession as the IO of the case on that day was ASI Tilomani and he had taken the same. He was present at the time of inquest report. The inquest proceedings was conducted in the day time between 10.00 a.m to 1.00 p.m. The maternal uncle and husband of deceased were also present. He further stated that he had seen the deceased and she was yelling that she had been killed by her dewar, dewarni and mother of dewarani i.e all accused. He had seen yelling/saying so by the deceased in the surgical ward of GTB hospital on 26.10.09 around 1.00 p.m. He did not record her statement. Immediately after her yelling, the SDM had recorded the statement. He himself had not moved any application to the doctor for recording the statement of deceased. When he had met the deceased first time, she was under treatment. He had seen one lady i.e Shanti Devi, her mother in law there in the hospital. He did not record the statement of Smt. Shanti Devi as the investigating officer of the case at that time was ASI Tilomani Bhatt. He had seen the MLC of the deceased and as per doctor she had sustained 95 % burn injuries on her body. He further stated that he had not recorded the statement of the son of deceased State Vs. Sujata etc. (SC No.46/2011) Page 20 of pages 40 namely Parth. He had simply said that deceased (her mother) had been removed to hospital. He had not given any particular instruction to the IO for recording the statement of Parth and Mansi. He did not have any information regarding burning in this case prior to 11.00 a.m personally. He did not come to know as to who had given call of this incident to the PCR at about 10.28 a.m. He did not make further investigation in this regard. He did not have the information regarding admission of injured in the GTB hospital at about 9.50 a.m. After knowing about the incident, he had gone to the spot with his staff being the SHO of the area. ASI Tilomani, who was investigating this case, was already there and he had given instruction to the IO to record/collect all the relevant evidence properly. Statement of family member Mrs. Shanti Devi was already there besides the dying declaration recorded by Executive Magistrate. Shanti Devi had told them that her sons namely Chander Prakash, Sunil and accused Rajeev used to reside in that house with their respective families. She showed his unawareness, if Pushpa along with her family members had also come to the house where the alleged occurrence had taken place. He could not tell if Smt. Shanti Devi had told him that Pushpa had attended the deceased in the hospital also. He denied that he deliberately did not record the statement of other witnesses who were present at the house namely Chander Prakash, his wife and his four children. He further denied that two persons namely Paras and Mansi were 18 and 20 years old respectively. They were kids and he had tried to know about the true facts from them but they were unaware about the incident. He did not mention this fact in the charge sheet. He denied that thumb impression of deceased was taken on blank paper while she was being removed in PCR State Vs. Sujata etc. (SC No.46/2011) Page 21 of pages 40 van. Crime team officials had reached on the spot in his presence. During entire proceedings conducted by Crime Team officials, ASI Tilomani was present there. He had not given any specific instruction for lifting finger prints from the cane. He denied that Nisha, deceased was not able to make any statement. He clarified that she was found fit for making statement by the doctor also and this fact has found in the MLC. He had tried to know about the incident from the people of neighbourhood but no body came forward. He stated that he was not aware as to how Sunil received information about the occurrence, so there was no occasion for him to collect any document in this regard. He denied that accused Sujata was not present at the time of incident or she was away at Chhat Puja Ghat at Jamuna River along with her mother accused Guddi or that he arrested accused Guddi and Sujata on the pressure of complainant. The children of Sunil from his first marriage were not enquired by him as they did not meet him after 25.10.2009. He got inspected the spot through SI Mukesh Kumar Jain, the draftsman in the presence of Smt. Shanti Devi on 14.12.2009 and he took the rough notes and measurement and he handed over the scaled site plan to him later on, but he could not tell whether the other family members were also present there or not. He visited the spot number of times in search of the accused persons and during those visits, he did not meet with the family of Chander Prakash(Jaith of deceased), Sunil and Pushpa. He made inquiry from the neighbourers of the accused persons but their statements were not recorded by him. He never called any neighbourer by giving notice u/s 160 Cr.P.C. After the arrest of accused Rajiv, he did not visit the spot nor examined any witness. He did not collect the call details of the mobile phone of Sunil.
State Vs. Sujata etc. (SC No.46/2011) Page 22 of pages 40 PW18 SI Rakesh Kumar confirmed that on 04.01.2010 he went to the court and got issued process U/s 82 Cr.P.C against accused Rajiv. On 16.03.2010, he joined investigation with IO Insp. Pankaj Sharma. The accused Rajiv who had surrendered in court, was interrogated after taking permission of the court and arrested in this case. He made Disclosure Statement Ex.PW17/C.
5. After conclusion of prosecution evidence, statements of accused persons U/s 313 Cr.P.C were recorded, wherein they claimed innocence on the ground of false implication in this case. They all have taken the plea of alibi i.e. at the time of alleged incident, they were not present at the spot, rather, they had gone for chatt puja at Yamuna Ghat.
Accused Guddi claimed that she has been falsely implicated in this case by the complainant, who was annoyed with her daughter as the first wife of Sunil used to visit the house of her daughter for meeting with her children, who were residing with her. She also stated that she was not having any concern with the family of her daughter Sujata.
Accused Sujata also claimed innocence and stated that she has been falsely implicated in this case by the complainant, who was annoyed with her as the first wife of Sunil used to visit her house for meeting with her children, who were residing with her.
Accused Rajiv too claimed innocence and stated that deceased committed suicide herself.
Accused Guddi and Sujata preferred to lead evidence in their defence, however, accused Rajiv did not prefer to lead any evidence in his defence.
6. In support of their defence, accused Sujata and Guddi examined Smt. Meenakshi, Vijay and Pramod Tiwari as DW2, State Vs. Sujata etc. (SC No.46/2011) Page 23 of pages 40 DW3 & DW4 respectively besides accused Sujata as DW1.
7. DW1 Sujata (one of the accused persons) testified that she was married with Rajiv in the year 2004 and after marriage, she was residing separately in some portion on ground floor of H.No.859, Gali No.11, Sonia Vihar, Delhi with her husband and children. Her mother in law and brothers in laws (jeths) i.e. Chander Prakash alongwith his wife namely Usha and four children namely Chanchal aged 21 years, Nishu aged 19 years, Kannu aged 13 years and Gaurav aged 9 years and Sunil were residing with their families on the remaining ground floor and upper entire portion. Another brother in law namely Bhupinder was residing in Jungpura, Delhi. Her brother in law namely Sunil was married with Shiwani and they were blessed with two children (i.e. namely Parth aged about 16 years and Mansi aged about 15 years at the time of incident) and they were also residing in the above referred portion of the house. Her brother in law Sunil used to beat his wife Shiwani daily due to illicit relationship with the deceased Nisha. Her brother in law Sunil was residing in separate rented accommodation with deceased Nisha and Shiwani was objecting to that and she used to go to the said rented accommodation and quarrel with Nisha and Sunil. Around two months prior to the date of incident, Sunil and her mother in law kicked out Shiwani from the house and they brought the deceased Nisha in the house in her place who used to reside in the house. Later on her brother in law Sunil had started to maintain his relationship with the first wife namely Shiwani and due to this reason deceased Nisha was upset and quarreling with Sunil oftenly. About a week prior to the date of incident, quarrel took place between Nisha and Sunil regarding the visit of Shiwani in the matrimonial house State Vs. Sujata etc. (SC No.46/2011) Page 24 of pages 40 and the neighbouror were also aware about the said fact. On the day of occurrence i.e. 25.10.2009, her sister in law (nand namely Pushpa) and her husband Subhash and children Amit aged about 26 years, Sonu aged about 20 years and Meenu aged about 18 years were also present in the said house alongwith entire family of Chander Prakash including him. On the day of incident both the children of Shiwani namely Parth and Mansi were also present in the said house. On 25.10.2009, she left the house at around 7-7.30 a.m for going to Yamuna Ghat to perform Chat Puja. Her neighbourers namely Vijay, Pramod Tiwari and his wife Anjali Tiwari were also accompanied with her there and they remained there till 10-10.30 a.m. At Yamuna Ghat her mother Guddi, Mohan uncle and Dulari aunti met with them. There some photographs were also taken on the Yamuna Ghat, which are mark A to C. Thereafter, they came back at her house and came to know about the incident. There one Meeakshi and other neighbours told her about the incident by saying that Nisha had committed suicide by setting herself on fire. She also came to know that her mother in law and her sister in law namely Shanti Devi and Pushpa had already gone to the hospital in police van in which deceased Nisha was taken to the hospital. She alongwith her jeth namely Chander Prakash and jethani Usha and some neighbours went to the GTB Hospital. She saw Nisha admitted in the hospital and she was not in a position to speak. Although, with the permission of the police officials, they tried to talk with deceased Nisha but she was not able to speak anything and was in unconscious condition. Thereafter, they i.e. she herself, Chander Prakash, Shanti Devi mother in law, nand Pushpa and her mother Guddi were taken to the police station by the police officials for making inquiry. They remained State Vs. Sujata etc. (SC No.46/2011) Page 25 of pages 40 in the PS upto 7.00 p.m and other persons were permitted to go their home and she and her mother were taken into custody. Police interrogated with her mother in law, nand Pushpa, nandoi Subhash, jeth chander Prakash and his wife Usha. Thereafter, she was sent to jail. On the said day, her husband was not in the house and went for plying the auto.
During cross examination she stated that her native place is Badaiyun (U.P.) and she was performing Chat Puja for the last ten years i.e. after her marriage. The Chat Puja used to perform in the morning. She denied that photographs mark A to C are forged and fabricated one and they have been manipulated or that at the time of incident, she alongwith other accused was present at the spot. She further denied that she alongwith Guddi quarreled with deceased Nisha on the date and time of incident. She denied that Nisha was conscious and speaking or that her statement was recorded by the SDM Sh. P.K. Sofat. She conceded that no report was lodged regarding the incident which took place a week prior to 25.10.2009 between Nisha and Sunil regarding visit of Shivani.
DW2 Smt. Meenakshi (neighbour of accused persons) deposed that on 25.10.2009 at about 9.15 a.m, she was present in her house. A quarrel was going on between deceased Nisha, Shanti Devi, Pushpa, Usha and two daughters of Usha i.e. Nishu and Chanchal. Raju, husband of Usha was also present there. There were quarreling in loud voice and some time regarding Nisha and some times about the property. Suddenly, they saw smoke coming out of the house of Nisha. People were saying "AAG LAG GAI AAG LAG GAI". She also reached there and saw Nisha was sitting and she was under fire. People extinguished the fire but by that time she was almost burnt and fell unconscious. Sujata and State Vs. Sujata etc. (SC No.46/2011) Page 26 of pages 40 Guddi were not present in the house and they had left the house in the morning for Chat Puja at Jamunaji. They returned from Chat Puja between 10.30 a.m to 11.00 a.m and by that time police had placed Nisha in the government vehcile. Nisha had burnt herself on the first floor of the house.
During cross examination she stated that at the time of quarrel, she was present on the roof of her house. She had reached at the spot when the deceased was already under fire.She denied that accused persons were present at the spot when the incident had occurred.
DW3 Sh. Vijay (neighbour of accused persons) stated that on 25.10.2009 at about 7.00 a.m, accused Sujata and Guddi came at their house and told that they were going for Chat Puja. He also accompanied them and left their house at about 7.30 a.m on that day. He further stated that Chat Puja was performed on Pehla Pusta, Jamunaji in their area. Sujata and Guddi with other persons performed Chat Puja. They returned to their house at about 10.30 a.m or 10.45 a.m. They saw crowd outside their gali and there was an ambulance parked at the corner of gali. They came to know that Nisha, keep of Sunil, had burnt herself. Police was removing the body of Nisha from the first floor of her house. He also stated that a tenant of Guddi had taken photographs at Chat Puja which are mark A to C and the same pertain to Chat Puja performed on 25.10.2009 at Pehla Pusta, Jamunaji. Rajiv used to drive TSR and had left the house early morning.
During cross examination he stated that he does not believe in Chat Puja and had not performed the same. He had gone to Jamunaji for taking bath and to see the Mela. No eatable stalls or joy rides were there in the Chat Puja. He had knowledge that at Jamunaji, no joy rides or eatable stalls used State Vs. Sujata etc. (SC No.46/2011) Page 27 of pages 40 to be installed, besides this he had gone there to see the Mela. He conceded that he is not visible in photographs mark A to C. He stated that the male person in photograph mark C is Mohan, who resides in the neighbourhood as a tenant and the lady in photograph mark C is Guddi, the accused and as per this photograph both were performing puja. He conceded that in the photograph no public, water or ghat is visible. He further conceded that if photograph is clicked from the opposite side of ghat, the public persons who are coming to perform Puja at Jamuna ghat should be visible. He admitted that photographs mark A to C were not taken in my presence.
DW4 Promod Tiwari testified that in the year 2009 he was active worker of Sonia Vihar Sudhar Samiti. Sujata was residing on rent in their neighbourhood during 20082009. He used to look after the Chat festival sewa at Yamuna river from st 1 Pushta onwards. He was present on the Yamuna from 24.10.2009 in the evening. Chat festival puja was to be performed on the morning of 25.10.2009. Accused Sujata and Guddi met him at Chat Puja Yamuna river at about 7:30/8 a.m. It was Sunday and there was heavy rush at Pushta Yamuna ji. He saw accused Sujata & Guddi at Chat Puja till about 10 a.m. Her wife Anjali Tiwari had also come to perform Chat Puja on that day. At about 10 a.m., her wife, Sujata and Guddi left Chat Puja.
During cross examination he stated that he came to know subsequently that Sujata and her family members had been booked in a case of murder. He also came to know that the incident of murder had occurred on the same day when Chat Puja was performed. Till today he did not give any representation or complaint to any authority to show that Sujata and Guddi met him at Yamuna Pushta in between 7:30 State Vs. Sujata etc. (SC No.46/2011) Page 28 of pages 40 a.m. to 10 a.m. He came back to his house from Yamuna Pushta at about 11 a.m. However, he came to know about the incident of the present case after 23 days. Later on, he came to know that they were arrested by the police. He never went to see the accused persons in jail or in PS. He could not tell the number and names of persons, who met him from 7:30 a.m. to 10 a.m. He conceded that he never visited the house of accused Guddi at Sonia Vihar. He could not tell whether there was any dispute between Shanti Devi and Rajiv and his wife Sujata. He denied that Guddi had visited the house of Sujata on 25.10.2009 and she was very much present at the house of Sujata at about 9:30 a.m. He further denied that accued Guddi, Sujata and Rajiv poured the kerosene oil on deceased Nisha and set her on fire or that being the very close friend of the family of Sujata he is deposing falsely and favouring the accused persons.
8. I have perused the entire records carefully and given my prolonged consideration to the controversy in hand.
9. The case of the prosecution can be summarized as under:
1. The accused Rajeev and Sujata (Dever and Devrani of deceased respectively) were having a dispute with Smt. Shanti (the mother in law of deceased and accused Sujata and mother of th accused Rajiv) regarding their claim of 1/4 share in the house bearing no.A858, Gail No.11, Sonia Vihar, First Pusta, Delhi.
2. On the fateful day i.e. on 25.10.2009, they were having altercation with Smt. Shanti and at that time the accused Guddi (mother of accused Sujata and mother in law of accused Rajiv) was also present State Vs. Sujata etc. (SC No.46/2011) Page 29 of pages 40 there and she was instigating them and also taking part in the quarrel.
3. When the deceased Nisha tried to intervened, all the accused persons caught hold of her and the accused Rajiv after pouring kerosene oil on her, set her on fire.
4. At that time Smt. Shanti was alone in the house and Sunil (the husband of deceased, who had gone to Ludhiana), Chander Prakash (elder brother of Sunil) and Pushpa (wife of Chander Prakash) were not present in the house. A three years old daughter of Sunil namely Bhawana was also away from there.
5. The incident had taken place at 9.30 AM.
Deceased was removed to GTB Hospital by PCR officials. PW Shanti was also accompanied with them.
6. The marriage between Sunil and Smt. Nisha (the victim) had taken place five years prior to the date of occurrence.
7. The victim Nisha, who was admitted in GTB Hospital with 95% burn injuries on her body, was medically examined vide MLC No.C4928/09 at 10.25 AM and as per MLC she was fit for statement.
8. Sh. P.K. Sofat, the Executive Magistrate, was informed and he reached at GTB Hospital and recorded the statement of injured Nisha (i.e. the dying declaration) Ex.PW12/A at 1.25 PM.
9. On 26.10.2009 at about 1.30 AM, the patient/victim Nisha got expired.
State Vs. Sujata etc. (SC No.46/2011) Page 30 of pages 40
10.On 26.10.2009 at 1.30 PM, postmortem on the dead body was got conducted and as per postmortem report, cause of death was shock as a result of antimortem flame burns involving 95% total body surface area.
10. According to the contentions of Ld. Addl. PP for the State, the case of the prosecution is crystal clear. By the combined reading of dying declaration of deceased Nisha recorded U/s 32 Cr.P.C Ex.PW12/A and the testimonies of PW1, PW5 and other evidence brought on record by prosecution, it can be said that the case of the prosecution is firmly established. In her testimony, PW1 has duly corroborated with the case of prosecution on most of the material points like the factum regarding the marriage of deceased Nisha with Sunil; date, time and place of occurrence and also the motive on the part of accused persons. She also corroborated in respect of the presence of accused persons at the spot at the relevant time and also regarding the occurrence of altercation (Tu Tu Me Me) in respect of dispute regarding the share in the property. She further confirmed that she had seen the victim Nisha under fire and she got the fire extinguished by throwing water on her. She further confirmed the fact that victim was removed to GTB Hospital by PCR van and she had accompanied with them and got admitted her there. Likewise, PW5 Sunil (although his testimony is of hear say nature) has also corroborated with prosecution on several points like the date, place and time of incident and also he confirmed that the incident of quarrel was occurred as he was informed by his son that accused Sujata and Guddi were quarreling with Nisha and his wife was got burnt by accused Sujata and Guddi. Above all in her dying declaration (recorded State Vs. Sujata etc. (SC No.46/2011) Page 31 of pages 40 by PW12), the victim/deceased had clearly narrated the entire incident in details by stating that accused Rajiv and his wife th Sujata were quarreling with her mother in law for 1/4 share in the property and when she tried to intervene (beech bachav), her sister in law (dewrani) Sujata, brotherinlaw (dewar) Rajiv and Guddi (mother of her dewrani and mother in law (Saas) of Rajiv) caught hold of her and her brotherinlaw Rajiv after pouring kerosene oil on her set her on fire (mere devar ne mujh par mitti ka tail dalkar aag laga di). The dying declaration Ex.PW12/A was recorded by the Executive Magistrate (an independent reliable person) and the same was signed by him and it was attested by the deceased by putting her right leg thumb impression and the statement Ex.PW12/A was recorded after the doctor had opined that the victim Nisha was fit to make a statement. Besides, the medical and scientific evidence (i.e. MLC, postmortem report and FSL result Ex.PW17/D), the other documents like FIR, seizure memos, memos of arrest and personal search of accused persons and also their disclosure statements have been proved by the prosecution witnesses in their respective testimonies. Further the postmortem notes indicate burn injuries and chemical analysis report indicates that the kerosene oil was found present in the earth seized and cloths of the deceased seized. Further the material and exhibits lifted from the spot and produced before the court further consolidates the case of the prosecution. Thus, the prosecution has been able to prove the guilt of the accused persons beyond the shadow of doubt and as such the accused persons are liable to suffer an order of conviction against them.
Per contra, according to Ld. Counsels for accused persons, the prosecution has been miserably failed in his State Vs. Sujata etc. (SC No.46/2011) Page 32 of pages 40 mission of proving its case beyond the shadow of reasonable doubts and therefore, all the accused persons are entitled for an order of acquittal in their favour. Firstly, the sole alleged eye witness of the occurrence i.e. PW1 Shanti has not supported the prosecution on material points and despite of her cross examination in details, nothing incriminating material against the accused persons could be elicited from her mouth. She had only stated that she had seen the deceased Nisha under fire and she became perplexed and than she got the fire extinguished by throwing the water upon her but she did not disclosed as to how and under what circumstance, the victim Nisha sustained fire injury. Further, she claimed that she remained in hospital with the victim but she denied that in her presence the Executive Magistrate visited the hospital and recorded the statement of victim. Rather, she claimed that in her presence, the police officials had obtained the thumb impression of victim on some papers. Further the testimony of PW5 Sunil (an another material witness relied by prosecution) is of hearsay nature, who claimed that he was telephonically informed by the victim that Sujata and Guddi had come to her room and they were quarreling with her and subsequently he was telephonically informed by his son (aged about 11 years at the relevant time) that victim was got burnt by accused Sujata and Guddi and surprisingly the prosecution has neither cited nor examined the said son of Sunil, who would have been the most vital witness of the incident. It is further claimed by Ld. Defence counsels that the case of the prosecution is largely based on the dying declaration of the deceased Ex.PW12/A recorded U/s 32 of the Indian Evidence Act by PW12 Sh. P.K. Sofat, the Executive Magistrate, but the said dying declaration is surrounded by suspicious circumstances as right thumb foot State Vs. Sujata etc. (SC No.46/2011) Page 33 of pages 40 impression on the dying declaration is not that of deceased Nisha but of some other person. There is no note on the dying declaration written by the doctor that the deceased was fit to make a statement or that she was conscious. No note has come from the side of IO or the Executive Magistrate (PW12) to this effect. Further dying declaration is not in the form of question answer, rather, it is in the form of narration and it can not be believed that the victim, who had sustained 95% burn injuries on her body was in so perfect state of mind to give her statement in narrative form. Further as per the statement of PW12, the right foot thumb impression of injured Nisha was put on the dying declaration but this fact does not get corroboration from the medical evidence. It is further claimed by Ld. Defence counsels that the patient was declared fit for statement on her MLC at the time of its preparation (i.e. at about 10.30 AM), whereas no fitness certificate of the doctor was obtained (in writing) at the time of recording of dying declaration which was recorded after three hours (i.e. at about 1.30 PM). It is further argued by Ld. Defence counsels that perusal of the record confirmed that the victim had suffered 95% burn injuries and admittedly she was under treatment and she was given sedative medicine and as per medical evidence her condition was getting deteriorated and ultimately, she died on 26.10.2009 at 1.30 a.m. In these situations, it can not be believed that Nisha (since deceased) was in fit state of mind to record her statement that too in narrative form. Further there is a material contradictions in the statements of PW1 & PW5 and the dying declaration as according to PW1 & PW5 the accused Rajiv was not present at the time of alleged incident and accused Sujata and Guddi had set the victim Nisha on fire, whereas, as per dying declaration Ex.PW12/A, all the accused State Vs. Sujata etc. (SC No.46/2011) Page 34 of pages 40 persons caught hold of her and accused Rajiv after pouring kerosene oil on her, set her on fire.
11. After giving due thoughts to the rival submissions of both the sides, I have come to the considered opinion that there is a substance in the submissions of Ld. Counsel for the accused persons that the prosecution has been failed to prove its case against the accused persons beyond the shadow of reasonable doubt for the following reasons: PW1 Smt. Shanti (star witness of the prosecution being the eye witness of occurrence) has not supported the case of prosecution on the material points of the occurrence, though she had supported the prosecution on the factum regarding marriage of deceased with Sunil; date, time and place of occurrence and the fact that she had accompanied the victim to the hospital, but on the point as to how victim Nisha sustained burn injuries, she has not supported the story of prosecution and therefore, she was declared hostile and was cross examined by Ld. Addl. PP for the State but despite of that nothing incriminating could be taken out from her mouth against the accused persons. In her statement, PW1 stated that she set on Pooja (worship) in the temple located in the house itself, and heard commotion and saw that flames were coming from the room of Nisha and Nisha was burning. He did not say anything as to how Nisha got fired, whereas according to prosecution, she is the eye witness of alleged incident. Likewise, testimony of PW5 Sunil Kumar (husband of Nisha) can not be relied upon being the evidence of hearsay nature. In his statement, he has stated that he was telephonically informed by the victim that Sujata and Guddi had come to her room and they were quarreling with her and subsequently he was telephonically informed by his son (aged about 11 years at State Vs. Sujata etc. (SC No.46/2011) Page 35 of pages 40 the relevant time) that victim was got burnt by accused Sujata and Guddi. It means apart from PW1 Smt. Shanti, son of Sunil was also the witness of incident but the prosecution did not cite or examine the said boy as a witness in this court who could have been the vital witness in this case and non examining the said boys as a witness in this case is fatal to the case of prosecution. Further neither PW1 nor PW5 have stated about the presence of accused Rajiv at the time of incident, whereas according to the contents of dying declaration Ex.PW12/A all the three accused persons were involved in the commission of offence alleged in this case, rather, it was the accused Rajiv, who had played the main role in the incident.
Further, the entire case of the prosecution revolves around the dying declaration made by the deceased Nisha before the Executive Magistrate Sh. P.K. Sofat. This statement was signed by the Executive Magistrate and deceased Nisha has attested it by putting her right thumb impression of foot and the said dying declaration is surrounded by suspicious circumstances.
Perusal of the MLC reveals that the patient Nisha was declared fit for statement on her MLC at the time of its preparation (i.e. at about 10.30 AM), whereas no fitness certificate of the doctor was obtained (in writing) at the time of recording of dying declaration which was recorded after three hours (i.e. at about 1.30 PM). Although, PW12 claimed that he had taken fitness certificate of the doctor orally and besides that he himself got satisfied about the fitness of victim to depose but the statement Ex.PW12/A does not find mentioned any such indication. Here I am fortified by the judgment tiled as Ram Singh Vs. State reported as 1996 (4) Crimes 235 State Vs. Sujata etc. (SC No.46/2011) Page 36 of pages 40 Delhi High Court, wherein it has been held as under: "No proof of fitness of deceased to make such a statement - Presence of doctor was not ensured at the time of recording of that statement - Alleged thumb impression of deceased on that declaration making it unreliable - Magistrate recorded dying declaration at 5 PM but deceased was declared fit to make statement on MLC at 11.35 PM - No evidence that deceased was fit to make statement when her statement was recorded - conviction is unsustainable."
The perusal of Ex.PW12/A further shows that there is no note on the dying declaration written by the doctor that the deceased was fit to make a statement or that she was conscious. No note has come from the side of IO or the Executive Magistrate (PW12) to this effect. Further dying declaration is not in the form of question answer, rather, it is in the form of narration and it can not be believed that the victim, who has sustained 95% burn injuries on her body and her condition was being deteriorating and she was being managed conservatively on I.V. Fluid, antibiotic, analgesics and ASB, would give such a narrative statement. Here I am fortified by the judgments titled as Mohan Sadhu Kawale Vs. State of Maharashtra reported as 2005 (2) Crimes 20.
It has been held in Mohan Sadhu Kawale Vs. State of Maharashtra reported as 2005 (2) Crimes 20 Bombay High Court, wherein it has been held as under: "Several suspicious circumstances about oral dying declaration which rendered it State Vs. Sujata etc. (SC No.46/2011) Page 37 of pages 40 unsafe to rely upon - Dying declaration recorded by magistrate also found doubtful
- Deceased had sustained 100% burns and Doctor admitted that a sedative injection "Fortwin" had been given to relieve her of pain soon after she was brought in hospital
- It would be dangerous to accept a detailed and long dying declaration recorded by Magistrate - Fit case to give benefit of doubt to accused."
12. In this case also it has been admitted by PW10 Dr. Ashish Rai that the patient was managed conservatively on I.V. Fluid, antibiotic, analgesics and ASB and patient condition was deteriorated progressively and inspite of all the available and best effort, patient could not be revived and declared clinically dead at about 1.30 AM on 26.10.2009 and further it has been conceded by PW12 Sh. P.K. Sofat, Executive Magistrate that he did not put any question to the injured regarding her voluntariness for making the statement. Though PW12 has stated that he put certain questions regarding her name, her husband's name etc., but perusal of the dying declaration Ex.PW12/A reveals that same are not reflecting therein. PW12 further conceded that he did not mention in the proceedings the questions put to the injured and the answers given by her while ascertaining the mental and physical state of the injured. Here I am fortified by the judgment titled as K. Ramachandra Reddy & Anr. Vs. Public Prosecutor reported as AIR 1976 SC 1994, wherein it has been held by Hon'ble Apex Court as under: "The omission of the person who recorded the dying declaration to question the State Vs. Sujata etc. (SC No.46/2011) Page 38 of pages 40 deceased regarding the statement of mind to make the statement is a serious irregularity." Here reliance can also be placed upon a judgment titled as Kanchy Komuramma Vs. State of A.P reported as 1996 SCC (Cri) 31 wherein it has been by Hon'ble Apex Court as under: "Dying declaration if found to be true and free from embellishment then it is sufficient for recording conviction - Prosecution must prove that the deceased was in proper mental condition to make the dying declaration -
Merely because the dying declaration has been recorded by a Judicial Magistrate is not by itself a proof of its truthfulness."
Further as per the statement of PW12, the right thumb impression of injured Nisha was put on the dying declaration but this fact does not get corroboration from the medical evidence as PW10 Dr. Ashish Rai, who stated that as per record, except part of right hand and right forearm, all the body was having burn injury. If, it is so, then how PW12 took the right foot thumb impression of deceased Nisha on her dying declaration and as such the dying declaration Ex.PW12/A can not be safely relied upon and in this regard a reliance can be placed upon a judgment titled as State of Punjab Vs. Gian Kaur reported as I (1998) DMC 467 (SC) wherein Hon'ble Apex Court held as under: "the prosecution did not explain satisfactorily, as to how a thumb mark could appear on the dying declaration when the deceased had 100% burns over her body. The court in that case disbelieved the dying declaration, though State Vs. Sujata etc. (SC No.46/2011) Page 39 of pages 40 the thumb mark of the deceased had clear ridges and curves on the dying declaration." Further significantly, PW12 Sh. P.K. Sofat himself conceded in his statement that while recording the statement of injured Nisha, he erroneously written the name of Police Station as PS Bhajan Pura instead of Police Station Khajuri Khas and name of victim as Nita instead of Nisha.
In these situations, the dying declaration Ex.PW12/A which was recorded by PW12 an Executive Magistrate, who is an independent person, can not be safely relied upon to connect the accused persons with the offence alleged and therefore, they are entitled for an order of acquittal in their favour by giving them benefit of doubt.
13. In the light of aforesaid, all the accused persons are acquitted of the charges by giving them benefit of doubt. The accused Rajiv be set at liberty if not required to be detained in any other case. Existing Bail Bonds of accused Sujata and Guddi are extended for an another period of six months. However, the accused Rajiv, after his release from Jail, will furnish his personal bond in the sum of Rs.10,000/ with one surety of like amount within a period of seven days from his release, in terms of the directions of the Hon'ble High Court of Delhi.
14. File be consigned to Record Room after completion of necessary formalities.
Announced in the open
court on 30.04.2013 (RAKESH KUMAR)
ADDL. SESSIONS JUDGE:(NE)
KARKARDOOMA COURT:DELHI
State Vs. Sujata etc. (SC No.46/2011) Page 40 of pages 40