Delhi District Court
9 vs Kiran Conducted The Postmortem On The ... on 29 August, 2012
-1-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-03, OUTER DISTRICT
ROHINI COURTS:DELHI
FIR No. : 1196/07
PS : Sultan Puri
U/s : 452/307/302/34 IPC
Unique Case ID : 02404R0 657472007
In the matter of
The State
Versus
1. Pammi @ Heera S/o Bahadur Singh,
R/o C-9/259, Sultan Puri, Delhi.
2. Suresh S/o Bahadur Singh,
R/o C-9/259, Sultan Puri, Delhi.
3. Pintu @ Bintu S/o Bahadur Singh,
R/o C-9/260, Sultan Puri, Delhi.
4. Raju S/o Bahadur Singh,
R/o C-9/260, Sultan Puri, Delhi.
5. Smt. Santosh Kumari W/o Late Sh. Sanju Kumar,
R/o C-9/260, Sultan Puri, Delhi.
...ACCUSED
Session Case No. : 179/08
Date of Institution : 18.10.2007
Date of Committal : 30.11.2007
Date of reserving judgment/order : 29.08.2012
Date of pronouncement : 29.08.2012
J U D G M E N T
1. Accused Pammi @ Heera S/o Bahadur Singh, Suresh S/o Bahadur Singh, Bintu @ Pintu S/o Bahadur Singh, Raju S/o Bahadur Singh & Smt. Santosh kumari W/o Late Sh. Sanju FIR No. : 1196/07, PS : Sultan Puri Page 1 of 66 -2- Kumar were sent up for trial for offence punishable U/s 302/307/452/34 IPC.
2. The brief facts of the prosecution case are that on 20.07.2007 on the receipt of DD No. 56B at PS Sultan Puri, SI Rajesh Kumar was entrusted with the same. It was mentioned in the DD that information was received at about 6:25 p.m, through wireless operator that fire at C9/261, Sultan Puri. I.O reached along with constable at the spot and found at ground floor in the room burnt cloth, match box and match sticks, one stove and one burnt plastic bottle lying and it was revealed on enquiry that the injured have already been shifted to SGM Hospital. SI left the constable to guard the spot and reached at hospital and obtained the MLC of Smt. Kamla W/o Madan Lal, R/o C9/261, Sultan Puri, who was given in MLC alleged history of burn local superficial 100%. Patient was unfit for statement and thereafter MLC of Shanti W/o Babu Ram, R/o C9/292, Sultan Puri was obtained, which was given alleged history of burn and on local examination 25% burns. The patient was declared fit for statement. The enquiry was made from Shanti Devi, who got her statement recorded.
3. She stated that she lives at C9/292, Sultan Puri with her family.
Her sister Kamla lives opposite to her house at C9/261. In their neighbourhood, her elder brother-in-law, namely, Bahadur lives with his sons, namely, Pammi @ Heera, Suresh, Raju and Bintu and their sister Santosh Kumari came to their house. Pammi @ Heera was having kerosene oil like bottle, Bintu was FIR No. : 1196/07, PS : Sultan Puri Page 2 of 66 -3- having a wooden danda, having cloth wrapped on the same and they surrounded both sisters. Suresh, Raju and Santosh held them. Pammi @ Heera poured kerosene oil like thing on them and thereafter Bintu put the danda on fire and set both the sisters on fire. When, they raised alarm, their daughter Pooja and Meenu came to save them. On this, they said that they be also burnt. In the meantime, neighbourers started collecting. On this, they fled away. Due to this incident, she and her sister Kamla got seriously burnt and the hand of Pooja got burnt while saving them. The MLC of Pooja was also obtained. The doctor gave her fit for statement and given the nature of injuries as simple. Crime team and senior officers came at the spot.
4. On the basis of the MLC, FIR U/s 307/452/34 IPC was registered. The photographs of the spot was got conducted. The match sticks, burnt match box were seized from H.No. C9/292 and in the outer room of the room of H.No. C9/292, one match box, which was burnt and some match sticks, which were in unburnt condition were also seized and kept in a plastic box. From the place of occurrence itself i.e room from near the door the burnt cloth of injured were also recovered, which were also seized. One plastic bottle was also seized from the spot, which had completely shrinked on account of heat by which the kerosene oil like liquid was put on the injured and they were put on fire. From the place in a room, one iron stove was also seized. Thereafter, accused Pammi @ Heera, Suresh, Bintu were apprehended from their houses on the identification of FIR No. : 1196/07, PS : Sultan Puri Page 3 of 66 -4- eye witness Shanti Devi. They made disclosure statements. The danda, however, could not be traced.
5. On 21.07.2007, an information was received that the injured Kamla has expired in the hospital. Her postmortem was got conducted. Scalp hair of the deceased was taken and sent for forensic examination. Thereafter, on 23.07.2007, accused Raju and Santosh Kumari were arrested. Raju made disclosure statement and Raju got recovered one danda from C-9 Block, Sultan Puri in front of DDA Park with a cloth. The postmortem gave the cause of death due to burn injury. Injuries were antemortem and fresh in duration. It was concluded that the accused persons shown in coloumn No.3 and complainant shown in column No.1 were from the same family and Bahadur and Babu Lal are brothers. Both the family were living nearby and there was enmity going between them. Since, the mother of accused persons had expired, thereafter wife of Pammi @ Heera also expired and they were blaming of their death on their real aunt (chachi) Smt. Shanti Devi and her sister Kamla Devi, who were both sisters and were living in the same street opposite to each other. They put blame on Shanti and Kamla that they used to do black magic, which has resulted into the death of their mother and wife and they wanted to take revenge from them and used to say that they will kill all the sisters and thereafter made a common intention to put them on fire.
6. After completion of the investigation, accused was charge sheeted u/s 452/307/302/34 IPC.
FIR No. : 1196/07, PS : Sultan Puri Page 4 of 66 -5-7. After supplying the necessary copies to the accused, the case was committed to the court of session vide order dated 30.11.2007 by Ld. Metropolitan Magistrate.
8. My Ld. Predecessor, after finding prima-facie case, charged all the accused persons for offence punishable U/s 452/34, 307/34, 302/34 IPC vide order dt. 21.05.2008, to which, they plead not guilty and claim trial.
9. The prosecution in support of their case examined as many as twenty four (24) witnesses :-
10. The prosecution examined following material witnesses :-
i. PW-1 Smt. Shanti Devi, the complainant and injured who proved her complaint, Ex.PW1/A. ii. PW-4 Pooja, eye witness and injured, daughter of deceased.
iii. PW-10 Sohan Lal, who heard the noise of crying and gave call to the police at 100 number. However, he did not support the prosecution case in the cross-
examination and he was re-examined by the
prosecutor.
iv. PW-11 Ms. Meenu, the eye witness and daughter of complainant.
11. The prosecution also examined following formal witnesses :-
i. PW-2 SI Manohar Lal, who prepared the scaled site FIR No. : 1196/07, PS : Sultan Puri Page 5 of 66 -6- plan, Ex.PW2/A. ii. PW-3 Ct. Raj Rishi, who was the duty officer and recorded the DD, regarding the deceased expired in the hospital, Ex.PW3/A. iii. PW-5 Madan Lal, who identified the dead body of his wife and proved his statement Ex.PW5/A and receipt of handing over the dead body Ex.PW5/B. iv. PW-6 Amit, son of injured Shanti Devi, who removed the injured to the hospital.
v. PW-7 ASI Ramesh Chander, who was photographer and who took the photographs Ex.PW7/1 to 8 and negatives are Ex.PW7/1A to 8A.
vi. PW-8 Dr. Brijesh Singh, who examined the injured Kamla and Shanti and proved MLC Ex.PW8/A (Kamla) and Ex.PW8/B (Shanti) and also proved the signature of Dr. Anuj, S.R Surgery, Ex.PW5/B. He also proved the MLC of Pooja, Ex.PW8/C. vii.PW-9 Dr. Jayant Kumar Dash, who proved his observation on the MLC of Shanti, Ex.PW8/B. viii.PW-12 SI Suraj Bhan, who was the incharge crime team, who prepared the scene of crime report, Ex.PW12/A. ix. PW-13 Ct. Rajrishi, who was daily diary writer on the day of occurrence and had recorded the information, FIR No. : 1196/07, PS : Sultan Puri Page 6 of 66 -7- Ex.PW13/A. x. PW-14 Dr. J.V. Kiran, who conducted the postmortem on the dead body and opined that death was due to burn injuries and caused by flames of fire and proved his report, Ex.PW14/A. xi. PW-18 HC Ramesh Kumar, the MHC(M), who proved the entries in the register, regarding the case property Ex.PW18/A & Ex.PW18/B, sent the parcels to CFSL and proved the copy of RC Ex.PW18/C. xii.PW-20 HC Satpal, who was the duty officer, who was recorded the FIR Ex.PW20/A. xiii.PW-22 Dr. Mohd. Amir, who prepared the death summary of deceased Ex.PW22/A. xiv.PW-23 Ct. Sushil, who had taken the exhibits to CFSL Gujrat.
xv.PW-24 Sh. A.V. Hingrajia, FSL Ahmdabad, Gujrat, who proved his forensic report Ex.PW24/A and forwarding letter Ex.PW24/B.
12. The prosecution also examined following witnesses of arrest and investigation :
i. PW-15 Ct. Sri Chand, who reached at the spot with the I.O and the witness of arrest of accused Pammi @ Heera, Suresh and Bintoo, Ex.PW15/A to Ex.PW15/C and personal search memos Ex.PW15/D to FIR No. : 1196/07, PS : Sultan Puri Page 7 of 66 -8- Ex.PW15/F. He was declared partly hostile by the prosecutor regarding the seizure of the articles from the spot. He admitted the seizure of match box, burnt sticks, burnt cloth Ex.PW15/H1 to Ex.PW15/H3. Stove was seized vide memo Ex.PW15/H4 and disclosure statement of Pammi @ Heera, Suresh and Bintoo Ex.PW15/J1 to J3.
ii. PW-17 HC Sunil Dutt, who is the witness of arrest of accused Raju and Santosh, Ex.PW17/A & Ex.PW17/B. Personal search of Raju is Ex.PW17/C. Disclosure statements of Santosh & Raju Ex.PW17D & Ex.PW17/E and recovery of danda made by Raju, seizure of the same is Ex.PW17/F. He was also partly declared hostile by the prosecutor regarding the identification of the accused, but on his cross- examination, he admitted the prosecution case.
iii. PW-19 SI Rajesh Kumar, who reached at the spot at the first time, who proved the endorsement on rukka Ex.PW19/A, site plan Ex.PW19/B and seizure of the articles from the spot, Ex.PW19/C. The witness of arrest of accused Pammi @ Heera, Suresh and Bintoo.
Their disclosure statement Ex.PW15/J1 to Ex.PW15/J3. Inquest form Ex.PW19/E. Arrest of accused Raju and Santosh, Ex.PW17/A & Ex.PW17/B. Personal search of accused Raju Ex.PW17/C. Pointing out memo of accused persons Ex.PW19/F, FIR No. : 1196/07, PS : Sultan Puri Page 8 of 66 -9- danda Ex.P1, match box Ex.P3, burnt match sticks are collectively Ex.P4, plastic bottle, Ex.P2, burnt cloth, Ex.P5, stove Ex.P6.
iv. PW-21 Inspector Mohd. Iqbal, who is the subsequent I.O and witness of arrest of Raju and Santosh, who proved the personal search of Santosh Ex.PW21/A in addition to the other memos and witness of recovery of danda at the instance of Raju. He also identified danda Ex.P1 and burnt cloth on the danda Ex.P1A.
13. After conclusion of the trial, statement U/s 313 Cr. PC of accused Pammi and Suresh was recorded by my Ld. Predecessor and statement u/s 313 Cr.PC of remaining accused was recorded by me.
14. Accused Pammi stated that he is innocent and falsely implicated in this case. Complainant was not having good terms with him and his family members and also having previous enmity. Therefore, he and his family members were falsely implicated in this case by the complainant party. He stated that at the time of incident, he was not present at the spot and had gone to market for purchasing the medicines for him, as he is suffering from serious heart ailment.
15. Similarly accused Suresh stated that he is innocent and falsely implicated in this case by the complainant party, due to previous enmity between them and the complainant party. He also stated that at the time of incident, he was not present at his FIR No. : 1196/07, PS : Sultan Puri Page 9 of 66 -10- house and had gone to the shop of Sohan Lal for whitewashing alongwith Bintu (accused) and after hearing the noise of people, he alongwith Sohan Lal and Bintu rushed to the spot. Accused Pintu @ Bintu similarly stated on the line of statement of his brother Suresh.
16. Accused Santosh stated that she is innocent and was doing the work on labour basis in cloth Katran Market and getting Rs.50/- per day. She was employed with Shri Rakesh Kumar who was having his work at Mangolpuri and Sultanpuri. Her working hours were from 9:00 a.m. to 6:00 p.m. and on that day she was at her work place till 6:00 p.m. and when she came to her house she came to know that her brothers have been arrested by the police and she went to make enquiry at the PS Sultanpuri and came to know that her brothers have been sent to Tihar Jail and at the PS her chachi (aunt) Shanti saw her and threatened her that she will also get her sent to Tihar Jail.
17. Accused Raju also stated that he is innocent and falsely implicated in this case and on the day of incident, he had gone to the market, as he was doing work of making artificial jewellery by purchasing different parts of jewellery from Kinari Bazar Market, Chandni Chowk along with his partner Bhupender. They remained in the market from 2:00 p.m to 7:00 p.m on the day of incident. After that he took a bus for his residence and when he reached at his house at 8:00 p.m, he came to know about the incident and thereafter he straight way went to the PS, where his sister met me, who was weeping at FIR No. : 1196/07, PS : Sultan Puri Page 10 of 66 -11- that time and on his asking, she told that my other brothers have already been caught by the police and for that she was weeping and the police officials told him in the PS that they should come on 23.07.2007 to meet his brothers. Thereafter, he alongwith his sister Santosh went to his house. Thereafter, when they went to PS on 23.07.2007 to meet my brothers, I along with my sister were arrested by the police and were produced in the court and thereafter sent to J.C. He was falsely implicated in this case.
18. Initially all accused stated that they would lead evidence in their defence, but later on chose not to lead defence evidence.
19. I have heard Sh. A. K. Srivastava, Ld. Addl. PP for the state and Sh. J. S. Khuswaha, Advocate for accused persons. I have gone through the record.
20. PW-1 Smt. Shanti Devi, who is herself victim of burn, has been examined and deposed that Kamla Devi (deceased) was her sister who was living at H. No. 261 in front of her house. Pammi @ Heera, Suresh, Raju, Bintoo are sons of her jeth (elder brother-in-law) Bahadur Singh and they are living in the house near (sic) to her sister's house and in front of her house. Santosh is their sister who is also living with them. She stated that on 20.07.2007, it was Friday and she alongwith her sister Kamla Devi was sitting near the door of the exterior room of her (witness) house and it was around 6:00 p.m. they both were talking to each other and their face was towards their house. At FIR No. : 1196/07, PS : Sultan Puri Page 11 of 66 -12- that time Suresh, Raju and Santosh came from their back side and caught her and Kamla and Pami was having a kerosene oil gallon which was cut from above in his hand and Bintu was having a danda in his hand on which cloth was wrapped around and Pammi @ Hira threw kerosene oil on both of them and Bintoo put them on fire with danda which was already lit and they both got inflamed. She stated that her sister fell down and she (witness) was under the flames. Her daughter Pooja alongwith her niece Meena came outside to save them and when they tried to put off the fire, all the accused persons shouted that the girls be also put to fire. She raised noise. Crowd (gathered) (sic) there. All the accused persons ran from there. Her sister expired. She was also taken to Sanjay Gandhi Hospital where her statement was recorded.
21. PW-4 Pooja daughter of deceased Kamla testified that on 20.07.2007, she along with her cousin Meenu were present inside their house and in the court yard her mother and her maushi Shanti Devi were sitting and were chatting. She further stated that all of sudden, accused Pammi, Raju, Suresh, Binto and Ms. Santosh entered their house, and accused Pammi was having a plastic cane in his hand, accused Binto was having danda, having a cloth wrapped on its one end and accused Santosh and accused Suresh caught hold her mother Kamla Devi and accused Raju caught hold her maushi Shanti Devi. Accused Pammi poured the kerosene oil from the cane on her mother Kamla Devi and her maushi Shanti Devi and accused FIR No. : 1196/07, PS : Sultan Puri Page 12 of 66 -13- Binto, who was having danda set on fire her mother and her maushi by lighting the danda, which was wrapped with a piece of cloth. Her mother and maushi raised an alarm and then they both i.e. she and Meenu rushed towards her mother and her maushi. The accused persons exhorted that let they both (she and Meenu) be set on fire. Accused Binto also hit on his head with the danda, which was having fire on its one end and the fire also fell on her hand. A crowd also gathered. Her mother could not speak anything due to fire and the accused persons ran away from the spot. Her mother and maushi were shifted to hospital. She stated that her mother was later on shifted to JPN Hospital.
22. PW-12 Ms. Meenu testified that Shanti Devi is her mother and deceased Kamla Devi was her mausi. Bahadur Singh was her Tau Ji (uncle) and accused Pammi, Suresh, Binto and Raju are sons of her Tau Bahadur Singh. Accused Santosh Kumari is daughter of her Tau Bahadur Singh. She stated that their house is situated in front of her mausi in the same gali and house of accused persons is adjacent to the house of my mausi. After the death of wife of Pammi @ Hira Lal, the family of Hira Lal started accusing her mother and mausi responsible for her death by witchcraft. Even at the time of death of mother of Pammi @ Hira Lal, all the accused started accusing her mother and mausi responsible for her death by witchcraft.
23. She further stated that on 20.07.2007, at about 6:00 p.m, she along with her cousin Pooja were present in the inner room of FIR No. : 1196/07, PS : Sultan Puri Page 13 of 66 -14- their (witness) house, bearing No. C9/292, Sultan Puri and were studying there. Pooja is daughter of her deceased mausi, namely, Kamla. Her mother Shanti Devi and her mausi Kamla Devi (deceased) were present in her house at C9/292, Sultan Puri and they were sitting in the other room. All the five accused persons came into their house and at that time, accused Pammi was having one plastic cane/gallon and accused Binto was having a small danda in his hand and accused Pammi poured the oil from plastic cane/gallon on her mother and mausi and accused Binto by lighting up the danda with the match stick and set them on fire. She stated that accused Raju had caught hold her mother and accused Santosh and Suresh had caught hold of her mausi. She stated that she and her cousin sister Pooja started crying. At that time, accused Pammi @ Hira Lal, Binto, Suresh, Santosh and Raju, all saying that they be also set on fire. Accused Binto also hit her cousin sister Pooja on her head with the same danda, which was having fire on it, and all the other accused persons also rushed towards them. She stated that she became terrified and fainted.
24. PW-10 Sohan Lal is first the informant to the police and made call at 100 number. He testified that he is having jewellery shop at the said address i.e. C9/246, Sultanpuri, Delhi and on 20.07.2007, he was present at his abovesaid address and at about 6:00 p.m. he heard a noise of crying from the gali, he came and saw that Shanti was crying as she was in burnt condition in the gali and he also saw Kamla, who was completely burnt in the FIR No. : 1196/07, PS : Sultan Puri Page 14 of 66 -15- house of Kamla i.e. C9/292. He stated that he made a call at 100 number from his phone no. 25470102. Shanti went to the hospital. Kamla was also taken to the hospital.
25. PW-6 Amit testified that on 20.07.2007, he was present in the DDA Market, C-9, Sultanpuri and someone told him that his mother had been burnt by setting her on fire. He immediately rushed to his house. His mausi namely Kamla was lying in burnt condition on the ground, her clothes were also burnt. His mother, namely Shanti Devi was also present there and she had also sustained burn injuries on her arms, face, chest, legs and other places of her body. He rushed to bring the TSR and lifted her mausi Kamla in his arms and took her to SGM Hospital and her mother followed her on a rickshaw to the hospital. Thereafter her mausi Kamla was given treatment at SGM Hospital for almost half an hour and after stablising her, she was referred to LNJP Hospital for further management and later on, she expired on the same night.
26. PW-8 Dr. Brijesh Singh testified that on 20.07.2007, at about 6:45 p.m. one injured namely Kamla was brought to the hospital in burnt condition and he medically examiner her. He stated that she was not able to speak due to burns and having almost 100 per cent burns, superficial to deep. He prepared MLC. The patient was referred to S.R. Surgery and from there she was referred to LNJP Hospital. He also stated that on the same day, he also examined Shanti who was having burns. She was fit for statement and there were near about 25 per cent burns on her FIR No. : 1196/07, PS : Sultan Puri Page 15 of 66 -16- right hand, right side of the face and right lower limb below knee, left hand and forearm and right side of back. He also prepared the MLC. She was also referred to S. R. Surgery and from there she was referred to LNJP Hospital. On the same day, he also examined Pooja and prepared MLC. There was superficial burns on left hand and thenar area and after dressing and first aid she was discharged.
27. PW-9 Dr. Jayant Kumar Dash given nature of injury from the MLC of Shanti as grievous.
28. PW-12 SI Suraj Bhan deposed that on 20.07.2007 he was posted as In-charge Crime Mobile Team and on that day at about 6:55 p.m. on the receipt of message, he alongwith his team reached at C9/292, Sultanpuri, Delhi. He inspected the spot. One stove, burnt clothes, one plastic bottle, match box and burnt match sticks were found on the spot. The spot was got photographed and he prepared scene of crime report.
29. PW-7 ASI Ramesh deposed that on 20.07.2007 he was posted as photographer with Mobile Crime Team, North West District and alongwith team reached at premises no. C9/292, Sultanpuri, Delhi and took photographs of scene of crime and proved the same as Ex.PW7/1 to 8 and its negatives as Ex.PW7/1A to 8A.
30. PW-14 Dr. J. V. Kiran conducted the postmortem on the dead body of deceased and opined that all injuries were antemortem and fresh in duration and were caused by flames of fire and death was due to burn injuries.
FIR No. : 1196/07, PS : Sultan Puri Page 16 of 66 -17-31. PW-19 SI Rajesh Kumar testified that on 20.07.2007, at about 6:25 p.m. he received DD No. 56D and thereafter he alongwith Ct. Shree Chand reached at the place of incident i.e. C-9/292, Sultanpuri, Delhi. In the said house, in a room of ground floor, he found burnt clothes, match sticks, match box, one stove and one burnt plastic bottle. He came to know that the injured had been shifted to the SGM Hospital. He recorded statement of Shanti in the hospital. Thereafter he lifted the exhibits from the spot.
32. Ld. Defence Counsel submitted that there are material inconsistency in the testimony of three alleged eye witnesses and there is dispute regarding place of occurrence. Further it is submitted that witnesses are inconsistent with respect to the fact whether it was kerosene bottle or can or gallon by which the kerosene was poured. Further, the girls stated that they were sitting in the interior room and therefore they could not have told that who had done what ? Further, the witnesses have stated that they were not using any kerosene stove and they were using gas cylinder whereas a kerosene stove was found at the spot. It is also submitted that alleged bottle recovered from the spot is small piece of plastic and recovered danda on which allegedly the cloth was wrapped and was lit and set them on fire when recovered had no burn mark on the top of its head.
33. Ld. Defence counsel cited various judgments in support of the submisions. Let us deal with judgments firstly. In State of H.P v. Sukhvinder Singh, 2004(2) Crimes 22 (SC), the Hon'ble FIR No. : 1196/07, PS : Sultan Puri Page 17 of 66 -18- Supreme Court in the said judgment held that when there are contradictions and omissions of serious nature casting doubt on prosecution case, conviction could not be sustained. In Ajay Goswami v. State 2011(2) JCC 1279, a judgment of D.B of Hon'ble Delhi High Court, if the discrepancies are not minor or inconsequential, they strike at the root of the prosecution allegations. In V.N. Ratheesh v. State of Kerala 2006(3) JCC 1305, judgment of D.B of Hon'ble Supreme Court, this judgment is, however, not relevant for our purpose as in the said judgment relates to the principle to be followed by Appellate Court while considering the appeal against acquittal. In State v. Kuldeep Kumar, 2011(3) JCC 1924, judgment of D.B of Hon'ble Delhi High Court, where the Hon'ble High Court held that prosecution has to prove every fact and circumstance beyond reasonable doubt to establish the guilt of accused. In Sonu Arora v. State, 2010 VII AD (DELHI) 497, a judgment of D.B of Hon'ble Delhi High Court wherein it was held that where contradiction relates to main incident forming core part of his testimony, that could depending upon nature of contradiction and other facts and circumstances of case, seriously affect credibility and truthfulness of witness. In Deepak v. State, 2011 (3) JCC 2321, judgment of D.B of Hon'ble Delhi High Court of Delhi, this judgment however is not applicable to the facts of the present case as in the said case eye witness of the prosecution have not supported the case of the prosecution in any manner and it was held that in the absence of material evidence on record, evidence regarding FIR No. : 1196/07, PS : Sultan Puri Page 18 of 66 -19- motive, name of appellant coming in PCR is not sufficient to convict. It was also held that the recovery effected prior to the disclosure statement is not admissible in evidence. Although, there is no quarrel to the legal proposition, but the same are not applicable to the facts of the present case, as in the present case injured was the eye witness and have supported the prosecution, further recovery of danda had taken place subsequent to the disclosure. In Bhimappa Chandappa Hosamani & Ors v. State of Karnataka, 2006(3) JCC 1670, a judgment of Hon'ble Supreme Court, in the said case it was held that convict on the basis of testimony of a single eye witness may be made but while doing so court must be satisfied that testimony of such eye witness is of such sterling quality that court finds it safe to base conviction, but it is also not applicable to the facts in hand. In Suresh Kumar & Ors v. State, 2011(1) JCC 164, judgment of D.B of Hon'ble Delhi High Court of Delhi, this judgment is also not applicable to the fact of the present case, as in the said case one accused had only made an exhortation and hence it was held that they are entitled to be acquittal. However, in the present case, it is not exhortation, but the actual overt act of holding the deceased, while the other poured the kerosene oil and fourth one put on fire. In Krishna v. The State (N.C.T of Delhi), judgment of Hon'ble Delhi High Court of Delhi, it was held that in case of testimony of interested witness, the evidence of a witness related to the deceased cannot be discarded on the sole ground of relationship. However, testimony of such witness should be scrutinised carefully and FIR No. : 1196/07, PS : Sultan Puri Page 19 of 66 -20- some corroboration should be found from the other material on record. There is no ground to legal proposition. In Sunil v. State of Maharashtra, 2008(4) JCC 2767, judgment of Hon'ble Supreme Court, in the said case role attributed to the appellant was that he caught hold of the deceased while facilitating the assault by others. However, the evidence of witnesses was not establish the presence of appellant at the scene of occurrence, hence the appeal was allowed. In the said case the presence of the appellant was not established from the testimony of two witnesses i.e the father of the deceased and the person in front of whose house the occurrence took place. Since his presence at the spot was not established. He was acquitted of the charges. The same is not applicable to the facts of the present case, as the witness in this case are injured themselves. In Jitender Kumar v. State NCT of Delhi, 2009(1) JCC 491, judgment of Hon'ble Delhi High Court of Delhi, in the said case deceased was married . She suffered burn injury in the kitchen at her matrimonial home and was rushed to the hospital by her husband and neighbourer. She was attended to by the doctor, who recorded her physical condition in the MLC that she had sustained 70% burn injury on the body. Bhupender, her husband had also sustained injury. He was also attended by the doctor and found 6% wounds on the body. She died in the hospital. After about 3 months in the said case deceased had made the statement that her mother-in-law poured the kerosene oil over her body. The clothes, which she was wearing at the time, when she sustained burn injury were taken into FIR No. : 1196/07, PS : Sultan Puri Page 20 of 66 -21- possession by the doctor, which were seized, but there was lack of kerosene residue in the FSL. The match sticks lifted from the spot also did not have the kerosene and hence it was not established whether the kerosene was used in this case or not? However, the said judgment is distinguishable on facts from the cited judgment as in the present case chemical analysis the kerosene was found on match sticks, burnt clothe, burn plastic material bottle and hair scalp. In Kalyan Singh v. State of Madhya Pradesh, 2007(1) JCC 666, judgment of Hon'ble Supreme Court, this was an appeal against the order of acquittal, where the trial court gave benefit of doubt on the basis of enmity between the prosecution witnesses and the accused persons, who had given exhortation and the court held that if two views are possible, the appellate court shall not ordinarily interfere in the judgment of the acquittal. There is no quarrel to the legal proposition. In State of Orissa v. Babaji Charan Mohanty & Anr., 2003(3) Crimes 265(SC), judgment of Hon'ble Supreme Court, in the said case the conviction was based on the testimony of one eye witness. However, in appeal the Hon'ble High Court acquitted. On the appeal against acquittal when the testimony of the said witness was tested on the probability, it was found doubtful whether she had seen the two accused injuring her husband with deadly weapon. The first sign of attack she got was the alarm raised by her husband from the bedroom which was not too close to the kitchen where she was sitting. The bed room door was closed from inside, therefore it was difficult to believe. She distinctly heard the FIR No. : 1196/07, PS : Sultan Puri Page 21 of 66 -22- voice of her husband questioning as to why he was assaulting. She could have heard the cries of the deceased but not the exact words said to have been uttered by the deceased. Then comes the version of unchaining the door after resisting the onslaught of two ladies, who according to her gagged her mouth and commanded her not to shout. To wriggle out of the hold of the two ladies and to unchain the door by inserting her hand through the door gap was indeed a difficult task. How could she come out of the kitchen and on account of these circumstances her testimony was found to be untrustworthy. The judgment is not applicable to the facts of the present case and is distinguishable. In State of Rajasthan v. Rajaram, 2003(3) Crimes 346(SC), a judgment of Apex Court, in which it was held if two views are possible on evidence adduced in the case, one pointing to guilt of accused and other to his innocence, view which is favourable to the accused should be accepted. There is no quarrel to the legal proposition. In Munna Lal v. State, 1997 JCC 467, judgment of D. B of Hon'ble Delhi High Court, in the said case deceased said to have been burnt with kerosene by the appellant and the prosecution case was that injured himself said to stranger and disclosed that appellant and his brother had burnt him. The evidence of PW2 was found to be doubtful, and therefore, benefit of doubt was given. The judgment was also on its own facts and not applicable to the present case. In Kishan Pal v. State, 2004 (2) JCC 1149, a judgment of Hon'ble Delhi High Court, in the said case, it was found that three eye witnesses, FIR No. : 1196/07, PS : Sultan Puri Page 22 of 66 -23- which were relied upon by the trial court, but not reliable. The eye witness in the first statement given the appellant's name as accused, but in supplementary added the name of two other persons. In the MLC history for injuries given to the doctor by the victim attendant was a fall from some height but later on they changed their version by saying that the victim was beaten by rods and stones, but their names were not disclosed. It was held that the fact of unknown disclosure of the name of the assailant by witnesses at the time of their admission in the hospital to be unnatural conduct and the accused is entitled to the benefit of doubt. In the said case one person was attacked and there were other persons have shows themselves to be the eye witnesses and they had given the initial version fall from the height and later on change the version and thereafter again in the supplementary statement added more name of the accused, therefore they were found not reliable. However in the present case, the same is not applicable as the complainant herself is the injured and gave one version only.
34. The cited judgments mostly reiterates the well established principle of criminal jurisprudence i.e the prosecution has to prove their case beyond reasonable doubt. If, two views are possible, the view favourable to the accused must be accepted. The testimony of the witness, who is inimical must be scrutinized properly. There is no quarrel to the well settled legal proposition. It is also well settled that in the criminal law, there cannot be a precedent as facts and the circumstances of FIR No. : 1196/07, PS : Sultan Puri Page 23 of 66 -24- each case are different. In the light of above legal proposition the evidence of the witnesses would be appreciated.
35. In the light of the legal principles culled out from the judgments. Let's proceed to appreciate the evidence. Before dealing with the arguments of Ld. Defence Counsel, it is necessary to see as to what is place of occurrence. All the persons involved in the present occurrence i.e. accused and injured are living in the close vicinity and are closely related. They are living in the slum area having houses built in the area measuring 25 sq. yards, which is thickly populated and congested. The first information recorded vide DD No. 56 A at the police station which is Ex.PW-13/A is regarding information received through wireless that at H. No. C9/261, there is fire in the house. PW Sohan is first informant. He is stated that house no. 263 Block-C, Sultapuri fire in the house and lady inside the house. As per crime team report Ex.PW12/A, the place of offence is shown as C-9/292, Sultanpuri. Place from where the exhibits were located is also C-9/292. The Draftsman who prepared scaled site plan also give the house No. C-9/292, as place of occurrence.
36. PW Shanti Devi claims that she and her sister Kamla were inside her house i.e. C-9/292. PW-4 Pooja, however, stated that she alongwith Meenu were present inside their house and her mother and mausi were sitting in the court yard and were chatting. She is resident of C-9/261. PW-11 Meenu however stated that they were present inside the house i.e. C-9/292 in the FIR No. : 1196/07, PS : Sultan Puri Page 24 of 66 -25- inner room. Therefore except Pooja, all of them had stated place of occurrence C-9/292. However, if one reads carefully, Pooja states that they were present inside their house and Shanti and deceased Kamla were sitting in the courtyard in the house and were chatting. In her cross-examination also place of occurrence is also not disputed.
37. PW-10 in his examination has categorically stated that the house number where he saw Kamla in burnt condition was in the house of Kamla i.e. C9/292. However, in his cross-examination he admitted that he had stated H. No. 263, Blcok-C9, Sultanpuri in his call made to the police. He stated he knows Kamla whose H. No. is 261, C9-Blcok, Sultanpuri which is in the same lane where the H. No. 263 is situated. However, no suggestion was given to this witness that in fact the place of occurrence is H. No. 263 instead of H. No. C2-292. It only appears to be wrongly stated to the PCR and therefore there is no confusion in respect of house number and the place of occurrence.
38. Now coming to the submission regarding bottle found from the spot. On the request of Ld. Defence Counsel at the time of hearing of the final arguments the plastic bottle was called and in a parcel one plastic bottle was found, which contained the burnt plastic material stated to be plastic bottle, which has been reduced to small size on account of heat and burn, which is less than 6 inches. In the photographs proved by the prosecution, the same plastic material is seen. As regards the danda FIR No. : 1196/07, PS : Sultan Puri Page 25 of 66 -26- recovered, the burnt clothe wrapped with danda recovered alongwith danda was having 3-4 burn marks and remaining area is intact.
39. The plastic material was sent to FSL. FSL has given the report in respect of the exhibit mark 3 said to be burnt plastic bottle that petroleum hydrocarbons of kerosene were found to be positive.
40. Ld. Defence Counsel has pointed out that PW-1 has stated that it was oil gallon which was cut from above wherein other witnesses have given different version. PW-1 stated that Pammi was having kerosene oil gallon and it was cut from above. She was confronted with the portion of her statement wherein instead of kerosene oil gallon words 'mitti ke tel jaisi bottle' is mentioned and she stated that she does not remember whether she has stated to the police that kerosene gallon was cut from the top side. PW Pooja had stated that it was plastic can. PW Meenu stated that Pammi poured the kerosene oil from plastic cane/gallon. The perception of one witness differs from other. If one say plastic cut from above, one may call it plastic bottle, one may all it gallon and one may call it can. It does not make much of difference. As long as description of the same is of container/object in which kerosene was contained. All of them started that it was plastic thing and recovered article from the spot is also one material which on account of heat and fire squeezed to small piece of plastic. It is common knowledge that if plastic is put to fire, it shrinks into small piece.
FIR No. : 1196/07, PS : Sultan Puri Page 26 of 66 -27-However, presence of kerosene was established thereby in the chemical analysis.
41. Ld. Defence Counsel submitted that there was enmity between two parties and therefore they tried to rope all the family members in order to take revenge.
42. PW-6 in his examination stated that there was no such serious enmity between them and stated that there was petty issue between them as some days before the incident, the wife of accused Pammi @ Hira had expired and the said accused held his mother and his mausi responsible for the death of his wife and used to say that his mother and mausi had done some jaado tona (black magic) and before this, the mother of accused Pammi @ Hira had expired. PW-12 Meenu also stated that after the death of wife of Pammi @ Hira Lal, the family of Hira Lal started accusing her mother and mausi responsible for her death by witchcraft. She also stated that even at the time of death of mother of Pammi @ Hira Lal, all the accused started accusing her mother and mausi responsible for her death by witchcraft. Witnesses have also stated in their cross-examination that they were not on talking terms with the accused persons. Therefore there is admitted enmity between them, although, they were closely related to each other. Therefore in such circumstance the evidence of the witnesses have to be carefully scrutinized.
43. Before appreciating evidence of three material witnesses, it is worthwhile to discuss testimony of PW-10 Sohan Lal who had FIR No. : 1196/07, PS : Sultan Puri Page 27 of 66 -28- deposed in favour of the accused persons and was also re- examined by the prosecutor. He in his cross-examination on behalf of accused Santosh stated that on the date of incident white washing was going on in his shop and white washing work was being done by accused Suresh and Binto. He admitted the suggestion that they followed him from the shop to the spot. It was objected to by Ld. Addl. PP. He stated that the distance between his shop and the spot is about 45 yards. He did not see Santosh there. He did not see the family members of Balmiki, who is residing in H. No. 293 and H.No.291 is locked. In his cross cross-examination on behalf of other accused, he stated that he alone ran towards the spot and following him were accused Suresh and Binto and they were doing white washing in his shop. He did not notice, whether Suresh and Binto helped in dousing the fire of the said lady. He also stated that he did not notice the accused Pammi, Raju and Santosh at the spot. He was re-examined by the prosecutor. He stated he is running shop of jewellery for the last 13-14 years. He does not have any Sale Tax/Vat number, nor he pay any income tax. He do not have any licence for running the said shop and voluntarily stated that he is doing labour job. The said shop is in residential area. He admitted that he had not stated to the police that accused Binto and Suresh followed him. He also stated that whatever was asked from him by the police on that day, he had told correctly to the police. He denied the suggestion that during his cross-examination he had made a false statement at the instance of the accused Pammi, Raju, Santosh, Binto and FIR No. : 1196/07, PS : Sultan Puri Page 28 of 66 -29- Suresh.
44. This witness is, therefore, firstly not relied upon by he prosecution. Secondly he had not stated this fact to the police that accused Binto and Suresh followed him. Therefore not much reliance can be placed at this stage on his statement. He exenorate Bintu and Suresh and also claims that he did not see accused Pammi, Raju and Santosh. He himself in his cross-examination stated that it took five minutes to reach at the spot after hearing the cries. Therefore even if he states that other three accused persons were not present, they would have fled away from the spot before his arrival.
45. PW-1 Shanti Devi in her cross-examination stated that she was not in proper senses at SGM Hospital and had also stated to the doctor about the assailants and the case history. She was unconscious at that time and she cannot tell what proceedings were carried on by the doctor at that time. She could not tell mode of transportation by which she was shifted to LNJP Hospital as she was unconscious. She regained consciousness in the morning on 21.07.2007. When she regained her consciousness after 12-13 days, police visited her at her house. Police also recorded statement of her husband on that day and her statement in the year 2008. She had also stated about the details of the occurrence to the police in the SGM Hospital while she was in semi-conscious condition (behoshi ki halat main). She has stated each detail of the occurrence, happened with her to the police. In LNJP Hospital, the doctor had FIR No. : 1196/07, PS : Sultan Puri Page 29 of 66 -30- enquired as to how it happened and she told the same. She stated that she had not stated to the doctor at LNJP Hospital that her sister namely Kamla was cooking food on kerosene stove in her home. She denied the suggestion that she and her sister received burn injuries accidently when the kerosene oil spilt from the stove which she was using in cooking food in her house i.e. C9/261. In her further cross-examination she stated that the house where she is living is built in an area of 25 x 12 feet and voluntarily stated that there is one room in front and one room on back. She stated that there is no courtyard in front of the room and the room is on the road only. There is no (sic) space between the room and road. At that time her daughter Pooja was studying in 12 th class and at the time of incident Pooja and Meena were sitting in inner room of her house and both were studying. The house opposite to her house is that of deceased sister Kamla. She stated no neighbour at the time of incident came inside her house, rather she went outside her house in burning condition and was saying bachao-bachao. In reply to the question that Pooja and Meenu had not reached the place where she was standing in burning condition in the gali, she stated that Pooja and Meenu were inside the house. She stated that she does not remember whether she told to the police that one danda was already lit with fire.
46. As per MLC of Shanti, she was conscious and oriented when she was brought to the Sanjay Gandhi Memorial Hospital and she was fit for statement. However, no history is recorded by FIR No. : 1196/07, PS : Sultan Puri Page 30 of 66 -31- the doctor except history of burn. Death history of Kamla Ex.PW-22/A finds mentioned that alleged history of homicidal chemical and flame burn by patient sister Shanti and according to her the patient was cooking food on kerosene stove in her home and suddenly son of her brother-in-law rushed in with container of acid and kerosene and they first poured acid on her and then kerosene oil and ignite kerosene oil, her cloth caught fire and patient sustained chemical and flame burns. Therefor the history with respect to Kamla given by Shanti. Even in the MLC of Kamla Ex.PW-8/A, the history of alleged burn was given by sister Shanti which mentions that alleged history of homicidal burn.
47. The fact that PW Shanti stated that she was not conscious when her statement was recorded, is therefore is incorrect. Rather she was conscious and even she told the history to the doctor with respect to injury suffered by her deceased sister Kamla. Further the terminology 'consciousness' and 'unconsciousness' differs in different educational background. Medical consciousness and unconsciousness is different from the consciousness and unconscious otherwise perceived by individual. The momentry loosing senses by way of burning may be termed as unconsciousness by a person whereas such person would be fully conscious in the medical terminology. Therefore 'Shanti was fully conscious' recorded in the MLC. In her cross-examination she was put a specific question that whether she uses kerosene stove in her house to which she categorically FIR No. : 1196/07, PS : Sultan Puri Page 31 of 66 -32- denied that she does not use kerosene stove as they were having gas cylinder. But the fact of the matter is that kerosene stove was found at the place of occurrence which was seized. However, the question would arise whether Kamla had sustained injury on account of spilling of kerosene oil from stove or otherwise ? The witness although stated lie on this aspect, yet the fact remains that she had stated that her sister was cooking food on the stove but she does not say on account of spilling of kerosene oil from stove she had sustained burn injuries. Even otherwise, surprisingly when the kerosene stove was seized from the spot and was sent to FSL for examination and as per exhibit received at FSL an iron stove containing 500 ml blue colour liquid and as per chemical analysis the same was kerosene oil. From the size of the stove one would find that same would not contain more than 500 ml and therefore no kerosene could have been spilled from the stove in question.
48. Now as regards contention of Ld. Counsel for accused as to how Pooja and Meenu had seen the incident as they were sitting inside the room and according to PW Shanti she was burning in the street and they were inside the house. PW-11 Meenu in her cross-examination admits that Pooja was studying with her in her house and she used to come to study with her. PW-4 Pooja testified that she was in inner room of her house alongwith Meenu where they were studying. As already observed it was house of Meenu in which they were studying and Meenu has also categorically stated that Pooja used to come to her house to FIR No. : 1196/07, PS : Sultan Puri Page 32 of 66 -33- study with her as she was studying in 11 th class and Meenu was studying in 12 th class. In her cross-examination, Pooja stated taht they were sitting on the bed which was not facing the door and there was a window and the courtyard was properly visible from the bed where they were sitting. Ld. Counsel for the accused submitted that they were sitting in such a position that they would not see out door and therefore they were not in a position to see the incident. The arguments of Ld. Counsel is without any merit as it is house only built in the area measuring 25 sq. yards in which only two rooms are built and one room is on the road itself and other room is inner room. Even a small whisper in outer room would reach to the inner room. PW Pooja herself was burnt when she came out which clearly showed that she was present at the spot and had witnessed the incident. She is injured witness. The testimony of Shanti Devi, Pooja and Meenu are consistent with respect to the presence of all accused persons and in the manner they set Kamla and Shanti on fire and they tried to burn Meenu and Pooja when they tried to douse the fire.
49. Ld. Counsel for accused has also submitted that the place of incident is situated in is thickly populated area and despite the fact that there was other houses adjoining to the house of injured, no public witness has been joined. In her cross-examination, PW Shanti admitted that adjoining to their house, there is house of one Balmiki family and voluntarily stated that it was locked. There is another house on the other FIR No. : 1196/07, PS : Sultan Puri Page 33 of 66 -34- side of her house of Nayak. Pooja also stated in her cross-examination that their house is opposite to the house of Shanti and admitted that on side of house of Shanti Devi, there is house of Nayak and on the other side, there is house is Balmiki. The house-cum-shops of Sohan Lal is situated a little from her house. PW-10 Sohan Lal, who had not supported the prosecution with respect to presence of accused, had however stated in his cross-examination that he did not see family members of Balmiki who is resident of H. No. 293 and house no. 291 is locked. Therefore even this witness has stated that they were not present. This incident was in fact amongst same family members and therefore no neighbour would come forward to give evidence in such cases. Merely because public persons have not been joined, the testimony of otherwise cogent and consistent witnesses cannot be rejected. The testimony of injured Shanti has been corroborated at material particulars by medical evidence and the statement of PW-4 Pooja and PW-11 Meenu.
50. Now coming to the testimony of PW-11 Sohan Lal with respect to Suresh and Binto. He claims in his cross-examination that they were doing white wash work in his jewellery shop and followed him from the shop to the spot. He also denies presence of other accused at the spot. He admits that he had not stated to the police that accused Binto and Suresh followed him. Therefore the testimony of this witness with respect to the fact as to who were present at the spot is not reliable FIR No. : 1196/07, PS : Sultan Puri Page 34 of 66 -35-
51. However, as regards the submission of Ld. Defence counsel that the danda would be burnt on the top of it, if the same is lit to put on fire the other person. The danda was produced in the court during the course of arguments and it was observed that one bamboo stick with one white colour burnt cloth was seized, which was having black mark of apparently of burns on the top of the same on the place from it was cut and there is also one blackening mark on the knot of the bamboo stick. The burnt cloth of white colour, which was allegedly recovered along with the bamboo stick, which was wrapped with it. The cloth was having 3-4 burn marks. The remaining area was intact. I.O was asked to wrap the same in the position in which it was recovered. He tried, but could not wrap the same properly. However, he explained that the cloth was completely burnt on the top and the top portion of the danda was visible and on the sides some portion of the danda was visible. He has also explained that the cloth is one piece cloth. However, it has been cut and due to fire and the middle portion, which was missing, which was in the radios of about 3 inches was completely burn. There are no burn on the knot of the danda. Ld. Defence counsel submitted that if the danda was lit with fire, the top would also have the burn mark.
52. In this case, the kerosene oil was used to burn the deceased and the danda was also put the kerosene on the same to burn it. As per the chemical analysis the petroleum hydrocarbons of kerosene were found on this cloth. The kerosene in its nature is FIR No. : 1196/07, PS : Sultan Puri Page 35 of 66 -36- highly inflammable and it will burn in its own and will not leave any mark on the hard material like danda. The top layer of the cloth was entirely burnt and there were some marks on the body of the danda also. Therefore, it cannot be said that the danda was not put on fire, and therefore, there was no burn marks on the head of the danda. The cloth, which was on the head got burnt because of the kerosene and kerosene by its very nature did not leave any mark on the same, whereas the kerosene was found on the cloth.
53. However, it is to be seen whether the recovery of danda having burn mark with cloth are trustworthy. The prosecution examined PW15 Ct. Sri Chand, who is the witness of recovery of danda at the instance of Pammi @ Heera. He stated in his examination-in-chief that accused Pammi @ Heera disclosed about recovery by him near gandanala and thereafter at his instance, one burn danda was recovered, which was seized. He was however declared hostile by the prosecutor. However, after being cross-examined he admitted the suggestion of the prosecutor. In his cross-examination on behalf of accused he admitted that danda was not burnt on the bony (body) (sic) portion of the danda, but it was burnt on the top portion, which was clearly visible.
54. PW17 HC Sunil Dutt is also the witness of recovery of danda.
He stated that accused Raju disclosed that he can get effected the recovery of danda, used in the crime. He took them to DDA Park and from there he got recovered one danda. The said FIR No. : 1196/07, PS : Sultan Puri Page 36 of 66 -37- danda was burnt on both the side. He also admitted that danda was burnt from top of one side and there was no burn marks on the other side of the danda. He also admitted that the danda was recovered from DDA Park, lying in open place and the said park is accessible to the public at large.
55. PW-19 testified that accused Raju pursuant to the disclosure statement got one danda recovered from one side from C-9 Block, DDA Park, Sultan Puri, and one cloth was affixed on the burnt portion of the danda. He denied that suggestion that the danda Ex.P1 does not contain the burn marks on the top side rather the said marks was of chopping the danda from the top. He admitted that there was no specific marks of identification on the danda. He also admitted that such dandas are easily available everywhere and the danda was lying in an open space but concealed towards the side of the wall of the park. He also admitted that the said park is freely accessible to public persons and anyone can go there.
56. PW-21 Inspector Mohd. Iqbal testified that accused Raju and Santosh were arrested and accused Raju in pursuant to the disclosure statement took them to DDA Park, C-9, Sultanpuri, near ganda nala and got recovered one danda burnt from top. He also admitted that no public person was joined as a witness as no public person were available at that time. He also admits that danda was lying in open space in DDA Park, which is accessible to public.
FIR No. : 1196/07, PS : Sultan Puri Page 37 of 66 -38-57. As per the prosecution case, the danda was recovered at the instance of Raju as per his disclosure statement. According to him he along with Bintoo ran towards Mangol Puri nala and Bintoo gave the danda to him near nala. He threw the same at a vacant place in a park, which he can get recovered. Thereafter, he got the same recovered from C-9 Block, Sultan Puri in front of DDA Park near ganda nala. There are inconsistencies in the testimonies of the witnesses with respect to the place from where the recovery was effected. PW Sri Chand was declared hostile by the prosecutor, but prosecutor had not given any suggestion to this witness that danda was not recovered at the instance of Pami @ Heera, but at the instance of Raju. Therefore, this witness has stated that the danda was recovered at the instance of Pammi @ Heera, whereas the other witnesses claimed that danda was recovered at the instance of Raju. All the witnesses admitted that the place, from where the danda was recovered was open place accessible to the public. The danda was recovered after three days of the incident i.e. on 27.07.2007. Therefore, the recovery of danda at the instance of accused is doubtful.
58. The prosecution has therefore established on record that the accused persons had previous meeting of mind on account of previous enmity and accused Pammi @ Heera poured the kerosene oil on deceased Kamla and Shanti and the accused Suresh, Raju and Santosh Kumari held Kamla from behind and accused Bintoo put her on fire. Therefore, all the accused FIR No. : 1196/07, PS : Sultan Puri Page 38 of 66 -39- persons shared the common intention in the commission of the crime. Deceased Kamla had sustained 90% burn injuries all over her body and from the expansion of burn injuries on her body, the intention of the accused persons can be gathered that they had intention to kill her and as a result of the same she expired. Although, in the postmortem report it is not opined that the injuries are sufficient in the ordinary course of nature to cause death. Yet, from the nature of burns sustained by her all over of her body in the total surface area of the body approximately 90%. One can easily concluded that with such burns on the body are sufficient to cause death. Therefore, offence U/s 302 IPC r/w section 34 IPC is proved against all the accused persons. Further, the nature of injury on the body of Shanti is given as grievous. In the manner they held the deceased and poured the kerosene oil before putting her to fire and the fact that they were inimical to both the sisters and wanted to kill them. Therefore, they had attempted to commit murder of Shanti and offence U/s 307/34 IPC stands proved against all the accused persons. It is also proved by the prosecution that all the accused persons had trespass in the house of Shanti having preparation for causing hurt, thereby offence U/s 452/34 IPC is also proved against the accused persons.
59. Now, coming to the defence of the accused persons. Accused persons have not lead any evidence in their defence. Accused Suresh testified that at the time of incident he was not present at FIR No. : 1196/07, PS : Sultan Puri Page 39 of 66 -40- his house. He had gone to the shop of Sohan Lal for whitewashing alongwith Bintu and after hearing the noise of people, he alongwith Sohan Lal and Bintu rushed to the spot. However, the same is unsubstantiated except testimony of Sohan Lal, who has not been relied upon by the prosecution and found untrustworthy by this court. Therefore, the defence of the accused is not substantiated.
60. Accused Pammi @ Heera stated that the complainant was not having good terms with him and his family and at previous enmity, therefore they falsely implicated him in this case. He was not present at his house and had gone to purchase the medicine, as he was suffering from serious ailment. He had also not lead any evidence to substantiate his defence. Accused Santosh stated that she is doing the work on labour basis in cloth Katran Market and getting Rs. 50/- per day. Her working hours were from 9:00 am to 6:00 p.m and on that day she was at her work place till 6:00 p.m and when she came back to her house, she came to know that her brothers have been arrested by the police. The defence of the present accused is that of alibi. The burden to prove alibi is on the accused, which she has failed to discharge.
61. Accused Raju testified that on the day of incident, he had gone to the market, as he was doing work of making artificial jewellery by purchasing different parts of jewellery from Kinari Bazar Market, Chandni Chowk along with his partner Bhupender. They remained in the market from 2:00 p.m to 7:00 FIR No. : 1196/07, PS : Sultan Puri Page 40 of 66 -41- p.m on the day of incident. After that, he took a bus for his residence and when he reached at his house at 8:00 p.m, he came to know about the incident. The defence of the accused Raju is also that of alibi and he also failed to discharge burden to prove alibi. In the face of clear, cogent and consistent testimony of the prosecution witnesses, the defence of the accused persons does not hold ground. Therefore, as per discussion above, I am of the opinion that the prosecution has succeeded in proving the offences punishable U/s 302/34 IPC, 307/34 IPC and 452/34 IPC against all the accused persons beyond reasonable doubt.
62. Accordingly, as per discussion above, all the accused persons namely Pammi @ Heera, Suresh, Pintu @ Bintu, Raju and Smt. Santosh are convicted for offences punishable U/s 302/34 IPC, 307/34 IPC and 452/34 IPC.
63. Let accused persons be heard on quantum of sentence. Announced in the open court today i.e. on 29.08.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/Delhi 29.08.2012 FIR No. : 1196/07, PS : Sultan Puri Page 41 of 66 -42- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSIONS JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 1196/07 PS : Sultan Puri U/s : 452/307/302/34 IPC Unique Case ID : 02404R0 657472007 ORDER ON SENTENCE - PAMMI @ HEERA 01.09.2012 Pr.: Sh. Anil Kr. Gupta, Ld. Substitute Addl. PP for State.
Convict Pammi @ Heera in j/c with counsel Sh. J. S. Khuswaha.
Heard.
It is submitted that convict is aged about 27 years and is not a previous convict. He is sixth class passed. He has old aged father aged about 65 years to support. He was gainfully employed as sweeper in the shop and is sole bread earner of the family. Further, it is submitted, that this case does not fall in the category of rarest of the rare cases. Therefore, lenient view be taken.
On the other hand, Ld. Substitute Addl. PP for the state submits that the convict be given maximum punishment.
Founding Fathers of the Constitution had vision that ignorance, superstitions and unscientific thinking would be unprogressive in its development. Country would progress on scientific thinking. It was also dreamt that people of the country would be endowed with FIR No. : 1196/07, PS : Sultan Puri Page 42 of 66 -43- scientific temper so as to see reason and logic of their action. However it is not only shocking but also pitiable that the citizen of the country who are living in the capital are still ignorant, superstitious and backward in thinking as they were hundreds of year ago. A woman can kill another by witchcraft is still a strong belief not only in rural India or in the backward area but also in the capital of the country. There is no future of a country where there is lack of education or lack of education which does not develop scientific thinking amongst its people.
In the case in hand, the convicts who were close relative of the deceased, had believed that their mother and wife of convict Pammi @ Heera had died on account of 'witchcraft' or 'black magic' played by unfortunate Kamla deceased and injured Shanti who had no means to reason with them.
The Constitution enjoins every citizen their fundamental duties to develop the scientific temper, humanism and the spirit of inquiry and reform as per Article 51 A sub para (h) of the Constitution of India. As per Article 38 Directive Principles of State Policy, it is directive principles for the governance of the State that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political would be available. The citizen cannot perform their duty to develop scientific temper unless there are conducive atmosphere in the society to do so. The education to the masses is must not only in literal sense but also to educate citizen against falling in the trap of unscientific methods and beliefs which FIR No. : 1196/07, PS : Sultan Puri Page 43 of 66 -44- are dogmatic and orthodox not having any scientific basis. One keeps hearing a woman in the remote area of Bihar, UP and M.P. is killed by the villagers under a belief that she is 'churail' (witch) but similar beliefs being prevalent in the urban society shocks the conscience. Therefore it is necessary for the State to not only provide quality education to its citizen but also education should be such which helps its citizen to perform fundamental duty.
Be that as it may.
The Hon'ble Supreme Court in many cases has reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account FIR No. : 1196/07, PS : Sultan Puri Page 44 of 66 -45- of infatuation.
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In this case the convict has been held guilty for offences punishable u/s 302/34 IPC, 307/34 IPC and 452/34 IPC In order to find out whether the case falls under the category of rarest of the rare cases, mitigating circumstance and aggravating circumstance has to be weighed. In the present case, all the convicts who are close relative had believed that these two women had killed their mother and wife of convict Pammi @ Heera and with belief on account of their backwardness and ignorance they have killed her. Although killing a woman in cruel manner like burning is grave and heinous, yet the mitigating circumstance are their social economic background and lack of education. Therefore this case does not fall under the category of rarest of the rare cases.
Keeping in view the totality of the facts and circumstances of the case and role of the convict, I am of the opinion that ends of justice would met in sentencing the convict to undergo rigorous imprisonment for life for offence punishable U/s 302/34 IPC and fine of Rs.10,000/-. In default of payment of fine, he shall further undergo FIR No. : 1196/07, PS : Sultan Puri Page 45 of 66 -46- rigorous imprisonment for the period of six months.
The convict is further sentenced to undergo rigorous imprisonment for period of five years for offence punishable U/s 307/34 IPC and fine of Rs. 5,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of two months.
The convict is further sentenced to undergo rigorous imprisonment for period of one year for offence punishable U/s 452/34 IPC and fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of fifteen days.
The fine, if recovered, shall be paid as the compensation to the family of the deceased and Shanti in the ratio of 70:30 respectively.
The benefit of Section 428 Cr.P.C be given to the convict.
All the sentences shall run concurrently.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. Document, if any, be returned after cancellation of endorsement, if any. File be consigned to record room.
Announced in the open court today i.e. on 01.09.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 01.09.2012 FIR No. : 1196/07, PS : Sultan Puri Page 46 of 66 -47- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSIONS JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 1196/07 PS : Sultan Puri U/s : 452/307/302/34 IPC Unique Case ID : 02404R0 657472007 ORDER ON SENTENCE - PINTU @ BINTU 01.09.2012 Pr.: Sh. Anil Kr. Gupta, Ld. Substitute Addl. PP for State.
Convict Pintu @ Bintu in j/c with counsel Sh. J. S. Khuswaha.
Heard.
It is submitted that as per convict, he is aged about 22 ½ years, unmarried and is not a previous convict. He has old aged father aged about 65 years to support. He was gainfully employed and was doing the job of whitewash and is sole bread earner of the family. It is also submitted that he is remained in j/c since the date of his arrest. Further, it is submitted, that this case does not fall in the category of rarest of the rare cases. Therefore, lenient view be taken.
On the other hand, Ld. Substitute Addl. PP for the state submits that the convict be given maximum punishment.
Founding Fathers of the Constitution had vision that ignorance, superstitions and unscientific thinking would be unprogressive in its development. Country would progress on scientific thinking. It was also dreamt that people of the country would be endowed with FIR No. : 1196/07, PS : Sultan Puri Page 47 of 66 -48- scientific temper so as to see reason and logic of their action. However it is not only shocking but also pitiable that the citizen of the country who are living in the capital are still ignorant, superstitious and backward in thinking as they were hundreds of year ago. A woman can kill another by witchcraft is still a strong belief not only in rural India or in the backward area but also in the capital of the country. There is no future of a country where there is lack of education or lack of education which does not develop scientific thinking amongst its people.
In the case in hand, the convicts who were close relative of the deceased, had believed that their mother and wife of convict Pammi @ Heera had died on account of 'witchcraft' or 'black magic' played by unfortunate Kamla deceased and injured Shanti who had no means to reason with them.
The Constitution enjoins every citizen their fundamental duties to develop the scientific temper, humanism and the spirit of inquiry and reform as per Article 51 A sub para (h) of the Constitution of India. As per Article 38 Directive Principles of State Policy, it is directive principles for the governance of the State that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political would be available. The citizen cannot perform their duty to develop scientific temper unless there are conducive atmosphere in the society to do so. The education to the masses is must not only in literal sense but also to educate citizen against falling in the trap of unscientific methods and beliefs which FIR No. : 1196/07, PS : Sultan Puri Page 48 of 66 -49- are dogmatic and orthodox not having any scientific basis. One keeps hearing a woman in the remote area of Bihar, UP and M.P. is killed by the villagers under a belief that she is 'churail' (witch) but similar beliefs being prevalent in the urban society shocks the conscience. Therefore it is necessary for the State to not only provide quality education to its citizen but also education should be such which helps its citizen to perform fundamental duty.
Be that as it may.
The Hon'ble Supreme Court in many cases has reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account FIR No. : 1196/07, PS : Sultan Puri Page 49 of 66 -50- of infatuation.
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In this case the convict has been held guilty for offences punishable u/s 302/34 IPC, 307/34 IPC and 452/34 IPC In order to find out whether the case falls under the category of rarest of the rare cases, mitigating circumstance and aggravating circumstance has to be weighed. In the present case, all the convicts who are close relative had believed that these two women had killed their mother and wife of convict Pammi @ Heera and with belief on account of their backwardness and ignorance they have killed her. Although killing a woman in cruel manner like burning is grave and heinous, yet the mitigating circumstance are their social economic background and lack of education. Therefore this case does not fall under the category of rarest of the rare cases.
Keeping in view the totality of the facts and circumstances of the case and role of the convict, I am of the opinion that ends of justice would met in sentencing the convict to undergo rigorous imprisonment for life for offence punishable U/s 302/34 IPC and fine of Rs.10,000/-. In default of payment of fine, he shall further undergo FIR No. : 1196/07, PS : Sultan Puri Page 50 of 66 -51- rigorous imprisonment for the period of six months.
The convict is further sentenced to undergo rigorous imprisonment for period of five years for offence punishable U/s 307/34 IPC and fine of Rs. 5,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of two months.
The convict is further sentenced to undergo rigorous imprisonment for period of one year for offence punishable U/s 452/34 IPC and fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of fifteen days.
The fine, if recovered, shall be paid as the compensation to the family of the deceased and Shanti in the ratio of 70:30 respectively.
The benefit of Section 428 Cr.P.C be given to the convict.
All the sentences shall run concurrently.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. Document, if any, be returned after cancellation of endorsement, if any. File be consigned to record room.
Announced in the open court today i.e. on 01.09.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 01.09.2012 FIR No. : 1196/07, PS : Sultan Puri Page 51 of 66 -52- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSIONS JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 1196/07 PS : Sultan Puri U/s : 452/307/302/34 IPC Unique Case ID : 02404R0 657472007 ORDER ON SENTENCE - RAJU 01.09.2012 Pr.: Sh. Anil Kr. Gupta, Ld. Substitute Addl. PP for State.
Convict Raju in j/c with counsel Sh. J. S. Khuswaha.
Heard.
It is submitted that convict is aged about 31 years, unmarried and is not a previous convict. He has old age father aged about 65 years to support. He was gainfully employed as labour and is sole bread earner of the family. It is also submitted that he remained in j/c since date of his arrest and has passed 12 th class from the jail. Further, it is submitted, that this case does not fall in the category of rarest of the rare cases. Therefore, lenient view be taken.
On the other hand, Ld. Substitute Addl. PP for the state submits that the convict be given maximum punishment.
Founding Fathers of the Constitution had vision that ignorance, superstitions and unscientific thinking would be unprogressive in its development. Country would progress on scientific thinking. It was also dreamt that people of the country would be endowed with FIR No. : 1196/07, PS : Sultan Puri Page 52 of 66 -53- scientific temper so as to see reason and logic of their action. However it is not only shocking but also pitiable that the citizen of the country who are living in the capital are still ignorant, superstitious and backward in thinking as they were hundreds of year ago. A woman can kill another by witchcraft is still a strong belief not only in rural India or in the backward area but also in the capital of the country. There is no future of a country where there is lack of education or lack of education which does not develop scientific thinking amongst its people.
In the case in hand, the convicts who were close relative of the deceased, had believed that their mother and wife of convict Pammi @ Heera had died on account of 'witchcraft' or 'black magic' played by unfortunate Kamla deceased and injured Shanti who had no means to reason with them.
The Constitution enjoins every citizen their fundamental duties to develop the scientific temper, humanism and the spirit of inquiry and reform as per Article 51 A sub para (h) of the Constitution of India. As per Article 38 Directive Principles of State Policy, it is directive principles for the governance of the State that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political would be available. The citizen cannot perform their duty to develop scientific temper unless there are conducive atmosphere in the society to do so. The education to the masses is must not only in literal sense but also to educate citizen against falling in the trap of unscientific methods and beliefs which FIR No. : 1196/07, PS : Sultan Puri Page 53 of 66 -54- are dogmatic and orthodox not having any scientific basis. One keeps hearing a woman in the remote area of Bihar, UP and M.P. is killed by the villagers under a belief that she is 'churail' (witch) but similar beliefs being prevalent in the urban society shocks the conscience. Therefore it is necessary for the State to not only provide quality education to its citizen but also education should be such which helps its citizen to perform fundamental duty.
Be that as it may.
The Hon'ble Supreme Court in many cases has reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account FIR No. : 1196/07, PS : Sultan Puri Page 54 of 66 -55- of infatuation.
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In this case the convict has been held guilty for offences punishable u/s 302/34 IPC, 307/34 IPC and 452/34 IPC In order to find out whether the case falls under the category of rarest of the rare cases, mitigating circumstance and aggravating circumstance has to be weighed. In the present case, all the convicts who are close relative had believed that these two women had killed their mother and wife of convict Pammi @ Heera and with belief on account of their backwardness and ignorance they have killed her. Although killing a woman in cruel manner like burning is grave and heinous, yet the mitigating circumstance are their social economic background and lack of education. Therefore this case does not fall under the category of rarest of the rare cases.
Keeping in view the totality of the facts and circumstances of the case and role of the convict, I am of the opinion that ends of justice would met in sentencing the convict to undergo rigorous imprisonment for life for offence punishable U/s 302/34 IPC and fine of Rs.10,000/-. In default of payment of fine, he shall further undergo FIR No. : 1196/07, PS : Sultan Puri Page 55 of 66 -56- rigorous imprisonment for the period of six months.
The convict is further sentenced to undergo rigorous imprisonment for period of three years for offence punishable U/s 307/34 IPC and fine of Rs. 3,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of one month.
The convict is further sentenced to undergo rigorous imprisonment for period of one year for offence punishable U/s 452/34 IPC and fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of fifteen days.
The fine, if recovered, shall be paid as the compensation to the family of the deceased and Shanti in the ratio of 70:30 respectively.
The benefit of Section 428 Cr.P.C be given to the convict.
All the sentences shall run concurrently.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. Document, if any, be returned after cancellation of endorsement, if any. File be consigned to record room. Announced in the open court today i.e. on 01.09.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 01.09.2012 FIR No. : 1196/07, PS : Sultan Puri Page 56 of 66 -57- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSIONS JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 1196/07 PS : Sultan Puri U/s : 452/307/302/34 IPC Unique Case ID : 02404R0 657472007 ORDER ON SENTENCE - SANTOSH 01.09.2012 Pr.: Sh. Anil Kr. Gupta, Ld. Substitute Addl. PP for State.
Convict Smt. Santosh in j/c with counsel Sh. J. S. Kushwaha.
Heard.
It is submitted that convict is a widow lady aged about 40 years and has two children to support and she is not a previous convict. She was gainfully employed and is sole bread earner of the family. It is also submitted that she remained in custody since date of her arrest. Further, it is submitted, that this case does not fall in the category of rarest of the rare cases. Therefore, lenient view be taken.
On the other hand, Ld. Substitute Addl. PP for the state submits that the convict be given maximum punishment.
Founding Fathers of the Constitution had vision that ignorance, superstitions and unscientific thinking would be unprogressive in its development. Country would progress on scientific thinking. It was also dreamt that people of the country would be endowed with scientific temper so as to see reason and logic of their action.
FIR No. : 1196/07, PS : Sultan Puri Page 57 of 66 -58-However it is not only shocking but also pitiable that the citizen of the country who are living in the capital are still ignorant, superstitious and backward in thinking as they were hundreds of year ago. A woman can kill another by witchcraft is still a strong belief not only in rural India or in the backward area but also in the capital of the country. There is no future of a country where there is lack of education or lack of education which does not develop scientific thinking amongst its people.
In the case in hand, the convicts who were close relative of the deceased, had believed that their mother and wife of convict Pammi @ Heera had died on account of 'witchcraft' or 'black magic' played by unfortunate Kamla deceased and injured Shanti who had no means to reason with them.
The Constitution enjoins every citizen their fundamental duties to develop the scientific temper, humanism and the spirit of inquiry and reform as per Article 51 A sub para (h) of the Constitution of India. As per Article 38 Directive Principles of State Policy, it is directive principles for the governance of the State that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political would be available. The citizen cannot perform their duty to develop scientific temper unless there are conducive atmosphere in the society to do so. The education to the masses is must not only in literal sense but also to educate citizen against falling in the trap of unscientific methods and beliefs which are dogmatic and orthodox not having any scientific basis. One keeps FIR No. : 1196/07, PS : Sultan Puri Page 58 of 66 -59- hearing a woman in the remote area of Bihar, UP and M.P. is killed by the villagers under a belief that she is 'churail' (witch) but similar beliefs being prevalent in the urban society shocks the conscience. Therefore it is necessary for the State to not only provide quality education to its citizen but also education should be such which helps its citizen to perform fundamental duty.
Be that as it may.
The Hon'ble Supreme Court in many cases has reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.FIR No. : 1196/07, PS : Sultan Puri Page 59 of 66 -60-
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In this case the convict has been held guilty for offences punishable u/s 302/34 IPC, 307/34 IPC and 452/34 IPC In order to find out whether the case falls under the category of rarest of the rare cases, mitigating circumstance and aggravating circumstance has to be weighed. In the present case, all the convicts who are close relative had believed that these two women had killed their mother and wife of convict Pammi @ Heera and with belief on account of their backwardness and ignorance they have killed her. Although killing a woman in cruel manner like burning is grave and heinous, yet the mitigating circumstance are their social economic background and lack of education. Therefore this case does not fall under the category of rarest of the rare cases.
Keeping in view the totality of the facts and circumstances of the case and role of the convict, I am of the opinion that ends of justice would met in sentencing the convict to undergo rigorous imprisonment for life for offence punishable U/s 302/34 IPC and fine of Rs.10,000/-. In default of payment of fine, she shall further undergo rigorous imprisonment for the period of six months.
FIR No. : 1196/07, PS : Sultan Puri Page 60 of 66 -61-The convict is further sentenced to undergo rigorous imprisonment for period of three years for offence punishable U/s 307/34 IPC and fine of Rs. 3,000/-. In default of payment of fine, she shall further undergo rigorous imprisonment for the period of one month.
The convict is further sentenced to undergo rigorous imprisonment for period of one year for offence punishable U/s 452/34 IPC and fine of Rs. 1,000/-. In default of payment of fine, she shall further undergo rigorous imprisonment for the period of fifteen days.
The fine, if recovered, shall be paid as the compensation to the family of the deceased and Shanti in the ratio of 70:30 respectively.
The benefit of Section 428 Cr.P.C be given to the convict.
All the sentences shall run concurrently.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. Document, if any, be returned after cancellation of endorsement, if any. File be consigned to record room. Announced in the open court today i.e. on 01.09.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 01.09.2012 FIR No. : 1196/07, PS : Sultan Puri Page 61 of 66 -62- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSIONS JUDGE-03, OUTER DISTRICT ROHINI COURTS:DELHI FIR No. : 1196/07 PS : Sultan Puri U/s : 452/307/302/34 IPC Unique Case ID : 02404R0 657472007 ORDER ON SENTENCE - SURESH 01.09.2012 Pr.: Sh. Anil Kr. Gupta, Ld. Substitute Addl. PP for State.
Convict Suresh in j/c with counsel Sh. J. S. Khuswaha.
Heard.
It is submitted that convict is aged about 35 years, married and is not a previous convict. He has wife and two minor children to support. He was gainfully employed and was doing the job of whitewash. He is 10th class passed. It is also submitted that he remained in j/c since date of his arrest. Further, it is submitted, that this case does not fall in the category of rarest of the rare cases. Therefore, lenient view be taken.
On the other hand, Ld. Substitute Addl. PP for the state submits that the convict be given maximum punishment.
Founding Fathers of the Constitution had vision that ignorance, superstitions and unscientific thinking would be unprogressive in its development. Country would progress on scientific thinking. It was also dreamt that people of the country would be endowed with FIR No. : 1196/07, PS : Sultan Puri Page 62 of 66 -63- scientific temper so as to see reason and logic of their action. However it is not only shocking but also pitiable that the citizen of the country who are living in the capital are still ignorant, superstitious and backward in thinking as they were hundreds of year ago. A woman can kill another by witchcraft is still a strong belief not only in rural India or in the backward area but also in the capital of the country. There is no future of a country where there is lack of education or lack of education which does not develop scientific thinking amongst its people.
In the case in hand, the convicts who were close relative of the deceased, had believed that their mother and wife of convict Pammi @ Heera had died on account of 'witchcraft' or 'black magic' played by unfortunate Kamla deceased and injured Shanti who had no means to reason with them.
The Constitution enjoins every citizen their fundamental duties to develop the scientific temper, humanism and the spirit of inquiry and reform as per Article 51 A sub para (h) of the Constitution of India. As per Article 38 Directive Principles of State Policy, it is directive principles for the governance of the State that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political would be available. The citizen cannot perform their duty to develop scientific temper unless there are conducive atmosphere in the society to do so. The education to the masses is must not only in literal sense but also to educate citizen against falling in the trap of unscientific methods and beliefs which FIR No. : 1196/07, PS : Sultan Puri Page 63 of 66 -64- are dogmatic and orthodox not having any scientific basis. One keeps hearing a woman in the remote area of Bihar, UP and M.P. is killed by the villagers under a belief that she is 'churail' (witch) but similar beliefs being prevalent in the urban society shocks the conscience. Therefore it is necessary for the State to not only provide quality education to its citizen but also education should be such which helps its citizen to perform fundamental duty.
Be that as it may.
The Hon'ble Supreme Court in many cases has reiterated that life imprisonment is the rule and death penalty is the exception to be given only in the rarest of the rare case. In Lehna V. State of Haryana, 2002 SCC (Cri) 526, it was held that the death penalty can be awarded when:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2)When the murder is committed for a motive which evinces total depravity and meanness, e.g., murder by hired assassin for money or reward, or cold-
blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community, etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of "bride burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account FIR No. : 1196/07, PS : Sultan Puri Page 64 of 66 -65- of infatuation.
(4)When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5)When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In this case the convict has been held guilty for offences punishable u/s 302/34 IPC, 307/34 IPC and 452/34 IPC In order to find out whether the case falls under the category of rarest of the rare cases, mitigating circumstance and aggravating circumstance has to be weighed. In the present case, all the convicts who are close relative had believed that these two women had killed their mother and wife of convict Pammi @ Heera and with belief on account of their backwardness and ignorance they have killed her. Although killing a woman in cruel manner like burning is grave and heinous, yet the mitigating circumstance are their social economic background and lack of education. Therefore this case does not fall under the category of rarest of the rare cases.
Keeping in view the totality of the facts and circumstances of the case and role of the convict, I am of the opinion that ends of justice would met in sentencing the convict to undergo rigorous imprisonment for life for offence punishable U/s 302/34 IPC and fine of Rs.10,000/-. In default of payment of fine, he shall further undergo FIR No. : 1196/07, PS : Sultan Puri Page 65 of 66 -66- rigorous imprisonment for the period of six months.
The convict is further sentenced to undergo rigorous imprisonment for period of three years for offence punishable U/s 307/34 IPC and fine of Rs. 3,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of one month.
The convict is further sentenced to undergo rigorous imprisonment for period of one year for offence punishable U/s 452/34 IPC and fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for the period of fifteen days.
The fine, if recovered, shall be paid as the compensation to the family of the deceased and Shanti in the ratio of 70:30 respectively.
The benefit of Section 428 Cr.P.C be given to the convict.
All the sentences shall run concurrently.
Copy of the judgment and order on sentence be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. Document, if any, be returned after cancellation of endorsement, if any. File be consigned to record room. Announced in the open court today i.e. on 01.09.2012 GURDEEP SINGH ASJ-03/Outer/Rohini/ Delhi 01.09.2012 FIR No. : 1196/07, PS : Sultan Puri Page 66 of 66