Delhi District Court
State vs 1.Krishna on 20 May, 2019
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST-02), DELHI.
Sessions Case No. 56627/16
Assigned to Sessions on 20.02.2013
FIR No. 280/2012
Police Station Khyala
Under Section 302/34 IPC
Charged Under Section 302/34 IPC
State Vs 1.Krishna
w/o Late Rati Ram
R/o Shop No. 13, DDA Market,
Khyala, New Delhi
2. Swarn Kanta
w/o Sh. Surender Kumar,
R/o H.No. 83-A, Vikas Vihar,
Chander Vihar Extn. Nilothi,
Delhi
3. Puran Prasad
s/o Late Rati Ram
R/o Shop No. 13, DDA Market,
Khyala, New Delhi
4. Chaman
s/o Late Rati Ram
R/o Shop No. 13, DDA Market,
Khyala, New Delhi
5. Raj Kumar
s/o Late Rati Ram
R/o Shop No. 13, DDA Market,
Khyala, New Delhi
Arguments heard on 14.05.2019
Date of Judgment 20.05.2019
Final Order Convicted
Appearance(s)Sh. Ram Pyara, Ld. Addl. PP for the State.
Sh. S.A. Khan, Ld. counsel for Krishna, Puran, Chaman and
Raj Kumar.
Sh. Yashpal Jolly, Ld. Counsel for accused Swarn Kanta.
SC No. 56627/16 State Vs. Krishna etc. Page 1 of 46
JUDGMENT
(A) PRELUDE :
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C.
in respect of FIR No. 280/12 u/s 302/34 IPC of PS Khyala was committed to the Ld. District & Sessions Judge (West), Delhi vide order dated 19.02.2013 of the Ld. MM.
(B) PROSECUTION VERSION:
2. The brief factual matrix as per the case of the prosecution is that :
Accused Krishna, Swarn Kanta, Puran Chand, Chaman and Raj Kumar were put on trial for the allegations against them that all the accused persons in furtherance of their common intention committed the murder of one Vijay Arora by pouring kerosene oil upon him lighting him on fire and putting him inside the shop and then putting the shutter of the shop down thereby they were charged for offence punishable under section 302/34 IPC.
The brief facts arising out of the present case are that on receipt of DD No. 12A dated 16.11.2012, IO Inspector R.K. Ojha alongwith HC Phool Chand and PSI Anoop reached at the spot i.e Shop No. 147-148, Guru Nanak Market, Khyala where the shutter of the shop was open on the west direction in the corner of the said shop, one person in burnt condition was found dead and inside the shop as well as outside the shop, some oil smelling like SC No. 56627/16 State Vs. Krishna etc. Page 2 of 46 kerosene oil was found spiller all over there. One person namely Saurabh Arora s/o the deceased Vijay Arora met them and the IO made enquiries from him and recorded his statement wherein he alleged that his father Vijay Arora was running spare parts shop at Shop No. 147-148, Guru Nank Market, Khyala and in front of the said shop, Puran @ Karan had placed earthen pots (matke) for sale. His father had complained against it to the MCD and MCD removed his earthen pots. On the night of 15.11.2012, Krishna, Puran, Raj, Chaman and Kanta had again placed the earthen pots in front of the shop. In the morning on 16.11.2012 at about 8.20 am, when his father came there to open his shop and when he saw earthen pots lying in front of his shop, he asked them to remove them.
Thereafter, Krishan and Puran caught hold of his father and Chaman and Kanta poured oil over him and Raj lit fire and thereafter, put the shutter of the shop down. The shop also caught fire. When he rushed to the shop, then these people stopped him. Krishna, Puran, Raj, Chaman and Kanta had in a planned manner killed his father by setting him on fire. He also stated that these people had earlier also quarrel with his father. Thereafter, on the basis of this statement, Insp. R.K. Ojha prepared rukka and got the FIR registered U/S 302/34 IPC through HC Phool Chand. During investigation, IO called the Crime Team at the spot which inspected the site and prepared its report CMT/SOC No. 1124/12 dated 16.11.2012 and submitted to IO. Thereafter, IO prepared the site plan, exhibits were lifted from the spot of the crime and seized. Expert team from FSL Rohini also called at the spot which inspected the site and prepared its report Vide No. 2012/SOC/153/CHEM No. SC No. 56627/16 State Vs. Krishna etc. Page 3 of 46 31/12 dated 28.12.2.102. The post mortem on the body of deceased was got conducted and thereafter, body was handed over to his relatives. As per the PM report, the cause of death is due to asphyxia cause by inhalation of suffocating/irrespirable gases into respiratory passage subsequent to burning of kerosene, body and other neighbouring objects into place of occurrence (closed space) i.e room/shop as alleged history available. After the post mortem, the exhibits were seized and taken into possession by the IO. The clothes worn by the deceased were handed over by the complainant which were seized and taken into police possession. Exhibits were sent to FSL Rohini. Statement of one Satya Prakash Gupta was recorded u/s 161 Cr.P.C. Efforts were made to arrest the accused persons. On 22.11.2012, accused Krishna and Swarn Kanta were apprehended and detailed interrogation was made from them. During interrogation, it was revealed that accused Krishna and deceased were having good relations between them and because of this, deceased had allowed accused Krishna to place earthen pots in front of his shop but gradually, because of their relations, family life of deceased got disturbed, due to which their relationship got bitter and deceased wanted to remove the earthen pots of Krishna and because of this reason, they used to have frequent quarrels. In this regard, police complaint was also lodged. Subsequently, Krishna removed her earthen pots but on 16.11.2012, in a pre planned manner, all the accused persons killed the deceased.
On 09.01.2013, accused Puran Prasad, Chaman Lal and Raj Kumar surrendered before the court and after SC No. 56627/16 State Vs. Krishna etc. Page 4 of 46 seeking permission, all three accused persons were interrogated, arrested and their disclosure statements were recorded. Their disclosure statements also corroborated the version given by accused Krishna and Swarn Kanta on the same lines. IO obtained one day PC remand of the accused persons in order to recover the clothes worn by them on the date of incident, however, they disclosed that the said clothes were thrown in the drain (ganda Nala) and hence same could not be recovered. Scaled site plan of the crime spot was got prepared by draftsman.
The IO also obtained the MLC No. 14492 dated 30.04.2012 which was prepared in respect to the first quarrel that took place between accused and deceased on 30.04.12 Thereafter, IO recorded statement of witness under Section 161 CrPC, obtained the reports as well as collected the other relevant evidence and prepared the charge sheet U/S 173 (2) Cr.P.C., which was filed in the court for the offences u/s 302/34 IPC for judicial verdict.
(C) THE CHARGE:
3. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP and accused persons, vide order dated 15.05.2013, found a prima facie case for the offence punishable under section 302/34 IPC against all the accused persons. Charge was accordingly framed to which all the accused persons pleaded not guilty and claimed trial.SC No. 56627/16 State Vs. Krishna etc. Page 5 of 46
(C) PROSECUTION EVIDENCE :
In order to prove its case, prosecution examined in as much as 25 witnesses.
4. PW-1 is HC Rajveer Singh. He has proved the present FIR as Ex.PW1/A and endorsement on the original rukka as Ex.PW1/B.
5. PW-2 is Ct. Vijender Sharma. He deposed that on 16.11.2012, on the directions of Inspector R.K. Ojha, he took the dead body from the spot I.e DDA Market, in front of Masjid Khyala to DDU hospital mortuary and after depositing the dead body, he came back to the spot.
6. PW-3 Sh. Harish Arora, is the younger brother of deceased Vijay Kumar Arora. He identified the dead body in DDU Mortuary and his identification statement is Ex.PW3/A.
7. PW-4 Ct. Sukrampal is the photographer of Mobile Crime Team, West District. He deposed that on 16.11.2012, he took the photographs of the spot from different angles at the instructions of IO and Incharge. The photographs are Ex.PW-4/A1 to Ex.PW-4/A21 and he also proved on record negatives Ex.PW-4/B (colly).
8. PW-5 HC Kuldeep Singh is the MHC(M) who made entry in Malkhana Register vide entry No. 1288 with regard to deposit of nine sealed pullandas on 16.11.2012, entry No. 1296 dated 19.11.2012 with regard to deposit of two plastic jars, entry no. 1299 dated 20.11.12, copies of which SC No. 56627/16 State Vs. Krishna etc. Page 6 of 46 are proved as Ex.PW-5/A, Ex.PW/B, Ex.PW5/C respectively.
He also proved on record copy of R.C. No. 219/21/12 is Ex.PW5/D and R.C No. 221/21/12 is Ex.PW-5/E. Copy of receipt has been proved as Ex.PW5/G vide which sealed pullandas were deposited in FSL, Rohini.
9. PW-6 is Ct. Tilak Raj who deposited the sealed pullandas in FSL Rohini vide R.C No. 219/21/12.
10. PW-7 SI Amrendra Kumar is the Incharge, Crime Team West District. He deposed that on 16.11.2012, on receipt of a wireless message from Control Room, he alongwith his staff reached at the spot. He further deposed that one dead was found lying inside the shop and the oil was found scattered there. He inspected the site and prepared a detailed report which is Ex.PW7/A.
11. PW-8 is Inspector Sudesh Ranga. He has deposed that on 20.12.2012, while he was posted as ATO PS Khyala, Ct. Subhash deposited the exhibits in FSL Rohini and he recorded his statement as well as statement of HC Kuldeep MHC(M) u/s 161 Cr.P.C.
12. PW-9 is HC Phool Chand. He deposed that on 16.11.2012, he was posted at PS Khyala and on that day on receipt of call no. 12A Ex. PW 9/A, he along with PSI Anoop and SHO at about 8.30 am went to shop no. 147-148, near 830 bus stand, Guru Nanak Market, Khyala where they found one person was lying dead in burn condition in the shop and there was smell of kerosene oil /mobil oil. Even the oil was also spotted. One Saurabh Arora met them SC No. 56627/16 State Vs. Krishna etc. Page 7 of 46 there who identified the dead body as Vijay Arora. SHO recorded statement of Saurabh Arora. IO/SHO prepared Rukka and handed over the same to him and he went to PS got lodged the FIR and returned to the spot at about 1.00 pm with the copy of FIR and original rukka and handed over the same to SHO. The crime team was also present at the spot and inspected the same. The IO lifted earth control, oil with gauge, earth, a pair of chappal and one specks, one plastic cane having little bit (thoda) oil in it and all these articles were kept in 5 plastic jars and sealed with the seal of PC and seized vide memo Ex.PW9/B. One mobile phone make Nokia was also found lying in front of the shop and the same was also sealed in a pulanda with the seal of PC and seized vide memo Ex. PW9/C. The clothes of Saurabh Arora i.e. warmer, nikker having smeared with oil were taken from Saurabh Arora and converted into pulanda and sealed with the seal of PC and seized vide memo Ex. PW 9/D. Thereafter, he along with the SHO went to the hospital for conducting the post mortem on the dead body of the deceased. The SHO conducted the inquest proceedings and after the post mortem, the dead body was handed over to Saurabh Arora. After the post mortem, the doctors handed over the the sealed pulanda to the SHO who seized the same. Seal after used was handed over to him. They returned to PS and the case property was deposited in the Malkhana. IO recorded his statement.
13. PW-10 Sh. Saurabh Arora is the son of deceased. He deposed that his father Vijay Arora was running shop of spare parts at Shop No.147-148 Guru Nanak Market Khayala. Accused Krishna, Puran, Chaman and Raj Kumar SC No. 56627/16 State Vs. Krishna etc. Page 8 of 46 had placed Matkas in front of the said shop. His father had made complaint in this regard with MCD. Officials of MCD got removed Matkas from in front of their shop. He further deposed that during the intervening night of 15/16.11.2012 accused Krishna, Puran, Chaman, Raj Kumar and Kanta had again placed Matkas in front of their said shops. On 16.11.2012, at about 8.00 am, when his father reached at the shop in order to open the shop and he asked the accused persons to remove the Matkas from in front of said shops. Accused Krishna and Puran caught hold of his father and accused Chaman and Kanta poured oil upon his father and accused Raj lit fire upon his father and shut down the shutter of the shop. His father as well as the shop caught fire due to above said reason. When he rushed towards the shop, the accused persons caught hold of him and restrained him to reach the shop in order to save his father. Accused Chaman also tried to pour oil upon him. The above said accused persons caused death of his father by committing the above said act. The accused persons had also quarreled with his father prior to the above said incident. He did not know who informed to the police. His statement Ex PW10/A was recorded by the police. He further deposed that he was wearing inner warmer of dark grey colour, nikker underwear and shirt also. He had put his shirt upon his father. Police seized and sealed his above said nikker and warmer vide seizure memo Ex PW9/D. Police had collected exhibits from the spot. He identified dead body of his father at the mortuary of DDU hospital vide his identification statement Ex PW10/B and after post martem, the dead body was handed over to them vide handing over memo Ex PW 10/C. He correctly identified all SC No. 56627/16 State Vs. Krishna etc. Page 9 of 46 the five accused persons in the Court. He also correctly identified the case properties.
14. PW Dr. B.N. Mishra has also inadvertently been examined as PW-10. He has conducted post mortem on the body of deceased Vijay Arora and post report has been proved as Ex.PW10/A. On examination of the body, he observed that the body was 100 per cent burnt out, superficial to deep in nature. He has further opined that the cause of death was due to asphyxia caused by inhalation of suffocating/irreparable gases into the respiratory passage subsequent to burning of kerosene, body and other neighbouring objects into place of occurrence (closes space) i.e room/shop as alleged history available.
15. PW-11 is Ct. Devender who deposed that on 16.11.2012, on the instructions of duty office HC Rajbir Singh, he delivered the copy of FIR in a sealed envelope to the concerned MM at Tis Hazari Court.
16. PW-12 is Ct. Subhash who had deposited the sealed pullanda at FSL Rohini vide R.C No. 221/21/12 and received acknowledgment from FSL.
17. PW-13 Dr. Prem Chand, Medical Officer, Guru Gobind Singh Govt. Hospital has deposed on behalf of Dr. A.K. Kedia and Dr. Pradeep Kumar who had left the services of the said hospital. He further proved the MLC dated 30.04.2012 of Vijay Kumar (since deceased) as Ex.PW13/A in which the nature of injury was opined to be simple and blunt.
SC No. 56627/16 State Vs. Krishna etc. Page 10 of 4618. PW-14 Inspector Yashpal Singh deposed that on 09.01.2013, he was handed over the FIR of the present case. After getting the information, he reached Tis Hazari Courts, and moved an application before the concerned court of Ld. MM and interrogated the accused persons namely Puran Chand, Raj Kumar and Chaman and recorded their disclosure statements Ex.PW14/A to Ex.PW14/C respectively. Thereafter, all three accused were arrested vide memos Ex.PW14/D to Ex.PW14/F respectively and also conducted their personal searches vide memos Ex.PW14/G, H and I. He obtained their one day PC remand and their pointing out memos were prepared Ex.PW14/J, K and L. He also recorded their supplementary disclosures vide statements Ex.PW14/M to O. He also made efforts to recover the clothes of accused worn by them on the date of incident, however, same could not be recovered as the accused had thrown them in the running water in Paschim Vihar area. He correctly identified the accused persons.
19. PW-15 is HC Sumer Singh. He deposed that on 16.11.2012, he was posted at PCR West Zone as Head Constable. On that day, his duty hours were from 8.00 am to 8.00 pm and he was serving as incharge on Power 14. At about 8.23 am, a call was received that on Shop No.147- 148, near Bus stand 830, one person is trying to immerse himself with kerosene oil and in pursuance to that call he reached at the spot i.e shop No.147-148, near Bus stand 830 alongwith gunman and driver. On reaching there, they came to know that 4/5 persons had set on fire one person and had run away. He found one person lying in burnt SC No. 56627/16 State Vs. Krishna etc. Page 11 of 46 condition on the spot. Several persons had gathered over there. The persons of the deceased's family were trying to set on fire the house of accused persons and he passed on the information to the then SHO and requested for the force at the spot. He came to know the name of the deceased as Vijay who was lying on the spot. After about 20/25 minutes, the then SHO alongwith staff member and other Senior officers had come at the spot. In the meantime, he managed the crowd at the spot and prevented the setting of fire. IO recorded his statement.
20. PW-16 is SI Anoop Kumar (earlier PSI). He has deposed on the similar lines as has been deposed by PW-9 HC Phool Chand. Therefore, his deposition is not discussed here for the sake of brevity.
21. PW-17 is ACP R.K. Ojha. He deposed that on 16.11.2012, he was posted as SHO PS Khayala. On that day at about 8.30 am, a call was received at PS vide DD no. 12A and the same was marked to HC Phool Chand as he was on emergency duty. The matter was brought into his notice and thereafter, he alongwith HC Phool Chand, PSI Anoop reached the spot i.e. shop no. 147-148, Guru Nanak Market, Khyala near bus stand of route no. 830. On reaching there, he found a male dead body in burnt condition inside the shop near shutter. There was liquid like mobil oil spread inside and outside the shop. A smell like kerosene oil was coming from the said mobil oil like liquid. He further deposed that one Saurabh Arora also met them and told that the deceased was his father namely Sh. Vijay Arora. He recorded his statement and made an SC No. 56627/16 State Vs. Krishna etc. Page 12 of 46 endorsement and gave the rukka to HC Phool Chand and sent him to PS for registration of the FIR. HC Phool Chand returned to the spot after about 1-1 ½ hour and gave him copy of FIR and original rukka. He prepared the site plan Ex. PW-17/A. He also called Crime team at the spot and they inspected the scene of crime. The spot was photographed by the photographer HC Sukhram Pal of crime team. Dead body was taken into possession and was sent to DDU hospital through Ct. Vijender. He alongwith other staff also reached the DDU hospital immediately. Thereafter, he lifted the exhibits from the scene of crime i.e. liquid like substance appears to be mobil oil in cotton gauze , earth control, earth from near the dead body, one kolhapuri slipper and one plastic cane with handle without lid. He converted them into parcel and sealed with the seal of PC belonging to Phool Chand and seized them. He also took into possession the clothes of Saurabh Arora stained with oil. He made parcel of the same and sealed them with the seal of PC and seized them. He also took into possession a mobile phone lying near the dead body, converted into parcel, sealed with the seal of PC and seized it. Crime team had given its report. He recorded the statements of PWs who joined the aforesaid proceedings and made search for any other eye witness, but no one was found present at the spot at that time. He deputed his staff on the spot to preserve the same. Thereafter, he proceeded to DDU hospital for getting the postmortem conducted. After getting the post mortem conducted, the dead body was handed over to the relatives of the deceased. The Dr. concerned handed over two sealed parcels to him which were sealed and seized by him. After SC No. 56627/16 State Vs. Krishna etc. Page 13 of 46 returning to the PS, same were deposited in the malkhana. FSL team was called to the spot. He made efforts to arrest the accused persons. On 19.11.2012, FSL team visited the spot and they collected the burnt remnants. He seized the same in a plastic jar and seized them and later on deposited in malkhana.
22. On 22.11.12, he arrested accused Krishna and Swarnkanta vide arrest memos Ex.PW17/H and Ex.PW17/I and recorded their disclosure statements vide statements Ex.PW17/J and Ex.PW17/K. Thereafter, both accused persons led them to the spot and pointing out memos Ex.PW17/L and Ex.PW17/M were prepared. Thereafter, both accused were taken to PS where their personal search were conducted vide memo Ex.PW17/N and Ex.PW17/O. During investigation, exhibits were got sent to FSL. He recorded the statement of witnesses. During investigation, Inspector Yashpal Singh arrested the three remaining accused persons as they had moved application for surrender before the court. He correctly identified both the accused persons Krishna and Swarnkanta as well as case properties. He further deposed that on 22.11.2012, when he was present at bus stop Khyala route No. 830 alongwith ASI Surender, WHC Mukesh, Ct. Parmal and 2-3 other police officials, a secret informer met them and informed him that accused Krishna and Swarnkanta involved in the present case would come near Keshopur Sabzi Mandi for arrangement of money. Thereafter, he requested some public persons to join the investigation but none agreed. On the pointing out of the secret informer, two ladies present near the gate of sabzi Mandi were apprehended by SC No. 56627/16 State Vs. Krishna etc. Page 14 of 46 W HC Mukesh. Both the ladies were interrogated and their names were confirmed as Krishna and Swarn Kanta. Thereafter, both the accused were arrested one by one and their personal search were conducted by WHC Mukesh in the MCD booth.
23. PW-18 is ASI Jai Bhagwan. He deposed that on 30.04.12, he received a call at around 10 am which was reduced into DD No. 17A and thereafter, he alongwith one Ct. reached at Chotti Sabji Mandi, Khyala where they came to know that injured Vijay had already been taken to hospital by the PCR, thereafter, they reached the hospital and collected MLC of the injured. They also came to know that injured had been referred to DDU hospital and they went to DDU hospital where they came to know that injured had left for his house. On reaching at his house, they met Vijay and he told them that Krishna and her sons had placed some articles on the way to obstruct the passage and on this quarrel had taken place in which Vijay was struck with some instrument (hammer type) in the face by her and her sons. He further deposed that as the MLC result was pending, they kept the call pending. Later on, result of the MLC of injured was obtained and the injury was opined to be simple in nature. He further deposed that on 16.11.2012, he had produced the said papers including MLC to the then SHO. He identified the accused Krishna correctly in the court.
24. PW-19 Sh. Santosh Tripathi is Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi. He has deposed that on 19.11.2012, he alongwith Sh S.S. Badwal, SSO Physics and SC No. 56627/16 State Vs. Krishna etc. Page 15 of 46 team of crime reached at the spot and inspected the spot and prepared his report Ex.PW19/A and opined that there was incidence of burning inside the shop adjacent to metallic shutters.
25. PW-20 is SI Hansraj Swami. He has simply deposed to the effect that he had made efforts to search the accused persons and went alongwith ASI Surender Singh, Ct Parmal, Ct. Jaipal, W Ct. Savita to Rajasthan and Haryana, however, none of them could be traced.
26. PW-21 is WASI Mukesh. She is the witness to the arrest, personal search and disclosure statements of accused Krishna and Swarn Kanta. She correctly identified both the accused persons in the court.
27. PW-22 is retd. ASI Om Prakash. His testimony is on the similar lines as deposed by PW-14 Inspector Yashpal Singh. Therefore, his testimony is not reproduced or discussed here for the sake of brevity.
28. PW-23 is Dr. Aruna Singh, SMO DDU Hospital. She has proved the X-ray report of Vijay Kumar as Ex.PW 23/A.
29. PW-24 is HC Anil who has proved the PCR form pertaining to a call received at 8.24 am on 16.11.2012 as Ex.PW24/A.
30. After conclusion of prosecution evidence, statement of all the accused persons under Section 313 Cr.P.C. were SC No. 56627/16 State Vs. Krishna etc. Page 16 of 46 recorded wherein all of them have taken the plea of false implication in the present case. In support of their defence, accused persons have examined one witness.
31. DW-1 is Mohd. Salauddin Ansari. He has deposed that he was doing the job of giving religious teaching to the children of his locality and also do Imamat in the Masjid, at 830 Khyala ( Jama Masjid). His shop No.12 of religious book and the shop of accused Krishna is at shop NO.13, in Guru Nanak Market, Khyala. He usually opened his shop at 6-7 AM and closed after 8.00 PM. The incident took place on 16.11.2012 at about 8.15 A.M and at that time he was present at his shop. The deceased Vijay Arora was sitting in Shop No.16-17 Guru Nanak Market Khyala. The deceased when came in the morning to his shop and saw that accused Krishna displayed the Matkas at distance of 50 sq yards in the ground in front of shop. The deceased had parked his two cars in the open space in front of his shop and also punctured the tyre of one of the car so that the accused Krishna could not put Matkas in front of shops. The deceased used to drop his wife at her school as a daily routine. On that day ie 16.11.2010, he dropped his wife to her school and he returned to the shop. Deceased got angry as the Matkas were placed behind the car in the night of 15.11.2010. He made a call to his wife on mobile phone by saying on mobile " Today I will finish all the root cause of the quarrels, from today onwards you would not come there ( shops)" . After that the deceased Vijay Arora went to the shop No. 147-148. He opened the shutter of the said shop and went inside the shop and shut down the shutter. After five minutes from the said shop smoke started coming out. Accused Krishna was standing in front of her shop/house. Accused Krishna made a SC No. 56627/16 State Vs. Krishna etc. Page 17 of 46 call at 100 number. PCR Van came at the spot. The PCR officials broke the Kundi of the shutter and thereafter opened the shop. The deceased was taken out from the shop and at that time, the deceased was sitting on a chair. The PCR official made a call from the deceased's mobile to his son. After half an hour the family of the deceased namely Saurab Arora, his daughter and his wife Anita Arora also came at the spot. The police officials gave instructions to accused Krishna to move from the spot because the situation was going to be worse. Thereafter, Krishna had gone from her shop/house. The elder son of Krishna namely Puran was not present at the spot as he has gone with his wife to his in laws. The younger Son Chaman had gone to Rajasthan on a motor cycle with his Nana. Accused Raj had gone to distribute Newspaper to the houses as he used to leave the house in the morning at about 6-7 PM. He further deposed that the cause of dispute between the deceased and his wife was that whatever money the deceased earned from his business, he gave the same to the accused Krishna as stated by deceased Vijay Arora during his lifetime to him. After the death of the deceased, the wife and son of the deceased had sold the shops bearing No.16,17 and 147-148 within one month of his death. The police officials took the photographs of the deceased's body and the place of occurrence. Thereafter, the dead body was removed by the PCR from the spot. No other proceeding was conducted by the police in his presence.
REASONS AND DECISION.
32. I have heard the Ld Addl P.P for the State and Ld Counsels for both the accused. I have given my thoughtful consideration to the submissions being made by them and I SC No. 56627/16 State Vs. Krishna etc. Page 18 of 46 also perused the record carefully.
33. Ld Defence Counsels have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. It is argued that there is not an iota of evidence available on record to connect the accused persons with the instant case.
Arguments on behalf of accused Swarn Kanta
34. It is argued that PW-10 in his cross examination has admitted that there was no enmity between accused Kanta and deceased. He has further admitted that he has not made any PCR call after the incident and neither called the ambulance or fire brigade.
35. It is argued that PW Satya Prakash Gupta has not been examined as a witness though as per the prosecution case, he was an eye witness and was mentioned in the list of witnesses.
36. It is further argued that site plan does not bear the signature of PW-10 though he was present there as alleged by the prosecution which clearly proves that he was not present.
37. It is further argued that PW Dr. B.N. Mishra who conducted the post mortem on deceased has not mentioned the manner of death.
38. Another argument raised is that PW-5 HC Kuldeep SC No. 56627/16 State Vs. Krishna etc. Page 19 of 46 Singh has stated that Inspector R.K Ojha had deposited 09 pullanda in register serial no.1288 and out of which some pullandas were sent to FSL Rohini and after some days, some pullandas of serial no. 1288 were again sent to FSL and regarding the other entries of 1296, prosecution is silent.
39. It is also argued that as per the prosecution story, incident is of 8.20 am, whereas PW-7 SI Amrendra Kumar states that he had received wireless message at about 8.15 am which creates serious doubt on the prosecution story.
40. It is further argued that PW-15 in his examination-in- chief states that at about 8.23 am, a call was received that on shop no. 147-148, Guru Nanak Market, Khyala, one person is trying to immerse himself with kerosene oil. Therefore, it is clear that it was a case of suicide which has been wrongly projected as a case of murder.
Arguments Advanced on behalf of remaining accused persons.
41. It is argued that accused persons have been falsely implicated in the present case.
42. It is further argued that deceased Vijay Kumar was having good relations with accused Krishna, however, when his family came to know about their relationship, he was confronted with and thereafter, his family life got disturbed and due to which he was quite depressed and it is under this state of depression, he took this step and set himself SC No. 56627/16 State Vs. Krishna etc. Page 20 of 46 on fire.
43. It is argued that the present FIR was lodged on the basis of a call wherein the caller had informed that 'one person had poured oil over himself'. The said call was reduced into writing vide DD No.12A. It is submitted that this DD entry Ex.PW9/A clearly corroborates the version of the accused persons that it was the case of self-immolation and not that deceased Vijay Kumar was set on fire by accused persons as alleged by the prosecution.
44. It is further argued that the prosecution has examined the son of the deceased as the eye witness to the alleged incident,however, his testimony appears entire improbable. It is argued that if the entire incident happened in the presence of PW-10, it would be highly improbable that he would let the said incident happen. PW-10 being the son, would have fought hard and/or raised alarm in order to resist the attempt of the accused persons in setting his father/deceased on fire. It is argued that the place of alleged incident was in market area and adjacent to the busy road where traffic was quite frequent. It is, therefore, unbelievable that at the alleged time i.e 08.30 am, accused persons would in all broad day light would set a person on fire in all public glare. Hence, it is argued that he is a planted witness of the prosecution in order to fill up the lacunas and gaps.
45. It is further argued that PW-10 Saurav Arora has deposed in his examination in chief that he used to follow his father to his shop. This piece of evidence clearly proves the point SC No. 56627/16 State Vs. Krishna etc. Page 21 of 46 that family of deceased used to suspect him and that is the reason, his son used to follow him.
46. It is further argued that except PW-10, there is no other witness who could corroborate his version. PW-10 has merely narrated a concocted story in order to falsely implicate the accused persons as he wanted to cover up the real story of suicide committed by his deceased father.
47. It is further argued that there is no other scientific evidence on record to connect the accused persons with the alleged incident.
48. It is further argued that DW-1 has categorically deposed that he heard deceased saying to his wife on mobile phone "today I will finish all the root cause of the quarrels, from today onwards you would not come there (shops)". After that deceased went to his shop, opened the shutter of the shop and went inside the shop and after five minutes, smoke started coming out. The testimony of this witness clearly indicates that deceased committed suicide by setting himself on fire. He has further stood the test of cross examination and his testimony has remained unimpeached.
49. It is further argued that wife of deceased has not been made a witness though she is an important witness which creates doubt in the prosecution story.
50. It is further argued that Sh. Satya Prakash Gupta cited as a witness at serial no. 2 in the list of witnesses has been SC No. 56627/16 State Vs. Krishna etc. Page 22 of 46 dropped by the prosecution for the reasons best known to it which further creates doubt in the prosecution story.
51. It is further argued that police has neither lifted finger prints nor obtained CCTV footage of the spot to corroborate the sequence of events which further raises doubt over the prosecution story.
52. It is further argued that there was no dispute over money or property between accused persons and deceased and were having cordial relations and as such, prosecution has failed to prove any motive for committing the offence which is the basic ingredient to prove any offence of murder.
53. It is further argued that as per the FIR itself, the shop where the alleged incident took place was used as a store and not for running a shop. This further contradicts the version of the prosecution that the incident took place inside the shop.
54. It is further argued that there are material contradictions in the testimonies of prosecution witnesses which create doubt in the prosecution story.
55. It is further argued that investigation conducted by the police is malafide and defective and there is no corroborate evidence to support the prosecution story.
56. It is further argued that as per FSL report, no kerosene oil jar was found amongst the case property deposited SC No. 56627/16 State Vs. Krishna etc. Page 23 of 46 which contradicts the prosecution story.
57. To substantiate his arguments to the effect that PW-10 Saurabh Arora is an interested witness, Ld. Counsel for accused persons has relied on following case laws:
(i) Raju Balachandran Vs. State of Tamil Nadu, (2012) 12 SCC 701
(ii) Sharad Birchichand Sarda V. State of Maharashtra, AIR 1984 SUPREME COURT 1622
(iii) Ram Bharosey Vs State of U.P., 1954 AIR (SC) 704
(iv) Datar Singh Vs. The State of Punjab, AIR 1974 SUPREME COURT 1193
(v) Raju Alias Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 Supreme Court Cases 701
(vi) Sunil Kumar Vs. State, Crl. Appeal No. 193 of 2017, Hon'ble High Court of Delhi.
Arguments Advanced on behalf of State
58. While opposing the arguments of the accused persons, Ld Addl PP for the State has argued that all the PWs examined by the prosecution has firmly stood the test of cross examination and have been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs.
59. It is more particularly argued that present case is based on direct evidence i.e PW-10 as well as of scientific SC No. 56627/16 State Vs. Krishna etc. Page 24 of 46 evidence i.e FSL report and post mortem report.
60. It is argued that PW-10 (son of deceased) is the star witness of the prosecution. He has categorically deposed about the role of each accused and the manner in which all of them committed the murder of deceased by setting him on fire. It is further argued that his testimony has remained unchallenged.
61. It is further argued that the motive which is the basic ingredient for committing any offence is clearly proved in the present case through the testimony of PW-18 ASI Jai Bhagwan. He has deposed that on 30.04.2012, he had received DD No. 17A regarding a quarrel and on enquiry, it was later revealed that Krishna and her sons had placed some articles on the way to obstruct the passage and on this quarrel had taken place in which Vijay (since deceased) was struck with some instrument (hammer type) in the face by her and her sons. DD No. 17A clearly proves the factum that accused persons were keeping a grudge against the deceased and on the fateful day, a quarrel had taken place over the issue of keeping matkas in front of his shop and on this, all the accused persons set the deceased on fire which resulted in his death.
62. As regards the argument of defence that PW-10 is a planted/interested witness, it is submitted that PW-10 is a natural witness who used to follow his father to his shop as a routine and on the fateful day also, he had followed his father and witnessed the entire incident and hence, he is SC No. 56627/16 State Vs. Krishna etc. Page 25 of 46 not an interested/planted witness as alleged by the defence.
63. As regards the argument that PW Satya Prakash Gupta was not examined by the prosecution despite the fact that he was cited as a witness, it is submitted that he was dropped as PW-18 ASI Jai Bhagwan has also deposed on the similar lines as that of Satya Prakash Gupta.
64. As regards non citing/examining of wife of deceased as a witness, it is submitted that IO did not cite her as a witness as she was not a witness to the incident.
65. I have given a thoughtful consideration to the record and the arguments advanced as well as the case laws relied by accused persons.
66. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
67. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public SC No. 56627/16 State Vs. Krishna etc. Page 26 of 46 Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
68. Before adverting to the analysis of evidence which has come on record it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
69. In the instant case, the accused persons have been charged with the offence u/s 302 IPC.
70. The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused.
SC No. 56627/16 State Vs. Krishna etc. Page 27 of 4671. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on (1997) 2 Crimes 78 titled Narsingh Challan Vs. State of Orissa.
72. When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which SC No. 56627/16 State Vs. Krishna etc. Page 28 of 46 are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
73. Further pertinent to mention here that in cases like death / murder, generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now, this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of SC No. 56627/16 State Vs. Krishna etc. Page 29 of 46 Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.. it must be such as to show that within all human probability the act must have been done by the accused."
74. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should fully established.
2) the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused is guilty.
3) the circumstances should be of a conclusive nature and tendency.
4) they should exclude every possible SC No. 56627/16 State Vs. Krishna etc. Page 30 of 46 hypothesis except that one to be proved and.
5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
75. The two basic ingredients necessary for proving a case u/s 302 IPC are the intention to commit offence (mens rea) and the act done to execute that intention (actus reas). For better appreciation of the case at hand, Sec. 300 IPC which provides the definition of murder is reproduced as under:
"300.Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, Secondly, -if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.-if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.-if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such SC No. 56627/16 State Vs. Krishna etc. Page 31 of 46 bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid."
76. Now, I shall proceed to deal with the arguments raised by defence in the light of section 300 IPC.
77. In the present case, both the prosecution as well as defence have heavily relied on the testimony of their star witnesses i.e PW-10 Saurav Arora (son of deceased) and DW-1 Mohd. Salauddin Ansari respectively to establish their case. Therefore, before proceeding further to decide the case, I shall try to ascertain the veracity of both these witnesses which is very crucial to the fate of this case.
78. Ld. Defence Counsel has argued that prosecution has planted the son of the deceased and examined him as PW-10 in order to fill up the lacunas and to build up its case. It is argued that he being the son of deceased, is an interested witness who was not at all present at the time of alleged incident, as is clear from the contents of DD No.12 A proved as Ex.PW9/A which states that 'one person had poured oil over himself'. It is argued that this person is none other than the deceased himself who had committed suicide after pouring himself. At the strength of this argument, it is submitted that PW-10 was not at all present at the time of incident and hence, his testimony is not reliable being a planted/interested witness.
SC No. 56627/16 State Vs. Krishna etc. Page 32 of 4679. It is further argued that even DW-1 has categorically deposed that deceased came to his shop, opened the shutter and went inside his shop and after put down the shutter, after five minutes, smoke was seen coming out.
80. Ld. State Counsel to counter the DD No. 12A has relied on PCR form Ex.PW24A as per which, five persons together killed one person in his shop by setting him on fire and ran away. It is argued that DD no. 12A is the initial call that too was made by accused Krishna herself just to create confusion and concoct a story in order to misguide the police.
81. I have carefully perused the testimonies of PW-10 and DW-1 as well as the relevant documents.
82. DD no. 12A relied heavily by Ld. Defence Counsel is an initial call made by accused Krishna herself as has also come in the deposition of DW-1. Thereafter, acting on the said call, PCR van was dispatched to the place of incident and after visiting the spot, the PCR form Ex.PW24/A reported that five persons together killed one person in his shop by setting him on fire and ran away.
83. Therefore, in view of PCR form Ex.PW24/A, it is amply clear that after initial enquiry made by the PCR official, it was revealed that one person was set on fire by five persons inside that person's shop and after that, all five persons ran away and the argument of defence relying on DD no.12A is misconceived.
SC No. 56627/16 State Vs. Krishna etc. Page 33 of 4684. I have carefully scrutinized the testimony of DW-1 Mohd Salauddin Ansari. DW-1 has narrated the entire incident in his testimony in an elaborate manner. He has deposed that deceased Vijay made a call to his wife on mobile phone by saying on mobile "Today I will finish all the root cause of the quarrels, from today onwards you would not come there ( shops)". After that, the deceased Vijay Arora went to the shop No. 147-148. He opened the shutter of the said shop and went inside the shop and shut down the shutter. After five minutes from the said shop smoke started coming out. Accused Krishna was standing in front of her shop/house. Accused Krishna made a call at 100 number. PCR Van came at the spot."
85. In his cross examination, he has admitted that he had stood surety of accused Krishna and that he was having good relations with the accused persons. He has further admitted that one cannot see anything of shop no. 16-17 while sitting at his shop. He has also admitted that there is a gali between his shop and shop no. 147-148.
86. From his deposition as well as on perusal of site plan Ex.PW17/A, it becomes doubtful that DW-1 could hear the deceased what he said on mobile phone to his wife before the alleged incident took place. He has admitted that there was a gali in between his shop and the shop of deceased where the incident took place. Therefore, it is highly doubtful that he could witness the entire incident. His testimony becomes even more doubtful due to the fact that when he had heard the deceased talking to his wife, he must have acted and after seeing the smoke coming out SC No. 56627/16 State Vs. Krishna etc. Page 34 of 46 of the shutter, he must have rushed to save him. However, it is even more surprising that he did not even make a call to the police and asked accused Krishna to make call. It is a matter of common sense that in the event of any emergency, one does his best to rescue other even if that person is not known to him. In the instant case, he knew the deceased very well and was his neighbour and instead of helping out to him, he remained as a mute spectator which casts shadow on his testimony and as such, I am of the considered opinion that he is a planted/interested witness examined by the accused persons to depose in their favour and as such, his testimony because of full of doubts, cannot be relied at all.
87. As far as the testimony of PW-10 is concerned, Ld. Defence Counsel has argued that he is an interested witness being the son of the deceased and hence, accused cannot be held guilty merely relying on his testimony.
88. Therefore, to test the veracity and credibility of the testimony of PW-10, I deem it appropriate to discuss some case laws of Hon'ble Supreme Court of India on this point.
89. In Darya Singh vs State of Punjab reported as AIR 1965 SC 328, this is what the Supreme Court had to say on evaluation of evidence of an interested witness:-
"6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the SC No. 56627/16 State Vs. Krishna etc. Page 35 of 46 enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In the case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinize all the infirmities in that evidence before deciding to act upon it...It may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to SC No. 56627/16 State Vs. Krishna etc. Page 36 of 46 be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
90. In Seeman alias Veeranam vs State reported as (2005) 11 SCC 142, the aforesaid legal position was explained by the Supreme Court in the following manner:-
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness.
Caution is to be applied by the Court while scrutinizing the evidence of the interested sole witness. The SC No. 56627/16 State Vs. Krishna etc. Page 37 of 46 prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
91. In Jayabalan vs. UT of Pondicherry reported as (2010) 1 SCC 199, once again, the Supreme Court highlighted the caution required to be taken in appreciating the evidence given by the interested witness as under:-
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the court must be to look for consistency."
92. In Waman vs. State of Maharashtra reported as (2011) 7 SCC 295, while dealing with the case of related SC No. 56627/16 State Vs. Krishna etc. Page 38 of 46 witness, the Supreme Court summarized the law in the following words:-
"20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care."
93. Further, Hon'ble Supreme Court in case titled as Sarwan Singh vs State of Punjab, (1976) 4SCC 369 has held as under:-
"The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
94. Now, I shall proceed to appreciate and test the veracity SC No. 56627/16 State Vs. Krishna etc. Page 39 of 46 of the testimony of PW-10 in the light of above cited judgments. PW-10 has deposed in his testimony that as a daily routine, he used to follow his father to his shop and on the fateful day also, he had followed his father to his shop. He has categorically deposed that on 16.11.2012, at about 8.00 am, when his father reached at the shop in order to open the shop and he asked the accused persons to remove the Matkas from in front of said shops, accused Krishna and Puran caught hold of his father and accused Chaman and Kanta poured oil upon his father and accused Raj lit fire upon his father and shut down the shutter of the shop. His father as well as the shop caught fire due to above said reason. When he rushed towards the shop, the accused persons caught hold of him and restrained him to reach the shop in order to save his father. Accused Chaman also tried to pour oil upon him."
95. The above portion of his testimony is very significant as he has clearly narrated the role of each accused in the crime committed by them and the manner in which they set his father on fire. Even accused persons tried to set him on fire when he tried to rescue him.
96. I have also gone through the testimony of PW-18 ASI Jai Bhagwan who has testified the fact that on 30.04.2012, accused Krishna alongwith her sons had quarrel with the deceased over the same issued of placing their matkas in front of his shop and they caused injury to the deceased. This fact has been proved through MLC Ex.PW13/A and Ex.PW13/B. SC No. 56627/16 State Vs. Krishna etc. Page 40 of 46
97. Furthermore, the testimony of PW-15 HC Sumer Singh is of much relevant here. He deposed that on 16.11.2012, he was posted at PCR West Zone as Head Constable. On that day, at about 8.23 am, a call was received that on Shop No.147-148, near Bus stand 830, one person is trying to immerse himself with kerosene oil and in pursuance to that call he reached at the spot i.e shop No.147-148, near Bus stand 830 alongwith gunman and driver. On reaching there, they came to know that 4/5 persons had set on fire one person and had run away. He found one person lying in burnt condition on the spot.
98. Therefore, in view of testimonies of PW-15 and PW- 18, and after taking due caution and care in appreciating the testimony of PW-10 in the light of above discussed judgments of Hon'ble Apex Court, this court is of the considered opinion that the testimony of PW-10 Saurav Arora appears probable and credible and hence, can be safely relied upon.
99. Hence, I am in agreement with the submission of Ld. State Counsel that accused persons had grudge against the deceased as he had complained to the MCD regarding their placing matkas in front his shop and on the date of incident, when deceased confronted the accused over the same issue, the accused persons set him on fire.
100. Except few minor contradictions, all the prosecution witnesses have successfully stood the test of cross examination by the accused persons and nothing contrary whatsoever has come during their cross examination.
SC No. 56627/16 State Vs. Krishna etc. Page 41 of 46101. Now, the next question which arises for consideration is whether deceased died due to burn injuries. In this regard, the testimony of PW Dr. B.N. Mishra, DDU Hospital (inadvertently examined as PW-10) is relevant. He conducted the post mortem on the dead body of the deceased and after examination, opined that the cause of death was due to asphyxia caused by inhalation of suffocating/irreparable gases into the respiratory passage subsequent to burning of kerosene, body and other neighbouring objects into place of occurrence (closes space) i.e room/shop as alleged history available. He has proved his report as Ex.PW-10/A (Colly). From his opinion, it is proved that deceased died due to burning. The FSL report proved as Ex.PW19/A further corroborates the prosecution story.
102. The testimonies of other witnesses (police witnesses) i.e IO of the case and the staff accompanying him also corroborates the version of other public witnesses.
103. The case laws relied on by Ld. Counsel for accused persons are not applicable to the facts and circumstances of the present case because of distinguishable facts.
104. In the present case, the motive suggested by the prosecution appears to be reasonable and defence has failed to bring any probable defence. It is difficult to believe that a person (deceased) would commit suicide without any provocation or incident immediately preceding the occurrence.
SC No. 56627/16 State Vs. Krishna etc. Page 42 of 46105. So far as the argument that PW Satya Prakash Gupta was not examined by the prosecution despite the fact that he was cited as a witness, I am in agreement with the submissions made by Ld. State Counsel that this witness was dropped as PW-18 ASI Jai Bhagwan has also deposed on the similar lines as that of Satya Prakash Gupta. Moreover, by not examining him, no prejudice has been caused to the accused persons. Further, if accused persons considered that the testimony of this witness could have been in their favour, they had every opportunity to examine him as their defence witness, however, they chose not to examine him. Therefore, this argument does not hold much ground.
106. As regards the argument of defence that finger prints were not lifted from the crime spot or that no CCTV footage was obtained to corroborate the allegations against the accused persons, though both these evidences would have been of much assistance to this court in arriving at the decision in this case, however, it is also a fact that in this case, there is direct evidence in the form of testimony of PW-10 as well as other circumstantial evidences i.e the oil spilled all over the place outside the shop as is visible from the photographs Ex.PW-4/A1 to Ex.PW-4/A21, the smell of kerosene oil from the shop coupled with the factum of motive (mens rea) of accused persons that has been found duly proved on record through the testimonies of PW-10, PW-13, PW-18 and PW-23 clearly indicate and point towards the guilt of the accused persons. Furthermore, it is not the case of the defence that the CCTV SC No. 56627/16 State Vs. Krishna etc. Page 43 of 46 footage was available, however, same was deliberately not produced by the prosecution. If it was so, the defence had every opportunity to bring the CCTV footage on record, however, that was not done. Therefore, this argument has been made merely for the sake of argument without any substance.
107. Ld. Defence Counsel for accused Swarn Kanta has pointed out that as per the prosecution story, incident is of 8.20 am, whereas PW-7 SI Amrendra Kumar stated in his cross examination that he had received wireless message at about 8.15 am. In this regard, the testimony of PW15 HC Sumer Singh is relevant being the PCR Official who received the first call. He has deposed that at about 8.23 am, he received a call that on shop no. 147-148 near bus stand 830, one person is trying to immerse himself with kerosene oil. Form No. 1 Ex.PW24/A also shows the time of call at 8.24 am which means that after receiving the call, same was reduced to wireless text as reflected in Ex.PW24/A and hence shows time of 8.24 am. The contradiction pointed out regarding difference of time in the testimony of PW-7 where he states that he received a call at 8.15 am, does not make much difference, as he was Incharge, Crime Team and his deposition took place after more than two years of the incident. Hence, he is not expected to give the exact timings. Moreover, the difference of time as pointed out is not much as would prove fatal to the prosecution case.
108. The argument of accused Swarn Kanta that site plan does not bear the signature of PW-10 Saurabh Arora does SC No. 56627/16 State Vs. Krishna etc. Page 44 of 46 not affect the case of the prosecution in any manner. A person whose father had died before his eyes can be expected to be under great stress and shock and hence, police under these circumstances, would not be expected to make him sign the documents.
109. Another argument of accused Swarn Kanta that PW- 10 Saurabh Arora has deposed that there was no enmity between deceased and her. I have perused the testimony of PW-10 to this effect wherein he has merely stated that his father had not made any complaint against accused Swarn Kanta ever. However, merely this piece of testimony does not automatically exonerate the accused Swarn Kanta of her guilt, the testimony of all the witnesses as a whole and the circumstances of the case are also the factors to be considered.
110. It is the settled proposition of law that merely the fact that there are certain lacunas in the case does not itself discredit the testimony of the prosecution witness where the facts and circumstances and the testimonies of the witness directly point towards the guilt of the accused. Therefore, the non lifting of finger prints, not obtaining of CCTV footage and minor differences of time, other lacunas pointed out by the defence do not affect the case of the prosecution in any manner and as such, accused persons are not entitled to any benefit.
111. Therefore, considering the entire facts and circumstances of the case and the documents including the post mortem report and FSL report, it can be safely held SC No. 56627/16 State Vs. Krishna etc. Page 45 of 46 that all five accused persons in furtherance of their common intention, caused the death of deceased by setting him on fire on 16.11.2012.
112. Therefore, in view of the above discussion, this court is of the considered opinion that prosecution has been able to bring home the guilt of the accused persons.
(E) CONCLUSION:
113. In view of above discussion, this court holds that all five accused are held guilty for committing offence punishable u/s 302/34 IPC.
114. Let they be heard on the point of sentence.
Digitally signed by POORAN CHANDPOORAN Date:
CHAND ANNOUNCED IN THE OPEN 2019.05.27 21:21:31 +0530 COURT ON THIS 20.05.2019 (POORAN CHAND ) ADDITIONAL SESSIONS JUDGE-02 (WEST):DELHI SC No. 56627/16 State Vs. Krishna etc. Page 46 of 46