Delhi District Court
State vs . Veer Singh Etc. on 18 October, 2011
State Vs. Veer Singh etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 21/2009
ID No. 02403R0466062005
State Vs. : 1. Veer Singh
S/o Sh Khem Chand
2. Daya Ram
S/o Sh Khem Chand
3. Khem Chand
S/o Late Salga
4. Bhagwati @ Bhago
W/o Sh Khem Chand
5. Kaushalya
W/o Sh Daya Ram
All R/o B200, Gali No. 11,
Bhajan Pura, Delhi.
FIR No. 252/99
P.S. Vasant Kunj
U/s 498A/406/506/302/34 IPC
SC No. 21/2009 1/43
State Vs. Veer Singh etc.
Date of Institution : 08/02/2000
Date when arguments
were heard : 01/10/2011
Date of Judgment : 18/10/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief, the facts of the prosecution case are as follows:
On 06/02/97 marriage of Usha, herein after called deceased, was performed as per Hindu Rites and Ceremonies with Veer Singh, accused. In the marriage two wheeler scooter, TV, fridge, cooler, furniture, utensils and cash were given by the family of deceased to her in laws. The deceased started residing with her in laws at B200, Gali No. 11, Bhajan Pura, Delhi at her matrimonial home.
On 20/08/98, an information was received at police station Bhajan Pura and SI Sanjeev Sharma with Ct Aatma Ram reached at GTB hospital where the deceased, then injured, was SC No. 21/2009 2/43 State Vs. Veer Singh etc. found admitted vide MLC and also the accused Veer Singh was admitted vide MLC, both having received burn injuries and they were declared unfit for statement, under the influence of sedative. The deceased, then injured, Usha then sustained 30% burn injuries and accused Veer Singh sustained 40% burn injuries. On having come to know that marriage of deceased Usha with accused Veer Singh took place in February, 1997, SI Sanjeev Sharma informed the SDM Seelampur who in turn asked the said SI that when these persons viz., accused Veer Singh, then injured Usha were fit for statement then he may be informed. SI Sanjeev Sharma returned back and lodged DD vide No. 23A at 1.30 am on 20/21.8.98, at police station Bhajan Pura. Previously in DD No. 112B also the information was recorded about the admission of Usha and Veer Singh in the hospital.
DD No. 20A, dated 21/08/98, police station Bhajan Pura was recorded as SI Sanjeev Sharma had returned that day from GTB Hospital after Usha, then injured and accused Veer Singh were declared fit for statement by the doctor; SDM Sh Prakash Chand was informed who in turn asked SI Sanjeev Sharma to ask Sh R.P SC No. 21/2009 3/43 State Vs. Veer Singh etc. Meena, SDM Seelampur and said Sh R.P Meena, SDM came to the hospital and recorded the statement of Usha as .....
"Q Aapka avom Pati Ka Naam Kya? Ans Usha avom Pati Ka Naam Dheer Singh Hai. Q Ghar Mein Kaun Kaun Rehate Hai Avom Kaya Kabhi Kisi Se Jhagda Hota Tha?
Ans Saas Sasur avom Pati Rehate. Kabhi Kisi Koi Jhagda Nahi Hota Tha.
Q Shadi Ko Kitne Saal Ho Gaye avom Kitne Bache Hai? Ans Pichli February mei avom ek bachi hai.
Q Abhi Aag Kaise Lagi?
Ans Stove par khana bana rahi thi to gas jyada bharne se stove mei bhabhka hua avom tel jor se bahar aya avom mere salwar suit mei aag lag gayi to bahar bhaghi to mere pati nei pakad liya to unko bhi aag lag gayi.
Q Kaya kisi ki koi sikayat?
Ans Nahi."
Sh R.P Meena, SDM gave his certificate that he had
SC No. 21/2009 4/43
State Vs. Veer Singh etc.
recorded the aforesaid in his own hand at GTB Hospital on 21/08/98.
Even SI Sanjeev Sharma also recorded the statement of Usha, then injured, as Ex PW7/K himself and the version given by Usha to the then SDM was again reiterated there and saying her husband tried to save her and none was at fault for this occurrence which was an accident.
Complaint dated 03/05/99 signed by Usha (now deceased), daughter of Reshwati through Sh S.K Kaushik, Advocate for offences under Sections 406/498A/307/34 IPC as a legal aid case aided by Delhi Legal Services Authority at Patiala House Courts was filed on 04/05/99 in the court of Ld. ACMM, New Delhi and was assigned to Ld. Magistrate. On 04/05/99 Ld Magistrate considering the allegations to be serious in nature, directed the SHO, police station Vasant Kunj to register a FIR on the basis of complaint as it was disclosed in the complaint that the injured was having 40% burn injuries on her body. SHO/IO was directed to to take appropriate steps to record the statement of complainant/injured. In the said complaint complainant had levelled the allegations of her being subjected to cruelty by her husband, accused Veer Singh and the SC No. 21/2009 5/43 State Vs. Veer Singh etc. relatives of the husband. Complainant also levelled allegation that on 19/08/98 her husband in drunken condition gave her beatings, sprinkled kerosine oil on her and burnt her, she had caught hold of her husband in burning condition but the other accused gave beatings to her with danda and hockey stick, thereafter they took her under water tap and later they took her to hospital and asked her to give the statement that she was accidentally caught fire while cooking the food. She also alleged of being threatened that in case she gives other statement then they would kill her mother and daughter.
Unfortunately, for the complainant, before her statement could be recorded, she expired, though FIR was registered on 12/05/99.
The aforesaid FIR was registered on the basis of complaint of the deceased addressed to SHO, police station Vasant Kunj, delivered there on 18/02/99 with the mention of the husband accused Veer Singh, mother in law Bhago and father in law having started harassing the deceased after her marriage, asking her to bring money from her mother for expenses; deceased having told the said harassment facts to her mother upon which her mother started SC No. 21/2009 6/43 State Vs. Veer Singh etc. giving Rs 1,000/ per month to accused Veer Singh out of which accused Veer Singh used to give some money to his father as his father used to bring household goods; after consuming liquor, accused Veer Singh used to ask the deceased to bring atleast Rs 2,000/ per month from her mother or else he will make the condition of deceased very bad and sometimes in front of his parents, brother, sisterinlaw used to beat deceased; on 04/01/98 a daughter was born to the deceased and her mother came to Bhajan Pura on calling of the deceased and then in laws of the deceased demanded Rs 2,000/ per month for expenses of deceased and her daughter; mother of the deceased told the accused that she was not having such income and then brotherinlaw of deceased started abusing mother of deceased; deceased told her motherinlaw, fatherinlaw and husband that her brotherinlaw should not have insulted her mother upon which the brotherinlaw of deceased namely Daya Ram, accused slapped deceased in front of her mother and sent the deceased with her mother without any goods; husband of deceased brought her back to Bhajan Pura in the month of February and after that brotherinlaw Daya Ram and sisterinlaw of deceased namely SC No. 21/2009 7/43 State Vs. Veer Singh etc. Kaushlya used to taunt deceased and said sisterinlaw said to deceased that the house where she was living was in the name of her husband and she would get the deceased turn out of the house; one day brotherinlaw and sisterinlaw of deceased in front of mother inlaw, fatherinlaw and husband of deceased said that the deceased was characterless, having illicit relations with somebody; that day husband and brotherinlaw of deceased gave her beatings; pursuant to that husband of deceased used to give her beatings after consuming liquor daily while in laws of deceased used to incite the husband of deceased; on 19/08/98 husband of deceased at 11 pm came after consuming liquor, started beating deceased, upon hearing noise the motherinlaw, fatherinlaw, brotherinlaw and sisterinlaw of deceased came there; husband of deceased threw deceased on the ground, brought stove from the kitchen, poured kerosene oil upon her and said that he will burn her today; by pulling deceased in the chowk, husband Veer Singh ignited the match stick and put deceased on fire; to save herself, deceased rose, apprehended her husband accused Veer Singh and then fatherinlaw and brotherinlaw of deceased hold one hand each of deceased and got the husband of SC No. 21/2009 8/43 State Vs. Veer Singh etc. deceased separated from her; deceased was made to sit under the tap in the bathroom, brought to hospital; the brotherinlaw and fatherin law of deceased threatened her saying that she has only to say that while cooking on the stove, she caught fire while if she says otherwise then the mother of deceased and daughter of deceased would be killed and because of such threat and on account of fear, she could not tell the true fact to anybody.
Matter was investigated.
Charge sheet was filed for offences under Sections406/498A/307/304B/34 IPC against the arrayed accused.
2. On completing the requirements of Section 207 Cr.P.C, the case was committed to the Court of Sessions.
CHARGE:
3. In terms of order dated 08/01/2001 of my Ld. Predecessor charge for offence under Section 302 IPC against accused Veer Singh and for offences under Sections 498A/34 IPC; 406/34 IPC and 506/34 IPC was framed on 25/01/2001 against all five arrayed SC No. 21/2009 9/43 State Vs. Veer Singh etc. accused persons to which accused persons pleaded not guilty and claimed trial.
WITNESSES:
4. To connect the accused with the offences charged, the prosecution has examined in all 11 witnesses namely PW1 Reshwati; PW2 Prem Kumar; PW3 Dr. Indu Sharma; PW4 Sh Arun Kumar Mishre; PW5 Dr. R.K Nagar; PW6 Dr. Kalpana Gupta; PW7 SI Dharam Dev; PW8 Capt. (Dr.) Gopal Bhagat; PW9 Dr. S.F Ali; PW10 Sh Vijender and PW11 Dr. Chandra Kant.
STATEMENTS OF ACCUSED:
5. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false implication.
Accused alleged that they have been falsely implicated in this case by PW1, mother of deceased and PW2 brother of deceased while the deceased caught fire accidentally while cooking and all SC No. 21/2009 10/43 State Vs. Veer Singh etc. efforts were made to put out the fire by accused Veer Singh and other persons including the arrayed accused; in the process accused Veer Singh sustained 40% burn injuries; deceased was then got admitted for treatment for her burn injuries in GTB hospital from where she had been got discharged by PW1, mother of deceased against the medical advice and despite insistence of accused persons for her continued treatment in the said hospital itself.
Accused denied to lead defence evidence.
ARGUMENTS
6. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
7. Ld. Addl. PP argued that though in her first dying declaration deceased exonerated the accused persons but on record is her complaint addressed to the Metropolitan Magistrate disclosing harassment meted to her, dowry demand by the accused, where the allegations of torture are clear and even the deceased was put to fire SC No. 21/2009 11/43 State Vs. Veer Singh etc. by the accused husband Veer Singh and only because deceased having caught hold of accused Veer Singh, accused Veer Singh sustained burn injuries and not due to any act of saving of deceased. It was also argued that the factum of making complaint need not be proved since after making complaint, before recording of her statement under Section 164 Cr.P.C, unfortunately deceased expired while even the Free Legal Aid Counsel provided by Delhi Legal Services Authority namely Sh S.K Kaushik had also expired and despite orders of this court could not be brought to the witness box. Ld. Addl. PP for the State has prayed for conviction of the accused persons.
8. Ld. Defence Counsel argued that deceased caught fire accidentally while cooking on stove at her matrimonial home, was never harassed pursuant to her marriage by any or all accused, the burn injuries sustained by deceased required specialized treatment, which was not available at all hospitals but despite insistence of the accused persons, mother of deceased PW1 Smt Reshwati got deceased Usha discharged against medical advice from GTB SC No. 21/2009 12/43 State Vs. Veer Singh etc. Hospital and appropriate medical treatment was not provided by PW1 who took the deceased at her home and got the deceased treated by quacks; deceased died due to negligence of her mother PW1 and brother PW2; to satisfy own ego, PW1 got manufactured the complaint addressed to the SHO and the court while in her own dying declaration given at the outset by deceased to the SDM, deceased had exonerated all accused saying none of the accused was responsible for her burn condition as she caught fire accidentally.
It was also argued that from the testimony of PW8, it is vivid and clear that he gave ante dated certificate. Also was argued that the complaint purportedly of the deceased addressed to the Metropolitan Magistrate at present at the most could be treated as statement under Section 161 Cr.P.C since on account of her expiry, deceased could not enter into the witness box nor give any statement under Section 161 Cr.P.C and even the Advocate who had filed the complaint as Free Legal Aid Counsel, had expired and could not be examined. Also was argued that no neighbor of the matrimonial home of the deceased was examined in the course of investigation to corroborate the version of the prosecution. To save own skin for SC No. 21/2009 13/43 State Vs. Veer Singh etc. having caused death of deceased by own negligence, mother of PW1 and PW2 brother of deceased concocted the story of harassment of deceased, not only improving upon the version of deceased initially given to SDM exonerating accused, but also put forth an absolutely new story cooked up to falsely implicate the accused with the vindictive attitude; no admissible evidence had been collected on record by the investigating agency to prove its case against the accused and on record there is no reason to disbelieve the dying declaration given by deceased to the SDM at the outset. Ld. Defence Counsel vehemently argued that prosecution has miserably failed to prove its case against the accused beyond reasonable doubt while infact accused Veer Singh himself had tried his level best to save deceased Usha who caught fire accidentally and in the process accused Veer Singh also sustained 40% burn injuries on his person. RELEVANT LAW:
9. Section 406 of IPC has three limbs : (1) a person should have been entrusted with property, or entrusted with dominion over property; (2) that person should dishonestly misappropriate or convert SC No. 21/2009 14/43 State Vs. Veer Singh etc. to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (3) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
Section 498A IPC has two limbs. The first limb of Section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. 'Cruelty' has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman . When there is harassment of the woman for demand of dowry, any property or valuable security or is on account of failure by her or any person related to her to meet such demand then the case comes under clause (b) of the Explanation to Section 498A.
In terms of Section 506 IPC, threat to another is to be for an injury to the other person, reputation or property or to the SC No. 21/2009 15/43 State Vs. Veer Singh etc. person or reputation of anyone in whom that person is entrusted; the intent has to be to cause alarm to that person to cause him to do an act which he is not legally bound to do or omit to do an act which that person is legally entitled to do.
To secure conviction of accused Veer Singh for offence under Section 302 IPC, it was bounden duty of the prosecution to prove that the accused Veer Singh had put Usha, now deceased on fire with intent to cause her death or knowing it to be likely to cause her death or with the knowledge/intention of causing such bodily injuries to her which were sufficient/likely to cause death in the ordinary course of nature.
10. In the case of Gokul vs State, 2009 Cri.L.J (NOC) 979, Hon'ble Mr Justice Pradeep Nandrajog held that "32 The admissibility of a dying declaration as a piece of evidence is an exception to the general rule of exclusion of hearsay evidence. 'A person will not meet his Maker with a lie in his mouth' is the philosophy underlying admissibility of dying declaration as a piece of evidence. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eye witness SC No. 21/2009 16/43 State Vs. Veer Singh etc. to a crime or him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. The judicially evolved rules of caution for acceptance of dying declaration are being enumerated herein under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and it it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting of imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying SC No. 21/2009 17/43 State Vs. Veer Singh etc. declaration looks up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration, could be held to be trustworthy and reliable, it has to be accepted.
(xii) The law does not provide that a dying declaration should be made in any prescribed manner or should be in the form of questions and answers. Only because a dying declaration was not recorded by a Magistrate, is no ground to disbelieve a dying declaration."
APPRECIATION OF EVIDENCE:
11. PW1 Smt Reshwati, mother of deceased Usha and PW2 Prem Kumar, brother of deceased Usha in their deposition stated that Usha was married to accused Veer Singh on 06/02/1997 according to Hindu Rites and Customs and they had given sufficient articles like two wheeler scooter, TV, fridge, cooler, furniture, utensils etc to Usha. There is no whisper in their testimonies of any of the Istridhan/ dowry articles were ever entrusted at any point of time to any of the arrayed accused, premarriage or post marriage of deceased with accused SC No. 21/2009 18/43 State Vs. Veer Singh etc. Veer Singh; or at any point of time exercising dominion over such articles, any or all accused converted, used or disposed any such articles in violation of any trust reposed or against wishes of Usha; or any demand was made by the deceased during her life time or PW1 or PW2 or any other relatives of deceased Usha later to her death made any demand for return of any such articles; or consequent thereto any or all accused had refused to return any such articles. In this fact of the matter the prosecution has miserably failed to prove its case against the accused for the offence under Section 406 IPC read with Section 34 IPC against the accused persons.
12. Both PWs 1 and 2, in the course of their cross examination, admitted that they were not witnesses of the occurrence of the burning incident of Usha; that they had gone to the GTB Hospital to meet deceased Usha when she was alive, on the next day of occurrence and on conversation with Usha, the deceased had not told any untoward incident to either PW1 or PW2. PW1 elicited that she was alone when she met Usha in GTB hospital on the next day of occurrence and then she had already been given treatment by SC No. 21/2009 19/43 State Vs. Veer Singh etc. the doctor in the hospital and the deceased had told her that her clothes had got fire due to bursting of the stove. PW2 testified that he with his maternal uncle had reached GTB Hospital at 4 pm on 20/08/98 and his mother PW1 had reached there at 6.30 pm. PW2 had found his sister admitted in hospital, receiving treatment. PW2 also stated that he had talked to Usha in the hospital in the presence of all family members and that Usha had informed him in the hospital that it was only an accident and no body was responsible for the same. PW2 further added upon by saying that he was unable to say whether accused Veer Singh had suffered burn injuries while he was trying to burn Usha or save Usha from burning. Finding it convenient, the prosecution through Addl. PP for the State dropped Sh R.P Meena, SDM and SI Sanjeev Kumar as prosecution witnesses on 26/09/05 and 29/10/09 before my Ld. Predecessors. It was SI Sanjeev Sharma who had reached GTB Hospital from police station Bhajan Pura pursuant to receiving of information of the burning of Usha and was instrumental in calling upon Sh R.P Meena, the then SDM, Seemapuri for recording of the statement of Usha while she was getting treatment of her burn injuries in said hospital. Fact remains SC No. 21/2009 20/43 State Vs. Veer Singh etc. that the statement of Usha recorded by Sh R.P Meena, the then SDM, placed on record alongwith chargesheet by the investigating agency and exhibited as Ex PW7/L being part of the chargesheet can be so read against the prosecution. The afore stated statement of Usha in Ex PW7/L has been reproduced verbatim herein before at the outset at page 4 and is not repeated again for the sake of brevity. In said statement the deceased had narrated to Sh R.P Meena, the then SDM about the cause of fire as that she was cooking food on the stove, then on filling excess gas in the stove, suddenly flame came out, the oil also came out and the salwar suit of deceased caught fire, she ran outside but her husband when caught her, he also caught fire. The deceased also stated that she had no grievance against anybody. Even to her mother PW1 and brother PW2, the deceased in the hospital had stated that her burning was an accident, which fact PW1 and PW2 admitted in the course of their deposition.
13. PW1 elicited that she lodged complaint in February, 1999 with Delhi Legal Services Authority and Usha herself had written the complaint because her right hand was not burnt while she had SC No. 21/2009 21/43 State Vs. Veer Singh etc. not come to DLSA due to her indisposition. On record is a copy of complaint, running into three sheets, a typed matter in Hindi wherein hand writing is only three lines bearing in Hindi, ' Sh SHO Saheb Vasant Kunj Police Station New Delhi purportedly bearing signature of deceased, without any date and a stamp and receiving of Reader to SHO police station Vasant Kunj with the date 18/2. The relevant text of the said letter is herein before mentioned in pages 6 and 7, again not reproduced for the sake of brevity. The allegations contained in the afore referred three pages letter purportedly delivered on 18/02/99 at police station Vasant Kunj finds mention of gamut of allegations per se entirely different as to what is mentioned in the criminal complaint case filed before Ld. ACMM, New Delhi and assigned to Ld. Metropolitan Magistrate. In the lodged criminal complaint case dated 3/05/99 there is no mention of any of the accused, inlaws of deceased, having ever said of deceased to be characterless, having illicit relations with anybody; on the night of occurrence when accused Veer Singh started beating deceased, upon hearing noise, the motherinlaw, fatherinlaw, brotherinlaw and sisterinlaw of deceased having come there, husband accused Veer SC No. 21/2009 22/43 State Vs. Veer Singh etc. Singh having thrown deceased on ground, brought stove from kitchen, poured kerosene from the stove upon her saying that he will burn her that day; the deceased having been pulled by her husband to the chowk where Veer Singh having ignited the match stick and there having put deceased on fire or the fatherinlaw and brotherinlaw of deceased having got husband of deceased separated from her but entirely new version is there in para 6 of criminal complaint dated 03/05/99 where it is mentioned that .......
"6. That on 19.8.98, the accused no. 1 came in his house in drunken condition and starting beating the complainant and sprinkle kerosene oil on her person and burnt her. In burning condition she caught hold of her husband but all the other accused persons started beating her with danda and hockey stick, thereafter they put the complainant under water tap and thereafter they took her to hospital and asked her to give the statement that she was accidentally got fire while cooking the food. They further threatened that in case she give some other statement they will kill her mother and daughter."
14. PW1 testified that Sh S.K Kaushik had got prepared the SC No. 21/2009 23/43 State Vs. Veer Singh etc. said criminal complaint which she took to her house, got the signature of her daughter. It is the admitted case of PW1 and PW2 that deceased had no meeting with Sh S.K Kaushik, Advocate at her home before filing of the criminal complaint dated 3/5/99 and also that Smt Usha had not gone to the office of Sh S.K Kaushik, Advocate or Patiala House Court to meet him.
15. In terms of the pronouncement in the case of Thangarasu & Anr. Vs State, 2010 Crl. L.J 1299, wherein the statement of the victim recorded by the police sub inspector became the basis of registration of FIR which after death of the maker of such statement was not proved by reliable evidence, so it was held that convicting a person on such averment in the complaint was not in accordance with law as the said statement was not found to be fit in any of the clauses amongst 1 to 8 of Section 32 of the Indian Evidence Act. Also was held that such statement stands not on a better footing than the statement of witness recorded by police under Section 161 Cr.P.C.
SC No. 21/2009 24/43
State Vs. Veer Singh etc.
16. The aforesaid criminal complaint dated 03/05/99 filed in court on 4/5/99 signed by Usha, deceased, drafted by Sh. S. K. Kaushik, Advocate accordingly has not been proved to have been containing the facts verbatim of the grievances of the deceased Usha since it was PW1 who brought the said typed complaint at her home, got it signed from Usha while Usha had neither met Sh. S. K. Kaushik, Advocate at any place nor instructed him to draft such complaint and in no manner said complaint stands on a better footing than a statement of witness recorded under Section 161 Cr.P.C and cannot be construed as a dying declaration.
17. PW8 Captain (Dr.) Gopal Bhagat testified that he was the CMO at Primary Health Centre, Mehrauli and for the first time examined Usha, deceased, then injured, who came to his centre at Mehrauli on 3/02/99. PW8 elicited that he examined the deceased, then injured, as patient and given her treatment on 03/03/99, 18/03/99 and 3/04/99. PW8 though admitted of having issued certificate Ex PW8/C, dated 3/1/99, of having certified Usha, deceased, to be under his treatment since 29/10/98 to 3/04/99 as a SC No. 21/2009 25/43 State Vs. Veer Singh etc. case of burns but he failed to give any explanation as to how he issued such certificate on 3/1/99 of Usha being under his treatment since 29/10/98 till 3/4/99 whereas neither before 3/2/99 PW8 ever examined or met the deceased nor treated her and how it could be possible for PW8 to have issued a certificate on 3/1/99 to have treated the deceased till 3/4/99. Per se, certificate Ex PW8/C, as per own testimony of PW8 is a sham document which cannot be relied upon.
18. PW8 also elicited that the record of the treatment of the patients in his Primary Health Centre, Mehrauli was being maintained at that time. Further PW8 elicited that no record of diagnosis of a patient or treatment given to him/her was being maintained separately in any register, only the pharmacist used to maintain a record of the medicines prescribed by a doctor and supplied by the pharmacist of the Primary Health Centre. PW8 also admitted that the OPD hours of Primary Health Centre, Mehrauli at that time were from 9 am to 3 pm where he was available there for 24 hours being CMO and resident of same building while the charge of medicines SC No. 21/2009 26/43 State Vs. Veer Singh etc. remained with pharmacist who was available till 3 pm, the sisters used to keep some medicines for emergency purposes.
19. PW1 categorically admitted her daughter, Usha was not admitted in hospital after discharge from GTB Hospital and she was treated at home. PW1 further clarified that she had first taken her daughter to MCD dispensary in Mehrauli and thereafter her daughter was treated at home only. Even PW2 also elicited in the course of his testimony that his sister, Usha, now deceased, after her discharge from GTB hospital was treated at home only. PW2 did not say at all of Usha, deceased having been taken to the Primary Health Centre, Mehrauli for treatment. Per contra PW8 had testified that he had examined Usha, now deceased as patient on 3/2/99, 3/3/99, 18/3/99 and 3/4/99 at Primary Health Centre, Mehrauli, in respect of which OPD slips Ex PW8/A and PW8/B were on record. Accordingly, the version of PW1 and PW2 on one hand and PW8 on other hand are inter se contradictory.
20. PW9 Dr. S.F Ali, BUMS, Supreme Medical Centre, SC No. 21/2009 27/43 State Vs. Veer Singh etc. Ghitorni testified that he treated Usha, now deceased, for burn injuries from 13/4/99 to 12/5/99 vide prescription Ex PW9/A. PW9 admitted that he had no qualification to treat the patient in Alloepathy while the medicines prescribed in the prescription slip were all alloepathic medicines. PW9 also denied that being an Ayurvedic doctor, he was not authorised to prescribe the aloepathic medicine. PW9 stated that he had treated the patient after physically examining her for which he visited her house daily at the asking of PW1 as his clinic was situated in their neighborhood and the condition of the patient was not such that she could be brought to his clinic. PW9 stated that he was told by the inmates of the house of deceased that the patient was being treated by some other doctor and he was only called for the dressing of the burn injuries. Also was elicited by PW9 that in his opinion Usha, now deceased, required admission but he never advised the mother of Usha to get her admitted in some hospital. PW9 stated that he did not maintain the treatment record of Usha as he had not considered her to be his patient as she was mainly getting treatment from some other doctor. SC No. 21/2009 28/43
State Vs. Veer Singh etc.
21. None amongst PW8 and PW9 were specialists of treating the burn injuries of patient. Specialized treatment of burn injuries was not provided in the Primary Health Centre, Mehrauli. PW1 admitted that she got discharged Usha from GTB Hospital because the hospital did not suit them as it was at much distance from her house and that she got her discharged in September after one month of the treatment at GTB hospital. After getting Usha discharged from GTB hospital against medical advice, PW1 took her to MCD dispensary in Mehrauli and then to her home where Usha was treated.
22. PW5 Dr. R.K Nagar, CMO GTB Hospital testified that as per MLC Ex PW5/A of 21/8/98 of GTB hospital, patient Usha, now deceased, was suffering (1.) injury over chest, abdomen, front and back and part of neck (2.) left and right arm and part of left thigh; total area of burn injuries being 30%.
23. PW11 Dr Chandra Kant while in Safdarjung Hospital conducted the postmortem on the body of deceased Usha on 13/5/99, SC No. 21/2009 29/43 State Vs. Veer Singh etc. found the body as emaciated, malnutrited; body was in private sheet; during external examination of the body, he found eyes were closed; mouth was closed; rigor mortis was well developed in both upper and lower limbs; postmortem staining was not appreciable due to ante mortem burns; there was no sign of putrification present. PW11 stated that during external examination of the deceased, he noted the following antemortem injuries: 'Approximately 45%, old infected deep antimortem burns covering the part of both upper limbs, front of neck, antero posterior aspect of thorax, part of left thigh including gluteal region; skin was pealed up from all the places revealing area of vital reaction; exposed area at places covered with healthy granulation tissues and at places with unhealthy granulation tissues emitting foul smell; process of formation of white soft scar at places present.' PW11 further stated that during internal examination of the deceased, he noted the following findings:
1. Brain was congested with petechael haemorrages
2. Both lungs were congested and oedematous
3. Kidneys were congested SC No. 21/2009 30/43 State Vs. Veer Singh etc.
4. Other organs were normal.' PW11 stated that he gave approximate time since death to be about 21 hours and as per his opinion the cause of death was due to shock and septicaemia as a result of 55% old deep infected antemortem burns caused by flames. PW11 had proved his detailed report Ex PW7/G. PW11 elicited that the difference of 10% in the burn injuries as given in his opinion was due to adding of the soft scar which were caused due to the burn injuries. PW11 could not say as to after how much time death can take place in the case of septicaemia patients.
24. Aforesaid antemortem burn injuries elicited in the course of postmortem examination revealed per se that the injuries sustained by the deceased Usha were not such which could be cured by treatment at home and for that also specialized treatment was required. In this world of specialized treatment, while the patient Usha was receiving treatment in the Government Hospital namely GTB Hospital she was got discharged by her mother PW1 against medical advice and subsequent thereto no specialized treatment for the SC No. 21/2009 31/43 State Vs. Veer Singh etc. burn injuries were provided to her. Whether or not the deceased Usha would have survived on getting the specialized treatment for burns, is a question for which there is no answer in the evidence on record. Fact remains, it was the infant daughter of the deceased who was the ultimate and the biggest sufferer on account of demise of deceased.
25. PW 5 Dr. R.K Nagar also elicited that as per MLC Ex PW5/B of 21/8/98 of GTB hospital accused Veer Singh sustained 40% burn injuries on whole chest and abdomen from front and back, left hand and right hand and forearm and nose tip.
26. On appreciation of the dying declaration of the deceased contained in Ex PW7/L recorded by Sh R.P Meena, the then SDM, Seemapuri on 21/08/98 elicited in detail herein before, it reveals of every likelihood of accused Veer Singh sustaining afore elicited burn injuries detailed in MLC Ex PW5/B, as per the version of the deceased that when her salwar and suit accidentally caught fire, she ran outside, her husband Veer Singh then caught her and as a resultant of it Veer Singh also caught fire.
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State Vs. Veer Singh etc.
27. If at all the version contained in the lodged complaint of deceased, addressed to SHO police station Vasant Kunj, delivered there on 18/2/99, elicited in detail herein before, was having an element of truth regarding the version of sustaining burn injuries by the deceased then when the husband of deceased i.e Veer Singh had thrown deceased on the ground, brought stove from the kitchen, poured kerosene oil upon her then there was every likelihood that scalp hair of the deceased would have caught fire. Neither in MLC Ex PW5/A of deceased nor in her postmortem report Ex PW7/G or in the testimony of Autopsy Surgeon PW11, there is any mention of the deceased having suffered burn injuries on scalp hair.
28. PW1 testified that she got Usha discharged in September after one month of her treatment from GTB hospital since accused were not properly looking after her daughter Usha, more over the hospital did not suit them as it was at much distance from her house and had taken her daughter Usha at her home where she was treated. PW1 also elicited that after she had brought her daughter SC No. 21/2009 33/43 State Vs. Veer Singh etc. Usha, accused persons had never enquired about her well being nor they had visited her house, accused did not interact with her in any manner and no telephone calls were received. On 13/3/07 PW1 deposed before my Ld. Predecessor that no accused had met her from September, 1998 till the filing of the present case while PW1 had free conversations with her daughter Usha in her home after she was shifted there. Also PW2 testified before my Ld. Predecessor on 26/09/2005 that he had no conversation with the accused persons since the date of incident to the date of his deposition. PW1 had testified that her daughter Usha had not stated anything against accused persons till April 1998 when she was at her home, however later on when she was about to die she narrated the whole story of the accused persons having starting harassing her, used to demand more dowry, other accused used to instigate accused Veer Singh to make such demand from Usha, accused Veer Singh used to give beating to Usha under influence of liquor; on 19/08/98 at 11 pm accused persons namely Veer Singh, Bhago, Khem Chand, Daya Ram, Kaushlya set Usha on fire by pouring kerosene oil on her; again PW1 said that Usha told her that in the intervening night of SC No. 21/2009 34/43 State Vs. Veer Singh etc. 19/20.8.98 she was given beatings by accused Veer Singh under influence of liquor and Veer Singh poured kerosene oil in the presence of other arrayed accused while then Usha was set on fire by accused Veer Singh and when Usha tried to save herself, caught Veer Singh but the other accused persons the fatherinlaw and Jeth forcibly removed the hands of Usha when she was catching hold Veer Singh to save herself and Usha was made to sit under the water tap; then Usha was given threat by the accused persons not to disclose the fact of burning to anyone and in case she will tell the same to anyone they will kill the daughter of Usha and due to which Usha had not disclosed these facts to PW1 due to fear.
29. After the deceased had been taken to her parental home by PW1 mother, she did not leave the parental home subsequently, in terms of the version of PW1 and PW2. If that be so, how could the three pages letter purportedly delivered to SHO police station Vasant Kunj on 18/2/99 referred herein before at page 6 and also in para 13, later bearing signature of Usha, come into existence as PW1 had stated that the deceased Usha had not stated anything against the SC No. 21/2009 35/43 State Vs. Veer Singh etc. accused persons to her till April of next year of occurrence; PW2 did not say of having delivered such aforesaid letter.
30. Admittedly there was no communication between the then injured Usha, her mother PW1 and brother PW2 on one side and the accused persons on the other side from the period from September 1998 when PW1 got Usha discharged from GTB hospital and shifted her to her home up to the period of filing of the present case. PW1 stated that she had taken leave for one and a half months from her office after the occurrence of burns to her daughter and thereafter she had attended her office while the motherinlaw of PW1 used to look after Usha. PW1 also stated that they had filed the complaint only after they had lost the hopes of the survival of Usha and the doctor had stated that Usha would not survive for long. It is the case of PW1 and PW2 as well as the prosecution that under fear and threat of the accused persons, in her dying declaration to the SDM, the deceased had not imputed any allegations of putting her on fire by accused. After injured Usha was taken to her parental home by PW1 in September, 1998 and at that place , as per PW1, she SC No. 21/2009 36/43 State Vs. Veer Singh etc. had free conversation with her brother and mother, while none of the accused had any communication with either deceased or her parental relatives then by no figment of imagination it could be presumed nor proved that deceased was under any fear or pressure for concealing her ordeal of harassment or putting on fire by any or all accused, if it so happened, PW2 stated that after few days of the occurrence, the infant daughter of Usha was brought by them. PW1 as well as PW2 in the course of their testimonies have already admitted that deceased in the GTB hospital during course of her admission stated to them of having caught fire accidentally, elicited herein before. Ex PW7/L; the statement/dying declaration of deceased accordingly does not appear to be suspicious or an out come of any tutoring, prompting or imagination but its careful scrutiny reveals it to be coherent, not suffering from any infirmity nor is there any basis to reject the same, but it appears to be trustworthy and reliable, given first in point of time, so it is to be preferred, finding no ground to disbelieve it. Reliance placed upon the pronouncement in cases of (1) Gokul (Supra); (2) Kishan Lal Sethi vs. Jagan Nath and Another, AIR 1990 SC 1357.
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State Vs. Veer Singh etc.
31. The allegations levelled against the accused persons by PW1 mother and PW2 brother of deceased are quite vague and not descriptive of any date of demands or harassment or cruelty subjected to the deceased Usha. More so these allegations have been levelled after several months of keeping quiet by these witnesses after the occurrence of burning of Usha.
32. In the case of Thulia Kali v. State of T.N., A.I.R 1973 SC 501, it was held that ''First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the SC No. 21/2009 38/43 State Vs. Veer Singh etc. delay in the lodging of the first information report should be satisfactorily explained.''
33. In the case of Ramesh Baburao Devaskar vs State of Maharashtra, 2008 CRI.L. J. 372 it was held that ''In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the First Information Report was antetimed or not also requires serious consideration. First Information Report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting of lodging of First Information Report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a First Information Report is always considered to be vital.'' ''Proof of motive by itself may not be a ground to hold the accused guilty. Enmity, as is wellknown, is a double edged weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.''
34. Having got discharged Usha against medical advice SC No. 21/2009 39/43 State Vs. Veer Singh etc. from GTB hospital where Usha was receiving specialized treatment for 30% burn injuries, in September, 1998, deceased Usha was taken by her mother PW1 to her parental home; there no specialized treatment for burn injuries was provided to her and after several months when it was found by PW1, mother of Usha and PW2 brother of Usha that Usha would not survive for long, the complaint was preferred against the accused persons. The entire gamut of circumstances, elicited herein before, in my opinion raises considerable doubt regarding veracity of evidence of PW1 and PW2, the mother and brother respectively of Usha and the pointed infirmities in them and the allegations levelled in the referred complaint purportedly received on 18/2/99 in police station and criminal complaint case dated 3/5/99 and filed on 4/5/99, would render it unsafe to base the conviction of the accused upon them.
35. The delay in lodging the first information report appears to have resulted in embellishment, an element of creature of afterthought has crept in on account of which it has got bereft of the SC No. 21/2009 40/43 State Vs. Veer Singh etc. advantage of spontaneity and there is every likelihood of introduction of the coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
36. The elicited discrepancies have corroded the reliability, credibility and trust worthiness of the material witnesses and hence forth the prosecution case.
37. The circumstances since raise doubts against the presented case of prosecution, there being every likelihood of hypothesis presented by the accused being true of Usha, now deceased, having caught fire accidentally and her discharge from GTB hospital one month later to occurrence by PW1 against medical advice and non providing of specialized treatment of burn injuries to Usha turning fatal for Usha, all such chain of events being so possible from the evidence and material on record. The pieces of incriminating evidence and the evidence of material prosecution witnesses are not reliable, evidence not clinching and the SC No. 21/2009 41/43 State Vs. Veer Singh etc. circumstances, so proved, do not form such chain of events, as would permit no conclusion other than one of guilt of accused. Suspicion, howsoever, grave it may be cannot be a substitute for proof. Mere levelling of omnibous allegations of subjecting the victim to cruelty without any requisite details of torture, harassment of the victim lacking proving of any overt act attributed to accused make prosecution case of accused having subjected the victim to cruelty by accused, stand not proved. Reliance placed upon (1) Mrinal Kanti Roy Barman & Ors vs The State of Tripura, 2010 Crl.L.J 1679; (2) Sakharam and Another vs State of Maharashtra, (2003) 12 SCC 368 and (3) Girdhar Shanker Tawade Vs. State of Maharashtra, AIR 2002 SC 2078. There is also no reason to disbelieve the dying declaration Ex. PW7/L given by deceased to the SDM at outset embodying the version of having caught fire accidentally imputing no criminal act upon any accused, infact exonerating all accused.
38. Cumulative effect of entire discussions above is that the SC No. 21/2009 42/43 State Vs. Veer Singh etc. prosecution has not been able to prove its case against the accused beyond reasonable doubt for the offences charged. Accused are held not guilty and are accordingly acquitted. Their bail bonds are cancelled and sureties are discharged. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 18.10.2011 ASJ (FTC)/SD/ NEW DELHI.
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