Delhi District Court
State vs Vinay Tiwari on 22 December, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE 04
EAST: KARKARDOOMA COURTS: DELHI
SC No.970/2016
FIR No. 543/2009
U/s. 498A/304B/34 IPC
P.S Mandawali
In the matter of :
State
versus
Vinay Tiwari,
S/o Shri Subhash Tiwari,
Permanent r/o Village
Mahmada Chaube Tola,
PO & PS Mehsi,
Distt. Motihari (East
Champaran), Bihar.
Presently r/o U277,
Shakarpur, Delhi92.
Date of Institution : 01122015
Date of reserving Judgment : 17.12.2018
Date of pronouncement : 22.12.2018
Sessions CaseNo.970/2016 Page 1/51
Appearances
For the State : Shri. Ajit Kumar
Shrivastava, Additional
Public Prosecutor.
For accused : Shri S.K.Rai , Advocate.
JUDGMENT
1. Accused Vinay Tiwari son of Subhash Tiwari, aged about 36 years, was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) i.e chargesheet, submitted on 24.10.2015 upon conclusion of investigation into First Information Report (FIR) no. 543/2009 of police station (PS) Mandawali for the offences punishable under Section 498A/304B/34 of the Indian Penal Code, 1860 (IPC).
Prosecution Version
2. The prosecution story, in brief, is that on 05.04.2006 Rakhi (deceased) got married with accused Vinay Tiwari and thereafter accused subjected her to cruelty and harassment for dowry continuously and on 30.10.2008 at H.No. U226, Chander Vihar, PS Mandawali, Delhi, accused caused dowry death of Rakhi within seven years of Sessions CaseNo.970/2016 Page 2/51 her marriage due to cruelty and harassment in connection with demand of dowry.
3. As per charge sheet, on 30.10.2008 on receiving DD no. 32A, Head Constable (HC) Ramesh Chand reached at the spot i.e. 226, Chander Vihar, Delhi, where he came to know that injured lady has already been taken to LNJP Hospital. HC Ramesh Chand went to LNJP Hospital and obtained MLC no. 133155/08 of injured Rakhi w/o Vinay Tiwari (accused). He also made inquiry from injured Rakhi and her husband Vinay Tiwari. Injured Rakhi had stated that she was married about three years back and while she was working at home on Stove, the incident took place. Accordingly, HC Ramesh Chand informed area Executive Magistrate about the incident. Sh. P.K.Jayant, Executive Magistrate, Preet Vihar, reached in the Hospital and recorded statement of injured Rakhi, in which she stated that the incident was accidental and no one was responsible for the accident. On 22.01.2009 injured Rakhi died due to burn injuries received by her.
4. As per the chargesheet, a copy of letter addressed to the Hon'ble Chief Justice, High Court of Delhi, New Delhi, dated 26.12.2008, alleged to have been written by the deceased, was received in the police station and as per Sessions CaseNo.970/2016 Page 3/51 directions of senior officers statement of Smt. Mala Tiwari, mother of deceased, was recorded on the basis of which the present FIR No.543/2009 under Section 498A/304B/34 IPC was registered on 23102009. In her statement Smt. Mala Tiwari stated that she alongwith her family was residing in Jhuggi No. C35/59, Mata Sundari Road, behind Gurudwara, Delhi and that she was permanent resident of Village Pareva, Brahman Toli, PS Shikarganj, Distt. East Champaran, Motihari, Bihar. The complainant stated that his daughter Rakhi got married as per Hindu rites on 05.04.2006 with Vinay Tiwari s/o Subhash Tiwari, r/o Village Mahmada Chaube Tola, PS Mehsari, Distt. Motihari, East Champaran, Bihar. Further the complainant stated that after few days of marriage, her daughter Rakhi and soninlaw Vinay Tiwari started living in rented accommodation at U226, Chander Vihar, Mandawali, Delhi, as parentsinlaw of her daughter did not allow both of them to reside with them. Further, after the marriage, her soninlaw started pressurizing Rakhi to bring money from her parents and whenever Rakhi informed her about the said demands, she sometimes gave Rs. 2,000/ or Rs. 5,000/ to Rakhi. The complainant further stated that whenever she was not having money to give to Rakhi, then her soninlaw Sessions CaseNo.970/2016 Page 4/51 used to give beatings to Rakhi and whenever her daughter Rakhi used to inform her about the beatings given by accused, then she alongwith her husband used to visit Rakhi's house to make the accused understand. The complainant further stated that on 30.10.2008 her daughter Rakhi was admitted in LNJP Hospital in burnt condition and after 22 days her daughter Rakhi informed about her admission in LNJP Hospital in burnt condition from mobile No. 9911301654 The complainant further stated that despite the fact that she alongwith her family was residing near the LNJP Hospital, accused did not inform them about admission of Rakhi in the hospital. The complainant further stated that she alongwith her husband went to the hospital and started getting Rakhi treated. Further the complainant stated that at that time also Rakhi informed that her husband (accused) used to harass her for demands of dowry and that her daughter Rakhi died due to burn injuries. Further the complainant stated that her daughter died due to dowry demands made by her husband Vinay Tiwari.
5. On the basis of statement made by Smt. Mala Tiwari, Assistant SubInspector (ASI) Yadram got the present FIR registered on 23.10.2009. Further investigation of the case was done by SHO/Insp. Satish Bhardwaj, the investigation Sessions CaseNo.970/2016 Page 5/51 officer (IO) who recorded statements of father of deceased and one Neeraj Kumar, writer of letter. IO obtained original letter from the Hon'ble High Court and also got the spot of crime photographed from the Crime Team. Later on to ascertain authenticity of letter addressed to Hon'ble High Court, the said letter and original statement of deceased recorded by Sh. P.K.Jayant, Executive Magistrate, were sent to Finger Print Bureau, Delhi, on 25.05.2010, however, as per report of Finger Print Bureau, Delhi, the exhibits were blurred and as such were unfit for comparison.
6. During the investigation, I.O. recorded the statement of the witnesses and searched for accused Vinay Tiwari. On 10.03.2015 NBWs against accused Vinay Tiwari were obtained but he could not be traced out. Hence, on 02.06.2015 process u/s 82 Cr.P.C. were obtained against accused Vinay Tiwari and then accused surrendered before the court on 27.07.2015 and he was arrested.
7. After concluding the investigation, the I.O. came to a conclusion that sufficient evidence were collected against the accused Vinay Tiwari qua commission of offences under Section 498A/304B/34 IPC and thereafter, he prepared chargesheet and filed in the court on 24.10.2015.
Sessions CaseNo.970/2016 Page 6/518. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 498A/304B/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 21.11.2015 committed the case to the Court of Session for 01.12.2015.
Charge
9. On 14.12.2015, after hearing the learned Additional Public Prosecutor for the State and the counsel for the accused, charge was framed against the accused for commission of offences punishable under Section 498A/34 IPC and u/s 304B and in alternate u/s 302/34 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial. Prosecution Witnesses
10. To bring home the aforementioned charges to the accused, the prosecution got examined Ct. Gopal Giri (PW
1), Retired SI Phool Singh (PW2), Mala Tiwari (PW3), Dr. Ravindra Kumar (PW4), Dr. Varun Arya (PW5), Prabhu Shankar Tiwari (PW6), Dr. Mohit Chauhan (PW7), Naveen Kumar (PW8), Saroj (PW9), Neeraj Kumar (PW10), ASI Sessions CaseNo.970/2016 Page 7/51 Manoj Kumar (PW11), Arjun (PW12), HC Anil Kumar (PW13), ASI Ramesh Chand (PW14), retired SI Yad Ram (PW15), ASI Kiran Pal Singh (PW16), Vinod Kumar (PW17), P.K.Jayant (PW18), ASI Radhey Shyam (PW19), ACP Satish Bhardwaj (PW20), K.N.Singh (PW21), Retired ACP Dharampal Singh (PW22), SI Ashish (PW23), ACP Mahesh Tholia (PW24), Insp. S.S.Chauhan (PW25), retired SI Nand Kishore Singh (PW26), SI Narender Kumar (PW27), SI Rahul Kumar (PW28) and Santosh Tripathi (PW29).
Documentary Evidence
11. The prosecution also relied on following documents tendered into evidence i.e. copy of DD No. 12B dated 22.01.2009 (Ex. PW1/A), copy of DD No. 32A dated 30.10.2008 (Ex. PW2/A, statement of Mala Tiwari recorded by police (Ex. PW3/A), letter dated 26.12.2008 sent to the Hon'ble Chief Justice, Delhi High Court (Ex. PW3/B), MLC No. 13385 of Rakhi w/o Vinay (Ex. PW4/A), MLC death summary report of Rakhi (Ex. PW5/A), copy of letter written by Prabhu Shankar Tiwari to the SHO PS Mandawali requesting to record statement of Rakhi afresh (Mark PW6/A), statement of Prabhu Shakar Tiwari recorded by police on 26.11.2008 (Ex. PW6/B), statement of Prabhu Sessions CaseNo.970/2016 Page 8/51 Shakar Tiwari recorded by police on 22.01.2009 (Ex. PW6/C), statement of Prabhu Shakar Tiwari recorded by Sh. P.K.Jayant Executive Magistrate on 22.01.2009 (Ex. PW6/D), handing over receipt of dead body of Rakhi (Ex. PW6/E), post mortem report of Rakhi (Ex. PW7/A), a letter dated 12.12.2009 written to SHO PS Mandawali by Neeraj Kumar (Ex. PW10/A), photographs (Ex. PW11/A1 to A7), negatives of photographs (Ex. PW11/A8 to A14), seizure memo with respect to articles seized from the spot (Ex. PW13/A), DD No. 32A (Ex. PW14/A), statement of Rakhi recorded by ASI Ramesh Chand (Ex. PW14/B), statement of accused Vinay Tiwari recorded by ASI Ramesh Chand (Ex. PW14/C), rukka prepared on the statement of Mala Tiwari (Ex. PW15/A), dead body identification statement (Ex. PW15/B), Form no. 23.35 (Ex. PW15/C), entry no. 470/2047 in register no. 19 (Ex. PW16/A), R.C. No. 101/21/15 (Ex. PW16/B), copy of receipt regarding deposition of two sealed parcels in FSL (Ex. PW16/C), diary entry no. 237/Criminal1/DHC/New Delhi, dated 07.01.2010 (Ex. PW17/A), statement of deceased Rakhi dated 30.10.2008 recorded by Executive Magistrate (Ex. PW18/A), finger print examination report with respect to thumb impression of deceased Rakhi (Ex. PW21/A), Sessions CaseNo.970/2016 Page 9/51 application seeking issuance of NBWs against the accused Vinay Tiwari (Ex. PW23/A), application seeking issuance of process u/s 82 Cr.P.C. against the accused Vinay Tiwari (Ex. PW23/B), arrest memo of accused (Ex. PW23/C), copy of FIR (Ex. PW26/A), endorsement of Duty Officer on the rukka (Ex. PW26/B), site plan prepared by SI Narender Kumar (Ex. PW27/A), letter issued by ACP - Legal Cell (East) regarding nonavailability of dispatch register containing diary no. 16406 & 16407/Legal Cell (DA1), East, dated 17.12.2009 (Ex. PW28/A) and FSL report (Ex. PW29/A).
Statement of Accused
12. After conclusion of prosecution evidence, on 23.07.2018, statement of accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case at the instance of parents of his wife. His wife Rakhi was boiling milk for their daughter and in that process she caught fire.
13. The accused Vinay Tiwari did not lead any evidence in defence.
Sessions CaseNo.970/2016 Page 10/51Final Arguments
14. I heard the arguments advanced by Sh. Ajit Kumar Shrivastava, learned Additional Public Prosecutor for the State and Sh. S.K.Rai, learned counsel for the accused Vinay Tiwari. I also perused the entire material available on record.
15. During the course of arguments, learned Additional Public Prosecutor for State, while relying on Shudhakar v. State of MP, passed by the Apex Court on 24.07.2012 in Criminal Appeal No. 2472 of 2009, submitted that the prosecution successfully established that the accused had poured kerosene oil over the deceased and set her on fire, which resulted in her death. The accused intentionally did not inform the family members of the deceased. The deceased herself had telephonically informed her parents and also made dying declarations to them. The Ld. Prosecutor further argued that father of the deceased requested the police as well as the Executive Magistrate to record her statement again, which was not heeded to and finally the father approached one advocate, who recorded the statement of the deceased while she was lying admitted in the hospital and sent it to the Hon'ble Chief Justice of Delhi High Court and only thereafter the FIR in the present Sessions CaseNo.970/2016 Page 11/51 could be registered. Further, the testimonies of prosecution witnesses remained intact and no contradiction could be brought by the defence counsel. The conduct of the accused is also to be taken into consideration as he avoided his arrest and did not cooperate. Ld. Prosecutor lastly argued that the dying declarations made by the deceased to the police as well as the Executive Magistrate were not voluntary and truthful, whereas her subsequent dying declaration made to her family members and contained in letter addressed to the Hon'ble Chief Justice were free from any influence and were voluntary statements, wherein the deceased categorical held the accused liable for putting her on fire. There are no material contradictions in the testimonies of prosecution witnesses and therefore, prosecution succeeded in proving its case against the accused beyond reasonable doubts.
16. Per contra, Sh. S.K.Rai, learned Counsel for accused Vinay Tiwari argued that accused has been falsely implicated by the parents of his deceased wife Rakhi as they were pressurizing the accused to give money to them, which was denied by the accused. The dying declarations were voluntarily made by the deceased to the police as well as the Executive Magistrate, completely exonerating the accused. The deceased had also narrated true facts to the examining Sessions CaseNo.970/2016 Page 12/51 doctor. Further, the parents of the deceased, in collusion with the advocate, concocted and manipulated the facts and falsely implicated the accused in the present case. Besides, there are many contradictions pertaining to the demand of dowry in the testimonies of prosecution witnesses, which raises doubt on the prosecution version. The learned Defence Counsel in support of his contentions also relied upon State of UP v. Madan Mohan & Others, (1989) 3 SCC, 390; P.Mani v. State of T.N., (2006) 3 SCC, 161; Smt. Laxmi v. Om Prakash & Others, 2001 (2) JCC (SC) 71; K.Kamchandra Reddy & Another v. the Public Prosecutor, (1976) 3 SCC 618; Rasheed Beg & Others v. State of MP, (1974) 4 SCC 264; Uka Ram v. State of Rajasthan, 2001 (2) Crimes 188 (SC); Prabhir Mondal & Another v. State of West Bengal, 2009 (4) Crimes 153 (SC) and Ikramuddin v. the State, 2009 (3) JCC 2399. Ld. Counsel for accused lastly argued that the prosecution failed to establish its case beyond all reasonable doubts and the accused deserves acquittal.
17. I have given my thoughtful consideration to the submissions of both sides.
18. In the case in hand, accused has been charged for commission of offence punishable u/s 498A/34 IPC, u/s Sessions CaseNo.970/2016 Page 13/51 304/B IPC and u/s 302/34 IPC in the alternate. However, it appears that section 34 IPC was inadvertently mentioned in the charge as there is only one accused in the present case. As per order dated 14.12.2015 charge qua commission of offence punishable u/s 304B/498A IPC and in alternate u/s 302 IPC was ordered to be framed. No charge u/s 34 IPC was ordered.
Points for Determination:
19. In the light of facts and circumstances of the present case, following points for determination are arising in the present case:
(1) Whether the deceased was married with accused Vinay Tiwari?
(2) Whether the deceased died within seven years of her marriage ?
(3) Whether the death of the deceased was an unnatural one and not under normal circumstances ? (4) Whether soon before her death, the deceased was subjected to cruelty by the accused? (5) Whether the deceased was treated with cruelty or harassed for or in connection with any demand for dowry by the accused?Sessions CaseNo.970/2016 Page 14/51
(6) Whether the prosecution succeeded in establishing the essential ingredients of the offence under Section 304B IPC so as to raise the statutory presumption under Section 113B of the Evidence Act against the accused? (7) If the aforementioned presumption under Section 113 B of the Evidence Act is raised against the accused, whether the accused was able to rebut the said presumption? (8) Whether during her life time, the deceased was subjected to cruelty by the accused? (9) Whether the accused intentionally caused such injuries to the deceased?
Testimonies of Prosecution Witnesses
20. To bring home the said charges to the accused, 29 witnesses were got examined by the prosecution. For the sake of convenience, the testimonies of all the prosecution witnesses are referred in a tabular form hereunder:
S.No. Name of PW Nature of Testimony Documentary of PW Evidence PW1 Ct. Gopal Giri Recorded DD No. 12B Ex.PW1/A (Duty regarding death of Rakhi in Constable) JPN Hospital on 30.10.2008. PW2 Retired SI Deposed about registration of Ex.PW2/A Phool Singh DD No. 32A on 30.10.2008. (Duty Officer) Sessions CaseNo.970/2016 Page 15/51 PW3 Mala Tiwari Deposed about marriage of her Ex.PW3/A (complainant/ daughtger Rakhi with accused & mother of Vinay Tiwari and harassment Ex.PW3/B deceased of her daughter by accused and Rakhi) his family members for demands of dowry, treatment of Rakhi in LNJP Hospital for burn injuries; having informed by Rakhi in the hospital that she was burnt by accused by pouring kerosene oil upon her and she had given statement in favour of accused under pressure of accused; letter dated 26.12.2008 sent by Rakhi to High Court and death of Rakhi on 22.01.2009.
PW4 Dr. Ravindra Proved the MLC No. 13385 of Ex. PW4/A Kumar patient Rakhi prepared by Dr. Gaurav Sagar.
PW5 Dr. Varun Proved his endorsement on the Ex.PW5/A
Arya MLC of Rakhi Ex. PW4/A;
about death of Rakhi on
22.01.2009 and preparation of
death summony report by him.
PW6 Prabhu Deposed about marriage of his Ex.PW6/A,
Shankar daughtger Rakhi with accused Ex. PW6/B,
Tiwari Vinay Tiwari; harassment of Ex. PW6/C,
(Father of his daughter by accused for Ex. PW6/D
deceased demands of dowry; treatment and Ex.
Rakhi) of Rakhi in LNJP Hospital for PW6/E.
burn injuries, having informed
by Rakhi in the hospital that
she was burnt by accused after
pouring kerosene oil upon her
and that she had given
statement in favour of accused
Sessions CaseNo.970/2016 Page 16/51
under pressure of accused and
his uncle Shatrughan Tiwari;
letter dated 26.12.2008 sent by
Rakhi to High Court and death
of Rakhi on 22.01.2009.
PW7 Dr. Mohit Proved the post mortem report Ex. PW7/A
Chauhan prepared by Dr. Bajraj Kumar
Singh of deceased Rakhi.
PW8 Naveen Kumar Deposed about marriage of his Ex.PW
(brother of sister Rakhi with accused 8/A,Ex.PW
deceased Vinay Tiwari; harassment of 8/B, Ex.
Rakhi) his sister by accused for PW8/C and
demands of dowry; treatment Ex. PW8/D. of Rakhi in LNJP Hospital for burn injuries, having informed by Rakhi in the hospital that she was burnt by accused by pouring kerosene oil on her and that she had given statement in favour of accused under pressure of accused.
PW9 Saroj Deposed about having seen (landlady of Rakhi in burnt condition in accused & tenanted room and presence of deceased) accused in the room as well.
PW Neeraj Kumar Deposed about recording Ex.PW10/A 10 statement of Rakhi verbatim in LNJP Hospital as per directions of his senior Sh. A.K.Pandey, adv., and having written a letter to the SHO PS Mandawali.
PW ASI Manoj Deposed about his being Ex.
11 Kumar member of Mobile Crime Team PW11/A1 to and having taken seven A7 and Ex.
photographs at the spot. PW11/A8 to
A14.
PW Arjun Deposed about having Ex.PW12/A
Sessions CaseNo.970/2016 Page 17/51
12 (Landlord of informed by his wife Saroj that
accused and wife of his tenant i.e. accused
deceased Vinay got burnt and was taken
Rakhi) to the hospital.
PW HC Anil Deposed about having reached Ex. PW13/A
13 Kumar the spot on receiving
information about fire there;
that HC Ramesh also reached
there; that injured Rakhi
already taken to LNJP Hospital
and that he found burnt clothes,
a kerosene oil bottle, match box
and a gas cylinder at the spot,
which were seized by HC
Ramesh.
PW ASI Ramesh Deposed about having reached Ex. PW14/A,
14 Chand the spot with Ct. Masih Haider Ex. PW14/B
on receiving DD No. 32A; that and Ex.
Ct. Anil Kumar also reached PW14/C
there; that injured Rakhi
already taken to LNJP
Hospital; that he found burnt
clothes, a kerosene oil bottle,
match box and a gas cylinder at
the spot, which were seized by
him; that he reached LNJP
Hospital and recorded
statement of Rakhi; that he
informed Tehsildar Sh.
P.K.Jayant, who also recorded
statement of Rakhi in the
hospital; that lateron he
recorded statement of father of
Rakhi in LNJP Hospital and
thereafter on being his transfer,
he entrusted file to MHC(R).
PW Retired SI Yad Deposed about recording Ex. PW15/A,
15 Ram statement of Smt. Mala Tiwari Ex. PW15/B
Sessions CaseNo.970/2016 Page 18/51
asper direction of SHO and and Ex.
after preparing rukka getting PW15/C
the FIR registered; having got
conducted postmortem
examination on dead body of
Rakhi; getting Form No. 25.35
filled up and handing over dead
body of Rakhi to legal heirs of
deceased.
PW ASI Kiran Pal Proved the entry no. 470/2047 Ex. PW16/A,
16 Singh in register no. 19, copy of Road Ex.PW16/B
Certificate and copy of receipt andEx.
given by FSL Rohini. PW16/C
PW Vinod Kumar Deposed about receipt of letter Ex. PW17/A
17 (Judicial from ACP Office for sending
Assistant of the original letter/ complaint of Delhi High Rakhi and accordingly having Court) sent the same vide diary no.
237.PW P.K.Jayant Deposed about having recorded Ex. PW18/A 18 (Executive the statement of injured Rakhi Magistrate) in LNJP Hospital and lateron on receiving information about death of Rakhi, his reaching at LNJP Mortuary and preparing form 25.35(1)(b) and after postmortem handing over of dead body to her father and brother.
PW ASI Radhey Deposed about taking sealed 19 Shyam envelope and deposit of same at Finger Print Bureau vide RC No. 10/21.
PW ACP Satish Deposed about recording of 20 Bhardwaj statement of Neeraj Kumar and Prabhu Shankar Tiwari u/s 161 Cr.P.C. and receiving of Sessions CaseNo.970/2016 Page 19/51 original complaint from the Hon'ble High Court.
PW K.N.Singh(Fin Proved the finger print report Ex. PW21/A 21 ger Print with respect to thumb Expert) impression of Rakhi on original complaint/letter.
PW ACP Deposed about sending two
22 Dharampal documents in sealed envelop to
Singh Finger Print Bureau.
PW SI Ashish Deposed about obtaining NBW Ex. PW23/A,
23 and process u/s 82 Cr.P.C. Ex. PW23/B
against the accused and formal and Ex.
arrest of accused after he PW23/C.
surrendered in the court;
sending sealed parcels to FSL
and filing of charge sheet in the
court.
PW ACP Mahesh Deposed about obtaining
24 Tholia fingerprints result.
PW Insp. Deposed about recording of
25 S.S.Chauhan statement of Naveen Tiwari u/s
161 Cr.P.C.
PW Retired SI Deposed about recording of Ex. PW26/A
26 Nand Kishore FIR on the basis of rukka given & Ex.
Singh by ASI Yad Ram. PW26/B
(Duty Officer)
PW SI Narender Deposed about recording Ex. PW27/A
27 Kumar statement of witnesses namely
Saroj and Arjun and prepared
site plan.
PW SI Rahul Deposed about nontraceability Ex. PW28/A
28 Kumar of diary no. 16406 and
16407/Legal Cell (DA1) East
dated 17.12.2009.
PW Santosh Deposed about chemical Ex. PW29/A
29 Tripathi examination report.
Sessions CaseNo.970/2016 Page 20/51
(Senior
Scientific
Officer
Chemistry,
FSL)
ANALYSIS :
Points for determination nos. 1, 2 & 3 :
21. As per the testimonies of Mala Tiwari (PW3), Prabhu Shankar Tiwari (PW6) and Naveen Kumar (PW8) deceased got married with the accused on 05.04.2006 as per Hindu rites and ceremonies. SI Phool Singh (PW2) received a PCR call at about 6.02 pm on 30.10.2008 regarding one lady who had got burnt at H.No. 226, School Block, Mandawali. The said information was recorded by him vide DD entry no. 32A Ex. PW2/A.
22. Dr. Ravinder Kumar (PW4) identified the writing and signature of Dr. Gaurav Sagar Srivastava on MLC Ex. PW4/A whereby the deceased was examined, who was brought to the hospital with alleged history of burns due to burst of cooking stove. As per MLC Ex. PW4/A, superficial to deep burns involving face, both hands (upper limb), thoraic and back approximately 65% were observed.
Sessions CaseNo.970/2016 Page 21/5123. Dr. Varun Arya (PW5) deposed that on 30.10.2008 the deceased was admitted with alleged history of accidental flame burns at around 4.00 pm as told by the deceased herself. PW5 also deposed that according to the patient i.e. deceased, she was preparing some home remedy / medicine for her sick child on kerosene stove, which got burst and her clothes caught fire due to which she sustained flame burns. PW5 further deposed that on presentation patient was fully conscious. A clinical diagnosis of 60% of total body surface area flame burns and facial burns was made. PW5 also made endorsement on MLC Ex. PW4/A to the effect that the patient was fit for statement. Subsequently, she died on 22.01.2009 at 6.20 am vide MLC Death Summary Ex. PW5/A.
24. Dr. Mohit Chauhan (PW7) proved the postmortem examination report Ex. PW7/A, prepared by Dr. Bajraj Kumar Singh, whose handwriting and signature on the said report were duly identified by PW7. As per postmortem examination report Ex. PW7/A following observations were made:
a) Superficial to deep burns were present over the face, neck, front and back of chest, upper front of the abdomen, front & back of upper limb, Sessions CaseNo.970/2016 Page 22/51 upper part of gluteal region, front of right lower leg and some parts around both knee joints covering approximately 50% of total body surface area.
b) Peeling of skin was present at places revealing greenish, yellowish base covered with greenish - yellowish necrotic slough. Body hairs were burnt and singed off at places. No other injury was present over external surface of body.
The cause of death was opined to be septicemia consequent upon burn injuries. All injuries were antemortem in nature and could be caused by flames of fire.
25. In view of testimonies of above mentioned prosecution witnesses it is evident that the deceased, daughter of PW3 and PW6, was married to the accused on 05.04.2006. The deceased was admitted in the hospital on 30.10.2008 due to suffering burn injuries and during treatment she died on 22.01.2009 in the hospital. The deceased died within seven years of her marriage. The death of the deceased was an unnatural one and not under normal circumstances.
Sessions CaseNo.970/2016 Page 23/5126. Points for determination no. 1, 2 and 3 are decided accordingly.
Points for determination nos. 4, 5, 6 & 7 :
27. Accused has been charged with commission of offences punishable u/s 498A IPC, u/s 304B IPC and u/s 302 IPC in the alternative, which are taken up for discussion one by one.
Section 304B IPC Section 304B IPC is reproduced as under for ready reference :
304B. Dowry death (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. For the purpose of this subsection, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).Sessions CaseNo.970/2016 Page 24/51
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
28. Section 113B of the Evidence Act stipulates about the presumption as to dowry death which reads as under:
113B. Presumption as to dowry death when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation: For the purposes of this Section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).
29. In view of the Explanation attached to Section 304B IPC, the word "dowry" has to be understood as defined in Section 2 of the Dowry Prohibition Act, 1961 which reads as under:
2. Definition of "dowry" In this Act, "dowry"
means any property or valuable security given or agreed to be given either directly or indirectly Sessions CaseNo.970/2016 Page 25/51
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
30. First and foremost, to attract the offence stipulated under Section 304 B IPC, death of a woman must be a "dowry death". As per Section 2 of the Dowry Prohibition Act, 'dowry' means any property or valuable security which can be given or agreed to be given, either directly or indirectly by one party to a marriage to the other party or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other persons. Such giving or agreeing to give can be at any time at, before or at any time after the marriage. Such giving or agreeing to give must be in connection with the marriage of the parties.
31. As per the settled propositions of law, in order to convict an accused for the offence punishable under Section Sessions CaseNo.970/2016 Page 26/51 304B IPC, the following essentials must be proved by the prosecution:
(i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband; and
(iv) Such cruelty or harassment must be for, or in connection with, demand for dowry.
32. As far as commission of offence u/s 304B IPC is concerned, in Sher Singh @ Pratapa v. State of Haryana, Crl. Appeal No. 1592 of 2011, dated 09.01.2015, the Apex Court held that it is for the prosecution to prove that a "dowry death" has occurred namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out Sessions CaseNo.970/2016 Page 27/51 to her continued to have a causal connection or live link with the demand of dowry. It was further held that once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.(Emphasis supplied).
33. In another judgment titled as Ramakant Mishra @ Lalu etc v. State of U.P, in Criminal Appeal No. 12791281 of 2011, passed on February 27,2015, the Apex Court cited with approval Sher Singh (supra) case wherein it had been held that the use of word "shown" instead of "proved" in Section 304B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, "shown" will have to be read up to mean "proved", but only to the extent of preponderance of probability. Thereafter, the word "deemed" used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The "deemed" culpability of the accused leaving no room for the accused to prove innocence was, accordingly, Sessions CaseNo.970/2016 Page 28/51 read down to a strong "presumption" of his culpability. However, the accused is required to dislodge this presumption by proving his innocence beyond reasonable doubts as distinct from preponderance of probability.
34. In V.K Mishra & Anr. v. State of Uttarakhand & Ors., 2015 Crl.L.J.4021, which was delivered by the Hon'ble Bench of three Judges, Sher Singh @ Pratapa (supra) case and Ramakant Mishra @ Lalu (supra) case were referred with approval to lay down that where the prosecution has shown 'that soon before her death the deceased was subjected to cruelty or harassment by the husband or inlaws in connection with demand for dowry, the presumption under Section 113 B of the Evidence Act arises and the Court shall presume that such person who had subjected the woman to cruelty shall be presumed to have caused the dowry death, however, the presumption that arises in such case may be rebutted by the accused'.
35. In view of the abovementioned authoritative pronouncement of the Hon'ble Bench of three Judges of the Apex Court, it is, therefore, clear that it is for the prosecution to prove that a "dowry death" has occurred in terms of Section 304B IPC that is to say death of a woman was caused by any burns or bodily injury or occurred Sessions CaseNo.970/2016 Page 29/51 otherwise than under normal circumstances, within seven years of her marriage and soon before her death, she was subjected to cruelty or harassment by her husband or any of his relative, in connection with the demand for dowry and once these essential ingredients are established or shown or proved by the prosecution, even by preponderance of possibility, the essential presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt beyond reasonable doubt.
36. A perusal of testimonies of Mala Tiwari (PW3), Prabhu Shankar Tiwari (PW6) and Naveen Kumar (PW8) would reveal that the accused would offen beat the deceased and would also pressurize her for bringing cash from her parents. Both PW3 and PW6 deposed about the harassment of the deceased by the accused on account of dowry demand and a sum of Rs. 2000/ and Rs. 5000/ paid to the accused on different occasions to meet his demands. It is amply clear that the testimonies of PW3, PW6 and PW8 regarding demand of dowry by the accused is a vague one as no particular incident or specific demand were deposed by them. Admittedly, the aforementioned prosecution witnesses Sessions CaseNo.970/2016 Page 30/51 had no contact with the deceased from August 2008 and it was only on 19.11.2008 that one phone call was received from the deceased, who told that she was lying admitted in LNJP Hospital. Besides one or two instances of payment of Rs. 2,000/ and Rs. 5,000/ to the accused to meet his demands and vague allegations regarding demand of dowry, there is no evidence available on record to show that soon before her death, the deceased was treated with cruelty, for, or in connection with any demand of dowry. Hence, in my considered opinion, the prosecution failed to prove the essential ingredients of the offence punishable u/s 304B IPC against the accused. Accordingly, presumption available u/s 113B of the Evidence Act cannot be invoked against the accused, requiring him to rebut the same beyond reasonable doubt. The accused is, thus, entitled to be acquitted for the offence punishable u/s 304B IPC.
37. Points for determination no. 4, 5, 6 and 7 are decided accordingly.
Point for determination no. 9 : Section 302 IPC
38. In the present case, accused has also been charged alternatively for commission of offence punishable under Sessions CaseNo.970/2016 Page 31/51 Section 302 IPC. The aforesaid provision is reproduced as under:
302.Punishment for Murder Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
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, or 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 bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.Sessions CaseNo.970/2016 Page 32/51
39. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299. Culpable homicideWhoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
40. As per the facts available on record, it is clear that the deceased got married with the accused on 05.04.2006 and was residing with the accused and her 1½ years old girl child at U226, Chander Vihar, Mandawali, Delhi. The deceased was admitted in severely burnt condition in LNJP hospital on 30.10.2008. Her statements Ex. PW14/B and Ex. PW18/A were recorded on the same day. The deceased informed her parents telephonically on 19.11.2008 about her lying admitted in the hospital. On 26.11.2008 statement Ex. PW6/B of her father Prabhu Shankar Tiwari (PW6) was recorded by ASI Ramesh Chand (PW14). Prabhu Shankar Tiwari (PW6) had also written one letter dated 16.12.2008 (Mark PW6/A) to SDM. Thereafter, one letter dated 26.12.2008 Ex. PW3/B, addressed to the Hon'ble Chief Sessions CaseNo.970/2016 Page 33/51 Justice of High Court of Delhi was sent. The deceased expired on 22.01.2009.
41. It is worthy to note that the FIR in the present case could be registered only on 23.10.2009. Neeraj Kumar (PW10) had also written one letter dated 12.12.2009 (Ex. PW10/A) to SHO PS Mandawali. During investigation accused could not be arrested and surrendered in the court only on 28.07.2015.
42. The case of the prosecution is primarily based on the dying declarations given by the deceased - oral as well as one reduced into writing. As per the testimonies of prosecution witnesses, the dying declarations given by the deceased were reduced into writing by ASI Ramesh Chand (PW14), which is Ex. PW14/B dated 30.10.2008 and by P.K.Jayant (PW18), Executive Magistrate, which is Ex. PW18/A dated 30.10.2008. Further, the deceased made oral dying declarations to her mother Mala Tiwari (PW3), father Prabhu Shankar Tiwari (PW6) and brother Naveen Kumar (PW8). Deceased also made dying declaration to Neeraj Kumar (PW10), an advocate, who reduced the same into writing vide letter dated 26.12.2008 Ex. PW3/B, addressed to the Hon'ble Chief Justice, High Court of Delhi.
Sessions CaseNo.970/2016 Page 34/5143. As far as the law regarding probative value of a dying declaration and of multiple dying declarations is concerned, the Apex Court dealt with the subject in great details in Shudhakar (Supra) case and referred a large number of cases. As far as the admissibility and evidentiary value of a dying declaration is concerned, in Bhajju @ Karan v. State of M.P., (2012) 4, SCC 327, it was laid down that Section 32 of the Evidence Act was an exception to the general rule against admissibility of 'hearsay' evidence. Further, clause (1) of Section 32 makes statement of the deceased admissible which has been generally described as 'dying declaration'. The Court, in no uncertain terms, held that it cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. The dying declaration, if found reliable, could form the basis of conviction. It was also laid down in Surender Kumar v. State of Haryana, (2011) 10 SCC 173, that 'when a dying declaration is true and voluntary, there is no impediment in basing the conviction on such a declaration, without corroboration. However, simultaneously, in Chirra Shivraj v. State of Andhra Pradesh, (2010) 14 SCC 444, the Apex Court expressed a caution that a mechanical approach in relying Sessions CaseNo.970/2016 Page 35/51 upon the dying declaration, just because it is there, is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed. Further, while dealing with the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, the Apex Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710, held that the Court has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. It was further laid down that normally in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, the Court looks up to the medical opinion but where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, Sessions CaseNo.970/2016 Page 36/51 nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. The Apex Court further laid down that a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise, will suffice provided the indication is positive and definite. What is essentially required, is that the person who records a dying declaration, must be satisfied that the deceased was in a fit state of mind.
44. Thus, as far as the dying declarations made by the deceased are concerned, there are two sets of dying declarations which were reduced into writing - (1) statement of deceased reduced into writing by ASI Ramesh Chand (PW14), which is Ex. PW14/B and statement of deceased reduced into writing by the Executive Magistrate P.K.Jayant (PW18), which is Ex. PW18/A. (2) Statement of deceased reduced into writing by Neeraj Kumar (PW10), an advocate, which is Ex. PW3/B, which was sent to the Hon'ble Chief Justice of High Court of Delhi.
45. Besides the abovementioned documents, there are oral dying declarations made by the deceased to her family members i.e. PW3, PW6 and PW8.
Sessions CaseNo.970/2016 Page 37/5146. Applying the settled propositions of law regarding multiple dying declarations as mentioned above, to the facts of the present case, it would become clear that initially the deceased did not level allegations against any person including the accused in her statements to ASI Ramesh Chand (PW14) as well as to P.K.Jayant (PW18). In both the statements, deceased stated that she was working on stove, when the stove was burst and she caught fire. The deceased did not hold any persons responsible for the said incident.
47. On the other hand, in her oral statements to her family members i.e. PW3, PW6 and PW8, the deceased while lying admitted in the hospital, categorically stated that she was burnt by the accused by pouring kerosene oil on her on the day of Bhaiya Dooj i.e. on 30.10.2008. Similarly, as per letter Ex. PW3/B addressed to the Hon'ble Chief Justice of High court of Delhi, the deceased gave a detailed account how the accused poured the kerosene oil on her and set her on fire. The deceased also explained that she was threatened by the accused for not disclosing anything in this regard to the police or anybody else otherwise her parents and daughter would also meet the same fate. She further stated that she gave her statement to the police as per the Sessions CaseNo.970/2016 Page 38/51 directions of the accused, which was not her voluntary statement.
48. The testimonies of PW3, PW6 and PW8 regarding the deceased making oral dying declarations implicating the accused in categorical terms could not be contradicted by the ld. Defence counsel in crossexamination.
49. Prosecution, then, got examined Neeraj Kumar (PW10), writer of the letter Ex. PW3/B, who deposed that at the relevant time he was not registered as an advocate but was working in a Law Firm namely Pandey & Associates situated at Mandawali where Prabhu Shankar Tiwari (PW6) had come and informed about burning of his daughter who was lying admitted in LNJP Hospital. PW10 further deposed that as per direction of his senior Sh. A.K.Pandey, he accompanied Prabhu Shankar Tiwari to the said hospital to record the statement of deceased, who was lying admitted there. PW10 further deposed that the deceased was badly burnt but was conscious and fit to give statement, accordingly, PW10 recorded her statement (Ex. PW3/B) verbatim in his own handwriting on which deceased had also put her right thumb impression at PointQ. PW10 also deposed about writing a letter Ex. (PW10/A) to SHO PS Mandawali regarding recording of statement of deceased Sessions CaseNo.970/2016 Page 39/51 on 26.12.2008 and for taking necessary steps. PW10 deposed in categorical terms that he had recorded the statement of the deceased verbatim and at that time the deceased was conscious and fit for statement.
50. PW10 was crossexamined at length by the ld. Defence counsel wherein he stated that Prabhu Shankar Tiwari (PW6) was not advised to file a complaint case u/s 200 Cr.P.C. alongwith application u/s 156 Cr.P.C. or to move an application to the IO/Duty Magistrate for recording second dying declaration of the deceased. PW10 had also not consulted the doctor concerned, if the deceased was fit to give her statement. He further denied the suggestions that he had not visited the hospital or that he had not recorded the statement of the deceased.
51. As observed above, the testimonies of PW3, PW6 and PW8 regarding the deceased making oral dying declarations, implicating the accused in clear terms, could not be contradicted in their respective crossexaminations. The testimony of PW10 regarding his visit to the hospital and recording the statement of the deceased in his own handwriting also remained unshattered in cross examination. The contentions of the ld. Defence counsel that PW10 did not consult the doctor concerned to know if Sessions CaseNo.970/2016 Page 40/51 the deceased was fit for statement, is not meritorious in view of law laid down in Laxman (Supra) case where it was held that where the eye witness state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that in the absence of fitness certificate by the doctor, the dying declaration is not acceptable. The testimony of PW10 regarding the deceased being conscious and fit to make statement could not be impeached and is reliable. The fact that PW10 did not advise Prabhu Shankar Tiwari to file a criminal complaint or to approach the IO/Duty Magistrate to redress his grievance, is not material to doubt the unimpeachable nature of his testimony in recording the statement of the deceased vide letter Ex. PW3/B and sending the same to the Hon'ble Chief Justice of Delhi High Court.
52. In the aforediscussed circumstances, the oral dying declarations made by the deceased to her family members i.e. PW3, PW6 and PW8 as well as to PW10, which was reduced into writing vide letter Ex. PW3/B, are voluntary and truthful and can be relied upon.
53. As far as the dying declarations made to ASI Ramesh Chand and the Executive Magistrate - P.K.Jayant, which are Sessions CaseNo.970/2016 Page 41/51 Ex. PW14/B and PW18/A respectively are concerned, it is worthy to note that both the aforesaid dying declarations were made by the deceased on the day of incident itself i.e. 30.10.2008, in the presence of the accused. Therefore, the possibility of accused intimidating or threatening the deceased not to give her statement against him, cannot be absolutely ruled out more so when the deceased explained subsequently for not making statement against the accused in view of threats extended by him to cause harm to her family members as well as to her daughter. Even otherwise, both the statements Ex. PW14/B and Ex. PW18/A runs counter to the evidence available on record as no kerosene or any other kind of stove in a burst condition was found on the scene of occurrence. As per the testimonies of ASI Ramesh Chand (PW14) and HC Anil Kumar (PW13), who had reached the spot on the day of incident almost immediately on receipt of DD No. 32A (Ex. PW14/A), some burnt clothes with smell of kerosene, one steel bowl, one 5 liter gas cylinder with burner, one bottle containing small quantity of kerosene, match boxes and few burnt and unburnt match sticks were found, which were duly seized and sealed. Both the witnesses duly identified the aforementioned case property Ex. P1 (collectively), P2 and Sessions CaseNo.970/2016 Page 42/51 P3. No contradiction worth the name of it could be brought in their testimonies by the ld. Defence counsel in cross examination.
54. Further, as per postmortem examination report Ex. PW7/A, deceased suffered burn injuries also on back portion of her body, which could be possible when the kerosene oil was poured over her and not in the case of bursting of any stove. The photographs MarkA1 to A7 of the deceased in burnt condition, kept on record also corroborate receiving burn injuries by the deceased on her back portion of the body.
55. As per statement Ex. PW14/B there was a fire in the house due to bursting of stove, which was put out by the neighbourers and the accused was informed, who brought the deceased to the hospital. As per statement Ex. PW18/A, the fire occurred when the deceased was heating milk for her daughter and the stove bursted. The deceased sustained burn injuries and was rescued by the neighbourers, who took her to the hospital and called the accused telephoniclaly. The presence of the accused at the relevant point of time was deposed by Saroj (PW9), who had rushed to the room seeing the smoke. PW9 also deposed that the accused had taken the deceased to hospital, which also Sessions CaseNo.970/2016 Page 43/51 negate the contents of statements Ex. PW14/B and Ex. PW18/A where it was stated that the neighbourers had brought the deceased to the hospital and accused was informed telephonically subsequently. The MLC Ex. PW4/A also mentions that the deceased was brought by her husband.
56. During the course of arguments ld. Defence counsel submitted that the thumb impression of the deceased affixed on letter Ex. PW3/B did not match with her thumb impression on statement Ex. PW14/B and statement Ex. PW18/A and therefore the letter Ex. PW3/B is not reliable. Having perused the aforementioned documents, I do not find any merit in the contentions of Ld. Defence counsel. A bare perusal of document Ex. PW14/B and Ex. PW18/A would show that the thumb impressions of the deceased were not clear and were blurred. Even her thumb impression on letter Ex. PW3/B was not disclosing complete ridge details. Sh. K.N.Singh (PW21), Fingerprint Expert, had examined the admitted as well as questioned thumb impressions of the deceased on the exhibits sent to FSL, which were found partial and blurred and not disclosing sufficient number of ridge details in their relative position. Vide report Ex. PW21/A, the admitted and questioned Sessions CaseNo.970/2016 Page 44/51 thumb impressions of the deceased were found unfit for comparison.
57. Ld. Defence counsel also argued that the prosecution did not examine Ghanshyam, whose phone was used by the deceased in making call to her parents, which raises doubt on the prosecution version. In this regard, it suffice to say that as per the testimony of SI Narender Kumar (PW27), the complainant was not aware of the whereabouts of said Ghanshyam and the mobile call records of said Ghanshyam could not be made available due to lapse of time. PW27 was not crossexamined and even not a single suggestion was given to him by the ld. Defence counsel in this regard.
58. Vide FSL report Ex. PW29/A which was proved by Sh. Santosh Tripathi (PW29), Exhibit2 i.e. three matchboxes containing some burnt and some unburnt match sticks and one deformed plastic bottle containing approximately 2 ml of transparent liquid, was found to contain 'kerosene'. Residue of kerosene / diesel / petrol could not be detected in Exhibit1 i.e. partially torn clothes, one shawl and one steel bowl, which can be understood considering the time spent in sending the exhibits to FSL and their examination and in view of evaporating properties Sessions CaseNo.970/2016 Page 45/51 of kerosene. The same is accordingly not fatal to the case of the prosecution.
59. Besides the above mentioned evidence on record, the conduct of the accused also assumes significance so as to be taken into consideration u/s 8 of the Evidence Act. Admittedly the deceased remained admitted in the hospital from 30.10.2008, however, her family members were not informed by the accused, though they were residing nearby the hospital. It was only on 19.11.2008 that the parents of the deceased could come to know about her when she made a telephonic call to them. After the demise of the deceased, the accused absconded and surrendered in the court only on 28.07.2015 when the proceedings u/s 82 Cr.P.C. were initiated against him. Moreover, in his examination u/s 313 Cr.P.C. accused also gave evasive answers and did not explain the incriminating circumstances sufficiently eg. in answer to question no. 8 regarding his presence at the spot as deposed by Saroj (PW9), accused denied it for want of knowledge. In the next question no. 9 accused admitted that Saroj (PW9) had come to know that the deceased got burnt while boiling milk on the stove and he had taken her to the hospital. Further, in answer to question no. 50, the accused completely changed his defence when he stated that the Sessions CaseNo.970/2016 Page 46/51 deceased was boiling milk for her daughter and in the process she caught fire, though throughout the trial, the defence of the accused remained that the kerosene stove on which the deceased was working, had got burst, which resulted in deceased sustaining burn injuries.
60. Taking the entire facts and circumstances into consideration, in my considered opinion, the dying declarations initially made by the deceased to ASI Ramesh Chand (PW14) vide her statement Ex. PW14/B and to Sh. P.K.Jayant (PW18) vide her statement Ex. PW18/A were not voluntary and were not made with free will of the deceased. The dying declaration made by the deceased vide letter Ex. PW3/B was voluntary and truthful. Simultaneously, the oral dying declarations made by the deceased to her family members were also voluntary and truthful. The deceased was conscious and fit to make the aforesaid statements. Moreover, the dying declarations Ex. PW14/B and Ex. PW18/A could not be corroborated from the evidence collected, rather, the evidence collected ran counter to both the statements.
61. As far as the judgments relied upon by the ld. Defence counsel are concerned, suffice it to say that all the judgments reiterate the settled propositions of law regarding Sessions CaseNo.970/2016 Page 47/51 dying declarations, which were elaborately dealt with in Shudhakar (Supra) case. The settled law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring or imagination.
62. To conclude, at the cost of repetition, in the light of aforediscussed entire facts and circumstances, it is evident that the deceased was conscious and fit to make statements how she suffered burn injuries. The dying declarations exhibit Ex. PW14/B and Ex. PW18/A were not made with free will and voluntarily by the deceased. The evidence available on record also do not corroborate both the aforementioned statements. The dying declarations vide letter Ex. PW3/B was voluntary and truthful, detailing the circumstances leading to the burn injuries sustained by the deceased. Even otherwise the kind of burn injuries suffered by the deceased clearly shows that she was intentionally and deliberately set on fire, which was not accidental in nature Sessions CaseNo.970/2016 Page 48/51 as no burst kerosene stove could be found on the scene of occurrence. The testimonies of family members of the deceased as well as the independent witness namely Neeraj (PW10) remained firm and could not be contradicted in any manner whatsoever. On the other hand, the conduct of the accused throughout remained suspicious and unexplained. Hence, in my considered opinion, it was the accused and only the accused who intentionally poured kerosene oil over the deceased and set her on fire on 30.10.2008. The accused is accordingly held guilty for commission of offence punishable under section 302 IPC.
Point for determination no. 8 : Section 498A IPC :
62. Section 498A IPC is reproduced as under for ready reference :
498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.Sessions CaseNo.970/2016 Page 49/51
Explanation. For the purpose of this section, "cruelty" means
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
63. From the testimonies of Mala Tiwari (PW3), Prabhu Shankar Tiwari (PW6) and Navin Kumar (PW8) as well as dying declaration of the deceased Ex. PW3/B, as discussed in detail above, it is also established that the deceased was subjected to cruelty by the accused during her life time, which was of such a nature as is likely to cause grave injury or danger to her life, limb or health and therefore, accused is also held guilty for commission of offence punishable u/s 498A IPC.
64. Point for determination no. 8 is decided accordingly. CONCLUSION :
Sessions CaseNo.970/2016 Page 50/5165. In view of findings on all points for determination, accused Vijay Tiwari s/o Subhash Tiwari is accordingly convicted for the offence punishable u/s 302/498A IPC. Accused, however, stands acquitted for commission of offence punishable u/s 304B IPC.
66. Let the convict Vinay Tiwari be heard on the point of sentence. order Digitally signed by KULDEEP NARAYAN KULDEEP Location: East NARAYAN District Karkardooma Courts, Delhi Date: 2018.12.22 17:17:06 +0530 (Pronounced in the open (Kuldeep Narayan) Court on 22.12.2018 ). Addl. Sessions Judge 04 (East) Court No. 10: Karkardooma Courts Delhi Sessions CaseNo.970/2016 Page 51/51