Delhi District Court
State vs Dinesh Kumar Fir ... on 26 March, 2013
1
IN THE COURT OF SH. SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGEI (NORTH): ROHINI COURTS: DELHI
SC No.40/12.
FIR No.14/12.
PSSULTANPURI.
U/s.302 IPC
STATE
VERSUS
DINESH KUMAR S/O. BADRI PRASAD
R/O. H.NO.D20, INDRA JHEEL,
SULTANPURI, DELHI.
Date of Institution:06.07.2012
Date of Arguments:22.03.2013
Date of Judgment:26.03.2013
JUDGMENT
1. The brief facts of the prosecution case are that on 22.12.2011, Duty Ct. Dalbir from SGM Hospital informed to the duty officer of PS Sultanpuri that, Smt. Hunny w/o. Dinesh Kumar was admitted in the SGM Hospital in burn condition and accordingly DD No.59A was recorded and which was assigned to SI Dayanand Yadav SI reached at the hospital and collected MLC of the injured State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 1 of page 27 2 Hunny. He recorded statement of the Hunny, she stated that, 'she had burnt accidentally by kerosene stove. Later on Injured Hunny was shifted to RML hospital. On 02.01.2012 injured Hunny gave another statement that, 'she poured kerosene oil on herself and set her ablaze in anger as she had quarreled with her husband'. SI informed to the SHO and SHO directed him to inform the SDM as victim was changing her statement, therefore, SDM was informed on 09.01.2012 and he recorded statement of victim and in her statement she had stated that, "her husband had poured kerosene oil on her on 22.12.2011 and at that time and since her removed her shawl and poured kerosene oil on her suit, which she was wearing and thereafter her husband ablaze her suit, which she was wearing and when she shouted neighbourer came and thereafter on seeing her, neighbourer tried to save her. On the way he threatened her if she discloses the truth then he will give her mother and ran away with her child, therefore, she did not give truthful statement earlier".
2. SDM made endorsement on the said statement of injured Smt. Hunny and directed to register the FIR and accordingly present case FIR was registered u/s. 302 IPC. SI Dinesh prepared the site plan. On the same day Dinesh (husband of the deceased State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 2 of page 27 3 Hunny) got conducted the postmortem examination of the dead body of the deceased, collected the Postmortem Report and he also got prepared the scaled site plan, he arrested the accused Dinesh on 25.01.2012, recorded statement of witnesses time to time during investigation, and finally after completion of the investigations filed the chargesheet u/s. 307 IPC and accused was sent for trial. Later on Hunny expired and then supplementary chargesheet was filed u/s. 302 IPC against the accused.
3. After compliance of Section 207 Code of Criminal Procedure the case was committed to the court of Sessions and therefore assigned to this court for trial in accordance with law.
4. Vide order dated 24.07.2012 charges u/s. 302 IPC is framed against the accused Dinesh Kumar to which he pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined as many as 13 witnesses.
PW1Ghanshyam and PW2 Sohan Pal Singh are the neighbourer of the accused and deceased.
PW3 Shri Ajay Kumar, Deputy Director (Education), the then SDM who recorded the third dying declaration of the deceased, State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 3 of page 27 4 which he proved as Ex.PW3/A. PW4 HC Vijay, duty officer and who recorded the FIR Ex.PW4/A and Ex.PW4/B. PW5 SI Beer Singh is the duty officer and who recorded the DD No.59A.
PW6 SI Suresh Chand, Part IO only got conducted the Postmortem of the dead body of the deceased Hunny. Thereafter handed over the dead body to the relatives of the deceased.
PW7 HC Pushpender is also the duty office and he recorded the DD No.52A, which he proved as Ex.PW6/A. PW8 SI Mahesh Kumar is the draughtsman, who prepared the scaled site plan Ex.PW8/A. PW9 SI Dayanand Yadav is the first IO.
PW10 Dr. Munish Wadhawan, who conducted the postmortem of the deceased Ex.PW10/A. PW11 Ct. Prakash Chand is a formal witness and in his presence accused was arrested.
PW12 Dr. M. Dass, who had initially examined the deceased and proved the MLC Ex.PW12/A. PW13 Inspector Puran Pant is the last IO and who took State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 4 of page 27 5 the investigations after the death of the deceased and finally filed the chargesheet.
6. Thereafter statement of accused Dinesh Kumar u/s. 313 Cr.P.C was recorded in which he denied all the incriminating evidence put to him. He stated that he has been falsely implicated in this case at the instance of mother and maternal uncle of the deceased. His relation with the deceased was very good and during the period of 8 years of his matrimonial life, not a single complainant has been lodged by his wife or his in laws. This was an unfortunate moment, when the incident had happened. However, he does not prefer to lead any evidence in his defence.
7. I have heard the arguments from Shri A.K. Gupta, ld.
Addl. PP for the State and Shri Surender Yadav, ld. Counsel for the accused.
8. It is argued by the ld. Addl. PP for the State that though deceased Hunny had absolved the accused Dinesh in her two dying declaration but from the third dying declaration, it is proved that the said statements were given under threat of the accused. Therefore, rd both are not to be considered. Whereas in her 3 dying declaration to the SDM, deceased Hunny had categorically stated that accused State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 5 of page 27 6 had poured kerosene oil upon her and burnt her. Therefore, in these circumstances, accused Dinesh Kumar is liable to convicted.
9. On the other hand, ld. Counsel for the accused has contended that deceased had continued to change her version regarding the cause of death as in her first statement given to the IO/PW9 SI Dayanand Yadav, deceased Hunny had stated that she was burnt accidentally, as when she was pouring the kerosene oil in stove, some oil fell outside and when she burnt the match stick, the oil caught fire due to which her wearing suit are also caught fire. In her second statement, she stated that she had quarreled that the accused due to which she in anger put kerosene oil on herself and burnt herself. Whereas in her third statement given on 09.01.2012 she had alleged that accused had burnt her. He further contended that third dying declaration was recorded, after about 15 days of the incident under the tutoring of her parents and maternal uncle. Therefore, same is not reliable He further contended that there is no corroboration to the dying declaration of the deceased hence, the dying declaration cannot be relied upon, therefore, accused is entitled to be acquitted.
10. Accused Dinesh Kumar has been charged for murder of State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 6 of page 27 7 his wife Hunny. Section 302 IPC define murder 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.
11. Section 299 IPC deals with culpable homicide. It reads as under:
299. Culpable Homicide : Whoever 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, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death; or
iii)with the knowledge that the doer is likely by such act to cause death.
Section 300 IPC deals with murder. It reads as under :
300. Murder : State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 7 of page 27 8 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 2ndly--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 3rdly--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 4thly--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 as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 8 of page 27 9 of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
12. The deceased had died due to burning in an undisputed fact. From the postmortem report Ex.PW10/A, it is proved that deceased had following injuries: External Injuries:
(1) Deep Dermoepidermal burns present all over body blackish discoloration due to charring present all over body, skin is mostly burned exposing underlying muscles and bone. Foul smelling greenish pus discharge present.
Internal Injuries: Head Scalp: Scalp hair blackish discoloration all over it. Skull bons including facial bones and base of skull; no abnormality present.
Brain : no abnormality present.
State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 9 of page 27
10
Neck
Soft tissue: skin is burned exposing hard blackish neck muscles. Hyoid bone, Thyroid cartilage, cricoid cartilage; The hyoid bone and the cartilages were intact.
Laryngeal mucosa and Tracheal mucosa: congested. Others: The blood vessels, nerves and the thyroid are burned black.
Chest Ribz and Sternum: no fracture present.
Pleurae and pleural cavities: nil.
Lungs: both lungs congested, blackish, on cut section pus oozing out.
Pelvis Urinary bladder : Empty. The walls were normal. Genital organs: burned black.
Further, in the postmortem report cause of death is given as due to septicemia shock consequent upon burn injuries. Hence, it is proved that deceased Hunny had died due to burn injuries.
13. Case of the prosecution is that accused Dinesh burnt his wife Hunny after pouring kerosene oil on her. There is no eyewitness to the incident and case of the prosecution is entirely depend upon the dying declaration of deceased Hunny Ex.PW3/A made by her to PW3 Ajay Kumar, SDM, on 09.01.2012.
State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 10 of page 27 11
14. Law of dying declaration is by now almost settled Dying declaration is admissible in evidence by virtue of Section 32 of Indian Evidence Act, despite same being hearsay. Section 32 of the Indian Evidence Act is reproduced as under:
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. --Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases.
(1) when it relates to cause of death. --
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 11 of page 27 12 cause of his death comes into question
15. In Vikas and Anrs. Vs State of Maharashtra Appeal (Crl.) 321/06, dated 25.01.2008, Indian Kanoon http..//indiankanoon.org/doc/401547/ it is observed by Judges of Hon'ble Supreme Court that: Clause (1) of Section 32 of the Act has been enacted by the Legislature advisedly as a matter of necessity as an exception to the general rule that hearsay evidence is no evidence and the evidence which cannot be tested by cross examination of a witness is not admissible in a Court. But the purpose of cross examination is to test the veracity of the statement made by a witness. The requirement of administering oath and crossexamination of a maker of a statement can be dispensed with considering the situation in which such statement is made, namely, at a time when the person making the statement is almost dying. A man on the deathbed will not tell lies. It has been said that when a person is facing imminent death, when even a shadow of continuing in this word is practically over, every motive of falsehood is vanished. The mind is changed by most State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 12 of page 27 13 powerful ethical and moral considerations to speak truth and truth only. Great solemnity and sanctity, therefore, is attached to the words of a dying man. A person on the verge of permanent departure from his earthly world is not likely to indulge into falsehood or to concoct a case against an innocent person, because he is answerable to his Maker for his act.
Moreover, if the dyingdeclaration is excluded from admissibility of victim may be the only eyewitness of a serious crime.
Exclusion of his statement will leave the court with no evidence whatsoever and a culprit may go unpunished causing miscarriage of justice"
16. Statement of a dying person is sufficient to convict a person without any corroboration, if court find the same trustworthy and reliable. In Atbir vs Govt of NCT of Delhi (2010) 9 SCC 1 In Para 16 it is held: "The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 13 of page 27 14 and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) 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 if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
In Khushal Rao v. State of Bombay, 1958 SCR 552, it is State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 14 of page 27 15 held that: a statement by a dying person as to cause of death has a special sanctity which should on first principles be respected if it is credible and trustworthy. There should not be any evidence to the effect that the statement was a result of tutoring, prompting or a product of imagination. Further the deceased should be in fit state of mind to make the statement. This caution and care has to be taken as the deceased is not subjected to crossexamination. The court must be fully satisfied that the dying declaration impress a truth on it, after examining the circumstances in which the dying person had made the exparte statement. If on such examination, the court is satisfied that the declaration was the true version of the occurrence, conviction could be solely based on it.
17. In Surinder Kumar v. State of Haryana, 2011 (12) Scale 172, the dying declaration was rejected because it did not inspire confidence. There were infirmities and contradictions as to the occurrence.
18. In Paparambaka Rosamma and Others v. State of A.P., (1999) 7 SCC 695 it has been observed that where conviction is solely based on the dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it. Care should be taken to ensure whether it is State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 15 of page 27 16 established that the dying declaration was genuine, true and free from doubts and was recorded when the injured was in a fit state of mind.
19. In the light of aforesaid judgment pronounced I will examine how far the dying declaration made by deceased can be relied upon. In the present case, deceased Hunny had given four dying declaration i.e. Ex.PW9/A, Ex.PW9/B both recorded by the PW9 SI Daya Nand, IO of the case. Third dying declaration Ex.PW3/A recorded by the SDM Ajay Kumar and her fourth dying declaration i.e. her supplementary statement u/s. 161 Cr.P.C. recorded on 28.02.2012.
20. In first three dying declaration deceased had given three different reasons for her burning. While as per testimony of PW9, he recorded first dying declaration of deceased on 22.12.2011, on the same day when deceased was burnt. PW9 has testified that on 22.12.2011 on receiving of DD No.59A, he reached at SGM Hospital and procured MLC of the injured Hunny. She was conscious, oriented and fit for statement. He testified that he recorded the statement of Hunny Ex.PW9/A in the presence of Dr. M. Dass, CMO, SGM Hospital. In statement Ex.PW9/A, Hunny had stated State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 16 of page 27 17 that, she is a private teacher and at about 10pm, when she was pouring kerosene oil in stove, due to darkness same oil fallen down and when she burn match stick to ignite the stove the oil which fell down on floor caught fire and due to same her suit caught fire. Her husband extinguish the fire and brought her to the hospital".
21. PW9 further testified that on 20.01.2012 when he went to the RML Hospital for investigation of the case, Mukesh, maternal uncle of Hunny met him, who stated that deceased want to give her statement again. And he recorded her statement Ex.PW9/B in the presence of Dr. Triveni of RML Hospital and Hunny put her thumb mark at point A. In her statement Ex.PW9/B, it is stated by Hunny that, "she reside with her husband and son and is a private teacher. She had married eight years ago. On 22.12.2011 she had some altercation with her husband and due to anger she poured kerosene oil on herself and burnt herself and when she shouted, neighbourer extinguish the fire".
22. PW9 further deposed that after recording statement Ex.PW9/B he returned to the PS and apprised the facts to the SHO, who said that, since statement are contradictory, therefore, he should record the statement of the victim before SDM concerned. He State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 17 of page 27 18 informed to the SDM and thereafter on 09.01.2012 SDM visited to the hospital and recorded statement of victim Hunny Ex.PW3/A and victim put her both thumb impressions.
23. PW3 Ajay Kumar the then SDM stated that on 09.01.2012 he received information from PS Sultanpuri that one lady Hunny had admitted in the RML Hospital in burnt condition and changing her statement. She was requested to record her statement and he recorded statement of Hunny Ex.PW3/A, which was endorsed by Dr. Samyak.
24. In her statement Ex.PW3/A victim Hunny had stated that, "Her name is Hunny. Her aged is 27 years and she had married th with Dinesh Kumar (accused) eight years ago on 29 September. She has one son namely Tanish. Her husband used to play gambling and usually remained with persons who sell "Heroine and Charus". There is a case against her husband in Madipur, but his father got settled the case after paying money. Her husband used to beat her with belt when after gambling he came in debt. He earlier also tried to strangulate me, but I regained my consciousness after st sometime on 21 December at about 6.30/7.00pm on her mother in law instigation accused had beaten her with belt. On 22.12.2011 she State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 18 of page 27 19 went to school, where she was a teacher. At the time of leaving for school her husband had Rs.1500/ which was her salary. In the evening her husband brought liquor. At about 7.30pm, her husband came inside room and poured kerosene oil. She had thrown her shawl then kerosene oil fell on her suit. Her husband burnt her and sat her suit on fire with match stick and started burning. Neighbourer came and on seeing them, her husband tried to douse the fire. Thereafter, her husband brought her to SGM Hospital in auto rickshaw and on the way her husband threatened her if, she will be told truth, he will kill her mother and will ran away with her son, therefore, she had given false statement. She will not change her statement. Her husband has also told her that, he has given Rs. 500/ to her nearby shopkeeper who will give statement that I have purchased kerosene oil from his shop. She became afraid due to threat of her husband. Now she has got courage and giving truthful statement and will not change her statement.
25. Her fourth dying declaration is the supplementary statement of deceased u/s. 161 Cr.P.C. recorded by PW9 on 28.02.2012, in which she stated almost same facts as stated in her rd 3 dying declaration. But PW9 in his testimony had not stated that State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 19 of page 27 20 he recorded supplementary statement of deceased Hunny on 28.02.2012. Therefore, same is not proved as per law and cannot be relied upon.
26. Thus on perusal of first three dying declarations of deceased/ victim I found that all the three statements are not only inconsistent but are diagonally opposite to each other. Hence, it will not be appropriate to relied upon her third dying declaration Ex.PW3/A, in which deceased Hunny had stated that accused burnt her, to convict the accused in the absence of any corroboration in view of the aforesaid judgment pronounced by Higher Courts. The incident is of 22.12.2011, whereas her dying declaration Ex.PW3/A was recorded on 09.01.2012 i.e. almost after 20 days.
27. PW3 had admitted in the cross examination that after recording statement of deceased Hunny, when he was coming one person i.e. maternal uncle of victim Hunny met him enquired from him whether he had recorded statement of Hunny. PW9 also in his testimony stated that victim's maternal uncle met him on 02.01.2012 and told that victim went to give her statement again. Therefore, in such circumstances, I am agree with the contention of ld. Defence counsel that, it cannot be ruled out that victim's family member had State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 20 of page 27 21 tutored the deceased and that is why maternal uncle of the deceased insisted on recording second or third dying declaration of the deceased. Victim's family member may not have been succeeded to tutor the victim till 09.12.2011 to give statement against her husband and only when they succeeded SDM was called to record statement. Otherwise, I see no reason why SDM was informed on 09.12.2011 by the IO, despite the fact that on 02.12.2011 itself, SHO had directed the PW9/IO to get victim Hunny statement recorded through SDM. No explanation of said seven days delay in informing SDM has been given by PW9. Dr. Samyak, in whose presence dying declaration has been recorded has not been cited as witness for the reason best known to IO. In view of the said fact, in my view at the cost of repetition, I would say that, it would not be safe to convict the accused merely on the basis of dying declaration of victim Hunny without any corroboration.
28. PW1 Ghanshyam had testified that accused Dinesh alongwith his son and wife reside on the first floor of the house situated at a distance of 78 houses from his house. He further testified that on 11.12.2011 at about 8/9 pm when he was coming from his work, he saw fire flames on the roof of the house of Dinesh State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 21 of page 27 22 and went there and saw Hunny wife of accused Dinesh was wrapped in a blanket and was crying "bachaobachao", he fell water on the spot. Many neighbours including Dinesh were also present there. Brother of accused dinesh was also present there. Brother of accused Dinesh took Hunny to SGM Hospital. Thus, it is evident that, he has not deposed anything against the accused Dinesh. Further deceased had stated in her third dying declaration that accused took her to the hospital in autorickshaw and on the way threatened her. But as per testimony of PW1, it is brother of accused, who had taken deceased Hunny to hospital, hence, no question of threatening to deceased on the way by accused arises, as he did not accompany to deceased to the hospital. Prosecution had not put to the PW1 that accused had taken deceased to the hospital and witness had deposed falsely despite the fact that ld. Addl. PP for the Sate reexamined the witness. Further during the cross - examination PW1 had stated that when he saw accused, deceased had already wrapped her in Kambal (blanket) and Hunny was uttering the word "Jaan Mujhe Bacha Le". In my view deceased would not have used these word if accused had burnt her. Further PW1 had stated that accused and deceased had good relationship, State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 22 of page 27 23 which he explained during reexamination by ld. Addl. PP for the State that he had not heard the quarrel of accused and deceased prior to incident, therefore, he had stated that only have cordial relation". Therefore, in my view testimony of PW1 is not corroborating the third dying declaration of deceased rather it is adverse to the prosecution case.
29. PW2 Sohan Pal had deposed that on 22.12.2011 when he was walking in the gali at about 8/8.30pm, he heard the cry from the roof of the H.No.D20, Dinesh had called bachaohachao. One Ghanshyam had already reached there and they were trying to extinguish the fire by throwing water. He saw wife of Dinesh was forced wrapped in blanket. Dinesh informed from her what she has done and she replied, it is an accident. Thereafter, she was taken to hospital. He was cross examined by ld. Addl. PP, but he denied the suggestion that accused used to give beating to his wife and he had thrown kerosene oil on her and set her ablaze. Thus from his testimony also nothing has come out against the accused, which can corroborated the fact that accused had set her ablaze or there was dispute between accused persons and deceased prior to incident.
30. From the MLC of the deceased Ex.PW12/A also it is State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 23 of page 27 24 evident that Doctor had not mentioned that any injury from the beating, as alleged by the deceased in her dying declaration Ex.PW3/A. In her Postmortem Report Ex.PW9/A also no external injury from belt has been found which could corroborate the statement of deceased. Further in MLC Ex.PW12/A also it is not mentioned that smell of kerosene oil was coming from the body and cloth of deceased Hunny. Hence, medical evidence testified to corroborate that kerosene oil was put on her.
31. Now the important evidence is of PW9 SI Daya Nand, who is the IO of the case. But, in my view, he had done nothing in the name of investigation to connect the accused with the commission of crime. First of all, on 22.12.2011 and despite the fact that on the MLC of victim Hunny, it was mentioned that in the alleged history "burn injury after pouring kerosene oil over her body". He did not record the statement of the person who gave said alleged history, neither examined doctor concerned to enquire on what basis said alleged history was recorded. He only recorded the statement of victim Hunny and thereafter did nothing. He even did not examine any witness on the day of incident, to find out whether deceased's statement is given under some kind of pressure on accused or not. State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 24 of page 27 25 He did not seize the clothes of deceased to find out whether there was any kerosene oil on it or not. Neither he visited the spot on the day of incident, he did not try to find out, what is the mode of cooking in the house of victim. Whether there is any business of kerosene oil is in house. He went to the spot only on 25.01.2012 i.e. after one month and three days of the incident, only to arrest the accused. Further he failed to explain, how he came to know about the presence of PW1 and PW2 on the spot on the day of incident because naturally they will not present in the house of accused after such a long gap. He had not stated in his testimony that he enquired from neighbourer about the incident. Even he did not inquire from them whether they saw any stove or kerosene bottle was lying, where PW deceased found wrapped in the blanket. He did not inquire about the shawl of the deceased on which as per statement of the deceased Ex.PW3/A, accused had put kerosene oil. That could be a crucial piece of evidence to corroborate the third statement of the deceased.
32. Further IO has not examined either the parents, any relative or neighbour of the deceased to prove that deceased and accused were not having cordial relation and they used to quarrel State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 25 of page 27 26 with each other or that accused was a gambler and was not doing any job.
33. In such circumstances, in my view, prosecution has failed to lead any evidence to prove that accused was having strained relationship or accused was used to beat the victim Hunny or he was not doing any work except gambling and used to take the monthly earning of the victim Hunny. Eight years had already been passed, when deceased and accused got married, prosecution had not proved any previous complaint of quarrel between accused and deceased. Hence, in such, circumstances, it is highly unlikely that accused all of sudden without any substantial reason kill the deceased. Hence, I held that, prosecution has failed to corroborate the dying declaration of deceased Ex.PW3/A by any other evidence.
34. Therefore, I held that prosecution has failed to prove beyond reasonable doubt that accused Dinesh had burnt the deceased by pouring kerosene oil on her, which caused her death. Therefore, I give benefit of doubt to him and accused Dinesh Kumar and acquitted him from offence of murder punishable u/s. 302 IPC. He is in JC, he be released from JC forthwith, if not required in any other case. The articles, if any, seized in the personal search of the State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 26 of page 27 27 accused be released to him. However he is directed to furnish personal bond in the sum of Rs.10,000/ with one surety each of like amount in compliance of Section 437A of Cr.P.C. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR) On 26.03.2013 ASJ01: NORTH: ROHINI: DELHI State vs Dinesh Kumar FIR No.14/12//PSSULTANPURI//U/S.302 IPC page 27 of page 27