Delhi District Court
State vs . 1. Bijender Giri S/O Sh. Lakkhi Giri, on 27 August, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE : NORTH EAST
KARKARDOOMA COURTS : DELHI
Unique ID No. 02402R0075092012
SC No. 28/2012
FIR No. 140/2011
Police Station Harsh Vihar
U/Section 498A/304B/34 IPC
Reserved for orders on 26.08.2013
Judgment announced on 27.08.2013
State Vs. 1. Bijender Giri S/o Sh. Lakkhi Giri,
R/o D640, Prem Nagar III,
Nangloi, New Delhi - 86.
2. Maya Devi, W/o Chaman Giri,
R/o A205, Main 20 Foota Road,
Budh Vihar, Mandoli, Delhi.
3. Chaman Giri, S/o Pitam Giri,
R/o A205, Main 20 Foota Road,
Budh Vihar, Mandoli, Delhi.
:J U D G M E N T:
1.The above named accused persons were charge sheeted by SHO PS Harsh Vihar U/s 498A/304B/34 IPC and have faced trial for having committed offence punishable U/s 498A/304B/34 IPC or in the alternative charge U/s 302/306/34 IPC.
2. FACTUAL MATRIX: It is the case of the prosecution that on 15.10.2011 State Vs. Bijender Giri etc (SC No.28/2012) Page 1 of pages 32 (wrongly written as 15.11.2010 in charge sheet) on receipt of DD No.30B (regarding admission of a woman by her husband on sustaining burn injury), ASI Sohan Singh alongwith Ct. Jaganlal reached at GTB Hospital, where after collecting the MLC bearing No.B6023/11 of Seema W/o Sh. Amit, inquiry was conducted and SHO PS Harsh Vihar and SDM Seemapuri Sh. Kamaldeep Gupta were asked to come to GTB Hospital. SDM Seemapuri recorded the statement of injured Seema, wherein she stated that "she got married with Amit three years back and they are having two small kids. Her husband works at Haridwar and he usually come to home. In the night of 14.10.2011, father in law of her sister in law (Nanad) Kavita namely Bijender Singh came to the house of her in laws and her father in law namely Chaman and said Bijender Singh were uttering bad words for her Mayka and her brother and were abusing her parents (mayke walo ko). The said incident continued till late night and even in the morning also". She further stated that "in the afternoon, her mother in law (saas) namely Maya gave beatings to her. By getting fed up with the act of beatings of my mother in law namely Maya and using of filthy language (gali galauch) by her father in law, she poured kerosene oil on her and set her on fire. Her husband tried to save her from fire and thereafter, took her to the hospital". She also stated that "her in laws do not like her since the inception of her marriage. Her husband and nanad (sister in law) are nice persons but her mother in law and father in law are kept on troubling her since beginning". She made allegations in her statement that on getting fed up by the torture of her father in law and mother in law, she made attempt to burn herself. After recording of the aforesaid statement, SDM handed over the same to SHO PS Harsh Vihar for taking legal action and SHO State Vs. Bijender Giri etc (SC No.28/2012) Page 2 of pages 32 made his endorsement on the same and gave the same to Duty Officer for recording of FIR U/s 498A/34 IPC. After getting the case registered in this case, investigation was handed over to SI Kapil Kumar and during investigation on the instruction of SI Kapil Kumar, ASI Sohan Singh alongwith Ct. Jagan Lal went to the spot i.e. A205, Main 20 Ft. Road, Budh Vihar, Mandoli, Delhi93, where they taken into police possession the remains of the wearing cloths of injured Seema, burnt hairs and one dust cleaner (pocha). During investigation, vide DD No.6A dated 22.10.2011 SI Kapil Kumar got the information regarding the death of injured Seema and accordingly, SDM Seema Puri was informed by SI Kapil Kumar, who came to the mortuary of GTB Hospital and got the postmortem conducted on the dead body of Seema. Thereafter, the case file of the instant case was handed over to Insp. Dheeraj Singh for further investigation. During investigation accused Bijender Giri was formally arrested in this case on 31.10.2011 and was released on bail. Brother of deceased Seema namely Satender Giri was joined in the investigation by Insp. Dheeraj Kumar and during that course, it was transpired that an application dated 15.04.2011 has been filed by Satender Giri in PS Nangloi regarding killing of her sister by Bijender Giri through burn. Copy of said application was taken into police possession. During investigation, postmortem report of deceased Seema was got collected by the IO and according to the said report "cause of death septicemia shock as a result of antimortum infected flame burn involving fifty percent of total body surface area". The documents regarding treatment of deceased Seema were also taken into police possession. Thereafter, the investigation was handed over to Insp. Rajesh Vijay. During investigation State Vs. Bijender Giri etc (SC No.28/2012) Page 3 of pages 32 search for accused Chaman Giri and Maya were made and finally on 04.02.2012, they were arrested in this case for the offences punishable U/s 498A/ 304B/34 IPC. Their Disclosure Statements were recorded. Statements of mother and brother of deceased Seema namely Urmila Devi and Bobby respectively were recorded and CD of the marriage of deceased Seema with Amit was also taken into police possession. During investigation, call details of the mobile phone no.9211552962 belonging to Bobby, brother of deceased Seema, were obtained and from the said details it was transpired that the deceased Seema made call on the aforesaid number from the phone of her husband bearing no. 9760000098 on the day of incident i.e. in the morning of 15.10.2011, and informed about the atrocities done upon her and that the quarrel/incident remained continued from 14.10.2011. Exhibits of the case were deposited in FSL/Rohini for opinion (result of the same were deposited in the court during the course of trial vide supplementary charge sheet U/s 173(8) Cr.P.C). Then after completing the investigation in this case, charge sheet was filed before the court of concerned Ld. MM (NE), who after supplying copies etc., committed the case for sessions vide order dated 20.03.2012 being the offence alleged exclusively triable by the court of sessions. Than, after hearing arguments on the point of charge, charge U/s 498A/304B/34 IPC or in the alternative charge U/s 302/ 306/34 IPC was framed against all the accused, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. To prove its case, prosecution examined twenty witnesses in all.
4. PW1 SI Mahesh Kumar, the then DO, proved on record State Vs. Bijender Giri etc (SC No.28/2012) Page 4 of pages 32 the copy of FIR as Ex.PW1/A and his endorsement made on the rukka as Ex.PW1/B. PW2 Meghalikelkar, the then Sr. Demonstrator GTB Hospital, testified that on 22.10.11 the dead body of Seema W/o Amit Aged about 25 years female and inquest papers were received at 11.15 a.m and autopsy was started and concluded at 12.15 p.m. On General observation it was a dead body of adult female, who was wrapped in a white sheets and was wearing no clothes. Surgical dressings were present over the body. Eyes were closed, cornea was hazy, mouth was partially open, frenulums were intact, all other natural orifices were NAD. Bluish ink stains were present on both thumbs. Rigormortis was present in developing phase in the upper limbs. Postmortem staining was present over the unburnt area of the back. No signs of decomposition was seen.
External Ante mortem injuries: Superficial to deep flame burns involving head, face, neck, chest, upper abdomen, both upper limbs, sparing palms, front of both thighs, upper back and part of lower back as shown in the figure present in the PM report no. 1486/11. The burns were covered with unhealthy gramulation tissue and yellowish greenish foul smelling puss. The burns involved 55 % of total body surface area.
INTERNAL EXAMINATION:
1. Scalp and skull NAD
2. Brain was 1204 gm congested
3. Neck NAD
4. Rib cages NAD
5. Lungs Right 490 gms and left 341 gms, both were congested and edematous on cut State Vs. Bijender Giri etc (SC No.28/2012) Page 5 of pages 32 section yellowish frocky fluid was seen oozing out.
Consolidation was present in the lower loves. Puss pockets was seen.
6. Heart 208 gms NAD
7. Stomach contained 150 ml billolious fluid.
8. Valves NAD
9. Intestines contained fluid, volves were NAD
10.Liver was 1538 gms, surface rought nodulur, fatty changes seen and was congested.
11.Spleen 208 gms enlarged and congested
12.Kidneys right 190 gms, left 180 gms (both were congested)
13.Pelvis and Vertebram NAD
14.Urinary Bladder Empty
15.Uterus Empty CAUSE OF DEATH: Septicaemic shock, as a result of ante mortem infected flame burns involving 55 % of total body surface area.
TIME SINCE DEATH was about six hours.
She further stated that the post mortem report no. 1486/11 Ex.PW2/A is in her handwriting (running into four pages) bears her signatures at point A. It was also signed by Dr. Ashok Najan, Jr. Demonstrator at encircle portion B who had assisted her in conducting the postmortem. She further testified that 11 inquest papers and Postmortem report were State Vs. Bijender Giri etc (SC No.28/2012) Page 6 of pages 32 handed back to the IO.
PW3 Satender Kumar @ Sanjay, PW4 Boby (brothers of deceased Seema) and PW5 Smt. Urmila (mother of deceased Seema) are the star witnesses of the prosecution being the brothers and mother of deceased respectively, but they have not supported the story of prosecution at all.
PW3 Satender Kumar @ Sanjay (brother of deceased Seema) testified that on 11.07.2008, his deceased sister Seema was married with Amit Giri according to Hindu rites and customs and it was a normal marriage. He categorically stated that after the marriage till her death there was no complaint regarding any harassment or mall treatment given by her in th laws. He further stated that on the last year, it was 15 date and was the day of Karwachauth festival, he received a call from Amit (husband of deceased Seema), who told him that she caught a fire while preparing food on stove and after receiving this information, he went to the GTB hospital, where his sister was found admitted in ICU (Burn ward) and he talked with his deceased sister and she told him that while preparing food her clothes caught fire and due to that reason she received burn injury on her person. Then, after seven days she scummed to burn injury. He further stated that after postmortem the dead body of her deceased sister was taken by them from the mortuary and her last ceremony was performed by them, as there was no person from the side of in laws of her sister because a criminal case was registered against them.
PW4 Boby (brother of deceased Seema) deposed that on 11.07.2008 his deceased sister Seema was married with Amit Giri according to Hindu Rites and customs and it was a normal marriage and they gave stridhan articles to their sister State Vs. Bijender Giri etc (SC No.28/2012) Page 7 of pages 32 in her marriage as per their status. On 15.10.2011 at about 7 a.m, he received a telephone call, made by her sister from the mobile phone of her husband, on his mobile phone and he talked with her sister as well as his jijaji. On the same day, at about 2.00 p.m he again received a telephone call on his mobile phone which was made by the husband of his deceased sister namely Amit Giri and he informed him that his sister had caught fire when she was preparing the food on stove. He further told that her sister was being taken to the GTB hospital. He immediately passed this information to his elder brother Satender and thereafter, his brother immediately rushed to the GTB Hospital and later on he also went to GTB Hospital and found that his sister was admitted in ICU (Burn Ward). Later on, on 22.10.2011 his sister was expired in the hospital itself. He further stated that after the marriage no complaint was made by his deceased sister regarding any harassment from the side of her inlaws.
PW5 Smt. Urmila (the mother of deceased Seema) in her deposition could not tell the exact date of marriage of her daughter, however, she stated that it was held about four years ago with Amit according to Hindu rites and customs. She further stated that at the time of marriage or thereafter till the death of deceased daughter Seema, no demand of any kind was ever raised from the side of inlaws of her deceased daughter. Her daughter had been residing happily after her marriage with her family.
PW6 Giriraj Bharti is the witness, who identified the dead body of Seema and he proved on record his statement recorded in this regard as Ex.PW6/A bearing his signatures thereupon at point A. PW7 Sh. Kamaldeep Gupta (the then SDM, State Vs. Bijender Giri etc (SC No.28/2012) Page 8 of pages 32 Seemapuri, Delhi) testified that on 15.10.2011, he received a telephonic call from SHO PS Harsh Vihar regarding burning of Seema R/o Mandoli and her admission at GTB Hospital. After receiving the call, he proceeded for GTB Hospital and on reaching there he found that one lady namely Seema was admitted there. He got confirmation regarding her fitness for her statement from the doctor and then he proceeded to record her statement. At the time of recording of statement, no relative from either side was available in the ward. He proved on record the statement of Seema as Ex.PW7/A, which was in his handwriting and bears the thumb impression (RTI) of Seema at point E and his signature at point X. He also made his endorsement separately on the statement and same is encircled in red at point Y. Thereafter, he directed IO of the case to proceed to the residence of the deceased and collect the evidence from there regarding her burning. He also directed SHO to take action as per law and in this regard made endorsement on the statement itself, which is encircled in red at point Y1 and handed over the statement of injured Seema (since deceased) to the SHO. Further on 22.10.2011, he received a call from the IO regarding death of Seema in the burn ward and, thereafter, he went to GTB Hospital and inquest papers i.e. request for postmortem Ex.PW7/B, death report Ex.PW7/C and identification of dead body by the close relatives Ex.PW7/D & Ex.PW6/A were prepared by the IO on his directions. All the above said documents bear his signatures at points B respectively. After postmortem, the dead body was handed over to the IO for further delivery of the same to the close relatives.
During cross examination by Ld. counsel for accused persons, he conceded that before recording the statement of State Vs. Bijender Giri etc (SC No.28/2012) Page 9 of pages 32 deceased Seema, he had not issued any certificate to the effect that she was in sound state of mind and was able to understand his questions and to give their reply, however, he clarified that the statement was recorded after getting the certificate of doctor regarding fitness of injured, which is on the MLC itself. He further conceded that there is no endorsement from the side of the doctor as well as from his side that the patient was fit for statement at the time of recording of her statement. He also conceded that the statement was not recorded in question answer style. He neither mentioned the number of MLC nor recorded his satisfaction regarding the MLC of injured and than recorded the statement. He however denied the claim that the statement Ex.PW7/A is not recorded in his handwriting or that the same was already recorded by one police official and he signed the same in routine and due to this reason he had not made the endorsement over the statement Ex.PW7/A whether the patient was fit for statement or was able to understand his question and to give the answers or that is why the endorsement of her fitness was not made by him or that the statement was not recorded in question answer shape. He, however, conceded that the statement is not got attested by any doctor nor there is any endorsement on Ex.PW7/A regarding identification of the patient to show that it was of Seema W/o Sh. Amit. He, however, clarified that the statement was recorded after the patient getting identified by doctor as well as SHO/IO of the case, however, he did not make any endorsement on Ex.PW7/A to that effect. He confirmed that mostly the upper part of the patient was burnt and it was already dressed by the doctor. He further conceded that no formal application in writing was made by the SHO to record the statement of State Vs. Bijender Giri etc (SC No.28/2012) Page 10 of pages 32 deceased in his office or at the time when he reached in the hospital before recording the statement of deceased, however, he clarified that he was requested by the SHO only on mobile phone. He confirmed that nowhere in Ex.PW7/A, it is mentioned that the RTI of the injured at point E was taken. The endorsement mark Y was made by him after getting thumb impression of the patient. The thumb impression was taken at the beginning of the next below line in the left side. Moreover, he requires some space for making his observation and the same was made immediately below the last line of the statement. He denied that there is sufficient space between the endorsement and the statement to get the proper thumb impression. He further denied that the deceased never put any thumb impression on Ex.PW7/A and due to this reason it is not mentioned whether it is RTI or LTI or that the thumb impression which is at mark E does not belong to deceased Seema. He also denied that the hands of Seema were burnt and she was not able to put her thumb impression of both the hands or that statement Ex.PW7/A was fabricated by police officers and put his seal and signed the same at the instance of the IO or that deceased Seema was not able to make her statement at the time when the statement Ex.PW7/A was recorded. He further denied that time, date and place was added/mentioned in Ex.PW7/A subsequently as per the instructions of the SHO, to suit the prosecution story,.
PW8 W/Ct. Santosh testified that on 04022012 she alongwith HC Pawan, Ct. Rahul had joined the investigation of the present case with IO Inspector Rajesh Vijay and on that day, accused persons namely Maya Devi and Chaman Giri were apprehended by them from Mandoli Road at the instance of secret informer and thereafter, they both were arrested.
State Vs. Bijender Giri etc (SC No.28/2012) Page 11 of pages 32 Accused Maya Devi was arrested vide arrest memo Ex.PW8/A and her personal search was conducted by her vide personal search memo Ex.PW8/B and both the above said memos bear her signatures at pointA and thumb impression of accused Maya Devi at pointX. Further both the accused persons were interrogated and during that course they made disclosure statements Ex.PW8/C (accused Maya Devi) and Ex.PW8/D (accused Chaman Giri) which bear her signatures at pointA and signatures/thumb impression of accused persons at point X respectively. Thereafter, both accused persons were taken to GTB Hospital for their medical examination and after their medical examination conducted, they were produced before the court concerned and from there, they were remanded to JC. She correctly identified both the accused persons.
PW9 Sh. Rajeev Ranjan (Nodal Officer from Tata Tele Services Ltd.) while producing the summoned record pertaining to mobile phone no. 9211552962 before the court and stated that as per their record, the abovesaid mobile phone number was issued to one Sh. Faquir Chand on the basis of his application form no.102023058696, on 28042008. He proved on record the photocopy of the said application form as Ex.PW9/A. He further testified that at the time of applying for the abovesaid number, the applicant Faquir Chand also submitted photocopy of Election ICard Ex.PW9/B. He also produced before the court the call details pertaining to abovesaid mobile phone from the period 10102011 to 25102011 and proved the attested copy of abovesaid call details running in 6 pages as Ex.PW9/C. He stated that the call details brought by him have been retrieved from computer system and its contents are true reproduction of the original and he proved on record a certificate u/s 65B(4)(c) State Vs. Bijender Giri etc (SC No.28/2012) Page 12 of pages 32 of Indian Evidence Act in this regard as Ex.PW9/D. He also produced before the court the cell I.D. Chart with location pertaining to mobile number in question and proved the same as Ex.PW9/E. PW10 Ct. Rahul testified that on 04022012, he alongwith HC Pawan, W/Ct. Suman had joined the investigation of the present case with IO Inspector Rajesh Vijay and they went to Mandoli Road in search of accused persons and at the instance of secret informer accused Chaman Giri and Maya Devi were arrested vide their arrest memos Ex.PW10/A & Ex.PW8/A respectively. Their personal search were also conducted vide their personal search memos Ex.PW10/B and Ex.PW8/B respectively. He further stated that both the accused persons were interrogated and during that course they made their Disclosure Statements Ex.PW8/D and Ex.PW8/C respectively. Thereafter, both accused persons were taken to GTB Hospital for their medical examination and after their medical examination conducted, they were produced before the court concerned and from there, they were remanded to JC. He correctly identified both the accused persons.
PW11 HC Pawan Kumar testified that on 04.02.2012, he alongwith L/Ct. Santosh joined the investigation with the IO Insp. Rajesh Vijay. This witness also narrated about the arrest and conducting of personal search of accused Chaman Giri and Maya Devi and recording of their Disclosure Statements. He correctly identified both the accused persons.
PW12 ASI Sohan Singh testified that on 15.10.2011 at about 3.00 PM DD No.30B (copy Ex.PW12/A) regarding admission of Smt. Seema W/o Amit in GTB Hospital was received by him and after receiving the same, he alongwith Ct.
State Vs. Bijender Giri etc (SC No.28/2012) Page 13 of pages 32 Jagan Lal went to GTB Hospital, where he collected the MLC of Seema. At that time, she was found admitted in burn ward and thereafter, he went to burn ward and made inquiry from injured Seema, who disclosed that due to harassment given by her inlaws she tried to commit suicide. Thereafter, he gave information to SDM of Seemapuri and accordingly, SDM Seemapuri reached at the hospital and he recorded the statement of injured Seema Ex.PW7/A. After recording her statement, SDM Seemapuri directed the SHO to register the case U/s 498A/34 IPC. SHO Insp. Ramesh Kumar also reached at the hospital and SDM handed over the statement of injured Seema to the Insp. Ramesh Kumar, who directed SI Kapil to got register the case. Thereafter, he went to the spot i.e. A205, Budh Vihar and on reaching there, he called the crime team, who inspected the spot and took the photographs from different angles. From the spot, some burnt hairs, burnt cloth pieces and one Pocha were taken into possession by him. The burnt hairs were put in a plastic polythene bag and was converted into cloth parcel, while burnt cloth pieces and Pocha were put in an another plastic polythene bag and it was also converted another cloth parcel and they were taken into possession vide seizure memo Ex.PW12/B bearing his signatures at point A. He proved on record one Pocha and piece of burnt cloth piece as Ex.P1. He also proved on record the hairs, which were taken into possession by him from the spot i.e. Jali of bath room, as Ex.P2.
PW13 Ct. Dharmender testified that on 22.10.2011, he had joined the investigation of the present case with the IO SI Kapil Kumar and went to mortuary GTB Hospital, where the identification of the dead body was got established through one Sanjay and one Giri Raj Bharti. Their statements in this State Vs. Bijender Giri etc (SC No.28/2012) Page 14 of pages 32 regard was also recorded by the IO. Thereafter, the postmortem was got conducted and after postmortem, the dead body was handed over to its relatives. After postmortem, doctor handed over one envelop parcel sealed with the seal of MK alongwith sample seal to him and he handed over the same to SI Kapil, who took the same into possession vide seizure memo Ex.PW13/A bearing his signature at point A. PW14 Sh. R. K. Singh (Nodal Officer Bharti Airtel Limited) proved on record the computer generated call details th of phone no.9818746648 for the period from 10 October, th 2011 to 20 October, 2011 as Ex. PW14/A bearing his signature at point A along with seal. He also testified that aforesaid mobile phone was in the name of Bijender Giri. He also proved on record copy of the customer application form (certified customer application form) as Ex.PW14/B, photocopy of ID proof as Ex.PW14/C, Cell ID chart Ex.PW14/D and certificate issued u/s 65 B of Indian Evidence Act as Ex.PW14/E bearing his signature at point A. PW15 SI Kapil Kumar testified that on 15.10.11 investigation of this case was handed over to him and accordingly he reached at the spot and prepared site plan Ex.PW15/A bearing his signature at point A. He visited GTB hospital and tried to inquire with the patient but she was not conscious and she could not explain due to the pain. Thereafter he returned back to PS and draft an application for obtaining the permission of the senior officer for arrest of accused, to which he obtained on 19.10.11. Thereafter, on 22.10.2011 he received information about the death of Seema and accordingly he reached at the hospital and filled in form no.25.35 on behalf of SDM. SDM had signed on Ex.PW7/C. He recorded the statement of identification of dead body i.e. State Vs. Bijender Giri etc (SC No.28/2012) Page 15 of pages 32 statement of Sanjay Ex.PW7/D and statement of Sh. Giriraj Bharti Ex. PW6/A bearing his signature at point X. He further deposed that after the postmortem dead body was handed over to the relative of deceased vide handing over memo Ex.PW15/B. After the postmortem, Ct. Dharmender handed over him an envelope along with sample seal, which was taken into possession vide memo Ex.PW13/A bearing his signature at point X. During investigation Bijender Giri was released on anticipatory bail on 31.10.11 and he prepared his arrest memo Ex.PW15/C bearing his signature at point A. Thereafter, the case file was handed over to Inspector Dheeraj for further investigation.
PW16 Insp. Dheeraj Singh testified that on 15112011 investigation of the present case was assigned to him and on 16112011, he had collected the postmortem report of the deceased Ex.PW2/A from GTB Hospital alongwith inquest documents. Further on 19112011, the brother of deceased namely Satender @ Sanjay had handed over the photocopy of complaint MarkA (which was addressed to SHO PS Nangloi Delhi) alongwith marriage invitation card (envelop) of the deceased Seema with Amit exhibited as Ex.PW16/A. Both the above said documents were taken into possession by him vide seizure memo Ex.PW3/C bearing his signatures at pointB. Thereater, he recorded the statement of Satender @ Sanjay u/s 161 Cr.P.C. Further on 25112011, Satender @ Sanjay handed over him medical papers (treatment) Ex.PW16/B & Ex.PW16/B1 regarding delivery of second child by deceased Seema in Bhagwan Mahavir Hospital, Pitampura and the above said documents were taken into possession by him vide seizure memo Ex.PW3/B bearing his signatures at pointB. During cross examination, he stated that the brother of State Vs. Bijender Giri etc (SC No.28/2012) Page 16 of pages 32 accused Satender @ Sanjay did not hand over any complaint, document and the related documents of the medical treatment. He did not verify the factum of lodging of complaint by Satender @ Sanjay from the concerned police station if the same was made in the police station or not. He also did not verify the genuineness of other documents as well as the documents of the medical treatment from the concerned doctor. He denied that he himself had fabricated the documents MarkA, Ex.PW16/A, Ex.PW3/C, Ex.PW16/B, Ex.PW16/B1 and Ex.PW3/B to suit the prosecution story.
PW17 Dr. Sushma Kumari identified the signature of Dr. Imran Ahmed on the MLC Ex.PW17/A at point A. During cross examination she confirmed that MLC Ex.PW17/A was neither prepared in her presence nor the patient was examined by Dr. Imran Ahmed in her presence and she was deposing on the basis of MLC Ex.PW17/A. PW18 Inspector Rajesh Vijay testified that on 29.11.11 investigation of the present case was assigned to him and on 04.02.13 he received a secret information that the accused persons Maya and Chaman Giri would come to their house and they could be arrested. Accordingly he along with HC Pawan, Ct. Rahul and L/Ct. Santosh went at Mandoli Road where the Secret informer met them and thereafter accused Maya and Chaman Giri were apprehended and arrested by him at the instance of secret informer vide their arrest memos Ex.PW10/A (of Chaman Giri) and Ex.PW 8/A (of Maya Devi). He also proved on record the personal search of Chaman Giri as Ex.PW 10/B and the personal search of Maya Devi as Ex.PW8/B. He stated that the personal search of accused Maya Devi was conducted by L/ct. Santosh. All the above said memos are bearing his signatures at point C respectively.
State Vs. Bijender Giri etc (SC No.28/2012) Page 17 of pages 32 Thereafter, both the accused persons were interrogated and during that course they both made their disclosure statements Ex.PW8/C (of Maya) and Ex.PW8/D (of Chaman Giri). Thereafter, both the accused persons were produced before the court concerned and from there they were remanded to JC. He further testified that brother of deceased had given one video CD of marriage Ex.PW18/A and it was taken into possession by him vide memo Ex.PW3/A bearing his signatures at point B. He also collected the CDRs of mobile phones of Bijender Giri, Amit and Bobby and after perusal the above said call detail of accused Bijender mobile phone, it was found that on 14.10.11 from 15:54:55 hours to 22:40:49 hours the location of the mobile phone was found at Ganga Sahai Colony where the matrimonial house of deceased is situated. Further after perusal of the call details of Bobby's phone it was found that a call was received on the phone of Bobby i.e. 9211552962 from phone number of Amit (husband of the deceased) i.e. 9760000098, at about 7:23:42 and duration of conversation was 421 seconds. He also proved on record the FSL Report as Ex.PW18/B. During cross examination he conceded that prior to the arrest of the accused persons namely Maya and Chaman Giri, they were not known to him. He was aware with the mobile phone number of the complainant along with their address. He did not call the complainant as well as their family members to identify the accused persons and to join the investigation at the time of their arrest. He conceded that anticipatory bail of the accused persons were rejected. He denied that after rejection of the bail application both the accused persons had themselves surrendered and they were not arrested on the pointing out of secret informer or that the disclosure statement State Vs. Bijender Giri etc (SC No.28/2012) Page 18 of pages 32 Ex.PW8/C & D were fabricated by him and the same were not made by the accused persons at the time of their arrest. He also denied that L/Ct. Santosh did not join the investigation at the time of arrest of accused Maya and Chaman Giri and she signed on the arrest papers of accused Maya and Chaman Giri at his instance in PS or that being the police official he obtained the signatures of accused Chaman Giri on Ex.PW 8/D and thumb impression of accused Maya on Ex.PW8/C without disclosing the facts of their disclosure statements. He conceded that Ex.PW18/A was never played by me and he is not aware whether the said CD is blank or having some material. He however denied that CD Ex.PW18/A was planted by him and never handed over by the brother of the deceased. He conceded that he did not verify the name of the user of mobile phone number 9818746648, 9211552962 and 9760000098 and also he did not record the statement of the owner of mobile phone in this regard. He further conceded that he did not verify the conversation of the abovesaid mobile phones to link them with the alleged incident. He further admitted that he did not record the statement of Amit (husband of deceased) to verify as to whether mobile phone was used by the deceased to talk with her brother on 15.10.11.
PW19 Ct. Shyam Lal (photographer in Mobile crime Team North East District) proved on record the twelve photographs of the spot as Ex.PW19/A1 to A12 and negatives thereof as Ex.PW19/B1 to B12.
PW20 SI U. Balashankram testified that on 15.10.11 he received the telephonic message/information from PS Harsh Vihar and after receiving the above said message he along with member of crime team i.e ASI Chet Ram (finger print expert), Ct. Shyam Lal (photographer) reached at A205 Budh State Vs. Bijender Giri etc (SC No.28/2012) Page 19 of pages 32 Vihar, Mandoli, Harsh Vihar where ASI Sohan Singh along with other staff met them. Prior to their reaching there, the victim had already shifted to the hospital. He inspected the spot and after inspection he prepared inspection report Ex.PW20/A bearing his signature at point A, at the spot itself and handed over the same to the IO. He further testified that his photographer Ct. Shyam Lal had taken the photographs at the instance of ASI Sohan Singh.
5. After conclusion of prosecution evidence, statements of accused persons U/s 313 Cr.P.C were recorded, wherein they claimed innocence on the ground of false implication in this case.
Accused Maya and Chaman Giri, in their respective statements claimed that they have been falsely implicated in the case and police got registered the case on its own when their daughter in law met with an accident with fire while cooking food at home in their absence and she was got admitted by her husband. They both and their son Amit continuously remained in the hospital during her admission there.
Accused Bijender Giri too claimed innocence and stated that he is the relative of accused Maya and Chaman Giri and was the influensive person in the relations and he intervened during the proceedings of the police so his name was falsely implicated to take revenge by the police.
All the accused persons opted to lead evidence in their defence and examined only one witness namely Amit Giri in their support.
6. DW1 Sh. Amit Giri testified that he was married with late Smt. Seema D/o Sh. Jitender Bharti and two children were born from their wedlock. There was no complaint from the side State Vs. Bijender Giri etc (SC No.28/2012) Page 20 of pages 32 of his wife and her parents against him, his family and his relatives. He further testified that he was having a mobile phone shop in Haridwar and he returned back to his home on 14.10.11 and on 15.10.11 he was at home along with his wife and children. On that day at about 12.001.00 p.m his wife was cooking food on kerosene stove and all of a sudden she caught fire and she tried to save herself. When she was trying to throw the stove, the kerosene fell upon her and she got burnt. He further testified that in order to extinguish fire, he poured water upon her. His parents were not at home as they went to market and they returned back after the fire got extinguished. Further he alongwith his parents took his wife to the GTB hospital where she was got admitted by him and remained there up to 7 days and his wife died on 22.10.11. She did not make her statement before the police or before any of the family members. His inlaws never made any complaint against him and his family members during her lifetime or thereafter. His wife met with an accident and she did not commit suicide. She did not have any complaint against him and his parents since the marriage and she was happy. Further Bijender is his relative, who used to come occasionally. Bijender did not visit at his home on 14.10.11 as he was present there. No quarrel had taken place in the night of 14.10.11 or in the day of 15.10.11. The hands and feet of his wife were burnt and she was not able to put any impression of her hands and feet. He is having visiting terms and good relations with his inlaws and his children usually stay with his inlaws and some times with his parents.
During cross examination by Ld. Addl. PP for the state he conceded that accused Bijender is the father in law of his sister Kovinta. He denied that accused Bijender had come to his State Vs. Bijender Giri etc (SC No.28/2012) Page 21 of pages 32 house on 14.10.11 or that accused Bijender along with his father had quarreled with his wife and they abused to her parents and brother or that in the morning on 15.10.11 they again started quarrel with his wife and they abused to her parents and brother. He further denied that his mother had also given beatings to his wife on 15.10.11. He stated that it cannot be possible that his wife could have poured kerosene oil upon her and set herself on fire. At the time of incident, he was in the room and his wife was in the kitchen. He denied that they used to cook food on gas stove. He stated that the kitchen reflected in the photographs Ex.PW19/A2, 19/A3, 19/A10 and 19/A12 does not belong to them. He denied that his parents used to harass his wife since marriage. He stated that his wife did not disclose anything to him when she was being taken to the hospital. He clarified that she was not in the condition to talk. He remained in the hospital till 22.10.11. He denied that SDM had visited the hospital or that he had recorded the statement of his wife. He clarified that she was not in the condition to give any statement. He denied that his wife had made a statement and also put her thumb impression. He further denied that he is deposing falsely being the son and relative of the accused persons.
7. I have perused the entire records carefully and given my prolonged consideration to the controversy in hand.
8. The case of the prosecution can be summarized as under:
1. The marriage between Amit and Smt. Seema (since deceased) had taken place three years prior to the date of occurrence.
2. In the night of 14.10.2011, accused Bijender Singh (father in law of the daughter of accused Chaman State Vs. Bijender Giri etc (SC No.28/2012) Page 22 of pages 32 Giri) came to the house of accused Chaman Giri and father of in law of deceased namely Chaman and said Bijender Singh uttered bad words for her parents (Mayka) and her brother and were abusing them and said process continued till late night and even in the morning also. In the afternoon, mother in law (saas) of deceased Seema namely Maya gave beatings to her and by getting fed up with the act of beatings of her mother in law namely Maya and using of filthy language (gali galauch) by her father in law, deceased Seema poured kerosene oil on her and set her on fire.
3. The incident had taken place on 15.10.2011 at 1.30 AM. Deceased was removed to GTB Hospital by her husband.
4. Sh. Kamaldeep Gupta, the then SDM Seemapuri, was informed and he reached at GTB Hospital and recorded the statement of injured Seema (i.e. the dying declaration) Ex.PW7/A at 6.00 PM on 15.10.2011 at GTB Hospital.
5. On 22.10.2011, the patient/victim Seema got expired.
6. On 22.10.2011 at 11.15 AM, postmortem on the dead body was got conducted and after postmortem, dead body of Seema was handed over to it relatives.
7. During the course of investigation, accused persons were arrested and on completion of investigation, they were sent up for trial.
9. According to the contentions of Ld. Addl. PP for the State, the case of the prosecution is crystal clear. By the State Vs. Bijender Giri etc (SC No.28/2012) Page 23 of pages 32 combined reading of dying declaration of deceased Seema recorded U/s 32 Cr.P.C Ex.PW7/A and the testimonies of PW7 and other prosecution witnesses coupled with the evidence brought on record by prosecution, it can be said that the case of the prosecution is firmly established. Above all in her dying declaration Ex.PW7/A, the victim/deceased had clearly narrated the entire incident in details by stating the entire episode and disclosed the specific roll played by the accused persons, which compelled her to end her life. The dying declaration Ex.PW7/A was recorded by the Executive Magistrate (an independent reliable person) and the same was signed by him and it was attested by the deceased by putting her thumb impression and the statement Ex.PW7/A was recorded after the doctor had opined that the victim Seema was fit to make a statement. Besides, the medical and scientific evidence (i.e. MLC Ex.PW17/A, postmortem report Ex.PW2/A Ex. and FSL result Ex.PW18/B), the other documents like FIR, seizure memos, memos of arrest and personal search of accused persons and also their disclosure statements have been proved by the prosecution witnesses in their respective testimonies. Further the postmortem notes indicates cause of death septicemia shock as a result of antimortum infected flame burn involving fifty percent of total body surface area. Further the material and exhibits lifted from the spot and produced before the court further consolidates the case of the prosecution. Thus, the prosecution has been able to prove the guilt of the accused persons beyond the shadow of doubt and as such the accused persons are liable to suffer an order of conviction against them.
Per contra, according to Ld. Counsel for accused persons, the prosecution has been miserably failed in its State Vs. Bijender Giri etc (SC No.28/2012) Page 24 of pages 32 mission of proving its case beyond the shadow of reasonable doubts and therefore, all the accused persons are entitled for an order of acquittal in their favour. Firstly, all the public witnesses examined by the prosecution i.e. PW3 Satender Kumar @ Sanjay (brother of deceased), PW4 Boby (brother of deceased) & PW5 Smt. Urmila (mother of deceased) have not supported the case of prosecution at all and they were declared as hostile witnesses. Though they were cross examined by Ld. Addl. PP for the State but nothing incriminating material against the accused persons could be elicited from their mouth. PW3 Satender Kumar @ Sanjay has categorically stated that after the marriage till her death, there was no complaint regarding any harassment or mall treatment given by her in laws. Like wise PW4 Boby stated that after the marriage no complaint was made by his deceased sister regarding any harassment from the side of her in laws. Even PW5 Smt. Urmila stated that her daughter had been residing happily after her marriage with her family. From the aforesaid deposition of PW3, PW4 & PW5 it can not be said that the deceased was being harassed or maltreated by her in laws. It is further claimed by Ld. Defence counsel that the case of the prosecution is largely based on the dying declaration of the deceased Ex.PW7/A recorded U/s 32 of the Indian Evidence Act by PW7 Sh. Kamaldeep Gupta, the then SDM, but the said dying declaration is surrounded by suspicious circumstances as the alleged thumb impression on the dying declaration is not that of deceased Seema but of some other person. No noting has been mentioned qua the said thumb impression whether it is R.T.I or L.T.I. It is further stated that generally, when R.T.I or L.T.I of some one is taken, the name of the said person is also mentioned adjacent to the State Vs. Bijender Giri etc (SC No.28/2012) Page 25 of pages 32 impression taken like R.T.I or L.T.I of so and so person i.e. by mentioning his/her name but in the instant case it is missing. There is no note on the dying declaration written by the doctor that the deceased was fit to make a statement or that she was conscious. No note has come from the side of IO or the Executive Magistrate (PW7) to this effect. Further dying declaration is not in the form of question answer, rather, it is in the form of narration. Even before recording the statement of deceased, SDM has not put such questions by which he could have ascertained the state of mind of deceased and it can not be believed that the victim, who had sustained 72% burn injuries (as per MLC Ex.PW17/A) on her body was in so perfect state of mind to give her statement in narrative form. It is further claimed by Ld. Defence counsel that the patient was declared fit for statement on her MLC at the time of its preparation (i.e. at about 2.25 PM on 15.10.2011), whereas no fitness certificate of the doctor was obtained (in writing) at the time of recording of her dying declaration which was recorded at 6.00 PM on the same day i.e. after 3½ hours. It is further argued by Ld. Defence counsels that perusal of the record confirmed that the victim had suffered 72% burn injuries and admittedly she was under treatment till 22.10.2011 i.e. the day when she died.
10. After giving due thoughts to the rival submissions of both the sides, I have come to the considered opinion that there is a substance in the submissions of Ld. Counsel for the accused persons that the prosecution has been failed to prove its case against the accused persons beyond the shadow of reasonable doubt for the following reasons:
11. PW3 Satender Kumar @ Sanjay (brother of deceased) has not supported the case of prosecution at all, rather, he State Vs. Bijender Giri etc (SC No.28/2012) Page 26 of pages 32 stated that after the marriage till her death, there was no complaint regarding any harassment or mall treatment given by her in laws. He further stated that in burning ward of ICU, he talked to her deceased sister and she told him that while preparing food her clothes caught fire and due to that reason, she received burn injury on her person. During cross examination he stated that during the life time of her deceased sister Seema, he alongwith his family members never made any complaint against the in laws because they were not having any complaint against them and his sister was also not having any complaint against her in laws and other one. He also stated that he can not tell as to how and when the thumb impression of her sister was taken. He could not tell if the thumb impression at point C was of his sister or not. He stated that his sister was educated and she used to sign and never used to put thumb impression.
Likewise, PW4 Boby (another brother of deceased) too had not given any support to the case of prosecution. He stated that after the marriage no complaint was made by his deceased sister regarding any harassment from the side of her in laws. During cross examination he stated that his sister told him that she caught fire when she was cooking food on stove and it was the cause of her death. They have no complaint with the in laws of her sister.
Similarly, PW5 Smt. Urmila (mother of deceased) has also not supported the case of prosecution at all. She stated that her daughter had been residing happily after her marriage with her family. During cross examination she stated that her daughter did not make any complaint against her in laws after her marriage. They have no complaint with the State Vs. Bijender Giri etc (SC No.28/2012) Page 27 of pages 32 in laws of her daughter.
The aforesaid witnesses i.e. PW3, PW4 & PW5 were declared hostile and was cross examined by Ld. Addl. PP for the State but despite of that nothing incriminating could be taken out from their mouth against the accused persons and as such their testimonies are immaterial for the prosecution.
12. Now, the entire case of the prosecution revolves around the dying declaration allegedly made by the deceased Seema before the SDM Sh. Kamaldeep Gupta. This statement is bearing the signature of SDM, who claimed that deceased Nisha had attested it by putting her thumb impression and the said dying declaration is surrounded by suspicious circumstances and hence can not be safely relied upon to hold the accused persons guilty as firstly, perusal of the MLC reveals that the patient Seema was declared fit for statement on her MLC at the time of its preparation (i.e. at about 2.25 PM), however, admittedly no fitness certificate of the doctor in writing was obtained at the time of recording of dying declaration which was recorded after about 3½ hours (i.e. at about 6.00 PM). Although, PW7 claimed that statement was recorded after getting the certificate of doctor regarding fitness of injured, which is on the MLC itself; but perusal of the MLC Ex.PW17/A reveals that the doctor has mentioned in the MLC as fit for statement but it was given at 2.25 PM on 15.10.2011. Even in his testimony PW7 Sh. Kamaldeep Gupta claimed that there is no endorsement from the side of doctor as well from his side that the patient was fit for statement at the time of recording of her statement. Here I am fortified by the judgment tiled as Ram Singh Vs. State reported as 1996 (4) Crimes 235 Delhi High Court, wherein it has been held as under: "No proof of fitness of deceased to make State Vs. Bijender Giri etc (SC No.28/2012) Page 28 of pages 32 such a statement - Presence of doctor was not ensured at the time of recording of that statement - Alleged thumb impression of deceased on that declaration making it unreliable - Magistrate recorded dying declaration at 5 PM but deceased was declared fit to make statement on MLC at 11.35 PM - No evidence that deceased was fit to make statement when her statement was recorded - conviction is unsustainable."
The perusal of Ex.PW7/A further shows that there is no note written by the doctor on the dying declaration that the deceased was fit to make a statement or that she was conscious. No note to that effect has come from the side of IO or the SDM (PW7) even. Further dying declaration is not in the form of question answer, rather, it is in the form of narration and it can not be believed that the victim, who had sustained 72% burn injuries on her body and was under treatment with sedative medicines and her condition was being deteriorating, would give such a narrative statement. Here I am fortified by the judgments titled as Mohan Sadhu Kawale Vs. State of Maharashtra reported as 2005 (2) Crimes 20.
It has been held in Mohan Sadhu Kawale Vs. State of Maharashtra reported as 2005 (2) Crimes 20 Bombay High Court, wherein it has been held as under: "Several suspicious circumstances about oral dying declaration which rendered it unsafe to rely upon - Dying declaration recorded by magistrate also found doubtful
- Deceased had sustained 100% burns and State Vs. Bijender Giri etc (SC No.28/2012) Page 29 of pages 32 Doctor admitted that a sedative injection "Fortwin" had been given to relieve her of pain soon after she was brought in hospital
- It would be dangerous to accept a detailed and long dying declaration recorded by Magistrate - Fit case to give benefit of doubt to accused."
Further perusal of the the dying declaration Ex.PW7/A reveals that SDM had not put any formal questions to the victim before recording of her statement to know her state of mind, whether she was in the condition to give her statement or not and it is further lapse on the part of SDM. Here I am fortified by the judgment titled as K. Ramachandra Reddy & Anr. Vs. Public Prosecutor reported as AIR 1976 SC 1994, wherein it has been held by Hon'ble Apex Court as under: "The omission of the person who recorded the dying declaration to question the deceased regarding the state of mind to make the statement is a serious irregularity." Here reliance can also be placed upon a judgment titled as Kanchy Komuramma Vs. State of A.P reported as 1996 SCC (Cri) 31 wherein it has been held by Hon'ble Apex Court that: "Dying declaration if found to be true and free from embellishment then it is sufficient for recording conviction - Prosecution must prove that the deceased was in proper mental condition to make the dying declaration -
Merely because the dying declaration has been recorded by a Judicial Magistrate is not by itself a proof of its truthfulness."
State Vs. Bijender Giri etc (SC No.28/2012) Page 30 of pages 32 In these situations, the dying declaration Ex.PW7/A which was recorded by PW7 (the then SDM, Seemapuri) who is an independent person, can not be safely relied upon to connect the accused persons with the offence alleged and therefore, they are entitled for an order of acquittal in their favour by giving them benefit of doubt.
13. In the light of aforesaid, all the accused persons are acquitted of the charges by giving them benefit of doubt. Existing Bail Bonds of accused persons are extended for an another period of six months, in terms of the directions of the Hon'ble High Court of Delhi.
14. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open
court on 27.08.2013) (RAKESH KUMAR)
ADDL. SESSIONS JUDGE:(NE)
KARKARDOOMA COURT:DELHI
State Vs. Bijender Giri etc (SC No.28/2012) Page 31 of pages 32
FIR No.140/2011
PS Harsh Vihar
State Vs. Bijender Giri etc.
27.08.2013
Present: Sh. Dharam Chand, Ld. Addl. PP for the State.
All the accused persons are present on bail with their counsel Sh. R. S. Goswami, Advocate.
Vide a separate judgment all the accused persons are acquitted of the charges by giving them benefit of doubt. Existing Bail Bonds of accused persons are extended for an another period of six months, in terms of the directions of the Hon'ble High Court of Delhi.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ02 (NE): KKD Delhi 27.08.2013 State Vs. Bijender Giri etc (SC No.28/2012) Page 32 of pages 32