Delhi District Court
State vs . Nitin Kumar Arora on 7 November, 2009
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
State Vs. Nitin Kumar Arora
FIR No. 877/06
PS: Gokalpuri, Delhi
U/s 302/307/498A/34 IPC
& Sec. 3 & 4 of D.P Act
ORDER ON SENTENCE
07.11.2009
Present: Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Nitin Kumar Arora in J/C with
Sh. Manish Bhadauria, Amicus Curiae, Advocate.
Heard on sentence for convict Nitin Kumar Arora.
It is submitted on behalf of the convict that convict has
no previous involvement and has clean antecedents. He has old
aged mother and sisters to support. He is the sole bread earner of
his family. Therefore, lenient view is prayed for. It is further
submitted that this case does not fall in the category of rarest of the
rare case, therefore, the convict be given lesser punishment.
On the other hand, Ld. Addl. P.P submits that the act of
the convict is of the gravest nature. It has shaken the conscience of
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the society. The burning of a woman with acid is like burning a
person alive and even if, one escapes the death, one lives the life of
lowesteem on account of disfigurement. Therefore, it is prayed
that the convict be given the capital punishment.
The Hon'ble Supreme Court in many cases has reiterated
that life imprisonment is the rule and death penalty is the
exception to be given only in the rarest of the rare case. In Lehna
V. State of Haryana, 2002 SCC (Cri) 526, it was held that the
death penalty can be awarded when:
(1)When the murder is committed in an
extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse
intense and extreme indignation of the
community.
(2)When the murder is committed for a motive
which evinces total depravity and meanness,
e.g., murder by hired assassin for money or
reward, or coldblooded murder for gains of a
person visavis whom the murderer is in a
dominating position or in a position of trust, or
murder is committed in the course for betrayal
of the motherland.
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(3)When murder of a member of a Scheduled
Caste or minority community, etc., is
committed not for personal reasons but in
circumstances which arouse social wrath, or in
cases of "bride burning" or "dowry deaths" or
when murder is committed in order to remarry
for the sake of extracting dowry once again or
to marry another woman on account of
infatuation.
(4)When the crime is enormous in proportion.
For instance when multiple murders, say of all
or almost all the members of a family or a
large number of persons of a particular caste,
community, or locality, are committed.
(5)When the victim of murder is an innocent
child, or a helpless woman or old or infirm
person or a person visavis whom the
murderer is in a dominating position, or a
public figure generally loved and respected by
the community.
In the present case, the victim was the wife of the convict
who was living separately from her husband for the last three
months and was working for her own livelihood. The convict went
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to her workplace and threw acid on her which resulted in burns all
over her body to the extent of 40%. One is aware that acid burns
are more dangerous than flame burns as chemical burns are more
deeprooted and devastating than the normal flame burns. The
convict has thrown acid without apparent provocation from her
side. The act of the convict is against the helpless woman done in
dastardly manner and borders near the rarest of the rare category
but falls short of the same. Therefore, I am of the opinion that such
act deserves the sentence of life imprisonment without any
commutation.
The Hon'ble Supreme Court in "Swami Sharddananda
V. State of Karnataka", 2008 Crl. L.J. 3911 held that Courts are
empowered to restrict the commutation in cases where it feels that
the life imprisonment which after commutation comes to 14 years
would be inadequate and disproportionate to the crime.
In the facts of the present case where the convict without
any provocation killed his wife who was living away from him by
coming to her workplace and used the most deadly instrument of
killing which causes much more pain and sufferings to her i.e by
using acid. It is also common knowledge that acid burns are used
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against women to bring indignity and bring down selfesteem of
the victims. It is required to be curbed with iron hands and the sale
of the acid must be regulated and restricted.
Keeping in view the totality of the facts and
circumstances of the case and as per the discussion above, I am of
the opinion that the interest of justice would be met in sentencing
the convict Nitin Kumar Arora to undergo rigorous imprisonment
for life for offence punishable U/s 302 IPC. He shall also be liable
to pay fine of Rs. 50,000/. In default of payment of fine, he shall
further undergo rigorous imprisonment for the period of two years.
The fine, if recovered, shall be paid as the compensation to the
mother of the deceased/victim.
It is further directed that the life imprisonment in this
case would be complete life imprisonment without any
commutation on account of conduct of the convict by the State
Government.
Further, it has been noticed in the present case that the
investigation has been carried out in most negligent manner.
Despite the seriousness of the offence, there was total lack of
supervision and sensitivity towards the matter by the senior police
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officials. Copy of the order be given to the Commissioner of Police
to take necessary action against the erring official with report to
this Court.
It is also observed that the serious cases like murder,
rape, dacoity and robbery are not being monitored during the trial
by the police. The Court is compelled time and again to call the
police official for matters like filing of FSL result, MLCs in the court
which consumes lot of precious time and energy of the Court and
results in delay in trial. The senior officer like DCP should
personally monitor the trial of the serious cases.
The benefit of Section 428 Cr.P.C be given to the convict.
Copy of the judgment, order on sentence, charge,
evidence, statement of accused, exhibited documents etc. duly
attested by the reader of the Court be given to the convict, free of
cost. The case property, if any, be destroyed after the expiry of the
period of appeal. File be consigned to record room.
Announced in the open
Court today i.e on 07/11/2009
GURDEEP SINGH
Additional Sessions Judge
Karkardooma Courts, Delhi
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IN THE COURT OF SH. GURDEEP SINGH:ASJ 04
NORTH EAST DISTRICT: KARKARDOOMA
COURTS:DELHI
FIR No. 877 / 0 6
PS: Gokalp uri, Delhi
U/ s 302 / 3 0 7 / 4 9 8A / 3 4 IPC
& Sec. 3 & 4 of D.P Act
Sessions Case No. : 05 / 0 8
Date of instit ution : 21 / 0 2 / 0 7
Date of committ al : 21 / 0 3 / 0 7
Date on which reserved for order : 27 / 1 0 / 0 9
Date of delivery of Ju dg m e n t : 31 / 1 0 / 0 9
S T A T E Versus (1) Nitin Kum a r Arora
S /o Late Sh. Mange Ram
R/o 3 / 2 3 , Vill. Gokalpur
Nala Road, Delhi
(2) Sunit a
W/o Late Sh. Mange Ram
R/o 3 / 2 3 , Vill. Gokalpur, Delhi
(3) Sapn a (Juvenile)
D/o Late Sh. Mange Ram
R/o 3 / 2 3 , Vill. Gokalpur, Delhi
(4) Rekh a
W/o Sh. Vikash
R/o Vill. & Post Silwara,PS: Sikka,
District: Muzzarfar Nagar, U.P
(5) Poona m (Discha r g e d)
W/o Sh. Arun
R/o Vill. & Post Silwara,PS: Sikka,
District: Muzzarfar Nagar, U.P
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J U D G M E N T
1.Accused Nitin Kumar Arora, Sunita, Sapn a, Rekha and Poona m were charge sheeted by the police of PS: Gokalp uri, Delhi for offence punis h a ble U/s 302 / 3 0 7 / 5 0 6 / 4 9 8 A/34 IPC and Section 3 and 4 of the Dowry Prohibition Act on the allegations that on 20.11.06 DD No. 9 A and 10 A were recorded at the police station. DD No. 10 A was entru s t e d to S.I Praka s h Roy and DD No. 9 A was entru s t e d to ASI Rajmal regarding that at B 15 Ganga Vihar, Delhi at Deepak Photo Studio, one boy had put acid on one girl. ASI Rajmal reached at the spot and came to know that the injured has been removed to the GTB Hospital. ASI Rajmal alongwith Const a ble reached at GTB Hospital where the MLC of Smt. Manju Saxena was obtained. Smt. Manju Saxena was declared fit for the state me n t and she was having burn injuries. The MLC of Khus hi 8 9 (deceased) was also obtained. She was declared unfit for making the state me n t. She was also having burn injuries with history of acid burn. ASI Rajmal informed the SHO and the Executive Magistrate. The Executive Magistrate came at the spot, inspected the spot and recorded the state me n t s of Smt. Manju Saxena and Smt. Usha Rani i.e the mother of the deceased. The mother of the deceased Smt. Usha stated that her daughter Khus hi was married to accuse d Nitin Kumar Arora on 31.05.200 5 according to Hindu Rites & Ceremonies. After 10 15 days of her marriage, her hus b a n d Nitin Kumar Arora, her mother in law Sunita and her sister in law Sapn a were giving beatings to her and were dema n di ng dowry from her. On accou nt of the torture given to her daughter Khus hi, she had brought her daughter to her house three mont h s prior to the incident and her daughte r was working in the cosmetic shop of Smt. Manju Saxena for ten days and on 20.11.06, she received a 9 10 phone call from Manju Saxena that hus b a n d of Khus hi had poured acid on Khus hi and he had fled away. She reached at the spot and came to know that Khus hi had removed to the GTB Hospital. She also reached at GTB Hospital and found that her daughter Khus hi was getting treat me n t . On this state me n t, the Executive Magistrate, Seelamp u r directed the concerne d SHO to take appropriate action. On the basis of the same, the FIR U/s 307 / 4 9 8 A IPC and Section 3 & 4 of Dowry Prohibition Act was registered and investigation was hande d over to S.I Praka s h Roy. Praka s h Roy reached alongwith Lady Consta ble Leela and Const a ble Lalit Kumar at the spot. ASI Rajmal told S.I Praka s h Roy that he has got Crime Team Inspection and photograp h s of the spot done. S.I Praka s h Roy prepared the site plan and seized the clothes from the spot. Smt. Sunita i.e the mother in law of the deceased was arrested at the insta nce of Smt. Usha i.e the mother of the 10 11 deceased. The other accuse d person s could not be arrested. On 23.11.06, accused Nitin Kumar Arora surre ndere d in the Karkardoom a Court and he was formally arrested. He was taken into the police custody and his one day police custody rema n d was given by the Ld. Metropolita n Magistrate. Accused Nitin got recovered one steel jug from his house which was used in pouring acid. On 30.11.06, S.I informed Sh. A.K Pasi, the Executive Magistrate and got the state me n t of Smt. Khus hi (deceased) recorded who also disclosed regarding the dowry hara s s m e n t and that she was burnt by pouring acid on her by her hus b a n d on 20.11.06. On 17.12.06, Smt. Khus hi died in the hospital. Her postmorte m was got conducted by Executive Magistrate and the cause of death was given as septicemic shock due to antemorte m chemical burn injuries involving 40% of total body area. Thereafter, the offence was converted to Section 302 IPC and the investigation of the case was entru s te d to Inspector B.S Kushwa h 11 12 who deposited the exhibits in the FSL through the Const a ble. On 13.01.07, accuse d Poona m, Rekha and Sapna were granted anticipatory bail.
2. After supplying the copies to the accused persons, the case was committed to the court of sessions vide order dated 21 / 0 3 / 0 7 .
3. On 16.08.07, Inspector B.S Kushwa h stated in the Court that he will file the charge sheet against accuse d Sapn a before Juvenile Jus tice Board. Vide order dated 16.08.07, after finding prima facie, my Ld. Predeces sor charged accuse d Nitin Arora for the offence punis h a ble U/ s 302 IPC and accused Nitin Kumar Arora, accused Sunita and accuse d Rakha were also charged for the offences punis h a ble U/ s 498 A/34 IPC and U/ s 4 of Dowry Prohibition Act read with Section 34 IPC. Accused persons were charged separately to which they pleaded not guilty and claimed trial. On the same day, My Ld. Predeces sor has discha rged accuse d Poona m in 12 13 this case.
4. During the course of trial prosec ution in support of their case examine d as many as 15 witnes se s. The ma t e r i a l wit n e s s e s exa m i n e d by the pros e c u t i o n are:
PW1 Smt. Usha Gulati is the mother of the deceased. She proved her state me n t to the SDM Ex.PW1 /A, arrest memo of accused Sunita Ex.PW1 / B, thu m b impression of her daughter on her state me n t recorded by the SDM Ex.PW1 / C . PW2 Smt. Manju Saxena is the owner of the cosmetic shop where deceased Khus hi was working. She proved her state me n t recorded by the SDM Ex.PW2 /A. PW3 Sh. A.K Pasi, Executive Magistrate, Seelamp u r is also the material witness who recorded the state me n t of Smt. Usha Ex.PW1 /A, Smt. Manju Saxena Ex. PW2 /A and state me n t of Khus hi 13 14 (deceased) Ex.PW1 / C and his endorse me n t on the state me n t Ex.PW1 /A regarding direction to the SHO for taking action.
The form a l wit n e s s e s exa m i n e d by the pros e c u t i o n are:
PW5 ASI Om Praka s h was the duty officer who recorded the formal FIR and proved the copy of the FIR as Ex.PW5 /A. He also proved his endorse me n t on the rukka Ex.PW5 / B. PW7 Consta ble Sunil was the photogra p h er who took the photograp h s of the spot and proved the same as Ex.PW7 /A to Ex.PW7 / E . He also proved the negatives of the same Ex.PW7 / F to Ex.PW7 / J . PW9 Dr. Sanju Kohli who proved the MLC of injured Manju Saxena Ex.PW9 /A which was prepared by Dr. Sachin who has left the services of the hospital.
PW11 Ct. Parmod in whose custody the dead body 14 15 of the deceased Khus hi was kept before it was hande d over to the relatives of the deceased. He proved the receipt of handi ng over of the dead body as Ex.PW11 /A. PW13 Dr. Arvind Kumar who conduc ted the postmorte m on the dead body and proved the postmorte m report Ex.P13 /A. He gave the opinion that the cause of death was septicemic shock due to antemorte m chemical burn involving 40% of total body area.
PW14 Sh. Baijayant a Mua hop a d hy ay, Ju nior Scientific Officer, CFSL Kolkata who examined the exhibits and reported that clothes examined by him found to have sulph u ric acid, however, no acid residue was found in the steel jug.
The wit n e s s e s of inves t i g a t i o n , arre s t and recove r y exa m i n e d by the prose c u t i o n are: PW4 Head Consta ble Leela joined the investigation with the IO/S.I Praka s h Roy and she is the witness 15 16 of seizure of burn pieces of the clothes and arrest of accuse d Sunita. She cond ucted the personal search of accuse d Sunita vide personal searc h memo Ex.PW4 /A. she also identified clothes burnt with acid as Ex.PW4 /Article1.
PW6 ASI Rajmal Singh had joined the investigation of this case and he is the witness of seizure of burnt clothes. He proved the seizure memo of burnt clothes Ex.PW6 /A and disclos ure state me n t of accuse d Sunita Ex.PW6 / B. PW8 Consta ble Raj Kumar is the witness of pointing out of the place of occurre nce by accused Nitin. He proved the pointing out memo Ex.PW8 /A and recovery of steel jug and its seizure vide memo Ex.PW8 / B. He also identified the steel jug as PW8 /Article 1.
PW10 Retd. Inspector B.S Khus hw a h who formally arrested the accused person s namely Poona m, Rekha, Sunita and Sapn a vide their arrest memos 16 17 Ex.PW10 /A, Ex.PW10 / B , Ex.PW10 / C and PW10 / D respectively. After the completion of the investigation, he filed the charge sheet. PW12 S.I Praka s h Roy cond ucte d the investigation of this csae before Inspector B.S Khus hw a h and proved the site plan prepared by him Ex.PW12 /A in addition to other memos. He also proved the arrest memo of accused Nitin Arora Ex.PW12 / B , his person al searc h memo Ex.PW12 / C and his disclosure state me n t Ex.PW12 / D . He is also the witness of recovery at the insta nce of accused Nitin.
5. State me nt of accuse d Nitin, Rakha and Sunita were recorded U/ s 313 Cr.P.C wherein accuse d persons denied the prosec ution evidence and claimed innocence. Accused Nitin Arora admitted his marriage with deceased Khus hi. He, however, denied the other facts. He stated that his wife i.e deceased and her mother were press u rizing him to live with them at their house but he refused for the 17 18 same and he was living separa tely from her parent s / f a mily since after three mont h s of his marriage with the deceased. He stated that the previous husb a n d i.e her first hus b a n d threw acid on her on 20.11.06. He further stated that he is innocent and has been falsely implicated in this case. Accused Sunita i.e the mother in law of the deceased stated that his son Nitin and her daughter in law i.e the deceased were living separa tely from her family since after three mont h s of their marriage. Accused Rekha stated that the witnesse s have deposed against her at the insta nce of the mother of the deceased and stated that she is innocent. All the three accuse d persons choses not to lead defence evidence.
6. I have heard Ld. Addl. P.P for the State and Sh. Manish Bhada u ria, Amicus Curiae, Advocate for the accuse d persons. I have also gone through the record.
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7. There are two sets of evidence on record. One is the dying declaration of deceased Khus hi and second is the evidence of Manju Saxena who is the witnes s of events immediately prior to the incident, during the incident and immediately after the incident.
8. Ld. Counsel on behalf of the accuse d persons submitted that there is no evidence on record that deceased was in a fit state of mind when she gave the dying declaration. Ld. Counsel sub mitted that there is no certificate of the doctor to this effect. Ld. Counsel for the accused person s has cited the judgme n t of Hon'ble Supre me Court titled as "Ongole Ravi k a n t h Vs. St a t e of A.P ", 2009 (3) JCC 2414.
9. In the cited judgme n t, Hon'ble Supre me Court observed as under: "It is well settled and need no restate me n t at our hand s that dying declaration can form the sole basis for conviction. But at 19 20 the same time, due care and caution must be exercised in considering weight to given to dying declaration inas m u c h as there could be any numbe r of circum s t a n c e s which may affect the trut h. It has been repeatedly held by this Court that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit ment al condition to make the dying declaration, the courts have to look for the medical opinion."
10. In the cited judgme n t, the deceased was in the casu alty ward. When the judicial first class Magistrate reached at casu alty ward, duty doctor was present who made the endorse me n t to the fact that the patient was in a fit condition to give the state me n t and her dying declaration was recorded and the Hon'ble Supre me Court accepted the dying 20 21 declaration and upheld the conviction.
11. The dying declaration of deceased Ex.PW1 / C which was recorded by PW 3 Sh.A.K Pasi reads as under: "I Khus hi, W/o Nitin Arora, R/o Gali No. 2, House No. 163, Gokalpur Village, Delhi, Age: 19 Years, state that my marriage with Nitin Arora took place on 31.05.05 according to Hindu Rites and ceremonies. After 10 15 days of the marriage, my hus b a n d Nitin, mother in law Sunita, sisters in law Sapn a and Rekha started beating me and used to dema n d dowry and Rs. 50,000 / rupees. Due to their torture s, I beca me fed up and about three mont h s prior, I came to my parent al house and about 20 days prior, I started going to the shop of Smt. Manju Saxena. On 20.11.06 at about 10.30 AM when I was sitting at the shop, my hus b a n d Nitin Arora came there and said to me that I have been asked to give money and articles for the marriage of Sapn a and why I have not brought and he started insisting me to go alongwith him. I 21 22 refused saying that speak regarding this to my mother and my chac ha . On this, he got angry and left and after 15 20 minute s, he again came back with a jug having acid and poured the same on me. I started crying and screa mi ng and he fled away. I while screa ming went to Manju Saxena on the upper floor and told her that my hus b a n d had poured acid on me and fell uncon s ciou s . I am giving this state me n t at GTB Hospital in my full senses.
State me nt recorded by me at GTB
Hospital Burn Ward. 6:40 PM
Sd / RTI of Smt.Kh u s hi
A.K Pasi
Executive Magistrate Attested
Seelamp u r, Delhi sd /
30.11.06"
12. The MLC of deceased Khus hi was prepare d on 20.11.06 at about 12.15 PM which is a admitted docume n t . As per the MLC, on 20.11.06 at 12.15 PM, she was declared unfit for making state me n t by the attending doctor. At the place of LTI and RTI only the circle is made but there is no left thu m b 22 23 impression or right thu m b impres sion. It is also mentioned in the MLC that M.I (Mark of identification) not tracea ble.
13. PW3 Sh. A.K Pasi, the Executive Magistrate has stated that on 30.11.06, he was again called by the IO and he reached at GTB Hospital at burn ward and recorded the state me n t of Khus hi. He stated that thu m b impression of Khus hi was atteste d by him. In his cross examin a tion, PW3 stated that he made an attempt to inquire about the injured whether she is in a position to give the state me n t from the doctor. He also made the effort to take the state me n t of deceased between 20.11.06 to 30.11.06. When, he recorded the state me n t of Khus hi, no other person was present. He saw on the MLC regarding fitness of deceased Khus hi to give the state me n t and recorded her state me n t. He stated that he did not ask the doctor to give fitness on the state me n t. He denied the suggestion that on 23 24 30.11.06, doctor had not declared Khus hi fit for making the state me n t on her MLC. He also denied the suggestion that Khus hi did not make any state me n t and he recorded whatever was narrated by her mother. He categorically stated that on the state me n t of Khus hi her thu m b impression and his signat u re s appear and there are no other signat u re s. He stated that he reached at GTB Hospital on 30.11.06 at 6.00 PM. He stated that he received the information at about 5 PM that the injured is fit for the state me n t. He denied the suggestion that Khus hi was not fit for state me n t. he stated that he helped Khus hi in putting her thu m impres sion. He admitted that Khus hi was completely burnt and was not in the position to sit.
14. PW1 Smt. Usha Gulati, mother of the deceased, testified that SDM had recorded the state me n t of her daughter in her prese nce. In her cross examina tion, PW1 stated that the state me n t of 24 25 Khus hi was recorded by the SDM with two policemen in her presence only once. She stated that the state me n t of Khus hi was recorded after 10 12 days after the incident.
15. PW12 S.I Praka s h Roy testified that when she was removed to the GTB Hospital, she was declared unfit for state me n t by the doctor. On 30.11.06, he went to the hospital to know the condition of the deceased and the doctor has informed that she is fit for state me n t. He immediately informed the executive magistrate who recorded her state me n t .
16. Therefore, apart from the state me n t of PW1 Smt. Usha that state me n t of Khus hi was recorded by the Executive Magistrate and PW 12 S.I Praka s h Roy stated that doctor had informed him that she is fit for making the state me n t and thereafter, he called the executive magistrate to record the state me n t of Khus hi which was recorded by him, there is no other material on record to show that she was 25 26 during the course of her treat me n t beca me fit for making the state me n t . The Executive Magistrate has not taken the endorse me n t of the doctor on the state me n t nor there is any endorse me n t on the MLC nor there is any other material on record which shows that Khus hi had regained her conscious n e s s and was in the fit state of mind when she made her state me n t to the Executive Magistrate. Further, the dying declaration also cast doubt as the MLC No. C 4753 / 0 6 of Khus hi leaves the place where the thu m b impres sion are to be put blank and however, the thu m b impres sion are shown to have been taken on the state me n t of Khus hi. Therefore, I am of the opinion that in the absence of material on record that Khus hi was declared fit by the doctor for making the state me n t and further that she was in a fit state of mind and fully conscious when she made the state me n t , the dying declaration of the deceased Khus hi cannot be relied upon.
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17. Now coming to the other evidence. PW2 Smt. Manju Saxena is the most importa nt witness of this case. She testified that she is run ni ng a cosmetic shop at her house and deceased Khus hi was working with her. She had started work about 8 10 days prior to the date of incident. She stated that on 20.11.06, Khus hi came to the shop at 8:30 AM when they opened the shop. Accused Nitin came after 15 minute s. Nitin and deceased Khus hi quarelled amongst themselves for some time. She had not heard the conversation. She had, however, told accuse d Nitin that do not fight at her shop and told him to go to the mother of deceased, if he wants to talk to her. Thereafter, Nitin left the shop. Thereafter, she went on the first floor where she reside. Khus hi was cleaning the shop. Thereafter, she heard the cries of Khus hi after 15 minute s. Before she could react, Khus hi came upst airs and told that Nitin had thrown acid on her. She noticed that her entire face and body had burn with acid. 27 28 Her clothes were also burnt with acid. She grappled with her. Some of the acid also fell on her upper left arm. The witness shown the burnt mark on her upper left arm in the court when she was examined. Thereafter, the neighborers called the police and Khus hi and she (the witness) were taken to the GTB Hospital by the police. She called the mother of the deceased over the telephone throug h herself before leaving to GTB Hospital. Her state me n t was recorded by the SDM.
18. PW1 Smt. Usha Gulati, the mother of the deceased corroborated PW2 Manju Saxena that her daughter was working in her shop and on 20.11.06, she received her telephonic call that accuse d Nitin had come to her shop and thrown acid on her body (body of Khus hi) and to come immediately.
19. PW3 Sh. A.K Pasi, the Executive Magistrate deposed that he was called at the GTB Hospital by S.I Praka s h Roy and he reached at hospital where 28 29 one woma n Khus hi was admitted due to acid burn s . She was not fit to make the state me n t. He recorded the state me n t of Smt. Usha Ex.PW1 /A and Smt. Manju Saxena Ex.PW2 /A and directed the SHO to take action.
20. PW4 H.C Leela and PW6 ASI Rajmal Singh corroborated PW13 S.I Praka s h Roy regarding seizure of burnt clothes of the deceased having acid burn s. PW15 Inspector Baks hi Ram, SHO corroborated PW13 S.I Praka s h Roy regarding the informa tion given by him regarding one woma n was burnt by her hus b a n d and he reached at GTB Hospital and the spots and gave necess a ry direction for the investigation and on the direction of Executive Magistrate got the FIR registered.
21. The testimony of PW2 Smt. Manju Saxena is relevant U/s 6 of the Indian Evidence Act as all the facts forms the part of the same trans a c tion. In her cross examina tion, PW 2 stated that on the date of 29 30 incident, she had come at 8:00 AM in the morning and Nitin came after about fifteen minute s of her arriving. He remained there for about 10 to 15 minute s. Nitin was talking to Khus hi in anger but she does not know the cause of dispute between them. Khus hi had come to her to complaint about Nitin fighting with her upst airs. Nitin followed her, thereafter, she (witness) advised him to go to his house. She called the police after the incident of acid. She stated that she does not know whether in her state me n t recorded by police, it is mentioned that she had called the police and volunta rily, stated that her son called the police. Police arrived at the spot after 20 25 minute s and volunt arily stated that she went in the vehicle to the hospital immediately and reached at the hospital at about 11 AM. She stated that she does not know whether she (Khus hi) was conscious or uncon sciou s but she was not speaking. She, however, admitted that the acide was not thrown in her prese nce. She had seen 30 31 accuse d Nitin prior to the incident. Nitin used to come to their house where she was living as tena n t and she had seen him there. She denied the suggestion that Nitin has not thrown the acid on Khus hi. She further denied the suggestion that Nitin did not come to her house and caused the alleged incidence. She also denied the suggestion that the first hus b a n d of Khus hi had come to her house and thrown acid on her. She stated that the crowd had collected after the incident, however, she does not know how many persons had collected.
22. This witness was also removed to the hospital alongwith Khus hi and her MLC was prepare d. She was also having burn injuries from acid. As per the MLC Ex.PW9 /A, left arm (lateral aspect) andleft hand (medial 1½ aspect) was having burn s . The witness has also shown the burn marks on her upper left arm in the Court when she was examine d. She has also explained that as to how 31 32 she sustai ne d burn injuries. Khus hi grappled with her while her clothes were having acid. Therefore, the presence of this witness at the spot is corroborated by the indepe nde n t evidence. The testimony of this witness has a ring of trut h as she does not say as to what conversation was going on between them but she heard them speaking. She knew the accuse d Nitin prior to the incident, therefore, his identity is not in dispute. The seque nce of event are such that there are inescap a ble conclusion that accuse d Nitin came prior to the incident and quarreled with Khus hi and thereafter, after 15 minute s, Khus hi came run ni ng and crying and she came upstairs to Manju Saxena for help and rescue and immediately told her that Nitin has thrown acid on her. Although, she had not seen Nitin throwing acid on Khus hi but the two incidents are insepar a ble and part of the same trans a c tion that one can safely conclude that no one else other tha n accused Nitin had thrown the 32 33 acid on Khus hi. Even otherwise, there is no cross examina tion on the state me n t of Manju Saxena where she says that Khus hi had told her immediately, thereafter, that Nitin has thrown acid on her nor there is even a suggestion to the fact that deceased has not stated so to Manju Saxena and this part of the state me n t of Manju Saxena after the death of the deceased becomes the dying declaration and can be proved against accused Nitin Arora. Therefore, the gap left by Manju Saxena if any between the throwing of the acid and seen Khus hi having burn s with acid is filled by the state me n t of Khus hi which conclusively and beyond any shade of doubt proves that it was only Nitin who had poured acid on her.
23. Ld. Counsel on behalf of the accused has also pointed out some inconsiste ncies between the testimonies of other witnesse s. Ld. Counsel sub mits that PW 6 ASI Rajmal Singh testified that he 33 34 retur ne d back to the spot alongwith Consta ble Arvind from the GTB Hospital. He stated that SDM Seelamp u r reached at the spot and he inspected the spot. The mother of the deceased also reached at the spot. Whereas, PW3 Sh. A.K Pasi, the Executive Magistrate in his cross examina tion has stated that He did not go to the place of the incident. PW1 Smt. Usha Gulati in her cross examin a tion has stated that police did not take her to any other place other tha n the hospital and police met her 2 3 times after the incident where she was attending to her daughter. It is also pointed out that PW2 Manju Saxena states that PW1 Smt. Usha did not go to the spot but PW1 Smt. Usha states that she had gone to the spot.
24. It cannot be called as inconsiste ncy as Manju Saxena was in the hospital. The mother of the deceased Khus hi reached first at the spot where she met the police and thereafter, she went to the 34 35 hospital. Smt. Manju Saxena, therefore, would not know whether the mother of the deceased has first gone to her house where the incident has taken place.
25. On the other hand, there is an inconsiste ncy between the state me n t s of PW 3 i.e the Executive Magistrate and PW6 ASI Rajmal Singh that the SDM reached at the spot. Furt he r, there is inconsiste ncy in the testimony of PW 12 S.I Praka s h Roy where he says that he alongwith the mother of the deceased and ASI Rajmal reached at the hospital and thereafter, returne d back at the spot and thereafter, prepare d the site plan at the insta nce of the mother of the deceased, meaning thereby, the mother of the deceased had come to the spot again, which is denied by her in her testimony as PW1 states that she was attendi ng to her daughter in the hospital.
26. Ld. Counsel for the accused persons has sub mited 35 36 that the investigation in this case is not properly carried out and cited "Rattni Vs. State of H.P", I (1993) CCR 67 (SC), the judgme nt of Hon'ble Supre me Court.
27. The said case was based on circu m s t a n ti al evidence whereby it was alleged that the appellant who was the wife of the deceased had conspired with another with whom she was having illicit relations and administere d white arsenic to her hus b a n d which resulted in his deat h. The Trial Court convicted the appellant on the basis of circum s t a n c e s. One of the evidence relied upon was that in the FIR, it was mentioned that it was on 16.09.78 itself the deceased become sick after eating somet hing. The alleged purch a s e of the arsenic, as per the entry was dated 18.09.78, that was subseq ue n t to which he fell sick. Further, the arsenic was also purc ha s e d by the IO during the investigation and it was with him and the evidence relied against the appella nt was 36 37 recovery of piece of wrapper on which the report was received that the arsenic was sticking in it. In view of this, the Hon'ble Supre me Court held the investigation was carried out in highly suspicious man n er and the recovery is doubtful. The cited judgme nt is distinguis h a ble with the facts of the present case as the present case is based on the ocular testimony of Smt. Manju Saxena who is an indepe nde n t witness and the investigation in this case is only of the formal nat ure.
28. Now the question arise whether these inconsiste ncies are material. The material facts that the accused Nitin Arora had come to the shop of Manju Saxena where the deceased was working about fifteen minu te s prior to the occurre nce and thereafter, after fifteen minute s, Manju Saxena heard the screa mi ng of Khus hi and thereafter, Khus hi immediately came upst airs to her having acid burn s on her and grappled with Manju Saxena 37 38 which resulted in burn injuries on accou n t of acid fell on the person of Manju Saxena and thereafter, they were removed to the hospital. The mother of the deceased was informed and she arrived at the spot and met with the police official and thereafter, she went to the hospital and thereafter, she did not retur n to the place of occurre nce and kept attending to her daughter in the hospital and establis hed the fact that the mother of the deceased i.e PW1 Smt. Usha had not come to the spot again and the fact that the police witnesse s stated so, does not go to the root of the matter. It is the fact of the commo n knowledge that the police officials being over zealous to show their skills of investigation creates some evidence of such nat ure which are not trut hful but that does not in any man ne r damage the intrinsic value of the evidence of the public witnesse s. The evidence has to be seen in its core. The inconsiste ncies in the fringes do not bring down the credibility of otherwise trustwort hy witnesse s. 38 39
29. Interestingly, as per PW15 Inspector Baks hi Ram, the investigation of this case was entru s te d to PW 10 Inspector B.S Bus hw a h a after the lady expired in the hospital on 17.12.06. Whereas, PW10 Inspector B.S Kushwa h a deposed that on 20.11.06, one Usha came to the police station and she made a complaint to Sh. A.K Pasi, Executive Magistrate who was also prese nt in the police station. The executive Magistrate recorded her state me n t in his prese nce and the investigation was marked to him. He stated that the dead body of the deceased was already preserved in the hospital for postmorte m, meani ng thereby, PW10 was entr u s te d with the investigation when the deceased expired in the hospital but from his testimony, it appears that as if the deceased had died on 20.11.06 and her mother has come to the police station for giving the complaint which is totally contrary to the record and absolutely false. Further, PW 10 has stated that he has formally arrested accused Poona m, Rekha, Sunita and 39 40 Sapn a. Whereas, accused Sunita was arrested much before when PW10 was entru s t e d with the investigation and accuse d Sunita was arrested by S.I Praka s h Roy. PW10 Inspector B.S Khus hw a h a arrested them only on 13.01.07, when they were on anticipatory bail.
30. It is necess a ry to say here that the cases of such serious nat ure are investigated in totally irrespon sible and negligent man ne r by the Investigating Agencies. It also show that there is total lack of supervision. In the present case, the dying declaration was recorded without ascertaining or getting recorded that the deceased was fit to make the state me n t. Inspector B.S Khus hw a h has deposed what is not there on record and it only shows lack of serious ne s s on the part of the Investigating Agency. It also reflects upon the senior officers who are responsible for supervision of the cases as serious as that of murder.
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31. Be that as it may. The testimony of Smt. Manju Saxena is fully reliable, trust worthy and finds corroboration from the medical evidence regarding her testimony. She has no enmity with the accused Nitin to depose against him. It is a settled law that due to fault of investigation, the accuse d cannot be given any benefit.
32. Accordingly, prosec ution has succeeded beyond reason a ble doubt in proving that on 20.11.06 deceased Khus hi at her work place i.e at the cosmetic shop of Manju Saxena had quarreled with her hus b a n d Nitin Arora and accuse d Nitin was advised by Manju Saxena to go away and thereafter, accuse d Nitin came back and poured acid on the person of deceased Khus hi. Khus hi started screa ming and went upst airs in order to get relief from Manju Saxena and in the process, Smt. Manju Saxena sust ai ne d burn injuries. Khus hi also stated to her that accuse d Nitin had poured acid on her 41 42 which is a contempora n eo u s evidence as well as amou n t s to dying declaration of deceased Khus hi given to Smt. Manju Saxena. It is also proved that Khus hi died in the hospital on 17.12.06 and cause d of her death was acid burn injuries on her person. There was 40% burn injuries over her body. The intention of the accused Nitin was by causi ng such extensive burn injury was only to cause her death and which resulted in her death. The steel jug which was used in pouring acid was also got recovered by accuse d Nitin from his house. It was not having acid residue. However, due to gap of time between the investigation and recovery, it may result in loss of that evidence. It was also found by the FSL that clothes examined by them found to have sulph u ric acid. Thereby, the act of accuse d Nitin falls within the first category of Section 300 IPC as defined U/s 300 IPC and punis h a ble U/s 302 IPC.
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33. The defence of accused Nitin Kumar Arora is that the previous hus b a n d of deceased Khus hi had poured acid on her is not subs t a n ti a te d. No evidence has been led in this regard. The suggestion has been give to PW1 i.e the mother of the deceased that Khus hi was hara s se d by her first hus b a n d and her first hus b a n d had committed the present offence which is denied by PW1. Similar suggestion was given to PW2 Smt. Manju Saxena that first hus b a n d of Khus hi had come to her house and thrown acid on Khus hi, which is also denied by PW2. Apart from this, there is no evidence on record from which even the inference can be drawn that deceased was previously married before her marriage with accuse d Nitin nor there is any evidence to show that some person other tha n accuse d Nitin has poured acid on Khus hi.
34. Ld. Counsel for the accused persons sub mitted that in this case, there is no direct evidence to show that 43 44 accuse d Nitin has poured acid on deceased Khus hi and it is likely that her ex hus b a n d had poured the acid on deceased Khus hi. Therefore, there are two view possible and therefore, the view which is favourable to the accused mus t be taken. Ld. Counsel has cited judgme nt of Hon'ble Supre me Court titled as "Naren d r a Sing h & Anr. Vs. Sta t e of M.P", 2004 (2) JCC 832.
35. The cited judgme nt is not applicable to the facts of the present case as in the present case, it is not even establis hed that the deceased was earlier married nor the defence taken can improbablise the prosec ution version.
36. Accordingly, I am of the opinion that prosec ution has proved that accuse d Nitin Kumar Arora had murdered his wife namely Khus hi beyond reason a ble doubt. Accused Nitin Kumar Arora is accordingly convicted for the offence punis h a ble U/s 302 IPC.
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37. Now coming to the allegation of the offence U/s 498 A IPC and U/s 4 of Dowry Prohibition Act. The Hon'ble High Court of Delhi in "Savit r i Devi V. Rame s h Chan d and other s , 20 0 3 Crl.L.J 27 5 9 observed that in order to constit ute offence punis h a ble U/ s 498 A IPC, the following ingredient s are essential : (1) Woman should be tormented i.e tortured either physically or mentally through const a n t interference or intimidation;
(2) Such act should be with a view to pers u a d e or compel her to do something which she is legally or otherwise not expected to do by using force of threats;
(3) Intention to subject the woma n should be to compel or force her or her relatives to fulfill unlawful dema n d s for any property or valuable security.
38. The evidence to prove this fact is PW 1 Smt. Usha i.e the mother of the deceased and the 45 46 dying declaration allegedly recorded which is disbelieved.
39. As per PW 1 Smt. Usha Gulati in her state me n t given to the SDM immediately after the burni ng incident of the decease d, stated that after 10 15 days of the marriage of her daughter, accuse d Nitin, mother in law Sunit a and sister in law Sapn a were giving beatings to her daughter and were dema n di ng dowry and on accou n t of these hara s s m e n t s , she has brought her daughter to her house. However, when PW 1 was examined in the Court, she testified that mother in law of her daughte r i.e Sunit a and her sister in law Sapn a started hara s si ng her daughter. Accused Nitin was also hara s si ng her daughter and was dema n di ng money. Mother in law Sunita used to dema n d cash money and dema n d e d Rs. 25,000 / at the time of marriage. Accused Nitin used to dema n d motor bike. Sister in law Sapn a used to dema n d articles for her marriage. They also 46 47 used to threate n her daughter with hasia and country made pistol.
40. PW1 Smt. Usha Gulati in her cross examina tio n has stated the marriage between accuse d Nitin and Khus hi was arra nged marriage and stated that the accuse d person s had dema n de d dowry on the date of engageme n t (sagai). She stated that no list of dowry articles was made. She admits that she was not doing any work, at the time of marriage of her daughter and her in laws arra nged money for the marriage. She further admits that she cannot give the detail of the amou n t spent in the marriage as the marriage expense s were borne by her sister, herself and other relatives. She stated that she is earning between Rs. 50,000 / to Rs. 10,000 / on contract basis. She stated that she had told the SDM or police regarding the dema n d of money of Rs. 25,000 / and motor bike which is, however, not correct. She also stated that she had stated that sister in law of her daughter was dema n di ng articles 47 48 for her marriage, which is also not correct and the state me n t with respect to the threate ni ng of her daughter is also not correct. These are improveme nt s made by PW 1 in her testimony in the Court. In her state me n t , PW 1 has not stated any specific amou n t or dema n d of any article was made by the mother in law Sunita. It is worthwhile to mention here that she does not say anyt hing abo ut the sister in law Rekha and therefore, there is no evidence on record against accused Rekha that she ever raised any dema n d or hara s se d the deceased.
41. As regards, the mother in law Sunita, PW 1 Smt. Usha Gulati made the improveme nt s . She denied the suggestion that her daughte r started living separ a tely from her in laws immediately after the marriage. However, she admitted that her daugh ter shifted to the separa te residence after one year as paucity of space in the matrimonial home. Therefore, the deceased was not living with her in laws from May 2006 and was living separa tely with her 48 49 hus b a n d . Therefore, the prosec ution has failed to prove that sister in law of the deceased Rekha and mother in law Sunit a had dema n d e d any money from the deceased or hara s s e d her to coerce to meet their unlawful dema n d of dowry. Accused Rekha and Sunita are entitled to be acquitted.
42. As regards the allegations of dowry dema n d again st accuse d Nitin Kumar Arora, there is no specific dema n d alleged by PW 1 Smt. Usha Gulati in her state me n t made before the SDM. However, improveme nt s were made subseq ue n tly, when she was examined in the Court. Therefore, the prosec u tion has also failed to establis h that accu se d Nitin Kumar Arora has hara s s e d the decease d with a view to coerce her to bring dowry to meet his unlawful dema n d of dowry. The prosec ution has also failed to prove that any dema n d of dowry was made at the time of marriage, therefore, Section 4 of Dowry Prohibition Act is also not proved against the accuse d person s.
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43. As per the discus sion above, accused Nitin Kumar Arora, Sunita and Rekha are entitled to be acquitted of the charges U/ s 498 A IPC and Section 4 of Dowry Prohibition Act. Bail bonds of accuse d Sunit a and Rekha stan d s cancelled. Sureties of accu se d Sunita and Rekha discha rged. Accused Nitin Kumar Arora is convicted for the offence punis h a ble U/ s 302 IPC. Let, accuse d Nitin Kumar Arora be heard on qua n t u m of sente nce.
Announce d in the open Court today i.e on 31 / 1 0 / 0 9 (GURDEEP SINGH) Additional Sessions Ju dge Karkardoom a Courts, Delhi 50