Delhi District Court
State vs . on 1 March, 2012
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 69/10
FIR No. : 365/04
P.S. : Bawana
U/s : 302 IPC
Date of registration : 18012005
Reserved for Judgment on: 27012012
Judgment Announced on : 01032012
State
Vs.
Murari Lal S/o Babu Lal
R/o D17/42
Shahabad Dairy, Delhi
JUDGMENT
1. Briefly stated the present case was registered on the statement of complainant Sansarwati (since deceased) wife of accused Murari Lal. She alleged in her statement that 23 days before the date of incident some hot words were exchanged between her and her Devrani Sunita. On coming to know about the same on 27092004, her husband gave beatings to her and Sessions Case No. 69/10 1 of 37 said that "he would drop her at her house." But the complainant refused to go out of the house. On this, her husband said that he would kill her by setting her on fire.
2. She further alleged that thereafter her husband Murari Lal took the plastic bottle full of kerosene oil which was lying at the first floor, poured the same on her, lit the match stick and set her on fire. Complainant made a noise "Bachao Bachao" then her husband ran away from the spot. Sh. Sodan Singh, brother of the complainant got her admitted at JPN Hospital where her alleged statement was recorded by SI Parveen Kumar. SI Parveen Kumar made his endorsement on the statement of complainant (since deceased) and sent the rukka to the police station through constable Raj Kumar for the registration of the case.
3. F.I.R. bearing No. 365/04, was registered at P.S. Bawana and investigation went underway. Accused was arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
4. On 02022005, charge U/s 302 IPC was framed against Sessions Case No. 69/10 2 of 37 accused to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of the accused persons, the prosecution examined as many as 20 witnesses.
6. PW 1 H.C. Raj Kumar is the duty officer. He recorded the FIR and proved the carbon copy of the FIR as Ex. PW 1/A. He also made his endorsement on the rukka and proved the same as Ex. PW 1/B.
7. PW 2 Sodan Singh is the brother of the deceased. He is a material witness and I will discuss his testimony in the later part of the judgment.
8. PW 3 Shri Kanshi Ram is the father of the deceased. He deposed that his daughter Sanswar Wati was married with accused 13 years ago. His daughter was residing alongwith her husband and children at Shahabad Dairy, Delhi. After marriage his daughter was residing happily with accused. He further deposed that about 46 months ago there was some dispute between his daughter and accused. His daughter used to tell him that accused used to favour his brother and sisterinlaw and he was not providing proper food and also not properly maintaining them. He further deposed that whenever he used to visit at the residence of his son who is residing in same locality, his Sessions Case No. 69/10 3 of 37 daughter used to tell her grievances. He used to tell his daughter to reside peacefully as it was her family matter.
9. He further deposed that on 27092004, he received a telephonic message about his daughter having received burn injuries so he reached at hospital and found his daughter lying in burnt condition in JPN Hospital. He further deposed that his daughter expired on 1102004 in the hospital. He identified the dead body of his daughter. He proved on record his statement regarding the identification of the dead body of his daughter as Ex. PW 3/A.
10. PW 4 H.C Mohinder Singh deposed that on 27092004, he was working as MHC(M) at PS Bawana. He further deposed that on that day SI Parveen Kumar deposited three sealed parcels sealed with the seal of PK alongwith FSL form having same seals in the malkhana. He made an entry at serial No. 350 in register No. 19. He proved on record the photostat copy of the relevant entry as Ex. PW 4/A.
11. He further deposed that on 1112005, he sent all the three sealed parcels and form FSL with seals intact to CFSL Laboratory Hyderabad vide RC No. 2/21 through constable Priyanji Sindhey. After depositing case property constable Sessions Case No. 69/10 4 of 37 Priyanji Sindhey handed over to him received copy of RC. He proved on record the photostat copy of RC as Ex. PW 4/B.
12. PW 5 Prem Kumar deposed that on 27092004, he saw some smoke coming out from the house No. D17/42 Shah Bad Dairy between 2:00 p.m to 3:00 p.m. Public persons were also saying that house of Murari has caught fire. He came out from his house and informed the PCR from his mobile phone.
13. PW 6 SI Pardeep Rana is the Junior Ambulance Officer, CAT Ambulance Service, Delhi. He took the deceased to JPN Hospital in CAT Ambulance and got her admitted there.
14. PW 7 Manish is the photographer. On 27092004 he took the photographs of the spot from different angels. He proved on record the positives as Ex. PW 7/ 1 to 7 and negatives as Ex. P8 to 14.
15. PW 8 Constable Karambir Singh is the DD writer. On 2792004, he recorded DD No. 14 regarding the incident and proved on record the same as Ex. PW 8/A. On 1102004, he also recorded the message in the daily dairy register that lady Sansarwati who was admitted in the hospital on 27092004 had been declared dead by the doctor. He proved on record the copy of the same as Ex. PW 8/B. Sessions Case No. 69/10 5 of 37
16. PW 9 SI Manohar Lal is the draftsman. On 09122004, he prepared the rough notes and took the measurements of the spot and on the basis of the same he prepared the scaled site plan which he proved as Ex. PW 9/A.
17. PW 10 constable Raj Kumar deposed that on 27092004, he was posted at police post Shahabad diary of PS Bawana. On that day DD No. 14 was handed over to SI Shiv Narain and he alongwith him reached at JPN Hospital. One lady by the name of Sanswarwati who was having burn injuries was found admitted in ward No. 20 of JPN Hospital. He further deposed that MLC of injured was obtained by SI Shiv Narain. In the meantime SI Parveen Kumar also reached in hospital. ASI Shiv Narain handed over the MLC of the injured to SI Parveen Kumar. Statement of Sanswarwati was recorded by the IO. IO made his endorsement and rukka was handed over to him. He further deposed that he took the rukka to police station and after registration of the case he reached at House No. D 17/42, Shahabad diary where ASI Parveen Kumar, ASI Shiv Narain were found present. He handed over the original rukka and copy of FIR to SI Parveen Kumar.
18. PW 11 Constable Virender deposed that on 2102004, Sessions Case No. 69/10 6 of 37 he was posted at PS Bawana. On that day he alongwith SI Parveen Kumar reached at JPN Hospital Mortuary. Dead body of Smt. Sansar Wati W/o Murari was in the mortuary. The dead body was identified by the brother and father of the deceased. After postmortem the dead body was handed over to the relatives of the deceased.
19. PW 12 Dr. Rohit conducted the postmortem on the body nd of deceased Sansarwati on 2 October, 2004. He proved on record his postmortem report as Ex. PW 12/A. He opined that death was due to septicemia consequent upon infecteddermo epidermal burns. All burns were antimortem and could be caused due to flame of fire. The burn injuries are sufficient to cause death in the ordinary course of nature.
20. PW 13 is Dr. Ritu Saxena who on 27022004, examined the patient Sanswarwati with alleged history of burns by pouring kerosene oil by her husband. After examination she referred the patient to burns ward for further management. She proved on record her detailed report as Ex. PW 13/A.
21. PW 14 is ASI Shiv Narain who on 27092004 on receiving DD No. 14 Ex. PW 8/A alongwith constable Raj Kumar reached at house No. D17/42, Shah Bad Dairy where he came to Sessions Case No. 69/10 7 of 37 know that one lady by the name of Sanswar Wati W/o Murai received burn injuries and she has been removed to JPN Hospital. They both reached at JPN Hospital. He obtained the MLC of Smt. Sanswarwati. After making inquiry he came to know that Smt. Sansarwati has ben shifted to burns ward at JPN Hospital.
22. He further deposed that in the meanwhile SI Parveen Kumar (IO) also reached in JPN Hospital and he handed over DD No. 14 and MLC of Sansarwati to him. Thereafter this witness remained associated with IO SI Parveen Kumar during the investigation of the case and he narrated about the sequence of investigation done by IO SI Parveen Kumar. He proved on record the seizure memo as Ex. PW 14/A vide which IO seized the plastic bottle having some kerosene oil, burnt clothes and match box alongwith match sticks. He identified the case property.
23. PW 15 Ms. Veena Amba Pd. is the Junior Scientific Officer, CFSL Laboratory, Hyderabad. She proved on record her report as Ex. PW 15/A.
24. PW 16 Inspector Ram Avtar Meena deposed that on 4102004, he was posted at PS Bawana as Addl. SHO. He Sessions Case No. 69/10 8 of 37 took over the investigation of this case. He obtained the postmortem report of the deceased Sansarwati. He called draftsman SI Manohar Lal and alongwith him reached at House No. B 17/112 Shahbad Dairy and on the pointing out of Sodan Singh SI Manohar Lal took rough notes and measurements of the spot and on the basis of which he prepared the scaled site plan and handed over the same to him. He further deposed that he recorded the statement of witnesses. Sealed parcels of this case were sent to FSL Laboratory. He recorded the statement of Malkhana Moharar and other witnesses. Challan was prepared and the same was filed in the Court.
25. PW 17 Dr. Arun Goel is the Senior Plastic Surgeon Lok Nayak Hospital, Delhi. He proved on record the endorsement of Dr. Ajay Sagar at point B on Ex. PW 13/A which is the MLC of deceased Sansarwati.
26. PW 18 SI Parveen Kumar is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record statement of deceased Sansarwati which was recorded him as Ex. PW 18/A, his endorsement on the same as Ex. PW 18/B and site plan prepared by him as Ex. PW 18/C. He arrested the accused and conducted his personal search. He proved on Sessions Case No. 69/10 9 of 37 record arrest memo of accused as Ex. PW 18/D, and his personal search memo as Ex. PW 18/E. He further proved on record form No. 25.35 which was filled up by him as Ex. PW 18/F, brief facts prepared by him as Ex. PW 18/G, application moved by him before the doctor for conducting the postmortem on the dead bod of Sansarwati as Ex. PW 18/H. He identified the accused and the case property.
27. PW 19 HC Jal Dhari was posted as operator in PCR at police HQ MSO Building IP Estate on 27092004. He deposed that on that day his duty hours were from 8:00 p.m to 8:00 a.m. On that day he received the call from telephone No. 9818418279 that a fire had broken in a gas cylinder near 17/42, Roop Krishna Public School, Shahbad Dairy. He filled up the PCR form. After seeing the photocopy of the said form available on the file, he deposed that he has not brought the original PCR Form as the same has been weeded out by the order of DCP Police control room dated 11/09/2007. He proved on record the photocopy of the order of DCP and the certificate issued by Shri PD Sharma, ACP, PCR Delhi as Ex. PW 19/A and Ex. PW 19/B and the photocopy of the PCR form as Ex. PW 19/C.
28. This witness was cross examined by the Ld. APP as he Sessions Case No. 69/10 10 of 37 deposed against the record and in his cross examination by the Ld. APP he admitted it to be as correct that PCR van responded to the information to the PCR Hqr. by sending the information at 14.49 hours. Consequently he can say that he recorded the information Ex. PW 19/C on 27092004 at 2:48 P.M. He further stated that it may be that due to number of information being received at a particular time, he could not mentioned the word PM against the time 2.48. Now he recollect that his duty hours were on 27092004 from 2:00 p.m to 8:00 p.m.
29. PW 20 HC Omender Kumar deposed that on 27092004 he was posted as Head constable in PCR North West Zone and was deputed as Incharge at Commander 83, PCR Van. He deposed that on that day at about 3:00 p.m he received a call on wireless set that one lady had received burn injuries at D17/42, Shahbad Dairy, Delhi. He alongwith his staff reached at the informed place in PCR van. He further deposed that on reaching to the aforesaid house he noticed that one lady with burn injuries was lying at the gate of the house and her brother, Sodan weas also present there. She was oriented/speaking. They shifted her in the PCR van to take her to JPN Hospital. On the way, he received another message on the wireless that one CAT van was Sessions Case No. 69/10 11 of 37 lying parked at Karnal Byepass and that the patient could be shifted in that van. On reaching to the byepass CAT ambulance was found there. The patient was shifted in the ambulance van. He further deposed that the name of the patient/injured was Sansarwati W/o Murari LaL. She herself told her name and it was also confirmed by the brother of the injured. The injured lady did not tell anything else to him or his staff.
30. He further deposed that he has not brought the PCR record of the aforesaid facts as the same has since been destroyed. He has brought the copy of the certificate issued by Shri PD Sharma, Asstt. Commissioner of Police, VA, PCR, Delhi to certify that in pursuance of order No. 2670/Record BR/PCR dated 11092007, the old record of PCR for the period from 172004 to 31122004 relating to CBCR have been handed over to Shri Girish Chand, Asstt. K.B.I.C., Gandhi Darshan, Rajghat, New Delhi for weeding out on 9102007. He proved on record the certificate as Ex. PW 20/A and identified the signature of Shri PD Sharma at point A.
31. This witness was declared hostile and cross examined by the Ld. APP and in his cross examination by the Ld. APP he admitted it to be as correct that officials at the PCR record the Sessions Case No. 69/10 12 of 37 information as is given by the PCR officials, posted on the van and available at the spot. He further stated that now he recollect after being informed about the facts mentioned in the PCR form Ex. PW 19/A that the injured Sansar Wati was conscious and oriented and she told him besides her name, that her husband Murari Lal poured kerosene upon her and set her on fire due to which she had received burn injuries. Her husband Murari had absconded. He further admitted it to be as correct that due to lapse of time, he could not recollect the entire facts and as such, he could not narrate them in his examination in chief.
32. After the closing of the prosecution evidence statement of accused U/s 313 Cr.P.C was recorded and incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated in this case. He also stated that at the time of occurrence, he was not present at the spot. His daughter told him that this is a mishappening or may be a suicide.
33. Accused also led defence evidence and in his defence he examined 5 witnesses.
34. I have heard Ld. APP for the state, counsel for the accused and have also gone through the records of the case.
Sessions Case No. 69/10 13 of 37
35. It is submitted by the Ld. APP that on the basis of the evidence recorded and the material available on record accused be convicted. It is further submitted by the Ld. APP that the deceased had made a dying declaration before the doctor who treated her for the first time and the dying declaration was also recorded by the IO which is Ex. PW 18/A. It is further urged that the deceased had categorically named the accused as the person who poured kerosene oil on her and set her on fire.
36. On the other hand, it is urged by the Ld defence counsel that the dying declaration is totally unreliable because according to PW 14 ASI Shiv Narayan, SI Praveen Kumar PW 18 met him at JPN Hospital and he handed over DD No. 14 Ex. PW 8/A to him. It is further urged by the Ld defence counsel that according to PW 14 SI Praveen Kumar recorded the statement of deceased Sansarwati without addition or subtraction. It is further urged by the Ld defence counsel that PW 18 SI Praveen Kumar stated in his cross examination that dying declaration Ex. PW 18/A is in the hand writing of ASI Shiv Narayan which was recorded by him under his supervision and directions. Ld defence counsel further urged that PW 14 ASI Shiv Narayan has categorically stated in his cross examination that he had not recorded the statement of Sessions Case No. 69/10 14 of 37 any witness nor he personally conducted the investigation so it was urged by the Ld defence counsel that on account of above said facts it is clear that no statement of the deceased was recorded in the hospital.
37. It is further urged by the Ld defence counsel that the deceased was not in a fit state of mind when she was taken to the hospital and she did not make any statement either to the police or to the doctor. It is further urged by the Ld defence counsel that Dr. Ajay Sagar who had allegedly declared the injured/deceased fit for statement has not been produced by the prosecution.
38. It is further urged that there were many public witnesses and neighbours near the place of occurrence but the IO of the case neither recorded the statement of the children of the deceased nor the neighbours. Ld. defence counsel has relied upon Jagdish Lal Malhotra Vs. State (DB), 25 (1984), DLT 405 and Shashi Bala Vs. State of NCT of Delhi 2007 (1) CCC ( H.C.)
5. It was further urged by the Ld defnece counsel that the accused was not present at the spot at the time of occurrence and he was present at his work place at the time of occurrence. The accused has examined 4 DWs in support of his defence.
Sessions Case No. 69/10 15 of 37 39. The only evidence against the accused in the instant
case is the dying declaration made by Sansarwati. It has been time and again held by the Apex Court that if no infirmity is found the dying declaration can be the sole basis for conviction without any corroboration. The dying declaration is a substantive piece of evidence only for the reason that a person in a acute agony is not expected to tell a lie and in all probabilities it is expected from such person to disclose the truth and it is also a settled principle of law that the dying declaration is a substantive evidence and an order of conviction can be safely recorded even on the basis of dying declaration. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he or she stands before creator. There is a legal maxim "Memo Moriturous Praesumitur Mentire" meaning, that man will not meet its maker with lie in the mouth. So now keeping in view the above said proposition of law and the maxim it is to be seen whether the dying declaration made by Sanaswarti pointing finger towards the accused can be the sole basis of his conviction.
40. The MLC of deceased Sanswarwati is Ex. PW13/A wherein Dr. Ritu Saxena, CMO was on duty on 27092004, who has given her the first aid and recorded as follows : Sessions Case No. 69/10 16 of 37 "Brought by her father and CATS ALFA 18.
Alleged H/o burns by pouring kerosene oil by her husband at her house (Shahabad Dairy) at 2:15 p.m. As told by the patient herself. ''
41. The other dying declaration was recorded by SI Praveen Kumar which is Ex. PW 18/A and this was recorded on 27092004. Now it is to be seen whether these dying declaration are to be believed and conviction can be based on the basis of the dying declaration.
42. PW 2 Sodan Singh who is the brother of the deceased deposed that his sister had 5 children. He has further deposed that whenever his sister used to meet him she used to complain that her husband Murari Lal used to give her beatings whenever she demanded household expenses from him. He further deposed that Sunil and Sunita brother and sisterinlaw of the accused also used to give her beatings. He further deposed that on 29092004, at about 2:30 p.m. he came to know that his sister has been burnt. When he went to the house of her sister he found her on the ground floor in burnt condition.
43. He further deposed that his sister was conscious when he reached there and she remained conscious till she was put in Sessions Case No. 69/10 17 of 37 gypsy and admitted in JPN Hospital. He further deposed that his sister had told him that her husband had poured kerosene oil on her and set her on fire with a match stick.
44. During the course of the arguments it was submitted by the Ld defence counsel that during his cross examination PW 2 has categorically stated that "her statement was taken by the police at the spot at about 3 p.m". It was urged by the counsel for the accused that the police have deliberately suppressed this statement of the deceased because this statement must have exonerated the accused. I do not find any force in this contention because when PW 2 was cross examined, he stated that police persons have only inquired from his sister. He also stated in his cross examination that first of all her sister had given statement to the police and then she told him about the incident. It is quite natural that the police persons who reached the spot must have asked the deceased the manner in which she got burnt and it has also come in the testimony of PW 20 the PCR official that she was conscious and oriented. Moreover, there was no need for the PCR officials to record the statement then and there and it was the demand of the time to shift the injured immediately to the hospital. So it was only an inquiry which must have been made Sessions Case No. 69/10 18 of 37 by the police officials to which witness has given term statement. Moreover, there is no suggestion either to PW 2 or to PW 20 who reached there that any statement exonerating the accused was made by the sister.
45. The cross examination of PW Sodan Singh was completed on 1142005, wherein he had categorically stated that his sister Sansarwati told him that she was burnt by her husband Murari Lal. There is no suggestion to this witness that Sansarwati was not in a position to speak or she was unconscious rather this witness has gone to state that his sister was conscious when he reached at her house and she remained conscious till she was put in gypsy and admitted in JPN Hospital. This witness was recalled for further cross examination by the predecessor of this Court after almost 4 years of his first cross examination which was completed on 1142005. So when this witness came in for cross examination for second time, he stated in his cross examination that his sister was crying "Jala Diya - Jala Diya before the police officials but she has not named any person. He has further stated that she had not told the name of anybody who had burnt her.
46. So now when he appears the second time in the Court Sessions Case No. 69/10 19 of 37 he is completing shielding the accused. This witness was cross examined by the Ld. APP he admitted in his cross examiantion that on 1142005 he gave statement in the Court on oath that his sister had told him that her husband had poured kerosene oil on her and set her on fire.
47. So from the testimony of this witness recorded on 1142005, and 26052009 it is crystal clear that Sansarwati was conscious when she was removed to the hospital and she disclosed the name of the accused as the preparator of the crime. It appears to me that as the accused has five children so with the passage of time he must have forgiven the accused may be in the interest of children of his late sister, that is why he tried to change his version in the Court.
48. The other important witness who reached the spot immediately after the incident is PW 20 H.C. Umender Kumar who was posted as head constable in PCR North West Zone on 27092004. He has stated that one lady with burn injury was lying at the gate of the house and her brother Sodan was also present. He further deposed that she was oriented and speaking. He has further deposed that the injured lady has herself told her name as Sansarwati but this witness went on to depose that the Sessions Case No. 69/10 20 of 37 injured lady did not tell anything to him or his staff.
49. This witness was cross examined by the Ld. APP and in his cross examination by the Ld. APP he stated that injured Sansarwati was conscious oriented and she told him besides her name that her husband Murari Lal poured kerosene upon her and set her on fire due to which she had received burn injuries.
50. This witness was cross examined by the Ld defence counsel and he denied the suggestion that Sansarwati did not tell anything to him about the incident. PW 2 and PW 20 have corroborated each other to the extent that when they reached the spot immediately after the incident Sansarwati was found in burnt condition. She was conscious oriented and she categorically named accused Murari Lal as the preparator of the crime.
51. The other most important witness is Dr. Ritu Saxena who has been examined as PW 13. This witness has deposed that on 27092004, though in her examination in chief it is recorded as 27022004, but this date is a typographical error and the date is 27092004, she was posted at LNJP hospital as CMO. Patient Sansarwati w/o Murari Lal was examined by her with alleged history of burns by pouring kerosene oil by her husband at her Sessions Case No. 69/10 21 of 37 house at Shahabad Dairy at about 2:50 p.m. She deposed that this was told to her by the patient herself. She further deposed that thereafter she referred the patient to the burns ward for further management.
52. This witness was cross examined on 01072005, and in her cross examination she stated that patient was brought by her brother and her brother was present when she disclosed the statement. She further stated that the patient was conscious when she examined her. She further stated in her cross examination that she cannot say if the patient given the statement under the influence of her brother.
53. This witness was again recalled for cross examination and on 9122009 she was again cross examined and in her cross examination she denied the suggestion that the alleged history of burns was narrated to her by the brother of Sansarwati (deceased). She further denied the suggestion that she had prepared the MLC at the instance of the police and the brother of the deceased. She further denied the suggestion that the name of the husband is not mentioned in the MLC and stated that the name of the husband is mentioned in the column meant for the same. So from the testimony of this witness there remains no Sessions Case No. 69/10 22 of 37 doubt that the patient was conscious and oriented. She has categorically stated in her testimony that patient herself told her that she has been burnt by her husband.
54. The deceased was given preliminary treatment by Dr. Ritu Saxena. In her presence the deceased has mentioned the name of the accused as the person who poured kerosene oil on her and set her on fire. Her deposition in this regard is very clear and has not been shaken in any manner in the cross examination. Moreover, she was admitted in the hospital within one hour of the incident. The further perusal of the MLC shows that her vitals were normal, pulse was 80 per minute and there was no history of loss of consciousness/vomiting and ENT bleeding.
55. It was argued by the Ld defence counsel that the history given by the deceased to the doctor was the effect of tutoring by here brother but no such suggestion has been given to her brother PW Sodan Singh that he had tutored the deceased to make a statement against the accused. Moreover, the deceased was having five children and it does not strike to logic that she would falsely implicate her husband at the instance of her brother knowing very well that she may or may not survive and by Sessions Case No. 69/10 23 of 37 falsely naming her husband, she would be ruining the life of her 5 children. So this arguments of the counsel that she was tutored by her brother Sodan Singh has no force in it.
56. The other dying declaration which is Ex. PW 18/A which has been recorded by SI Praveen Kumar though, legally there may be no bar against recording of dying declaration by the police officer however, it is safe and prudent to record it through independent person or the same be recorded in their presence and attested by them. Recording of the dying declaration by the IO should not be encouraged and in case the doctor is available he should also remain present when such statement is recorded. But in the present case SI Praveen Kumar recorded the alleged dying declaration which is Ex. PW 18/A when the patient was declared fit for statement by the Doctor Ajay Sagar on 27092004 at 6:10 p.m.
57. PW 14 is ASI Shiv Narayan. He deposed that SI Praveen Kumar contacted the doctor on duty and the doctor declared Smt. Sansarwati fit to make the statement and SI Praveen Kumar recorded the statement of Sansarwati without any addition or alteration. The signature of this witness are not there on Ex. PW 18/A which creates a doubt about his presence Sessions Case No. 69/10 24 of 37 when SI Praveen Kumar was recording the statement of Sansarwati (deceased).
58. PW SI Praveen Kumar has stated in his cross examination that Ex. PW 18/A which is the dying declaration is in the hand writing of ASI Shiv Narayan whereas according to SI Shiv Narayan SI Praveen Kumar recorded the statement of Sansarwati (deceased) himself so they both contradicted each other on the point of recording of dying declaration Ex. PW 18/A.
59. PW 18 stated in his cross examination that he had not obtained any attestation on Ex. PW 18/A from any doctor. He has further stated in his cross examination that the doctor had told him that since both the hands of the injured are bandaged, her toe impression can be obtained. When doctors were available in the hospital and the IO SI Praveen Kumar was talking to them and obtaining their opinion, it is not understood why the dying declaration was not got recorded by him from the doctor and what prevented him from calling the magistrate for the said purpose. The dying declaration recorded by him which is Ex. PW 18/A cannot be relied upon.
60. Now we are left with only one dying declaration made by the deceased to doctor Ritu Saxena but as already observed Sessions Case No. 69/10 25 of 37 hereinabove her testimony is cogent and reliable and she could not be shaken in her cross examination. So I have no reason to disbelieve her that she recorded the history of the case wherein it was recorded by her that accused had poured kerosene oil on Sansarwati and burnt her.
61. The accused has raised the plea of alibi and in order to prove his alibi he has examined 5 witnesses in his defence. It was urged by the Ld defence counsel that defence witnesses are entitled to equal treatment with those of the prosecution witnesses. There is no dispute to this proposition of law but it has to be seen whether the defence version that the accused was not present at the place of occurrence is possible and whether the same is more probable then the prosecution's case.
62. DW 1 is Pavitra who is the daughter of the deceased. She has deposed that on 27092004, at about 12 noon her mother was in the kitchen and preparing tea. Some how her mother caught fire as she was pouring kerosene in the stove and trying to ignite the stove. She further deposed that her father was not present in the house. She further deposed that her parents were having cordial relations.
63. This witness was cross examined and she denied the Sessions Case No. 69/10 26 of 37 suggestion that her father had poured kerosene oil on her mother and set her on fire.
64. DW 2 is Lalti Devi. She deposed that on 27092004, at about 2 - 2:30 p.m she heard the cries of Aag Lag Gai Aag Lag Gai from the house of Murari Lal. She saw that wife of Murari Lal had received burn injuries. She called Murari Lal on telephone who came there alongwith his brotherinlaw Hari Prasad.
65. She stated in her cross examination that prior to her examination in the Court she had never told these facts to any authority and she stated that the telephone number of Murari Lal is 27823191 on which she informed him.
66. DW 3 is Mohd. Yakub. He has deposed that on 27092004, he was present at counter at Prahalad Pur. He got a phone call from some lady namely Lalti who told him that a fire has taken place in the house of Murari Lal. He further deposed that he conveyed this to Murari Lal who was sitting at a Tshop across the road. After hearing the call he left for home. He further deposed that Hari Prasad brotherinlaw of the accused was also with him.
67. He stated in his cross examination that he cannot tell any reason as to how Laliti could imagine about him and Murari Sessions Case No. 69/10 27 of 37 Lal been together. He denied the suggestion that Muraril Lal was not present at the place as claimed by him.
68. DW 4 is Hari Prasad who is the brother of the deceased and brotherinlaw of the accused. He deposed that on 27092004, at about 2:30 p.m. he was present opposite the counter of Bawana Gas Service agency at Prahalad Pur. He further deposed that he, accused and Mohd. Yakub were all working in the gas agency. He further deposed that at about 2:30 p.m a phone call was received which was heard by DW 3 Mohd Yakub. He further deposed that Mohd. Yakub got the message on phone from a lady that there is a fire in the house of Murari Lal and his wife has received injuries. After hearing the message he alongwith Murari Lal started for Murari's home. He further deposed that the relation between the accused and his wife were cordial and she never made any complaint to him. He further deposed that he had gone to the hospital and his sister had not complained against the accused for her burn injuries.
69. He was cross examined by the Ld. APP and in his cross examination he stated that PW Sodan Singh is his younger brother and he has good relation with his father and brothers. He stated in his cross examination that prior to the recording of his Sessions Case No. 69/10 28 of 37 evidence in the Court he had never told anything regarding the incident of fire in the house of the accused, about the telephone call having been received in the gas agency or heard by DW 3 or conveying of the telephone call to the police at about 2 or 2:30 p.m. on 27092004 or about the accused and he running to the house of the accused. He denied the suggestion that he is making up the stories. He stated in his cross examination that he came to know about the arrest of the accused in murder case of his sister but he did not tell to the police or any other authority even after coming to know about the fact that the accused was arrested in this case, what he has told in the court today. He also admitted that he has not made any complaint in writing about the accused having been falsely arrested He further stated that he did not forbid his father and brother Sodan Sing from deposing against the accused.
70. DW 5 is Girish Kumar. He deposed that on 27092004, at about 2:30 p.m he went to the house of Sodan Singh and after some time heard some noise of BachaoBachau. He alongwith Sodan Singh went there and saw sister of Sodan Singh was shouting and standing in the gali in burnt condition. He further deposed that daughter of Sansarwati namely Pavitra met them Sessions Case No. 69/10 29 of 37 and told that her mother got burnt while she was preparing tea. He further deposed that she did not name anybody. He further deposed that he alongwith Sodan Singh, brother of the deceased Sansarwati was present in the ambulance and in the ambulance the deceased did not name any body.
71. He further deposed that in the emergency she was treated by a lady doctor to whom also she did not disclose the name of anybody. He further deposed that she has not named anybody in the hospital ward. He further deposed that Murari Lal was not present when the incident took place and he was present at gas agency Prahalad Pur.
72. In his cross examination he denied the suggestion that he did not accompany PCR Van or the ambulance. He further stated that he had not stated to the police anything as stated by him in the examination in chief. He further stated in his cross examination that Sansarwati was in a position to speak after the incident till the time she reached the hospital.
73. The onus to prove alibi is on the person who pleads alibi. The defence has been raised by the accused is that he was not present at the spot. The suggestion given to PW 2 regarding accused being not present at the spot is as follows: "It is incorrect Sessions Case No. 69/10 30 of 37 to suggest that accused was not present at his house at the time of occurrence." When the accused was strongly pleading alibi he should have clearly mentioned as to where he was at the time of the incident. PW 3 Shri Kanshi Ram is the father of the deceased. No suggestion on this aspect has been given to this witness.
74. The statement of accused was recorded U/s 313 Cr.P.C and in reply to most of the questions he has stated them to be as incorrect and to the question have you anything else to say, he answered as follows : "I am innocent. At the time of the occurrence I was not present at the spot. My daughter told me that this is a mishappening or may be suicide."
75. The supplementary statement U/s 313 Cr.P.C was also recorded and in that statement accused stated that he was present on his duty at Prahalad Pur near Man Dharam Kanta in Bawana Gas Service and he was not present at the spot. So the defence is that he was present at his job at the time of the incident. But nothing has been placed on record by the accused in the form of any documentary evidence to show that he was working with Bawana Gas Service and he was on duty on the date of the incident.
76. DW 1 who is the daughter of the deceased and the Sessions Case No. 69/10 31 of 37 accused has simply stated that her father was not in the house and she had not uttered a single word where is father was at that time. Similarly DW 2 Smt. Lalti Devi has stated that she had given a call to Murari Lal and told him about the incident whereas DW 3 Mohd. Yakub has deposed that he had got the call from one lady Lalti who informed him about the incident. So both the witnesses are contradicting each other regarding the receipt of information by Murari Lal.
77. According to DW 3 when he informed Murari Lal, he was sitting in a tea shop across the road whereas DW 4 has no where stated that accused was sitting in a tea shop though he claims to be with the accused on the day of the incident at about 2:30 p.m which again is contradictory to what has been stated by DW 3. It is quite surprising that all the witnesses when they appeared as defence witness deposed in the Court that Murari Lal was not present at the spot but it is not understood why they all kept quiet when Murari Lal was arrested in this case. They have admitted that they have not stated the facts stated by them in their examination in chief to any police officials or any of the police authority previously for the reasons best known to them.
78. DW 4 is the brotherinlaw of the accused and he has Sessions Case No. 69/10 32 of 37 also deposed that the accused was not present at the spot but for the reasons best known to him he also remained quiet and did not deter his brother and father from speaking against the accused. It was not the life of the accused only, it was the lives of the 5 minor children of the accused which were at stake but DW 2, DW 3 and DW 4 they all kept quiet and it is not that the plight of the children of the accused and the deceased was hidden from them. If it was their case that the accused was not present at the spot then keeping in view the interest of the children of the accused and the deceased they should have taken up the issue with the authorities. But that was not done which clearly goes to show that they are not telling the truth.
79. The last defence witness is DW 5 Girish Kumar examined by the accused but in my opinion rather speaking in favour of the accused he has spoken in favour of the prosecution. The following lines of his cross examination are very relevant which reads as follows: " Sansarwati was in a position to speak after the incident till the time she reached the hospital." So this is what the case of the prosecution is Dr. Ritu Saxena has also categorically stated that the injured has disclosed the case history to here and as already discussed Sessions Case No. 69/10 33 of 37 hereinabove , I do not find any reason to disbelieve Dr. Ritu Saxena as there was no reason for here to side either with the prosecution or with the accused.
80. Then again here it is pertinent to mention that when DW 5 was knowing so much about this case then why he kept quiet for almost six years and for the reasons best known to him did not raise any voice in favour of his villager i.e the accused in the present case. Atleast when he claims himself to be with the injured when she was taken to the hospital and she did not name any body, he could have atleast written a letter to the higher authorities or to the police making them aware about the actual facts without bothering whether any action would be taken on his letter or not. But he did not do so and suddenly after six years came before the Court and narrated the story which is highly unbelievable in the facts and circumstances of this case. The accused, therefore, has failed to prove alibi.
81. So keeping in view the entire facts and circumstances, I am of the opinion that the prosecution has been able to prove that the dying declaration recorded by Dr. Ritu Saxena who has been examined as PW 13 is totally believable and I find no reason to disbelieve Dr. Ritu Saxena who recorded the case Sessions Case No. 69/10 34 of 37 history of the injured Sansarwati who was examined by her at the first instance. The accused has failed to prove his alibi. So Keeping in view the above discussions, I hold that the prosecution has been able to prove its case against the accused beyond reasonable doubt. The accused is, therefore held guilty and convicted U/s 302 IPC. Put up for arguments on point of sentence on 17032012.
(Announced in the open Court on 01032012) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No. 69/10 35 of 37 IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE II, OUTER DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 69/10 FIR No. : 365/04 P.S. : Bawana U/s : 302 IPC State Vs. Murari Lal S/o Babu Lal R/o D17/42 Shahabad Dairy, Delhi ORDER ON SENTENCE
1. I have heard Ld. APP for the state and Ld. counsel for the convict on the point of sentence.
2. It is urged by the Ld. counsel for the convict that he is a poor person having five children, has a family to support and is the only bread earner of his family. Thus minimum sentence be awarded to him.
3. On the other hand Ld. APP submits that the convict doesn't deserve any leniency and maximum i.e. death Sessions Case No. 69/10 36 of 37 punishment be awarded to him as he has committed murder of his wife.
4. Convict Murari Lal has been convicted by me vide separate judgment dated 01032012 U/s 302 IPC.
5. It is not a rarest of the rare case inviting imposition of capital punishment. I, therefore, sentence the convict Murari Lal to undergo life imprisonment U/s 302 IPC and pay a fine of Rs. 10000/. He will undergo rigorous imprisonment for three months in case of default of payment of fine. Ordered accordingly.
6. The benefit of section 428 Cr.P.C. be given to convict. Copy of judgment and order on sentence be given to convict free of cost. File be consigned to Record Room.
(Announced in the open Court on 02042012) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGEII, OUTER DISTRICT, ROHINI COURTS, DELHI (Copy attached).
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