Delhi District Court
State vs 1. Aslam S/O Bindu on 5 October, 2012
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 10/11
Unique ID No. : 02401R0026792011
State versus 1. Aslam S/o Bindu
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
2. Sammi s/o Aslam
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
3. Asraf s/o Aslam
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
4. Humma D/o Aslam (Since
P.O.)
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
Case arising out of:
FIR No. : 95/10
Police Station : Chandni Mahal
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Under Section : 302/34 IPC
Judgment reserved on : 29.09.2012
Judgment pronounced on : 05.10.2012
JUDGMENT
Case of the Prosecution:
The brief facts of the case as borne out from the charge sheet are that on 16.10.2010 an information was received at PS Chandni Mahal (reduced vide DD No.24A) to the effect that Ct.Ajay has telephonically informed from JPN hospital that one Arti w/o Javed aged 35 years r/o 1182,Gali Hamim Naem Beg Wali, Kala Mahal, Delhi has been admitted in the hospital in burnt condition by her husband vide MLC No.172578 and IO be sent.
On receipt of the said DD, ASI Preetam Singh reached the Emergency Ward of JPN hospital, where he obtained the said MLC of the injured Arti w/o Javed. Upon inquiries, it was revealed that the injured Arti was married about 4 ½ years ago. SDM was telephonically informed by the ASI Preetam Singh for recording of her statement. At about 2 AM on 17.10.2010, the doctor declared the injured fit for statement and at about 3:30 AM, SDM recorded her statement wherein :3: she stated that she was residing at H.No.1182,Gali Hamim Naem Beg Wali, Kala Mahal, Delhi with her husband, motherinlaw and brother inlaw and that her fatherinlaw had expired and she had no child. Her husband runs a meat shop and in the upper portion of the aforesaid premises, uncle (Tau) of his husband i.e. accused Aslam, his daughter Humma (since P.O.) and sons i.e. accused Ashraf and Sammi were living. She also stated that Aslam and his children did not like her as she belonged to Hindu Religion and they were Muslims. She further stated that she got married to the accused about four years ago and that she was well treated by her husband Javed, his mother and his brother and had no complaint against them. She also stated that Aslam, his daughter Huma and sons Ashraf and Sammi used to quarrel with her on the pretext that she had humiliated them in the society.
In her statement made to the SDM, she further stated that on 16.10.10 at about 9:45 PM when Humma picked up a quarrel with her and Aslam asked her and his sons i.e., accused Asraf and Sammi to set her on fire. Consequent thereupon, accused Sammi sprinkled kerosene oil on her and Asraf set her on fire with the help of match :4: stick. She further stated that she ran outside to escape. Her husband, motherinlaw and brotherinlaw were not at home at that point of time. On coming outside, she poured milk from a drum from a nearby shop upon her to douse the fire. In the meantime, her husband came at the spot and took her to LNJP hospital. She further alleged in her statement made to the SDM that uncle of her husband namely Aslam, his sons Asraf, Sammi and his daughter Humma had burnt her.
In view of her statement recorded by the SDM, a case was registered under Section 307 IPC and the IO after registration of the FIR reached the spot where photographer of the Crime Team and the husband of the complainant met him. Photographs of the place of incident were taken and the exhibits were lifted from the spot which were seized and sealed in the pulandas by the IO. Perusal of the charge sheet further reveals that no chance prints or residue of the kerosene oil were found on the floor at the place of incident by the crime team. However, exhibits were lifted from the spot i.e., burnt burka of black colour, one plastic can containing small quantity of kerosene in open condition with its cap lying nearby and one match box of 'SHIP' brand :5: having some unburnt sticks. IO also got recorded the statement of the SDM, Daryaganj under Section 161 Cr.PC.
Charge sheet further reveals that on 18.10.2010, an information regarding demise of Arti was received vide DD No.5A. The dead body of the deceased Arti was handed over to her relatives after the postmortem and Section 302 IPC was subsequently added in the FIR. Accused Aslam was arrested on 21.10.2010 by the Insp.Satish Kain. The exhibits seized from the place of incident were sent to FSL, Rohini for opinion. Post Mortem report was also obtained from the hospital as per which there were 95% burns on the body of the deceased Arti and the cause of death was opined to be "Death due to shock consequent upon antemortem flame burns." Scaled site plan was also got prepared by the draftsman and his statement was also recorded to this effect. After completion of the requisite formalities, the charge sheet against the accused Aslam was submitted in the court. The other accused were however, absconding.
Charges:
On the basis of material on record, the accused was :6: charged for the offence under Section 302/34 IPC vide order dated 22.03.2011 to which he pleaded not guilty and claimed trial.
During the course of investigation efforts were being made to arrest the remaining accused viz., Asraf, Humma & Sammi who had been declared Proclaimed Offenders vide order dated 28.03.2011 passed the ld. Metropolitan Magistrate. Accused Asraf and Sammi surrendered before the court consequent upon their supplementary charge sheet was submitted before the ld. Metropolitan Magistrate on 19.05.2011. Pursuant to committal of this case, accused persons viz., Asraf and Sammi were charged separately for the offences under Sections 302/34 & 174A IPC vide order dated 30.07.2011, to which they pleaded not guilty and claimed trial.
Plea of the accused:
Statements of the accused Aslam, Asraf and Sammi were recorded under Section 313 Cr.PC in which all of them claimed that they are innocent and have been falsely implicated in the instant case. However, accused Shammi stated that there were bitter relations with the family of Javed with them and there was a quarrel with respect to :7: the tenanted portions as the tenancy of both of them i.e., Javed and their portions are common tenancy in the name of the mother of his father and Javed used to demand additional room for himself after the marriage which led to differences between their family and the family of Javed and for this reason he and his family members have been falsely implicated in this case. No evidence was led by the accused in their defence.
Prosecution Evidence & Arguments:
The Prosecution examined as many as 20 witnesses in order to prove its case.
At the outset, it may be necessary to point out that the husband of the deceased, namely Javed, who was being examined on record as PW2 died during the course of trial and his testimony, which remained incomplete on account of his death, thus cannot be read in evidence.
Prosecution strongly relied upon the deposition of SDM Sh.N.K.Sharma examined as PW6, who recorded the dying declaration of the deceased Arti on 17.10.2010 at about 3:30 PM. He deposed that :8: he reached LNJP hospital on 17.10.2010 and found Arti admitted at Burns Ward of the hospital. He further deposed that she was declared fit for statement by the doctor on her MLC at about 2 AM and that he recorded her statement Ex.PW6/A, which was duly attested by him and signed by him at points A, while Arti put her thumb impression at points B in his presence.
Prosecution further examined PW10 Dr.Sanjay Kumar, who deposed that on 16.10.2010 he was posted as CMO at LNJP hospital and at about 10:42 PM injured Arti was brought to the hospital and was examined by him vide MLC No.172578. He deposed that as per the alleged history told by her husband, she sustained burn injuries at home at about 10 PM. He also deposed that she had sustained burn injuries of 6070% and the injured was conscious and oriented. After examination, she was referred to Burns & Plastic Surgery Emergency. The MLC prepared by PW10 Dr.Sanjay Kumar is Ex.PW10/A. Dr.Siddharth Chaudhary who was examined as PW12 deposed that on the intervening night of 1617.10.2010, he was on duty as Jr. Resident at LNJP hospital, Department of Burns & Plastic :9: Surgery. On the said night, one patient Arti was brought to the hospital and examined vide MLC Ex.PW10/A. He deposed that he declared Arti fit for statement at about 2 AM vide his declaration Ex.PW12/A. Apart from the aforesaid doctors, the Prosecution also relied upon the testimony of PW3 Dr.Jatin Bodwal, who had conducted post mortem on the body of deceased Arti on 18.10.2010 vide his report Ex.PW3/A. He deposed that Dermoepidermal burn injuries were present all over the body of the deceased except some part of front of chest and right palm (as shown by him in the diagram on page3 of the post mortem report). The approximate area of burns was 95% of the total body surface area.
Besides the aforesaid witnesses, the Prosecution also relied upon the deposition of PW7 SI Mahesh Kumar, who prepared the scaled site plan of the place of occurence Ex.PW7/A. PW8 Ct.Dinesh Kumar is the photographer who reached the place of incident and took photographs of the scene of crime, which are Ex.PW8/A1 to Ex.PW8/A12 and their negatives are Ex.PW8/A13 (Colly.).:10:
The other formal witnesses examined by the Prosecution include PW1 HC Kunwar Pal who registered the FIR on the basis of rukka brought by Ct.Pradeep (PW9). HC Kanwar Pal was again examined as PW5, who again deposed that on the basis of information received from JPN hospital by Ct.Ajay (PW13) regarding death of deceased Arti, he recorded DD No.5A Ex.PW5/A. In order to prove the recording of DD No.24A regarding admission of injured Arti at LJPN Hospital, the Prosecution relied upon testimony of PW19 HC Kishan Chand, who deposed that on the basis of information regarding admission of injured Arti, wife of Javed with burn injuries, he recorded DD No.24A Ex.PW19/A. The other formal witnesses examined by the Prosecution include PW14 HC Kanwar Sain, who deposed that he took 6 pulandas including sample seal from MHC(M) on 14.12.2010 and deposited the same at FSL, Rohini. PW15 is Omkar, who deposed that on 16.10.2010, he was posted as Constable of DHG, PS Chandni Mahal.
He further deposed that he handed over DD No.24A to ASI Pritam Singh on the instructions of the Duty Officer at about 11:15 PM. :11: PW16 Ct.Praveen deposed that on 18.10.2010, while posted at PS Chandni Mahal, he joined investigation with Insp.Satish Malik and reached MAMC Mortuary and collected one sealed envelope duly sealed with the seal of 'MAMCJB10' and sample seal and handed over the same to IO vide seizure memo Ex.PW16/A. He further deposed about the arrest of the accused persons viz. Asraf and Shammi, who surrendered before the court of ld. Metropolitan Magistrate on 25.04.2011. He proved their arrest memos as Ex.PW16/B & Ex.PW16/C respectively.
PW11 is ASI Pritam Singh, who deposed that on the intervening night of 1617.10.2010, at about 11:15 PM on receipt of DD No.24A, he along with Ct.Pradeep (PW9) reached LNJP hospital and collected MLC of injured Arti, which is Ex.PW10/A. He deposed that he informed the SDM about the incident after making inquiries from Javed, husband of the injured Arti and at about 2 AM, doctor declared injured fit for statement. Further, at about 3:30 AM, SDM Daryaganj reached at hospital and recorded statement of injured Arti which is Ex.PW6/A. Pursuant thereto, on the directions of the SDM :12: and on the basis of statement Ex.PW6/A, he prepared rukka Ex.PW11/A and got the case registered through Ct.Pradeep. He further deposed that he reached the place of occurrence along with husband of the injured. Insp.Satish Malik (PW18) and Ct. Pradeep (PW9) also reached the place of incident which was also inspected by the crime team and Insp.Satish Malik prepared site plan of the place of incident at the instance of Javed. The place of incident was also got photographed through a photographer of crime team. Exhibits were also lifted from the place of incident which included burnt burka of black colour, one plastic can containing small quantity of kerosene in open condition which was lying 'ludki hui' and cap of the said cane was also lying nearby and one match box of 'SHIP' brand having some unburnt sticks. He further deposed that some burnt clothes of a lady were found in the gali which were also taken into police possession vide seizure memo Ex.PW2/A. He further deposed that on 20.10.2010, on receipt of information, he along with SHO Satish, HC Prakash Chand and Ct.Surinder apprehended the accused Aslam at the instance of Javed, husband of deceased Arti. This witness further stated that :13: accused Aslam was interrogated and his disclosure statement Ex.PW11/B was recorded and he was arrested vide arrest memo Ex.PW11/C. The witness correctly identified the case property and the seized articles which were recovered from the place of occurrence when shown to him before the court.
IO/Insp.Satish Malik was examined as PW18, who also deposed regarding investigation conducted by him on the intervening night of 1617.10.2010. He further deposed that on 18.10.2010, on receipt of information vide DD No.5A Ex.PW18/A regarding death of Arti, he reached the hospital and moved an application Ex.PW18/C for the post mortem of the deceased and prepared the inquest papers. The exhibits were sent to FSL, Rohini. He further deposed regarding arrest of accused Aslam but since the other accused persons were absconding, he initiated proceedings under Section 82 Cr.PC against them and on 28.03.2011, all the three remaining accused persons were declared Proclaimed Offenders. However, on 25.04.2011 accused Sammi and Ashraf pursuant to their surrender before the concerned court were arrested vide arrest memos Ex.PW16/B & Ex.PW16/C :14: respectively. He further deposed that he collected FSL reports Ex.PW18/E & Ex.PW18/F and submitted the same vide supplementary charge sheet and also recorded the statements of the witnesses.
In order to prove the charge of offence under Section 174A IPC against accused Asraf and Shammi the Prosecution examined PW20 ASI Harindra Prakash, who deposed regarding proceedings under Section 82 Cr.PC against the said accused persons and also exhibited his reports on the processes as Ex.PW20/A to Ex.PW20/C. The statement of Smt.Mallika Bilkish recorded by him on 11.2.11 is Ex.PW20/D. The publication of proclamation in the newspaper 'Navabharat Times' dated 11.02.2011 is exhibited by him as Ex.PW20/E. On the basis of the aforesaid evidence on record, particularly the dying declaration of the deceased Arti, the Prosecution strongly contended that the allegations against the accused stand duly proved on record.
Arguments of the Defence:
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On the other hand, learned defence counsels argued that there are multiple dying declarations of the deceased available on record which are at variance with each other. During the course of arguments, learned defence counsels drew my attention to the MLC of the deceased Arti Ex.PW10/A. It was argued that in the said MLC, it has been recorded by the examining doctor that there was alleged history of "Burn injury at home address at around 10 PM as told by brought by and patient". It was pointed out that as per the said MLC, the patient was conscious and oriented despite which she failed to disclose to the examining doctor that she had been set at fire by the accused persons. It was further contended that there is a carbon copy of the said MLC on record which is incomplete as it does not have any endorsement of patient's fitness (Ex.PW12/A), indicating thereby that the report regarding fitness of Arti was manipulated and procured later on.
At this juncture, it may be relevant to note that though there is a carbon copy of MLC No.172578 (original being Ex.PW10/A) on record as pointed out by the learned defence counsel, :16: however, it is clearly borne out on comparing the two that the MLC Ex.PW10/A was initially prepared at 10:42 PM i.e. at the time of admission of the injured Arti at LNJP hospital when the patient Arti was examined. Subsequently, the original MLC was sent to Department of Burns & Plastic Surgery Ward, where Dr.Siddharth Chaudhary (PW12) gave his opinion with regard to the fitness of the injured Arti at 2 AM, which endorsement obviously could not be found on the carbon copy of the said MLC, which forms part of the record. Hence, this contention of the defence is completely baseless and ought to be rejected outrightly.
The second dying declaration as per the arguments of the defence is contained in document Ex.PW12/DA, which is an attested copy of the medical record of deceased Arti (running into 13 pages), which was summoned from LNJP hospital at the time of recording the deposition of PW12 Dr.Siddharth Chaudhary. The medical record Ex.PW12/DA contains description of incident on running page No.8 at point A which reads as follows:
"Alleged history of 95% TBSA flame burns at home at around 9:30 PM on :17: 16.10.2010 as told by the patient herself. According to the patient, she was watching TV at home when her fatherinlaw's elder brother came home in a drunken state and manhandled her and enclosed her in a room at home. Then her sisterinlaw and sisterinlaw's husband came and then both of them put kerosene oil on her and set her on fire. She was screaming from the house being burnt when patient's husband (Javed) saw her and immediately tried to help her by putting milk (from the nearby shop) on her burning body to stop the fire. Then he brought her to this hospital (LNJP) ASAP. She also recalls of verbal abuse with her sisterin law 34 days back, before the incidence."
As per the defence, this is the second dying declaration of the deceased in which she has stated before PW12 Dr.Siddharth Chaudhary that she was set on fire by her fatherinlaw's elder brother, sisterinlaw and sisterinlaw's husband.
The third dying declaration is the statement of deceased Arti as recorded by the SDM PW6 i.e. Ex.PW6/A. In this statement, deceased Arti has alleged that she was set on fire by the 'Tau' of her :18: husband i.e. accused Aslam, his sons Asraf, Shammi and daughter Humma (since PO). In this statement, deceased Arti has ascribed specific roles of each of the accused stating that on the night of 16.10.2010 at about 9:45 PM Humma (since PO) had quarreled with her and Aslam asked that she should be set on fire. Arti further stated that Sammi poured kerosene oil upon her, while Asraf set her on fire with the match stick.
Learned defence counsels strongly argued that a bare perusal of the aforesaid three dying declarations would clearly show that they are not only at variance at each other, but the deceased had tried to improve upon her version with each subsequent dying declaration. Whereas in the first dying declaration, MLC Ex.PW10/A, she has not named any of the accused as the assailants. In the second dying declaration Ex.PW12/DA, deceased Arti has sought to implicate her fatherinlaw's elder brother, her sisterinlaw and her sisterin law's husband, whereas in the third dying declaration Ex.PW6/A, she has named all the four accused persons as the persons who had set her on fire.
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It was further contended by the defence that as per Ex.PW12/A, deceased Arti had sustained 6070% burn injuries. The diagram as shown on page 4 of Ex.PW12/DA clearly states that since the injured Arti had received 6070% burns which includes her right palm, she could not have affixed her thumb impression on the statement Ex.PW6/A, which was allegedly made by her to the SDM (PW6).
Learned defence counsels also contended that while recording the statement of deceased Arti, the rules required to be followed while recording the dying declaration as contained in Chapter XIIIA of Volume III of the Delhi High Court Rules & Orders were not complied with and the said dying declaration cannot be relied upon.
In support of their arguments, learned defence counsels relied upon the judgment of Hon'ble Delhi High Court titled as Ashrafi Devi vs. State of Delhi reported as (7) LRC 235 (Del). Relying upon the said judgment, learned defence counsel argued that the Hon'ble Delhi High Court Rules & Orders require that while recording the dying declaration the judicial magistrate shall satisfy himself that the :20: declarant is in a fit condition to make a statement and if the medical officer is present, or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. In case the circumstances do not permit waiting or the attendance of the Medical Officer, the Judicial Magistrate may in such cases proceed forthwith to record the dying declaration but he should note down why he considered it impracticable or inadvisable to wait for a doctor's attendance.
It was further argued that as per the relevant Rules & Orders of the Hon'ble High Court the Judicial Magistrate must certify at the conclusion of the dying declaration that the declarant was fit to make a statement and it contained a correct and faithful record of the statement made by him. It was also argued that in the present case, the aforesaid Rules were not followed and hence the dying declaration as recorded by the SDM (PW6) Ex.PW6/A cannot be relied upon by the Prosecution. Lastly, it was argued that the ld. SDM did not record the dying declaration in questionanswer form and hence it cannot be read in evidence. It was thus prayed that keeping in view the aforesaid, the :21: accused persons are not liable to be convicted on the basis of the evidence on record.
Reasoning, Analysis & Findings:
I have considered the rival submissions in the light of facts and circumstances of the case and the relevant case law. The law with regard to the admissibility and extent of reliability of a dying declaration has now been well settled through numerous judicial pronouncements of the Hon'ble Superior Courts. In a recent judgment, a Division Bench of Hon'ble High Court in case titled as Abhishek Sharma vs. State, reported as 2010 Crl.LJ 4539 discussed the law relating to dying declaration at length. In this judgment various earlier pronouncements were considered, based upon which it was laid down as under:
"14. It thus follows that the conviction can be based solely on dying declaration. At the same time, one has to tread a cautionary path and ensure that all the circumstances which may make such dying declaration a suspect, stands eliminated before dying declaration is acted upon. The assignment of the Court, in the :22: process, is to arrive at a conclusion that dying declaration is of such a nature which inspires full confidence of the Court which in its truthfulness and correctness making it reliable. For the purpose, the court is required to see that following circumstances do not exist:
"a) Statement was as a result of tutoring or prompting;
b) it is not a product of imagination which means that it is to be ensured that deceased was in a fit state of mind and had ample opportunity to identify the culprit;
c) If there are more than one dying declarations, there is a consistency in the same and they do not suffer from material contradictions;
d) it is to be ensured that the statement which is projected by the prosecution as dying declaration was made by the deceased himself/herself; the same was read over to him/her who accepted its correctness before appending his/her signatures and/or thumb impressions."
Similarly, in Amol Singh vs. State of Madhya Pradesh, :23: (2008) 5 SCC 468, it was laid down as under: "..it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
Keeping in mind the said parameters as laid down by the Hon'ble Superior Courts, in the present case, the first and foremost :24: issue to be decided is the question as to whether there are infact multiple dying declarations available on record as argued by the defence.
In my view, however, the first two statements stated to be dying declarations of the deceased cannot, strictly fall within the meaning of 'dying declaration'. The socalled first dying declaration as contained in MLC Ex.PW10/A is, in my view, merely the alleged history as recorded by the examining doctor immediately upon arrival of the patient Arti in the hospital. The examining doctor, at that point of time, was certainly more concerned about administering treatment to the patient and it is for this limited purpose that he recorded the alleged history of burning and the said recording of alleged history by the examining doctor certainly cannot amount to a dying declaration of the deceased.
The next so called dying declaration recorded in document Ex.PW12/DA at running pages 8 & 9 must also be discarded for the following reasons. It was submitted by the defence during the course of arguments that the sisterinlaw of Arti namely Humma (since PO) was :25: unmarried. It would thus remain a matter of dispute as to whether Dr.Siddharth Chaudhary correctly heard the deceased when he recorded that she was burnt by accused Aslam, her sisterinlaw and her husband, particularly when it is the plea of the defence that Humma (since PO) is unmarried. Moreover, the examining doctor in the Burns Ward was again apparently more concerned about administering the treatment to the patient Arti and the recording of the alleged history by him cannot, in my view, be termed as recording of a dying declaration as was recorded by the SDM (PW6), who was especially deputed for this task. In other words, it cannot be ruled out that the treating doctor Siddharth Chaudhary wrongly heard Arti naming husband of sisterinlaw Humma, when no such person was and till date is in existence.
Accordingly, the alleged history as recorded by the two doctors in MLC Ex.PW10/A & medical record Ex.PW12/DA can certainly not stand at par with the statement recorded by the SDM, who had visited the hospital with a purpose in mind, which was to record the statement of injured Arti.
I may rely on a recent judgment of Hon'ble Delhi High :26: Court reported as Durga Prasad @ Bablu vs. State (2010) DLT 401 (DB), while relying on a judgment of Hon'ble Supreme Court reported as Pattipati Venkaiah vs. State of Andhra Pradesh 1985 (4) SCC 80 held that "a doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases".
A perusal of the deposition of PW6 Sh.N.K.Sharma, SDM would reveal that he had put questions to Arti to confirm whether she was in a fit state of mind before proceeding to record her statement and only upon being satisfied (as voluntarily stated in his cross examination) that the patient was responding to his queries, did he proceed to record her statement. The statement as recorded by the SDM must therefore be given preference over the alleged history as recorded by the examining doctors in MLC Ex.PW10/A and medical record Ex.PW12/DA. Moreover, the SDM cannot stand to gain in any manner by falsely implicating the accused.
I am supported in my view by a judgment of Hon'ble Apex :27: Court in Khushal Rao vs. State of Gujarat, AIR 1958 SC 22 & Vikas & Ors. vs. State vs. Maharastra (2008) 2 SCC 516, wherein the Hon'ble Supreme Court reiterated the legal position that 'where the dying declaration is recorded by a competent Magistrate, it would stand on a much higher footing inasmuch as a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court'.
Relying upon the aforesaid two judgments, the Hon'ble Apex Court in its Division Bench Judgment titled as Kamalavva & Anr. vs. State of Karnataka, IV (2009) DLT (Crl.) 458 (SC) observed that the Taluka Executive Magistrate, who in the said case had recorded the dying declaration had categorically deposed that the deceased while making statement was conscious and in a fit mental condition to make such a statement. It was further held that there was no reason as to why the Taluka Executive Magistrate, being a public officer, will implicate a person falsely. The Hon'ble Supreme Court thus accepted the dying declaration recorded by the Taluka Executive Magistrate in that case. :28:
In so far as arguments of defence is concerned that the dying declaration does not contain any endorsement with regard to the fitness of the deceased at the time of making of her dying declaration, reliance may be placed on the judgment titled as Rama Krushna Roy vs. State of Orissa 2012 Crl.LJ 3351, wherein the Hon'ble Supreme Court has laid down that since the doctor who had recorded the dying declaration of the deceased has recorded that the deceased was conscious and in a fit state of mind being an independent witness, there was no reason to disbelieve his evidence. In the instant case also, though the endorsement (Ex.PW12/A) qua fitness of the deceased was recorded at about 2 AM, and her dying declaration was recorded only at about 3:30 AM by SDM (PW6), yet, I find upon going through the testimony of PW6 that before recording the statement of injured Arti, the SDM was satisfied that she was able to respond to his queries. PW6 deposed that he did not try to ascertain the condition of the patient by calling the doctor at the time of recording of statement as the patient was responding to his queries properly. He also deposed that he used to put the question to the injured to which she used to reply and he :29: had recorded the answers given by her in the statement Ex.PW6/A. I am also unable to accept the argument that dying declaration Ex.PW6/A should be rejected as it was not recorded in questionanswer form. In Amar Singh Munna Singh Suryawanshi vs. State of Maharastra, AIR 2008 SC 479, Hon'ble Apex Court has clearly laid down that it is not material that the dying declaration is not recorded in questionanswer form.
With regard to the contentions of the defence that SDM had not followed the Rules as laid down in Delhi High Court Rules & Orders while recording the dying declaration, reliance may again be placed upon the judgment titled as Abhishek Sharma vs. State (Supra), wherein the Division Bench of Hon'ble High Court has categorically laid down that the dying declarations are consistent and they are not the result of any tutoring and has withstood test of strict scrutiny after applying all cautions and thus cannot be discarded merely because it was not recorded in the manner prescribed by Rules.
Further, tutoring or prompting of the deceased in the present case stands completely ruled out inasmuch as it is not disputed :30: that she was taken to the hospital by her husband, who was also closely related to the accused persons. Moreover, there is no evidence whatsoever on record to even suggest remotely that the deceased was either tutored or prompted by anyone. Rather, the evidence on record shows that she was fit to make her statement.
The last contention of the defence is that the body of the deceased Arti has been completely burnt and she could not have affixed her thumb impression on the dying declaration. However, a bare perusal of the post mortem report Ex.PW3/A and the diagram on page 3 of the post mortem report makes it clear that the right hand thumb of the deceased Arti was unburnt and she could have affixed her thumb impression on her statement. Even otherwise, no medical evidence whatsoever has been brought on record to show that the deceased could not have put her thumb mark on the dying declaration on account of burnt injuries sustained by her.
In this regard, reliance may be placed on the judgment titled Harjit Kaur etc. vs. State of Punjab, AIR 1999 SC 2571, where Hon'ble Apex Court observed that medical evidence was not disclosing :31: that deceased could not have put her thumb mark on the dying declaration and the alleged circumstance cannot create any doubt regarding evidence of SDM or genuineness of dying declaration.
In the light of the case laws cited hereinabove and the facts and circumstances of the present case, it thus clearly emerges that the statement of the deceased Arti as recorded by SDM (PW6) on 17.10.2010 was made by her voluntarily and in a fit state of mind. Though, the examining doctor had declared the deceased fit for statement at about 2 PM, the SDM categorically admitted in his cross examination that he did not try to ascertain the condition of the patient by calling the doctor at the time of recording of statement because the patient was responding to his queries properly. He further admitted that it is not recorded in questionanswer form. But, he used to put the question to the injured to which she used to reply.
In view of the aforesaid deposition of SDM (PW6), I find that the statement of the deceased has been recorded by the SDM (PW6) after ensuring that she was in a fit state of mind while giving her statement. The SDM, as discussed above cannot be presumed to :32: have any interest to falsely implicate the accused persons in the present case and hence there is no question of his recording the dying declaration incorrectly. The mere nonadherence to the prescribed Rules as laid down by Hon'ble High Court, in these circumstances, cannot be said to be a ground to discard the statement as recorded by the SDM (PW6) as is laid down in Abhishek Sharma vs. State (Supra).
For the foregoing reasons and in the light of the above discussion, I therefore find that the dying declaration Ex.PW6/A is completely trustworthy and can be relied upon without any hesitation which can form sole basis for the conviction of accused Aslam, Asraf and Sammi for having setting the deceased Arti on fire on the fateful night of 16.10.2010, which resulted in her death on 18.10.2010. The deceased clearly stated in her dying declaration Ex.PW6/A that the above named accused persons along with Humma (since PO) used to state that she (deceased Arti) had humiliated them as she had married to Javed, who was a Muslim while the deceased Arti was Hindu. She has also clearly stated that the accused persons used to dislike her and used to quarrel with her. In the night of 16.10.2010, at about 9:45 PM, :33: accused Humma (since PO) took up quarrel with her (deceased Arti) and thereafter accused Aslam, Asraf and Sammi set her on fire by pouring kerosene oil upon her. Accordingly, in the light of her dying declaration Ex.PW6/A, which has been found credible and trustworthy, the above named accused viz., Aslam, Asraf and Sammi are hereby convicted for the offence punishable under Section 302/34 IPC.
Besides the aforesaid, the accused Asraf and Sammi have also been charged for the offence punishable under Section 174A IPC. In this regard, Prosecution examined PW20 ASI Harindra Prakash, who proved the execution of process under Section 82 Cr.PC upon the accused Asraf and Sammi. He deposed that on 11.02.2011, he went to the house of the accused for executing the process under Section 82 Cr.PC for the presence of the accused before the court on 15.03.2011 where none of the aforesaid accused persons were found. He further deposed that upon inquiry from Smt.Mallika Bilkish who was residing in the aforesaid house, she told him that the aforesaid accused persons had left the house after the incident. He further deposed that he read over the proclamation and pasted the copy of the said proclamation on :34: the main door of the house and also pasted one copy on notice board of the court of ld. Metropolitan Magistrate. His report to this effect is Ex.PW20/A to Ex.PW20/C respectively. The statement of Smt.Mallika Bilkish recorded by this witness is Ex. PW20/D. This witness also got published proclamation in the newspaper 'Navbharat Times' dated 11.02.2011 which is Ex.PW20/E. Despite lengthy cross examination of PW20 ASI Harindra Prakash by learned defence counsel could not elicit much about the publication of proclamation and service by way of affixation stands proved considering the deposition of PW20. The accused persons have failed to establish as to why they failed to appear before the court on the date and time as required by the proclamation published under sub Section (1) of Section 82 Cr.PC and hence both accused Sammi and Asraf are accordingly also convicted for the offence punishable under Section 174A IPC.
Let the accused be heard on the quantum of sentence.
Announced in the Open Court
on October 05, 2012 (Kaveri Baweja)
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 10/11
Unique ID No. : 02401R0026792011
State versus 1. Aslam S/o Bindu
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
2. Sammi s/o Aslam
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
3. Asraf s/o Aslam
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
4. Humma D/o Aslam (Since
P.O.)
R/o 1182, Gali Hakim Naieem
Beg
Wali, Kala Mahal, Delhi.
Case arising out of:
FIR No. : 95/10
Police Station : Chandni Mahal
:36:
Under Section : 302/34 IPC
Judgment pronounced on : 05.10.2012
ORDER ON SENTENCE
Vide judgment dated 05.10.2012, accused Aslam has been convicted for the offence punishable under Section 302/34 IPC, whereas accused Asraf and Sammi have been convicted for the offence punishable under Sections 302/34 IPC & 174A IPC.
I have heard detailed arguments on the point of sentence. It is submitted that accused Aslam is 65 years old and is a father of two daughters, who are stated to be of marriageable age besides the convicts Asraf and Sammi, who are admittedly his sons. It is further submitted there is no record of previous conviction against him. As regards accused Asraf, he is stated to be unmarried, whereas accused Sammi is stated to be recently married. It is further submitted that both the convicts Asraf and Sammi have clean antecedents and there is no previous conviction against both of them.
I have considered the submissions made before me. Having regard to the facts and circumstances of the case and keeping in view the relevant statutory provisions, all the above named accused viz., Aslam, Asraf and Sammi are sentenced to undergo RI for life for the offence punishable under Section 302/34 IPC in addition to payment of fine of Rs.10,000/ each, in default whereof the above named convicts shall undergo SI for a period of six months each. :37:
Besides the aforesaid, accused Asraf and Aslam are directed to undergo RI for a period of five years for the offence punishable under Section 174A IPC in addition to payment of fine of Rs.2500/ each, in default whereof both of them shall undergo SI for a period of two months each.
All the aforesaid sentences shall run concurrently. The convicts shall however be entitled to the benefit of Section 428 Cr.PC. A copy of the judgment and order on sentence be supplied to the aforesaid convicts free of cost. File be consigned to the record room. However, the Prosecution is at liberty to revive the case in hand in the event of arrest of accused Humma (since PO).
Announced in the Open Court
on October 09, 2012 (Kaveri Baweja)
Additional Sessions JudgeFTC
(Central)
Tis Hazari Courts: Delhi.