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Delhi District Court

State vs . Maya Deen on 30 November, 2013

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II 
         (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 35/2013
Unique Case ID No.: 02404R0056492013

State                               Vs.                Maya Deen 
                                                       S/o Sh. Kamoda 
                                                       R/o Jhuggi No. D­208,
                                                       GP Block, Pitampura, Delhi
                                                       (Convicted)
FIR No.:                            339/2012
Police Station:                     Maurya Enclave
Under Section:                      302 Indian Penal Code

Date of committal to sessions Court:                        8.3.2013

Date on which orders were reserved:                         24.10.2013 

Date on which Judgment pronounced:                          18.11.2013


JUDGMENT:

(1) As per allegations on 29.11.2012 at about 7:30 PM at D­208, GP Block, Pitampura, Delhi the accused Maya Deen committed the murder of his wife Smt. Manju by pouring kerosene oil upon her and thereafter he set her on fire after lightening the match stick which he threw on her. BRIEF FACTS/ CASE OF THE PROSECUTION:

(2) The case of the prosecution is that on 29.11.2012 at about 8:05 DD No. 27­A was received at Police Station Maurya Enclave that one lady St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 1 of 121 was burnt by her husband on which SI Kuldeep Kumar along with Ct.

Parveen reached at Jhuggi No. D­208, G­P Block, Pitam Pura, Delhi where they came to know that the injured Manju had already been taken to BSA Hospital by the PCR officials on which Ct. Praveen was left at the spot whereas SI Kuldeep Kumar reached BSA Hospital where he collected the MLC of Manju. The injured Manju was declared fit for statement and therefore at about 8:30 PM SI Kuldeep Kumar recorded the statement of Manju wherein she informed him that her husband Maya Dass @ Maya Deen was a habitual drinker and used to beat her frequently and in the evening he again quarreled with her and poured kerosene oil on her and set her on fire.

(3) On the basis of statement of Smt. Manju the present case was initially registered under Section 307 Indian Penal Code. Various exhibits were lifted from the spot and the injured Smt. Manju was referred to RML Hospital for further management. On 30.11.2012 the accused Maya Deen @ Maya Dass was apprehended after which his disclosure statement was recorded wherein he disclosed to the Investigating Officer having set her wife Smt. Manju on fire since he was having suspicion on her character. (4) On 6.12.2012 an information was received from RML Hospital that Smt. Manju who was admitted in the hospital had expired after which the provisions of Section 302 Indian Penal Code were added. After completion of investigations charge sheet was filed against the accused. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 2 of 121 CHARGE:

(5) Charge under Section 302 Indian Penal Code were settled against the accused Maya Deen to which he pleaded not guilty and claimed trial.

EVIDENCE:

(6) In order to prove its case the prosecution has examined as many as Thirty Witnesses as under:

Public/ eye witnesses:

(7) PW17 Parveen aged 14 years is the son of the deceased Manju and accused Maya Deen and has been examined on oath. He has deposed that he was residing at House No. D­208, JG Jhuggi, Netaji Subhash Place, Delhi along with his parents. According to the witness, they are two sisters and two brothers and he is the eldest and is studying in class 10th in Sarvodaya Vidyalay, Maurya Enclave. The witness has further deposed that on 29.11.2012 at around 7 to 7:15 PM, he was at the first floor when he heard the noise of quarrel between his mother and father on the ground floor on which he reached the ground floor and saw that his father Maya Das @ Maya Deen was abusing his mother Manju saying that she was having relationship with another person and hence he was facing insult.

He has also deposed that thereafter his father told him to go on the first floor on which he went to the first floor of the house and after 30 minutes St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 3 of 121 he heard the voices of his mother "bachao­bachao" on which he came down and saw that his mother was burning with fire. According to the witness, many public persons came from the nearby jhuggies and some one poured water on his mother and somebody called the police. He has testified that thereafter, his aunt Bimla changed the burnt clothes of his mother and wrapped her into a bed sheet and rushed her to the hospital in a police gypsy. The witness has also deposed that on the next morning he came to know that his mother was admitted in the hospital and on 6.12.2012 she was declared dead by the doctor and the dead body was handed over to his grand father Kambuda and he (witness) performed the last rites of his mother.

(8) The Ld. Addl. PP for the State put leading questions to the witness since he was not deposing about the manner of incident. The witness has admitted that his father used to consume liquor frequently and used quarrel with his mother and used to beat her. He has also admitted that at about 7:15 PM he was present in the jhuggi with his mother but has denied that his sisters were on the first floor of the jhuggi. The witness has also admitted that his father reached the house at about 7:15 PM under influence of liquor. He has however denied that his father Maya Deen told his mother Manju that today he would kill her by pouring kerosene oil upon her and thereafter his father Maya Deen took the bottle of kerosene oil from the slab. He has also admitted that his father threatened him to go to the first floor of the jhuggi and due to fear he went to the first St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 4 of 121 floor of the jhuggi. He has admitted that when he came down from the first floor after hearing the noise of his mother, he saw that the clothes of his mother were burning but has denied that when he came down from first floor, he saw that his father was standing there and saying "aaj tere se peecha chootega". He has further denied the suggestion that after hearing the voice of his mother, the neighbours came there and then his father ran away from the jhuggi and has voluntarily added that he did not see his father while running but pubic persons were saying that his father had ran away after burning his mother by the kerosene oil. According to the witness, his two sisters aged about 5 years and 7 years were in the same room of his parents and there was no person present there except them and his parents when the incident took place.

(9) On a specific court question the witness has explained that after seeing his mother in this condition, he was shocked and had gone to the house of Suresh to call him as his mother was burnt.

(10) In his cross­examination by the Ld. Defence Counsel the witness has admitted that the incident of burning did not take place in his presence. According to him, when he was sent to the first floor by his father and again he came down after 30 minutes, he did not hear any voice of any quarrel. He has testified that his mother was not having a very loose temperament and that when he came down first time, there was no "hathapai" between his mother and father. He has denied the suggestion that no quarrel took place between his father and mother on the day of incident or that he has St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 5 of 121 been tutored by the Investigating Officer to deposed against his father. (11) PW18 Raj Kumar is the nephew of the deceased who has deposed that deceased Manju was his Chachi and on 29.11.2012 he was called to the BSA Hospital Mortuary where he identified the dead body of his Chachi. According to the witness, after postmortem they received the dead body of his Chachi vide memo Ex.PW5/A and his grandfather Kambuda had also received the dead body. He has not been cross­examined by the Ld. Defence Counsel despite opportunity granted. (12) PW19 Suresh is the neighbour of the accused and the deceased. He has deposed that he is plying a school van and also has a cycle repair shop. According to the witness, the accused Maya Deen a Raj Mistri by profession resides near his jhuggi around 15­20 houses away and is known to him for about 15­20 years. He has also deposed that Maya Deen has three daughters and one son and initially his wife also used to do beldari with him but later on she started staying at home and taking care of the children. He has testified that the accused Maya Deen whom the witness has correctly identified in the Court, is habituated to alcohol and used to drink very frequently and also had suspicious of her character and frequently made allegations on her and hence there were frequent disputes/ quarrel between her and the accused. He has further deposed that Maya Deen was a person whose character was not above board and on a previous occasion about 4 to 5 years ago, he had entered into the house of one of their neighbours after consuming alcohol on which he St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 6 of 121 (accused) was given a thrashing by the people of the area and it was on the pleadings of his wife and children that the matter was not reported to the police and the residents left him after blackening his face and parading him in the area. The witness has also deposed that the accused Maya Deen was frequently quarreling with his wife and children and used to maar - pitai with his wife after consuming alcohol. He has testified that a few days i.e. about a week before this incident, accused had a jhagra with his wife as he suspected of the character of his wife and had done maar­pitai on which he (witness) along with three­four persons of the area tried to intervene for re­conciliation between Maya Deen and his wife and even advised him. According to the witness, the wife of Maya Deen was adamant and stated that she would not live with him (accused) and would go to her village and therefore they advised Maya Deen to give her sufficient money for her journey so that she can go back to her native village. He has also deposed that at that time Maya Deen had Rs.500/­ with him which he gave to his wife for enabling her to go to her native village and in their presence his wife left the house after taking the children with her after which they did not see his wife and children in the area. (13) The witness has further deposed that on the date of incident, he was sitting outside his jhuggi when they saw the wife of Maya Deen coming from the side of the jhuggi of the Maya Deen and appeared to have been badly beaten and after walking for some distance she fell down on the ground. According to the witness, all the residents of the area gathered St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 7 of 121 around her and identified her as the wife of Maya Deen and asked her how she had come back, once she had left the house with the children on which she explained that Maya Deen had got her and the children back from the bus stand and did not allow her to leave. The witness has testified that he told her that if Maya Deen had got her back she should have informed them but she did not respond to them and on seeing her condition they then called Maya Deen from his house and questioned him why he got her back from bus stand when she was going to her village on which Maya Deen told them that he will not permit her to go to the village and would keep her. He has also deposed that the neighbours and the residents then scolded Maya Deen that in case he wanted to keep his wife and children then why he should beat her on which Maya Deen said that henceforth there would no such mistake on his behalf (aj ke baad meri taraf se koi galti nahi hogi). The witness has further deposed that he then asked his wife if she wanted to stay with him after his undertaking that he would not harass her in future on which his wife expressed her disability stating where else can she go and would stay with him, but he should not beat her (mai kahan jaungi maine to inhi ke sath hi rehna hai, bas maare na). He has testified that thereafter he along with some more residents went to his house and left Maya Deen, his wife and his children at his Jhuggi and thereafter he returned to his jhuggi. According to him, after about half an hour of his returning to his Jhuggi, while he was about to have his dinner, the eldest son of Maya Deen namely Parveen came crying to his house saying that his father had burnt his mother St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 8 of 121 (mere papa ne mummy ko jala diya hai). The witness has also deposed that on hearing this he ran to his jhuggi and saw the wife of Maya Deen badly charred/ burnt and some neigbours had poured water on her. He has also deposed that she was conscious at that time and there were large number of ladies around her and he asked somebody from the crowd for a mobile phone and then made a call at 100 number. According to the witness, Maya Deen was not present there at that time and when he asked the neighbours who were standing there as to where he was, they said that he had escaped from the spot from the adjoining gali. The witness has also deposed that after about 15 to 20 minutes the PCR officials came to the spot and took the wife of Maya Deen to the hospital and his statement was recorded by the police after interrogation on the same day. (14) On a Court Question as to whether he noticed any clothes on the body of the victim when he reached the spot, the witness has replied that she was severely charred and there were hardly any clothes on her body and he could not see the site (buri tarah jal gai thi, sarrir par koi kapre nahi thye aur hum dekh nahi paa rehe thye). Further, when asked as to what was the status of the spot i.e. jhuggi of Maya Deen when he reached there the witness replied that victim was outside the jhuggi and there was water all around her since the neighbours had poured water on her to save her life (uski jaan bachane ke liye logo ne us per paani dala tha). (15) Leading questions were put to the witness by the ld. Addl. PP for the State wherein the witness has admitted that the name of the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 9 of 121 deceased/ wife of Maya Deen was Manju. He has also admitted that the incident took place on 29.11.2012 at around 8 PM and has voluntarily explained that he could not recollect the date and hence he could not inform the court about the same.

(16) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he had informed the police that Maya Deen used to suspect the character of his wife and often gave her a beating after consuming alcohol for this reason. However, when confronted with his statement Ex.PW19/DX1 this aspect of Maya Deen suspecting his wife has not been found so recorded. According to the witness, he did not inform the police that about 4 to 5 years back, Maya Deen had entered into the house of one of their neighbours after consuming alcohol on which he was given thrashing by the people of the area and it was on the pleadings of his wife and children that the matter was not reported to the police and the residents left him after blackening his face and parading him in the area and voluntarily added that this fact was known to the police staff of the area as the incident had reached them at that time and therefore he did not specifically inform this to the police when his statement was recorded. The witness has testified that he had informed the police that about a week before this incident of burning, Maya Deen had a jhagra with his wife as he suspected her character and did maar­pitai with her on which he along with three to four persons of the area tried to intervene for re­conciliation between Maya Deen and his wife and they even advised him but the wife of St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 10 of 121 Maya Deen was adamant and stated that she would not live with him and would go to her village and therefore they advised Maya Deen to give her sufficient money for her journey so that she can go back to her native village on which Maya Deen gave Rs.500/­ to his wife for enabling her to go to her native village and in their presence his wife left the house after taking the children with her and thereafter, they did not see his wife and children in the area. However, when confronted with his statement Ex.PW19/DX1 the above facts were not found so recorded. According to him, he had told the police that on the same day of the incident when the wife of Maya Deen was got burnt, he was at his house sitting outside the jhuggi when he saw the wife of Maya Deen coming from the side of the jhuggi of the Maya Deen and appeared to be badly beaten and after walking for some distance she fell down on the ground and the residents of the area gathered around her and identified her as the wife of Maya Deen; that he asked the wife of Maya Deen as to how she had come back once she had left the house with the children on which she explained that Maya Deen had got her and the children back from the bus stand and did not permit her to leave on which he told her that in case if Maya Deen had got her back she should have informed them to which she did not respond; that on seeing her condition they called Maya Deen from his house and questioned him why he got her back from bus stand when she was going to her village on which Maya Deen told them that he would not permit her to go to the village and would keep her on which the neighbours and the residents then scolded Maya St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 11 of 121 Deen and said that in case if he wanted to keep his wife and children then why he should beat her on which Maya Deen said that henceforth there would no such mistake on his behalf (aj ke baad meri taraf se koi galti nahi hogi); that thereafter he asked the wife of Maya Deen in case if she wanted to stay with him after his undertaking that he would not harass her in future on which his wife expressed her disability stating where else can she go and would stay with him, but he should not beat her (mai kahan jaungi maine to inhi ke sath hi rehna hai, bas maare na) on which he (witness) along with some more residents went to his house and left Maya Deen his wife and his children her at his Jhuggi and thereafter he returned to his jhuggi; that after about half an hour the eldest son of Maya Deen namely Parveen came crying to his house saying that his father had burnt his mother (mere papa ne mummy ko jala diya hai) and on hearing this he ran to his jhuggi where he saw the wife of Maya Deen badly charred/ burnt and some neigbours had poured water on her. However, when confronted with his statement Ex.PW19/DX1 the above facts were not found so recorded. (17) The witness has further deposed that he is not related to Maya Deen and is only known to him being the resident of the area. According to the witness, he had have never come to the court previously as a witness. He has admitted that he did not accompany the victim to the hospital and has voluntarily explained that two or three ladies who are residing in the same area had gone with her but he is unable to tell their names. He has testified that normally he used to leave for his job at 7 AM and return back St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 12 of 121 about 5 to 6 PM and has voluntarily explained that he is running his shop in the same area outside the jhuggi cluster which remains open upto 5 to 6 PM. He has further deposed that to his knowledge there had been no complaint against Maya Deen to the police nor he is a witness in any of the cases. He has denied the suggestion that he is inimical to Maya Deen having previous disputes with him on large number of occasions and it is for this reason that he has falsely implicated him in this case. The witness has also denied the suggestion that he is not a witness to the incident as aforesaid. (18) PW20 Sh. Basant Lal, a mason by profession, is also a neighbour of the accused and the deceased. He has deposed that the accused Maya Deen, whom the witness has correctly identified in the Court, was residing at jhuggi No. D­208, GP Block, Pitampura with his wife and four children and used to consume liquor frequently and also used to quarrel with his wife Manju and used to beat his wife regularly. According to him, on 29.11.2012 at about 7:45 PM, he returned back to his house from his work place then he saw many public persons outside the jhuggie of Maya Deen and then he came to know that the accused Maya Deen had burnt his wife Manju and after the incident Maya Deen ran away from there. The witness has further deposed that he knew Suresh as the resident of his locality who took his mobile phone bearing No. 9560188764 and made call to the police at 100 number on which PCR officials reached the spot. According to the witness, Vimla/ Jethani of Manju and other ladies present there had changed the burnt clothes of Manju and wrapped her in a bed St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 13 of 121 sheet and Vimla took Manju to the hospital in the PCR van. (19) In his cross­examination by the Ld. Defence Counsel the witness has admitted that he had not seen the exact scene of beating and has voluntarily explained that he has deposed on the basis of what he had heard from the persons standing there. He has denied the suggestion that the accused has no dispute with his wife at any point of time. He has denied the suggestion that he was told by the neighbors that the deceased had committed suicide or that he has deliberately implicated the accused on the asking of the police.

(20) PW23 Mrs. Vimla is the Bhabhi of the accused Maya Deen and sister in law/ Jethani of deceased Manju. She has deposed that her devar Maya Deen was residing in the jhuggie No. D­208 with his wife Manju and four children. According to the witness, Maya Deen used to consume liquor sometimes and also used to make quarrel with his wife Manju some times. She does not remember the exact date but states that five­six months before her deposition in the Court in the winter season at about 8 PM she was present in her jhuggi, when she heard some noise that there was fire on which she came out of her jhuggie and saw that Manju was burning with fire and her clothes were in burnt condition and water was poured upon her by the public persons. She has testified that thereafter her clothes were changed by her (witness) with the help of other females present there and one chunni looking like a bed sheet was wrapped upon her. According to her, some one called the police at 100 number on which PCR Gypsy came St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 14 of 121 at the spot and she took Manju in the PCR gypsy to the Dr. BSA Hospital, Rohini, Delhi where she was admitted and medically treated. The witness has testified that local police also came at the hospital and made inquiries from Manju about the incident and police recorded her (Manju's) statement. According to her, police also obtained her (witness's) thumb impressions on the said statement of Manju which is Ex.PW23/A. The said statement has been read over to the witness after which the witness has stated that Manju had stated these facts to the police and police recorded statement on the basis of statement of Manju and then she put her thumb impressions at point A and thumb impressions of Manju was also taken at point B by the police. (21) Leading question were put to the witness by the Ld. Addl. PP for the State about the relationship of Manju and Maya Deen. The witness has denied the suggestion that accused Maya Deen was having suspicion on the character of his wife Manju about her relationship with another person. She has admitted that accused Maya Deen used to abuse his wife and also used to beat his wife but has voluntarily added that he abused his wife and gave beating to her occasionally. The witness has admitted that she took the injured Manju to the hospital on 29.11.2012 after the incident but has denied the suggestion that she heard the voice of abuse of Maya Deen when she was in her jhuggi and did not notice the same as it was his routine. She has also denied the suggestion that she came out of her jhuggi after hearing the voice of Manju of bachaoo, bachaoo and saw that Manju was burning in fire and Maya Deen was standing there or that after the gathering St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 15 of 121 of the public persons there accused Maya Deen ran away from there. According to the witness, after one week of the incident Manju was declared dead by the doctor.

(22) In her cross­examination by the Ld. Defence Counsel the witness has deposed that she was sleeping at that time when she heard the noise regarding fire and when he reached there and the fire was already extinguished. She has testified that when she reached initially deceased was not in her conscious but thereafter she stood up herself and came out of jhuggi. According to her, when she reached the spot, neighbor Rajesh was not there and police reached the spot at about 8­8:30 PM. She has further deposed that at the time of arrival of police deceased was conscious and police made inquiries from Manju in her presence. The witness has also deposed that nobody except police came for inquiries in the hospital. She does not remember if the contents of the documents on which the police took her thumb impressions was read over to her or deceased Manju or not. According to her, on the day of incident she did not meet Maya Deen. She has admitted that on the day of incident she did not hear anything regarding quarrel between the accused and the deceased. The witness has testified that accused got married with deceased about 20­22 years back. She has admitted that prior to incident also she never heard or seen accused giving any injury to the deceased.

(23) PW24 Rajesh is the neighbour of the accused Maya Deen and the deceased Manju. He has deposed that he is doing the work of putting St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 16 of 121 tile pathar and the accused Maya Deen whom the witness has correctly identified in court) was residing in the jhuggi opposite to his jhuggi along with his wife and children since last many years. According to the witness, it was winter last year, exact date he does not remember and around 7 to 8 PM, he was at his jhuggi and after having his dinner he came out of his jhuggi to wash his hands when he noticed fire moving towards the door of the jhuggi of Maya Deen and voices of 'Bachao­Bachao' on which he immediately picked up the bucket of water lying in front of his house and poured the same over the fire and the fire dried down on which he came to know that it was the wife of Maya Deen who had burnt. The witness has also deposed that in the meantime other neighbours also gathered and poured water upon the wife of Maya Deen who was alive at that time and was saying that her husband had set her on fire and was also saying that she be saved "Kah rahi thi mitti ka tel dal ke aag laga di". The witness has further deposed that somebody made a call to the police and the wife of Maya Deen was taken to the hospital. According to him, the police had interrogated him and recorded his statement.

(24) Leading question were put to the witness by the Ld. Addl. PP for the State on the aspect of date of incident wherein the witness has admitted that the date of incident was 29.11.2012 and has voluntarily explained that he could not remember the date and therefore he could not tell the same.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 17 of 121 (25) In his cross­examination by the Ld. Defence Counsel the witness has deposed that when police came to the spot, he was not there and he met with the police on the day of incident itself in the evening between 7.00 to 8.00PM. According to the witness, on the day of incident his statement was not recorded by the police and has voluntarily added that only his name and address was written by the police. He has also deposed that after about two months he again went to the police chowki alongwith the family members of deceased. According to him, when he first saw the incident, the door of the house of the deceased was opened and he did not see Maya Deen there at that time. He has denied the suggestion that he did not witness the incident or that he did not pour any water on the deceased. The witness has further denied the suggestion that he did not hear the deceased saying that "mitti ka tel dal ke aag laga di" or that he is a planted witness.

(26) PW29 Sh. Kamoda @ Kambuda is the father of the accused Maya Deen who has deposed that on 7.12.2012 he was residing at his native village at Madhya Pradesh and earlier to that on receiving the information regarding the incident of burning of his daughter in law Manju from his grandson Praveen he reached Delhi along with the brother of the deceased. He has testified that on 7.12.2012 he received the dead body of his daughter in law Manju after postmortem in the hospital who had expired during her treatment and the handing over memo of the dead body is Ex.PW5/A. He has not been cross­examined by the Ld. Defence Counsel despite St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 18 of 121 opportunity and hence his testimony has gone uncontroverted. Witnesses of medical record:

(27) PW11 Dr. Divya Prasad, SR General Surgery, BSA Hospital has deposed that on 29.11.2012 patient Manju W/o Maya Das, aged 40 years, female, R/o Jhuggi No. 208, B Block, near Gopal Mandir, Pitampura, Delhi was brought in the casualty with alleged history of being burnt by husband as told by patient Manju herself to him. According to the witness, he examined her and found that she had suffered 89% burns after which he admitted her in the hospital and provided her with the first aid medication and immediate resuscitation. The witness has testified that thereafter referred her to RML hospital for further management and treatment. He has proved the MLC of the injured (deceased) which is Ex.PW11/A bearing his observations at point bracketed X. (28) In his cross­examination by the Ld. Defence Counsel the witness has deposed that the patient was conscious at the time when he spoke to her and examined her. According to the witness, at the time he examined the patient and was questioning her, he did not find any attendant with her and has voluntarily explained that she was only with the hospital staff. He is unable to tell the details of the persons who might have accompanied the patient and has voluntarily explained that she had been referred to him by the CMO.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 19 of 121 (29) PW12 Dr. Meet Kumar, CMO, BSA hospital, Rohini, Delhi has deposed that on 29.11.2012 at 8:30 PM patient Manju W/o Maya Das, aged 40 years, female, R/o Jhuggi No. 208, B Block, near Gopal Mandir, Pitampura, Delhi was brought by HC Bodh Raj, 501 PCR C­29 in the casualty with alleged history of being burnt by husband and when the patient arrived in the casualty, the smell of kerosene oil was present.

The witness has also deposed that on examination the pulse was 100 per minute, BP was 110/70 and on local examination superficial to deep burn was present over face, anterior chest wall, anterior abdominal wall, bilateral upper lip, bilateral lower lip, neck and hair. According to him, after giving the initial treatment, the patient was referred to SR Surgery for further management. He has further deposed that since the patient was not wearing any burnt clothes and the clothes appeared to have been changed before arrival to the hospital, hence the clothes were not taken into possession and sealed. He has proved his observations at bracketed point Y on the MLC Ex.PW11/A. (30) In his cross­examination by the Ld. Defence Counsel the witness has deposed that when the patient arrived, she was fit for statement, i.e. she was conscious, oriented and speaking but in deep pain. According to the witness, he made no inquiries from her with regard to the clothes which she was wearing at the time of the incident. He is unable to tell if any clothes were sticking to her skin etc. and has voluntarily St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 20 of 121 explained that he did not examine her in minute details because she was requiring immediate medical attention. He has testified that the history was given to him by PCR officials and he made no inquiries from the patient. He has also deposed that he did not see any family member of public person with the patient. He has admitted that he has not mentioned this fact of the patient being burnt by husband in the history written by him on the MLC and has voluntarily explained that this was told to him by the PCR officials but he specifically did not mention this fact because he was in a hurry to give the treatment to the patient. According to the witness, he has mentioned this fact on the basis of his memory. He has denied the suggestion that he has mentioned the aforesaid fact on the asking of the Investigating Officer.

(31) PW13 Dr. Shailendra Singh Deval, JR casualty, BSA Hospital, Rohini, Delhi has deposed that on 30.11.2012 patient Maya Deen S/o Kamoda, aged 43 years, male, R/o Jhuggi No. 208, GP Block, Pitampura, Delhi was brought in the casualty by Ct. Bijender, 2067/NW with alleged history given by patient himself "being burnt at around 8 PM one day before i.e. 29.11.2012". The witness has testified that the accused was examined by him and Dr. Kumar Akhilesh, CMO on duty and at the time of examination he was oriented, conscious, afebrile, his GCS (glassgo coma scale) was 15 x 15 (he was perfectly oriented), moving all four limbs, speech and gait normal, BP was 110/72 and Pulse was 76/min. He has further proved that on local examination there were superficial and deep burn over St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 21 of 121 face including ears (left and right), neck anterior surface and left lateral side, right wrist and hand, left arm (distal half), forearm and hand. The witness has proved having provided the primary treatment to the patient and referred him to SR Surgery vide MLC Ex.PW13/A under the supervision of Dr. Kumar Akhilesh whose signatures he has also identified on the MLC. (32) In his cross­examination by the Ld. Defence Counsel the witness has deposed that when the patient was produced before him only the police officials were with him and not the family members. He has also deposed that the burns which he observed on the hands and on his face, some of the burns were superficial and others were deep. The witness has further deposed that he did not give any opinion with regard to the percentage of the burns and reserved his opinion since he had referred the patient for the expert opinion of SR Surgery and has voluntarily explained that in his opinion he had suffered around 15­20% burns. He has also deposed that from the nature of burns which he observed on the body of the patient he is unable to tell whether the same could have been accidental, suicidal or had been received while trying to save somebody and has voluntarily explained that none of the possibilities can be ruled out. (33) PW14 Dr. Kumar Akhilesh, CMO, BSA Hospital, Rohini, Delhi has deposed that on 30.11.2012 patient namely Maya Deen S/o Kamoda, aged 43 years, male, R/o Jhuggi No. 208, GP Block, Pitampura, Delhi was brought in the casualty by Ct. Bijender with alleged history given by patient himself "being burnt at around 8 PM one day before i.e. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 22 of 121 29.11.2012". He has proved that the said patient was examined by him and Dr. Shailendra vide MLC Ex.PW13/A. (34) In his cross­examination by the Ld. Defence Counsel the witness has deposed that when the patient was produced before him only the police officials were with him and not the family members. According to the witness, the nature of the burns were superficial to deep. He has testified that approximately the patient had suffered around 20% burns and from the nature of burns which he observed on the body of the patient, he cannot tell whether the same could have been accidental, suicidal or had been received while trying to save somebody and has voluntarily explained that none of the above possibilities can be ruled out and it could be either. (35) PW15 Dr. Manoj, SR Surgery, BSA Hospital, Rohini, Delhi has proved that on 30.11.2012 patient namely Maya Deen S/o Kamoda, aged 43 years, male, R/o Jhuggi No. 208, GP Block, Pitampura, Delhi was brought in the casualty by Ct. Bijender with alleged history given by patient himself "being burnt at around 8 PM one day before i.e. 29.11.2012" and was examined by Dr. Rahul Gautam in the Surgery Department vide MLC Ex.PW13/A bearing the signatures of Dr. Rahul Gautam at point C. According to the witness, as per the MLC after examination the patient was admitted in ESW under surgery.

(36) In his cross­examination by the Ld. Defence Counsel the witness has admitted that he did not examine the patient personally and he has deposed only on the basis of official records.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 23 of 121 (37) PW21 Dr. Vijay Dhankar is the Autopsy Surgeon who has proved that on 07.12.2012 at about 12:30 - 1:30 PM he conducted the postmortem on the dead body of Manju W/o Maya Deen, female, aged 40 years on the request of Inspector Bijender Singh, Police Station Maurya Enclave. According to the witness on internal examination infected dermo­epidermal burn injuries were present all over the body except a few patches on the back of chest, abdomen and right upper limb, skin was peeled off at places exposing reddened base with areas showing greenish yellow colored foul smelling pus and all body hair were burnt and singed. He has also deposed that on internal examination all organs were found to be congested and flabby. The witness has also proved having opined that death was due to septicemia consequent to burn injuries, all burns were antemortem, recently caused before death and may have been sustained by flames of fire. He has proved his detailed report in this regard which is Ex.PW21/A (running into five pages). On a specific Court Question the witness has explained that in his opinion keeping in view of injuries involved, the burn injuries were homicidal because normally in suicidal cases, the face is spared by the victim and is not burnt but in the present case the face was totally charged.

(38) In his cross­examination by the Ld. Defence Counsel the witness has denied the suggestion that the injuries could be accidental and has voluntarily explained that the pattern of injuries is not consistent with St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 24 of 121 accidental burns specifically because the inflammable material is kerosene. According to the witness, there were no pieces of cloth sticking to the skin when the postmortem was conducted and has voluntarily added that since the postmortem was conducted after her death which took place after 20 days of the incident and the body of the victim was totally bandaged therefore there were no chances of finding any extraneous material including cloth sticking to the skin. He has denied the suggestion that he has given the opinion on the asking of the Investigating Officer. (39) PW22 Dr. Ankur, JR, Dr. RML Hospital, Delhi has proved that on 30.11.2012 the patient Manju W/o Maya Dass, aged 40 years female was referred to RML Hospital from Dr. BSA Hospital, Rohini, Delhi and Dr. Sabiah Mazhar attended the patient at about 12:30 PM and the patient was unfit for statement at that time and she gave her observations at point Z1 bearing her signatures at point Z2 on MLC Ex.PW11/A. According to the witness, the patient was admitted in the Burns Ward of their hospital for medical treatment and on 04.12.2012 at about 1:00 PM, he also medically examined the patient Manju and found her fit for statement and gave his observations at point Z3 bearing his signatures at point Z4 on MLC Ex.PW11/A. He has further deposed that on 04.12.2012 at about 6:00 PM Dr. Richa Srivastava examined the above said patient Manju and gave her observations at point X and bears her signatures at point Z5 on MLC Ex.PW11/A. The witness has also deposed that on the same day on 04.12.2012 at about 6:25 PM he himself examined the patient Manju after St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 25 of 121 recording her statement and gave the observations that the patient Manju was fit for statement during the time her statement was to be recorded by the Executive Magistrate. He has proved his observations at point Y bearing his signatures at point Z6 on MLC Ex.PW11/A. The witness has also deposed that on 06.12.2012 the patient Manju was declared dead at about 1:30 PM and Dr. Sabiah Mazhar prepared the death summary of above said Manju vide Ex.PW22/A. (40) In his cross­examination by the Ld. Defence Counsel the witness has denied the suggestion that he gave his observations at the instance of the police officers or that he did not examine the patient at any time. The witness has admitted that Dr. Richa did not examine the patient in his presence and that Dr. Richa did not put the signatures on the MLC in his presence. According to the witness, he examined the patient at about 6:25 PM at the instance of the police officials. He has further admitted that the statement of patient Manju was not recorded in his presence and has voluntarily explained that some officials went inside of the ward for recording of the statement before he examined the patient. He has further denied the suggestion that he gave his observations at the instance of the police officials.

FSL Expert:

(41) PW10 Dr. Kanak Lata Verma, Sr. Scientific Officer (Chemistry), FSL, Delhi has deposed that on 14.12.2012 nine parcels were St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 26 of 121 received in their office duly sealed with the seal of KK and same were marked to her for examination. According to the witness, she tallied the seal with the sample seal and same was found intact after which the exhibits were examined by gas chromatography and gas chromatography - head space examination. She has proved that Ex.1 was found to contain kerosene oil, Ex.2 and Ex.3 were found to residues of kerosene. However, residues of kerosene, petrol and diesel could not be detected in Ex.4, 5, 6, 7 and Ex.8 and Ex.9 was found to contain ethyl alcohol. She has proved having prepared her detail report in this regard which is Ex.PW10/A. (42) In her cross­examination by the Ld. Defence Counsel the witness has denied the suggestion that the report has been given on the asking of the Investigating Officer.

Police/ official witnesses:

(43) PW1 SI Sanjeev Verma is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having inspected the scene of crime and having prepared the Crime Team Report which is Ex.PW1/A. He has not been cross­examined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.

(44) PW2 SI Manohar Lal is a formal witness being the Draughts Man who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 27 of 121 inspected the scene of crime and having prepared the Scaled Site Plan which is Ex.PW2/A. He has not been cross­examined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.

(45) PW3 HC Angad is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that the entry in register no. 19 vide S.No. 1874/12 copy of which is Ex.PW3/A (three pages), entry in register no. 21 vide RC 110/21/12 copy of which is Ex.PW3/B (two pages) and receipt issued by FSL which is Ex.PW3/C. He has not been cross­examined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.

(46) PW4 HC Guman Singh is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 29.11.2012 at about 8:05 PM a PCR call was received regarding burning of a lady "BP Block, RP Market, Jhuggi No. C­335, ke pass Gopal Mandir wale road par ek aadmi ne apni patni ko jala diya, jo poori tarah jal chuki hai"

on which he recorded DD No. 27A which is Ex.PW4/A. He has also proved having recorded the FIR No. 339/12 copy of which is Ex.PW4/B and having made endorsement on the rukka which is Ex.PW4/C. He has not been cross­examined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 28 of 121 (47) PW5 Ct. Sukbir Singh is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 6.12.2012 on the instructions of Investigating Officer he along with SI Kanhaiya Lal shifted the dead body of deceased Manju from Mortuary of RML Hospital to the Mortuary of SGM Hospital. He has also deposed that after postmortem on the dead body of the deceased, it was handed over to her relatives vide receipt Ex.PW5/A. He has not been cross­examined by the Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted. (48) PW6 Ct. Parveen is also a formal witness who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 14.12.2012 he took nine pullandas from MHCM vide RC 110/21/12 copy of which is Ex.PW3/B and deposited the same with the FSL vide receipt Ex.PW3/C. He has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted. (49) PW7 Ct. Parvinder is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the spot of incident and having taken the photographs which are Ex.PW7/A­1 to Ex.PW7/A­18 and the negatives of the said photographs which are collectively Ex.PW7/B. He has not been cross­ St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 29 of 121 examined by the Ld. Defence Counsel despite opportunity and hence his testimony has gone uncontroverted.

(50) PW8 Ct. Rajbir Singh is a formal witness being the PCR official who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) where he has proved the PCR form which is Ex.PW8/A. He has not been cross­examined by the Ld. Defence Counsel despite opportunity.

(51) PW9 W/Ct. Babita is a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the DD No.43B which is Ex.PW9/A. She has not been cross­examined by the Ld. Defence Counsel and hence her testimony has gone uncontroverted. (52) PW16 Sh. Ramphal Singh has deposed that on 04.12.2012 he was posted as Executive Magistrate (SV), Saraswati Vihar and on that day Sh. M.B. Malhotra, SDM Saraswati Vihar informed him that a lady was lying in burnt condition in RML Hospital about 90% burnt and he was directed by the SDM for recording of her statement. The witness has further deposed that at about 5:30­6:00 PM he reached at RML Hospital where HC Suresh Kumar met him and took him to one injured lady namely Manju W/o Maya Dass in the Burns Ward of RML Hospital and Manju was found in burnt condition on the person of her whole body. According to the witness, he asked her name and she disclosed her name as Manju W/o St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 30 of 121 Maya Dass. The witness has also deposed that one lady was also present there who was sent by him outside of the ward after which he inspected the medical documents of Manju. According to the witness, the doctor examined Manju and declared her fit for statement and he (witness) saw the observations of the doctor at point X on Ex.PW11/A at 6:00 PM and thereafter made inquiries from Manju W/o Maya Dass. The witness has also deposed that he was satisfied that the patient was fit for statement. He has further testified that none was present in the ward, except him and Manju after which he recorded the statement of Manju vide Ex.PW16/A in his own handwriting as stated by Manju to him and obtained thumb impressions of her right hand at encircled portion A. The witness has further deposed that he obtained thumb impressions of her right foot at encircled portion B on Ex.PW16/A and made his endorsement regarding the statement recorded by him on 04.12.2012 at 6:25 PM and gave directions to the SHO Police Station Maurya Enclave to take necessary action as per law. He has testified that in the dying declaration Manju made allegations against her husband Maya Dass and also stated that he was responsible for her death. He has also deposed that he again called the doctor who examined the Manju and gave the observations that Manju was fit for statement during the statement recording which observations of the doctor are at point Y on Ex.PW11/A. According to the witness, he handed over the above said dying declaration with directions Ex.PW16/A to the HC Suresh and the police officials of the Police Station Maurya Enclave for St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 31 of 121 necessary action.

(53) In his cross­examination by the Ld. Defence Counsel the witness has deposed that it took him about half an hour to record the statement of Manju. According to the witness, only one lady from the family of Manju was present in the hospital but he is unable to tell her details and has voluntarily explained that the said lady was attending to her and was standing near her bed. He has testified that the lady who was attending to deceased Manju was around 45 years of age but he made no inquires from her. He has also deposed that when he recorded the statement of Manju he asked the said lady to leave the room. He has further deposed that at the time he recorded the statement of Manju, there were no doctors, nurses or any other person inside the room and has voluntarily explained that only he was present in the room and after obtaining the fitness (fit for statement) from the doctor, he asked the doctor to leave the room. The witness has testified that when he spoke to Manju she was responding to his quires and was in a fit mental state to answer them and hence he proceeded to record her statement. He has denied the suggestion that Manju was not in a position to speak having suffered 89­90% burns. He has denied the suggestion that she was also not in a mental state understand the nature of quires put to her. According to him, before recording the statement of Manju he did not make any inquiries from HC Suresh Kumar with regard to any prior statement made by the victim and has voluntarily explained that HC Suresh only identified the victim and there was no question of asking St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 32 of 121 him any prior statement hence he was putting quires to the victim himself.

The witness has denied the suggestion that he has recorded the statement on the asking of the Investigating Officer of the case or that he had not observed the necessary precautions required to be taken by him prior to recording the statement of the victim.

(54) PW25 HC Bodhraj has deposed that on 29.11.2012 he was posted at PCR Model Town as Head Constable in Commander­29 with base at Metro Station Netaji Subhash Place and was on duty from 8 PM to 8 AM along with gunman Ct. Deepak and driver Ct. Praveen who at that time had not joined the duty and ASI Naresh was still present as Driver. According to the witness, at about 7:54 PM he received the information from Commander­1 that one person had burnt his wife at BP Block, Pitampura near Jhuggi No. 335, near Gopal Mandir Road and that his wife had been completely burnt which call was received from a mobile which number he does not recollect. The witness has also deposed that on receipt of the said call they reached the BP Block where they found a large number of public persons and found one Manju aged about 40 years lying in front of Jhuggi No. 208 and her jethani Bimla was with her. He has testified that when he asked about her husband, he was told by Manju and Bimla and he had run away (bhag gaya). He has proved that he immediately took the injured and put her in the PCR Van and shifted her to the BSA hospital along with Bimla who accompanied her. He has also deposed that on the way Manju told him that while she was cooking food her husband poured oil upon St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 33 of 121 her and had set her on fire (mai khana bana rahi thi aur mere pati ne mujhe tel dal ke aag laga di) and when he asked her the reason for the same she told him that it was on account of domestic problem (Gharelu paresani). According to him, on reaching BSA hospital he got the injured Manju admitted in the hospital under the supervision of Duty HC Ram Parvesh and after some time he made inquiry from the doctor on duty in the casualty and he was told that she was 89 percent burnt. The witness has further testified that he then made a call to the Police Station Maurya Enclave and informed the Duty Constable about the call and he was informed that the said call had been marked to SI Kuldeep. He has deposed that he then gave this information to Commander ­1 through the wireless message and returned to the base.

(55) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he reached the jhuggi cluster within three minutes after receiving the call and there were around 25­30 persons at the spot. He has further deposed that large number of small children were there when he reached the spot but he is unable to tell if they were children of the victim or residents of the area. According to the witness, he only noticed the Jethani of the victim and he saw the victim fully clothed and he was told by her jethani Bimla that they had put clothes on her after changing the burnt clothes. He has testified that he did not notice whether any burnt clothes were lying at the spot and has voluntarily explained that he was in a hurry to rush the victim to the hospital. According to the witness, he did not pay any St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 34 of 121 attention if there was any water lying at the spot since he was in a hurry to rush the victim to the hospital but he could smell the kerosene. The witness has testified that he had informed the Commander­1 about the fact that the victim had informed him that she had been set on fire by her husband while she was cooking food by putting oil on her and that her husband had escaped. He has denied the suggestion that the victim had told him that she had herself set her on fire on account of domestic problems. The witness was confronted with the PCR Form Ex.PW8/A wherein it is mentioned that "29/11/2012 20:05:00 call satya hai lekar hospital jaa rahe hain detail baad me. 29/11/2012 20:42:24 Manju W/o Maya Dass age 40 years R/o Jhuggi No. 208 D Block near Gopal Mandir Ko D/Ct. BSA Hospital Ke hawale hosh me admit kiya doctor sahab ne 89 percent jali bataya hai, iske sath iski jitahni hospital me hai. Pati ne tel dal kar aag laga ti thi", but it is not mentioned that the husband had escaped.

(56) PW26 Ct. Parveen has deposed that on 29.12.2011 he was posted at Police Station Maurya Enclave and on that day he was on Emergency Duty from 8.00 PM to 8.00 PM. According to the witness, on that day at about 8.05PM after receiving the DD No. 27A he alongwith SI Kuldeep reached Jhuggi no. D­208, GP Block, Pitampura, Delhi where they found lot of water and burnt clothes in the jhuggi and came to know that the injured was already taken to the BSA Hospital. The witness has further deposed that they found one bottle of two liters in the jhuggi and the smell of kerosene oil was coming out from the bottle. According to him, they also St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 35 of 121 found one quarter bottle of whisky under the slab and smell of liquor was coming out from the said quarter bottle; some broken pieces of bangles also found in the jhuggi; wall clock near the door was found in burnt condition; some clothes of the children and towels hanging of the rope on the other wall were also found in burnt condition; broken Mala and match stick were was also found on the ground. He has further deposed that Crime Team officials also reached the spot at about 8:15 PM and inspected scene of crime and took photographs after which SI Kuldeep went to BSA Hospital whereas he himself remained at the spot. According to the witness, after 1½ to 2 hours SI Kuldeep returned back to the spot and handed over one rukka to him for registration of FIR on which he (witness) went to Police Station Maurya Enclave for registration of FIR and after the FIR got registered he returned back at the spot and handed over the copy of FIR and original rukka to SI Kuldeep. He has testified that SI Kuldeep prepared the site plan and kept the burnt clothes of a female in a bag and sealed the same with the seal of KK; two liter bottle was also sealed with the help of cloth with the seal of KK; the quarter bottle of liquor was wrapped in the news paper and sealed with the seal of KK; kept the burnt clothes on the rope in a polythene and then in a bag and sealed the same with the seal of KK; sealed the wall clock in a pullanda and sealed with the seal of KK; lifted three match sticks from different place in the jhuggi and kept the same in a polythene and kept the same in a plastic container and sealed the same with the seal of KK; lifted two paijeb of silver in a plastic container and sealed St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 36 of 121 the same with the seal of KK; sealed the broken pieces of bangles and kept the same in a polythene and then kept in a plastic container and sealed the same with the seal of KK; sealed the broken pieces of Mala from three places in the jhuggi and kept the same in a polythene and then kept the same in a plastic container and sealed the same with the seal of KK after which the Investigating Officer seized the said articles vide seizure memo Ex.PW26/A. According to him, thereafter they returned back to the Police Station where the Investigating Officer deposited the articles in the Malkhana.

(57) He has correctly identified the case property i.e. one green coloured big plastic bottle which is Ex.P­1; one semi burnt charred and torn clothes with burnt and torn pieces of lady's clothes which are collectively Ex.P­2; one black coloured jacket and other clothes in burnt condition which are collectively Ex.P­3; one wall clock in burnt condition which is Ex.P­4; three burnt match stick which are collectively Ex.P­5; two pieces of paijeb which are collectively Ex.P­6; two broken pieces of red coloured bangles pieces which some are collectively Ex.P­7; one broken mala which is Ex.P­8 and one quarter bottle of "Besto Whisky" which is Ex.P­9. (58) In his cross­examination by the Ld. Defence Counsel the witness had deposed that they reached at the spot within five minutes and the doors of the jhuggi were opened at that time but no one was present inside the jhuggi. He is unable to tell whether any person from the family St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 37 of 121 was present there or not. According to him, the Investigating Officer did not record statement of any witness at the spot. He has denied the suggestion that no bottle of two liters was recovered in his presence or that no quarter bottle of whisky was recovered from the spot or that the same was planted by the Investigating Officer in this case. (59) PW27 Ct. Vijendra Kumar has deposed that on 30.11.2012 he had joined the investigations in the present case along with SI Kuldeep and on that day at around between 3­4 PM they went for the search of the accused in the present case and at around 5:30­6 PM they reached RP Chowk where they tried to search for the accused and seek information about him from the persons working in the jhuggies. According to the witness, at around 6:00 PM SI Kuldeep received information from the secret informer that one person was sleeping near the Peer Baba Mazar whose hands were burnt and there was some burnt marks on his face as well on which they suspected that he was the accused Maya Deen who was wanted in the present case. He has also deposed that thereafter they reached Peer Baba Mazar where they found a person sleeping at the Mazar and on pointing out of the secret informer they apprehended him and found both his hands burnt and there were burn marks on his forehead. According to the witness, the Investigating Officer interrogated the said person who disclosed his name as Maya Dass R/o D­208, GP Block jhuggie, Pitampura and he also disclosed his involvement in setting his wife on fire because he suspected her character. He has proved that the Investigating Officer then St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 38 of 121 arrested the accused Maya Dass vide memo Ex.PW27/A, his personal search was conducted vide memo Ex.PW27/B and his disclosure statement was recorded vide Ex.PW27/C. He has further deposed that the accused Maya Dass, whom he has correctly identified in the Court, was then taken to the BSA Hospital where he was provided medical treatment and treated for his injuries. According to the witness, he was relieved from the BSA hospital after recording his statement.

(60) In a leading question put to the witness by the Ld. Addl. PP for the State the witness has admitted that after receiving the secret information, Investigating Officer had requested four­five public persons to join the police party but they left after expressing their inability without disclosing their names and addresses and has voluntarily explained that he did not recollect this aspect and hence could not inform the court about the same earlier.

(61) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he did not make a separate ravangi while leaving the Police Station and has voluntarily explained that Investigating Officer made a combine ravangi. According to the witness, the place where the secret informer met them is about one kilometer from the Police Station. The witness has further deposed that they left the Police Station on the motorcycle of SI Kuldeep which motorcycle was parked by the Investigating Officer at RP Chowk and thereafter they searched for the accused on foot. He has testified that they searched for the accused for about two­three St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 39 of 121 hours. According to him, the Investigating Officer did not give any notice to the public persons who refused to join the investigations. He has denied the suggestion that the Peer Baba Mazar is being maintained by religious persons and large number of persons visit the area and has voluntarily explained that there is no body visiting the Mazar as there is empty ground behind it. He has denied the suggestion that none of the documents of arrest bear the signatures of the public persons because the accused was lifted from his house and implicated in the present case or that the family members of the accused had informed SI Kuldeep that victim, his wife had committed suicide and even Maya Deen had received injuries while trying to save her, despite which he was falsely implicated by the Investigating Officer by showing the same as homicidal attack. He has further deposed that the Investigating Officer had prepared the arrest memo first and the disclosure was written at the end. He has denied the suggestion that the accused did not made any disclosure statement or that the same has been recorded by the Investigating Officer of his own and the accused was compelled to sign the same. He has testified that the information of arrest of the accused was given to his child and also to his brother and Bhabhi through constable whose name he is unable to tell. He has denied the suggestion that he did not join the proceedings as stated by him in his examination in chief or that he signed the memos while sitting in the Police Station at the instance of the Investigating Officer. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 40 of 121 (62) PW28 SI Kuldeep Kumar has deposed that on 29.11.2012 he was posted at Police Station Maurya Enclave and was on Emergency Duty when at about 8:05 PM he received DD No. 27­A Ex.PW4/A that one lady was burnt by her husband on which he along with Ct. Parveen reached at Jhuggi No. D­208, GP Block, Pitam Pura where they found a lot of water and burnt clothes. According to him, they entered in the Jhuggi and found the burnt clothes, one two liter plastic bottle having a small of kerosene oil, three half burnt match sticks lying on the floor, two silver pajebs at different places, some broken pieces of bangles, beads of the mala lying on the floor, one empty quarter bottle of Besto Whisky on the slab in the Jhuggi and one burnt sting wall clock. The witness has further deposed that he came to know that the injured Manju had already been shifted to BSA Hospital by PCR officials. According to the witness, he called the Crime Team at the spot who inspected the scene of crime and also took photographs from different angles and the Crime Team Incharge SI Sanjeev Kumar handed over the Crime Team Report which is Ex.PW1/A. He has further deposed that he left Ct. Parveen at the spot after which he went to BSA Hospital where he collected the MLC of Manju and also asked about the fitness of Manju for recording her statement on which the Doctor declared Manju fit for statement at about 8:30 PM. The witness has testified that he met Manju in the casualty of Hospital and made inquiries from her who disclosed that on 7:00­8:00 PM she was present at her house and he husband Maya Deen came at the Jhuggi under the influence of liquor, picked the kerosene bottle, St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 41 of 121 abused her and poured kerosene oil upon her and tried to burn the matchsticks but two matchsticks could not burn whereas the third matchstick burnt and he put her on fire saying that he would kill her and thereafter she raised an alarm and sought help but nobody helped her. The witness has proved having recorded her statement vide Ex.PW23/A on which Manju put her thumb impression and Vimla (Jethani of Manju) was also present there who also put her thumb impression. He has also deposed that he attested the same and returned back to the spot and made inquiries from the neighbourhood after which he made an endorsement on the statement of Manju vide Ex.PW28/A and handed over the rukka to Ct. Parveen for registration of FIR. He has proved having prepared the site plan which is Ex.PW28/B and recorded the statement of Parveen son of Manu. According to the witness, in the meanwhile Ct. Parveen reached the spot and handed over the copy of FIR and original rukka to him for further investigations.

(63) The witness has proved having sealed the empty plastic bottle of two liter having smell of kerosene with the help of cloth with the seal of KK; kept the burnt clothes in a katta and sealed the same with the seal of KK; kept the half burnt clothes handing on a wooden stick in a katta and sealed the same with the seal of KK; sealed the wall clock in a pullanda and sealed with the seal of KK; lifted three match sticks from different place in the jhuggi and kept the same in a polythene and kept the same in a plastic container and sealed the same with the seal of KK; lifted two paijeb of St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 42 of 121 silver, broken pieces of bangles lying on the floor, beads of mala lying scattered on the floor and put them in separate pullandas and sealed the same with the seal of KK; the quarter bottle of liquor was wrapped in the news paper and sealed with the seal of KK. According to the witness, he gave the various pullandas serial No. 1 to 9 and seized the same vide seizure memo Ex.PW26/A. The witness has also deposed that thereafter he and Ct. Parveen then went in search of Mayadeen the husband of the deceased and they met the night staff on patrolling duty on the way and he briefed them about the suspect. He has testified that thereafter they returned back to the Police Station where he deposited the case property in the Malkhana and recorded the statement of Ct. Parveen and relieved him. The witness SI Kuldeep has also deposed that on 30.11.2012 he recorded the statements of the members of the Crime Team and came to know that the injured had been shifted to RML Hospital on which he went to RML Hospital and sought permission from the doctor to interrogate the injured but she was declared unfit for statement. He has proved having recorded the statement of Jethani/ sister in law of the deceased who was attending her and then returned to the Jhuggi cluster for search of the accused but he could not find Mayadeen. He has testified that he recorded the statements of various neighbours and returned back to the Police Station. (64) The witness has further testified that on the same day i.e. 30.11.2012 at about 3:45 PM he along with Ct. Vijender went in search of accused Mayadeen in the area and at around 6:15 PM when they were at RP St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 43 of 121 Chowk, he received an information from secret informer that a person resembling Maya Deen had been seen near the Peer Baba Mazar about 100 meters ahead of RP Chowk on which he requested four­five public persons to join the police party but they refused and hence without wasting time they reached Peer Baba Mazar at about 6:30 PM. According to the witness, on pointing out of the secret informer they apprehended one person who was trying to hide behind the mazar after which he interrogated him who disclosed his name as Maya Deen. He has testified that on sustained interrogation the accused disclosed that he was a Raj Mistri by profession and had not gone for work for about last one month and during this period he developed suspicion on his wife on account of her rude behaviour towards him. The witness has also deposed that the accused further informed him that on the date of incident he was in a state of intoxication when there was a verbal altercation between him and his wife and sine he was already aggrieved by her behaviour and conduct towards him, in a state of anger he picked up the kerosene bottle lying and poured kerosene oil on his wife Manju and then lit up the matchsticks. According to the witness, the accused also informed him that while he (accused) stood on the door to prevent her escape outside in order to finish her and his wife was trying to escape outside even he received some burn injuries but on hearing the cries the neighbours gathered and he escaped. The witness has proved having arrested the accused Maya Deen vide memo Ex.PW27/A, his personal search was conducted vide memo Ex.PW27/B and his disclosure statement St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 44 of 121 was recorded vide Ex.PW27/C. According to the witness, he then directed Ct. Vijender to take Maya Deen to BSA Hospital for his medical examination whereas he himself returned to the Police Station and after some time Ct. Vijender informed him over telephone that Maya Deen was admitted in the hospital on account of his burn injuries. The witness has testified that he thereafter went to BSA Hospital and met the doctor who informed him that the accused required hospitalization for the treatment of his burn injuries, on which Ct. Ajay was called to the Hospital who along with Ct. Vijender were deputed to remain on guard in the hospital. The witness has further deposed that on the intervening night of 30.11.2012 - 1.12.2012 the accused was discharged from the hospital and was brought to the Police Station where he was put in the lock­up. According to him, on 1.12.2012 accused Maya Deen was produced before the Ld. Ilaka Magistrate and was remanded to Judicial Custody. He has also deposed that on 4.12.2012 the statement of SDM was got recorded through HC Suresh. The witness has also deposed that on 6.12.2012 he received the information regarding the death of injured Manju on which he informed the SHO about the same and further investigations were marked to Inspector Vijender. According to the witness, on 31.1.2013 draftsman had come and on his pointing out he prepared the scaled site plan.

(65) The witness has correctly identified the accused Maya Deen in the Court and also identified the case property i.e. one green coloured big plastic bottle which is Ex.P­1; one semi burnt charred and torn clothes with St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 45 of 121 burnt and torn pieces of lady's clothes which are collectively Ex.P­2; one black coloured jacket and other clothes in burnt condition which are collectively Ex.P­3; one wall clock in burnt condition which is Ex.P­4; three burnt match stick which are collectively Ex.P­5; two pieces of paijeb which are collectively Ex.P­6; two broken pieces of red coloured bangles pieces which some are collectively Ex.P­7; one broken mala which is Ex.P­8 and one quarter bottle of "Besto Whisky" which is Ex.P­9. (66) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he reached the spot at about 8:10 PM and the door of the jhuggi was open when he reached there. According to the witness, light was on when they entered the jhuggi but nobody was available inside or outside the jhuggi and has voluntarily explained that all the neighbours were inside their jhuggies and after seeing them they start coming outside again. He has testified that they remained there till 9:05 AM. According to him, there was no gas stove or cylinder inside the jhuggi. He does not remember if any kerosene stove was there inside the jhuggi and states that he saw cooked food inside the jhuggi lying in the utensils. The witness has further deposed that the jhuggi was measuring about 7 x 8 feet and was having first floor also when he visited and found three children of the accused there but he did not inquiry anything from them at that time and has voluntarily explained that he did not find it appropriate to made inquiries from them at that time as they all were frightened to the incident. He has also deposed that he reached the hospital at about 9:25 PM and med the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 46 of 121 victim at about 9:30 in the Casualty. According to the witness, he did not ask the doctor if the victim has been administered any strong pain killer which can effect her ability to think and understand. He has further deposed that he reached back at the place of incident at about 10:30 PM and did not find matchbox inside the Jhuggi. He has also deposed that there were no specific instructions to crime team to lift chance prints from the recovered green colour bottle and has voluntarily explained that he just told them to collect all evidence relating to the incident. The witness has testified that after receiving information regarding the availability of accused near Peer Baba Mazar he did not call any family member of the accused for the purpose of identification. He is not aware if Peer Baba Mazar is maintained by one trust and three­four care takers remain available there for 24 hours and has voluntarily explained that people gather there on Thursday only and no one was available on the date of their visit. According to him, since he did not see anybody near the Peer Baba ki Mazar therefore he did not make effort to call any person to join the investigations.

(67) The witness has denied the suggestion that the accused was not arrested from Peer Baba Ki Mazar or that he was arrested from his house only. He has also denied the suggestion that he did not fairly investigate the case or that he tutored the witnesses to depose against the accused. He has further denied the suggestion that the statement of the victim recorded by him on 29.11.2012 was not a voluntarily statement. He does not remember St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 47 of 121 whether there were no burn injuries on the hands of the victim. He has further denied the suggestion that when the victim was trying to commit suicide the accused tried to save her and sustained injuries. (68) PW30 Inspector Bijender Singh has deposed that on 6.12.2012 he was handed over the investigations of present case and he received the case file from SI Kuldeep Singh. According to the witness, information regarding the death of Manju had been received vide DD No. 43B which is Ex.PW9/A and pursuant to the same he reached the RML hospital and from there he got the dead body shifted to SGM hospital where he moved an application for preserving the dead body for 24 hours. He has further deposed that on 7.12.2012 the dead body was shifted to BSA hospital for getting the postmortem conducted and he moved an application before the CMO Mortuary for conducting the postmortem on the dead body of the deceased after the identification of the dead body by her relatives. He has proved that the dead body of the deceased was identified by her son Praveen vide Ex.PW30/A and by her father in law vide Ex.PW30/B. The witness has also proved his application to the CMO which is Ex.PW30/C and having filled up the inquest papers running into two pages which are collectively Ex.PW30/D. He has testified that after postmortem the dead body was handed over to the relatives vide memo Ex.PW5/A. He has proved having collected the PCR form and got the exhibited sent to the FSL for examination and also having obtained the log book of the PCR Van Commander 29 and recorded the statements of the Incharge and other St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 48 of 121 witnesses. He has testified that on 31.1.2013 he got the scaled site plan prepared from the draftsman at the instance of SI Kuldeep. He has proved that he recorded the statements of all the witness and prepared the charge sheet and filed the same in the court. According to him, later on receipt of the FSL report Ex.PW10/A, he prepared the supplementary charge sheet and filed in the court.

(69) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he had interrogated Praveen the son of the deceased and Raj Kumar cousin of Praveen and Kamoda but did not make any inquiries with regard to the parental family of the deceased. He is unable to give the details about the whereabouts of the parental family of the deceased. He has denied the suggestion that he had not conducted the fair investigations or that he had deliberately not approached the parental family of the deceased. The witness has also deposed that SI Kuldeep had collected the MLC of the accused but he (witness) did not record any statement of the doctor with regard to his opinion on the manner in which the said injuries could have been received. He has denied the suggestion that the deceased had committed suicide and he deliberately converted it into a homicidal case.

STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:

(70) After completion of prosecution evidence the statement of the accused Maya Deen has been recorded under Section 313 Cr.P.C. wherein all incriminating material was put to him which he has denied. The accused St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 49 of 121 has stated that he is innocent and has been falsely implicated. According to him, on the date of incident when he was sitting outside his Jhuggi he asked his wife to prepare some sweet for him on which she got annoyed and went inside in the fit of anger. He has further stated that after sometime he heard her cries on which he went inside and saw that his wife was on fire.

According to the accused, he tried to save her from fire but he could not save her and he himself sustained injuries on his person. The accused has also stated that in order to save himself he ran away from the spot and on the next day he was picked up by the police from his house and the case was planted upon him. However, the accused has preferred not to lead any defence evidence.

FINDINGS:

(71) I have heard arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.

 Sr.        Name of the                                Details of deposition
 No.          witness

Public Witnesses/ Eye Witnesses

1. Parveen (PW17) He is the son of the deceased Manju and accused Maya Deen and being aged 14 years he has been examined on oath. He has deposed on the following aspects:

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 50 of 121

1. That he was residing at House No. D­208, JG Jhuggi, Netaji Subhash Place, Delhi along with his parents.

2. That they are two sisters and two brothers and he is the eldest and is studying in class 10th in Sarvodaya Vidyalay, Maurya Enclave.

3. That his father used to consume liquor frequently and used quarrel with his mother and used to beat her.

4. That on 29.11.2012 his father reached the house at about 7:15 PM under influence of liquor.

5. That at around 7 to 7:15 PM, he was at the first floor when he heard the noise of quarrel between his mother and father on the ground floor on which he reached the ground floor and saw that his father Maya Das @ Maya Deen was abusing his mother Manju saying that she was having relationship with another person and hence he was facing insult.

6. That thereafter his father told him to go on the first floor on which he went to the first floor of the house and after 30 minutes he heard the voices of his mother "bachao­bachao" on which he came down and saw that his mother was burning with fire.

7. That after seeing his mother in this condition, he was shocked and had gone to the house of Suresh to call him as his mother was burnt.

8. That many public persons came from the nearby jhuggies and some one poured water on his mother and somebody called the police.

9. That pubic persons were saying that his father had run away after burning his mother by the kerosene oil.

10. That his two sisters aged about 5 years and 7 years were in the same room of his parents and there was no person present there except them and his parents when the incident took place.

11. That thereafter, his aunt Bimla changed the burnt clothes of his mother and wrapped her into a bed sheet and rushed her to the hospital in a police gypsy.

12. That on the next morning he came to know that his St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 51 of 121 mother was admitted in the hospital and on 6.12.2012 she was declared dead by the doctor and the dead body was handed over to his grand father Kambuda and he (witness) performed the last rites of his mother. He has however, turned hostile on the exact incident.

2. Raj Kumar He is the nephew of the deceased who has deposed that (PW18) deceased Manju was his Chachi and on 29.11.2012 he was called to the BSA Hospital Mortuary where he identified the dead body of his Chachi. According to the witness, after postmortem they received the dead body of his Chachi vide memo Ex.PW5/A and his grandfather Kambuda had also received the dead body.

3. Suresh (PW19) He is the neighbour of the accused and the deceased and has deposed on the following aspects:

1. That the accused Maya Deen a Raj Mistri by profession was residing near his jhuggi around 15­20 houses away and is known to him for about 15­20 years.

2. That Maya Deen has three daughters and one son and initially the wife of Maya Deen namely Manju also used to do beldari with him but later on she started staying at home and taking care of the children.

3. That the accused Maya Deen whom the witness has correctly identified in the Court, is habituated to alcohol and used to drink very frequently and also had suspicious of her character and frequently made allegations on her and hence there were frequent disputes/ quarrel between her and the accused.

4. That on a previous occasion about 4 to 5 years ago, he had entered into the house of one of their neighbours after consuming alcohol on which he (accused) was given a thrashing by the people/ persons of the area and it was on the pleadings of his wife and children that the matter was not reported to the police and the residents left him after blackening his face and parading him in the area.

5. That the accused Maya Deen was frequently quarreling with his wife and children and used to St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 52 of 121 maar - pitai with his wife after consuming alcohol.

6. That a few days i.e. about a week before this incident, accused had a jhagra with his wife as he suspected the character of his wife and had done maar­pitai on which he (witness) along with three­four persons of the area tried to intervene for re­conciliation between Maya Deen and his wife and even advised him.

7. That the wife of Maya Deen was adamant and stated that she would not live with him (accused) and would go to her village and therefore they advised Maya Deen to give her sufficient money for her journey so that she can go back to her native village.

8. That at that time Maya Deen had Rs.500/­ with him which he gave to his wife for enabling her to go to her native village and in their presence his wife left the house after taking the children with her after which they did not see his wife and children in the area.

9. That on the date of incident i.e. 29.11.2012 he was sitting outside his jhuggi when they saw the wife of Maya Deen coming from the side of the jhuggi of the Maya Deen and appeared to have been badly beaten and after walking for some distance she fell down on the ground.

10. That all the residents of the area gathered around her and identified her as the wife of Maya Deen and asked her how she had come back, once she had left the house with the children on which she explained that Maya Deen had got her and the children back from the bus stand and did not allow her to leave.

11. That he told her that if Maya Deen had got her back she should have informed them but she did not respond to them and on seeing her condition they then called Maya Deen from his house and questioned him why he got her back from bus stand when she was going to her village on which Maya Deen told them that he will not permit her to go to the village and would keep her.

12. That the neighbours and the residents then scolded Maya Deen that in case he wanted to keep his wife and children then why he should beat her on which Maya St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 53 of 121 Deen said that henceforth there would no such mistake on his behalf (aj ke baad meri taraf se koi galti nahi hogi).

13. That he then asked Manju if she wanted to stay with the accused after his undertaking that he would not harass her in future on which Manju expressed her disability stating where else can she go and would stay with him, but he should not beat her (mai kahan jaungi maine to inhi ke sath hi rehna hai, bas maare na).

14. That thereafter he along with some more residents went to his house and left Maya Deen, his wife and his children at his Jhuggi and thereafter he returned to his jhuggi.

15. That after about half an hour of his returning to his Jhuggi, while he was about to have his dinner, the eldest son of Maya Deen namely Parveen came crying to his house saying that his father had burnt his mother (mere papa ne mummy ko jala diya hai).

16. That on hearing this he ran to his jhuggi and saw the wife of Maya Deen badly charred/ burnt and some neigbours had poured water on her.

17. That when he reached the spot Manju was severely charred and there were hardly any clothes on her body and he could not see the site (buri tarah jal gai thi, sarrir par koi kapre nahi thye aur hum dekh nahi paa rehe thye).

18. That victim was outside the jhuggi and there was water all around her since the neighbours had poured water on her to save her life (uski jaan bachane ke liye logo ne us per paani dala tha).

19. That she was conscious at that time and there were large number of ladies around her and he asked somebody from the crowd for a mobile phone and then made a call at 100 number.

20. That Maya Deen was not present there at that time and when he asked the neighbours who were standing there as to where he was, they said that he had escaped from the spot from the adjoining gali.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 54 of 121

21. That after about 15 to 20 minutes the PCR officials came to the spot and took the wife of Maya Deen to the hospital and his statement was recorded by the police after interrogation on the same day.

4. Basant Lal He is also a neighbour of the accused and the deceased. He (PW20) has deposed on the following aspects:

1. That the accused Maya Deen was residing at jhuggi No. D­208, GP Block, Pitampura with his wife and four children and used to consume liquor frequently and also used to quarrel with his wife Manju and used to beat his wife regularly.

2. That on 29.11.2012 at about 7:45 PM, he returned back to his house from his work place then he saw many public persons outside the jhuggie of Maya Deen and then he came to know that the accused Maya Deen had burnt his wife Manju and after the incident Maya Deen ran away from there.

3. That he knew Suresh as the resident of his locality who took his mobile phone bearing No. 9560188764 and made call to the police at 100 number on which PCR officials reached the spot.

4. That Vimla/ Jethani of Manju and other ladies present there had changed the burnt clothes of Manju and wrapped her in a bed sheet and Vimla took Manju to the hospital in the PCR van.

5. Smt. Bimla She is the Bhabhi of the accused Maya Deen and sister in law/ (PW23) Jethani of deceased Manju. She has deposed on the following aspects:

1. That her devar Maya Deen was residing in the jhuggie No. D­208 with his wife Manju and four children.

2. That Maya Deen used to consume liquor sometimes and also used to make quarrel with his wife Manju some times.

3. That on 29.11.2013 at about 8 PM she was present in her jhuggi, when she heard some noise that there was fire on which she came out of her jhuggie and saw that Manju was burning with fire and her clothes were in burnt condition and water was poured upon her by the public persons.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 55 of 121

4. That she (witness) thereafter changed her clothes with the help of other females present there and one chunni looking like a bed sheet was wrapped upon her.

5. That some one called the police at 100 number on which PCR Gypsy came at the spot and she took Manju in the PCR gypsy to the Dr. BSA Hospital, Rohini, Delhi where she was admitted and medically treated.

6. That local police also came at the hospital and made inquiries from Manju about the incident and police recorded her (Manju's) statement.

7. That police also obtained her (witness's) thumb impressions on the said statement of Manju which is Ex.PW23/A.

6. Rajesh (PW24) He is the neighbour of the accused Maya Deen and the deceased Manju. He has also deposed as under:

1. That the accused Maya Deen was residing in the jhuggi opposite to his jhuggi along with his wife and children since last many years.

2. That on 29.11.2012 at around 7 to 8 PM, he was at his jhuggi and after having his dinner he came out of his jhuggi to wash his hands when he noticed fire moving towards the door of the jhuggi of Maya Deen and voices of 'Bachao­Bachao'.

3. That he immediately picked up the bucket of water lying in front of his house and poured the same over the fire and the fire dried down on which he came to know that it was the wife of Maya Deen who had burnt.

4. That in the meantime other neighbours also gathered and poured water upon the wife of Maya Deen who was alive at that time and was saying that her husband had set her on fire and was also saying that she be saved "Kah rahi thi mitti ka tel dal ke aag laga di".

5. That somebody made a call to the police and the wife of Maya Deen was taken to the hospital. According to him, the police had interrogated him and recorded his statement.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 56 of 121

7. Kamoda @ He is is the father of the accused Maya Deen who has deposed Kambuda that on 7.12.2012 on receiving the information regarding the (PW29) incident of burning of his daughter in law Manju from his grandson Praveen he reached Delhi along with the brother of the deceased and on 7.12.2012 he received the dead body of his daughter in law Manju after postmortem in the hospital vide handing over memo Ex.PW5/A. Medical Witnesses:

8. Dr. Divya This witness has deposed on the following aspects:

Prasad (PW11) 1. That on 29.11.2012 patient Manju W/o Maya Das, SR General aged 40 years, female, R/o Jhuggi No. 208, B Block, Surgery, BSA near Gopal Mandir, Pitampura, Delhi was brought in Hospital the casualty with alleged history of being burnt by husband as told by patient Manju herself to him.

2. That he examined her and found that she had suffered 89% burns after which he admitted her in the hospital and provided her with the first aid medication and immediate resuscitation.

3. That thereafter he referred her to RML hospital for further management and treatment.

He has proved the MLC of the injured (deceased) which is Ex.PW11/A bearing his observations at point bracketed X.

9. Dr. Meet Kumar This witness has deposed on the following aspects:

(PW12) CMO, 1. That on 29.11.2012 at 8:30 PM patient Manju W/o BSA hospital, Maya Das, aged 40 years, female, R/o Jhuggi No. 208, Rohini, Delhi B Block, near Gopal Mandir, Pitampura, Delhi was brought by HC Bodh Raj, 501 PCR C­29 in the casualty with alleged history of being burnt by husband and when the patient arrived in the casualty, the smell of kerosene oil was present.

2. That on examination the pulse was 100 per minute, BP was 110/70 and on local examination superficial to deep burn was present over face, anterior chest wall, anterior abdominal wall, bilateral upper lip, bilateral lower lip, neck and hair.

3. That after giving the initial treatment, the patient was referred to SR Surgery for further management.

4. That since the patient was not wearing any burnt St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 57 of 121 clothes and the clothes appeared to have been changed before arrival to the hospital, hence the clothes were not taken into possession and sealed.

He has proved his observations at bracketed point Y on the MLC Ex.PW11/A.

10. Dr. Shailendra All these three witnesses have proved the following aspects:

Singh Deval 1. That on 30.11.2012 patient Maya Deen S/o Kamoda, (PW13), Dr. aged 43 years, male, R/o Jhuggi No. 208, GP Block, Kumar Akhilesh Pitampura, Delhi was brought in the casualty by Ct.

         (PW14) and Dr.            Bijender,   2067/NW   with   alleged   history   given   by  
         Manoj (PW15)              patient himself "being burnt at around 8 PM one day  
         of BSA Hospital,          before i.e. 29.11.2012".  

Rohini, Delhi 2. That the accused was examined by them and at the time of examination he was oriented, conscious, afebrile, his GCS (glassgo coma scale) was 15 x 15 (he was perfectly oriented), moving all four limbs, speech and gait normal, BP was 110/72 and Pulse was 76/min.

3. That on local examination there were superficial and deep burn over face including ears (left and right), neck anterior surface and left lateral side, right wrist and hand, left arm (distal half), forearm and hand.

They have proved the MLC of the accused Maya Deen which is Ex.PW13/A.

11. Dr. Vijay He is the Autopsy Surgeon who has deposed on the following Dhankar aspects:

(PW21) 1. That on 07.12.2012 at about 12:30 - 1:30 PM he conducted the postmortem on the dead body of Manju W/o Maya Deen, female, aged 40 years on the request of Inspector Bijender Singh, Police Station Maurya Enclave.

2. That on external examination infected dermo­ epidermal burn injuries were present all over the body except a few patches on the back of chest, abdomen and right upper limb, skin was peeled off at places exposing reddened base with areas showing greenish yellow colored foul smelling pus and all body hair were burnt and singed.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 58 of 121

3. That on internal examination all organs were found to be congested and flabby.

4. That death was due to septicemia consequent to burn injuries, all burns were antemortem, recently caused before death and may have been sustained by flames of fire.

5. That in his opinion keeping in view of injuries involved, the burn injuries were homicidal because normally in suicidal cases, the face is spared by the victim and is not burnt but in the present case the face was totally charged.

He has proved the detailed postmortem report which is Ex.PW21/A (running into five pages).

12. Dr. Ankur This witness has proved the following aspects:

(PW22) of Dr. 1. That on 30.11.2012 the patient Manju W/o Maya RML Hospital, Dass, aged 40 years female was referred to RML Delhi Hospital from Dr. BSA Hospital, Rohini, Delhi and Dr. Sabiah Mazhar attended the patient at about 12:30 PM.

2. That the patient was unfit for statement at that time and she gave her observations at point Z1 bearing her signatures at point Z2 on MLC Ex.PW11/A.

3. That the patient was admitted in the Burns Ward of their hospital for medical treatment and on 04.12.2012 at about 1:00 PM, he also medically examined the patient Manju and found her fit for statement and gave his observations at point Z3 bearing his signatures at point Z4 on MLC Ex.PW11/A.

4. That on 04.12.2012 at about 6:00 PM Dr. Richa Srivastava examined the above said patient Manju and gave her observations at point X and bears her signatures at point Z5 on MLC Ex.PW11/A.

5. That on the same day on 04.12.2012 at about 6:25 PM he himself examined the patient Manju after recording her statement and gave the observations that the patient Manju was fit for statement during the time her statement was to be recorded by the Executive Magistrate.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 59 of 121

6. That his observations at point Y bearing his signatures at point Z6 on MLC Ex.PW11/A.

7. That on 06.12.2012 the patient Manju was declared dead at about 1:30 PM and Dr. Sabiah Mazhar prepared the death summary of above said Manju vide Ex.PW22/A. Forensic Expert:

13. Dr. Kanak Lata This witness has proved the following aspects:

Verma (PW10) 1. That on 14.12.2012 nine parcels were received in their Sr. Scientific office duly sealed with the seal of KK and same were Officer marked to her for examination.

(Chemistry), 2. That she tallied the seal with the sample seal and same FSL, Delhi was found intact after which the exhibits were examined by gas chromatography and gas chromatography - head space examination.

3. That Ex.1 was found to contain kerosene oil, Ex.2 and Ex.3 were found to residues of kerosene. However, residues of kerosene, petrol and diesel could not be detected in Ex.4, 5, 6, 7 and Ex.8 and Ex.9 was found to contain ethyl alcohol.

She has proved having prepared her detail report in this regard which is Ex.PW10/A. Police / official witnesses:

14. SI Sanjeev He is a formal witness being the Crime Team Incharge who Verma (PW1) has proved having inspected the scene of crime and having prepared the Crime Team Report which is Ex.PW1/A.

15. SI Manohar Lal He is a formal witness being the Draughts Man who has (PW2) proved having inspected the scene of crime and having prepared the Scaled Site Plan which is Ex.PW2/A.

16. HC Angad He is a formal witness being the MHCM who has proved the (PW3) entry in register no. 19 vide S.No. 1874/12 copy of which is Ex.PW3/A (three pages), entry in register no. 21 vide RC 110/21/12 copy of which is Ex.PW3/B (two pages) and receipt issued by FSL which is Ex.PW3/C.

17. HC Guman He is a formal witness being the Duty Officer who has proved Singh (PW4) that on 29.11.2012 at about 8:05 PM a PCR call was received St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 60 of 121 regarding burning of a lady "BP Block, RP Market, Jhuggi No. C­335, ke pass Gopal Mandir wale road par ek aadmi ne apni patni ko jala diya, jo poori tarah jal chuki hai" on which he recorded DD No. 27A which is Ex.PW4/A. He has also proved having recorded the FIR No. 339/12 copy of which is Ex.PW4/B and having made endorsement on the rukka which is Ex.PW4/C.

18. Ct. Sukhbir He is a formal witness who has proved that on 6.12.2012 on Singh (PW5) the instructions of Investigating Officer he along with SI Kanhaiya Lal shifted the dead body of deceased Manju from Mortuary of RML Hospital to the Mortuary of SGM Hospital.

He has also proved that after postmortem on the dead body of the deceased, it was handed over to her relatives vide receipt Ex.PW5/A.

19. Ct. Parveen He is also a formal witness who has proved that on 14.12.2012 (PW6) he took nine pullandas from MHCM vide RC 110/21/12 copy of which is Ex.PW3/B and deposited the same with the FSL vide receipt Ex.PW3/C.

20. Ct. Parvinder He is a formal witness being the Crime Team Photographer (PW7) who has proved having visited the spot of incident and having taken the photographs which are Ex.PW7/A­1 to Ex.PW7/A­18 and the negatives of the said photographs which are collectively Ex.PW7/B.

21. Ct. Rajbir Singh He is a formal witness being the PCR official who has proved (PW8) the PCR form which is Ex.PW8/A.

22. W/Ct. Babita She is a formal witness being the DD Writer who has proved (PW9) the DD No.43B which is Ex.PW9/A.

23. Ramphal Singh This witness has proved the following aspects:

(PW16) 1. That on 04.12.2012 he was posted as Executive Magistrate (SV), Saraswati Vihar and on that day Sh.

M.B. Malhotra, SDM Saraswati Vihar informed him that a lady was lying in burnt condition in RML Hospital about 90% burnt and he was directed by the SDM for recording of her statement.

2. That at about 5:30­6:00 PM he reached at RML Hospital where HC Suresh Kumar met him and took him to one injured lady namely Manju W/o Maya St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 61 of 121 Dass in the Burns Ward of RML Hospital and Manju was found in burnt condition on the person of her whole body.

3. That he asked her name and she disclosed her name as Manju W/o Maya Dass.

4. That one lady was also present there who was sent by him outside of the ward after which he inspected the medical documents of Manju.

5. That the doctor examined Manju and declared her fit for statement and he (witness) saw the observations of the doctor at point X on Ex.PW11/A at 6:00 PM and thereafter made inquiries from Manju W/o Maya Dass.

6. That he was satisfied that the patient was fit for statement.

7. That none was present in the ward, except him and Manju after which he recorded the statement of Manju vide Ex.PW16/A in his own handwriting as stated by Manju to him and obtained thumb impressions of her right hand at encircled portion A.

8. That he obtained thumb impressions of her right foot at encircled portion B on Ex.PW16/A and made his endorsement regarding the statement recorded by him on 04.12.2012 at 6:25 PM and gave directions to the SHO Police Station Maurya Enclave to take necessary action as per law.

9. That in the dying declaration Manju made allegations against her husband Maya Dass and also stated that he was responsible for her death.

10. That he again called the doctor who examined the Manju and gave the observations that Manju was fit for statement during the statement recording which observations of the doctor are at point Y on Ex.PW11/A.

11. That he handed over the above said dying declaration with directions Ex.PW16/A to the HC Suresh and the police officials of the Police Station Maurya Enclave for necessary action.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 62 of 121

24. HC Bodh Raj This witness has deposed on the following aspects:

(PW25) 1. That on 29.11.2012 he was posted at PCR Model Town as Head Constable in Commander­29 with base at Metro Station Netaji Subhash Place and was on duty from 8 PM to 8 AM along with gunman Ct. Deepak and driver Ct. Praveen who at that time had not joined the duty and ASI Naresh was still present as Driver.

2. That at about 7:54 PM he received the information from Commander­1 that one person had burnt his wife at BP Block, Pitampura near Jhuggi No. 335, near Gopal Mandir Road and that his wife had been completely burnt.

3. That on receipt of the said call they reached the BP Block where they found a large number of public persons and found one Manju aged about 40 years lying in front of Jhuggi No. 208 and her jethani Bimla was with her.

4. That when he asked about her husband, he was told by Manju and Bimla that he had run away (bhag gaya).

5. That he immediately took the injured and put her in the PCR Van and shifted her to the BSA hospital along with Bimla who accompanied her.

6. That on the way Manju told him that while she was cooking food her husband poured oil upon her and had set her on fire (mai khana bana rahi thi aur mere pati ne mujhe tel dal ke aag laga di) and when he asked her the reason for the same she told him that it was on account of domestic problem (Gharelu paresani).

7. That on reaching BSA hospital he got the injured Manju admitted in the hospital under the supervision of Duty HC Ram Parvesh and after some time he made inquiry from the doctor on duty in the casualty and he was told that she was 89 percent burnt.

8. That he then made a call to the Police Station Maurya Enclave and informed the Duty Constable about the call and he was informed that the said call had been marked to SI Kuldeep.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 63 of 121

9. That he then gave this information to Commander ­1 through the wireless message and returned to the base.

25. Ct. Parveen This witness had visited the spot along with initial (PW26) Investigating Officer SI Kuldeep and has proved the seizure memo of the various exhibits lifted by SI Kuldeep which is Ex.PW26/A.

26. Ct. Vijender This witness had joined investigations with SI Kuldeep Kumar (PW27) and has proved the apprehension and arrest of the accused Maya Deen. He has proved the arrest memo of the accused Maya Deen which is Ex.PW27/A, his personal search memo which is Ex.PW27/B and his disclosure statement which is Ex.PW27/C.

27. SI Kuldeep He is the initial Investigating Officer who has proved the Kumar (PW28) following documents:

                                Ex.PW23/A              Statement of Smt. Manju
                                Ex.PW28/A              Endorsement on the statement of Manju
                                Ex.PW28/B              Rough site plan
                                Ex.PW26/A              Seizure memo of various exhibits lifted from  
                                                       the spot
                                Ex.PW27/A              Arrest memo of the accused
                                Ex.PW27/B              Personal search memo of the accused
                                Ex.PW27/C              Disclosure statement of the accused
28.      Inspector              He is the subsequent Investigating Officer and apart from the  
         Bijender Singh         documents  already proved by the various witnesses, he has  
         (PW30)                 proved the following documents:
                                Ex.PW30/A              Dead   body   identification   statement   by  
                                                       Parveen
                                Ex.PW30/B              Dead body identification statement by father  
                                                       in law of the deceased
                                Ex.PW30/C              Application to the CMO
                                Ex.PW30/D              Inquest papers




St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave                                    Page No. 64 of 121
 (72)             Coming now the microscopic evaluation of the evidence against 

the accused Maya Deen.


Medical Evidence:

(73)            Dr. Divya Prasad (PW11) of BSA Hospital has proved that  on 

29.11.2012 patient Manju W/o Maya Das, aged 40 years, female, R/o Jhuggi No. 208, B Block, near Gopal Mandir, Pitampura, Delhi was brought in the casualty with alleged history of being burnt by husband as told by patient Manju herself to him. According to the witness, he examined her and found that she had suffered 89% burns after which he admitted her in the hospital and provided her with the first aid medication and immediate resuscitation. The witness has testified that thereafter referred her to RML hospital for further management and treatment. He has proved the MLC of the injured (deceased) which is Ex.PW11/A. (74) Dr. Meet Kumar (PW12) CMO of BSA Hospital has also proved that on 29.11.2012 at 8:30 PM patient Manju W/o Maya Das, aged 40 years, female was brought by HC Bodh Raj, 501 PCR C­29 in the casualty with alleged history of being burnt by husband and when the patient arrived in the casualty, the smell of kerosene oil was present. He has also proved that on examination the pulse was 100 per minute, BP was 110/70 and on local examination superficial to deep burn was present over face, anterior chest wall, anterior abdominal wall, bilateral upper lip, bilateral lower lip, neck and hair. He has also proved his observations at St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 65 of 121 bracketed point Y on the MLC Ex.PW11/A. (75) Dr. Shailendra Singh Deval (PW13), Dr. Kumar Akhilesh (PW14) and Dr. Manoj (PW15) all of BSA Hospital have proved that on 30.11.2012 patient Maya Deen S/o Kamoda, aged 43 years was brought in the casualty by Ct. Bijender with alleged history given by patient himself "being burnt at around 8 PM one day before i.e. 29.11.2012". They have proved the MLC of the patient/ accused Maya Deen which is MLC Ex.PW13/A according to which on local examination there were superficial and deep burn over face including ears (left and right), neck anterior surface and left lateral side, right wrist and hand, left arm (distal half), forearm and hand.

(76) Dr. Ankur (PW22) JR from RML Hospital has proved that on 30.11.2012 the patient Manju W/o Maya Dass, aged 40 years female was referred to RML Hospital from Dr. BSA Hospital, Rohini, Delhi and Dr. Sabiah Mazhar attended the patient at about 12:30 PM and the patient was unfit for statement at that time and she gave her observations at point Z1 bearing her signatures at point Z2 on MLC Ex.PW11/A. According to the witness, the patient was admitted in the burn ward of their hospital for medical treatment and on 04.12.2012 at about 1:00 PM, he also medically examined the patient Manju and found her fit for statement and gave his observations at point Z3 bearing his signatures at point Z4 on MLC Ex.PW11/A. He has further deposed that on 04.12.2012 at about 6:00 PM St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 66 of 121 Dr. Richa Srivastava examined the above said patient Manju and gave her observations at point X and bears her signatures at point Z5 on MLC Ex.PW11/A. The witness has also proved that on the same day on 04.12.2012 at about 6:25 PM he himself examined the patient Manju after recording her statement and gave the observations that the patient Manju was fit for statement during the time her statement was to be recorded by the Executive Magistrate which observations are at point Y on MLC Ex.PW11/A. The witness has further proved that on 06.12.2012 the patient Manju was declared dead at about 1:30 PM and Dr. Sabiah Mazhar prepared the death summary of above said Manju vide Ex.PW22/A. (77) Dr. Vijay Dhankar (PW21) is the Autopsy Surgeon who has proved that on 07.12.2012 at about 12:30 - 1:30 PM he conducted the postmortem on the dead body of Manju W/o Maya Deen, female, aged 40 years vide postmortem report Ex.PW21/A according to which infected dermo­epidermal burn injuries were present all over the body except a few patches on the back of chest, abdomen and right upper limb, skin was peeled off at places exposing reddened base with areas showing greenish yellow colored foul smelling pus and all body hair were burnt and singed. He has proved having opined that death was due to septicemia consequent to burn injuries, all burns were antemortem, recently caused before death and may have been sustained by flames of fire.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 67 of 121 (78) On a specific Court Question the witness has explained that in his opinion keeping in view of injuries involved, the burn injuries were homicidal because normally in suicidal cases, the face is spared by the victim and is not burnt but in the present case the face was totally charged.

(79) It is writ large from the above that when Manju (now deceased) was brought to the Hospital she gave a history to Dr. Divya Prashad herself that she had been burnt by her husband and this stands established from the testimony of Dr. Divya Prasahd (PW11) which I am reproducing as under:

"........ on 29.11.2012 patient Manju W/o Maya Das, aged 40 years, female, R/o Jhuggi No. 208, B Block, near Gopal Mandir, Pitampura, Delhi was brought in the casualty with alleged history of being burnt by husband as told by patient Manju herself to me....."

(80) The testimony of Dr. Divya Prasahd (PW11) finds due corroboration from the from the testimony of Dr. Meet Kumar (PW12) who has proved that Manju was brought to the hospital by PCR with alleged history of being burnt by husband and when the patient arrived in the casualty, the smell of kerosene oil was present. He has also proved that on local examination superficial to deep burn was present over face, anterior chest wall, anterior abdominal wall, bilateral upper lip, bilateral lower lip, neck and hair. In his cross­examination Dr. Meet Kumar has admitted that he had not mentioned this fact of the patient being burnt by husband in the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 68 of 121 history written by him on the MLC and has explained that this was told to him by the PCR officials and could not mention this fact because he was in a hurry to give the treatment to the patient and during examination in the Court he mentioned this fact on the basis of his memory. Here, I may observe that Dr. Meet Kumar (PW12) is having no relation or history of being known to the victim and there is no reason whatsoever as to why he would depose falsely to implicate the accused and hence his explanation as to why this fact was not mentioned by him in the MLC is reasonable. It is only natural for any Doctor to first attend to the patient suffering from 89% burns and to provide treatment in order to save her life rather than wasting his time in completing the formalities. His memory also cannot be doubted because the incident of being burnt by husband is so shocking to the conscious of any reasonable man that it would remain in the mind of the person examining such a patient and hence I find his testimony truthful in this regard.

(81) Dr. Shailendra Singh Deval (PW13), Dr. Kumar Akhilesh (PW14) and Dr. Manoj (PW15) all from BSA Hospital are the doctors who had examined the accused Maya Deen who had also suffered burns and had given the history of being burnt at around 8 PM one day before i.e. 29.11.2012, vide MLC Ex.PW13/A according to which on local examination there were superficial and deep burn over face including ears (left and right), neck anterior surface and left lateral side, right wrist and hand, left arm (distal half), forearm and hand. In his cross­examination Dr. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 69 of 121 Shailendra Singh (PW13) has proved that in his opinion she had suffered around 15­20% burns and is unable to say whether the same could have been accidental, suicidal or had been received while trying to save somebody but according to him, none of the possibilities can be ruled out. (82) This being the background, I hereby hold that the medical evidence is compatible to the prosecution case of homicidal nature of death of the deceased and that the deceased Manju had been burnt by her husband Maya Deen.

Forensic Evidence:

(83) Dr. Kanak Lata Verma (PW10) has proved the Chemical Analysis Report Ex.PW10/A according to which Ex.1 (bottle having blue coloured liquid) was found to contain kerosene oil; Ex.2 and Ex.3 (clothes lying at the spot) were containing residues of kerosene and Ex.9 (yellow coloured liquid stated to be whisky collected from the scene of crime) was found to contain ethyl alcohol. However, the metallic objects like wall clock, pieces of bangles, metallic jewellery and broken chain which were lifted from the scene of crime, do not show any reaction for Kerosene, Petrol and Diesel. This being the background, I hold that the forensic evidence is compatible to the prosecution case.

Dying Declaration of the deceased:

(84) The case of the prosecution is that it was the accused Maya Deen who had set his wife on fire on account of the fact that there were St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 70 of 121 frequent quarrels between them and he used to suspect her character and even previously had been beating the deceased and on the date of incident the accused Maya Deen poured kerosene oil on Manju and set her on fire. It is also the case of the prosecution that when Manju was shifted to hospital she not only informed the PCR and other police officials and doctors regarding her husband (accused Maya Deen) having poured kerosene over her and set her on fire but also made a Dying Declaration to the Executive Magistrate to the effect that it was her husband Maya Deen who had set her on fire.

(85) Before proceeding to analyze the statement of the deceased as recorded by the Executive Magistrate, I may observe that there is a historical and a literary basis for recognition of dying declaration as an exception to the Hearsay Rule. Some authorities suggest the rule is of Shakespearian origin. In "The Life and Death of King John", Shakespeare has Lord Melun utter what a "hideous death within my view, retaining but a quantity of life, which bleeds away,..lost the use of all deceit" and asked,"Why should I then be false, since it is true that I must die here and live hence by truth?" (Ref.: William Shakespeare, The Life and Death of King John act. 5, sc.2, lines 22­29).

(86) It is the provisions of Section 32 of the Indian Evidence Act which are relevant in case of statements of the persons who are dead or cannot be found. It reads as under:

Section 32. Cases in which statement of relevant fact by St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 71 of 121 person who is dead or cannot be found etc., is relevant:

Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:

(1) when it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.

(87) Section 32 of the Indian Evidence Act provides for exception to the rule of hear­say. As a general rule the hear­say evidence is excluded and best evidence must always be given but Section 32 of the Indian Evidence Act is an important exception to this rule and one of the exceptions so provided where a person is dead or incapable of giving evidence or cannot be found, then in such case since no better evidence can be obtained, the oral or written evidence of such a person relating to relevant fact under inquiry, becomes admissible. The test of cross­ examination being unavailable, the safeguards which are enumerated under Section 32 of the Indian Evidence Act must be observed. Dying St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 72 of 121 Declaration is only a piece of untested evidence and must like any other evidence satisfy the court that what has been stated therein is the unalloyed truth and that it is absolutely safe to rely upon it. The evidentiary value or weight which has to be attached to such a statement/ Dying Declaration necessarily depends upon the facts and circumstances of each case. It is the duty of the court to subject such a statement to close scrutiny to ascertain whether it was honest and truly made and not a result of any tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assailants and was in a fit state to make a declaration. It is hence settled that in passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including weapon which injured the victim, nature and extent of injuries, victim's physical condition, his conduct, and what was said to and by him. The Hon'ble Apex Court has in various judicial pronouncements has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, Hearsay exception is a mixed question of fact and law. It is equally well settled that dying declaration can form the sole basis for conviction but at the same time due care and caution must be exercised in considering weight to be given to dying declaration in as much as there could be any number of circumstances which may affect the truth. The Hon'ble Apex Court has in more than one decision cautioned the courts to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 73 of 121 product of imagination and has observed that 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 mental condition to make the dying declaration, the courts have to look for the medical opinion.

(88) It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is a thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be last to give untruth as he stands before his creator. There is a legal maxim "Nemo Moriturous Praesumitur Mentire" meaning, that a man will not meet his maker with lie in his mouth. Woodroffe and Amir Ali, in their treatise on Evidence Act state : "when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and cross­ examination are dispensed with."

(89) Therefore it is for the court to consider in each case and under the given circumstances as to what value should be given to a dying declaration. The court on assessment of the circumstances and the evidence and materials on record, has to come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 74 of 121 It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition ­ mentally and physically ­ to make such statement.

(90) In Smt. Paniben Vs. State of Gujarat reported in (1992) 2 SCC 474, the Hon'ble Apex Court while observing that a dying declaration is entitled to great weight however cautioned to note that the accused has no power to cross­examination. It was observed that:

"Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 75 of 121 corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:

There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration [Munnu Raja Vs. State of M.P.) (1976) 3 SCC 104;

1976 SCC (Cri.) 376; (1976) 2 SCR 764; AIR 1976 SC 2199].

If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [(State of U.P. Vs. Ram Sagar Yadav) (1985) 1 SCC 552 : 1985 SCC (Cri) 127: AIR 1985 SC 416; Ramavati Devi Vs. State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164].

Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [(K. RamChandra Reddy Vs. Public Prosecutor) (1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994].

Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [Rasheed Beg Vs. State of M.P.) (1974) 4 SCC 264 : 1974 SCC (Cri) 426].

Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [(Kake Singh Vs. State of M.P.) 1981 Supp. SCC 25: 1981 SCC (Cri.) 645 : AIR 1982 SC 1021].

A dying declaration which suffers from infirmity cannot form the basis of conviction. [(Ram Manorath Vs. State St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 76 of 121 of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581].

Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [(State of Maharashtra Vs. Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 :

AIR 1981 SC 617].

Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [(Surajdeo Oza Vs. State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505].

Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye­witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [(Nanahau Ram and Anr. Vs. State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912].

Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [(State of U.P. Vs. Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519]"

(91) Further, in the case of Mayur Panabhai Shah Vs. State of Gujarat, reported in AIR 1983 SC 66, Their Lordships of the Supreme Court did not approve the observation made by a learned Single Judge of the Gujarat High Court to the effect that 'our Courts have always taken the Doctors as witness of truth'. The Supreme Court of India observed 'even where a doctor has deposed in court, his evidence has got to be appreciated St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 77 of 121 like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth.' (92) In the case of Ashok Pandurang Jadhav Vs. The State of Maharashtra, Crl. Appeal No. 372/09 decided on 6.5.2011, it has been reaffirmed by the Hon'ble Bombay High Court that like every other piece of evidence, the declarations made by the dying man ought to be subjected to scrutiny and cannot be accepted as true merely because it is proved that the dying man indeed made such statements. The Hon'ble Bombay High Court also observed that one of the principles, which ought to be kept in mind in assessing the value of dying declaration as laid down by Their Lordships of the Supreme Court in the case of Khushal Rao (supra) is that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence and further observed that the weight, which is to be attached to the testimony of a witness, depends, in a large measure, upon considerations, that is, if on the face of it, his evidence is so much in consonance with the probabilities and consistent with other evidence and generally so fits with the material details of the case of prosecution, as to carry conviction of truth to a prudent mind, it can be safely accepted. What is true with respect to evidence of witnesses is also true with respect to the statements made by a dying man. In fact, they deserve to be scrutinized more carefully as they cannot be tested on the anvil of the cross­ examination.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 78 of 121 (93) The Hon'ble Bombay High Court also in the above case culled out the possible infirmities in a dying declaration which according to it could be one or more of the following :

1. The declarant may not have been mentally fit to make the alleged declaration.

2. The nature of the record made may have considerably detracted from the actual words uttered by the - declarant.

3. The declaration may have been lacking in circumstantial guarantee of its trustworthiness.

4. The declaration may have been the result of suggestion or consultation.

(94) Further, in the case of Khushal Rao Vs. State of Bombay reported in AIR 1958 SC 22 a Full Bench of the Supreme Court of India, specifically dealt with the evidentiary value of dying declarations. Their Lordships of the Supreme Court referred to a previous decision of the Supreme Court reported in AIR 1953 SC 420(E), wherein it had observed that it was not safe to convict an accused merely on the evidence of dying declaration, without any corroboration. Their Lordships reproduced the observations as under:

"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross­ examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 79 of 121 making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered."

(95) Their Lordships further observed as under:

"We have, therefore, to examine the legal position whether it is settled law that a dying declaration by itself, can, in no circumstances, be the basis of a conviction."

(96) After extensively examining the provisions of Sec.32(1) of the Evidence Act and referring to various conflicting views with regard to the value of dying declaration as a piece of evidence expressed by different High Courts, Their Lordships laid down the following principles :

"1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 80 of 121 declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and

6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

(97) Their Lordships then observed as under:

"Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross­examination. But, once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 81 of 121 corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."

(98) In the case of Nallapati Sivaiah Vs. Sub­Divisional Officer, Guntur, A. P. reported in AIR 2008 Supreme Court 19 the Hon'ble Apex Court while examining the credibility, consistency and truthfulness of the Dying Declaration recorded by the Magistrate and capacity of the declarant of making an intelligible statement and observed that:

".... It was the duty of the prosecution to establish the charge against the accused beyond reasonable doubt and the benefit of doubt must always go in favour of the accused....."

(99) It further observed that:

"...... It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind......"

(100) It was also observed that:

"...... It is not the requirement in law that the doctor who certified about the condition of the victim to make a Dying Declaration is required to be examined in every case but it was the obligation of the prosecution to lead corroborative evidence available in the peculiar St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 82 of 121 circumstances of the case...."

(101) The court further observed that:

In our considered opinion, the medical evidence and surrounding circumstances altogether cannot be ignored and kept out of consideration by placing exclusive reliance upon the testimony of person recording a dying declaration.

The Dying Declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a Dying Declaration depends upon not only the testimony of the person recording Dying Declaration ­ be it even a Magistrate but also all the material available on record and the circumstances including the medical evidence. The evidence and the material available on record must be properly weighed in each case to arrive at proper conclusion. The court must satisfy to itself that the person making the Dying Declaration was conscious and fit to make statement for which purposes not only the evidence of persons recording dying declaration but also cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration.

(102) In the case of K. RamaChandra Reddy and another Vs. The Public Prosecutor reported in (1976) 3 SCC 618: 1976 SCC (Cri) 473:AIR 1976 SC 1994, the court having noticed the evidence of P.W.20 therein who conducted the postmortem that there were as many as 48 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 83 of 121 incised injuries came to the conclusion that in view of those serious injuries it was difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. It was also a case where the Magistrate did not put a direct question to the injured whether he was capable mentally to make any statement. In the circumstances this court came to the conclusion that the Magistrate committed a serious irregularity in "not putting a direct question to the injured whether he was capable mentally to make any statement." It has been observed that:

"....... Even though the deceased might have been conscious in the strict sense of the term, "there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make statement regarding the occurrence." The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured....."

(103) In the case of Darshan Singh @ Bhasuri and Ors. Vs. State of Punjab reported in 1999 AIR SCW 3727, relying on the evidence of the Medical Officer who conducted the postmortem examination on the body of victim to the effect that the victim's vital organs like peritoneum, stomach and spleen were completely smashed and that there were remote chances of his remaining conscious after receipt of such injury, the Hon'ble Apex Court St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 84 of 121 came to a conclusion that it was impossible to believe that he was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. It was observed that:

"...... true, he was quite near his Creator, dangerously so indeed, and we may accept that his mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges. But; was too ill to entertain any thoughts, good or bad, and he could not possibly even in a position to make any kind of intelligible statement..."

(104) The court accordingly refused to place any reliance on the dying declaration and excluded the same from consideration. (105) In the case of Laxman Vs. State of Maharashtra reported in 2002 AIR SCW 3479, Para 3; 8 (2002) 6 SCC 710, a Constitution Bench of the Hon'ble Apex Court held:

"The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 85 of 121 certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

(106) The Constitution Bench in its authoritative pronouncement declared that there is no requirement of law that dying declaration must necessarily contain a certification by the doctor that the patient was in a fit St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 86 of 121 state of mind especially when a dying declaration was recorded by a Magistrate. It is the testimony of the Magistrate that the declarant was fit to make the statement gains the importance and reliance can be placed upon declaration even in the absence of the doctor provided the court ultimately holds the same to be voluntary and truthful. The judgment does not lay down a proposition that medical evidence, even if available on record, as also the other attending circumstances should altogether be ignored and kept out of consideration to assess the evidentiary value of a dying declaration whenever it is recorded by a Magistrate. The Constitution Bench resolved the difference of opinion between the decisions expressed by the two Benches of three learned Judges in Paparambaka Rosamma and Ors. Vs. State of A.P. reported in (1999) 7 SCC 695 and Koli Chunilal Savji and Anr. Vs. State of Gujarat reported in (1999) 9 SCC 562 and accordingly held that there is no requirement of law that there should be always a medical certification that the injured was in a fit state of mind at the time of making a declaration and such certification by the doctor is essentially a rule of caution and even in the absence of such a certification the voluntary and truthful nature of the declaration can be established otherwise [1999 AIR SCW 3440, 1999 AIR SCW 3727, 9 (1999) 7 SCC 695].

(107) Applying the settled principles of law to the facts of the present case it is evident that Executive Magistrate Sh. Ramphal Singh (PW16) has proved having recorded the Dying Declaration of the deceased which is Ex.PW16/A. He has proved that the doctor examined Manju and declared St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 87 of 121 her fit for statement after which he made inquiries from Manju and when he satisfied that the patient was fit for statement, he recorded her statement in his own handwriting and obtained thumb impressions of her right hand and thumb impressions of her right foot. Dr. Ankur (PW22) of RML Hospital has proved having given the fitness on 04.12.2012 at about 6:25 PM vide his observations at point Y on MLC Ex.PW11/A and has corroborated the testimony of Sh. Ramphal Singh (PW16) on the aspect that it was only after he found the injured Manju in a fit state that he gave the fitness after which he left the room and the SDM/ Executive Magistrate recorded her statement. The said statement is reproduced as under:

"...... Main Manju bayan karti hoon ki dinank 29­11­12 ko samay karib 7:30 saai ko apni jhuggi mein shaam ka khana bana rahi thi. Mera aadmi Maya Daas jo ghar par tha, jisne sharaab pi rakhi thi, na maloom ki kis kaaran gussa aaya aur ghar par rakha mitti ka tail mere upar daal diya aur machis ki tilli laga di jis­se mujhe aag lag gayi. Meri shaadi karib 20 varsh pehle Maya Daas ke saath hui thi. Mere chaar bachche hain jinke naam Parveen, Rohit, Monika va Mamta hain. Mera aadmi ek mahine se ghar par hi rehta hai aur sharoob ka aadi hai. Veh kai baar pehle bhi jhagra va maarpit kar chuka hai. Mere saas - sasur va nanand aadi se mera koi sambandh nahin hai. Veh sab gaon mein rehte hain. Is ghatna ke liye main apne pati Maya Daas ko jimmedaar manti hoon. Uske khilaf kanooni karyawahi ki jaye jis­se mujhe nyaay mil sake. Aapne mera bayan likha, padhkar sunaya, thik hai...."

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 88 of 121 (108) The Executive Magistrate has been cross­examined at length and he stood by his version. He is an official witness and has adopted the standard legal procedures while recording the statement of the deceased. He has clarified that when he reached the Hospital the met attendant of the deceased and he made inquiries from her but at the time of recording the statement of deceased he asked the said lady to leave the room and at the relevant point of time neither any doctors, nor nurses nor any other person was inside the room. He has explained that it was after obtaining the fitness of the patient to make statement from the doctor that he asked the doctor to leave the room and when he himself spoke to Manju she was responding to his queries and was in a fit mental state to answer them, only after which he proceeded to record her statement. He has denied that Manju was not in a position to speak having suffered 89­90% burns and has explained that he was not aware of any previous statement made by the deceased to any other person and has clarified that it was HC Suresh who identified the victim and there was no question of asking him any prior statement since he was putting queries to the victim himself. Here, I may note that the procedure so adopted by the Executive Magistrate cannot be faulted at all. He was neither related to any of the parties nor influenced by any other person. He found Manju to be in a fit mental state as she was responding to the queries being put to her despite the fact that she suffered 89­90% burns. I find no merit in the argument of the Ld. Defence counsel that under the given circumstances she could not have made any statement since the percentage St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 89 of 121 of burns is ascertained only by the extent of area of body in which the burns have been found and there are numerous cases where in a case of 100% burns a person is mentally in a position to respond to the queries being put to him. The infliction of 89% burns only significant that 89% surface area of the body was covered with burns. Even her MLC Ex.PW11/A shows that when she was brought to the hospital she was responding and had simultaneously told the doctors (i.e. Dr. Divya Prashad and Dr. Meet Kumar) that it was her husband who had set her on fire. (109) I may observe that at the first instance Manju had informed her neighbours including the witness Rajesh (PW24) that her husband had set her on fire, which aspect has been duly proved by Rajesh (PW24). The relevant portion of the testimony of Rajesh (PW24) is as under:

"........ I am residing on the aforementioned address since my birth along with my family. I am doing the work of putting tile pathar. The jhuggi Maya Deen accused present in the (correctly identified) is residing in the jhuggi opposite my jhuggi where he was residing along with his wife and children since last many years. Maya Deen is also residing in the same area for the last many years.

It was winter last year, exact date I do not remember, it was around 7 to 8 PM, I was at my jhuggi after having my dinner I came out of my jhuggi to wash my hands when I noticed fire moving towards the door of the jhuggi of Maya Deen and voices of 'Bachao­ Bachao' on which I immediately picked up the bucket of water lying in front of my house and poured the same over the fire and the fire dried down on which I came to St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 90 of 121 know that it was the wife of Maya Deen who had burnt. In the meantime other neighbours also gathered and poured water upon the wife of Maya Deen. She was alive at that time and was saying that her husband had set her on fire. She was also saying that she be saved. "Kah rahi thi mitti ka tel dal ke aag laga di". Somebody made a call to the police and the wife of Maya Deen was taken to the hospital. The police had interrogated me and recorded by statement.

At this stage, Addl. PP seeks permission to put leading questions to the witness on the aspect of date of incident.

Heard. Permission granted.

It is correct that the date of incident was 29.11.2012. Vol. I could not remember the date and therefore I could not tell the same...."

(110) Thereafter, while Manju was being removed to BSA Hospital by PCR Van Incharge HC Bodh Raj (PW25), she also informed him that she had been burnt by her husband. The relevant portion of HC Bodh Raj (PW25) is reproduced as under:

"...... On receipt of the said call we reached the BP block where we found a large number of public persons and we found one Manju aged about 40 years lying in front of Jhuggi No. 208 and her jethani Bimla was with her. When I asked about her husband, I was told by Manju and Bimla and he had run away (bhag gaya). I immediately took the injured and put her in the PCR Van and shifted her to the BSA hospital along with Bimla who accompanied her. On the way Manju told me that while she was cooking food her husband poured oil upon her St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 91 of 121 and had set her on fire ("mai khana bana rahi thi aur mere pati ne mujhe tel dal ke aag laga di) and when I asked her the reason for the same she told me it was on account of domestic problem (Gharelu paresani)....."

(111) The testimony of HC Bodh Raj (PW25) finds due corroboration from the PCR Form Ex.PW8/A wherein it has been specifically mentioned that "....Pati ne tel dal kar aag laga di thi..." and also from the MLC prepared by Dr. Divya Prashad (PW11) and Dr. Meet Kumar (PW12) who are all independent official witnesses having no personal interest in the case.

(112) Again, when Manju was admitted in the hospital she also informed Dr. Divya Prashad (PW11) and Dr. Meet Kumar (PW12) that it was her husband who set her on fire. The relevant portion of the testimony of Dr. Divya Prashad (PW11) is as under:

"....... On 29.11.2012 patient Manju, W/o Maya Das, aged 40 years, female, R/o Jhuggi No. 208, B Block, near Gopal Mandir, Pitampura, Delhi was brought in the casualty with alleged history of being burnt by husband as told by patient Manju herself to me. I examined her and found that she had suffered 89% burns. I admitted her in the hospital and provided her with the first aid medication and immediate resuscitation. I thereafter referred her to RML hospital for further management and treatment. The MLC is EX PW 11/A bearing my observations at point bracketed X and signatures at point A....."

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 92 of 121 (113) The relevant portion of the testimony of Dr. Meet Kumar (PW12) is reproduced as under:

"...... On 29.11.2012 at 8:30 PM patient Manju, W/o Maya Das, aged 40 years, female, R/o Jhuggi No. 208, B Block, near Gopal Mandir, Pitampura, Delhi was brought by HC Bodh Raj, 501 PCR C­29 in the casualty with alleged history of being burnt by husband. When the patient arrived in the casualty, the smell of kerosene oil was present. On examination the pulse was 100 per minute, BP was 110/70. On local examination superficial to deep burn was present over face, anterior chest wall, anterior abdominal wall, bilateral upper lip, bilateral lower lip, neck and hair. After giving the initial treatment, the patient was referred to SR Surgery for further management. As patient was not wearing any burnt clothes and the clothes appeared to have been changed before arrival to the hospital, hence the clothes were not taken into possession and sealed. The MLC is already EX PW 11/A bearing my signatures at point B and C. My observations are bracketed at point Y....."

(114) Further, pursuant to DD No. 27­A when SI Kuldeep (PW28) reached BSA Hospital, he made inquiries from Manju who at that time was conscious and disclosed to him that her husband Maya Deen had poured kerosene oil upon her and set her on fire. The relevant portion of SI Kuldeep Kumar (PW28 is as under:

"....... I met Manju in the Casualty of hospital. I made inquiries from Manju and Manju disclosed to me that she was residing at the above said jhuggi. She was having four children i.e. two boys and two girls and she belonged St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 93 of 121 to Chattar Pur and on the same day at about 7:00­8:00 PM she was present at her house and her husband Mayadeen came at the Jhuggi under influence of liquor. She further disclosed to me that her husband was working as mason but had not been working since one month and used to consume liquor. After coming to house her husband Mayadeen picked kerosene bottle used to kitchen work and abused her and poured kerosene oil upon her and tried to burn the matchsticks but two matchsticks could not be burnt and third matchstick burnt and he put the fire upon her by the third matchstick and he was saying that he would kill her on that day and she raised alarm and sought help but nobody helped her. I recorded her statement vide Ex.PW23/A and Manju put her thumb impression at point B and Vimla (Jethani of Manju) was also present there and she put her thumb impression at point A....."

(115) At the very outset I may observe that the statements made by the deceased Manju first to her neighbour Rajesh, then to the official of the PCR and police and subsequently to the SDM are relevant. She has explained them the manner in which she received the burn injuries. In fact these statements explain the manner in which she had sustained these burn injuries to which she ultimately succumbed. Hence, the above statements to Rajesh, HC Bodh Raj, Dr. Divya Prashad, Dr. Meet Kumar, SI Kuldeep and Executive Magistrate Sh. Ram Phal Singh having been made by a person who is dead and incapable of giving evidence and since it relates to Cause of Death, are relevant to the present proceedings where her cause of St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 94 of 121 death is into question and hence qualifies to be the Dying Declaration of the deceased Manju admissible in evidence under Section 32 of the Indian Evidence Act.

(116) The argument of the Ld. Defence Counsel that the possibility of tutoring the deceased cannot be ruled out, is totally unfounded. The deceased Manju has been most consistent in her statement to different persons. At the first instance she informed the neighbours who had poured water on her including Rajesh (PW24) that it was her husband Maya Deen who had set her on fire. It is only natural that at the first instance when she was being saved by her neighbours who poured water over her, she would have immediately give the true and correct version. There could have been no question of any tutoring or prompting at that stage. (117) Secondly, while Manju was being taken to the Hospital she informed the PCR Van Incharge HC Bodh Raj (PW25) that she had been burnt by her husband. Again at this stage, there were little chances of her having being tutored and this appear to be natural and correct version. (118) Thirdly when she was brought to BSA Hospital she again told Dr. Divya Prashad (PW11) and Dr. Meet Kumar (PW12) that she was burnt by her husband.

(119) Fourthly, when the initial Investigating Officer SI Kuldeep Kumar reached the hospital she gave a detail statement to him which is Ex.PW23/A on the basis of which the present FIR was registered, which also bears the signatures of Vimla (PW23) her sister in law/ Jethani who has St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 95 of 121 turned hostile in the Court on the aspect of the allegations against the accused Maya Deen but has admitted that the deceased Manju had made this statement which she had signed thereby proving that the version given by the deceased Manju was true.

(120) Lastly, when the Executive Magistrate Sh. Ram Phal Singh (PW16) was called to the hospital she consistently gave the same version to him. At the relevant time when Manju made this statement her Jethani Vimla (PW23) was also present there who has now turned hostile on the role attributed to the accused which was only natural because the accused May Deen is her real devar. Manju had been most inconsistent when she told various persons as aforesaid as to what had happened and there is no element of any prompting or tutoring. These are the unalloyed statements made by her and even the medical expert has certified these burn injuries are homicidal leaving little to doubt.

(121) Further, it is borne out from the material on record that the accused Maya Deen was residing with his wife Manju (now deceased) and the accused who was a compulsive and habitual alcoholic used to frequently quarrel with her and beat her. The deceased Manju had throughout been trying to save her marriage and it was impossible that under the given circumstances she would have falsely implicate the same husband. She was alone in the room on the ground floor with her husband Maya Deen who was quarreling with her. Hence, who else could have done this? (122) This being the background, I hereby hold that the Dying St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 96 of 121 Declaration of the deceased is highly incriminating qua the accused Maya Deen and pin him down conclusively as the person who had thrown kerosene oil on Manju and had set her on fire.

Ocular Evidence/ Motive of the offence/ Allegations against the accused and his conduct both prior and subsequent:

(123) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.

(124) The case of the prosecution is that the accused Maya Deen had been suspecting the relationship of his wife Manju to another person and hence he used to frequently abuse her and beat her up which fact was publicly known to the neighbours. Maya Deen is stated to be a habitual alcoholic who not only was a nuisance for his wife but also on a couple of occasion by entering into the house of another person after consuming the alcohol on account of which he was beaten by the neighbours. It has been alleged that on the date of incident i.e. on 29.11.2012 at about 7:30 PM the accused Maya Deen poured kerosene oil upon Manju and thereafter her set her on fire after lightening the match stick which he threw on her.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 97 of 121 (125) Before coming to the merits of the case, I may observe that Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence.

The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

(126) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (127) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 98 of 121 consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].

(128) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].

(129) Applying the settled principles of law to the facts of the present case, the testimonies of the independent public witnesses who are all neighbours residing in the same area are succinctly clear. Coming first to the statement of Praveen (PW17) who is the son of the accused and the deceased. He is a child witness aged about 14 years and has been examined on oath. He has turned hostile on the aspect of burning incident but has proved the prior and subsequent conduct of the accused. He has confirmed that on the date of incident on 29.11.2013 at about 7:00­7:15 PM he was on the first floor when he heard the voices of quarrel between his mother St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 99 of 121 and father on which he came down and saw that his father Maya Deen was abusing his mother Manju alleging that she was having relationship with another person and he was facing insult. Thereafter on the asking of his father Maya Deen, he went to first floor and after thirty minutes he heard the voices of his mother calling out to save her (bachao­ bachao) on which the again came down and saw that his mother was burning with fire and went to call his neighbour Suresh (witness Suresh confirms the same). He has also proved that many public persons came from the nearby jhuggies and poured water on her and somebody called to the police. According to Parveen, thereafter police reached the spot and rushed his mother to the hospital and it was on 6.12.2012 that she was declared dead by the doctor. Leading question were put to him by the Ld. Public Prosecutor wherein the child Praveen has admitted that his father used to consume liquor frequently and used to quarrel with his mother and beat her up. He has also admitted that on the date of incident his father reached the house at about 7:15 PM under the influence of liquor. He has however denied that Maya Deen had threatened her to kill by pouring kerosene or that when he came down from the first floor, he saw his father standing there and saying aaj tere se peecha chootega or that after hearing the voice of his mother, the neighbours came after which he father ran away. Parveen has also explained that he did not see his father while running but public persons were saying that his father had run away after burning his mother by kerosene oil. The child has also explained that on St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 100 of 121 seeing his mother in this condition he became shocked which is only natural.

(130) The testimony of child witness Parveen (PW16) finds due corroboration from the testimony of Suresh (PW19) who is the neighbour of the accused. Suresh has confirmed that on the date of incident the elder son of Maya Deen namely Parveen came to his house crying that his fahter had burnt his mother (mere papa ne mummy ko jala diya hai). The relevant portion of the testimony of Suresh (PW19) is reproduced as under:

"........ I am residing on the above address for the last 28­30 years. I am plying a school van and also have a cycle repair shop. Maya Deen resides near my jhuggi around 15­20 houses away and is known to me for about 15­20 years. He is a Raj Mistri by profession. He has three daughters and one son. Initially his wife also used to do beldari with him but later on she started staying at home and taking care of the children. Accused Maya Deen (present in the court and correctly identified) is habituated to alcohol and used to drink very frequently. He was also suspicious of her character and frequently made allegations on her and hence there were frequent disputes / quarrel between her and the accused. Maya Deen was a person whose character was not above board. On a previous occasion about 4 to 5 years back, he had entered into the house of one of our neighbours after consuming alcohol one which he was given thrashing by the people of the area and it was on the pleadings of his wife and children that the matter was not reported to the police and the residents left him after blackening his face and parading him in the area. He was frequently quarreling with his wife and children and used to maar St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 101 of 121

- pitai with his wife after consuming alcohol. A few days i.e. about a week before this incident, he had a jhagra with his wife as Maya Deen as he suspected of character of his wife and he had done maar­pitai on which I along with 3 to 4 persons of the area tried to intervene for re­conciliation between Maya Deen and his wife and we even advised him. The wife of Maya Deen was adamant and stated that she would not live with him and would go to her village and therefore we advised Maya Deen to give her sufficient money for her journey so that she can go back to her native village. At that time Maya Deen had Rs.500/­ with him which he gave to his wife for enabling her to go to her native village and in our presence his wife left the house after taking the children with her. Thereafter, we did not see his wife and children in the area.

After about one week i.e. on the same day of the incident when the wife of Maya Deen was got burnt, I was at my house sitting outside the jhuggi when we saw the wife of Maya Deen coming from the side of the jhuggi of the Maya Deen and appeared to be badly beaten. We saw that after walking for some distance she fell down on the ground. All the residents of the area gathered around her and identified her as the wife of Maya Deen. We asked her how she had come back, once she had left the house with the children on which she explained that Maya Deen had got her and the children back from the bus stand and did not allow her to leave. I told her that if Maya Deen had got her back she should have informed us but she did not respond to us. On seeing her condition we then called Maya Deen from his house and questioned him why he got her back from the bus stand when she was going to her village on which Maya Deen told us that he will not permit her to go to the village and would keep her. The St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 102 of 121 neighbours and the residents then scolded Maya Deen that in case he wanted to keep his wife and children then why he should beat her on which Maya Deen said that henceforth there would no such mistake on his behalf (aj ke baad meri taraf se koi galti nahi hogi). I then asked his wife if she wanted to stay with him after his undertaking that he would not harass her in future on which his wife expressed her disability stating where else can she go and would stay with him, but he should not beat her (mai kahan jaungi maine to inhi ke sath hi rehna hai, bas maare na). Thereafter I along with some more residents went to his house and left Maya Deen his wife and his children her at his Jhuggi and thereafter I returned to my jhuggi. After about half an hour of my returning to my Jhuggi, while I was about to have my dinner, the eldest son of Maya Deen namely Parveen came crying to my house saying that his father had burnt his mother (mere papa ne mummy ko jala diya hai). On hearing this I ran to his jhuggi I saw his wife badly charred / burnt and some neigbours had poured water on her. She was conscious at that time and there were large number of ladies around her. I asked somebody from the crowed for a mobile phone and then made a call at 100 number. Maya Deen was not present there at that time and when I asked the neighbours who were standing there as to where he was, they said that he had escaped from the spot from the adjoining gali. After about 15 to 20 minutes the PCR officials came to the spot and took the wife of Maya Deen to the hospital. My statement was recorded by the police after interrogation on the same day.

Court question: Did you notice any clothes on the body of the victim when you reached the spot ?

Answer: She was severely charred and there were hardly St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 103 of 121 any clothes on her body and I could not see the site. (buri tarah jal gai thi, sarrir par koi kapre nahi thye aur hum dekh nahi paa rehe thye).

Court Question: What was the status of the spot i.e. jhuggi of Maya Deen when you reached there ?

Answer: Victim was outside the jhuggi and there was water all around her since the neighbours had poured water on her to save her life. (uski jaan bachane ke liye logo ne us per paani dala tha).

At this stage, Addl. PP seeks permission to put leading question to the witness on the aspect of date incident and name of the deceased.

Heard. Permission granted.

It is correct that the name of the deceased / wife of Maya Deen was Manju. It is correct that incident took place on 29.11.2012 at around 8 PM. Vol. I could not recollect the date and hence I could not inform the court about the same....."

(131) Suresh has been cross­examined at length by the Ld. Defence Counsel and it is evident that he has made substantive improvements in his testimony before this Court. In his examination the witness Suresh has narrated an incident where the accused Maya Deen had entered into the house of one of the neighbour after consuming alcohol and was beaten by the public persons but on the pleadings of his wife and children the matter was not reported to the police and Maya Deen was left after blackening his face and parading him in the area. Ld. Defence Counsel has vehemently argued that the above testimony of Suresh (PW19) cannot be read into evidence being an improvement to his statement under Section 161 Cr.P.C. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 104 of 121 In this regard I may observe that Suresh has explained that this fact was known to the police staff of the area since this incident had even reached them at that them and hence he did not specifically mention this to the police. Further, he has also stated that a week before the incident in question, Maya Deen had a dispute with his wife as he suspected her character and had also done maar­pitai with her on which he along with three­four persons of the area intervened and advised the deceased to leave Maya Deen and it was then that on their asking Maya Deen gave Rs.500/­ to her to go to her village along with the children. It is also evident that these details are missing in his statement under Section 161 Cr.P.C. and the Ld. Defence Counsel has argued that the same should not be read into evidence. However, I may observe that the statements under Section 161 Cr.P.C. always recorded by the police over which the witness has little control. Also, the statement having been recorded soon after the incident, there is an element of shock and disbelieve on account of which many of the minute details may not be mentioned in the statement and hence the broad details having been mentioned it is always open to the court to consider the minute details which are thereafter brought before the Court and the witness by and large cannot be totally disbelieved merely because he has given the minute details which the police did not record. Of course, an element of exaggeration can always be there but keeping in view the other corroboration which are forthcoming the said details which had not been mentioned earlier, can always be looked into for collateral purposes. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 105 of 121 (132) Further, Basant Lal (PW20) is the person who had made a PCR call. He has deposed that he has not seen the actual incident but has explained that Maya Deen is a habitual alcoholic and used to frequently quarrel with his wife and beat her up. He has further roved that on 29.11.2012 at about 7:45 PM when he returned back to his house, he saw many public persons outside the jhuggi of Maya Deen and he came to know that Maya Deen had burnt his wife Manju and thereafter ran away from there. He has explained that his neighbour Suresh (PW19) was also present there and took his mobile phone bearing No. 9560188764 and made a call to 100 number on which police had reached the spot and it was the other ladies of the area including the Jethani of Manju namely Vimla who changed her clothes and thereafter shifted her to the hospital. (133) The sister in law/ Jethani of the deceased Manju namely Vimla has been examined by the prosecution as PW23 who has proved the incident but has turned hostile with regard to the role attributed to the accused. She has proved that Maya Deen is her Devar and used to consume liquor and also quarrel with his wife Manju at times. According to her on the date of incident she heard that there was a fire on which she came out and saw that Manju was burning with fire and her clothes were burnt and thereafter she changed her clothes with the help of other females and wrapped her in a bed sheet and accompanied her to the hospital along with PCR officials. She has also proved that police recorded her statement and also the statement of Manju which is Ex.PW23/A on which she put her thumb impression at St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 106 of 121 point A. Vimla (PW23) has turned hostile on the aspect that accused Maya Deen used to suspect the character of Manju but has admitted that Maya Deen used to abuse and beat her up his wife Manju which according to her was occasional. She has denied that she came out of the jhuggi after hearing the voice of Manju bachao­bachao and Maya Deen was standing there and after the gathering of public persons Maya Deen ran away from there.

(134) Rajesh (PW24) is also a neighbour of accused Maya Deen and has proved the incident in question and what the deceased Manju had told her at the first instance. The relevant portion of his testimony is reproduced as under:

"........ I am residing on the aforementioned address since my birth along with my family. I am doing the work of putting tile pathar. The jhuggi Maya Deen accused present in the (correctly identified) is residing in the jhuggi opposite my jhuggi where he was residing along with his wife and children since last many years. Maya Deen is also residing in the same area for the last many years.

It was winter last year, exact date I do not remember, it was around 7 to 8 PM, I was at my jhuggi after having my dinner I came out of my jhuggi to wash my hands when I noticed fire moving towards the door of the jhuggi of Maya Deen and voices of 'Bachao­ Bachao' on which I immediately picked up the bucket of water lying in front of my house and poured the same over the fire and the fire dried down on which I came to know that it was the wife of Maya Deen who had burnt.

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 107 of 121 In the meantime other neighbours also gathered and poured water upon the wife of Maya Deen. She was alive at that time and was saying that her husband had set her on fire. She was also saying that she be saved. "Kah rahi thi mitti ka tel dal ke aag laga di". Somebody made a call to the police and the wife of Maya Deen was taken to the hospital. The police had interrogated me and recorded by statement.

At this stage, Addl. PP seeks permission to put leading questions to the witness on the aspect of date of incident.

Heard. Permission granted.

It is correct that the date of incident was 29.11.2012. Vol. I could not remember the date and therefore I could not tell the same...."

(135) He has also been cross­examined by the Ld. Defence Counsel but he stood by his ground and nothing much has come out of the same. He has specifically deposed that it was the wife of Maya Deen who informed him that her husband had set her on fire.

(136) The testimony of Ramesh (PW24) finds due corroboration from the testimony PCR Van Incharge HC Bodh Raj (PW25) who had shifted Manju to BSA Hospital. While Manju was being shifted to BSA Hospital she informed HC Bodh Raj that her husband poured oil upon her and set her on fire on account of some domestic problem. The relevant portion of the testimony of HC Bodh Raj (PW25) is reproduced as under:

"........ On 29.11.2012 I was posted at PCR Model Town as Head Constable in Commander­29 with base at Metro Station Netaji Subhash Place. I was on duty from 8 PM St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 108 of 121 to 8 AM along with gunman Ct. Deepak and driver Ct. Praveen who at that time had not joined the duty and ASI Naresh was still present as driver. At about 7:54 PM I received the information from Commander­1 that one person had burnt his wife at BP block, Pitampura near Jhuggi No. 335, near Gopal Mandir Road and that his wife had been completely burnt. This call had been received from a mobile which number I do not recollect. On receipt of the said call we reached the BP block where we found a large number of public persons and we found one Manju aged about 40 years lying in front of Jhuggi No. 208 and her jethani Bimla was with her. When I asked about her husband, I was told by Manju and Bimla and he had run away (bhag gaya). I immediately took the injured and put her in the PCR Van and shifted her to the BSA hospital along with Bimla who accompanied her. On the way Manju told me that while she was cooking food her husband poured oil upon her and had set her on fire ("mai khana bana rahi thi aur mere pati ne mujhe tel dal ke aag laga di) and when I asked her the reason for the same she told me it was on account of domestic problem (Gharelu paresani).

On reaching the BSA hospital I got the injured Manju admitted in the hospital under the supervision Duty HC Ram Parvesh. After some time I made inquiry from the doctor on duty in the casualty and I was told that she was 89 percent burnt. I then made a call to the police station Maurya Enclave and informed the duty constable about the call and I was informed that the said call had been marked to SI Kuldeep. I then gave this information to commander ­1 through the wireless message and returned to the base......"

St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 109 of 121 (137) His testimony finds due corroboration from the PCR Form Ex.PW8/A according to which at 19:53:23 (7:53 PM) a call was received from mobile No. 9560188764 that BP Block, Pitampura, RP Market ke pass jhuggi me C­335 ke paas Gopal Mandir wale Road par ek aadmi ne apni patni ko jala diya hai jo puri trah jal chuki hai. Pursuant to the said information the PCR van reached the spot at 19:56:17 (7:56 PM) i.e. within three minutes. The wireless messages transmitted to the Control Room are reproduced as under:

"29/11/2012 20:05:00 call satya hai lekar hospital jaa rahe hain detail baad me. 29/11/2012 20:42:24 Manju W/o Maya Dass age 40 years R/o Jhuggi No. 208 D Block near Gopal Mandir Ko D/Ct. BSA Hospital Ke hawale hosh me admit kiya doctor sahab ne 89 percent jali bataya hai, iske sath iski jitahni hospital me hai. Pati ne tel dal kar aag laga ti thi"

(138) There is no reason to disbelieve the testimonies of the above witnesses including HC Bodh Raj (PW25) who is an official witness. He has proved that at the time while Manju was being admitted in the hospital, she was conscious. This lends credence to the testimonies of Dr. Diya Prashad (PW11) and Dr. Meet Kumar (PW12) has proved that Manju was conscious when she was brought to the hospital by PCR official and it was Manju herself who informed them that she had been burnt by her husband. This confirms that this is not an after thought.

(139) Further, the Medical Evidence on record confirms burn St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 110 of 121 injuries on the face including ears (right and left), neck anterior surface and left lateral side, right wrist and hand, left arm (distal half), forearm and hand of the accused Maya Deen which confirms his presence at the spot at the time of the incident. When this incriminating evidence was put to the accused he claimed that he was trying to save Manju and sustained injuries on his person, which cannot be the case. Had that been so, the nature of injuries would have been different and like other persons from the neighbourhood his first reaction would have been to save Manju by pouring water over her or by covering her in a blanket which he did not do. On the other hand the deceased Manju has been most consistent in her statement made to various persons and has explained that after setting her on fire when she tried to come out of Jhuggi in order to save herself the accused stood at the door and tried to push her inside and it is this which explains how he had received injuries on his hand and later side of the neck. This coupled with the fact that as soon as the neighbours and other persons gathered to save Manju and tried to drowse the fire by pouring water over her he ran away from the spot. Various public witnesses (Rajesh & Suresh) and so also the son of accused Maya Deen namely Praveen have specifically deposed that Maya Deen had escaped from the spot from the adjoining gali. If Maya Deen was trying to save Manju and had also sustained injuries in this process why did he run away from the spot leaving his wife to the mercy of the neighbours in a critical condition with 89% burns. This subsequent conduct of the accused Maya Deen in fleeing away from the spot St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 111 of 121 is relevant (as per the provisions of Section 8 of Indian Evidence Act) and is highly suspicious pointing out a finger of guilt towards him. (140) From the testimonies of the various public witnesses including the neighbours of the deceased and her son, it stands established that the accused Maya Deen who was a habitual alcoholic was suspecting the character of his wife of her having relations with another man and there were frequent quarrels between them and Maya Deen used to frequently beat her up. It also stands established that it was the accused Maya Deen who, on the date of incident i.e. 29.11.2013, had poured kerosene oil upon his wife Manju and set her on fire showing the intent and knowledge (as contemplated under Section 300 Indian Penal Code) of the accused Maya Deen to kill Manju.

(141) Ld. Defence Counsel has vehemently argued that at the time of incident the accused Maya Deen was under the influence of liquor and was not capable of knowing the nature and consequences of his act and therefore, benefit of the same should be given to the accused Maya Deen. In this regard I may observe that as per the provisions of Section 85 Indian Penal Code nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

(142) It is writ large that voluntarily intoxication can be no St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 112 of 121 defence. It is not the case of the accused that he had been compelled to consume alcohol against his will. Rather, he is a habitual alcoholic. The evidence on record confirms that even previously the accused had been beating his wife Manju since he had a suspicion that she had relations with another man, a fact which finds due corroboration from the testimony of his son Parveen (PW17) and it was the neighbours who had intervened. Hence under the given circumstances this act of intoxication being willful and voluntarily the provisions of Section 85 of Indian Penal Code would not apply. Further, the accused Maya Deen is also not entitle to benefit of Section 86 Indian Penal Code requiring a particular intent and knowledge. (143) The intention of the accused Maya Deen is required to be assessed from the manner in which the offence has been committed. In the present case the accused Maya Deen had used Kerosene oil as a medium with which he inflicted harm/ dangerous injuries on his wife. He poured kerosene oil on his wife Manju after which he set her on fire. The act in­ itself is so dangerous that a malicious intent of the accused is writ large and no benefit can be given to him for the same. This coupled with the fact that after the incident Maya Deen ran away from the spot confirms that he was fully capable of understanding the nature of his act. (144) This being the background, I hereby hold that the prosecution has been able to prove and establish the necessary intent and knowledge of the accused Maya Deen (as contemplated under Section 300 Indian Penal Code) to kill his wife Manju since the act of pouring kerosene oil on Manju St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 113 of 121 and setting her on fire in­itself is so dangerous that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death of Manju and this he did only because suspected that Manju was having relations with another man.

Apprehension and arrest of the accused:

(145) The case of the prosecution is that after the incident the accused Maya Deen ran away from the spot and it was only on 30.11.2012 in the evening that pursuant to a secret information the accused was apprehended from Peer Baba ki Mazar near RP Chowk. The apprehension and arrest of the accused has been duly proved by initial Investigating Officer SI Kuldeep (PW28) whose testimony finds due corroboration from the testimony of Ct. Vijender (PW27). It has been established that on 30.11.2012 at about 3:45 PM while SI Kuldeep and Ct. Vijender went in search of accused Mayadeen in the area and at around 6:15 PM when they were at RP Chowk, SI Kuldeep received a secret information that a person resembling Maya Deen was seen near the Peer Baba Mazar. SI Kuldeep then requested four­five public persons to join the police party but they refused after which they reached Peer Baba Mazar at about 6:30 PM where on the pointing out of the secret informer they apprehended one person who was trying to hide behind the mazar. The said person was interrogated him who disclosed his name as Maya Deen and on sustained interrogation the accused disclosed that he was a Raj Mistri by profession and had not gone St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 114 of 121 for work for about last one month and during this period he developed suspicion on his wife on account of her rude behaviour towards him. The accused further informed SI Kuldeep that on the date of incident he was in the state of intoxication when there was a verbal altercation between him and his wife and sine he was already aggrieved by her behaviour and conduct towards him, in a state of anger he picked up the kerosene bottle lying and poured kerosene oil on his wife Manju and then lit up the matchsticks. The accused also informed the Investigating Officer that while he (accused) stood on the door to prevent her escape outside in order to finish her and his wife was trying to escape outside, he received some burn injuries but on hearing the cries the neighbours gathered and he escaped.

Both SI Kuldeep and Ct. Vijender have proved that thereafter the accused Maya Deen was arrested vide memo Ex.PW27/A, his personal search was conducted vide memo Ex.PW27/B and his disclosure statement was recorded vide Ex.PW27/C. Since the accused Maya Deen was waving burn injuries he was taken to BSA Hospital by Ct. Vijender for his medical examination where the accused was admitted and treated. (146) The testimonies of both SI Kuldeep (PW28) and Ct. Vijender (PW27) find due corroboration from the testimonies of Dr. Shailendra Singh Deval (PW13), Dr. Kumar Akhilesh (PW14) and Dr. Manoj (PW15) who all have proved that on 30.11.2012 the patient Maya Deen was brought in the casualty by Ct. Bijender, 2067/NW with alleged history given by patient himself "being burnt at around 8 PM one day before i.e. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 115 of 121 29.11.2012". There is no reason to disbelieve the testimonies of SI Kuldeep and Ct. Vijender more so when it find independent corroboration from the testimonies of doctors who had treated the accused Maya Deen and the accused has failed to controvert the same.

(147) This being the background, I hereby hold that the prosecution has been able to successfully prove the apprehension and arrest of the accused Maya Deen.

FINAL CONCLUSION:

(148) In the case of Sharad Birdhichand Sarda ­vs­ State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 116 of 121 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(149) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following aspects stand established:

➢ That the accused Maya Deen a Raj Mistri by profession was residing along with his wife Smt. Manju (now deceased) and four children in Jhuggi No. D­208, GP Block, Pitampura, Delhi.

➢ That the accused Maya Deen was a habitual alcoholic and had entertained a suspicion on the character of Manju that she had relations with another man due to which reason he frequently quarreled with her and beat her up.

➢ That on 29.11.2012 at about 7:15 PM the accused Maya Deen came to his house under the influence of liquor and there was a verbal altercation between him and his wife Manju.

➢ That Maya Deen picked up the kerosene bottle lying in the room and poured kerosene oil upon Manju and set her on fire, after which he ran away from the spot.

➢ That on hearing the voices of Manju, her son Parveen who was present at the first floor of the house came down and on seeing the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 117 of 121 condition of his mother, he immediately went to the house of his neighbour Suresh and informed him about the incident.

➢ That in the meanwhile another neighbour Rajesh had also come on hearing the voices of Manju and picked up a bucket of water and poured on Manju on which the fire was drowsed.

➢ That large number of public persons gathered at the spot and Rajesh made a call at 100 number through the mobile phone bearing No. 9560188764 belonging to Basant Lal another neighbour of the accused.

➢ That the sister in law/ Jethani of Manju namely Smt. Vimla also came to the spot and changed her clothes and wrapped her in a bed sheet.

➢ That Manju was conscious at that time and she informed the neighbours including Rajesh that it was her husband Maya Deen who set her on fire after pouring kerosene oil on her.

➢ That in the meantime PCR officials also reached the spot and while Manju was being shifted to BSA Hospital she informed the PCR Van Incharge HC Bodh Raj that while she was cooking food her husband poured oil upon her and had set her on fire on account of domestic problems.

➢ That while Manju was brought to BSA Hospital with 89% burns she was conscious and had informed Dr. Divya Prashad and Dr. Meet Kumar that she had been burnt by her husband.

➢ That pursuant to the information SI Kuldeep reached BSA Hospital St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 118 of 121 where he recorded the statement of Manju who informed SI Kuldeep that it was her husband Maya Deen who poured kerosene oil upon her and set her on fire.

➢ That on the basis of the statement of Smt. Manju the present case was registered against the accused Maya Deen for the offence under Section 307 Indian Penal Code.

➢ That on the next day i.e. 30.11.2012 pursuant to a secret information the accused Maya Deen was apprehended from Peer Baba ki Mazar and was arrested.

➢ That on 4.12.2012 the Executive Magistrate Sh. Ramphal Singh recorded the statement of Manju in BSA Hospital after obtaining the fitness from the doctor.

➢ That Manju also informed the Executive Magistrate that her husband Maya Deen had burnt her.

➢ That on 6.12.2012 Manju was declared dead by the doctors and provisions of Section 302 Indian Penal Code were added in the charge sheet.

(150) The Medical Evidence on record establishes that the deceased Manju had suffered 89% burn injuries which were Homicidal in nature and the cause of death was due to septicemia consequent to burn injuries which were antemortem, recently caused before death and have been sustained by flames of fire. Further, the forensic evidence on record is also compatible to the prosecution. The Dying Declaration made by the deceased St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 119 of 121 first to the neighbours, then to the PCR Van Incharge, thereafter to doctors, then to SI Kuldeep and to the Executive Magistrate Sh. Ramphal Singh is highly incriminating qua the accused Maya Deen and nails him down conclusively as the person who had sprinkled kerosene oil on Manju and had set her ablaze after which he ran away from the spot.

(151) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence?

The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

(152) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 120 of 121 (153) In view of my above discussion, I hereby hold that the prosecution has been able to prove and establish the necessary intent and knowledge of the accused Maya Deen (as contemplated under Section 300 Indian Penal Code) to kill his wife Manju since the act of pouring kerosene oil on Manju and setting her on fire in­itself is so dangerous that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death of Manju and this he did only because suspected that Manju was having relations with another man. The accused Maya Deen is therefore held guilty of the offence punishable under Section 302 Indian Penal Code for which he is accordingly convicted.

(154) Be listed for arguments on sentence on 22.11.2013.

Announced in the open court                                   (Dr. KAMINI LAU)
Dated: 18.11.2013                                             ASJ­II(NW)/ ROHINI




St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave                       Page No. 121 of 121

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Session Case No. 35/2013 Unique Case ID No.: 02404R0056492013 State Vs. Maya Deen S/o Sh. Kamoda R/o Jhuggi No. D­208, GP Block, Pitampura, Delhi (Convicted) FIR No.: 339/2012 Police Station: Maurya Enclave Under Section: 302 Indian Penal Code Date of conviction: 18.11.2013 Arguments concluded on: 28.11.2013 Date on sentence: 30.11.2013 APPEARANCE:

Present: Sh. Shiv Kumar, Addl. Public Prosecutor for the State.

Convict Maya Deen in judicial custody with Sh. Deepak Sharma Advocate/ Amicus Curiae.

ORDER ON SENTENCE:

This unfortunate case relates to an incident where Maya Deen the husband of the victim Manju poured kerosene oil on her and set her on St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 122 of 121 fire only because he was suspicious of her character.

As per allegations on 29.11.2012 at about 7:30 PM at D­208, GP Block, Pitampura, Delhi the accused Maya Deen committed the murder of his wife Smt. Manju by pouring kerosene oil upon her and thereafter he set her on fire after lightening the match stick which he threw on her.

On the basis of the testimonies of the various prosecution witnesses including the neighbours of the deceased, the doctors who examined the victim, the PCR Van Incharge and also on the basis of medical, forensic and other circumstantial evidence on record, this Court vide a detail judgment dated 18.11.2013 held the accused Maya Deen guilty of the offence under Section 302 Indian Penal Code. Vide the above judgment this Court has observed that the prosecution has been able to successfully establish that the accused Maya Deen a Raj Mistri by profession was residing along with his wife Smt. Manju (now deceased) and four children in Jhuggi No. D­208, GP Block, Pitampura, Delhi; that the accused Maya Deen was a habitual alcoholic and had entertained a suspicion on the character of Manju, that she had relations with another man due to which reason he frequently quarreled with her and beat her up. It has also been established that on on 29.11.2012 at about 7:15 PM the accused Maya Deen came to his house under the influence of liquor and there was a verbal altercation between him and his wife Manju; that Maya Deen picked up the kerosene bottle lying in the room and poured kerosene oil upon Manju and set her on fire, after which he ran away from the spot; St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 123 of 121 that on hearing the voices of Manju, her son Parveen who was present at the first floor of the house came down and on seeing the condition of his mother, he immediately went to the house of his neighbour Suresh and informed him about the incident; that in the meanwhile another neighbour Rajesh had also come on hearing the voices of Manju and picked up a bucket of water and poured on Manju on which the fire was drowsed; that large number of public persons gathered at the spot and Rajesh made a call at 100 number through the mobile phone bearing No. 9560188764 belonging to Basant Lal another neighbour of the accused; that the sister in law/ Jethani of Manju namely Smt. Vimla also came to the spot and changed her clothes and wrapped her in a bed sheet. Further, it has been established that Manju was conscious at that time and she informed the neighbours including Rajesh that it was her husband Maya Deen who set her on fire after pouring kerosene oil on her; that in the meantime PCR officials also reached the spot and while Manju was being shifted to BSA Hospital she informed the PCR Van Incharge HC Bodh Raj that while she was cooking food her husband poured oil upon her and had set her on fire on account of domestic problems; that while Manju was brought to BSA Hospital with 89% burns she was conscious and had informed Dr. Divya Prashad and Dr. Meet Kumar that she had been burnt by her husband; that pursuant to the information SI Kuldeep reached BSA Hospital where he recorded the statement of Manju who informed SI Kuldeep that it was her husband Maya Deen who poured kerosene oil upon her and set her on fire; that on the basis St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 124 of 121 of the statement of Smt. Manju the present case was registered against the accused Maya Deen for the offence under Section 307 Indian Penal Code; that on the next day i.e. 30.11.2012 pursuant to a secret information the accused Maya Deen was apprehended from Peer Baba ki Mazar and was arrested; that on 4.12.2012 the Executive Magistrate Sh. Ramphal Singh recorded the statement of Manju in BSA Hospital after obtaining the fitness from the doctor; that Manju also informed the Executive Magistrate that her husband Maya Deen had burnt her; that on 6.12.2012 Manju was declared dead by the doctors and provisions of Section 302 Indian Penal Code were added in the charge sheet.

It has also been observed by this Court that the Medical Evidence on record established that the deceased Manju had suffered 89% burn injuries which were homicidal in nature and the cause of death was due to septicemia consequent to burn injuries which were antemortem, recently caused before death and have been sustained by flames of fire. Further, the forensic evidence on record is also found compatible to the prosecution. This Court has further observed that the Dying Declaration made by the deceased first to the neighbours, then to the PCR Van Incharge, thereafter to doctors, then to SI Kuldeep and to the Executive Magistrate Sh. Ramphal Singh is highly incriminating qua the accused Maya Deen and nails him down conclusively as the person who had sprinkled kerosene oil on Manju and had set her ablaze after which he ran away from the spot.

This being the background, this Court has held that the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 125 of 121 prosecution has been able to prove and establish the necessary intent and knowledge of the accused Maya Deen (as contemplated under Section 300 Indian Penal Code) to kill his wife Manju since the act of pouring kerosene oil on Manju and setting her on fire in­itself is so dangerous that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death of Manju and this he did only because suspected that Manju was having relations with another man. Therefore, the accused Maya Deen has been held guilty of the offence under punishable Section 302 Indian Penal Code and accordingly convicted.

Heard arguments on the point of sentence. The convict Maya Deen is stated to be aged about 44 years having a family comprising of aged parents, two sons and two daughters eldest of whom is only 14 years and youngest is 4 years. He is totally illiterate and is a mason by profession. The Ld. Amicus Curiae has vehemently argued that the convict Maya Deen is a first time offender having clean antecedents. He prays that a lenient view be taken against the convict.

The Ld. Addl. Public Prosecutor on the other hand has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Maya Deen. It is also stated that the convict has not been able to show any mitigating St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 126 of 121 circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.

I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.

The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:­

(a) Where the murder has been committed after previous planning and involves extreme brutality; or

(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:­ St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 127 of 121

(a) That the offence was committed under the influence of extreme mental or emotional disturbance;

(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;

(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;

(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;

(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;

(f) That the accused acted under the duress or domination of another person; and

(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:­

(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.

(b) When the murder of a large number of persons of a St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 128 of 121 particular caste, community, or locality is committed.

(c) When the murder of an innocent child, a helpless woman is committed.

It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.

The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.

Now I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case are that the convict Maya Deen has no previous criminal involvement and has the responsibility of four children. The aggravating factors are that the St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 129 of 121 deceased Manju was the wife of convict Maya Deen a habitual alcoholic who used to suspect her character alleging that she was having relations with another man and frequently abused her and beat her up. It is borne out from the evidence on record the deceased Manju had tried her best to save her marriage and despite the conduct of the convict, she continued to reside with him.

Though what Maya Deen has done does not entitle him to any leniency and severest of punishment is required to be given to him yet keeping in view the circumstances of the case, I feel that great injustice would be done to his four children two of which are girls hardly aged 6 years and 4 years in case if a harsh view is taken and hence as a great scholar once said Justice has to be Tempered with Mercy. The convict Maya Deen is hence sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/­ (Rs. Ten Thousand) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.

Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.

The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New St. Vs. Maya Deen, FIR No. 339/12, PS Maurya Enclave Page No. 130 of 121 Delhi.

Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                  (Dr. KAMINI LAU)
Dated: 30.11.2013                                           ASJ­II(NW)/ ROHINI 




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