Delhi District Court
State vs . 1. Baljeet Verma S/O Chhedi Lal, on 10 March, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No.101/08
ID No.02404R0659522007
FIR No.628/07
PS Punjabi Bagh
U/s 302/34 IPC
State Vs. 1. Baljeet Verma S/o Chhedi Lal,
R/o 2/25, Madangir, Delhi.
2. Smt. Babli W/o Baljeet Verma,
R/o 2/25, Madangir, Delhi.
3. Smt. Jamuna W/o Uma Shankar,
R/o F-219, J.J. Colony,
Madipur, Delhi.
4. Miss Arti D/o Uma Shankar,
R/o F-219, J.J. Colony,
Madipur, Delhi.
5. Miss Poonam D/o Uma Shankar,
R/o F-219, J.J. Colony,
Madipur, Delhi.
Date of Institution in Sessions Court : 27.03.2008
Date of transfer to this Court : 01.12.2008
Date of Judgment : 01.03.2011
State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52
2
JUDGEMENT
1. In brief the prosecution story is that on 09.09.2007, on receipt of DD No.40, ASI Gian Singh along with Ct. Balaji reached first floor of the H.No. F217, J.J. Colony, Madipur. From where, it was revealed that injured had already been removed to Balaji Hospital, Paschim Vihar. Thereafter, leaving Ct. Balaji at the spot, ASI Gian Singh reached the Balaji Hospital, where HC Ghanshyam was already present, where he obtained the MLC of the injured Anuradha W/o Ram Kumar, who was opined fit for statement by the concerned doctor, and thereafter, ASI Gian Singh recorded the following statement of the injured Anuradha, which read as under:-
"That on the date of the incident her relatives masi sas Babli and her mausera sasur Baljeet had come from Madangir.
She had got fixed one iron grill for the safety of her two small children, regarding which her mother-in-law Jamuna, father-in-
law Uma Shankar (since deceased), Nanand Poonam and Arti and his mamere sas and sasur, who had come from Madangir, State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 3 and all of them were objecting to the said iron grill and at around 7:00 p.m, when she did not agree with them, all of them became angry and started quarreling with her and her Nanand Poonam came with the bottle of kerosene oil and thereafter Babli, Baljeet also caught hold the bottle of kerosene oil along with Poonam and thereafter Baljeet poured the kerosene oil over her, and Baljeet lighted the match and put her on fire. While all of them had caught hold of her and she stated that all of them had done so in order to kill her".
2. On the said statement, a rukka was written by ASI Gian Singh and on the basis of said rukka, FIR U/s 307/34 IPC was registered at PS Punjabi Bagh and the investigation(s) were taken up.
3. The crime team was also called to the spot. Photographs of the spot were also taken. The burnt clothes and the burnt match sticks and plastic bottle and cap was also seized from the spot. The iron grill was also seized from the spot along with the sample of earth control and earth. The other relevant exhibits were also seized. At State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 4 the Balaji Action Hospital, the sealed clothes of the injured were also seized and thereafter, all the exhibits were deposited in the malkhana.
4. At the instance of the husband of injured Anuradha, Ram Kumar, the site plan of the spot was prepared. His statement was also recorded, in which he disclosed that he had some dispute with his father with regard to the house in question, and he wanted to vacate the house from him.
5. Thereafter, Anuradha was shifted to Safdarjung Hospital for further management.
6. Thereafter, ASI Gain Singh arrested all the accused persons, except accused Uma Shankar and their separate disclosure statements were also recorded.
7. Later on, Anuradha expired at Safdarjung Hospital on 10.09.2007, and section 302 IPC was added in the present FIR, and the investigation(s) were taken up by Inspector Ram Singh. The dead body was shifted to the mortuary, whereafter her postmortem was got conducted. The scaled site plan of the spot was also got prepared. State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 5
8. Relevant exhibits were sent to CFSL Kolkatta for forensic evaluation. All the relevant evidence pertaining to the present case was collected by the I.O. Another accused Uma Shankar was also arrested.
9. On completion of the investigation(s), a charge sheet U/s 302/34 IPC was filed against all the accused persons.
10. Upon committal of the case to the court of Sessions, it was reported that accused Uma Shankar had expired. Consequently, proceedings against the said accused were abated vide order, dt. 08.09.2008.
11. Thereafter, vide order, dt. 31.05.2008, a charge U/s 302/34 IPC was framed against all the remaining five accused persons, to which they pleaded not guilty and claimed trial.
12. Thereafter, the prosecution in support of its case has examined 19 witnesses. PW1 is Smt. Chanda Patel, the mother of the deceased, PW2 is Ram Kumar, husband of the deceased, PW3 is SI Manohar Lal, who has proved the scaled site plan, Ex.PW3/A, PW4 is State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 6 Naresh Khandelwal, the person, who had made call on 100, regarding the incident, PW5 is Dr. M.K. Wahi, the autopsy surgeon, who has proved the postmortem report of the deceased, Ex.PW5/A, PW6 is Dr. Sanjay Kaushik, who had opined that the patient was fit for statement on 09.09.2007 at Balaji Action Hospital, and in whose presence ASI Gian Singh recorded the dying declaration statement of the deceased, PW7 is Ct. Arjun Singh, who has proved the DD No.40, Ex.PW7/A, PW8 is SI Anil Kumar, Incharge Crime Team, who has proved his crime team report, Ex.PW8/A, PW9 is Ct. Rakesh Kumar, who has proved the photographs of the scene of crime, which are Ex.PW9/1 to Ex.PW9/8 and negatives, as Ex.PW9/A1 to Ex.PW9/A8, PW10 is HC Ajay Pal, who has proved the copy of the FIR, Ex.PW10/B, PW11 is ASI Jai Bhagwan, DD writer, posted at PP Madipur, who has proved the DD No.7PP, dt. 09.09.2007, Ex.PW11/A, PW12 is Ct. Sukhbir also posted as DD writer, who has proved the DD No.21, dt. 10.09.2007, Ex.PW12/A, PW13 is W/Ct. Rajni, who was present at the time of arrest of female accused persons in the present case, State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 7 PW14 is Ct. Balaji Munde, who had accompanied ASI Gian Singh to the spot on receipt of DD No.40, on 09.09.2007, PW15 is HC Amit Kumar, formal witness of arrest, PW16 is Inspector Ram Singh, the I.O of this case, who has deposed regarding the investigation(s), as were carried out by him, during the course of the present case, PW17 is HC Amarpal Singh, who has proved the PCR form, Ex.PW17/A, PW18 is ASI Gian Singh, the most material witness of the prosecution, who had recorded the dying declaration of the deceased, Ex.PW2/D, PW19 is HC Vijay Singh, who is a formal witness.
13. Thereafter separate statement of all the accused persons, U/s 313 Cr. PC were recorded, in which the defence of all the accused persons was that they had been falsely implicated in this case and they were innocent and they were not responsible for the death of the deceased in any way and they also chose to lead evidence in defence.
14. In defence, the accused persons have examined three witnesses. DW1 is Bhupender Singh, the neighbour, DW2 is Mukesh State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 8 Kumar, another neighbour, PW3 is Rahul another neighbour.
15. I have heard the Ld. Defence counsel Sh. Firoz Khan Ghazi on behalf of all the accused persons and Sh. A.K. Srivastava, Ld. Addl. PP for the state and perused the record.
16. The Ld. Defence counsel has argued that the entire case of the prosecution is based upon the alleged dying declaration of the deceased Anuradha, Ex.PW2/D, which is highly doubtful in nature, as the circumstances in which it was allegedly recorded is shrouded in mystery, as he has argued that the said dying declaration cannot be relied upon, as there is no independent corroboration, regarding the contents of the said dying declaration, as PW2 Ram Kumar, the husband of the deceased, who was also an alleged attesting witness to the said dying declaration has turned hostile and has not supported the prosecution and the testimony of the doctor, who had allegedly attested the said dying declaration is also not reliable that is the testimony of PW6 Dr. Sanjay Kaushik, as number of contradictions have come out in his cross-examination, which shows that he had State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 9 prepared the MLC at the instance of I.O ASI Gian Singh and from the testimony of PW2 Ram Kumar, it was clear that the deceased, when she was being removed to the hospital was not even speaking and was not in conscious state of affairs, therefore, she was not in a position to make any dying declaration.
17. He has further argued that the deceased as per the testimony of PW6 Dr. Sanjay Kaushik was suffering from 100% burn injuries on her hands and feet and therefore it was impossible for her to put her signatures on the said alleged dying declaration, Ex.PW2/D, and as a second limb to this argument he has argued that any victim of burn would definitely resist his burning process, therefore, the palms of her hands would have been definitely burnt in the process of saving herself, which is not the case.
18. He has further argued that as per the MLCs of all the accused persons, it is clear that none of the accused persons also suffered any burn injuries, which is not possible, as admittedly the place where the incident took place was a cramped place and if the burn incident as State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 10 projected by the prosecution would have taken place, then all the accused persons would have also got some flame injuries in the process.
19. He has further argued that there is no independent corroboration to the dying declaration of the deceased Anuradha and the only independent witness PW2 Ram Kumar her husband has turned hostile and has not supported the prosecution story, despite lengthy cross-examination on this aspect by the Ld. Addl. PP.
20. He has further argued that ASI Gian Singh did not call any SDM or independent official to record the alleged dying declaration of the deceased, as he had ample time to call one, instead he allegedly recorded her dying declaration, which is not a valid dying declaration, as the same had been recorded before a police officer, which is hit by Section 162 of the Cr.PC, and it is not safe to convict the accused on the basis of such kind of dying declaration.
21. He has further argued that the son of the deceased was not examined, though it has come in the testimony of the prosecution State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 11 witnesses, that the elder son of the deceased was 9 years old and he would have been the best evidence to support the prosecution story and the circumstances relied upon by the prosecution. He has further argued that the DD No.40, proved on the record clearly proves that the deceased had burnt herself, which is the case of the defence and rather the same proves the case of the defence.
22. He has further argued relying upon the judgment 2010 (3) JCC 2181, that the perusal of the site plan, Ex.PW3/A, would show that the occurrence took place at the point A and in such a cramped place, it was impossible for the seven persons including the deceased to stand without any free movement of hands, so as to cause the burn injuries to the deceased, as it was next to impossible, considering the realities and broad probabilities of happening of the event in such a cramped place. Therefore, he has argued that the dying declaration in the present case is not a reliable piece of evidence, without any corroboration to convict the accused persons.
23. On the other hand, Ld. Addl. PP for the state has refuted the State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 12 aforesaid arguments of the defence and has argued that the dying declaration in the present case had been recorded by ASI Gian Singh, PW18 without waisting any time, and if he had waited for the SDM to arrive or to intimate him, then the vital evidence in this case would have been destroyed and that the said dying declaration had been attested by an independent witness, namely, PW6 Dr. Sanjay Kaushik, who had also opined that the patient was fit for statement in the MLC of the deceased, and he had also attested the said dying declaration, which lends assurance to the testimony of PW18 ASI Gian Singh. He has further argued that PW2 Ram Kumar also admits that the said dying declaration also bears his signatures and the endorsement made by him at point B in his testimony as PW2 and he also admitted that the dying declaration was filled up from point X to X, when he put his signatures at point A.
24. He has also argued that PW2 Ram Kumar has also admitted that his father used to tell himself and his wife to vacate the house, where they were residing i.e. H.No. F217, J.J. Colony, Madipur, and State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 13 due to this there used to be constant quarrel and tension between them, and he has further argued that this witness has also admitted that they were residing on the first floor and they had two minor children, aged 9 years and 2 years, respectively, and there was no grill on the staircase and it was a matter of concern for them, considering the safety of their children, they wanted to install a grill on the staircase, which was refused by his father. He has also argued that the prosecution has also proved the publication of disowning the deceased and the accused by the father of PW2, Uma Shankar and all these facts cumulatively points out towards strong motive for committing the crime in question.
25. He has further argued that it is settled law that, where the dying declaration had been made to a police official, the same can be relied upon, if the same is found to be trustworthy on the appreciation of overall facts and circumstances of the case.
26. Regarding the DD No.40, relied upon by the defence, he has argued that the same is based upon hearsay evidence, as PW4 has State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 14 been examined by the prosecution on this aspect, namely, Naresh Khandelwal, who had made the call at 100 number and he was not the witness of occurrence and he himself has admitted that he had made the call at the asking of the public persons, therefore, not much reliance can be placed upon the same.
27. Regarding the site plan, he has argued that the perusal of the site plan, Ex.PW3/A, shows that the place A had sufficient space to accommodate seven persons, including the deceased and the accused persons were having sufficient freedom of movement of their hands and feet to commit the offence in question.
28. Consequently, relying upon the aforesaid arguments, he has argued that the prosecution has been able to prove its case against the accused persons beyond any shadow of doubt, and the dying declaration in this case was a truthful piece of evidence made by a witness, who was on the death bed, having suffered 100% burn injuries, and at that time she was facing imminent death and at that time she had no chance to fabricate false evidence against anyone, State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 15 as she knew that she was going to die very soon and was to meet the lord. Consequently, he has argued that all the accused persons deserves to be convicted.
29. I have gone through the rival contentions.
30. The first question, which needs to be resolved in the present case is whether the alleged dying declaration relied upon by the prosecution, Ex.PW2/D can be said to be a false dying declaration or a true one, as it has been vehemently argued by the Ld. Defence counsel that since the dying declaration had been recorded by police official and not before any SDM or Magistrate or any other independent person. Further, the said dying declaration was hit by section 162 of the Cr. PC, as being made to a police officer, during the investigations.
31. It has been held in judgments 2003 Cri. L.J and AIR 1999 Supreme Court 3695.In the judgment 2003 Cri.L.J 1254 , it has been held in para 21 that:
State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 16 "It is true that PW 11 and PW14 were police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum. However, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath Vs. State of Haryana, AIR 1997 SC 234 on receiving message from the hospital that a person with gun shot injuries had been admitted a head constable rushed to the place after making entry in the police register @ page Cri. L.J 1261 and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja and Anr.V. State of Madhya Pradesh, 1976(2) SCR 764, wherein the statement made by the deceased to the investigating officer at the police station by way of First Information Report, which was recorded in writing, was held to be admissible in State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 17 evidence.
32. It has been further held in AIR 1999 SC 3695 in para 8 that:
"In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. In this particular case, the police also took the statement of the deceased which was treated as FIR and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborates each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 18 the accused persons and the prosecution case must be held to have been established beyond reasonable doubt".
33. In view of the afore law laid down by the Hon'ble Supreme Court, there is no bar to recording of a dying declaration by a police official.
34. The entire case of the prosecution rests upon the testimony of PW18 ASI Gian Singh and PW6 Dr. Sanjay Kaushik.
35. PW18 ASI Gian Singh has deposed that on 09.09.2005, he was posted at PP Madipur, PS Punjabi Bagh, Delhi. On that day, DD entry No.40, Ex.PW7/A was marked to him and he along with Ct. Balaji left for the spot. They reached at F-217, First Floor, J.J. Colony, Madipur. On reaching the spot, it was revealed that injured had been shifted to Balaji Action Hospital, Paschim Vihar. The pieces of burnt cloth, match sticks, plastic bottle and one cap were lying at the spot. He left the Ct. Balaji at the spot to guard the spot and he reached at Balaji Action Hospital. HC Ghan Shyam met him there. He collected MLC, Ex.PW6/A of injured, namely, Anuradha. He State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 19 requested the doctor to opine about the fitness of the injured Anuradha. The doctor observed that the injured Anuradha was having burns injury and was fit for statement and this fact was mentioned by the doctor on MLC, Ex.PW6/A at point B at 8:00 p.m. Husband of deceased, namely, Ram Kumar was also present in the hospital at that time. He was also present at the time of recording the said endorsement fit for statement. Thereafter, in the presence of the doctor and Mr. Ram Kumar, husband of injured Anuradha, he recorded her statement. The statement, which he recorded is Ex.PW2/D, which was signed by Anuradha at point Z, after he had read over her statement to her. The doctor also made endorsement on the statement. His endorsement is Ex.PW6/B at point C. The husband of injured Anuradha also signed the statement and mentioned that the statement of his wife was recorded in his presence.
36. PW6 Dr. Sanjay Kaushik, who made attestation on the dying declaration, Ex.PW2/D and who had opined that the patient was fit for State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 20 statement, has deposed that on 09.09.2007, he was posted as RMO in Sri Balaji Action Medical Institute. On that day, patient Anuradha W/o Ram Kumar, aged about 30 years, R/0 F-217, J.J. Colony, Madipur, Delhi was brought to hospital by Ram Kumar, husband of the patient at about 7:30 p.m, with the alleged history of burn. He examined the patient. She was oriented, conscious and was able to speak. He declared her fit for statement on the MLC at 8:00 p.m. His detailed MLC in this regard was Ex.PW6/A, which was in his hand and was bearing his signature at point A and B. Patient was having 100% burn injuries, B.P was 110/70, pulse rate was 130 per minute. Smell of kerosene was coming from the patient.
ASI Gian Singh from PP Madipur reached the hospital. He asked him to give opinion, regarding the fitness of patient Anuradha to give statement. On his request, he gave his opinion mentioned on the MLC. Thereafter, I.O ASI Gian Singh recorded the statement of the patient Anuradha in his presence, as per version given by the patient. Only husband of the patient Anuradha was present near the bed and State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 21 no other relative were present, when I.O recorded the statement of the patient in his presence. The statement was read over by the I.O to the patient and thereafter patient signed her statement, Ex.PW2/D, at point Z. He made his endorsement on the same and the same was Ex.PW6/B, which was bearing his signatures at point C and mentioned the time as 8:10 p.m, under his signatures.
37. The dying declaration allegedly made by the deceased Anuradha reads as under:-
"That on the date of the incident her relatives masi sas Babli and her mausera sasur Baljeet had come from Madangir.
She had got fixed one iron grill for the safety of her two small children, regarding which her mother-in-law Jamuna, father- in-law Uma Shankar (since deceased), Nanand Poonam and Arti and his mamere sas and sasur, who had come from Madangir, and all of them were objecting to the said iron grill and at around 7:00 p.m, when she did not agree with them, all of them became angry and started quarreling with her and her Nanand Poonam came with the bottle of kerosene oil and thereafter Babli, Baljeet also caught hold the bottle of kerosene oil State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 22 along with Poonam and thereafter Baljeet poured the kerosene oil over her, and Baljeet lighted the match and put her on fire. While all of them had caught hold of her and she stated that all of them had done so in order to kill her".
38. Ld. Counsel for the accused Sh. Firoz Khan Gazi has assailed the alleged dying declaration, Ex.PW2/D, on the following grounds:-
a. That there is no independent corroboration, regarding the said dying declaration, Ex.PW2/D, which has been proved by the prosecution, as in the present case, the most material witness of the prosecution, PW2 Ram Kumar, the husband of the deceased had turned hostile and had not supported the prosecution story.
b. That the MLC of the deceased, Ex.PW6/A had been manipulated at the instance of ASI Gian Singh, as the doctor after writing the word drowsy at point Z had made cutting by writing conscious oriented, which shows his malafides, and that PW2 had clearly stated that his wife was not speaking anything at the time, when he admitted her in the hospital. Therefore, deceased was not in a condition to make any dying declaration, which clearly dilutes the State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 23 credibility of the said dying declaration, nor the same could be relied upon.
c. That no SDM or any Magistrate was called for recording the statement of the deceased, despite the fact that deceased had died much later on, which also impinges upon the credibility of the same, as no explanation had been furnished by the prosecution in this regard.
d. That the condition of the deceased at that time was such that she was having 100% burn injuries and was not conscious and as such she could not have made any dying declaration.
e. That the hands of the deceased Anuradha were in totally burnt condition, therefore, she could not have put her signatures on the statement, Ex.PW2/D.
39. Regarding the first contention of the Ld. Defence counsel, regarding the dying declaration, Ex.PW2/D, It has been held by the Hon'ble Supreme Court in Judgment Chandra Vs. Shivjee(1999)6 SCC 63 "Dying Declaration if truthful may alone form the basis of State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 24 conviction without corroboration". Further it has been held in judgment "Gulam Hussain Vs. State (2000) 7, SCC 254, the statement has to be subjected to clothes scrutiny before it is accepted as truthful.
Further it has been held in judgment "Khushal Rao Vs. State of Bombay AIR 1958 SC 222 "that a Dying Declaration stands on the same footing has another piece of evidence and it has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence."
It is settled law as held above, that if dying declaration is truthful, the same may alone form basis of conviction without corroboration
40. However, in the present case, the dying declaration recorded by ASI Gian Singh finds corroboration from the testimony of PW6 Dr. Sanjay Kaushik, whose deposition has been discussed above. The aforesaid doctor Sanjay Kaushik was extensively cross-examined on behalf of Ld. Defence counsel. Nothing has come out in his cross- State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 25 examination, which shows that he was an biased witness or had prepared an incorrect MLC at the instance of the I.O.
41. Though, he had admitted that it was correct that word drowsy was written at point Z, on MLC Ex.PW6/A, but he clarified that the same was mistake. He also admitted that two staff nurses and ward boys and sweepers were also used to be on duty along with him. The Ld. Defence counsel has argued that those staff nurses were not made witnesses to the dying declaration. The said argument is without any substance, as the I.O was not bound to make everybody found and present in the hospital as a witness to the dying declaration. The MLC, Ex.PW6/A shows that at the time of admission, the patient was conscious and oriented and his vitals were not bad, as B.P was 110/70, pulse was 30 per minute and respiratory rate was 22 per minute. Even, otherwise, as per P.M report, Ex.PW5/A, it is not reported that the internal organs of the deceased had been damaged due to singing on receiving the burn injuries. Therefore, it shows that the brain of the deceased was in proper State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 26 condition, therefore, she was in a fit condition to make dying declaration, and further it has also been reported in the P.M report that smell of kerosene was present on the scalp and on the hair and there was blackening blistening, burnt area over face, neck, front of the chest, abdomen, back of the chest and abdomen and there was a spared area i.e. both palms of hand, which also corroborates the prosecution story that the deceased was in a fit condition to put her signatures on dying declaration, Ex.PW2/D and further the blackening of the body is of sure sign of receiving burns by kerosene or other inflammable substance like petrol etc.
42. The doctor Sanjay Kaushik also stated that the patient was also able to speak and smell of kerosene was coming from the patient and he made endorsement on the dying declaration at point C at 8:10 p.m, which endorsement is Ex.PW6/B, and that the statement was read over to the patient by the I.O and thereafter patient signed at point Z, Ex.PW2/D. In the present case, there is no reason why would I.O or the doctor would record a false dying declaration of the deceased, as State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 27 they had no axe to grind against the accused persons. It is not the case of the defence that the I.O or the doctor was having any previous enmity with them.
43. Further, even the hostile witness PW2 in his examination-in- chief has admitted that when on receiving the call, regarding the burning of his wife, he went to his house. At that time, she was speaking and thereafter he covered her with bed sheet and took her to the hospital. Though, later on his cross-examination on 25.08.2009 by Ld. Defence counsel, he stated that she became unconscious and was shifted to the hospital. However, from the testimony of ASI Gian Singh, PW6 and PW2 husband of the deceased, it appears that at the time of recording of her dying declaration, the deceased was in conscious state of affairs.
44. Even, PW2 Ram Kumar, her husband in his cross-examination, carried out by the Ld. Addl. PP, has admitted that he had put his signatures at point A and the words "yahe bayan mere samne diya hai" was in his hand writing, and when he put his signatures at point State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 28 A and wrote the words encircled at point B on Ex.PW2/D, at that time, Ex.PW2/D was written from point X to X. Though, in his rest of the statement, he resiled from the prosecution story, and stated that the said statement was not recorded in his presence, but it is settled law that even the testimony of the hostile witness can be considered to the extent his version is found to be dependable on careful scrutiny of his evidence, as per judgment AIR 1991 SC 1853 Khujji @ Surender Tiwari Vs State of M.P. From the aforesaid testimony of husband of the deceased, PW2, it was clear that the dying declaration of the deceased was recorded in his presence by the ASI Gian Singh, otherwise there was no reason, why would his signatures will appear on Ex.PW2/D and why would he write himself in his own hand writings the words "yahe bayan mere samne diya hai".
45. Therefore, it appears that the said witness had been later on won over by his family members, due to some family compulsions. In view of the aforesaid discussion, the dying declaration, recorded by ASI Gian Singh is sufficiently corroborated by the testimony of PW6 State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 29 Dr. Sanjay Kaushik and even by the husband of the deceased PW2 to the extent discussed above, and therefore, the same can be safely relied upon. Further, even the mother of the deceased PW1 Chanda Patel has deposed that after coming to know that her daughter had been shifted to Balaji Hospital, she also visited her in the hospital, where her daughter told her that she was getting grills affixed on the stairs, when the accused persons quarreled with her and poured kerosene oil over her and set her on fire. Nothing has come out in her cross-examination, which could show that she was lying on this aspect, as she was the nature witness, with whom the deceased would have confided, regarding her sordid ordeal, when her mother went to visit her in the hospital after coming to know of her, receiving the burn injuries. The said narration of incident to her mother by the deceased, immediately after the incident is a relevant fact, U/s 8 of the Evidence Act, to show the conduct of the deceased immediately after the incident.
46. PW2 has further admitted in his examination-in-chief that he State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 30 and his wife were having dispute with his father, regarding the house, where he was residing with his wife and kids i.e the H.No. F-217 and his mother and father and others used to tell him and his wife and his children to vacate the said house, and that he even talked to his father once alone, and he told him that if there was any need to vacate the house, then he should be given 5-6 months to vacate, so that he is able to built his own house.
He also admitted that he also came to know that his father disowned him from his property and he had also got published one notice in the newspaper in this regard, and the cutting of the newspaper was Ex.PW2/C, and in his cross-examination by the Ld. Addl. PP, he admitted that when his parents directed him to vacate the premises, he refused to vacate and on this, there was quarrel between his parents, himself and his wife and that he had two children, elder one was nine years old and younger one two years, and there was no grill on the staircase, as there was no grill, and therefore, it was always the matter of concern for them, and due to State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 31 small kids, they wanted to install grills on the stairs, but his father had refused and he had brought the prepared iron grill case to his house, and the same was kept on the roof of their house, on refusal by his father, and he also admitted that the accused persons were not present in the last ceremonies of his wife.
47. The aforesaid deposition of PW2 is found to be dependable in view of the aforesaid judgment AIR 1991 SC 1853 (supra), therefore, the same can be relied upon. The aforesaid facts clearly shows that the deceased and PW2 were not having good relations with his father, who wanted them to vacate the house No. F-217, and due to this, there was quarrel between them, and PW2 and his family was disowned by his father by publishing a notice in the newspaper, and also that PW2 and his wife wanted to install an iron grill for the safety of their children, as they were small and they were residing on the first floor. Therefore, they wanted to install grill on the staircase for the safety of their children. The aforesaid circumstances clearly establishes a strong feeling of rancour between the PW2 and his State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 32 father, and establishes a strong motive on the part of the family of his father to eliminate the deceased, who did not vacate the premises to their liking and was also installing grill, despite their objection. This part of testimony of PW2 strongly corroborates the dying declaration of the deceased, in which she also has stated that she was burnt during the process of installing grill by the accused persons, for the safety of her children. The said fact, as deposed by PW2 is a relevant fact, U/s 8 of the Evidence Act to show the motive on part of the accused persons.
48. Further, regarding the argument of Ld. Defence counsel that no SDM or Magistrate was called for recording the dying declaration of the deceased, therefore, the same cannot be relied upon. The said argument is without any substance, as in the present case the dying declaration was recorded by ASI Gian Singh, immediately after the admission of the deceased into the hospital, without waisting any time in the presence of independent witness PW6 Dr. Sanjay Kaushik and the husband of the deceased PW Ram Kumar, and at that time as per State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 33 the MLC, the patient was suffering from burn injuries all over the body with almost 100% burn injuries. If, the ASI Gain Singh would have waisted his time in calling the SDM in the evening hours at around 8:00 p.m, then the most vital in this case would have been destroyed, as it is common knowledge that the initial hours in burn cases are most important, as the person looses consciousness very fast, more so when a person is having 100% burn injuries, the consciousness of the person withers away very fast after the lapse of time, due to the shock of the injuries and the fact that there is heavy amount of loss of body fluids, and therefore, if the statement of the person is not recorded immediately, then there are strong chances of the person, loosing sensorium and in this case, if the I.O would have waited for the SDM to arrive, then the dying declaration of the deceased Anuradha would not have seen the light of the day. Rather, the I.O made a sensible move to record the said dying declaration himself.
49. Regarding the next argument of the Ld. Defence counsel that the hands and feet of the deceased were in totally burnt condition, State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 34 therefore, she was not in a position to put signatures on the dying declaration and the said dying declaration was fabricated one. This argument was without any substance, as all the material witness, including PW18 ASI Gian Singh, PW6 Dr. Sanjay Kaushik and PW2 Ram Kumar have stated that deceased had put her signatures on the Ex.PW2/D in their presence. Not a single suggestion has been given in their cross-examination that the signatures appearing on the Ex.PW2/D were not of Anuradha. Further, as per the MLC, Ex.PW6/A, at point X, it has been mentioned that the patient was admitted in the hospital with superficial to deep burn injuries all over body, except both hand and feet, and even the same has been illustrated on the body diagrams on the back side of the MLC, where all the external surface of the body has been shaded to show the burnt areas of the body, except hand and feet and this shows that the hand and the feet of the deceased were not burnt, therefore, she was in a fit condition to put her signatures on her dying declaration, Ex.PW2/D. State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 35
50. Regarding the second limb of this argument of the Ld. Defence counsel that if the deceased would have been burnt by the accused persons, even then she would have tried to save her by putting of the fire and in that process her hands and feet would have been definitely burnt. This argument of the Ld. Defence counsel is also without any substance, as it is not necessary in all the cases that the victim should try to douse the fire with her hands. Especially when she had been pinned down by the accused persons by burning her by putting kerosene oil upon her, in that stage, nobody can predict how a person would behave, whether he would put of the fire or he would go into the state of shock.
51. Regarding the next argument of the Ld. Defence counsel, relying upon the PCR form, Ex.PW17/A, in which it is written at H.No.217, F-Block, Madipur, "Ek Aurat Ne Aag Laga Li", and further upon the endorsement made by the PCR officials in the said PCR form that one Anuradha W/o Ram Kumar had burnt herself. The Ld. Counsel had argued that the aforesaid fact mentioned in the PCR State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 36 form itself shows that the deceased had put kerosene oil upon herself and committed suicide, which is the very document of the prosecution and this circumstance alone points out towards the fact that the alleged dying declaration of the deceased, Ex.PW2/D was a false and concocted piece of evidence, as the PCR form is the first piece of evidence, in any case, when a call is made to 100 number, and the said very document shows that the deceased Anuradha had poured kerosene oil over her and committed suicide and the prosecution had falsely entangled the present accused persons in this case.
52. The said argument is not tenable, as it is nowhere written in the PCR form, as to what was the basis of the said information, recorded or written there. Further, from the perusal of testimony of PW4 Naresh Khandelwal, who was the informant, who informed the police, regarding the incident has deposed that he was having his shop at F- 222, Madipur, J.J. Colony, Delhi and the telephone No.25217664 was installed at his shop. On 09.09.2007, there was a crowd in their gali and at the instance of the people, he called at 100 number from his State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 37 abovesaid number. He had not witnessed the occurrence. He only heard the noise of 'Aag Lag Gayi Aag Lag Gayi", and in his cross- examination, he has stated that he cannot say on whose asking he made a call to 100 number. Therefore, it appears that the aforesaid information, appearing in the PCR form had been reduced into writing, supplied by PW4 to the PCR about the incident and admittedly, even as per the testimony of PW6, he was not the eye witness to the incident, as he has himself stated that someone informed him i.e. on the asking of some public persons, he had made the call at 100 number, and he had not witnessed the occurrence.
53. Therefore, his information was based upon second hand observation or hearsay, or it can be said that the information was not supplied to him or gathered by him on the basis of direct observation by him, and the endorsement recorded by the PCR officials on the said PCR form, Ex.PW17/A, seems to have been made by them, based upon second hand observation and same carries no weight, as neither the deceased was present at the spot, when the PCR Van State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 38 reached there, nor deceased had made any statement in their presence. Consequently, the said defence taken by the accused based upon the PCR form is a hearsay piece of evidence and is not tenable.
54. Further, in defence, the accused persons have examined three witnesses, namely, DW1 Bhupender Kumar, DW2 Mukesh Kumar and DW3 Rahul. DW1 has deposed that on the date of the incident at about 7:00-7:15 p.m, he was doing the job of camera repairing, he heard a commotion in the gali, when he came out, he saw public persons were putting water on the H.No. F-217 and were knocking the door of the said house, which was locked from inside. He thought children of Raju were alone and some fire had taken place, he took a two wheeler parked outside their house and after parking the same against the wall of the said house, he scaled the wall and thereafter climbed the first floor of the said house, there he saw that the wife of Raju was lying in burnt condition on the first floor. Thereafter he came down and opened the door from inside, and after he opened the State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 39 door, Naresh met him there. However, the testimony of DW1 does not inspire confidence, as PW4 Naresh Khandelwal nowhere in his examination-in-chief or cross-examination has supported the aforesaid defence story, that DW1 had climbed the wall of the house of deceased and opened the door from inside.
55. Further, he had also stated that many persons from mohalla had gathered there, but he cannot tell their names, and he also admitted that he did not try to take the deceased to the hospital or for first aid, nor he made any call to fire brigade. The son of Raju was present inside the room and after opening the door, he straight away went back to his work, which conduct is most strange, as after having witnessed such a ghastly incident, it is hard to imagine that anyone would go back to his work straight away without getting perturbed. He also admitted that he did not write any letter to any senior officer to make them aware about the actual happening. Further, the defence had also not examined son of Raju, who was allegedly present in the same room, as it has come in the testimony of PW2 that one of his State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 40 son was 9 years old. The said child witness could have been examined to prove the defence story. The omision to examine him, shows that the defence story has no legs to stand.
56. Further, the testimony of DW2 Mukesh Kumar is contradictory to the testimony of PW1 Bhupender Kumar, as he in his examination- in-chief, has stated that on the date of the incident, he heard the noise aag lag gayi aag lag gayi and he saw many persons had gathered outside the house of Raju, and when he went there he saw that the wife of the Raju was burning and he along with Naresh went to the first floor of the house, and Naresh stated that since the wife of the Raju was naked, we should not intervene, and he went down stairs and called Raju. One son of Raju, Ashish was crying and he was very scared. On the other hand, DW1 has stated that he went to the house of deceased and opened the door from inside, after climbing the wall. Whereas DW2 states that he along with Naresh went to the first floor, whereas DW1 stated that Naresh met him, when he came down and opened the door and he had never stated that Naresh went State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 41 with him or alone to the first floor of the house. Further, the conduct of PW2 is also most strange and does not inspire any confidence, as he also admitted in his cross-examination that he did not pour any water or put any blanket on the wife of the Raju, who was burning, and police never came in his presence, nor he offered himself by going to the PS for recording his statement. It is not clear, if the version of DW2 was truthful then why he did not volunteer himself before the police for recording his version. He is also similarly saying that one son of Raju, namely, Ashish was present there and was crying, but as discussed above for the reasons best known to the defence, the said Ashish has not been examined to project the true picture before the court, as the said child would have definitely absolved the accused persons, if they were innocent and were not involved in the present case, as they were his close relatives.
57. The testimony of DW3 is on different lines, as he has stated that on the date of the incident, he was present in his house and he had heard the noise and he saw flames coming out from the house of State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 42 Raju and he threw water on the said flames from the balcony of his house. This version of DW3 is totally different from that of DW1 & DW2, and it does not prove anything, regarding the defence story or the defence taken by the accused persons, nor it supports the defence story or the proposition taken by them in any way. Therefore, in view of the aforesaid discussion, the defence version is totally hollow and does not inspire any confidence and the probability of the said version, taken by the defence viz-a-viz the dying declaration of the deceased and the reliability and the credibility of the same is touching the point zero on the probability scale.
58. Regarding the last argument of the Ld. Defence counsel, relying upon the judgment 2010 (3) JCC 2182 (supra), that in the present case the prosecution version was highly doubtful, as it was impossible for 6 persons to stand in the small area, as shown in the site plan Ex.PW3/A and PW18/A to stand there and commit the offence in the manner projected by the prosecution, as it was impossible for the 6 accused persons and the deceased making it 7 State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 43 persons, to stand in such a small cramped space and leaving no space for free movement of hand and legs to commit the ghastly act for which they had been charged. Therefore, he has argued that in view of the said judgment, the dying declaration and the implication of all the 6 accused persons in the present case shows that the dying declaration, relied upon by the prosecution was intrinsically unreliable.
59. The said argument taken by the Ld. Defence counsel, relying upon the said judgment (supra) is not applicable to the facts of the present case, as firstly it is settled law that the site plan, prepared by the investigating officer, during the investigation are at par with the statements, recorded U/s 161 Cr. PC and they are not substantive evidence perse. The said site plans, prepared during the investigation can only be used for contradicting a witness, who had prepared the said site plans during the trial, whilst drawing the attention of the said witness towards the said site plan. Any other use of the same is barred U/s 162 Cr. PC, as the same are prepared by the I.O during the investigations.
State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 44
60. In the present case, none of the site plans i.e scaled site plan, Ex.PW3/A, and PW18/A were confronted to the witnesses, who prepared the site plan, during their cross-examination and none of them were asked or their attention was drawn towards the said site plans, that the same were incorrect or the space shown in the site plan was so cramped that 7 persons, including the deceased could not have stood there, having free movement of hands to commit the ghastly act of burning the deceased.
61. Be that as it may, however, in the scaled site plan, Ex.PW3/A, the point A has been shown as the place, where the incident had occurred and similarly in the rough site plan, prepared by PW18 ASI Gian Singh, again point A has been shown in the said site plan, as the place, where the incident took place i.e the incident of pouring the kerosene oil over the deceased.
62. The said point A, in both the site plans shows that the said place, where the incident is depicted to have been shown, is an open space on the first floor of the room, where the deceased was residing State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 45 with her family. No question has been put in the cross-examination of PW3 and PW18 that the said site plan was incorrect or the space shown at point A was not an open space. The perusal of the said site plan and the photographs, Ex.PW9/1 to Ex.PW9/8, cumulatively show that there was sufficient open space to accommodate 6 persons, excluding the deceased. Therefore, in my respectful view the judgment relied upon by the Ld. Defence counsel, 2010 (3) JCC 2181 is not application to the peculiar facts of the present case.
63. The aforesaid photographs also show that there were oil like marks on the floor of the spot, which are akin to the marks generally made by spilling of the oil, petrol or kerosene, and in the FSL report, Ex.PX, the empty bottle, which was sent to FSL was found to contain petroleum hydro carbons similar to that of kerosene, which also supports the prosecution version, that the deceased had been poured upon with kerosene oil and then burnt.
64. The defence has miserably failed to point out any circumstance in the prosecution story or any circumstance, which emerges from the State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 46 testimony of the defence witnesses, which shows that there was a motive for the false implication of the accused persons in the present case, so as to make the dying declaration doubtful. Rather, the dying declaration, Ex.PW2/D is duly corroborated by the testimony of PW6 Dr. Sanjay Kaushik an independent witness and by the testimony of PW18 ASI Gian Singh, who had recorded the same and also by the testimony of PW2 Ram Kumar to the extent discussed above, as he has clearly deposed, regarding the motive of the accused persons and regarding the fact that deceased and he was not having good relations with his family members, as his father used to tell him to vacate the premises and had also disowned him and there was also quarrel between them over the installation of iron grill on the staircase of the first floor for the safety of the children of the deceased.
65. Further, most defined exceptions to the rule of hearsay evidence are also grounded in logic . These exceptions are based on view that it is possible to identify circumstances in which some statements are made that provide intrinsic indicia of reliability State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 47 sufficient to justify their admission not with standing the absence of the declarant - These exceptions also reflect a policy that not only indicia of reliability, but also the necessity that the statement be admitted and to be considered. For example the need for the admission of a dead declarants dying declaration concerning the cause of her death is usually high unless some one else was present, there may be no other evidence . The declarant is unavailable and the statement if true has substantial probative value indicia of reliability is based upon one or both of following generalizations.
(1) People who fear God are unlikely to lie, when they believe death is imminent.
(2) The imminence of death concentrates the mind and diminishes the capacity to fabricate.
66. In view of the aforesaid consistent and cogent evidence of the aforesaid prosecution witnesses, regarding the dying declaration, Ex.PW2/D and the corroboration of the same by PW6 and PW2 and also by PW18, there is no reason to discard the dying declaration, State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 48 Ex.PW2/D, as no contrary evidence has been brought on the record by the defence to show why would the deceased would falsely implicate the accused persons, rather there was a strong motive on the part of the accused persons to eliminate the deceased, as she was not obeying their commands.
67. The aforesaid dying declaration, made by the deceased provides sufficient intrinsic, indicia of reliability sufficient to justify the admission of the dying declaration for convicting the accused persons notwithstanding the absence of the declarant/deceased in the present case.
68. The common intention of the accused persons to burn the deceased by pouring kerosene oil over her is also clearly discernible from the dying declaration, Ex.PW2/D, wherein she has stated that:
"That on the date of the incident her relatives masi sas Babli and her mausera sasur Baljeet had come from Madangir. She had got fixed one iron grill for the safety of her two small children, regarding which her mother-in-law Jamuna, father-in-law Uma State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 49 Shankar (since deceased), Nanand Poonam and Arti and his mamere sas and sasur, who had come from Madangir, and all of them were objecting to the said iron grill and at around 7:00 p.m, when she did not agree with them, all of them became angry and started quarreling with her and her Nanand Poonam came with the bottle of kerosene oil and thereafter Babli, Baljeet also caught hold the bottle of kerosene oil along with Poonam and thereafter Baljeet poured the kerosene oil over her, and Baljeet lighted the match and put her on fire. While all of them had caught hold of her and she stated that all of them had done so in order to kill her"
69. The aforesaid dying declaration, which has been found to be truthful for the detailed reasons, discussed above in the preceeding paras, clearly shows the presence of all the accused persons at the spot, and the specific roles performed by each of them, while three accused Baljeet Verma, Babli and Poonam were actively involved in pouring the kerosene oil over the deceased. On the other hand, the State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 50 remaining three accused persons including the accused Uma Shankar (since deceased) were responsible for catching hold of the deceased, while the other three accused persons were pouring oil over her, so as to pin her down. The common intention of all the accused persons by the principle of agency is clearly applicable to the present case. More so, in view of the judgment Babu Lal Bhagwan Khandare Vs. State of Maharashtra AIR 2005, Supreme Court 1460. Ashok Kumar Vs. State of Punjab AIR 1977 Supreme Court
109.
"If two or more persons intentionally do an act jointly, the position of law is just the same as if each of them done individually by himself. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identical similar. The acts may be different in character but must have been actuated by one or the same common intention section 34 is applicable even if no injury has been caused by particular accused himself for applying the section 34. It is not necessary to show some over State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 51 act on the part of the accused".
The aforesaid judgment is squarely application to the facts of the present case to prove the common intention of all the accused persons to kill the deceased Anuradha by pouring kerosene oil over her.
70. In view of the categorically statement made by the deceased Anuradha, Ex.PW2/D at her death bed, which is corroborated by the testimony of PW6 Dr. Sanjay Kaushik and testimony of PW18 ASI Gian Singh, to whom she made the said statement and the corroboration of the facts, mentioned in the dying declaration from the testimony of her husband, regarding the motive part of the accused persons, shows the truthfulness of her dying declaration. These facts cumulatively converge and show that it was only the accused persons, who had committed the murder of deceased Anuradha in concert with each other with the common intention to kill her by pouring kerosene oil over her. The evidence of the prosecution lead above more specifically the dying declaration, has strong probative State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 52 force on the probative scale, where the probabilities are measured and it is almost touching the point of certainty and no circumstance has emerged, which could show that the defence story had any sort of probative force on any probative scale.
71. The net result of the aforesaid discussion is that the prosecution has been able to make out a case U/s 302/34 IPC against all the accused persons, beyond any shadow of doubt. Accordingly, all the accused persons stand convicted U/s 302/34 IPC.
Now, to come up for hearing on the point of sentence on Announced in the open court (Sanjeev Aggarwal) On 01.03.2011 Addl. Sessions Judge Rohini Courts: Delhi.
State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 53 State Vs. Baljeet Verma etc. FIR No.628/07 PS Punjabi Bagh U/s 302/34 07.03.2011 Present: Sh. A.K. Srivastava, Ld. Addl. PP for the state.
All the convicts are present from J.C with their counsel Sh. Feroze Khan Ghazi.
It is submitted by the Ld. Counsel for the convicts that convict Baljeet Verma and his wife Babli have both been convicted and they have three minor children to look after, including old age mother, and there is no bread winner in their family.
Regarding the convict Jamuna, it is submitted that she is aged around 52 years at present and she is a widow, and her husband Uma Shankar had died during the trial.
Regarding the convict Arti and Poonam, it is submitted that both of them are young girls of marriageable age, and they are aged 25 years and 22 years respectively at present, and none of them was having any previous history of involvement in any other case.
Looking into the aforesaid circumstances, the Ld. Counsel for State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 54 the convict submits that lenient view may be taken against all of them.
On the other hand, it is submitted by the Ld. Addl. PP for the state that the present case, falls in the category of rarest of rare cases, as all the convict persons in furtherance of their common intention to eliminate the deceased Anuradha, had poured kerosene oil over her, in most inhuman manner and convict Baljeet Verma had lightened the match stick and burnt the deceased Anuradha. Therefore, he submits that no other sentence would serve the interests of justice, more so, as all the convicts are near relatives of the deceased, rather they should have looked after her well.
On the other hand, it is submitted by the Ld. Counsel for the convicts, that the present case does not fall in the category of rarest of rare cases, as he submits that there is no such brutality attributed to the convicts, in the manner of causing the death of the deceased, so as to be sentenced with the capital punishment.
I have gone through the rival contentions.
Put up for orders on point of sentence on 10.03.2011.
ASJ/Rohini/Delhi/07.03.2011 State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 55 IN THE COURT OF SHRI SANJEEV AGGARWAL: ADDITIONAL SESSIONS JUDGE - V (OUTER): ROHINI COURTS: DELHI.
S.C. No.101/08.
I.D. No.02404R0659522007.
FIR No.628/07.
U/s 302/34 IPC.
PS-PUNJABI BAGH.
State Vs. 1. Baljeet Verma S/o Chhedi Lal, R/o. 2/25, Madangir, Delhi.
2. Smt. Babli W/o Baljeet Verma, R/o 2/25, Madangir, Delhi.
3. Smt. Jamuna W/o Uma Shankar, R/o F-219, J.J. Colony, Madipur, Delhi.
4. Miss Arti D/o Uma Shankar, R/o F-219, J.J. Colony, Madipur, Delhi.
5. Miss Poonam D/o Uma Shankar, R/o F-219, J.J. Colony, Madipur, Delhi.
ORDER ON THE POINT OF SENTENCE:-
Present: Sh. A.K. Srivastava, Ld. Addl. PP for the state.
All the convicts are present from J.C. State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52 56 Arguments on point of sentence have already been heard on 07.03.2011, on behalf of the prosecution as well as defence.
After going through the submissions, I am of the considered opinion that the present case, does not fall in the category of rarest of rare cases, as the incident had happened suddenly, and there does not appear to be any angle of conspiracy and the incident appears to have happened in a sudden moment of quarrel, which actuated all the accused persons to pour kerosene oil over the deceased Anuradha, there was no brutality involved on part of the convict Baljeet Verma, as he had only lightened the match stick by throwing the same upon Anuradha without doing anything more.
In these circumstances, the interest of justice, shall be met, if all the convicts are sentenced to imprisonment for life U/s 302 IPC, and they are further sentenced to pay a fine of Rs. 3,000/- each, U/s 302 IPC. On failure of payment of fine, they are further sentenced to undergo SI for three months each. Copy of the judgment and that of point of sentence be supplied to them free of cost. File be consigned to record room.
Announced in the open court Sanjeev Aggarwal)
On 10.03.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Baljeet Verma etc. PS. Punjabi Bagh FIR No.628/07 1-52