Delhi District Court
State vs . on 31 May, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.102/10
FIR NO. 18/05
U/S 498A/302/34 IPC
PS Bawana
Unique Case ID No. : 02404R1287662005
State
Vs.
1. Mohd. Ali Hussain @ Heera s/o Samsuddin Sheikh
r/o Mohalla Haider Pur, Post English Bazar,
PS and District Malwa, Paschimi Bengal.
Present address : E/258, J.J. Colony,
Bawana, Delhi.
2. Mukta w/o Kamal Khan
r/o c/o House of Ranbir, Bawana,
Hastal Colony, Delhi.
Date when committed to the court of Sessions :23.08.2005
Date when case reserved for judgment : 19.05.2011
Judgment pronounced on : 31.05.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 07.01.2005, DD No.16A was recorded at the PS with regard to the information that SC No.102/10 Page 1/34 one female got burn injuries at Transformer wali gali, Vijay Colony, Bawana and the said DD was handed over to ASI Gianvir Singh, who along with Ct. Krishan Kant reached the spot situated at H.No.12, Vijay Colony, Bawana, where he came to know that CATS ambulance had taken a female in burnt condition to the hospital and he inspected the house where he found one stove containing little kerosene oil, stove pin and few matchsticks out of which one was burnt and the match box, the burnt hairs, burnt clothes and Ct. Krishan Kant was left for the safety of the said spot and the ASI reached LNJPN hospital where he obtained the MLC of one Nazma w/o Heera r/o 761/C Block Jhuggi Bawana, who was admitted to the hospital by one Sh. Suresh Kumar, the official of the CATS ambulance and thereafter the ASI reached the Burn Ward of the said hospital where the injured Nazma was declared unfit for making the statement and thereafter the ASI reached the spot, made inquiries in the neighbourhood and got the photographs of the spot taken and the said exhibits were seized and parents of the said injured were informed and the mother of the injured namely Smt. Khatoon Begum met him who informed the ASI that the injured Nazma was her sole daughter and few days ago, she married to one Heera whose Mohammedan name is Mohd. Ali Hussain and said injured was residing with him and thereafter the ASI informed the SDM of the area Narela, Delhi, who, in turn, directed the ASI to inform him as and when said injured becomes fit for making statement and the ASI SC No.102/10 Page 2/34 visited the hospital on 08.01.2005 and 09.01.2005 but the said patient was continuing as unfit for making statement and on 10.01.2005, the said ASI along with Ct. Ayub Khan reached the said hospital where the doctor declared the said injured Nazma as fit for making statement and accordingly, the ASI informed the SDM, who reached the said hospital and recorded the statement of the injured and videography was also made of her statement and thereafter the SDM along with the ASI visited the spot, where the SHO also reached and the SDM gave the said statement of the injured to the SHO with an order to register the FIR and accordingly, the FIR u/s 498A/307/34 IPC was got recorded at the PS and the investigation was entrusted to Addl. SHO Inspr. Ram Avtar.
2. The statement of the injured Smt. Nazma was recorded in question/answer form by the SDM and as per substance of the said statement, the injured Smt. Nazma was married 20 or 25 days ago to accused Heera at Fateh Puri Masjid and at that time nobody from the family members of either side was present at the spot as the said marriage had taken place without the consent of the family members of both the sides.
3. When the injured was asked by the SDM as to when and how she received burn injuries, she replied that she came to know after the marriage that mother of accused Heera had gone to her native village for selling the plot and the elder brother of accused Heera namely Moti had accompanied his mother and that the sister of SC No.102/10 Page 3/34 accused Heera namely accused Mukta, who was residing at Bawana Chowk where the gas cylinders were being filled, had taken her (injured) on the day of incident to her house where accused Heera also came there and both the accused had left her over the roof of the said house and thereafter accused Mukta returned back along with accused Heera and thereafter accused Heera alleged that she (injured) was not allowing him to go to his mother at the native village and that she (the injured) admitted that she did not want that accused Heera should go to his native village because she was having a suspicion to the effect that mother of accused Heera would get him married second time and thereafter accused Heera asked her to go to her mother for 2 or 4 days and accused Mukta was saying that she should remain with her mother for one or two years and thereafter accused Mukta taking her reached J.J. Colony, Bawana, where mother of accused Heera was doing the business of selling oil and she was made to sit there and thereafter accused Mukta took her to some other female, who pressurized accused Mukta to keep her (injured) and accused Heera along with her (the accused Mukta) and thereafter accused Mukta took her back to her house where she stood below the house where accused Heera was also present who gave her two keys which were of the tenanted premises of accused Heera which was situated at Vijay Colony, Bawana and thereafter she came to said house at Vijay Colony, Bawana, along with the said two keys but she was not knowing that accused Heera was chasing SC No.102/10 Page 4/34 her and thereafter she opened both the locks of the said house and entered the same and in the meantime, accused Heera also entered the house following her and locked the door from inside and there was a kerosene oil bottle lying in the kitchen and accused Heera sprinkled the kerosene oil over her from the said bottle and threw a lighted matchstick on her and ran towards the roof where there was an escape route from the roof and that she was crying and she raised alarm for saving her and that someone kicked the door and someone put a gunny bag over her and people started saying as to who had set her on fire to which she replied that accused Heera had set her on fire and that she was shouting for calling a doctor in response of which one person informed her that he had made a telephone call and after sometime one vehicle came there who took her to the hospital.
4. Again a question was asked by the SDM to the effect that accused Heera had married her against the wishes of his family members and then as to why he has done so (setting her to fire) in response to which the injured replied that after the marriage the intentions of the accused Heera had changed and he wanted to grab the money of the sale proceeds of the plot at the village where his mother had gone to sell the same and may solemnize second marriage and she is confirmed that in this incident accused Mukta was also helping accused Heera and when accused Mukta had left her at the roof of the said house and went down with accused Heera, SC No.102/10 Page 5/34 there both the accused had made a plan to kill her (injured).
5. Another question was asked by the SDM as to whether besides accused Heera and Mukta, any other person was also involved in killing her and in reply to which she answered that the plan to kill her was designed by both the accused and none else was an associate in the said plan and except that the mother of accused Heera may be associated with the said plan to kill her because the mother of the accused Heera was against the said marriage and that she wanted to clarify that when accused Heera made her to run away from her house and had taken her to the house of accused Mukta, the mother of the accused had gone to her native Village after 4/5 days of the same and besides that the brother in law i.e the husband of accused Mukta, used to say that accused Heera had married to a black girl and if accused Heera would desert her, then he (brother in law) would get the accused Heera married to a fair complexion girl and she still wanted to say in her statement to the SDM that she was told by some person, whose name she did not remember, that accused Heera had demanded from her mother a plot of 12 yards and Rs.1 lakh to construct the house over the said plot and after hearing the said demand, she went to accused Heera and asked for his explanation and on which accused Heera admitted the said demand to have been made from her (injured) mother.
6. During investigation of the case, the rough site plan was prepared and search of the room was taken from where a plastic SC No.102/10 Page 6/34 bottle containing little oil was seized, statements of witnesses were recorded and on 13.01.2005, DD No.24B was recorded in the PS on the information with regard to death of said injured in the hospital and accordingly, Section 302 IPC was added and SDM conducted the inquest proceedings and autopsy on the dead body of the deceased was got conducted and some exhibits were handed over by the autopsy surgeon to the Inspector which were seized and on 21.01.2005, both the accused were arrested in the case and their disclosure statements were recorded who also pointed out the place of occurrence and statements of the parents of the deceased were got recorded by the SDM and on 06.04.2005, the accused Kamal Khan was formally arrested as he was granted bail by the order of the Hon'ble High Court of Delhi and thereafter exhibits were deposited at CFSL Hyderabad and result of the same was subsequently filed on the record and the charge sheet was filed against the accused. My Ld. Predecessor, vide his order dated 15.10.2007, discharged accused Kamal Khan from the case.
7. On the basis of said charge sheet and evidence on record, my Ld. Predecessor vide order dated 31.10.2007, framed a charge u/s 498A IPC against accused Mohd. Ali Hussain @ Heera and u/s 302/34 IPC against both the accused, to which they pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case has examined as many as 22 witnesses which have been discussed below. SC No.102/10 Page 7/34
9. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and they examined DW1 Sh. Israil in their defence who deposed regarding saving the deceased from drowning in the year 2004 when the deceased had jumped in the canal prior to her marriage.
10. I have heard Ld. APP for the State, Ms. Sunita Tiwari, Adv. for the accused and perused the record.
11. PW1 is the Maulvi who got solemnized the marriage of the deceased with accused Mohd. Ali Hussain as per Shariat and he proved the entry in the register with regard to the marriage as Ex.PW1/A and he identified the accused Mohd. Ali Hussain as the person who was got married with the deceased. In his cross examination, he answered that mother of the Nazma Khatoon was also present during the marriage who witnessed the marriage and during the said marriage ceremony none of the parties raised any demand of dowry.
12. PW2 Sh. G.P. Singh was the concerned SDM who deposed regarding recording of the statement of the deceased on 10.01.2005 and regarding fit state of mind of the deceased at that time on MLC as well as on his personal inquiry and he instructed for the videography of the process of recording statement of the said deceased and he deposed that when he reached the hospital then the videographer was available there and he proved the statement of the SC No.102/10 Page 8/34 deceased as Ex.PW2/A and he further deposed that both hands of the said deceased were found bandaged and hence, her right leg thumb impression was obtained on each of the five pages of her statement and thereafter he made his endorsement Ex.PW2/B on the said statement which was given by him to ASI Gianvir Singh and he also directed the said ASI to get the CD of the said videography of the recording of statement prepared and thereafter he went to the spot with the said ASI where the SHO also met him and thereafter on 13th or 14th January, 2005, he was informed that the said deceased had expired and he reached the hospital and made a request for postmortem vide application Ex.PW2/C and for preservation of the hair of the deceased and the brief facts supplied by the police are Ex.PW2/D and the inquest form is Ex.PW2/E and statements identifying the dead body of the deceased by her parents were proved as Ex.PW2/F and Ex.PW2/G and after the autopsy, the dead body was handed over to her relatives vide receipt Ex.PW2/H. He further deposed that on the day of autopsy, the parents of the deceased were not in a fit state of mind to make statement and he recorded the statements of the parents of the deceased in his office on 29.01.2005 at around 2 p.m and the statements are Ex.PW2/J and Ex.PW2/K. He identified the video cassette along with copy of CD and he exhibited two CDs as Ex.1 and Ex.2 and the cassette as Ex.2/X. During his deposition, my Ld. Predecessor made an observation regarding the later part of the dying declaration about SC No.102/10 Page 9/34 demand of 100 yards plot made from the mother of the deceased by the accused and the witness clarified that at the time of reading over her statement to deceased, she was answering the same in yes/affirmative and that the deceased in her statement at page 3 had referred to a plot belonging to mother of the accused in her village and perhaps it was that plot of 100 yards. The witness further deposed after seeing the recording, that the videographer had arrived a little late and looking at the condition of the deceased he started recording her statement in writing and it was after completion of her statement that the videographer had arrived and he read over the statement to the deceased to seek her affirmation about the correctness of her statement and she had affirmed by saying "Han Han" (yesyes) in the Videography.
13. PW2, in his cross examination, replied that the statement was recorded under his dictation as narrated by the deceased but he could not tell the name of the person who wrote the said statement and that as he was to hear the statement of the deceased who was lying on the bed in burnt condition, it was not possible for him to simultaneously hear and record her statement and that was why he had to call a person for writing her statement. He admitted it as correct that neither the doctor nor any police official told him the name of the culprits. He did not remember if the injured was being given any sedative through intra veins. He further replied that after recording the statement of injured when the videography started, he asked the SC No.102/10 Page 10/34 patient as to whether she could again narrate the whole incident/ statement on which she told him that she could not repeat the same and she asked him to read over the statement to her and he did the same. He further replied that the said statement was not got endorsed by any doctor or nurse. (My Ld. Predecessor observed that voice of injured was clear and audible in the video CD which was played.) PW2 further answered that he did not check as to whether the parental side of the injured were present in the hospital or not. He further answered that he did not seal the cassette prepared in the hospital as he directed the police to get prepared the CD from the cassette. Due to the lapse of four years, he could not tell as to whether the incident took place on ground floor or the first floor or as to how many windows and doors were there or as to whether the same were closed or opened in the said house.
14. PW3 Rishi Pal is the photographer who took the photographs of the place of occurrence as Ex.PW3/A and Ex.PW3/B and negatives as Ex.PW3/A1 and Ex.PW3/B1. He further deposed that on 10th or 11th of January, 2005, ASI Gianvir Singh had brought video cassette and asked him to convert the same into a CD which he prepared and he identified the video cassette as Ex.PW3/1 and CD as Ex.PW3/2. In his cross examination, he replied that the data of the cassette was not available in the hard disk of his computer.
15. PW4 Sh. Anand Prakash deposed that on 07.01.2005 at about 2.50 p.m, he was going to his house and when he reached near house SC No.102/10 Page 11/34 of one Sharmaji at the main road of Vijay Colony, Bawana, he heard screaming voice from one house and one female was crying for saving her and that he went to the house and the doors were half opened and he entered in the room and saw one female in flames and that one wet gunny bag was lying over there and he picked up the same and wrapped around her body in order to extinguish the fire and she was crying for taking to the hospital and that public persons also gathered there and that he called the police at phone number 100 from the phone belonging to Sh. Gulab Sharma and that the CAT ambulance came there and took that female to the hospital and he identified the house in the photograph shown to him in which he entered to save the said female.
16. In his cross examination, PW4 replied that his statement was recorded by police on 10.01.2005 but not on 07.01.2005 and that 50/60 persons gathered at the spot and in his presence the statement of Gulab Sharma was not recorded and that PCR came at the spot after about 20/25 minutes of his calling the police at phone number 100 and that ambulance came at the spot after about an hour after the arrival of the PCR. He further replied that he asked the female as to where was her husband to which she replied that her husband was not at home but had gone to his work place. He further answered that only the door from which he entered was open and other doors of the house were locked and the said other doors were inside the house except the door from which he entered and he remained with SC No.102/10 Page 12/34 police till 12 or 1 a.m. He further answered that he along with other persons inquired from that female as to how she got burnt to which she replied that she burnt of her own.
17. PW5 Ct. Ayub Khan was with the ASI Gianvir Singh on 10.01.2005, who took the said statement of the deceased recorded by the SDM along with the endorsement of the ASI on the same to the PS for the registration of the FIR. PW6 Ct. Rajesh Kumar joined the investigation with the IO on the day of postmortem of the deceased on 14.01.2005 and on 21.01.2005, he joined the investigation when both the accused were arrested and their disclosure statements were recorded and the accused pointed out the place of occurrence.
18. PW7 Ct. Krishan Kant joined the investigation with ASI Gianvir Singh on 07.01.2005 and he deposed about reaching the said house, the ASI going to the hospital and his coming back to the spot, taking of the photographs of the spot, seizure of the matchsticks, match box, stove, the burnt hair and cloth of yellow colour etc from the spot vide memo Ex.PW7/A and he identified the stove and stove pin as Ex.P1 and Ex.P2 and match box along with matchsticks as Ex.P3, Ex.P4, the burnt hairs as Ex.P5, burnt cloth as Ex.P6. In his cross examination, he replied that public persons informed that injured had been removed to the hospital and that person was a male but he did not know his name and the said person informed that he heard the cries of the victim and was a nearby resident.
19. PW8 Ct. Kewal Krishan, proved the DD No.24B regarding SC No.102/10 Page 13/34 death of the deceased as Ex.PW8/A. PW9 HC Surender Kumar was the duty officer who proved the copy of FIR as Ex.PW9/A and his endorsement on the complaint as Ex.PW9/B.
20. PW10 Dr. Sunil was the autopsy surgeon who proved his report as Ex.PW10/A1 to Ex.PW10/A4 and he opined that death was due to septicemia consequent upon infective burn injuries which were ante mortem in nature and were sufficient to cause death in ordinary course of nature. In his cross examination, the autopsy surgeon replied that the face including lips and neck of the deceased were in burnt condition.
21. PW11 Smt. Khatoon Begum is the mother of the deceased who deposed regarding love marriage of her deceased daughter with accused Heera and that accused Mukta, sister of accused Heera, demanded Rs.1 lakh and a plot of 18 yards from them and thereafter she deposed about sorcery (Jadu Tona) over her deceased daughter by accused Heera and that the accused was not allowed to take her daughter for sorcery remedy and on the following day her daughter was killed by both the accused by pouring kerosene oil on her and set her on fire. She further deposed that she went to the hospital where she inquired from her daughter as to what happened to which she replied that she had been set on fire by accused Heera and Mukta and that she made her statement to the SDM Ex.PW2/K and her husband made the statement Ex.PW2/J. In her cross examination, she was confronted with her previous statement Ex.PW11/D where SC No.102/10 Page 14/34 the fact of sorcery tricks played upon the deceased by accused was not found mentioned. She further replied that she did not make any complaint to the police when accused Mukta demanded Rs.1 lakh and a plot of 18 yards from her. She further replied that five other persons also accompanied them to the hospital and police had also made inquiries from the said five persons at LNJPN hospital and that whole body of her daughter was burnt except her face. She further answered that one Gujar Ram Singh saved her daughter from whom the police also made inquiries and Gujar Ram Singh was knowing everything about the case who used to visit the hospital. She did not know the person Israil (the DW1). She admitted that there was a canal in the J.J. Colony, Bawana, but she denied the suggestion that her daughter had jumped into the canal some day before her marriage or that her daughter was saved by Israil when she jumped in the canal. She admitted it as correct that she had not met accused Mukta before or after the marriage of Nazma and that accused Mukta met her only once when she demanded money and plot.
22. PW12 Mohd. Nizam is the father of the deceased who deposed regarding the marriage of the deceased with accused Mohd. Ali Hussain and sorcery tricks played upon the deceased by him and demand of Rs.1 lakh and plot of 18 yards by accused Mukta and showing his inability to fulfill the said demand of the accused. He further deposed that accused Mukta told him that if he would not fulfill their demands, they would kill his daughter by setting her on SC No.102/10 Page 15/34 fire and on the same day, her daughter was set on fire and was killed and on the following day, his wife reached at Jama Masjid where he was present and informed him that his daughter had been killed and thereafter he along with his wife reached the hospital and he thereafter got recorded his statement Ex.PW2/G to the SDM.
23. In his cross examination, PW12 answered that his statement was recorded at Alipur by a person known as DM. He was confronted with his previous statements Ex.PW2/J and Ex.PW12/DA where demand of Rs.1 lakh and the plot by accused Mukta was not found recorded. He was further confronted with his said two statements where the threat given by accused Mukta to set his daughter on fire, if the said demands would not be fulfilled, was not found recorded. He further answered that he had not made any complaint in respect of demand of the accused after marriage. He further answered that when he reached the hospital glucose was being administered to her daughter who had received 80% burn as was told by the doctor to him. He could not tell as to at what time the SDM had recorded the statement of his daughter but he was present at the time of recording of the statement by the SDM. He further answered that his statement was not recorded in the hospital and the same was recorded by the police after 4/5 days of the death of his daughter. He further answered that he did not know any person by the name of Israil (DW1). He admitted it as correct that his daughter Nazma had jumped in the river around 10 days before SC No.102/10 Page 16/34 the marriage and he volunteered that she might have done so on the pressure of the accused. He admitted it as correct that he was not happy with the marriage. He further replied that he had not made any complaint to the effect that his daughter was made to jump in the river under pressure. He denied the suggestion that his daughter was having a suicidal tendency.
24. PW13 L/Ct. Poonam deposed regarding arrest of accused Mukta and disclosure statement made by her. PW14 SI Manohar Lal prepared the scaled site plan as Ex.PW14/A.
25. PW15 ASI Gianvir Singh was the initial IO who deposed about reaching at H.No.12, J.J. Colony, Bawana, Delhi, on 07.01.2005, after receipt of DD No.16A and from there he went to LNJPN hospital where he obtained the MLC of one Nazma, who was declared unfit for statement and his coming back to the spot, seizing the stove Ex.P1, stove pin Ex.P2, matchbox Ex.P3, burnt matchsticks Ex.P4, burnt hairs Ex.P5 and half burnt clothes Ex.P6, vide seizure memo Ex.PW7/A. He further deposed that he informed the SDM and photographs of the spot were got taken and on 8 th and 9th January, 2005 he visited the hospital but the injured was not fit for making statement and that on 10.01.2005, the said injured was declared fit for making statement by the doctor and accordingly, he informed the SDM, Narela and recorded the statement of Smt. Nazma and the videography of the recording of her statement was also made and thereafter he along with the SDM came to the spot SC No.102/10 Page 17/34 where the SDM inspected the spot and thereafter directed him to get the FIR registered and he accordingly made his endorsement on the said statement of the injured which is Ex.PW15/A and after registration of the FIR, further investigation was entrusted to Inspr. Ram Avtar Meena, who inspected the said room again and one mat was lying on the floor of the room and underneath which one plastic bottle containing some kerosene oil was found which was seized vide seizure memo Ex.PW15/B and that as per direction of the SDM he got prepared CD of the video cassette of recording of the statement of injured Nazma and CD as well as the cassette were seized vide memo Ex.PW15/C and that the injured died in the hospital on 11.01.2005 and he identified the said plastic bottle as Ex.P7 and CD and Video Cassette as Ex.1 and Ex.2.
26. In his cross examination on behalf of the accused, PW15 replied that only injured was present in the Burn Ward when SDM reached there and that her relatives must have been present in the hospital at that time but they were not present near the bed of the injured and in the Burn Ward. He further replied that relatives of the injured did not meet the injured after she was declared fit for making statement by the doctor nor they met him. He further answered that he did not record the statement of employee of the CATS ambulance who had brought the injured to the hospital. He further answered that doctor and nurses were present in the Burn Ward when he checked the injured after she was declared fit for SC No.102/10 Page 18/34 making statement. He replied that at the spot, the SDM was noting his observations of the spot in his personal diary but no separate paper to said effect was prepared and he did not know if the contents of the diary of the SDM are on the judicial record or not.
27. PW16 Dr. Saurabh has declared the deceased fit for making statement vide his endorsement at point A in MLC Ex.PW16/A. In his cross examination, PW16 replied that the injured did not tell him any name of any culprit while he was examining her and that after examining the patient properly, he gave the opinion about fitness of making the statement. He denied the suggestion that the patient was not fit for making statement and that was why he has not mentioned that the patient was conscious and oriented. He could not say if after he had given the certificate of fitness, the patient again became unconscious or for what time the patient remained conscious thereafter.
28. PW17 ASI Asha Devi proved the DD No.16A as Ex.PW17/A.
29. PW18 Suresh Kumar was the official of the CATS ambulance who deposed regarding removing the said deceased on 07.01.2005 to the hospital at about 3 p.m from Village Bawana to LNJPN hospital in burnt condition and getting her admitted to the hospital. He further deposed that smell of kerosene oil was there on her body and she was telling that she was put to fire by her husband. In his cross examination, he replied that his statement was recorded by a constable on the same day but no FIR was lodged on his statement. SC No.102/10 Page 19/34 He replied that he did not inform either to the duty constable or to the staff of the hospital regarding the fact of the lady being put to fire by her husband. He replied that the distance between the spot and the said hospital is 35 or 36 kilometers and that his one colleague by the name of Brahm Dutt was in the said ambulance. As per his reply, he did not inform regarding the said fact to the police or to the hospital staff. He could not say if in the MLC there was no such fact mentioned of the lady being put to fire by her husband.
30. PW19 Mohd. Farukh proved the Nikahnama of the said marriage as Ex.PW19/A and its translation in Devnagri script as Ex.PW19/B. PW20 is the person who translated the said Nikahnama. PW21 Dr. Ritu Saxena proved the handwriting and signatures of Dr. Arvind Kumar Gupta who prepared the MLC as Ex.PW16/A.
31. PW22 ACP Ram Avtar Meena deposed that on 10.01.2005, he was posted as Addl. SHO at PS Bawana and the duty officer handed over copy of FIR and original complaint to him after registration of the present case and he along with Ct. Ayub Khan went to the spot where ASI Gianvir along with Ct. Kewal Krishan met him, who handed over one cassette and CD about the videography got made by SDM, Narela regarding the recording of statement of deceased Nazma at the hospital which were seized vide seizure memo Ex.PW15/C and that he prepared the rough site plan at the instance of the said ASI which is Ex.PW22/A and he seized one plastic bottle SC No.102/10 Page 20/34 containing some kerosene oil vide memo Ex.PW16/B and he recorded the statements of PWs. He further deposed that on 13.01.2005, on receipt of DD No.24B, Ex.PW8/A, regarding death of said Nazma, he informed the SDM regarding the same and on 14.01.2005, he prepared the inquest papers on behalf of the SDM which are Ex.PW2/C to Ex.PW2/G and got the postmortem examination conducted on the body of Nazma and the autopsy surgeon had handed over the exhibits containing scalp hair with sample seal to him which were taken into possession vide memo Ex.PW6/A and on 21.01.2005, he arrested both the accused from J.J. Colony, Bawana and recorded their disclosure statements and thereafter he recorded the statements of the parents of the deceased and that he got the scaled site plan prepared and exhibits were sent to CFSL Hyderabad and he tendered the result of the same as Ex.PX and he obtained the copy of Nikahnama of deceased with accused Mohd. Ali Hussain which is Ex.PW19/A and he sent the CD and cassette to FSL Rohini on 30.07.2008, at the direction of the court and obtained its result which is Ex.PY and the charge sheet was filed in the court and he identified the plastic bottle as Ex.P7.
32. In his cross examination on behalf of the accused, PW22 replied that he had no knowledge if DD No.24 was registered by ASI Gianvir Singh on 07.01.2005 in the PS whereby he recorded his arrival in the PS after making inquiry against DD No.12A and DD No.16A or that the DD No.16A was pertaining to an information SC No.102/10 Page 21/34 that a lady was admitted to LNJPN Hospital with burn injuries and ASI Gianvir Singh went to the said hospital and it was in this background that DD No.24 was got registered and copy of the same is Ex.PW22/DA. He could not tell if the contents of DD No.24 mentioned that ASI Gianvir Singh was given information by a person namely Anand Prakash to the effect that he heard cries of a female outside the H.No. B12, Vijay Colony, Bawana, and when said Anand Prakash entered the house he saw a lady in flames and her clothes were being burnt and said Anand Prakash used a jute bag lying there to set off the fire and at that time the said lady was crying that she had set herself to fire as she wanted to die and at that time Anand Prakash did not see any other person in the said house and thereafter said Anand Prakash gave information at phone number 100 to the police. He could not say if a news article pertaining to the said deceased lady and the circumstances in which she got burnt by fire was published in the newspaper The Punjab Kesari dated 08.01.2005 or that the copy of the same is Ex.PW22/DB.
33. Admittedly there is no eye witness except the deceased, who saw as to how the deceased received burn injuries and deceased is no more in this world either to depose about the same or to be subjected to cross examination on behalf of the accused. The case is resting mainly on the dying declaration of the deceased. There are so many dying declarations of the deceased which have been proved on the record.
SC No.102/10 Page 22/34
34. First dying declaration was made by the deceased to PW4 Sh. Anand Prakash, who was passing through the said premises where the deceased was in flames and after hearing the cries of the deceased, he entered the house and put off the fire on her person with the use of a jute/gunny bag and asked her as to where her husband was to which she replied that he had gone to his work place and was not present at her house and she burnt herself of her own and thereafter he (PW4) gave information to the police. His said deposition is corroborated by PW7 Ct. Krishan Kant, who in his cross examination, has admitted that one person informed that he heard the cries of the victim and was a nearby resident. Circumstantially his deposition is corroborated by the another dying declaration of the deceased Ex.PW2/A, allegedly given by the deceased before the SDM, wherein at page 3, she narrated that when she was raising an alarm for saving her, somebody entered the room and put on her a gunny bag and he was the person who gave a phone call and after sometime one vehicle came there who removed her to the hospital. It is a strange fact that PW15, ASI Gianvir Singh, who was the initial IO did not mention about the presence of PW4 at the spot in his endorsement Ex.PW15/A made below the statement of the deceased Ex.PW2/A, on which the FIR was got registered and the said endorsement Ex.PW15/A is not only uprooted but sharply contradicted by DD no.24 Ex.PW22/DA, which was got recorded by PW15 himself wherein it is clearly and happily mentioned that at the SC No.102/10 Page 23/34 spot one Anand Prakash s/o late Sh. Shiv Dutt r/o H.No.A99, Vijay Colony, Bawana, Delhi, was present and met the said ASI (the PW15) who informed the ASI that when he was passing through the gali and reached in front of house No.B12, he heard the cries of a female from inside the house and when he opened the door, he found one female in flames and he took one gunny bag lying inside the said house and put on the same on the lady to put off the fire and the said female was repeatedly saying that she had put herself on fire and she wanted to die and after putting off the fire, he informed the police at phone number 100 and at that time in the said house no other person was present. No explanation has come forth as to why presence of Anand Prakash was not mentioned by the said ASI in his endorsement Ex.PW15/A when he was getting the FIR registered nor it has been explained as to why the said fact of the presence of Anand Prakash was not brought to the notice of the SDM, PW2, who allegedly recorded the dying declaration of the deceased Ex.PW2/A. But it is well established on the record that deposition of PW4 Anand Prakash is corroborated and well established by the DD No.24 of the same date Ex.PW22/DA.
35. The second dying declaration allegedly of the deceased was given to PW18 Sh. Suresh Kumar, who was the In charge of the CATS ambulance on 07.01.2005, who reached the said house at about 3 p.m after receiving a call regarding a lady received burn injuries and he removed the said lady to LNJPN hospital and got her SC No.102/10 Page 24/34 admitted there and the deceased told him in the way that she was put to fire by her husband. The fact that said Suresh Kumar got admitted the deceased in the hospital is corroborated by the MLC of the deceased Ex.PW16/A wherein the name of the person who brought the deceased to the hospital is mentioned as Suresh Kumar of L28 CATS ambulance but in the alleged history as told by the said Suresh Kumar with regard to burn injuries of the lady, it is nowhere mentioned that the lady was put to fire by her husband. I can understand the plight of a common man who may not be in a position to have a say or control over the doctor or other hospital authorities so that he may get recorded the information which he required to inform but PW18 was not an ordinary or common person or a layman as his very occupation was to remove the injured/ patients to the hospital and got them admitted there and if it was the information with him that the said deceased was set to fire by her husband, what prevented PW18 to disclose and get recorded the same in the MLC Ex.PW16/A or as to why he did not inform the said fact to the police despite knowing fully well that it was a cognizable offence if his version of the deceased telling him the cause of receiving burn injuries, is taken as true. Moreover, it has been pointed out by the Ld. Defence Counsel that incident is dated 07.01.2005 whereas the statement of PW18 Suresh Kumar was recorded after more than three months u/s 161 Cr.PC.
36. In the said circumstances, I am of the considered opinion that SC No.102/10 Page 25/34 the said deposition of PW18 or alleged dying declaration made to him by the deceased is not at all trustworthy and more so, his statement was recorded by the police during investigation at such a belated stage. Reference can be made here of a judgment of Hon'ble Supreme Court titled Paramjeet Singh and others Vs. State of Punjab and others reported as 1996 (4) Crimes 266 (SC) wherein it was held that it would be unsafe to accept evidence of witness whose statement u/s 161 Cr.PC was recorded after 4½ months and there was no explanation for that delay. The Hon'ble Supreme Court in that case was also dealing with a case of dying declaration.
37. Coming to the dying declaration of the deceased made on 10.01.2005 given to the SDM which was recorded in question/answer form as Ex.PW2/A. It is the deposition of the SDM as PW2 that before proceeding to the hospital, he directed the IO to arrange for a videographer so that videography of the recording of dying declaration of the deceased may be recorded. PW2, in his examination in chief, has deposed that when he reached the hospital then the videographer was available there but at the time when the said video cassette was displayed, he explained that videographer had arrived a little late and on seeing the condition of the deceased, he started recording her statement in writing and after completion of the statement the videographer had arrived there and that he read over the statement to the deceased to seek her affirmation about the correctness of her statement and she had affirmed by saying "Han SC No.102/10 Page 26/34 Han" (yesyes).
38. I have already reproduced the written alleged dying declaration of the deceased Ex.PW2/A and I myself as successor court have seen the display of the CD during the course of final arguments, wherein the written dying declaration Ex.PW2/A was being read over to the deceased and who was uttering "Han Han"
(yesyes). The said utterance of "Han Han" in my considered opinion, which I could gather from phonetic expression, was much more in the nature of a sigh of pain rather than affirming the narration with all consciousness at the command of deceased. I also noticed that after one or two narrated sentences to the deceased, it was again confirmed from her by giving stress on the words " Kya Yeh Theek Hai" (Is it correct) to which the deceased, as if she has come out of her drowsiness, has answered "Han Theek Hai" (yes, it is correct) and in the end the deceased was asked in the videography as to whether she wanted to say anything else and thereafter she narrated about the alleged demand of a plot etc by the accused and the last part which was in the narration form, can at best be said to be voluntary statement of the deceased in her consciousness.
39. I am also of the considered opinion that Ex.PW2/A and its alleged confirmation in the videography cannot be bifurcated as such because claim of PW2 is that whatever he recorded in Ex.PW2/A was again put to the deceased in the videography and the reason given by the PW2 for the same was that the deceased showed her SC No.102/10 Page 27/34 inability to reproduce the said facts again in the videography. From this circumstance, it is clearly established that the senses of the deceased due to the said burn injuries, which as per her MLC was approximately 90% and as per autopsy report Ex.PW10/A was about 65% of total body surface area, were not in her command to continue to remain in full senses throughout the period in which the statement Ex.PW2/A and the videography, were recorded. The statement Ex.PW2/A is running into five pages and considering the length of the answers allegedly given by the deceased, it can safely be inferred that Ex.PW2/A must have taken a considerable time in its recording. Moreover, the last question which was put to the deceased was in the nature of a leading question. I am not using the expression "leading question" here in the sense as it has been used in the Indian Evidence Act but in reference to context the question was nothing but an inducement given to the deceased to implicate other persons also which she could not have done if the said question would not have been asked from her. The question is as to who else except accused Heera and Mukta were responsible for the attempt to kill the deceased and in response to this initially the deceased uttered that no one except the accused, was associated with the plan to kill her but again she narrated that besides, the mother of accused Heera may be associated in the plan of killing her as mother of the accused was against the said marriage and thereafter she named the husband of accused Mukta as yet another person who might have joined the SC No.102/10 Page 28/34 plan to kill her.
40. Such a dying declaration with minute details from step to step wherein the tendency to implicate more and more persons is clearly visible and can be inferred, is difficult to be believed. A further doubt is created from the circumstances that if the deceased was throughout conscious during the time when her statement Ex.PW2/A was reduced into writing and throughout the time of videography, then why the PW2, the SDM, did not wait for the videographer so that the entire Ex.PW2/A could have been narrated by the deceased within the videography.
41. Such a lengthy dying declarations, one recorded in Ex.PW2/A and its confirmation in the videography, require a fit state of mind of the deceased. Reference may be made here of the judgment of the Hon'ble Supreme Court titled Paparambaka Roshamma Vs. State of Andhra Pradesh reported as 1999 Crl. Law Journal 4321, wherein the Hon'ble Supreme Court has held that the said dying declaration cannot be treated as true, genuine and was made when the injured was in a fit state of mind and that in medical science, two stages namely conscious and a fit state of mind are distinct and are not synonymous as one may be conscious but not necessarily in a fit state of mind. The circumstances of the case are pointer to the fact that the deceased was disappointed and frustrated in her married life and it was in these circumstances the dying declaration wherein all the three accused alleged to have committed the crime cannot be SC No.102/10 Page 29/34 accepted. It was further held that the statements in the dying declaration i.e the accused poured the kerosene on her and thereafter she also poured kerosene on herself and that "they have burnt me with a lighted matchstick" raises a reasonable doubt as to whether she was in a fit disposing state of mind at the time when the dying declaration was recorded. The said decision of the Hon'ble Supreme Court comes very close to the facts of the present case. Further reference can be made of the decision of Hon'ble Apex Court titled State of Maharashtra Vs. Sanjay reported as 2005 (1) RCR (Crl.) page 149 wherein it was held that deceased suffering from 95% burn injuries and her dying declaration recorded by Executive Magistrate for 45 minutes and it is doubtful that for 45 minutes the patient in that serious condition could go on responding to questions to the extent of minute details and the said holding of the Hon'ble Supreme Court, in my considered opinion, is fully applicable to the facts of the present case. Yet observation of the Hon'ble Apex Court in the case titled Muneer Khan and other Vs. State of MP reported as (2002) 9 SCC 523 to the effect that the dying declaration has all the trappings of a desire to catch everyone of the in laws against whom she would have been nurturing some grouse, is also fully applicable to the present case.
42. Moreover, PW16 Dr. Saurabh, who declared the deceased fit for making statement vide his endorsement on the MLC Ex.PW16/A, has specifically replied in his cross examination that SC No.102/10 Page 30/34 deceased did not tell the name of any culprit to him while he was examining her and it is the same case with PW2, the SDM, who specifically deposed that neither any police official nor any doctor told him the names of the culprits. Even PW1 Dr. Ritu Saxena, under whose supervision Dr. Arvind Kumar Gupta prepared the MLC of the deceased, has answered in her cross examination that the patient herself did not give any history of receiving the burn injury although she was conscious at that time.
43. In the said circumstances, it is difficult to swallow and digest the dying declaration of the deceased Ex.PW2/A and the videography of the same and more so, when the alleged demand by the accused of a plot and Rs.1 lakh was merely a hearsay as told to the deceased by someone else and no date and time of any alleged demand and alleged cruelty was mentioned by the deceased and if at all there was any demand, for the sake of argument, then no complaint was made to any police authority or otherwise for redressal of her grievances by the deceased. There is yet another contradiction with regard to size of the plot as allegedly demanded by the accused, which was mentioned by the deceased as that of 12 yards whereas the father of the deceased PW12 and mother of deceased as PW11 gave the dimension of plot as that of 18 yards.
44. Coming to the alleged dying declaration made by the deceased to her parents PW11 and PW12, who claimed that they were present in the hospital and the deceased told them that accused Mohd. Ali SC No.102/10 Page 31/34 Hussain, her husband, had set her on fire and they further claimed that they were present in the hospital when her statement Ex.PW2/A was being recorded by the SDM. If this version of PW11 and PW12 is taken as true, then the tutoring, prompting or imagination of the dying declaration cannot be ruled out. The reference can be given here to the judgment of Hon'ble Supreme Court reported as A. Ramchandra Reddy and another Vs. Public Prosecutor reported as AIR 1976 SC 1994. On the other hand, PW15 has uprooted the story of the parents of the deceased PW11 and PW12 when he answered that after the deceased was declared fit for making statement, he did not notice the presence of PW11 or PW12 in the hospital or they ever met the deceased in the Burn Ward before or after the recording of Ex.PW2/A. Furthermore, their depositions were recorded by the SDM at a belated stage on 29.01.2005 which further creates a doubt as to whether they talked to the deceased at all so as to give an opportunity to the deceased to narrate them with regard to cause of burn injuries received by her.
45. Now the question before the court is as to which of the dying declaration is to be accepted when there are more than one. This aspect as well as almost all the aspects with regard to dying declaration were exhaustively dealt by the Hon'ble Supreme Court in the judgment titled Panneerselvam Vs. State of Tamil Nadu reported as 2008 (3) RCR (Crl.) 54 and one such holding was to the effect that where there is more than one statement in the nature of dying SC No.102/10 Page 32/34 declaration, one first in time must be preferred.
46. The first dying declaration in the present case was given to PW4 Sh. Anand Prakash. I have reproduced his deposition above. No motive could be imputed to him to falsely depose and his presence at the spot at the relevant time has been established on record beyond reasonable doubt as has been discussed by me above. Hence, I am of the considered opinion that the fact disclosed by the deceased to him to the effect that her husband was not at home and had gone to the work place and that she had set herself to fire as she wanted to die, must be believed as her true dying declaration.
47. My said opinion is further fortified by the deposition of DW1 who was the person who saved the life of the deceased when she had jumped into a canal before her marriage and his testimony remained almost unchallenged on the record and the deposition of DW1 is further corroborated and his version that the deceased earlier also tried to commit suicide by jumping into the canal, has been accepted by the father of the deceased who as PW12 has categorically admitted it as correct that his daughter Nazma (the deceased) had jumped into the river around ten days before the marriage. In the said circumstances, the deceased having suicidal tendency cannot be ruled out. Yet another version of the cause of burn injury suffered by the deceased has been put forth by the accused in his defence by way of a newspaper reporting Ex.PW22/DB wherein it has been mentioned that the deceased received burn injuries while cooking. SC No.102/10 Page 33/34
48. In view of my above said discussion and the circumstances brought on the record, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt and thus, benefit of doubt is extended to the accused and accused Mohd. Ali Hussain is acquitted of the charge u/s 498A and both the accused are acquitted of the charges u/s 302/34 IPC. The accused Mohd. Ali Hussain be set at liberty forthwith, if not wanted in any other case and PB and SB of accused Mukta are hereby discharged. The file be consigned to the Record Room.
(Announced in the open court on 31.05.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.102/10 Page 34/34