Delhi District Court
State vs Pardeep Aggarwal Ors on 6 April, 2024
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 57713/2016) DLNT01-000453-2014
FIR No. 864/2014
Police Station Prashant Vihar
Charge sheet filed 498-A/306/34 IPC
Under Section
Charge framed Under 498-A/306/34 IPC against
Section accused Pardeep Aggarwal,
Suresh Chand Aggarwal and
Shyama Devi.
Alternate charge under section
302/34 IPC against all accused
persons.
Pradeep Aggarwal s/o Sh. Suresh
Kumar r/o C-2/26, Ist Floor, Sector-
11, Rohini, Delhi
Suresh Kumar Aggarwal s/o Late
State Vs. Sh. Sant Lal r/o C-2/26, Ist Floor,
Sector-11, Rohini, Delhi
Shyama Devi w/o Sh. Suresh
Kumar Aggarwal r/o C-2/26, Ist
Floor, Sector-11, Rohini, Delhi
Shiv Kumar s/o Late Sh. Shanti
Kumar r/o 1484, Delhi Gate
Najafgarh, New Delhi.
Date of institution 16.12.2014
Arguments concluded on 14.03.2024
Judgment Pronounced on 06.04.2024
Decision Accused Pardeep
Aggarwal, Suresh
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Chand Aggarwal and
Shyama Devi
convicted under
sections 498-A/302/34
IPC
Accused Shiv Kumar
convicted under section
302/34 IPC.
JUDGMENT
BRIEF FACTS 1.1 Events which set the prosecution machinery into motion is that on 23.07.2014 on receipt of DD No. 32A SI Karan Singh alongwith Ct. Pawan reached at the spot i.e., C-2/26, Ist Floor, Sector-11, Rohini, Delhi where they came to know that victim was taken to Saroj Hospital. Thereafter, SI Karan Singh after leaving Ct. Pawan at the spot, proceeded to Saroj Hospital and found victim Savita Aggarwal admitted vide MLC No. 2042/14 with alleged history of 'burn' and she was unfit for statement. Thereafter, SI Karan Singh came back at the spot and got inspected the spot by Crime Team and took burnt clothes and other articles in police custody. DD No. 32A was kept pending for enquiry and later on victim was shifted to Safdarjung Hospital. On 24.07.2014 at about 01:50 AM doctor declared victim fit for statement, accordingly, SI Karan Singh alongwith SDM S. K. Meena reached at Safdarjung Hospital where at about 03:35 AM, she was again declared unfit for statement, therefore, her statement could not be recorded by SDM. Later on vide DD No. 55B dated 24.07.2014 information regarding death of Ms. Savita was received at PS from Safdarjung Hospital and same was entrusted to Inspector Naresh Dagar.
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1.2 Complainant Brij Mohan Bansal met Inspector Naresh in the
police station and gave his statement wherein he alleged that his deceased daughter Savita Aggarwal got married to accused Pardeep Aggarwal on 26.02.2001 and after some days of the marriage, her husband and her in-laws started harassing her for the dowry. He further alleged that on 16.07.2002 deceased was blessed with a son namely Kartik Aggarwal and he gave articles i.e., chain for child, jewellery for deceased including gold necklace and jewellery for mother in law and father in law including gold rings. However, accused persons were not satisfied with the articles and they demanded a luxury car for accused Pardeep Aggarwal. He further alleged that when he did not fulfill their demand, accused persons started torturing the deceased and due to the torture of accused persons, deceased alongwith his 15 days old child came to his house. He further alleged that when deceased used to come his house, she used to inform about the beatings given to her and about the demand of dowry by the accused persons. He further alleged that on 22.12.2004 on the birth of second son namely Naitik Aggarwal of deceased Savita, when he alongwith his wife went to meet deceased, accused persons again made demand of luxury car. He further alleged that as his financial condition was not so good, he did not fulfill their demand due to which accused persons used to beat the deceased. He further alleged that matter was got resolved several times with the help of the Panchayats. Earlier deceased used to reside at Sonepat but thereafter, she was shifted with the entire family at Rohini but accused persons kept her torturing at Rohini also. He further alleged that on 23.06.2014, deceased was being beaten by her husband and her parents in law and she was turned out of her matrimonial house. Thereafter, deceased made PCR call but matter was settled and deceased was returned back to her matrimonial house.
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1.3 He further alleged that on 23.07.2014, again deceased was being
beaten by her husband and her in laws. Thereafter, deceased made PCR call and matter was got resolved, however, the dispute continued in the house throughout the day. At about 02:00 PM, she came to her parental house and informed about the dispute to her brother Surender. Thereafter, deceased alongwith her brother went to PS Prashant Vihar and gave her written complaint to the police and police assured for her safety and sent back to home. After that deceased, went to CAW cell and made a written complaint there too. He further alleged that thereafter, deceased went to her matrimonial house and informed her brother Surender that she would be returning back to him alongwith children. He further alleged that at about 07:30 PM, both children of deceased came to his house of their own and they told their grandmother (nani) that their mother would be coming in a short while. They also told that they have been sent by their father and grandparents. He further alleged that when deceased did not reach home, her mother called her telephonically, however, her phone was switched off. Thereafter, his son Surender went to the house of deceased and when he reached near the corner of the street, he came to know that some untoward incident had happened at the house of deceased and deceased had been taken to hospital by the police. He further alleged that on inquiry, he came to know that deceased had been shifted to hospital in burnt condition. When he alongwith his son Surender reached at Saroj Hospital, deceased was found under treatment and she had been referred to Safdarjung Hospital. He further alleged that on 24.07.2014, during treatment his daughter had expired.
1.4 Crime team inspected the scene of crime and collected the exhibits i.e., match box (ship), scattered match sticks, clothes in burnt condition, piece SC No. 57713/16, PS Prashant Vihar Page No. 4 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
of burnt clothes. From lobby crime team collected pants and sandals in burnt condition whereas from bathroom, pieces of burnt clothes and in front of main gate burnt pieces of clothes were seized.
1.5 On the statement of complainant, FIR was registered under section 498-A/34 IPC. Postmortem of deceased Savita Aggarwal got conducted vide report No. 1212/14 dated 25.07.2014 and doctor opined that cause of death as "death is due to shock as a result of antemortem thermal burn injuries involving about ninety percent of total body surface area produced by flame of fire." During investigation, accused Pradeep Aggarwal was arrested on 26.07.2014. Family members of deceased later on, alleged that accused Pradeep Aggarwal alongwith other accused persons set deceased Savita on fire and killed her.
1.6 During investigation, on 26.07.2014, Rajesh Kumar, brother of deceased Savita, produced a CD stating that he recorded the statement of deceased in Safdarjung Hospital soon before her death. The CD was seized by the IO. It was stated by Rajesh Kumar that the video was recorded on 24.07.2014 between 11:43 AM to 11:46 AM, 1.7 From the investigation conducted, section 306 IPC was added. During investigation, Rajesh brother of deceased refused to provide his mobile phone containing statement of deceased on the pretext that the same would be produced at the time of trial but he subsequently, handed over it to IO and phone was sent to FSL for expert opinion. After completion of investigation, charge sheet for the offence u/s 498-A/306/34 IPC was filed in the court. Due to lack of evidence against accused Suresh Kumar, Shyama Devi and Shiv SC No. 57713/16, PS Prashant Vihar Page No. 5 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
Kumar, charge sheet was filed against them without arrest.
CHARGE
2. On committal of the case to the Court of Sessions, vide order dated 28.10.2015 charge u/s 498-A/306/34 IPC and in alternate charge under section 302/34 IPC was framed against accused persons namely Pardeep Aggarwal, Suresh Kumar Aggarwal and Shyama Devi. Accused Shiv Kumar has been charged under section 302/34 IPC only. All accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 27 witnesses in all.
FORMAL WITNESSES
4. PW1 HC Jagdish, being the duty officer, exhibited FIR as Ex. PW1/1 and proved certificate under section 65-B of Indian Evidence Act as Mark P1/A.
5. PW2 SI Mahender Singh being an Enquiry Officer in CAW Cell, vide order Ex. PW2/1 she recommended the complaint dated 23.07.2014 made by Savita Aggarwal to be forwarded to SHO PS Prashant Vihar for further proceedings.
6. PW3 Dr. Kuldeep Singh exhibited MLC NO. 9055 of patient Shiv Kumar Bansal prepared by Dr. Neeraj Kumar under his supervision as Ex. PW3/1.
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7. PW4 Dr. Hemant, Junior Resident, Safdarjung Hospital conducted the postmortem on the body of Savita Aggarwal vide postmortem report No. 1213/14 dated 25.07.2014 which is Ex. PW4/1. He further deposed that in his opinion, death was due to shock as a result of ante mortem thermal burn injuries involving about 90% of total body surface area having been produced by flame of fire. Time since death was about one day.
8. PW5 SI Ram Rattan exhibited DD No. 28B dated 24.06.2014 as Ex. PW5/1.
9. PW6 HC Bhupender Kumar exhibited DD No. 3A dated 24.07.2014 PS Prashant Vihar as Ex. PW6/1.
10. PW8 Ct. Manish Joshi being the photographer in mobile Crime Team, visited the spot i.e., C-2/26, First Floor, Sector-11, Rohini and took 11 photographs which are Ex. PW8/A (colly) and negatives thereof are Ex. PW8/B (colly).
11.1 PW10 Pawan Kumar deposed that on 23.07.2014 he joined the investigation with SI Karan Singh and on receipt of a call, they went to C-2/26, First Floor, Sector-11, Rohini where they came to know the injured lady had been taken to Saroj Hospital. He further deposed that after leaving him at the spot, SI Karan Singh went to hospital. He further deposed that before SI Karan Singh returned back to the spot, crime team reached there and photographs were taken. He further deposed that exhibits i.e., a match box, match sticks, some clothes, sandal with socks were seized vide seizure memo which is Ex. PW10/1.
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11.2 He further deposed that on 25.07.2014 postmortem was got
conducted and dead body was handed over to LRs of deceased. Scalp hair of deceased was seized vide seizure memo which his Ex. PW10/2.
12. PW11 Dr. Sandeep Dhuriya, exhibited the MLC No. 2042 of Savita Aggarwal as Ex. PW11/1.
13.1 PW12 Ct. Sandeep deposed that on 23.07.2014 he alongwith Ct. Pawan was on Beat Duty and while they were in the area, Ct. Pawan received a telephone call from the duty officer to the effect that a lady had set herself on fire in C-2 Block, Sector-11, Rohini. He further deposed that accordingly both of them went there and reached first floor of H. No. 2/26 in the said block. He further deposed that on going inside, he saw a lady in burnt condition and in a sitting posture by side of wall of the bathroom. They brought her out of the bathroom and took her to Saroj Hospital.
13.2 He was cross examined by Ld. Addl. PP For the State wherein he stated that some people were also standing outside the bathroom when he reached there. He denied that on enquiry it transpired that they were in laws of the lady. He stated that they took the lady in car of one Atul, who was also present there.
14.1 PW13 ASI Sudhir Kumar being the MHC(M) he deposed that on 23.07.2014 SI Karan Singh deposited seven sealed pullanada alongwith one sample seal of Saroj Hospital in malkhana vide entry No. 3401 which is Ex. PW13/1.
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14.2 He further deposed that on 25.07.2014 SI Karan Singh deposited
one sealed pullanda alongwith sample seal of SJH vide entry No. 3406 which is Ex. PW13/2. He further deposed that on 26.07.2014 Inspector Naresh deposited one sealed pullanda vide entry No. 3408 which is Ex. PW13/3. He further deposed that on 18.01.2015 SI Yogesh Raj deposited one sealed pullanda vide entry No. 3418 which is Ex. PW13/4.
14.3 He further deposed that on 09.09.2014 seven sealed pullandas and three sample seals were sent to FSL Rohini through Ct. Kedar Singh vide RC No. 90/21/14 which is Ex. PW13/5. After depositing the same, Ct. Kedar Singh deposited the receipt which is Ex. PW13/6. He further deposed that on 27.01.2015 one sealed pullanda alongwith one sample seal sent to FSL through Ct. Dharamvir Singh vide Road Certificate No. 04/21/15 which is Ex. PW13/7 and receipt thereof is Ex. PW13/8.
15.1 PW15 HC Bhupender deposed that on 25.07.2014 rukka and copy of FIR had been handed over to him by the duty officer to be delivered to IO. Accordingly, he went to spot i.e., C-2/26, Sector-11, Rohini and handed over the same to Inspector Naresh. He further deposed that they made search for an eye witness but none could be located.
15.2 He further deposed that on 26.07.2014, he alongwith Inspector Naresh again went in search of culprit and accused Pradeep Kumar was apprehended from C-Block, Sector-11, Rohini, near Pardesi Property. He was formally arrested vide arrest memo which is Ex. PW15/1 and his personal search was conducted vide personal search memo which is Ex. PW15/2.
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16. PW18 Ct. Kedar Singh deposed that on 09.09.2014, on the instructions of IO, he collected seven sealed parcels/pullandas/boxes alongwith three sample seals from MHC(M) and deposited the same at FSL vide RC No. 90/21/14 and handed over the acknowledgement received from FSL to MHC(M).
17. PW19 ASI Dharambir deposed that on 27.01.2015, he collected one pullanda sealed with the seal of YR and got deposited the same at FSL Rohini. He further deposed that after depositing the exhibits, he deposited receipt on RC and acknowledgement in Malkhana.
18.1 PW21 Dr. C. P. Singh, Assistant Director (Physics), FSL, Rohini deposed that on 27.01.2015 one parcel, found containing one mobile phone of make Samsung, Model GT-S7562 without SIM card having one memory card of make "Sandisk" of 8 GB. He further deposed that he examined the mobile phone and memory card of mobile phone and two relevant video files dated 24.07.2014 were retrieved from the memory card of the mobile phone and same were provided in CD Mark "Relevant Video Files". He further deposed that after examination, he observed the each video file contained one identified video shot and there was no indication of alteration in the identified video shots on the basis of frame by frame examination. He exhibited his report as Ex. PW21/1.
18.2 He correctly identified the mobile phone and memory card. He exhibited CD containing Relevant Video Files as Ex. P2.
19.1 PW22 Chander Bose deposed that on 18.01.2015, he alongwith
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Rajesh had gone to police station Prashant Vihar where Rajesh handed over one mobile phone make Samsung to IO. He correctly identified the mobile phone during his deposition.
20.1 PW23 Rakesh Kumar deposed that he was having his office in Sector-16, Rohini, Delhi and in front of his office, there was office of Pradeep Aggarwal and Suresh Aggarwal. He further deposed that subsequently, he came to know that wife of Pradeep Aggarwal namely Savita was sister of his friend Rajesh Bansal s/o Sh. Brij Mohan Bansal.
20.2 He further deposed that in August 2012, Rajesh told him that Pradeep Aggarwal had given beatings to his sister Savita and in that connection he was present in police station KNK Marg. He further deposed that he also reached PS KNK Marg where family members of Rajesh and family members of accused Pradeep were present where accused Suresh Aggarwal had tendered apology on behalf of his son accused Pradeep. He further deposed that at police station, he was told by deceased Savita that she had been beaten by Pradeep, however, the matter was sorted out on that day.
20.3 During cross examination done on behalf of accused persons, he stated that he came to know about the death of Savita from Rajesh and thereafter, he went to police station. He stated that Rajesh told him regarding death of Savita during night itself. He stated that his statement was recorded only once and his signatures were obtained on his statement. He stated that his signatures were obtained by police on the Raajinama arrived at PS KNK Marg. He denied that he was never told by Savita that she had been beaten by her husband Pradeep.
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21.1 PW24 Jitender Singh @ Toni deposed that he knew family of
Rajesh Bansal since long as they were earlier residing in his native village Jaunti. He further deposed that deceased Savita, who was sister of Rajesh Bansal, was also known to him since childhood and he knew that Savita was married with one Pradeep Aggarwal and there used to be frequent quarrels in Sasural of Savita. He further deposed that he had gone to sasural of Savita on 5-6 occasions with Rajesh Bansal to sort out the dispute between Savita, her husband and her in laws. He further deposed that on some occasions, they had even gone to Sasural of Savita during night time, however, there was no change of circumstances. He further deposed that on 24.07.2014, he received a telephone call from Rajesh, who informed him that Savita had been killed by her in laws by putting her on fire.
21.2 During cross examination done on behalf of accused persons he stated that after death of Savita, his statement was recorded by the police at police station and he himself went to police station. He stated that he alongwith family members of Rajesh Bansal had gone to police station for lodging a complaint and they had gone to police station in that regard on 25.07.2014. He stated that he could not recollect the exact dates on which he had accompanied Rajesh and his family members to Sasural of Savita, however, there used to be frequent quarrels and they used to visit Sasural of Savita every 4-6 months.
22.1 PW25 Ajay Rohtagi deposed that on 23.07.2014 he received a phone call of Surender Bansal on his mobile phone bearing No. 9213952576 and Surender told him that Savita was beaten by her husband and her in laws in her matrimonial home and he wanted to make a written complaint to the police in that regard. He further deposed that on request of Surender Bansal, he SC No. 57713/16, PS Prashant Vihar Page No. 12 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
typed a complaint in Hindi which was addressed to SHO PS Prashant Vihar and SHO, Women Commission, Sector- 3, Rohini Delhi and after preparing the complaint, he took out its print and print was handed over the Surender. He further deposed that at that time, he was working with Sh. Tara Chand Bansal, MCD Councilor and prepared that complaint which is Ex. PW25/A on the computer installed in the office of Sh. Tara Chand Bansal. He further deposed that to receive the complaint, Surender had come to his office alongwith Savita. He further deposed that he also accompanied Surender and Savita to police station Prashant Vihar and to Women Commission, Sector-3, Rohini and thereafter he went to his house.
22.2 He further deposed that on the same day i.e., on 23.07.2014 at around 08:00-08:15 PM, he received a phone call from Surender Bansal, who told him that Savita had been burnt by her husband and her in laws and she had been taken to the hospital. He further deposed that he reached at Saroj Hospital where he came to know that Savita had already been taken to Safdarjung hospital. He alongwith Surender Bansal had also gone to Safdarjung Hospital and asked Savita as to what had happened on which Savita told him that she had been burnt by her in laws.
22.3 During cross examination done on behalf of accused persons he denied that Surender Bansal never told him anything regarding ill treatment and torture committed upon her sister Savita by her husband and other in laws. He denied that complaint Ex. PW25/A was drafted by him of his own and no such fact was ever told to him by Surender. He denied that Surender had not made any telephone call to him on 23.07.2014 and he had not gone to Saroj Hospital on 23.07.2014 and he never accompanied Surender Bansal to SC No. 57713/16, PS Prashant Vihar Page No. 13 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
Safdarjung Hospital. He stated that prior to recording of his statement on 14.02.2015, he never went to police station and never told anything to police as to what had been told to him by Savita while she was in the hospital. He denied that he never made any complaint to the police prior to recording of his statement as no such fact had ever been brought to his knowledge either by Surender Bansal or by deceased Savita.
23. PW27 Dr. Lingaraj Sahoo, Sr. Scientific Officer, Chemistry, FSL, Rohini deposed that on 09.09.2014 he received sealed parcels for examination. He further deposed that he chemically examined the parcels from 15.09.2014 to 31.10.2014 and prepared his report which is Ex. PW27/1.
MATERIAL/EYE WITNESSES 24.1 PW14 Atul Gupta deposed that on 23.07.2015 he went to Rohini Sector-11 house of his mausi i.e., accused Shyama Devi as he had been called to help her in shifting luggage. He further deposed that he alongwith his mausa i.e., accused Suresh Aggarwal to Sector-16 to get his car. After picking up the car, they straightway went to CNG Pump Station. He returned back to house of his mausi in Sector-11 at about 07:00 PM and started shifting luggage.
24.2 He further deposed that while they were shifting luggage, accused Pradeep's wife Savita entered the house and happened to pass by them and she was smelling as if she had poured something on her body. He further deposed that she said 'aap ja rahe ho, app ja rahe ho' and she went upstairs claiming that she had to take some goods. He further deposed that his mausa also SC No. 57713/16, PS Prashant Vihar Page No. 14 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
followed her upstairs to get goods and within 2-3 minutes, she set herself on fire. He further deposed that someone called the police and after police came, she took Savita to Saroj Hospital.
This witness has not been cross examined by Ld. Defence counsel.
25.1 PW7 Rajesh Bansal, happens to be brother of deceased, deposed that on 25.07.2014 he identified her dead body in Safdarjung Hospital mortuary vide statement which is Ex. PW7/1. He further deposed that his sister deceased Savita got married to accused Pradeep Aggarwal on 26.02.2001 and accused Pradeep and his mother i.e., accused Shyama Devi used to torture and harass the deceased in connection with dowry demands. He further deposed that deceased used to inform at her house and to him regarding harassment in matrimonial home and consequently, he had to go to her house number a times. He further deposed that sometimes he had to go there even during night hours and on some occasions, when there used to be intense quarrel (jayada jhagra), he even had to bring her back with him. He further deposed that often people used to sit together and get the matter settled and deceased used to be taken back to her matrimonial home by her in laws.
25.2 He further deposed that earlier deceased used to reside with her in laws at Sonepat but around two years prior to her death, they all shifted to Delhi. Initially, they shifted to Sector-16, Rohini. He further deposed that on one occasion quarrel took place between deceased, her husband and her mother in law when she was turned out of her house and complaint in that regard was made at Sector-16, PS KNK Marg and even he had to go to the police station in that regard. He further deposed that police officers intervened and settled the matter and he brought back deceased home.
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25.3 He further deposed that about 6-7 months thereafter, accused
Shyama Devi shifted to C-2/26 (Ist Floor), Sector-11, Rohini, Delhi and quarrel took place between deceased and accused Pradeep and accused Shyama Devi many times in the new house. He further deposed that as his house was nearby, many times, she came back to his house.
25.4 He further deposed that on 23.07.2014 at about 09:00 PM he received telephone call from his father, who informed him that deceased Savita had been burnt by her in-laws and she was admitted in Saroj Hospital by police. He further deposed that his father informed him that she was being given first aid only and that she had to be shifted from there and accordingly, he went to Safdarjung Hospital where he met his father and others.
25.5 He further deposed that he went inside the room and saw deceased lying there in burnt condition and doctor informed him that there was 90% burning. He further deposed that he talked to IO Karan Singh and asked him to come and to take statement of deceased Savita.
25.6 He further deposed that on 24.07.2014 in the morning, he again went to Safdarjung Hospital where his father informed him that although police had come on two occasions but statement of deceased was not recorded. He further deposed that he made calls to IO Karan Singh and even sent him two messages and requested him to record statement of deceased, however, he did not reply to his messages nor he came to record her statement. He further deposed that after sometime, he himself recorded statement of deceased by way of video recording on his mobile in presence of his father and brother. He stated that his sister stated that her mother in law threw oil on her while her SC No. 57713/16, PS Prashant Vihar Page No. 16 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
husband set her on fire and threw her in the bathroom. She further stated that mama i.e., accused Shiv Kumar from Najafgarh was also there alongwith jija of her saas and son of sister (Veena) of saas and one other person were also present there. He further deposed that he recorded her statement twice and thereafter, he came back from the hospital. He further deposed that at about 01:00-01:30 PM, he received telephone call from his brother to the effect that Savita had expired and informed him not to come to hospital and to remain at home. He further deposed that police officials called him and asked him to reach police station. Accordingly, he, his father and brother went to police station Prashant Vihar where they were asked about the entire incident and an application about the incident was got written from his father.
25.7 He further deposed that during evening hours of 25.07.2014, he received a telephone call from police officials of PS Prashant Vihar, who asked him to provide CD of the video recording which had been prepared by him and accordingly, he went to police station and handed over CD to them which was seized vide seizure memo which is Ex. PW7/2.
25.8 He was cross examined by ld. Addl. PP for the State wherein he stated that it was in his knowledge that prior to her death, deceased made a telephone call to police on 23.07.2014. He stated that on 23.07.2014 at about 04:15 PM Savita had gone to police station Prashant Vihar and made a complaint to police to the effect that she feared for her life at hands of her in laws. He stated that on 23.07.2014, deceased Savita had gone to Women Cell, Sector-3, Rohini and made a complaint there against her in laws. He stated that he was not sure but it might be possible that he handed over the CD to police on 26.07.2014 and not on 25.07.2014 and at that time one Rajiv Sharma was SC No. 57713/16, PS Prashant Vihar Page No. 17 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
also present with him.
25.9 He stated that two recordings done by him were between 11:43 AM and 11:46 AM. He stated that on 18.01.2015 he alongwith Chander Bose went to police station and handed over his mobile phone in which he recorded the video and same was seized vide seizure memo which is Ex. PW7/3.
He exhibited phone as Ex. P1 and CD as Ex. P2 during his deposition.
25.10 During cross examination done on behalf of accused persons, he stated that due to lapse of time, he could not tell the date when he came to know for the first time that accused Pradeep and his mother used to torture and harass deceased in connection with dowry demand. He denied that Savita never complained against any of her in laws or her husband or had never made any telephone call to them. He stated that on occasions, deceased used to stay with them 1½-2 months. He denied that no quarrel took place between Savita, her husband and her mother in law and she had never been turned out of her house by them. He denied that on inquiry, police of PS KNK Marg, found that husband of Savita was in bathroom and her mother in law was sitting in the house. He stated that he cannot say that if police on inquiry found the door was not opened as husband was in the bathroom and her mother in law sitting in the house. He denied that deceased Savita told the police officials that her father in law was only giving her Rs. 20,000/- per month for expenses and she had two children, he should be called upon to increase the amount.
25.11 He denied that concerned doctor told him that as Savita had suffered 90% burns, she could not speak and was unfit for statement. He SC No. 57713/16, PS Prashant Vihar Page No. 18 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
stated that he had not asked the doctor concerned to record statement of Savita if she made any statement. Although, he had not verbally asked any police officer, he sent SMS to police to record statement of Savita. He stated that before making video recording of statement of deceased, he asked the doctor concerned if she was fit to make a statement. He stated that he could not say if doctor had claimed that she was unfit to make a statement. He denied that deceased had not made any statement to him as she was not in position to make a statement. He denied that deceased was not in position to speak from the time she went to the hospital till she expired. He denied that he had not handed over the recording or copy thereof to police on 24.07.2014 or 25.07.2014 as he could not fabricate the recording till then.
26.1 PW9 Brij Mohan Bansal, who happens to be complainant in this case and father of deceased, he fully supported the case of the prosecution and deposed on the lines of his complaint which is Ex. PW9/1 given to the police. He added to his allegations that accused Shiv Kumar also used to torture the deceased on account of in sufficient dowry.
26.2 He added to his allegation that on 22.12.2004, the matter was reported to the police and accused Suresh and Pardeep were called in the police station and IO asked them to bring deceased from home but they never turned back to the police station.
26.3 He further added that on 25.08.2012, he lodged a complaint in police station KNK Marg regarding apprehension about safety of deceased. He further added that in the hospital during night time, deceased told him that Pardeep and his mother had poured some oil/petrol upon her and had set her on SC No. 57713/16, PS Prashant Vihar Page No. 19 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
fire. She also told him that besides Pardeep and his parents, four other persons were present in the house at that time and named them as Shiv Kumar, Amit s/o Veena, jija of Shyama Devi from Nangloi and one unknown person. He further deposed that deceased expired during course of her treatment on 24.07.2014 at about 01:25 PM.
26.4 He was cross examined by ld. Addl. PP for the State wherein he stated that whenever deceased came to his house, she used to tell him about demands made by her in laws and also about beatings given to her. He stated that on 23.07.2014 when his grand children came to his house, they informed him that their mother would come subsequently as some relatives had to come and she would come after making arrangements of food for them. He stated that on 24.07.2014 he was in hospital alongwith his son Rajesh when deceased stated about the circumstances of her death and same had been recorded by him in his mobile phone.
26.5 During cross examination done on behalf of accused persons, he stated that he had not mentioned in his statement that on 24.07.2014, he was in hospital with his son Rajesh when deceased told them about circumstances leading to her death and the same had been recorded by Rajesh on his mobile phone. He stated that he had mentioned in his statement to the police that besides accused Pardeep and his parents, four other people were present in the house at that time and also mentioned their names. He stated that he had not mentioned in his complaint that when IO asked accused Pardeep and his father to get deceased to police station, they went but never returned back to the police station with her. He stated that he had not mentioned in his statement about having made complaint/application dated 25.08.2012 to SHO PS KNK SC No. 57713/16, PS Prashant Vihar Page No. 20 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
Marg. He denied that no such complaint/application had been made by him.
26.6 He denied that he and Rajesh could not have been together with her in the ICU. His elder daughter Poonam and Surender were also there and had not mentioned this fact in his complaint. He stated that he could not tell the date when he was informed by deceased for the first time about she being harassed in her matrimonial home and no complaint in that regard was made to police at that stage. He stated that whatever had been given to deceased at the time of marriage and at the time of birth of her children, was given by him of his own will and as per customs. He denied that neither Pardeep nor his parents ever made any demand from him. He stated that no gathering of relatives had been held to sort out the demand qua luxury car being made by accused persons. He denied that his daughter never complained to him that she was being beaten or harassed in her matrimonial home. He denied that no demand for luxury car had been made when he had gone to hospital with his wife on birth of second child. He denied that no incident dated 23.06.2014 or 23.07.2014 had taken place in house of his daughter. He denied that deceased never came to his house on 23.07.2014 and had never told him about any quarrel in her matrimonial home and Surender had not accompanied her to police station and no assurance was given by SHO.
27.1 PW26 Surender Bansal, who happens to be brother of deceased, deposed on the lines of PW7 Rajesh Bansal and PW9 Brij Mohan Bansal.
27.2 During cross examination done on behalf of accused persons, he stated that he did not remember the date and time when he visited the matrimonial house of deceased after her marriage. He denied that he did not SC No. 57713/16, PS Prashant Vihar Page No. 21 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
remember the date and time as he never visited the house of his sister at Sonipat and no incident of beating with his sister had happened. He denied that his sister was living in her matrimonial home happily and no incident of beating was ever happened. He denied that he never visited the matrimonial house of deceased for making her in laws understand.
27.3 He stated that he did not remember whether he or his father had made any complaint regarding beatings to his sister to police officials. He denied that they did not make any complaint to the police after demand of dowry as no such incident took place and in laws and husband of deceased never demanded dowry. He denied that he was called for the identification of dead body of deceased and he had no knowledge about the incident. He denied that on 11.05.2006, in laws of deceased sister did not visit his house for apologizing. He denied that 23-24.06.2014, deceased was never thrown out from her matrimonial home by her husband and her in law and she never came to her house and did not make any call to the police. He stated that statement of his father was recorded by police on cremation day of his sister on 25.07.2014 and his statement was not recorded by the IO on that day neither he was called by the police nor he visited the police of his own.
27.4 He denied that his sister never made any allegation against her husband and her in-laws and she visited the police station and gave any complaint against them in the police station as well as CAW Cell. He stated that when they reached at Saroj Hospital, they met SI Karan Singh Khatri and requested him to record the statement of his sister but he flatly refused. He stated that on the way to Safdarjung Hospital, deceased told him that she was burnt by her husband, mother-in-law, father in law and one relative namely SC No. 57713/16, PS Prashant Vihar Page No. 22 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
Amit and other relatives whose name she did not know. He stated that during the treatment with the permission of doctor, his brother Rajesh Bansal recorded video recording in which she disclosed the name of accused persons and she narrated all the incident happened with her in her matrimonial house.
WITNESSES OF INVESTIGATION 28.1 PW16 SI Karan Singh (Retd.) deposed that on 23.07.2014, on receipt of DD No. 32A, he alongwith Ct. Pawan went to the spot i.e., First Floor, C-2/26, Sector-11, Rohini where he came to know that injured had already been removed to Saroj Hospital. He further deposed that after leaving Ct. Pawan at the spot, he went to Saroj Hospital and obtained MLC of Savita Aggarwal wherein it was mentioned that patient was unfit for statement and had been referred to Safdarjung Hospital on account of burn injuries.
28.2 He further deposed that DD No. 32A was kept pending for inquiry and he returned back to the spot. He seized the exhibits from the spot. He further stated that he went to Safdarjung Hospital where injured was declared as fit for statement. He further stated that he went to SDM at Greater Kailash and alongwith SDM Sh. S. K. Meena, he returned back to Safdarjung Hospital and by that time, injured was declared unfit for statement. He further deposed that after dropping back the SDM, he returned back to the hospital and by that time, injured Savita had been declared as dead.
28.3 He further stated that he recorded statement of Brij Mohan i.e., father of deceased in hospital. He further deposed that he returned back to police station and handed over the statement, MLC and other documents to SC No. 57713/16, PS Prashant Vihar Page No. 23 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
Inspector Naresh Kumar as further investigation was conducted by him.
28.4 He was cross examined by Ld. Addl. PP for the State wherein he stated that he returned back to the spot from Saroj Hospital and he summoned the crime team and got the spot inspected. He stated that doctor in Saroj Hospital had handed over to him a pullanda bearing seal of Saroj Hospital containing burnt clothes of deceased alongwith sample seal which were seized vide seizure memo which is Ex. PW16/1. He further stated that in the intervening night of 23-24.07.2014, Savita had been declared fit for statement at 01:50 AM and she had been declared unfit for statement at 03:35 AM when he reached hospital alongwith SDM. He stated that he moved applications before CMO which are Ex. PW16/2 and Ex. PW16/3 for recording statement of injured. He further stated that during intervening night of 24-25.07.2014 he had gone to the spot alongwith IO and pointed out the spots from where IO had seized the exhibits and prepared the site plan at his instance.
28.5 He further stated that on 25.07.2014 he had gone to Safdarjung Hospital alongwith Ct. Pawan for postmortem on dead body of deceased. He prepared the inquest papers which are Ex. PW16/4, Ex. PW16/5 and Ex. PW16/6. He stated that after postmortem, doctor handed over to him a sealed pullanda containing scalp hair of deceased alongwith sample seal of Safdarjung Hospital. He further stated that dead body had been identified by relatives of deceased i.e., brothers and their statements Ex. PW7/1 and Ex. PW16/7 were recorded by him and thereafter, dead body was handed over to legal heirs of deceased.
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28.6 During cross examination done on behalf of accused persons he
denied that he had signed the documents at the instance of IO and no proceedings were ever took place in his presence. He denied that he signed statement of Brij Mohan Bansal and he had not recorded the same.
29.1 PW17 Inspector Naresh Dagar deposed that in the evening of 24.07.2014, Sh. Brij Mohan Bansal came to police station and gave his statement. He further deposed that he endorsed the statement and prepared rukka which is Ex. PW17/1 and handed over the same to duty officer for registration of FIR. He further deposed that he alongwith SI Karan Singh reached at the place of occurrence i.e., C-2/26, First Floor, Sector-11, Rohini, Delhi and prepared site plan which is Ex. PW17/2 at the instance of SI Karan Singh. He further deposed that as it was odd night hours, no further evidence could be collected at that stage, so he returned at the police station.
29.2 He further deposed that on 26.07.2014 Rajesh, brother of deceased alongwith Rajiv Sharma, came to police station and Rajesh handed over CD to him and claimed that the said CD contained dying declaration made by deceased Savita and he seized the same.
29.3 He further deposed that on 27.07.2014, he made inquiries from one Atul Gupta, who reportedly present at the spot at the time of incident. He further stated that in the evening of 26.07.2014, he arrested accused Pradeep Aggarwal and conducted his personal search. He further deposed that on 25.07.2014 postmortem of the body was got conducted through SI Karan Singh and inquest papers were prepared by him.
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29.4 He further deposed that during investigation, it transpired that on
the day of incident i.e., on 23.07.2014, deceased Savita had earlier come at the police station and had also gone to CAW Cell, Sector-3, Delhi and gave complaints at both the places, apprehending danger to her life from her husband and other in-laws. He further deposed that during investigation, he made application to the concerned authorities for providing CDRs and CAF with respect to mobile phone No. 8860995541 which was being used by deceased Savita and same was received on 12.08.2014. He further deposed that he collected the SOC visit report and photographs of the spot clicked by Mobile Crime Team.
29.5 He further deposed that on 25.08.2014 complainant Brij Mohan Bansal came to the police station alongwith his son Rajesh and he asked them to hand over the mobile set in which the dying declaration made by deceased as claimed by Rajesh had been recorded and both of them stated that they would hand over the same on the next day.
29.6 During cross examination done on behalf of accused persons he denied that nobody gave statement and he fabricated the statements of some persons saying them that they were witnesses.
30.1 PW 20 SI Yogesh Raj deposed that on 02.09.2014, further investigation was marked to him. He further deposed that he played the CD in the laptop which had already been seized and in the said CD, there was some conversation between deceased Savita and her brother Rajesh. He further deposed that the conversation was in question answer form and in the CD, deceased was heard saying that she was burnt by accused persons after pouring SC No. 57713/16, PS Prashant Vihar Page No. 26 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
kerosene upon her.
30.2 He further deposed that on 05.09.2014, he went to the place of occurrence but the house was found locked and at the ground floor of the said premises, one lady namely Smt. Sunita was found residing. He made enquiries from her and she told him that she had already been examined by Inspector Naresh Dagar. She further informed him that there used to be frequent quarrels between the deceased on one side and her husband and other in laws on other side. She further told that she was not on talking terms with the family of accused persons, so she never tried to know as to what was the cause of quarrels and she never tried to intervene.
30.3 He further deposed that on 10.09.2014, he visited house of complainant Brij Mohan Bansal and met son of complainant Sh. Rajesh Bansal in presence of complainant. He further deposed that children of deceased were residing with complainant and he met with the children of deceased but they were under mental trauma. He further deposed that he made request to Rajesh Bansal to hand over his mobile in which he had recorded and videographed conversation between him and his deceased sister, however, Rajesh Bansal refused to hand over the same stating that the same was with his lawyer.
30.4 He further deposed that on 14.09.2014, he interrogated accused Suresh and Shiv Kumar. During investigation, efforts were made to seize the mobile of brother of deceased and he seized the same on 18.01.2015.
He correctly identified the mobile phone and memory card Ex. P1A.
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30.5 During cross examination done on behalf of accused persons,
he stated that statement of witnesses Rakesh Kumar, Jitender Singh, Ajay Rastogi and Chander Bose, under section 161 CrPC were recorded by him after attending bail applications. He denied that he recorded the statement of these witnesses in connivance with the complainant to falsely implicate the accused persons. He stated that Rajesh Kumar did not give any certificate under section 65-B regarding the mobile. He denied that he seized the mobile phone despite knowing the fact that it was a tampered device. He denied that he also fabricated and manipulated the contents and voice in the CD. He denied that he conducted biased investigation to strengthen the case of complainant and intentionally not examined the children of deceased and accused as they were stating the true facts and they were saying that there was no fault of their father in the death of deceased and no evidence came on record regarding demand of dowry or cruelty in this regard and despite that he charge sheeted the accused persons.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
31. After closure of PE, the statement of the accused were recorded u/s 313 Cr.P.C. on 19.10.2022, wherein they stated that they have been falsely implicated in this case. All accused persons have pleaded that accused Pradeep Aggarwal was having two joint properties with the deceased i.e., H. No. C- 2/26, Sector -11, Rohini and F-7/121, Sector-16, Rohini. The family of the deceased was pressuring the deceased and accused for transferring of the sole ownership of the deceased. They have further stated that they got shifted from Sonipat to Delhi due to pressure of the family of the deceased. It is further pleaded by them that intervention of the family members of the deceased got increased and they never demanded any dowry either from the deceased or SC No. 57713/16, PS Prashant Vihar Page No. 28 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
from her family and never beaten the deceased. It is stated that deceased created a scene to commit suicide to pressurize accused Pradeep to transfer the property but she expired during the incident.
Accused persons opted to lead any defence evidence in their defence.
DEFENCE EVIDENCE 32.1 During defence evidence accused Pardeep Aggarwal examined himself as DW1.
32.2 DW1 Pardeep Aggarwal deposed that he got married with deceased Savita on 26.02.2001 which was an arranged marriage and no dowry demand was made from their side. He further deposed that out of the said wedlock, two sons i.e., Kartik and Naitik were born and no demand was raised on the birth of his sons from the parents of deceased. He further deposed that after the birth of his children, deceased forced him to shift to Delhi.
32.3 He further deposed that on 04.04.2007, he had been operated for slip disc and thereafter, he was unable to do the heavy lifting work. He exhibited his medical record as Ex. DW1/X. He further deposed that in the year 2010, his parents purchased Flat No. 2/26, Ist Floor, Sector-11, Rohini, Delhi in his name as well as in the name of his deceased wife vide sale deed which is Ex. DW1/A and they shifted in the said flat in the year 2012. He further deposed that in the year 2011, his parents purchased another property in his name as well in name of deceased at Sector-16 vide sale deed which is Ex. DW1/B. He further deposed that another property was purchased by his parents in the name of his mother in law as well as in the name of deceased in SC No. 57713/16, PS Prashant Vihar Page No. 29 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
the year 2014 vide sale deed which is Ex. DW1/C. He further deposed that deceased used to quarrel with him for getting the properties registered in their joint names to her sole name only at the instigation of her parents. He further deposed that interference of his in laws got increased in his house after they shifted to Delhi. He further deposed that on 23.07.2014, deceased made a call to the police and when the police arrived and enquried the matter, they found it only to be a money dispute. He further deposed that as deceased used to habitually call the police, his parents, who used to reside with them in Delhi, opted for shifting to some other flat. He further deposed that on the same day i.e., 23.07.2014, his parents called his cousin (mausi's son) Atul, who used to reside in Rani Bagh, for shifting of their luggage to some other flat. His maternal uncles also visited their house for giving the goods on the occasion of Teej and at that time deceased was at her maternal home. He further stated that his parents called the deceased and asked her to come back home for preparation of some snacks. He further deposed that after some time, his wife came back after pouring oil on her. She went upstairs on the first floor and set herself on fire and came on the ground floor. When she came down, some fire was still alive and she touched the clothes of his maternal uncle (mama). Thereafter, they called the police at number 100. He further deposed that deceased set herself on fire so as to scare them so that his parents would not shift to another flat and dispute could remain alive.
32.4 He further deposed that in the year 2012, his mother was operated for her knees and she was asked not to climb the stairs. He exhibited the copy of medical documents as Ex. DW1/D. His father is also suffering from heart disease. He further deposed that in the year 2013 on the occasion of his marriage anniversary, he gifted a diamond ring to the deceased and exhibited SC No. 57713/16, PS Prashant Vihar Page No. 30 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
bill in this regard as Ex. DW1/E. 32.5 He further deposed that his wife also used to invest money in some committee being run by her brother and half of the amount of the committee was contributed by the deceased and half by his mother in law. He exhibited the details of said committee as Ex. DW1/F. He further deposed that on 22.04.2014, deceased transferred Rs. 40,000/- from her account into the account of her father. He exhibited copy of statement of account of deceased as Ex. DW1/G and copies of bank account of deceased as Ex. DW1/H. He further deposed that deceased used to maintain one diary having details of money transactions and copy of the same is Ex. DW1/J. They also celebrated birth of their children and exhibited one of the celebration card as Ex. DW1/K. He further deposed that parents of deceased used to live in Sector-11, Rohini which was at some distance from their flat and deceased frequently visited her maternal house. He further deposed that he and his family members are innocent and deceased was never harassed, tortured on the pretext of alleged demand of dowry and she was not compelled or forced to commit suicide. He further deposed that she committed suicide as she wanted to get transfered a property in her name.
32.6 During cross examination done on behalf of State he stated that he used to run agency of certain products such as Colgate, Topaz Blade, Lazer Blade and some other articles and used to earn Rs. 40,000-50,000/- per month from the said work. He further stated that his mother is a housewife and his father used to work as a lawyer at Sonipat District Court and used to deal the matters of taxation. He further stated that his father also purchased a commercial property i.e., F-7/121, Sector-16, Rohini and used to run an office SC No. 57713/16, PS Prashant Vihar Page No. 31 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
for the business of property dealing. He further stated that initially, his father purchased a Santro Car for him in the year 2000 and later, he purchased a Santro car in the year 2009 in exchange of said Santro Car and also made payment of around Rs. 3 lacs. He further stated that he again purchased a Maruti Swift car in the year 2014 for a consideration amount of Rs. 5,50,000/-. He never bought any jewellery articles for his wife from 2001 to 2016. He further stated that he does not know the consideration amount of property i.e., Flat No. 121, Ground Floor, Block and Pocket F-7, Sector-16, Rohini as the amount was paid by his father. He stated that he visited the office of Registrar in connection of purchase of all the abovesaid properties and payment was made by his father partly in cash and partly through cheque but he does not know how much amount was paid in cash and how much was paid through cheque.
32.7 He stated that he could not tell date, month and year of the quarrel on the issue of transferring the property in the name of deceased. He could not tell whether any meeting with the elders of the family was ever took place to sort out the matter and whether the quarrel took place in front of any of his relatives. He denied that no such quarrel took place between the deceased and his family members, therefore, no meeting was took place with the elders of family and for this reason, no complaint was made to any authority including police.
32.8 He stated that deceased made a complaint in police station KNK Marg when he was living in Sector-16, Rohini. He further stated that he does not know whether father of deceased made complaint to the police, however, they shifted to accommodation at Sector-11, Rohini. He denied that his both SC No. 57713/16, PS Prashant Vihar Page No. 32 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
children are in cutsody of father of deceased and their school fees/college fees are also borne by him. He further denied that from 2014 onwards his both children are living with their maternal grandfather. He further denied that elder son had been studying at Swaran Path School at Sonipat, Haryana as he could not cope up in Delhi. He denied that consideration amount of the commercial property was paid by the deceased and half of the amount was paid by mother of deceased. He denied that deceased was given beatings on 23-24.08.2012 and she was turned out of her matrimonial house on 25.08.2012. He stated that a PCR call was made in this regard by the deceased. Both the families were called at police station and when they had written an apology letter, matter was settled.
32.9 He denied that on 23.06.2014, he had turned out deceased from her matrimonial house and a PCR call was made which was attended by ASI Rattan Singh. He further denied that matter was resolved with the help of relatives on 23.07.2014 and after settlement, she was again given beatings and deceased went to police station at 03:00 PM and made a written complaint and at Women Cell at 05:00 PM and thereafter, she went to her matrimonial home. He further denied that as his family/relatives were not living on ground floor and there was no question of her coming to downstairs on the ground floor.
32.10 He further denied that she was put on fire by them and she never came downstairs on ground floor. He denied that since he was not earning anything, therefore, fees of his both children was paid by his father till 2014 and thereafter, they were being looked after by his father in law. He denied that since he was not earning anything right from the beginning i.e., from date of his marriage till 2023, therefore, all the payments with regard to maintenance SC No. 57713/16, PS Prashant Vihar Page No. 33 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
of his children from 2014 till 2023 were done by his parents from their account.
32.11 He denied that he was not earning anything, therefore, he did not contribute anything towards purchase of both the properties in Delhi. He further denied that he received the amount after the death of his wife from her account. He further denied that parents of his wife gave huge amount of gold in the marriage and same was lying with him. He further denied that his wife was harassed by them and she was beaten and police complaint was made by her.
33. Thereafter, matter was fixed for final arguments.
ARGUMENTS
34. I have heard Ld. Addl. PP for the State, Sh. Satyam Sisodia, Ld. counsel for the accused persons and Sh. Gajraj Singh, Ld. Counsel for complainant.
35.1 It is argued by Ld. Addl. PP that the allegations levelled against the accused are of serious nature. All of them in furtherance of their common intention committed murder of deceased Savita by setting her ablaze on fire on the fateful day. No other person was present in the said house except the accused persons. Therefore, it cannot be presumed that somebody else is involved in unnatural death of the deceased. Deceased was subjected to cruelty for a long time. She was thrown out of her house on 23.06.2014 but accused persons allowed her to enter the house only after intervention of the police as deceased made a call at number 100 on that day.
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35.2 On 23.07.2014, deceased was again beaten by accused Pradeep
Aggarwal and she called the police around 09:55 AM. Police reached at the spot and left without taking any action against the accused persons. Accused persons continued to harass the deceased and she filed a complaint before CAW Cell, Rohini at 02:30 PM on the date of incident wherein she had categorically alleged that accused persons had tried to murder her several times. She apprehended her death and stated that accused persons would murder her and may convert her murder as an accident or suicide. On 23.07.2014 itself she was burnt at C-2/26, Sector-11, Rohini by the accused persons and she expired in Safdarjung Hospital on 24.07.2014 on account of burn injuries suffered by her.
35.3 It is further argued by ld. Addl. PP for the State that prior to her death, her brother Rajesh Bansal (PW7) recorded her two dying declarations in his mobile phone at 11:43 AM and 11:45 AM wherein she categorically described as to how she was murdered by the accused persons. As per FSL report, the videos of her dying declaration are not morphed or altered and found to be genuine. No tampering was detected in these videos and this is an evidence of sterling quality which in itself is sufficient to convict the accused persons. Prosecution has examined Rajesh Bansal as PW7, Brij Mohan Bansal as PW9 and Surender Bansal as PW26 to prove the fact that deceased was subjected to cruelty soon before her death. Moreover, her complaint to CAW Cell speaks volume about the cruelty committed by the accused persons upon her. Hence, prosecution has successfully proved its case against the accused persons beyond reasonable doubt.
36. Ld. Counsel for complainant Sh. Gajraj Singh has also supported SC No. 57713/16, PS Prashant Vihar Page No. 35 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
the submissions of ld. Addl. PP for the State.
37.1 Per contra, Sh. Satyam Sisodia and Ms. Babita Ahlawat, Ld. counsels for accused persons have argued that dying declarations relied upon by the prosecution is inadmissible and cannot be relied upon by the court as it was recorded by brother of the deceased, who is an interested witness. Prior to recording of those dying declarations, no medical certificate was taken from the doctor concerned to prove the fact that deceased was in a fit state of mind at the time of recording of alleged dying declarations. It is argued that the dying declarations are tutored and PW7 Rajesh can be heard clearly prompting the deceased for framing the accused persons. It is argued that prosecution has examined PW14 Atul Gupta and he has deposed that he was present at the spot. Deceased came from outside and she was stinking as she had poured something on her. She straightway went to the first floor and she was pursued by accused Suresh Kumar Aggarwal and after 2-3 minutes she put herself on fire. Sh. Sisodiya and Ms. Ahlawat submitted that the tainted dying declaration recorded by brother of the deceased have no evidentiary value in comparison to the version of eye witness PW14 Atul Gupta.
37.2 Moreover, the incident of 23.06.2017 and 23.07.2014 were reported to the police and as per arrival entries recorded by the police officers after attending those calls, it transpired that there was no incident of beating of deceased and that is why no action was taken on those calls by the police. It is further argued that the family of the deceased was forcing the accused persons to transfer the ownership of two properties in the name of deceased as properties were jointly held by deceased with her husband and mother in law. This was the bone of contention between the families.
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37.3 Deceased tried to create a scene by setting her stole on fire to
pressurise the accused persons as accused Suresh Kumar (sasur) and Shyama (saas) were shifting on that day due to frequent quarrels initiated by the deceased. Unfortunately, the fire spreaded at a rapid pace and engulfed the deceased entirely in no time resulting in 90% burn injuries which proved fatal in nature. Therefore, prosecution has failed to prove its case under section 306/498-A IPC and also under section 302 IPC as an alternate charge was framed by the court against the accused persons. Ld. Counsel for the accused have relied upon Koli Chunni Lal Savji Vs. State of Gujarat 1999 (9) SCC 562, Ram Singh Vs. State 1997 CrLJ 372 (DHC) and Laxman Vs. State of Maharashtra 2002 (2) JCC 1494 to buttress their arguments in support of accused persons.
38. I have heard the arguments at length and perused the entire record. I have also gone through the written synopsis filed on behalf of accused persons as well as complainant and case laws relied upon by the parties.
FINDINGS
39. Accused Pardeep Aggarwal, Suresh Kumar Aggarwal and Shyama Devi have been charged for the commission of offences punishable under sections 498-A/306/302/34 IPC whereas accused Shiv Kumar has been charged under section 302/34 IPC.
40. The relevant sections are reproduced as under:
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SECTION 302 IPC
Punishment for murder.--Whoever commits
murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine.
SECTION 498 A IPC [498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] SECTION 306 IPC Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
SECTION 34 IPC
34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
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SECTION 113 A INDIAN EVIDENCE ACT 113-A. Presumption as to abetment of suicide by a married woman. [Inserted by Act 46 of 1983, Section 7.]- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
41. It is a settled law of criminal jurisprudence that a person is believed to be innocent till the guilt is proved against him. This principle is called The Presumption of Innocence. In another words, the accused is entitled to take advantage of reasonable doubt in respect of his crime.
Presumption of Innocence is a re-statement of the rule that in criminal matters the prosecution has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged.
Thus, the inference which is culled out from the above is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt.
LAW RELATED TO DYING DECLARATIONS 42.1 It is the case of the prosecution that deceased was subjected to cruelty by the accused persons right from the day one she got married to accused Pradeep Aggarwal on 26.02.2001. Accused persons used to torture her for bringing less dowry at the time of marriage. Accused Pradeep demanded a SC No. 57713/16, PS Prashant Vihar Page No. 39 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
luxury car initially at the birth of first child and subsequently, on the birth of second child. Many times negotiations took place between the parties but of no avail. Initially, deceased used to reside at Sonipat but thereafter, the whole family got shifted to Rohini in 2012. A complaint dated 25.08.2012 was lodged at PS KNK Marg against the accused persons. She was thrown out of her house on 23.06.2014 and she was again beaten on the date of the incident i.e., 23.07.2014. She informed the police at 09:55 AM and also gave a written complaint to CAW Cell at 02:30 PM on the same day. At 07:45 PM DD entry No. 32A was registered at PS Prashant Vihar to the effect that one lady has put herself on fire. She was shifted to Saroj Hospital and thereafter, referred to Safdarjung Hospital where she ultimately expired on 24.07.2014 soon after recording of her dying declarations. The main focus of the prosecution's case is on two dying declarations recorded by PW7 Rajesh Bansal to prove the fact that deceased was killed by accused persons and she had not committed suicide. Since this court is dealing with two dying declarations of the deceased recorded soon before her death at 11:43 AM (1 minute 13 seconds) and 11:45 AM (43 seconds), it would be apt to discuss the concept and precedents laid down by Hon'ble Higher Courts on this issue.
42.2 The Principle of dying declaration is incorporated in Indian Evidence Act under section 32(1) which reads as under:
"Section 32(1) in The Indian Evidence Act, 1872 (1)When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when SC No. 57713/16, PS Prashant Vihar Page No. 40 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
Section 32(1) relates to Statements made by a person, written or verbal of relevant fact and the deponent is dead or cannot be found, such statement falls into the category of 'dying declaration'. The basic premise is nemo moriturus praesumitur mentire i.e., man will not meet his maker with a lie in his mouth. The dying declaration must have some proximate relation to the occurrence. In Pakala Narayan Swami Vs. Emperor (1939) 26 AIR PC 47 the privy council explained the phrase "circumstances of the transaction"
while holding as under:
"The circumstances must be circumstances of the transaction : general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. 'Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence' which includes evidence of all relevant facts. It is on the other hand narrower than 'res gestae'. Circumstances must have some proximate relation to the actual occurrence : though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that 'the circumstances' are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known SC No. 57713/16, PS Prashant Vihar Page No. 41 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that 'the cause of (the declarant's) death comes into question'."
42.3 In Laxman Vs. State of Maharashtra AIR 2002 SC 2973, a constitution bench of Hon'ble Supreme Court held as under:
"when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The situation in which a man is on the death bed is so solemn and serene, is the reason in law to accept the veracity of his statement".
42.4 Another landmark judgment of Hon'ble Supreme Court in this regard is Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 wherein it was held as under:
"21. ... (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait jacket. Distance of time would depend or vary with the circumstances of each case.
For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of SC No. 57713/16, PS Prashant Vihar Page No. 42 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.
(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."
42.5 In Khushal Rao Vs. State of Bombay AIR 1958 SC 22, it was
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held that once the court comes to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration and such dying declaration can form the sole basis of conviction. Similar view was taken by Hon'ble Supreme Court in Suresh Chandra Jana Vs. State of West Bengal (2017) 16 SCC 466 and Jayamma Vs. State of Karnataka AIR OnLine 2011 SC 570.
42.6 In Prakash Vs. State of Madhya Pradesh AIR 1993 SC 65 it was held that where deceased victim knew assailants and gave their names to his family members at first opportunity, his dying declaration could be relied upon.
42.7 In Nanhar Vs. State of Haryana JT 2010 (6) SC 196, it was held that dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. It should not be a result of tutoring.
42.8 In Waikhom Yaima Singh Vs. State of Manipur JT 2011 (6) SC 355 it was held that there can be no dispute that dying declaration can be the sole basis of conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it.
42.9 In Madan Vs. State of Maharashtra (2019) 13 SCC 464, it was
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held by Hon'ble Supreme Court that in order to rely on a dying declaration, it must fully satisfy the confidence of the court, since the persons who made such a statement is no longer available for cross examination or clarification or any such like activity.
42.10 In Panneerselvam Vs. State of Tamil Nadu (2008) 17 SCC 190, it was held that though dying declaration is entitled to great weight but it is worth while to note that the accused has no power of cross examination. This power is essential for eliciting the truth as an obligation of an oath could be. This is the reason that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness.
42.11 In Paniben Vs. State of Gujarat (1992) 2 SCC 474, it was held that the court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or product of imagination.
42.12 In Shama Vs. State of Haryana (2017) 11 SCC 535, it was held that court must be satisfied that at the time of making such a statement, the deceased was in a fit "state of mind" and it is a prerequisite alongside the ability to recollect the situation and the state of affairs at that point in time in relation to the incident. Similar view was taken by Hon'ble Supreme Court in Uttam Vs. State of Maharashtra (2021) SCC OnLine Bom138 wherein it was held that in order to make a determination of the state of mind of the person making the dying declaration, the court ordinarily rely on medical evidence however, equally it has been held that if witnesses present, at the time of statement being made, state that the deceased while making the statement was in a fit statement of mind, such statement would prevail over the medical SC No. 57713/16, PS Prashant Vihar Page No. 45 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
evidence. The statement of witnesses present would prevail over the opinion of the doctor.
42.13 In Laxman's case (discussed supra) it was further opined that mere absence of doctor's certificate in regard to the "fit state of mind" of the dying declarant, will not ipso facto render such declaration unacceptable.
42.14 In State of Maharashtra Vs. Krishnamurti Laxmipati Naidu (1980) SUPP SCC 455, it was held that if the dying declaration, while being briefed contains essential information, the court would not be justified in ignoring the same. Merely because the declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity.
42.15 In Govind Narain Vs. State of Rajasthan (1993) SUPP (3) SCC 343, it was held that the examination of the person who reduced the drying declaration into writing, is essential particularly in absence of any explanation forth coming from the production of evidence. Similar view was taken in Kansraj Vs. State of Punjab (2000) 5 SCC 207 wherein it is held that to make such statement as substantive evidence the person of the agency, relying upon the statement, is under a legal obligation to prove the making such statement as a fact. If it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.
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42.16 The law on dying declaration is well settled now and the landmark
judgment is Sharad Birdichand Sarda (discussed supra) which stands consistently followed up until Kamal Vs. State (NCT of Delhi) 2023 SCC OnLine SC 933.
Following the principles laid down by Hon'ble Supreme Court qua the doctrine of dying declaration, I shall delve upon the evidence adduced by the prosecution against the accused persons.
GENUINENESS AND AUTHENTICITY OF DYING DECLARATIONS
43. PW7 Rajesh Bansal is the person, who had recorded the dying declaration of the deceased soon before her death at 11:43 AM and 11:45 AM. Both these declarations in the form of CD were handed over to the police on 26.07.2014 i.e., after one day of registration of FIR which was seized vide seizure memo which is Ex. PW7/2. However, the mobile phone vide which dying declarations were recorded was handed over to the IO by PW7 on 18.01.2015 vide seizure memo which is Ex. PW7/3. After seizing the mobile phone, IO sent the same to FSL to verify the authenticity and genuineness of the dying declarations in the form of video clips. FSL result has been exhibited by PW21 Dr. C. P. Singh as Ex. PW21/1 and CD containing relevant videos as Ex. P2. As per PW21 C. P. Singh, he examined the video files of video recordings dated 24.07.2014 and there was no indication of alteration in the identified video shots on the basis of frame by frame examination. Therefore, as per the opinion of PW21 Dr. C. P. Singh and his report Ex. PW21/1 both video recordings containing dying declarations of the deceased were not affected by any alteration, modification and improvement. This is also not the case of the accused persons that the lady appearing in these dying declarations is someone else and not the deceased or that both dying declarations were not SC No. 57713/16, PS Prashant Vihar Page No. 47 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
recorded in the hospital at the time and place claimed by PW7 Rajesh Bansal. Therefore, it is proved that both dying declarations which were recorded by PW7 Rajesh Bansal soon before the death of the deceased in the hospital, are found to be authentic and their genuineness is not under question. After recording of dying declarations, deceased was declared dead by the doctor at 01:25 PM.
ABSENCE OF FITNESS CERTIFICATE BY THE DOCTOR 44.1 Sh. Satyam Sisodia, ld. Counsel for accused persons has attacked the credibility and admissibility of dying declarations of the deceased on the ground that same were recorded by PW7 Rajesh Bansal without issuance of any 'certificate of fitness' by the doctor. It is argued that PW7 Rajesh Bansal is the brother of the deceased and an interested witness. Absence of fitness certificate reflects that both dying declarations were recorded after being tutored by the interest family members to falsely implicate the accused persons.
44.2 It is correct that no certificate was procured by PW7 Rajesh Bansal prior to recording dying declarations of the deceased. Initially, deceased was admitted in Saroj Hospital and from there she was referred to Safdarjung Hospital. PW16 IO SI Karan Singh moved a request for statement of injured which is Ex. PW16/2 and at 01:50 AM on 24.07.2014 and the patient was declared to be conscious, oriented and fit for statement. PW16 SI Karan Singh came back to the hospital alongwith SDM and he again moved a request for statement of injured which is Ex. PW16/3. On this request, it was reported by the doctor at 03:35 AM that patient was not conscious, not oriented to time, place and person and thus, she was declared not fit for the statement. Ex.
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PW16/3 has been endorsed by SDM at 03:40 AM. Only these efforts are apparent on record vide which PW16 SI Karan Singh tried to get recorded the statement of deceased before the SDM. From 03:40 AM till her death, no other application was moved by any of the police officer.
44.3 PW7 Rajesh Bansal has deposed before the court that he requested the IO for recording of statement of his sister and he had deposed as under:
"I came out and again talked to Karan Singh and even sent him two messages. I requested him to record statement of my sister as it was urgent. Karan Singh did not reply to my message nor did he come to record her statement. After sometime, I myself recorded statement of my sister by way of video recording on my mobile. My father and brother were with me at that time. My sister stated that her mother in law threw oil on her while her husband had set her on fire and thrown her in the bathroom. She further stated that mama Shiv kumar from Najafgarh was also there alongwith jija of her saas, son of sister (Veena) of saas and one other person were also present there. I had recorded her statement twice. Thereafter, I came back from the hospital alongwith the children."
44.4 After going through the deposition of PW7, it is clear that he had tried his level best for getting recorded the statement of deceased and he could have only requested the IO SI Karan Singh to do the needful. When SI Karan Singh did not take any action, PW7 Rajesh had no option but to record the statement of deceased in the form of video recording through his mobile. This SC No. 57713/16, PS Prashant Vihar Page No. 49 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
witness has been cross examined on behalf of accused persons and there is no suggestion that he did not send the messages to the IO for recording of statement of the deceased. In fact, IO SI Karan Singh is also silent about receiving such messages from PW7 in his deposition and this court has no confusion that PW7 had tried his level best to get recorded the statement of the deceased through proper channel by requesting the IO. Since, no action was taken by SI Karan Singh, PW7 Rajesh Bansal had no option but to record the statement of his own.
44.5 In his cross examination PW7 Rajesh Bansal deposed that before making video recording of statement he did ask the doctor, if she was fit to make a statement or not. Doctor did not give in writing that she was fit for the statement. PW7 could not tell whether the doctor had declared her unfit for statement.
44.6 In Laxman's case (discussed supra) it has been laid down by Hon'ble Supreme court that absence of fitness certificate by the doctor would not ipso facto render the dying declaration inadmissible. Ideally, dying declaration may be recorded in presence of Magistrate as he is a neutral person and after fitness certificate issued by the concerned doctor. The presence of Magistrate and the fitness certificate by the doctor are rules of caution to rule out prompting and tutoring of the deceased before making dying declaration. There is no mandatory rule that a dying declaration can only be recorded in presence of Magistrate after obtaining fitness certificate from the doctor. Both these aspects are related to the satisfaction of the court to come to a conclusion that the dying declaration of the deceased is nothing but truth and free from tutoring and prompting. Therefore, the credibility and admissibility of dying SC No. 57713/16, PS Prashant Vihar Page No. 50 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
declarations cannot be doubted merely because same were not recorded without having a fitness certificate from the doctor. It is quite understandable that being a layman PW7 Rajesh Bansal was not supposed to know the legal formalities prior to recording of dying declaration. This court is able to understand the frustration and plight of a brother, who was trying his level best to get justice for his sister but he could not do so and then only he recorded the dying declarations as any other brother would have recorded because considering the injuries suffered by the deceased, there was no hope of her revival and her end was nearing with the passage of time. Hence, absence of fitness certificate is not detrimental to the prosecution. The court has to evaluate the statements on the parameters of truthfulness and reliability.
ABSENCE OF INDEPENDENT WITNESS AT THE TIME OF DYING DECLARATION 45.1 It is also argued on behalf of accused persons that the dying declarations of the deceased were allegedly recorded in the presence of family members and there was no independent witness present at that time. It is argued that PW7 Rajesh Bansal could have easily called the doctor or nurse or any other hospital staff prior to recording of the statement. Moreover, if PW9 Brij Mohan Bansal was present at the time of recording of statements then why this fact was not stated by him in his complaint that deceased had disclosed about the roles of accused persons during the incident. This reflects that no such dying declarations in the presence of PW9 Brij Mohan Bansal were ever recorded.
45.2 By way of this argument, Ld. Defence counsel Mr. Sisodia has tried to put up a case that dying declarations are tutored one. As stated above, SC No. 57713/16, PS Prashant Vihar Page No. 51 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
PW7 Rajesh Bansal was not aware about the legal modalities before recording the dying declaration and it is quite understandable that a layman would not be aware that presence of independent witness would have improved the credibility of the statement of the deceased.
45.3 Now, the question which needs consideration is whether the statement recorded in absence of public witnesses, can be put under scanner by the court. The presence of Magistrate, fitness certificate by the doctor and presence of public/neutral witnesses, all these aspects are related to the fact that the court has to form an opinion whether dying declaration is the true version of the incident happened with the deceased disclosing the cause of death and the circumstances in which she received the injuries. These aspects would have been relevant, if the dying declaration was in written form. Then the court would have been conscious as to who had recorded the dying declaration, who was present when it was being recorded and what was the medical and mental condition of the deceased at that time. But in the present case, the deceased is talking to the court of her own in the form of video clips recorded by PW7 Rajesh Bansal. The court has to assess her mental condition prior to relying upon her dying declarations. This court has several times seen the video clips and it is clear that deceased was able to understand the questions put to her. Although, she could not speak properly having the restrictions of movement of her mouth on account of injuries but whatever she has stated is clearly audible and contents are also clearly understandable. Therefore, absence of any neutral/public witness at the time of recording of dying declarations has no consequence in this case. The court is concerned about the contents of the statements which can be assessed easily as dying declarations are in the form of video recordings and the court is able to SC No. 57713/16, PS Prashant Vihar Page No. 52 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
evaluate the same after its minute assessment.
WHETHER DYING DECLARATIONS ARE TUTORED?
46.1 Another suspicion raised over the authenticity of the dying declarations by the accused persons is that deceased was tutored by her family members prior to recording of her statement and therefore, accused cannot be convicted on the basis of such tainted and tutored dying declarations.
46.2 As stated above, this court has minutely evaluated the dying declarations of the deceased. She appears to be well oriented about the place, time and identity of the persons at the time of her statements. The first statement is recorded in this fashion which is here as under:
"Rajesh: ke kara tere sath? Tane khud se kara ya ora ne kara hai ye?
Savita: ora ne.
Rajesh: ke kara?
Savita: budiya ne gair diya tel.
Rajesh: hain?
Savita: budiya ne gair diya tel.
Rajesh: budiya ne gair diya tel. Aag kisne lagai tere pe?
Savita: budiya ne hi.
Rajesh: aur fir bathroom me kisne bandh kari?
Savita: Pardeep ne.
Rajesh: Aur jo aur....
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Savita: Manne nahi pata kisne bandh karaya.
Rajesh: Nahi pata. Unne bhi kara hai ve saare shamil the isme.
Ve saare shamil the issme.
Savita: unne nahi dekh pai main.
Another person: Kon kon tha, kai jane the? Bahar ke char jane the?
Savita: Haan.
Rajesh: Ve sab shamil the isme.
Savita: main nahi dekh pai.
Rajesh: Haan matlab vah isi kaam se aa rahe the.
Savita: Ke Bera.
Another person and Rajesh: Acha. Unka Naam bera hai tanne, kun tha?
Savita: Haan.
Rajesh: Kun Kun naam the?
Savita: Shiv Kumar.
Rajesh: Shiv Kumar. Kit ka hai yo?
Savita: Najafgarh ka.
Rajesh: Najagarh Ka. Kai lage hai yo?
Savita: Bhai.
Rajesh: Ki ka?
Savita: Budiya ka.
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Rajesh: Aur kon tha? Aur kon tha? Aur bhi tha koi? Uske alawa? Shiv Kumar ke alawa aur bhi the koi? ye Savita: No reply.
Rajesh: Savita.
Savita: No reply.
Rajesh: Savita...
Savita: No reply."
"Second statement recorded of deceased Savita recorded at 11:45:39 AM Savita: Uska Jija.
Another person: Kiska Jija?
Savita: Nangloi ka jija.
Rajesh: aye?
Savita: Nangloi ka jija.
Rajesh: Kiska jija hai ho?
Savita: No answer.
Rajesh: Ke naam hai uska?
Savita: Pata nahi.
Rajesh: aye?
Savita: pata nahi.
Rajesh: Acha. Aur bhi tha koi uske alawa?
Savita: Haan.
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Rajesh: Kon?
Savita: Amit.
Rajesh: Amit?
Savita: haan.
Rajesh: ye kon hai?
Savita: Veena ka chora.
Rajesh: kiska chora?
Savita: Veena ka.
Rajesh: Veena ka? Ye Veena kon hai?
Savita: (voice not clear) voi jo schoolo me khel khela tha.
Rajesh: Aye.
Savita: Schoolo me khel khela tha.
Rajesh: Acha? Kit rahe hai ye?
Savita: Rani Bagh.
Rajesh: Rani Bagh?
Savita: Haan.
Rajesh: Acha, vo bhi aa raha tha?
Savita: Haan.
Rajesh: aur bhi koi tha?
Savita: no answer.
Rajesh: aur bhi koi tha?
Savita: no answer."
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46.3 It is clear that the first question put to the deceased as to who had
done this? Whether she had done of her own or somebody else did so? This question reflects that PW7 Rajesh enquired about the incident and how and by whom the incident was caused. Had it been the case that deceased was tutored prior to start recording of her statement, she could have and would have given a reply stating about the incident, naming all the accused persons by blaming them for her injury and answer would have been longer one but she gave a very specific answer that she did not put herself to fire and it was done by "others". It is wroth mentioning that she has not named anyone in answer to the first question and she could have easily named the accused persons at the very first opportunity. She answered the next question that accused Shyama Devi (budiya) threw oil on her. Here again if she had been tutored and had a motive to falsely implicate the accused persons, then she could have easily involved all accused persons, who were present in the house at that time by saying so that oil was thrown by all of them upon her. When PW7 Rajesh asked her about as to by whom she was put on fire. Again she gave a very crisp answer naming accused Shyama only. Similar is her reply to the question as to who had locked her in the bathroom to which she replied that it was Pradeep, who locked her in the bathroom. However, she stated that she was not aware as to which of them got closed the bathroom. First five questions are very short and PW7 Rajesh did not suggest or prompt any name to her and whatever she had stated, that is of her own version.
46.4 Had it been the case that PW7 Rajesh or other family members had tutored her then they could have easily named the accused persons in the question itself and the deceased could have easily gave positive reply to the SC No. 57713/16, PS Prashant Vihar Page No. 57 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors. questions to put to her but she is explaining the role of the accused persons of her own. The manner in which the statements have been recorded reflects that there is no promptness or tutoring done by PW7 Rajesh while recording the statement or by any other family members to falsely implicate the accused persons.
46.5 When PW7 Rajesh asked to her whether all accused persons were involved or not, she could have easily said yes but her reply is very natural when she said that she could not see. When PW7 asked her whether all accused persons were present for the purpose of burning her, she replied that she is not aware. When PW7 Rajesh asked her about the identity of the persons present at that time, she specifically stated name of accused Shiv Kumar, who is resident of Najafgarh and happens to be brother of accused Shyama Devi (budiya). It is interesting to observe that in both the dying declarations she has not assigned any role to accused Suresh Kumar Aggarwal. Had it been the case that she was tutored by the family members then it was imperative for her to assign a specific role to accused Suresh Kumar Aggarwal because the purpose of tutoring would have been to implicate every accused person, who were present at that time. This aspect of her statements also reflect that whatever she had stated is free from any tutoring or prompting.
46.6 Similar is her way of answering during recording of her second statement. She is well aware about the identity of the accused persons, their abodes and role played by them in the unfortunate incident. Therefore, I am of the considered view that the deponent Savita was fully oriented and conscious at the time of recording of her dying declarations and there is no indication of any tutoring by the family members during the recording of her statements. The manner in which she had deposed during her statements reflects that she SC No. 57713/16, PS Prashant Vihar Page No. 58 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors. was not tutored otherwise she could have easily assigned specific roles to all the accused persons and that too in two or three answers only. Hence, I find no merit in the argument put forth on behalf of accused persons that dying declarations are outcome of tutoring by the family members and accused persons have been falsely implicated by her in her statements. TESTIMONY OF EYE WITNESS PW14 AMIT GUPTA 47.1 Ld. Defence counsel has pointed out towards the testimony of PW14 Atul Gupta, who has deposed before the court that he was called by his mausi (Shyama Devi) to help her in shifting her luggage. He stated that when he alongwith accused Suresh Kumar Aggarwal was thinking to shift the luggage, deceased entered the house from outside and when she passed by, she smelt of something as she had poured something on her body. She said, "aap jaa rahe ho, aap jaa rahe ho" and she went upstairs claiming that she had to get some goods. Accused Suresh Chand Aggarwal followed her and after 2-3 minutes, she set herself on fire.
47.2 It is argued by ld. Defence counsel that testimony of PW14 Atul Gupta is sufficient enough to prove the innocence of the accused persons. Deceased herself poured kerosene on her body as she was disturbed by the fact that her in laws were shifting from that place.
47.3 The court has already minutely considered the dying declarations of the deceased but testimony of PW14 Atul Gupta is diametrically opposite to the version of the deceased about the occurrence of incident. Admittedly, PW14 Atul Gupta is relative of the accused persons. His statement was recorded by the IO under section 161 CrPC on 27.04.2014 but while deposing SC No. 57713/16, PS Prashant Vihar Page No. 59 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
before the court he has improved his version to the effect that deceased said "aap jaa rahe ho, aap jaa rahe ho". This fact was not mentioned in his statement. By saying so, this witness has tried to assert that deceased was upset as accused persons were allegedly shifting from the said house. PW14 has remained silent on vital portion of his statement and very conveniently he has not been cross examined either by the State or by the accused persons. Actually, the court is surprised to see such kind of witness has been examined by the prosecution whose statement is completely contradictory to the entire story of the prosecution. Not only the IO but the public prosecutor who had vetted this charge sheet at the time of scrutiny, is under question.
47.4 Be that as it may, now the court has to be deal with the testimony of PW14 Atul Gupta and to assess whether this witness has told the truth or not before the court. Before proceeding further, it would be appropriate to take note of the portion of his statement recorded under section 161 CrPC which has not been deposed by him before the court. The portion is here as under:
"usi samay Pardeep ki patni Savita Aggarwal bahar se ayi vah mere mausa Suresh Kumar ko yeh keh kar ki mujhe kuch saman lana hai, uppar chali gayi. Jab vah humare pass se gujari to hume tail ki boo ayi. Hame shak hua. Mera mausa Suresh Kumar uske peeche bhaga. Main gadi ke pass khada raha. Mere mausa ne kaha beti kya kar rahi hai toh kehne lagi ki papaji aap ghar chod kar mat jaiye. Agar aap ghar chod kar gaye to main aag laga loongi. Mera mausa ne kaha ki main kahi nahi jaa raha. Uske baad bhi vahe bathroom me chali gayi aur bathroom se nikal kar first floor se uppar jane wali sidhiyo ki taraf bhagi aur apni chunni SC No. 57713/16, PS Prashant Vihar Page No. 60 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
me aag laga kar darana chaha lekin aag poore sharir me phail gayi. Aag bhujane ke baad main Savita Aggarwal ko ek police Constable ke sath jo mauka par aa gaya tha, le kar apni gaadi me Saroj Hospital chala gaya."
47.5 It is clear that PW14 Atul Gupta has not deposed about the material aspect of his testimony as to how things transpired during the incident. Even if, it is presumed to be true that he was present at the spot then he himself stated that he was standing with the car and accused Suresh Kumar went inside the house and followed the deceased. Meaning thereby, how deceased caught the fire was never seen by PW14 Atul Gupta. In his statement given to the police as well as to the court, he has not stated that accused persons tried to save the deceased by extinguishing the fire. He has not stated as to how accused Shiv Kumar suffered burn injuries on his body. If Atul Gupta was present at the spot as claimed by him then he did not make any effort to save her which is highly improbable human conduct. He is claiming himself to be an eye witness but he appears to be a planted witness else she could have been shifted to hospital without waiting for the police. Therefore, the testimony of PW14 Atul Gupta is not the deciding factor as to how the deceased caught the fire. Whether she put herself ablaze or she was burnt by the accused persons, this witness is not able to clarify this fact. The manner in which he has been cited as a prosecution witness by the IO, also smacks of manipulation on the part of the IO and he appears to be a planted witness.
APPLICABILITY OF SECTION 106 OF INDIAN
EVIDENCE ACT
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48. It is admitted case of the accused persons that all of them were present when deceased caught fire and no other person was present in the said house at the time of incident. Therefore, the onus was upon the accused persons to explain the circumstances as to how she got burnt in the said house. Since, the testimony of PW14 Atul Gupta has failed to clarify the fact as to what transpired in the said house, the onus is upon the accused persons to explain as to how the incident occurred. No other person except accused was present in the said house. Therefore, it was in the special knowledge of the occupants of the said room as to how, when and by whom the deceased was set on fire. During the entire evidence it is not the case of the accused persons that they tried to save the deceased by extinguishing the fire. If the deceased had herself lit the fire then being family members, accused persons were supposed to do all necessary things to save her life. During cross examination of prosecution witnesses there is not even a single word that accused persons tried to save her or that they call the police instantly or that they shifted the deceased to the hospital without any delay. Accused Shiv Kumar has failed to explain as to how he sustained burn injury on that day. It is a matter of record that he was examined at BSA Hospital at 9:56 PM with superficial to deep burn injuries over right leg and thigh. He was having various signs of blisters. He was also having burn injury at left hand palm. If accused persons did not burn the deceased then how come accused Shiv Kumar sustained so many burn injuries. He could have easily cross examined the witnesses on this aspect to put up a defence and he could have explained the circumstances while recording of his statement under section 313 CrPC. His MLC has been exhibited as Ex. PW3/1 and in answer to question No. 3 in his statement under section 313 CrPC he has stated that 'it is a matter of record'. Meaning thereby, it is admitted case that he sustained burn injuries on that day but it is not SC No. 57713/16, PS Prashant Vihar Page No. 62 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
clarified how he suffered those injuries and onus was upon him to do so in view of section 106 Indian Evidence Act.
SUBSEQUENT CONDUCT OF ACCUSED PERSONS 49.1 Subsequent conduct of the accused persons is also relevant in this case. They did not inform the police about the incident. They did not try to shift the deceased to the hospital as early as possible despite the fact that PW14 Atul Gupta allegedly was present at the spot alongwith his car. Why they kept waiting for the police to come and thereafter, only she was shifted to hospital by the police constable with the help of PW14 Atul Gupta in his car. Why they did not accompany the deceased to the hospital. Had it been the case that deceased had put herself on fire, then the probable conduct of the accused persons would have been or should have been altogether different. It was a question of a life and death of a human being, who was a family member. How come the other family members did not take any immediate step to save her life, is beyond contemplation of this court. In fact, their subsequent conduct is in corroboration with the dying declarations of the deceased that she was burnt by them and she did not commit suicide. By not informing the police and by not shifting the deceased to the hospital at once, accused persons made it sure that deceased should succumb to injuries suffered by her in the said incident. If deceased set herself on fire in the staircase of the first floor then it is highly improbable that she would go inside bathroom and bolt the door from inside. A person, who is at fire, cannot act in such a fashion and therefore, there is only one possibility left that the door was bolted from outside by accused Pardeep and same was opened subsequently. Therefore, subsequent conduct of the accused persons is the relevant fact under section 8 of Indian Evidence Act SC No. 57713/16, PS Prashant Vihar Page No. 63 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
which points out towards the culpability of the accused persons and their involvement in the incident.
49.2 In Sidharth @ Manu Sharma Vs. State NCT of Delhi (2010) 2 SCC (Cri) 1385, it has been held by Hon'ble Supreme Court as under:
"thus, it has been proved beyond reasonable doubt that accused Manu Sharma absconded after the incident which is a very relevant conduct under section 8 of Evidence Act."
As noted above the conduct of the accused persons after the incident is highly improbable and a family member would not act in such a manner in case he had no role in the incident. On the basis of above said discussion, accused persons have failed to explain the circumstances in which the deceased sustained fatal burn injuries and thus, they have failed to rebut the presumption under section 106 Indian Evidence Act and same shall be read against them.
TESTIMONIES OF MATERIAL WITNESSES 50.1 It is argued by ld. Defence counsel that the whole case of the prosecution is dependent upon dying declarations which were allegedly recorded by PW7 in presence of PW9 Brij Mohan Bansal and PW26 Surender Bansal. Surprisingly, in his complaint given to the police PW9 did not mention the fact that the dying declarations were recorded in his presence but while appearing before the court, he has stated so. This is the major contradiction in his testimony which has gone unexplained. Similar are the depositions of PW7 and PW26 Surender Bansal. If deceased had stated to them about the circumstances in which the incident had occurred then they should have intimated the police without any delay. All three witnesses have failed to explain the reason for not stating to the police orally or in writing that the SC No. 57713/16, PS Prashant Vihar Page No. 64 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
dying declarations were recorded in their presence.
50.2 The argument put forth on behalf of accused persons pertains to contradictions occurred in the testimony of witnesses. While discussing the nature of contradictions in a criminal trial, the Hon'ble Supreme Court of India in case titled as Gangadhar Behera and others Vs. State of Orissa (2002) 8 SCC 381 has talked about the major and minor discrepancies in a criminal trial. It was held that:
"Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so".
50.3 Applying the ratio of Gangadhar Behera's case (discussed supra) to the present case, it is clear that deposition of PW9 and PW26 are suffering from some contradictions. PW9 did not mention in his complaint given to the police which is the basis of the FIR, that dying declarations were recorded in this case. Similar is the status of PW26 qua informing the police immediately. But it is a matter of record that PW7 Rajesh produced the CD containing the dying declarations on 26.07.2014 itself to the first IO Inspector Naresh. Meaning thereby, there was no delay in informing the police about the existence of dying declarations. It hardly matters whether it was informed by PW9 or by PW7. The court can very well understand the mental state of a father and brothers after the death of the deceased. It would have been unnatural for perturbed family members to provide every minute detail to the police soon after the death of the deceased. After registration of FIR, the police SC No. 57713/16, PS Prashant Vihar Page No. 65 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
was informed about the dying declarations on the next day itself and therefore, the contradictions/improvements pointed out by Ld. Defence counsels have no bearing on the merits of this case. Moreover, it is proved that dying declarations were recorded soon before her death or that same were genuine or videos were not tampered with. The case is solely dependent upon the dying declarations alone. Law is settled that accused can be convicted solely on the basis of dying declarations provided it inspires confidence of the court. Therefore, oral testimonies of other witnesses has become of secondary importance. In fact, PW9, PW7 and PW26 have corroborated the dying declarations about the incident and previous conduct of the accused persons which was the bone of contention between the accused persons and the deceased. Therefore, I find no merit in the argument that testimonies of material witnesses suffering from major contradictions and which goes to the roots of this case.
ALLEGATIONS UNDER SECTION 498-A IPC AGAINST ACCUSED PARDEEP AGGARWAL, SURESH KUMAR AGGARWAL AND SHYAMA DEVI 51.1 It is the case of the prosecution that accused persons treated the accused with cruelty and it went to such an extent that she was burnt alive by the accused persons. The aspect of cruelty has been proved by oral testimonies of PW7, PW9, PW23, PW24 and PW26. All these witnesses have deposed that deceased was subjected to cruelty by the accused persons soon after her marriage. Accused Pardeep Aggarwal demanded luxury car on the eve of birth of his elder son and he again put forth his demand to the father of the deceased at the time of birth of his second son.
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51.2 It is correct that these witnesses have failed to disclose any
particular date, time and place as to when these demands were raised or when family meetings took place to counsel the accused persons for not troubling the deceased. The aspect of cruelty stands proved by the deceased herself when she called at number 100 on 23.06.2014 when she was thrown out of her house by the accused persons. Although, the attention of the court had been drawn to the contents of DD No. 28B dated 24.06.2014 which was recorded by ASI Ram Rattan wherein he stated that deceased informed the police as there was some delay in opening the door of the house. He recorded that accused Pardeep was in washroom and accused Shyama Devi was inside house and there was no case of not allowing the deceased for entering the said house. It is highly unbelievable that a lady would call the police simply because she was knocking the door and there was some delay in opening the same. It was something more than that on 23.06.2014 which forced the deceased to call the police but DD entry was recorded in such language as nothing had happened.
51.3 Similar on the date of incident i.e., 23.07.2014, she again informed the police at 09:55 AM and DD No. 8A was marked to HC Bhupender. HC Bhupender recorded arrival DD No. 3A on 24.07.2014 wherein he stated that the dispute was regarding non payment of household expenses and there was no case of assault by the in-laws. If that was the case then what was the reason that deceased filed a complaint before CAW cell at 02:30 PM on the same day. This complaint has been exhibited as Ex. PW25/A wherein she has categorically stated that she was being beaten by her mother in law and her husband.
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51.4 She had alleged that accused persons have tried to kill her on
several occasions. She had apprehended her death that she would be killed by the accused persons and they may convert her death into a suicide or some other mis-happening. The contents of this complaint are sufficient enough to prove the fact that she was subjected to cruelty by the accused Pardeep Aggarwal and Shyama Devi. She did her bit by informing the police but timely action was not taken which resulted into her untimely death. Therefore, prosecution has successfully proved the allegations under section 498-A IPC against accused persons namely Pardeep Aggarwal, Shyama Devi and Suresh Kumar Aggarwal.
CONDUCT OF THE IO 52.1 The conduct of the investigating officer in this case is under serious scanner. SI Karan Singh did not make serious attempt to get the statement of the deceased recorded and resultantly PW7 Rajesh Bansal had to do it himself with his phone. If she was declared unfit for statement at 03:35 AM on 24.07.2014 then IO should have made another attempt to get the statement recorded. The manner in which she has given dying declarations this court is in no doubt that she was in fit state of mind till 11:45 AM on 24.07.2014.
52.2 After registration of FIR, further investigation was marked to Inspector Naresh and CD of dying declarations were handed over to him by PW7 Rajesh Bansal. A bare perusal of these dying declarations is sufficient enough to analysis the role of accused persons in the incident but no action was taken by Inspector Naresh as well as third IO SI Yogesh Raj and except SC No. 57713/16, PS Prashant Vihar Page No. 68 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
accused Pardeep Aggarwal, all accused persons have been charge sheeted without arrest. In fact at one point of time, they were kept in column No. 12 for want of sufficient evidence. My Ld. Predecessor took up the matter with the DCP concerned and necessary amendments were done in the charge sheet after that. How can an Investigating Officer can put an accused in column No. 12 against whom deceased had casted serious allegations in her dying declarations, is beyond contemplation of this court.
52.3 IO did not interrogate the kids of the deceased as a witness in this case on a vague explanation given by SI Yogesh that he met the kids and they were disturbed. If it is to be believed as truth then efforts should have been made to get the kids counselled and then their statements should have been recorded. They were most natural and important witnesses in this case to bring out the truth as to how deceased was subjected to cruelty by the accused persons. In fact, Inspector Naresh has examined PW14 Atul Gupta (appears to be planted) as a prosecution witness, who is hell bent upon to prove the innocence of the accused persons and his testimony could have been fatal to the case of the prosecution.
52.4 This matter is a rare instance where investigating officer SI Yogesh Raj assumed the role of a judge when he declared the dying declarations of the deceased as unreliable as same were recorded when deceased as in semi conscious condition and leading questions were put to her. Instead of relying upon the dying declarations the investigating officers were busy in fault finding which was never their job. It is the court, who has to consider the admissibility of an evidence and duty of the police officers is to only collect the same and produce the same before the court.
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52.5 In second dying declaration deceased had named two more
person, who were present at the spot i.e., nangloi ka jija and Amit (Veena ka chora) but the charge sheet is absolutely silent on these names. This aspect again is a glaring example of the fact that investigation in this matter was done to save the accused persons and not to dispense justice to the deceased.
52.6 IO did not investigate the fact whether the bathroom, where the deceased was found in sitting posture, was bolted from outside or inside. There is no clarity whether the door of the bathroom was broken or it was opened by the time when the police reached at the spot. The IO as well as the crime team In-charge failed to investigate this fact during investigation. Therefore, this court deems it appropriate to recommend the present matter to the DCP concerned to look into the conduct of SI Karan Singh, Inspector Naresh Dagar and SI Yogesh Raj, who had handed this case as investigating officers and initiate necessary action at his end, if requires.
CONCLUSION
53. Thus, in view of the aforesaid observations, this court is of the considered view that the prosecution has successfully proved its case against the accused persons under section 302/34 IPC on the basis of reliable trustworthy, cogent and unblemished dying declarations of the deceased. It has been proved that she was burnt alive by the accused persons. Accused Shyama Devi sprinkled kerosene oil on her and set her on fire whereas accused Pardeep Aggarwal shut her down in the bathroom. Although, no specific role has been assigned to the accused Suresh Kumar and Shiv Kumar by the deceased but it SC No. 57713/16, PS Prashant Vihar Page No. 70 of 71 FIR No. 864/2014, State Vs. Pardeep Aggarwal & Ors.
is not in dispute that they were not present at the spot. It is also not in dispute that they did not act in any manner to save her and law is settled that an omission to do something is equivalent of doing an act. The common intention of the accused persons was to kill the deceased and it is immaterial whether any specific act was done by each of them or not. An accused can be convicted, if he shares the common intention with the other co-accused persons and it is immaterial whether he actively participated in the offence or not. Accused Shiv Kumar has failed to give any explanation about the burn injuries suffered by him during the incident. Therefore, all accused persons are held liable for committing murder of the deceased in furtherance of their common intentions and they are convicted under section 302/34 IPC. Accused Shyama, Suresh and Pardeep Aggarwal additionally sands convicted for committing offence punishable under section 498-A/34 IPC. Since, accused have been convicted under section 302/34 IPC, there is no requirement to deliberate over the allegation under section 306 IPC by this court.
54. Put up for arguments on sentence after compliance of directions of Hon'ble High Court of Delhi in case titled as Karan V. State of NCT of Delhi, Crl. Appeal No. 352/2020 dated 17.12.2020.
Digitally signed by DHIRENDRA DHIRENDRA RANA
RANA Date: 2024.04.06
16:04:32 +0530
Dictated and announced in the open (Dhirendra Rana)
Court on 06.04.2024 ASJ:Special Judge (NDPS)
(running in 71 pages) (North), Rohini Courts/Delhi
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