Delhi District Court
State vs . Mukesh Jardari Wakude & Others on 3 September, 2013
State Vs. Mukesh Jardari Wakude & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 01/13
ID No. 02401R0513072011
FIR No. : 50/2010
Police Station : Nabi Karim
Under Section :498A/304B/302/34 IPC
State
Versus
Mukesh Jardari Wakude
S/o Jardari Dharampal Wakude
..........Accused No.1
Jardari Dharampal Wakude
S/o Dharampal Wakude ..........Accused No.2
Lokesh Jardari Wakude
s/o Jardari Dharampal Wakude ..........Accused No.3
Renuka Lokesh Wakude
w/o Lokesh Jardari Wakude ..........Accused No.4
Kumari Kalpana Wakude
D/o Jardari Dharampal Wakude ..........Accused No.5
All resident of :
C-56, Chinnot Basti, Multani Dhanda
Nabi Karim, Delhi
SC No. 01/13 Page 1 of 24
State Vs. Mukesh Jardari Wakude & others
Date of order reserved on : 22.08.2013
Date of order : 03.09.2013
Present: Ms. Neelam Narang, Additional Public Prosecutor for the
State.
Mr. Sudhir Mehendidatta Advocate counsel for the
complainant party
Ms. Seema Gulati Advocate, counsel for the all accused
ORDER ON THE POINT OF CHARGE:
1.By this order, I shall dispose of the contentions raised by Counsel for the accused persons that prima-facie no case is made out against the accused persons.
2. Briefly stated facts of the case are that mother of the deceased and accused Jardari Dharampal Wakude (A-2 in short) are real sister and brother. Deceased Kiran was married with son of A-2 named Mukesh Jardari Wakude (A-1 in short) on December 2, 2009. After marriage, couple had shifted to Delhi and started residing at C-56 Gali No.10, Multanti Dhanda, Nabi Karim, Delhi along with other accused persons. Accused Lokesh Jardari Wakude (A-3 in short) and Kumari Kalpana (A-5 in short) are real brother and sister of A-1 and accused Renuka Lokesh Wakude is the wife of A-3.
(i) On April 23, 2010 at about 7.05 AM an information was received from RML Hospital that Kiran (since deceased) had got been admitted by her husband Mukesh Jardari (A-1) in burnt condition. Said information was recorded vide DD No. 9A at PS Nabi Karim and investigation was assigned SC No. 01/13 Page 2 of 24 State Vs. Mukesh Jardari Wakude & others to SI Kishan Chand, who along with constable Sajjan left for the hospital.
(ii) On reaching hospital, he had collected MLC of the injured whereupon the alleged history was recorded as: Burn due to bursting of stove as told by the patient. Since, the incident had taken place within seven years of marriage. Intimation was given to the SDM. Intimation was also sent to the parents of deceased, who were residing in Mumbai at that time. Her parents reached Delhi on the very same day and they got recorded their statement to the SDM on the next day wherein they did not levy any allegation against any of the accused persons. However, investigating officer inspected the place of occurrence and spot was got photographed and exhibits were lifted from the spot. On the same day i.e April 23, 2010 at about 7.05 PM victim succumbed to her injuries.
(iii) On May 15, 2010 parents of deceased again visited Delhi and got recorded their statements to the SDM wherein they first time made certain allegations against the accused persons including that accused persons considered their daughter Kiran as ill-omen as her mother-in-law died just before marriage on November 27, 2009. Due to this, accused persons used to curse her and torture her mentally and physically and also harassed her for not bringing sufficient dowry. Accordingly, an FIR under Section 498A/304B/34 IPC was registered against the accused persons.
(iv) Thereafter, parents and other family members of deceased made multiple supplementary statements and they on each occasion some new allegations were added against the accused persons such as the marriage between the deceased and A-1 could not be cohabited and in order to save the honour of their family they had killed the deceased. It was SC No. 01/13 Page 3 of 24 State Vs. Mukesh Jardari Wakude & others alleged that accused persons demanded dowry and that was another reason to kill her. At last, on July 3, 2010 mother of deceased alleged that deceased had made a dying declaration to her in the RML hospital. She alleged that since victim's family members failed to fulfil the demands of dowry of accused persons, they used to beat her and on that day also they quarrelled with the victim and attempted to kill her by pouring kerosene oil upon her. In order to save her life, she rushed to kitchen at third floor but accused persons bolted the door from outside and thereafter they threw 5-6 ignited match sticks from the jarokha on her clothes and in this way she was set on fire.
(v) After completing investigation, challan was filed against all the accused persons for the offence punishable under Section 498A/304B/302/34 IPC. After committal, case was assigned to Ms. Kaveri Baweja, learned Additional Sessions Judge, thereafter, matter was transferred to this Court on January 7, 2013.
3. Learned Counsel appearing for the accused persons sagaciously contended that accused persons have been falsely implicated in this case at the behest of parents of the victim. It was contended that since the father of A-1 and mother of victim are real brother and sister, hence both families not only knew to each other very well but also well aware about the financial condition of each other, thus, there was no occasion either to make any demand for dowry or to harass the victim for not bringing dowry. It was contended that due to said reason, parents of deceased had not made any allegations against the accused persons in their first statement made to the SDM. It was submitted that later on with dishonest intention, parents of victim had lodged a false FIR against the accused persons on SC No. 01/13 Page 4 of 24 State Vs. Mukesh Jardari Wakude & others May 15, 2010. It was contended that at that time, no allegation of murder was levelled against the accused persons. It was contended that in order to create a false evidence against the accused persons, mother of the victim had introduced a new story of dying declaration first time on July 3, 2010. It was argued that it is highly improbable that parents of the deceased would not lodge the FIR immediately, if any such dying declaration was made by the deceased. It was contended that as per MLC, deceased had made a statement to the doctor informing him that she had sustained burn injuries due to bursting of stove and there is no reason to disbelieve the same. It was further contended that during investigation, investigating officer had examined independent witnesses who categorically stated that when they reached the spot, they saw that victim was burning inside the kitchen and door was bolted form inside while the accused persons were trying to open the door but door could not be opened. At last door was opened from the window and victim was taken to the hospital immediately. It was argued that there is nothing on record to show that accused persons were liable for the said incident. It was contended that in fact deceased was a short tampered lady and on the day of incident, she had locked herself inside the kitchen and attempted to commit suicide and after hearing hue and cry, accused persons gathered there and made every attempt to save her but unfortunately, she succumbed to her injuries. It was further contended that SDM report also did not support the prosecution version. It was further contended that since victim was residing in Delhi whereas her parents were residing in Mumbai, thus there was no occasion for the victim to talk with her parents. Prosecution has failed to place the detail of CDR to show that victim used to talk with her parents on phone after coming to Delhi. It was contended that unless prosecution produced the evidence that her parents used to talk with the victim, it is seldom to believe that victim could tell them SC No. 01/13 Page 5 of 24 State Vs. Mukesh Jardari Wakude & others about her suffering to them. It was further contended that even investigating officer did not deem it appropriate to record the statement of Rameshwar who allegedly informed about the incident to her parents.
4. Per contra, learned Additional Public Prosecutor contended that no reliance can be placed on the alleged history recorded in the MLC as the said history was either given by the accused Mukesh Jardari or victim was forced to make the said statement. It was contended that since smell of kerosene oil was coming from her breadth and clothes, it is seldom to believe that the incident had taken place due to burst of stove. It was submitted that the dying declaration can not be discarded mere on the ground that her mother failed to inform the police at the first instance. It was further contended that pieces of broken bangles were found in the kitchen which shows that victim had struggled with the accused persons, which rules out the possibility of suicide. It was further contended that in the autopsy report, tongue of deceased was found protruded which shows that victim was strangulated first and thereafter kerosene oil was poured upon her to kill her. It was argued that there are prima-facie evidence against the accused persons for the offence punishable under Section 498A/304B/302/34 IPC.
5. I have heard rival submissions advanced by counsel for the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
6. Before dealing with the contentions raised by counsel for the parties, I deem it appropriate to discuss about the duty of investigating officer and purpose of investigation.
SC No. 01/13 Page 6 of 24State Vs. Mukesh Jardari Wakude & others
7. Chapter XXV of Punjab Police Rules (in short Rules) deals with investigation. Rule 25.3 deals with the duty of an investigating officer while conducting the investigation and purpose of the investigation. Rule 25.3 reads as under:
"It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
(emphasis supplied)
8. Bare perusal of the said Rule manifests that it is paramount duty of every investigating officer to find out the truth of the matter and the object of the investigating officer shall be to discover actual facts of the case and to arrest the real offender or offenders. In other words, it is duty of every investigating officer to arrest real offender (s) only after ascertaining the truth through discovering actual facts. It is pertinent to state that the duty of investigating officer is to discover actual facts to find out the truth and not to manipulate or create facts to reach the predetermined destination.
9. In this regard the observations of Hon'ble Apex Court in Vinay Tyagi v. Irshal Ali Crl. Appeal Nos. 2040-2041 of 2012 decided on December 13, 2012 are relevant and same are as under:
".......The framers of the law, in their wisdom, have specifically provided a limited mode of exclusion, the criteria being no injustice to be caused to the accused and SC No. 01/13 Page 7 of 24 State Vs. Mukesh Jardari Wakude & others greater public interest being served. This itself is indicative of the need for a fair and proper investigation by the concerned agency. What ultimately is the aim or significance of the expression 'fair and proper investigation' in criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction."
(emphasis supplied)
10. Thus, it is pellucid that the investigation should be unbiased, honest, just and in accordance with law and the object of such investigation should be to find out truth by discovering actual facts. Now question arises as to whether in the present case investigation fulfils the above parameters or not?
Conduct of relatives of deceased:
11. As per prosecution version parents of deceased rushed to Delhi from Mumbai on April 23, 2010 itself on receipt of information of the incident from their relative Rameshwar. They appeared before the SDM on April 24, 2010 but they did not utter even a single word against any of the accused persons. Thereafter, they returned to Mumbai. However, on May 15, 2010 they again visited Delhi and made their statement before the SDM wherein they alleged that their daughter was being considered as ill-omen as mother-in-law of deceased died just before her marriage and they also alleged that their son-in-law (A-1) used to harass the deceased for not bringing sufficient dowry. On the basis of their statements, an FIR for the SC No. 01/13 Page 8 of 24 State Vs. Mukesh Jardari Wakude & others offence punishable under Section 498A/304B/34 IPC was registered. Thereafter, her parents again made a statement on May 18, 2010 wherein they reiterated their allegations. On May 21, 2010 brother of deceased made a statement before the investigating officer wherein he supported the allegations levelled by his parents. On June 4, 2010 mother of deceased divulged a new fact that the marriage of deceased was not cohabited and she asked the accused Mukesh Jardari to consult doctor but he did not give any heed to her request. She alleged that in order to save their family from badnami they (accused persons) had burnt her daughter alive. Lastly on July 3, 2010 mother of deceased divulged a startling fact that deceased had made a dying declaration before her on April 23, 2010 stating that on April 23, 2010 deceased told her that since the demand of dowry was not fulfilled, members of her-in-laws family picked up a quarrel with her and beaten her and attempted to kill her by pouring kerosene oil. In order to save her life, she went upstairs in the kitchen. They locked the kitchen from outside and threw 5-6 ignited match sticks in the kitchen. It was alleged that deceased also told that in the hospital, her husband threatened the deceased not to disclose these facts to anyone otherwise he would kill her parents.
12. Thus, as per prosecution version, conduct of parents of the deceased can be summarised as under:
(i) That initially they did not utter even a single word against the accused persons;
(ii) That firstly on May 15, 2010 they made some allegations of dowry and alleged that their daughter was considered as ill-omen and raised suspicion that their SC No. 01/13 Page 9 of 24 State Vs. Mukesh Jardari Wakude & others daughter was killed by the accused persons;
(iii) That on June 4, 2010 mother of deceased
alleged that marriage was not cohabited between
deceased and her husband and in order to save their
family from badnami they had killed their daughter;
(iv) That on July 3, 2010 mother of deceased alleged that deceased had made a dying declaration to her.
13. It is pertinent to state that the parents of deceased were living in Mumbai at the time of alleged incident, thus, they were not in a position to state what actually had happened on that day. Being the parents of deceased, they had raised suspicion that their daughter had been killed and she had not committed suicide. Suspicion howsoever may be grave is not sufficient to prosecute a person unless some admissible evidences are found to believe that suspicion.
14. Since dying declaration is one of the strongest evidence against the accused persons, I deem it appropriate to deal with it first.
15. Though prosecution case is that mother of deceased had made a statement to the police on July 3, 2010 wherein she alleged that deceased had made a dying declaration to her in the hospital on April 23, 2010, yet there is no reference of the said dying declaration in the entire charge-sheet. It is not clear whether investigating agency is placing any reliance on the alleged dying declaration or not. On the contrary, the reason furnished to invoke Section 302 IPC is that since the family members of deceased in their subsequent statements made the allegations of dowry SC No. 01/13 Page 10 of 24 State Vs. Mukesh Jardari Wakude & others and alleged that their daughter was killed, hence, Section 302 IPC was also added. This only indicates how casually investigating officer had added Section 302 IPC against the accused persons.
16. It is admitted case of prosecution that the alleged incident had taken place on April 23, 2010 at about 6:00 AM at Nabi Karim. As per MLC, deceased was brought to the RML Hospital at 6:45 AM and deceased succumbed to her injuries on the same day at about 7:05 PM. At the time admission, duty constable posted there, intimated the local police station i.e. Nabi Karim vide DD No. 9A and intimated the death of deceased vide DD No. 29A. Investigating officer placed the copy of said DDs on the judicial file along with charge-sheet. As per DD No.9A, intimation was conveyed to the police station at about 9.05 AM whereas the intimation of death was conveyed at about 8:35 AM. Since deceased died only at about 7:05 PM, thus, it was impossible to convey the information at about 8:35 AM. Similarly, it also looks quite absurd on the part of duty constable to intimate the local police about the admission of victim after such a long gap. Though the said discrepancies were not pointed out by counsel for either parties, yet while going through the file Court noticed the said discrepancies and in order to find out the truth, Court directed to produce the original register containing the said DDs. Perusal of original DD No.9A reveals that the intimation of admission of deceased was conveyed by the duty constable at about 7.05 AM and not at 9:05 AM. Similarly, the intimation about the death of deceased was given at 8:35 PM and not at 8:35 AM. This again reflects the casual attitude of investigating agency while filing the challan against the accused persons.
17. As per MLC, victim was got admitted in the hospital by her SC No. 01/13 Page 11 of 24 State Vs. Mukesh Jardari Wakude & others husband i.e. accused Mukesh Jardari. When patient was brought to the hospital, smell of kerosene oil was coming from her breadth and whole body, which prima-facie suggests that either an attempt was made to kill her by pouring kerosene oil or she made an attempt to commit suicide by pouring kerosene oil. But it was a matter of investigation.
18. Simultaneously, when victim was brought to the hospital, her pulse was found 96/m, BP 130/100, Respiration rate 18/m and speech was found normal. In other words, when patient was brought to the hospital, speech of victim was normal. It means she was in a position to speak. As per MLC, doctor had asked the patient about the fire and as per MLC the alleged history told by the patient is as under:
"Alleged h/o Burn due to bursting of a stove as told by the patient"
19. During the course of arguments, learned Additional Public Prosecutor contended that no reliance can be placed on the said observation as the history was either given by the husband of the victim or victim was under the influence of her husband. No doubt the apprehension raised by learned Additional Public Prosecutor may have some substance but it for the investigating officer to find out whether the said statement was given by the victim or by her husband. Similarly, it was for the investigating officer to collect material to show that victim had made the said statement under the influence of her husband. But as per charge-sheet no investigation was conducted in this regard. If the investigating officer had any doubt over the above last statement of the victim, he could have easily interrogated the doctor to find out whether the alleged history was got SC No. 01/13 Page 12 of 24 State Vs. Mukesh Jardari Wakude & others recorded by the victim or her husband and whether her husband was present when she made the said statement. This Court is unable to understand how the prosecution without any material on record can take the plea that the said statement was not made by the victim or if it was made by the victim, she had made the statement under the influence of her husband.
20. Victim died on the same day i.e. April 23, 2010 at about 7.05 PM. As per death summary report, she sustained 95% burn injury and at the time of admission, general condition of victim was very poor and she was put on aggressive management. But her general condition did not improve and she died at 7.05 PM on April 23, 2010 in spite of all resuscitative efforts. It only shows that the victim did not respond to the treatment and her condition deteriorated since the time she brought to the hospital and ultimately died at 7.05 PM. If victim was unable to make a statement at the time of recording alleged history as pleaded by learned Additional Public Prosecutor, how she could make a dying declaration later on especially when investigating officer failed to collect any document showing that victim was even conscious and oriented. It is a common fact that in the hospital a case-sheet/history sheet of such patients is prepared wherein general condition of such patients is recorded after every one hour. But no such case-sheet/history sheet is placed on the record. Even no statement of the attending doctor was recorded to the effect that patient was in a position to make any such dying declaration. In fact there is no scintilla of evidence on record to show prima-facie that victim was conscious and oriented and in a position to make any dying declaration. On the contrary death summary suggests that her condition did not improve in spite of all resuscitative efforts.
SC No. 01/13 Page 13 of 24State Vs. Mukesh Jardari Wakude & others
21. Mother of victim in her last statement dated July 3, 2010 alleged that her daughter (victim) had made a dying declaration in the hospital stating that since she was not given dowry, her in-laws were angered and they picked up a quarrel with her and given beatings to her and made an attempt to kill her by pouring kerosene oil on her. In order to save her life, she went upstairs (IIIrd floor) to kitchen. But they (her in-laws) had bolted the door from outside and threw 5-6 ignited match sticks upon her and consequently she was burnt. Her mother further alleged that victim told her that when she was being taken to the hospital, her husband had threatened her if she disclosed the incident to anyone, he would kill her family members.
22. Thus, as per alleged dying declaration, kerosene oil was poured upon the victim either at the first floor or second floor because as per dying declaration when kerosene oil was poured upon her she ran towards the kitchen located at third floor. In other words, prosecution intends to say that the kerosene oil was poured upon the victim somewhere else but not in the kitchen. If it was so, it was the duty of the prosecution to point out the place where the kerosene oil was poured upon the victim. But charge-sheet filed by the police is silent in this regard.
23. Further, as per alleged dying declaration 5-6 ignited match sticks were thrown from the jharoka (window) inside the kitchen, consequently, she was burnt. It is admitted case of the prosecution that after the incident, crime team inspected the spot and spot was also got photographed. No doubt in one of the photographs 5 match sticks are visible, but all the sticks are unburned. None of the sticks has the sign of burn. As per the photographs there was one window in the kitchen and SC No. 01/13 Page 14 of 24 State Vs. Mukesh Jardari Wakude & others same was having iron jali. Except that no other jharoka is visible in the kitchen. It is just impractical and impossible to throw ignited match sticks from the window having iron jali.
24. Further, as per dying declaration accused persons bolted the door of kitchen from outside so that the victim could not come outside. If accused intended to kill her, they would set her on fire in the kitchen first thereafter they would have bolted the door. Instead of trying to throw the ignited match sticks from the jharoka after bolting the door from outside.
25. In fact by saying that the door was bolted from outside, investigating officer attempted to show that victim did not want to commit suicide. It was the accused persons who wanted to kill her. In this regard the statement of Rajesh @ Rinku and Sushil Kumar recorded under Section 161 Cr. P.C are significant. Rajesh in his statement told the police that when he reached the spot after hearing hue and cry, he saw that victim was burning inside the kitchen and door was locked from inside whereas accused persons were trying to open the door which was bolted from inside. Similarly, PW Sushil informed the police that accused Lokesh came to his house for taking sambal (big iron rod) and informed that wife of his younger brother had burnt herself after bolting the kitchen from inside and door was not opening. After hearing this, PW Sushil Kumar also accompanied with him and saw that accused persons were trying to open the door but it could not be opened. Thereafter, jali above the door was broken and then victim was taken out from the kitchen in burnt condition. It is not clear on what basis prosecution can disbelieve these two witnesses. If these two witnesses were not trustworthy why prosecution has cited them as witnesses. By placing two inconsistent versions, this Court unable to SC No. 01/13 Page 15 of 24 State Vs. Mukesh Jardari Wakude & others understand what investigating agency and prosecution want to prove.
26. Though in the kitchen one kerosene can was found and same is visible in the photographs, but it is not clear whether the kerosene oil was poured from the same plastic can or not as prosecution is not clear whether the kerosene oil was poured upon the victim in the kitchen or nor. As per dying declaration, it was not poured in the kitchen. If it was so, accused persons could not pour kerosene oil upon the victim from the said plastic can. But if the victim had committed suicide, she could pour kerosene oil from the said plastic can. No other plastic can was seized by the police during investigation. From the photographs, it is clear that the said plastic can is having its lid. It is highly improbable that the accused persons would close the lid of plastic can after pouring the oil upon victim. Though as per dying declaration it is not the prosecution case that said can was used by the accused persons, yet even no effort was made to pick up finger prints from the said plastic can.
27. No doubt broken bangles were found in the kitchen and on the basis of said broken pieces of bangles, learned Additional Public Prosecutor contended that scuffle must have been taken between the accused persons and victim when they poured kerosene upon her, but it appears that at the time of advancing said plea, learned Additional Public Prosecutor forgot that as per dying declaration kerosene oil was not poured in the kitchen and no scuffle had taken place in the kitchen. On the other hand, the defence version is that when they opened the door after breaking the jali they put blanket upon the victim in order to extinguish fire and the possibility that bangles were broken in that process can not be ruled out. Thus, the presence of pieces of bangles in the kitchen is not helpful to SC No. 01/13 Page 16 of 24 State Vs. Mukesh Jardari Wakude & others make out a prima-facie case against the accused persons.
28. Though mother of victim claimed that deceased had made the said dying declaration before her in the hospital, yet she failed to disclose at what time victim had made the said dying declaration. Nor investigating officer tried to find out at what time said dying declaration was made. Further, the subsequent conduct of mother of victim is not of an ordinary prudent person. If deceased had made any dying declaration, she would have immediately raised hue and cry and shall also inform her husband and police. But surprisingly, she kept mum and even she did not disclose about the said statement to her husband. Even there is no reference of alleged dying declaration in any of the statements made by the family members of the deceased. It is admitted case of prosecution, before divulging about the dying declaration, mother of victim had made four statements to the police and SDM but she failed to divulge the said dying declaration prior to July 3, 2010. Even on July 3, 2010 no effort was made to find out why she had not divulged the said important evidence prior to July 3, 2010. Thus, the circumstances under which the dying declaration was surfaced on the record is highly doubtful. But no effort was made by the investigating agency to remove the doubts. Instead of removing doubts over the case set up by investigating agency, prosecution insisted to frame charge against all accused persons on the basis of paradoxical evidences.
29. It is admitted case of prosecution that initially parents of deceased had not made any allegations against any of the accused persons. Thereafter, they got recorded their second statement before the SDM on May 15, 2010 wherein they made certain allegations of harassment against the accused persons. At the time of making allegations SC No. 01/13 Page 17 of 24 State Vs. Mukesh Jardari Wakude & others they stated after seeing the condition of the house of accused persons and circumstances, they came to know about certain facts. But in their statements, they failed to disclose about the condition and circumstances, which compelled them to make second statement before the SDM on May 15, 2010. Surprisingly, investigating officer also did not try to know about the said condition and circumstances. This further shows that the matter was not investigated impartially and diligently.
30. No doubt in the photographs, the tank of stove appears intact. On the basis of said piece of evidence, learned Additional Public Prosecutor contended that it rules out the possibility that deceased died due to burst of stove. To my mind, it will be too early to arrive at any conclusion on the basis of said piece of evidence. It is pertinent to mention here that sometime a stream of kerosene oil comes out all of sudden from the nozzle pin of the stove and in common language it is also called bursting of stove. Admittedly, the stove was not sent to the FSL to ensure that its mechanical functions were found intact.
31. Perusal of seizure memo of kerosene plastic can, match box, stove reveals that match box and match sticks were found drenched in water. It means that either some one tried to remove the evidence by cleaning the floor or the water was found as same was thrown over the victim in order to extinguish fire. First theory is not possible because if someone tried to remove the evidence, he would have certainly removed the match box and sticks but it was not so. Second theory appears more plausible which is also corroborated by the statement of independent witness. If accused persons and others had thrown water on the victim in order to extinguish fire, it means that they had not burnt her.
SC No. 01/13 Page 18 of 24State Vs. Mukesh Jardari Wakude & others
32. Similarly, if accused persons had poured kerosene oil upon the victim from the plastic can as alleged by the prosecution or if the victim had committed suicide as contended by learned defence counsel, finger impression of the the accused or victim as the case may be would appear on the said plastic can. But no effort was made to pick up chance prints from the said plastic can. That evidence could be proved crucial for the investigating agency to find out the truth. But unfortunately, investigating officer failed to assess the importance of that valuable evidence and did not take any step to pick up chance prints from the said plastic can.
33. Now coming to the report of SDM dated March 29, 2011. In his report SDM concluded that during investigation it was transpired that the victim had locked herself inside the kitchen and she was found crying in flames, which could be bursting of stove as told by the victim to the doctor or otherwise. But the evidential circumstances at the scene of incident did not co-relate with the recorded statement of accused and neighbours. It was further stated that as per the statement of parents of victim revealed that there was no foul play on the part of anyone. But in their subsequent statements parents of victim expressed their apprehension that their daughter was burnt by their son-in-law in connivance with his family members. At last, SDM concluded that certainly cause of death was due to flames of fire but in the absence of statement of victim, it could not be conclusively arrived at the exact circumstances, which led to the incident/death of the victim. Thus, SDM was not sure whether the incident attracts the provision of Section 302/34 IPC.
34. Surprising fact of the report is that it was prepared on March 29, 2011. Despite that there is no reference of alleged dying declaration in the SC No. 01/13 Page 19 of 24 State Vs. Mukesh Jardari Wakude & others said report. What does prosecution want to say that the alleged dying declaration was not on record till March 29, 2011 or it was not brought in the notice of SDM? This further casts a doubt over the manner in which investigation was conducted.
35. If kitchen was bolted from inside as alleged by the accused persons, it means that the incident had not taken place due to burst of stove as it is highly improbable that victim would cook food after bolting the door from inside. But simultaneously, it also rules out the possibility of pouring of kerosene by the accused persons as it would not be feasible for the accused persons to pour kerosene oil upon the victim. If the door is bolted from outside as mentioned in the alleged dying declaration, it would not be feasible to throw ignited sticks from the jali. Moreover, no such sticks found from the kitchen.
36. Now coming to the autopsy report. In autopsy report under the heading of External General Appearance it is recited that "Both the lips are swollen and tongue protruded." On the basis of this observation, learned Additional Public Prosecutor vehemently contended that before pouring kerosene oil, victim was strangulated and when she became semi- conscious, she was set on fire. This Court is unable to understand what learned Additional Public Prosecutor intends to say. If she was strangulated and kerosene oil was poured upon her when she became unconscious, how her speech was found normal by the doctor when she was examined at RML Hospital. Then what will happen to the alleged dying declaration. It only means that the alleged dying declaration is totally false. This only shows desperation on the part of prosecution and appears that only goal of prosecution is to prosecute the accused persons and not to assist the Court SC No. 01/13 Page 20 of 24 State Vs. Mukesh Jardari Wakude & others to arrive at a right conclusion. Had prosecution be vigilant, prosecution branch would have raised objections at the time of forwarding the challan to the Court and if investigating officer failed to remove the objection, prosecution should have brought all the lapses in the notice of learned Metropolitan Magistrate at the of taking cognizance and should have made a prayer to send the matter for further investigation. But instead of setting the record in order, learned Additional Public Prosecutor wants that charge should be framed on the basis of half cooked evidence. Such type of approach is not helpful to promote justice. No one should forget that one lady had lost his life but simultaneously life of five persons (accused) is on the stake. Life of five persons can not be decided on the basis of assumptions and presumptions as argued on behalf of State.
37. From the aforesaid discussion, it becomes abundantly clear that the matter has not been investigated fairly, impartially and there are numerous loopholes in the investigation. In fact no effort was made to find out the truth in the matter. Rather, charge-sheet has been filed after collecting inconsistent and paradoxical material. Even bare perusal of charge-sheet reveals that provisions of Section 302 IPC has been invoked half heartedly by stating that since parents of deceased had made a complaint, Section 302 IPC is added. As already discussed, complaint or apprehension of parents of deceased may be a ground to investigate the matter and not to charge-sheet the accused persons for the offence punishable under Section 302/34 IPC.
38. Now, question arises what should Court do? Whether should Court proceed with the matter despite the fact that the matter has not been investigated fairly, impartially and diligently? Or Court should direct the SC No. 01/13 Page 21 of 24 State Vs. Mukesh Jardari Wakude & others police to conduct further investigation? To my mind, proceeding with the matter with such kind of defective investigation would amount injustice not only to the victim and her family but also to the accused persons. I am of the view, no fruitful purpose would be achieved at the end of trial, if we proceed with the trial with such kind of charge-sheet.
39. Now next question arises as to whether Court has power to send the matter for further investigation?
40. This question was answered by the Apex Court in Viney Tyagi v. Irshad Ali (supra) as under:
23. "This judgment, thus, clearly shows that the Court of Magistrate has a clear power to direct further investigation when a report is filed under Section 173(2) and may also exercise such powers with the aid of Section 156(3) of the Code. The lurking doubt, if any, that remained in giving wider interpretation to Section 173(8) was removed and controversy put to an end by the judgment of this Court in the case of Hemant Dhasmana v. CBI, [(2001) 7 SCC 536] where the Court held that although the said order does not, in specific terms, mention the power of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. When any such order is passed by the court, which has the jurisdiction to do so, then such order should not even be interfered with in exercise of a higher court's revisional jurisdiction. Such orders would normally be of an advantage to achieve the ends of justice. It was clarified, without ambiguity, that the SC No. 01/13 Page 22 of 24 State Vs. Mukesh Jardari Wakude & others magistrate, in exercise of powers under Section 173(8) of the Code can direct the CBI to further investigate the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the new report to be submitted by the Investigating Officer, would be governed by sub-Section (2) to sub-Section (6) of Section 173 of the Code. There is no occasion for the court to interpret Section 173(8) of the Code restrictively. After filing of the final report, the learned Magistrate can also take cognizance on the basis of the material placed on record by the investigating agency and it is permissible for him to direct further investigation. Conduct of proper and fair investigation is the hallmark of any criminal investigation.
(emphasis supplied)
41. From the above, it becomes abundantly clear that Court has ample power to direct the police to conduct further investigation under Section 173 (8) of Code of Criminal Procedure, thus, I hereby direct the Commissioner of Police to constitute a team of suitable police officers headed by Assistant Commissioner of Police to conduct further investigation of the matter and direct him to submit the report within a period of three months to this Court. Copy of order be sent to the Commissioner of Police for compliance.
42. In the present matter all accused are on bail except Mukesh Jardari, whose bail application is pending. Since, trial can not proceed unless the supplementary report is filed by the police, thus no purpose would be achieved to keep him in custody. Accordingly, accused Mukesh Jardari is admitted on interim bail till the time supplementary charge sheet SC No. 01/13 Page 23 of 24 State Vs. Mukesh Jardari Wakude & others is filed by the police on furnishing a personal bond in the sum of ` 25,000/- with one surety in the like amount with following conditions:
(i) that he shall surrender within 10 days from the date of filing of the supplementary report. However, he shall have a right to move an application for regular bail on filing of the supplementary report;
(ii) that he shall not leave NCR Delhi without the
prior permission of the Court;
(iii) that he shall not change his address without
intimating to the SHO of PS Nabi Karim;
(iv) that he shall not try to contact family members of
the victim;
(v) that he shall join the investigation as and when
called by the police;
43. Accordingly, the bail application of accused Mukesh Jardari stands disposed of.
Announced in the open court
on this 3rd September, 2013 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI.
SC No. 01/13 Page 24 of 24