Delhi District Court
Ram Babu vs State Of on 27 April, 2011
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 21/01
Unique Identification : 02404R0032672008
State
Versus
1. Ram Babu
Son of Hira Lal
R/o- J-1033,
Mangolpuri, Delhi.
2. Rinku
Son of Ram Babu
R/o- J-1033,
Mangolpuri, Delhi.
3. Smt. Kiran
Wife of Ram Babu
Son of Hira Lal
R/o- J-1033,
Mangolpuri, Delhi.
FIR No. 954/07
PS - Mangolpuri
U/s. 498A/34 of IPC
Date of Decision: 26/04/2011
Date of order on sentence: 27/04/2011
ORDER ON SENTENCE
27/04/2011
Present. Ld. APP for the State.
All the three convicts in person with counsel Sh. A.K. Gutpa.
Heard on the point of sentence.
Learned defence counsel submits that convict Ram Babu is aged about
SC No.21/1 1
60 years. He is selling clothes in weekly market. He is not a previous convict nor
a habitual offender. He has already undergone custody of 30 months during the
trial of this case. He is having three children, out of which, two children are
unmarried. One of the son is mentally retarded, who is 30 years old.
Learned defence counsel has further submitted that convict Rinku is
aged about 26 years. He is not a previous convict nor a habitual offender. He has
already undergone custody of 31½ months during the trial of this case. He is also
selling clothes in the weekly market.
Learned defence counsel has further submitted that convict Kiran is
aged about 59 years. She is not a previous convict nor habitual offender. She is a
housewife having three children, out of which, two children are unmarried and one
of the son aged about 30 years is mentally retarded. She remained in custody for
about 17½ months during the trial of this case.
Learned defence counsel has further submitted that in view of the age,
character and conduct of the convicts and their custody period, which they have
already undergone, they be released on the imprisonment already suffered by them
in this case.
On the other hand, Ld. APP has contended that although prosecution
has not been able to prove offence U/s. 304B and 302/34 of IPC against the
convicts, but maximum punishment as provided U/s. 498A/34 of IPC be imposed
with fine.
Offence U/s. 498A/34 of IPC is punishable with imprisonment which
may be extended for three years and shall also be liable to fine.
Convict Ram Babu remained in custody from 24/12/2007 till
19/06/2010 i.e. two years, five months and twenty five days.
Convict Rinku remained in custody from 24/12/2007 till 14./07/2010
i.e. two years, six months and twenty days.
Convict Kiran remained in custody from 24/12/2007 till 13/10/2008
SC No.21/1 2
and from 21/10/2008 till 30/05/2009 i.e. one year, four months and twenty five
days.
Accordingly, considering the age, antecedents and character of the
convicts alongwith their custody period, simple imprisonment of two years and
five months is imposed on convict Ram Babu with fine of Rs. 40,000/-. In default
of payment of fine, he shall further undergo S.I. for nine months.
Simple imprisonment of two years and six months is imposed on
convict Rinku with fine of Rs. 40,000/-. In default of payment of fine, he shall
further undergo S.I. for nine months.
Simple imprisonment of one year and four months is imposed on
convict Kiran with fine of Rs. 40,000/-. In default of payment of fine, she shall
further undergo S.I. for nine months.
Fine not deposited.
Benefit of Section 428 of Cr.PC be given to each of the convict.
All the three convicts are remanded to JC to serve the sentence.
If fine is deposited and no appeal is preferred within the period of
limitation as provided, then Rs. One lac be given as compensation to the parents of
the deceased.
Announced in Open Court on
dated 27th of April, 2011
(Virender Kumar Goyal)
Additional Sessions Judge
Fast Track Court
Rohini : Delhi
SC No.21/1 3
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 21/01
Unique Identification : 02404R0032672008
State
Versus
1. Ram Babu
Son of Hira Lal
R/o- J-1033,
Mangolpuri, Delhi.
2. Rinku
Son of Ram Babu
R/o- J-1033,
Mangolpuri, Delhi.
3. Smt. Kiran
Wife of Ram Babu
Son of Hira Lal
R/o- J-1033,
Mangolpuri, Delhi.
FIR No. 954/07
PS - Mangolpuri
U/s. 498A/302/34 of IPC
Date of institution of the case: 20/03/2008
Arguments heard on: 21/04/2011
Date of reservation of Order: 21/04/2011
Date of Decision: 26/04/2011
JUDGMENT
This case was registered against accused persons U/s. 498A/307/34 of IPC on the statement of one Rajni recorded by the then SDM Sh. Ranjeet Singh on 24/12/07.
SC No.21/1 4During investigation, MLC of Rajni was collected. Copies of various DD entries and PCR form were also collected. Rough site plan was prepared. Scaled site plan was also prepared. Burnt clothes from the place of occurrence were also collected and seized along with gas pipe. Later on, gas cylinder with regulator was also seized in this case. One sealed envelope was received by doctor. Crime team inspected the spot and crime team report was also obtained.
Accused Kiran, Rinku and Ram Babu were arrested in this case on 24/12/07 and they made their disclosure statements. Their personal searches were also conducted. Postmortem report was also obtained. Brief facts were prepared by the Investigating Officer. Identification statements of dead body were also recorded and after postmortem, dead body was handed over to its claimants. Exhibits were sent to FSL.
On completion of investigation, chargesheet was filed against accused persons u/s 498A/302/34. Case was committed to the Court of Sessions on 15/04/08 and was received on 24/04/08.
Charge against the accused persons was framed u/s 498A/34, 304B/34 of IPC and 302/34 of IPC, to which they pleaded not guilty and claimed trial.
To prove its case prosecution has examined PW1 to PW21 in all. On completion of evidence of prosecution, statement of accused persons were recorded. They have denied the case of prosecution.
Accused Rinku has pleaded that on the day and time of incident, he was not present in his house. He had gone to purchase clothes from the market as he was selling readymade garments in the weekly market. Late on, he came to know that his wife accidentally caught fire, while she was boiling potatoes on the gas stove. She had given statement under pressure and inducement of his parents in law in order to falsely implicate them in a false case. They are innocent".
Accused Ram Babu has pleaded that the marriage of his son was solemnised on 25/07/2007 in a simple manner without any exchange of dowry and SC No.21/1 5 after that, Rajni remained in their house peacefully and they had never demanded any dowry from her or from her parents. On 24/12/07, she caught fire accidentally while she was boiling the potatoes on the gas. After that, ,her husband informed the brother of Rajni. At that time, her son Rinku was not present in the house and she alongwith her husband was present alone. In first statement, Rajni told that she caught fire, while boiling the potatoes. The SDM had taken her second statement at the instance of her parents and IO. She is innocent".
Accused Kiran has pleaded that the marriage of his son was solemnised on 25/07/2007 in a simple manner without any exchange of dowry and after that, Rajni remained in their house peacefully and they had never demanded any dowry from her or from her parents. On 24/12/07, she caught fire accidentally while she was boiling the potatoes on the gas. After that, her husband informed the brother of Rajni. At that time, her son Rinku was not present in the house and she alongwith her husband was present alone. In first statement, Rajni told that she caught fire, while boiling the potatoes. The SDM had taken her second statement at the instance of her parents and IO. He is innocent".
In defence, accused persons have also examined three defence witnesses.
During the trial, FSL report was also obtained and filed in the court. I have heard Ld APP for State and Ld counsel Sh. A.K. Gupta for accused persons and have gone through the evidence adduced and material placed on record.
Findings qua first dying declaration.
The first dying declaration of deceased Rajni is Ex. PW3/DB. It was recorded by one police official. It has not been relied upon by the prosecution, but has been placed on record and pointed out in the cross examination of PW3. It is having right thumb impression of Rajni, endorsed by Dr. Manisha Tomar, and also signed by Amit, brother of deceased Rajni.
SC No.21/1 6The contents of the same, as stated by Rajni to the police official, is that she resides at J-1033, Mangolpuri, Delhi. They were quarreling with her. Her mother in law, father in law and husband were quarreling from yesterday and were demanding T.V. Today, while she was cooking meal in the morning, she caught fire from the gas. She was boiling potatoes. When she ignite the gas, she caught fire. They were also quarreling today. It is dated 24/12/2007 and recorded at 11.40 a.m. PW3 Amit, brother of deceased Rajni, has deposed in the cross examination that he has signed document Ex. PW3/DB and same bears his signatures at point A. PW3 has further stated that statement of Rajni was not recorded in his presence, so he cannot say whether she, in her statement, had stated that she caught fire accidentally, while cooking the meals, but again PW3 has stated that he was alone, when his signatures were obtained on Ex. PW3/DB. His signatures were obtained by the doctor on Ex. PW3/DB on the pretext that Rajni was required to be shifted to LNJP hospital. Investigating Officer was not present at that time, when his signatures were obtained.
Learned defence counsel has contended that PW3 Amit has given a vague explanation about his signatures appearing on Ex. PW3/DB and it is further evident from his cross examination that he had not stated in his statement to the police that his signatures were obtained by the doctor on the document Ex. PW3/DB. Learned defence counsel has further contended that even PW3 Amit did not make any complaint against the doctor, who obtained his signatures on Ex.PW3/DB.
Learned defence counsel has further contended that conduct of PW3 Amit itself shows that he has tried to give a vague explanation regarding his signatures on Ex. PW3/DB, but has denied the same.
On the other hand, Ld. APP has contended that PW3 Amit has also stated that Rajni did not given any statement to the police in his presence and SC No.21/1 7 voluntarily has stated that they were not allowed to enter the room, where Rajni was kept.
Learned defence counsel has further contended that if he was not allowed to enter the room, where Rajni was kept, then how his signatures appeared on Ex. PW3/DB. Learned defence counsel has further contended that not only PW3 Amit signed the same, but it was also written that Rajni had given her statement in SGM hospital in front of the doctor and he witnessed the same. Learned defence counsel has further contended that PW3 is not reliable in this respect as he did not make any complaint that his signatures were obtained on Ex. PW3/DB on some false pretext that Rajni was to be shifted to LNJP hospital. Learned defence counsel has further contended that explanation of PW3 Amit is itself contradictory to his cross examination, wherein he has stated that they were not allowed to enter the room, where Rajni was kept. If they were not allowed to enter the room, then there was no occasion for the doctor to obtain his signatures on the false pretext that Rajni was to be shifted to LNJP hospital. Learned defence counsel has further contended that as Rajni was shifted from SGM hospital to LNJP hospital, so, PW3 Amit has picked up a false plea to cover up his signatures on Ex.PW3/DB, but denied the contents of the same.
PW11 Dr. Manisha Tomar has deposed that statement of Rajni Ex. PW3/DB was recorded at about 11.40 a.m. in her presence, which was endorsed by her in red encircle Ex. PW11/B and bears her signatures at point B. In the cross examination, PW11 Dr. Manisha Tomar has admitted that at the time of recording of statement of Rajni, her brother Amit was present, who signed the said statement in her presence. PW11 has further deposed in the cross examination that Rajni affixed her thumb impression on Ex. PW3/DB at point C in her presence. She was present throughout the recording of the statement of patient Rajni. She signed the statement at point B after recording of the same and after the portion written at point D on the said document.
SC No.21/1 8PW11 Dr. Manisha Tomar has further deposed in the cross examination that she remained with patient Rajni for about 30-40 minutes at the time of recording of the statement Ex. PW3/DB. Rajni was conscious at that time.
On the other hand, learned Addl. PP has contended that during reexamination, PW11 Dr. Manisha Tomar has admitted that she had nowhere declared patient Rajni fit for statement on MLC Ex. PW11/A, but had mentioned that patient was conscious and oriented, so PW11 cannot be relied to the extent that Rajni was fit for statement.
PW11 has further deposed in the cross examination that so far as she recollects, Ex. PW3/DB was recorded by some police official. In the cross examination of reexamination, again PW11 Dr. Manisha Tomar has admitted that whatever was being stated by Rajni, was recorded by the police official i.e. Ex. PW3/DB and her brother Amit remained present there. PW11 has further admitted that thumb impression of patient Rajni was obtained at point C after the statement was read over to her by the police official. She has further admitted that patient was conscious and oriented from 10.55 a.m. to 11.40 a.m. and thereafter patient was referred to SR (Surgery).
The contentions of learned defence counsel are forceful. From the evidence of PW11 Dr. Manisha Tomar, it is clear that Ex. PW3/DB was recorded in her presence. Patient Rajni was conscious and oriented. It was recorded in presence of her brother Amit by the police official. The statement was also read over to Rajni and thereafter her thumb impression was obtained on the same. The statement was also witnessed by PW3 Amit, brother of deceased Rajni.
PW20 SI Uma Dutt has stated that he recorded statement of Rajni in presence of CMO and also in presence of Amit Kumar, brother of Rajni, which is Ex. PW3/DB. The same is in his handwriting. He obtained the thumb impression of Rajni on the same at point C. The CMO concerned also made his endorsement on Ex. PW11/B as read encircled. Amit, brother of Rajni also signed the same at SC No.21/1 9 point X. In the cross examination also, PW20 SI Uma Dut has stated that he recorded statement Ex. PW3/DB at about 11.40 a.m. and recorded whatever was told by injured Rajni. At that time, injured Rajni was conscious and Amit Kumar, brother of Rajni and concerned CMO Dr. Manisha Tomar were also present there. PW20 has also admitted that portion encircled red at point A is in his handwriting. PW20 has further admitted that firstly he obtained thumb impression of injured Rajni in presence of her brother and concerned CMO Dr. Manisha Tomar. Thereafter, he obtained signatures of Amit Kumar on the statement and thereafter Dr. Manisha Tomar made her endorsement.
According to PW20 SI Uma Dutt, on 24/12/2007, he was posted at PS Mangolpuri. On that day, he was on emergency duty from 8.00 a.m. to 8.00 p.m. with Constable Yogender Kumar. He received DD No. 11A in the morning regarding burning of a lady at J-1033, Mangol Puri, Delhi. He reached there with Constable Yogender and came to know that lady had already been removed to SGM hospital. He left Constable Yogender at the spot and himself reached at SGM hospital. He came to know that Rajni was admitted in the hospital. He recorded her statement Ex.PW3/DB.
So, on receipt of DD No. 11A, which was the first information regarding the burning of Rajni, which was recorded at about 10.25 a.m., SI Uma Dutt reached firstly at the spot and then reached at SGM hospital and recorded Ex. PW3/DB. Brother of Rajni i.e. PW3 Amit was also present there.
In the examination in chief, PW3 Amit has himself admitted that on 24/12/2007 at about 9.30/10 a.m., he received a telephone call on his mobile phone from accused Rinku about the burning of Rajni and he alongwith his mother and father reached at the house of the accused persons, which was found locked and they came to know that his sister was removed to SGM hospital. So, they reached there, where they found Rajni admitted in burnt condition. So, presence of PW3 Amit was not improbable or impossible because he received SC No.21/1 10 information of the incident at about 9.30/10.00 a.m.. Firstly, he reached at the house of the accused persons and thereafter to SGM hospital and it corroborates the timing of recording of statement Ex. PW3/DB at about 11.40 a.m. PW2 Smt. Sudesh, mother of Rajni, has also deposed the same facts that they reached at the house of the accused persons, but the house of the accused persons was found locked. Thereafter, she went to PS Mangolpuri and thereafter she went to her house alone as she was not feeling well. So, it is clear that PW2 Smt. Sudesh did not go to SGM hospital. In the cross examination, PW2 Smt. Sudesh has further admitted that as long as her deceased daughter remained in SGM hospital, she remained with her, but on the other hand, PW2 has stated that she did not go to SGM hospital, rather from the house of accused persons, she went to PS Mangolpuri and thereafter she came back to her house alone as she was not feeling well. Her husband and son went to hospital to verify the information given by the accused persons. She has further admitted that she visited Irwin hospital and found her daughter Rajni in Burn Ward, but in the cross examination, she has admitted that she remained in SGM hospital as long as her daughter remained there. In such circumstances, it is difficult to believe whether PW2 Smt. Sudesh had visited SGM hospital or not or whether she was present there, when statement of Rajni was recorded. From the statement of PW2 Smt. Sudesh, it seems more probable that she had visited LNJP hospital only and not SGM hospital.
PW6 Ravinder Gupta is father of deceased Rajni. He has stated that on the date of incident, might be 24/12/2007, he came to know from his son that his daughter Rajni was got admitted at SGM hospital due to burns. He alongwith his wife, son and other relatives reached at SGM hospital, where he saw his daughter in burnt condition. Thereafter, his daughter was shifted to LNJP hospital.
In the cross examination, PW6 Ravinder Gupta has stated that he received information at about 10/11 a.m.. Accordingly, he went to the hospital SC No.21/1 11 straightway. They remained at SGM hospital for about five minutes. His son already visited the hospital prior to their arrival at SGM hospital. His daughter was unconscious. Therefore, they could not talk with her.
So, PW2 Smt. Sudesh, PW3 Amit and PW6 Ravinder Gupta all have contradicted each other regarding their presence at SGM hospital. PW2 Smt. Sudesh has stated that they all went to house of the accused persons, which was found locked and then PW2 went to PS Mangolpuri and from there, she came to her house, whereas PW3 Amit has deposed that he alongwith his parents went to the house of the accused persons, which was found locked and they reached at SGM hospital, where they found Rajni admitted there in burnt condition. PW6 Ravinder Gupta has deposed that on receipt of information at about 10/11.00 a.m., he went to the hospital straightway.
PW3 Amit has deposed that he received information at about 9.30/10.00 a.m., which shows that when the information was received by PW3 Amit Kumar, PW6 Ravinder Gupta was not present there and he received information later on at about 10/11 a.m. and straightway reached at the hospital. His son had already visited the hospital prior to their arrival, which seems to be more probable and support the recording of Ex.PW3/DB and from the testimony of PW6 Ravinder Gupta, it is clear that PW3 Amit had already reached there at SGM hospital and was present there.
All PW2, PW3 and PW6 have contradicted each other as to whether they firstly reached at the house of the accused persons, which was found locked and thereafter reached at SGM hospital. So, they cannot be believed in this respect. From the depositions of these witnesses, it seems to be more probable and proved that firstly PW3 Amit received information about the incident at about 9.30/10 a.m. and thereafter he reached at SGM hospital. PW2 Smt. Sudesh did not come to the hospital as she was not feeling well. PW6 Ravinder Gupta reached at SGM hospital, but later on, as he received information at about 10/11 a.m. and SC No.21/1 12 prior to his reaching, PW3 Amit had already reached there. So, it is neither unnatural nor improbable that PW3 Amit was present at 11.40 a.m., when statement of Rajni was recorded by PW20 SI Uma Dutt in presence of PW11 Dr. Manisha Tomar.
From the statements of PW11 Dr. Manisha Tomar and PW20 SI Uma Dutt, it has been proved that this dying declaration was made by Rajni, while she was conscious and oriented, in presence of Dr. Manisha Tomar and her brother Amit Kumar and as nothing was making out from this dying declaration, so this was not relied upon by the prosecution and later on, another dying declaration was got recorded by the police through SDM on the same day at about 1.15 p.m. Second Dying Declaration:
The second dying declaration was recorded by SDM Sh. Ranjeet Singh at about 1.15 p.m. on 24/12/2007. According to the same, Rajni was married to accused Rinku on 25/07/2007. Her mother in law, father in law and husband used to demand dowry. One day before the incident, she had come to her matrimonial house, but her mother in law, father in law and husband started quarreling with her as to why she had not brought T.V. with her. In the morning, before the incident, her mother in law, father in law and husband started quarreling with her. Her husband had given beating to her with legs and she started bleeding from her mouth.
Thereafter, it is written in the statement that Rajni herself told from her mouth that her mother in law and father in law set her on fire. It is bearing right thumb impression of Rajni. It is also written that Dr. Kanav has written that patient was fit for statement at 1.15 p.m. and statement was given in his presence.
Sh. Ranjeet Singh, SDM, Saraswati Vihar, Delhi, has been examined by the prosecution as PW1. He has stated that on 24/12/2007, after receiving information from the Investigating Officer, he alongwith his staff reached at LNJP hospital and found Rajni admitted there having burn injuries. The injured was duly SC No.21/1 13 identified by the Investigating Officer. He obtained opinion of the doctor as to whether the patient was fit for statement. Dr. Kanav declared patient fit for statement. Thereafter, he directed Investigating Officer to leave the Burn Ward. No family member or police official was present near the bed of patient Rajni. He asked some questions from her to satisfy himself, if she was able to speak or not. The patient spoke and answered to his questions. After satisfying himself, he recorded her statement Ex. PW1/A. He read over the statement to the patient and she found the same to be correct and then she put her right thumb impression at point X. Ex. PW1/A also bears his signatures at point B. Thereafter, he called father of injured i.e. Ravinder Gupta and told him about the facts, who also signed the same at point Y and he also signed the same at point C. Thereafter, he made endorsement Ex. PW1/B and gave directions to SHO, PS Mangolpuri to take necessary action as per law.
In the cross examination, PW1 Sh. Ranjeet Singh has stated that he received information at about 11/11.30 a.m. on telephone, while he was in his vehicle on road and was going to his office. So, he directly reached at LNJP hospital within one hour or one hour 15 minutes in his official vehicle.
PW1 Sh. Ranjeet Singh has admitted in the cross examination that he cannot identify signatures of Dr. Kanav on the MLC as he had conducted so many cases and it is very difficult to identify the signatures after lapse of time.
On the other hand, PW20 SI Uma Dutt has deposed that he informed the concerned SDM. SDM reached at SGM hospital. Injured Rajni was shifted to JPN hospital. He also reached at JPN hospital with SDM in the burn ward. The SDM concerned obtained the opinion of the doctor as to whether she was fit for statement. Injured Rajni was declared fit for statement, so her statement was recorded by the SDM Ex. PW1/A, on which, SDM directed SHO to take necessary action. The same was handed over to him. He went to PS and handed over the same to Investigating Officer Inspector Mahesh Kumar.SC No.21/1 14
In the cross examination, PW20 SI Uma Dutt has stated that SDM came to SGM hospital after 12 p.m. He left the hospital after reaching of the SDM in SGM hospital. He had told to the SDM that he had recorded statement of injured Rajni Ex. PW3/DB. PW20 has further deposed in the cross examination that he reached at JPN hospital with the SDM in his vehicle. Statement of injured Rajni was recorded by the SDM at about 2.15 pm.. He was not present at that time in the ward, but was standing outside. Father of injured Rajni was present inside the ward at the time of recording of her statement. No other person was present at that time in the ward.
Learned defence counsel has contended that both PW1 Sh. Ranjeet Singh, SDM, Saraswati Vihar and PW20 SI Uma Dutt have contradicted each other. On one hand, PW1 Sh. Ranjeet Singh, SDM, Saraswati Vihar has stated that he straightway reached at LNJP hospital, whereas PW20 SI Uma Dutt has stated that firstly SDM reached at SGM hospital and from there, he accompanied the SDM and reached at LNJP hospital. Learned defence counsel has further contended that PW20 SI Uma Dutt has also deposed that he told about the statement of Rajni recorded by him Ex. PW3/DB to SDM. Learned defence counsel has further contended that according to cross examination of PW20 SI Uma Dutt, statement of Rajni was recorded by the SDM at about 2.15 p.m. in LNJP hospital, whereas according to Ex. PW1/A, it was recorded at 1.15 p.m. According to Sh. Ranjeet Singh, SDM, Saraswati Vihar, no family member or police official was present near the bed of patient Rajni, when statement of Rajni was recorded, whereas PW20 SI Uma Dutt has stated that father of witness Rajni was present inside the ward at the time of recording of statement of Rajni, which shows that Rajni was tutored for making statement Ex. PW1/A. Learned defence counsel has further contended that Ex. PW1/A also does not seem to be probable as Rajni has given statement about the incident of quarrel as she did not bring T.V. with her and she was beaten by her husband, but SC No.21/1 15 the last sentence is not according to the statement of Rajni as it has been written by the SDM that "Rajni ne swayam apne Muh se yah bayan diya kiya uske saas-sasur ne hee use aag lagayi hai". Learned defence counsel has further contended that if the statement of Rajni was being written by the SDM himself, this sentence would have been told by Rajni in first person that she was burnt by her father in law, mother in law and the words "Rajni ne swayam apne Muh se yah bayan diya kiya uske saas-sasur ne hee use aag lagayi hai" were not required to be written in any manner. It seems that some interpolation was made at the instance of father of Rajni.
Learned defence counsel has further contended that Rajni was declared fit for statement on the MLC by one doctor on 24/12/2007 at about 1.15 p.m., but the same has not been proved in any manner and it is also written on Ex. PW1/A that Dr. Kanav had declared patient fit for statement, but despite opportunity given, prosecution has not been able to examine Dr. Kanav. Learned defence counsel has further contended that even Dr. Kanav has not signed statement Ex. PW1/A in any manner. So, words written that "statement was given in front of the doctor" is of no relevancy. Learned defence counsel has further contended that it is also not clear whether the words "statement given in my presence" is for Dr. Kanav or for Sh. Ranjeet Singh, SDM, Saraswati Vihar.
On the other hand, learned Addl. PP has contended that from the cross examination of PW2 Smt. Sudesh, it is clear that none was allowed to sit with Rajni at LNJP hospital. Neither PW2 Smt. Sudesh, her husband and her son went to meet Rajni before recording the statement of Rajni, so, it is clear that Rajni was not tutored in any manner as none of the family member was allowed to visit Rajni before arrival of the SDM.
According to PW3 Amit, when his sister was referred to LNJP hospital, his father accompanied his sister Rajni. Thereafter, they went to PS Mangolpuri for making complaint. Police informed the SDM to visit the hospital and his SC No.21/1 16 statement was recorded by the Investigating Officer. PW3 Amit has admitted in the cross examination that his father went to LNJP hospital prior to him from SGM hospital, which corroborate with the other witnesses that PW6 Ravinder Gupta accompanied Rajni, while she was referred to LNJP hospital from SGM hospital and further that at the time of recording of statement of Rajni by PW1 Sh. Ranjeet Singh, SDM, PW6 Ravinder Gupta was present there inside the ward. Even PW6 Ravinder Gupta has also deposed so that his daughter was shifted to LNJP hospital. He also reached there, where SDM reached at the spot and recorded statement of Rajni in presence of doctor, which is Ex. PW1/A and bears his signatures at point Y as an attesting witness. In the cross examination also, PW6 has admitted that he also went to JPN hospital in the same vehicle, in which, his daughter was taken. After five minutes, SDM came there and he started recording statement of his daughter and he was kept aloof till then he remained with his daughter. His daughter regained consciousness at LNJP hospital. PW6 has further stated in the cross examination that he does not remember apart from him, who else was present in the room, when the statement of his daughter was being recorded by the SDM. PW6 has further stated that when SDM was recording the statement of his daughter, room was open and other persons were visiting the said room to see other patients and it took more than five minutes in recording the statement of his daughter by the SDM. So, PW6 has corroborated with PW20 SI Uma Dutt that at the time of recording of statement of Rajni Ex.PW1/A, he was present with SDM, which is contradictory to the deposition of PW1 Sh. Ranjeet Singh, SDM, who has stated that no family member or police official was present near the bed of patient Rajni, when he started recording statement of Rajni Ex. PW1/A. Presence of PW6 Ravinder Gupta with Rajni, while she was referred from SGM hospital to LNJP hospital and also when statement of Rajni was recorded by the SDM Ex. PW1/A, itself creates doubt that she was tutored to name SC No.21/1 17 the mother in law and father in law as the persons, who set her on fire. Even otherwise, from the attestation of PW6 Ravinder Gupta on the statement Ex. PW1/A, it is clear that he was present in the hospital because he has written that whatever statement has been given by his daughter Rajni in the hospital is correct and he attested the same. So, the second dying declaration recorded by the SDM Ex. PW1/A is not clear from doubts and there was possibility of tutoring and was not recorded independently by the SDM-PW1 Sh. Ranjeet Singh. The contradictions appearing in the deposition of PW 1 and in the depositions of PW6 and PW20 are material and render the second dying declaration Ex. PW1/A unbelievable. The contents of the same are also doubtful as in the second dying declaration Ex. PW1/A, the last sentence, wherein SDM has written that Rajni has told from her mouth that she has been set on fire by her father in law and mother in law, seems to be interpolated because in the first dying declaration Ex. PW3/DB, Rajni had told that she caught fire accidentally with the gas, whereas in the second dying declaration, it is told that she was set on fire by her mother in law and father in law.
It has also to be seen as to whether it was possible that Rajni could have burnt with the gas or she accidentally caught fire while cooking meal.
In support of his contents, learned defence counsel has relied upon Criminal Appeal No. 236 of 2007 titled as Mohan Lal and others Vs. State of Haryana of Supreme Court of India, wherein it has been held that "if dying declaration was recorded by Judicial Magistrate in presence of mother and father of the deceased, then the same can be result of tutoring and was not free and voluntary one".
It has also been further held that "when there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration must be held trustworthy and reliable, it has to be accepted".SC No.21/1 18
It has been further held in Criminal Appeal No. 1167 of 2006 titled as Panneerselvam Vs. State of Tamil Nadu of Supreme Court of India that "where there is more than one statement in the nature of dying declaration, one first in time must be preferred".
It has also been held in Criminal Appeal No. 828 of 2009 titled as Raman Kumar Vs. State of Punjab of Supreme Court of India that "if there are material improvements made by mother and brother of the deceased in the Court in respect of harassment and demand of dowry soon before the death of the deceased and if prosecution has failed to rule out the possibility of accidental death and could not establish that there was harassment meted out to the deceased for dowry soon before her death, then it is not a dowry death".
According to first dying declaration Ex. PW3/DB, Rajni caught fire on gas, while she was cooking meals. While according to second dying declaration Ex. PW1/A, she was burnt by her father in law and mother in law. In the MLC Ex. PW1/A, it is mentioned that injured Rajni was taken to hospital by PCR and alleged history was given thermal burns, as told by patient's attendant. Even according to DD No.11A, information was received at 10.25 a.m. that a lady h ad set herself on fire at J-1033, Mangolpuri, Delhi. Burnt clothes were recovered and were seized vide memo Ex. PW5/A. One big gas pipe and one broken small piece of gas pipe were taken into possession vide memo Ex. PW5/B, whereas cylinder with regulator having one small piece of pipe was also taken into possession on 11/01/2008 vide memo Ex. PW5/C. According to Ex. PW10/A, i.e. crime team report, water was found in the room and clothes were lying in the water, which were somewhat burnt. Burnt ashes in the room and kitchen were seen. One small pipe was found burnt. According to postmortem examination report Ex. PW17/A, alleged history is of sustaining burn injuries at home on 24/12/2007 at about 9.30 a.m. Cause of death was septicemia consequent upon infects burn injuries.SC No.21/1 19
Injury No. 1 was caused due to flame of fire. Injury No. 2 and 3 were caused due to blunt force/surface impact and were about two weeks in duration. The postmortem report is dated 12/01./2008. So, it is corroborating with the date of death. Injury No. 2 is lacerated wound measuring 1.2 c.m x 0.3 c.m x mucosa deep present over inner aspect of right cheek near angle of mouth and injury No. 3 is contusion measuring 7 cm x 3 cm, blackish, present over outer front of right arm, 4 cm below tip of right shoulder.
According to FSL report, Ex. 1, Ex. 2 and Ex. 3 i.e. one partially burnt black, yellow and white printed cloth material and one partially burnt pink coloured cloth material, one partially burnt green coloured rubber pipe and some hair strands were not containing residues of petrol, kerosene or diesel. It is also not the case of the prosecution that Rajni was burnt by pouring kerosene, petrol or diesel on her. So, the report has only ruled out that Rajni burnt with gas only. The only question is to see whether she caught fire accidentally or she was burnt by her parents in law.
PW2 Smt. Sudesh, mother of Rajni, has deposed that there was a demand for T.V. from the side of in-laws of deceased Rajni and she used to tell them about the cruelty and harassment and about the demand of TV made by the accused persons. PW2 Smt. Sudesh has further deposed that one and half month prior to the incident, Rajni was dropped by accused Rinku at their house and he told that that he will not take Rajni back to their house until their demand of TV is fulfilled by them. They requested the accused to take their daughter back and also requested that they will fulfill their demand of TV after sometime as they were not in a position to arrange the T.V. Thereafter, on the intervention of the relatives, matter was pacified at that time and on 23/12/2007, accused Rinku took away Rajni with him, though Rajni was feeling apprehension and she refused to go back to her matrimonial house with the accused saying that accused persons will again demand for TV from her and will quarrel with her and they can kill her. Not only SC No.21/1 20 this, PW2 has further deposed that she went to Irwin Hospital and found her daughter Rajni admitted in Burn Ward. She asked her daughter as to how she received burn injuries. She told that she had been beaten by all the three accused persons, who were demanding TV and thereafter they set her on fire. Even in the cross examination, PW2 has stated that father in law and brother in law of her deceased daughter also came to her house regarding the demand of TV. Her daughter was also present at that time.
Learned defence counsel has contended that accused persons were already having two TV sets in the house, so, there was no occasion to demand any T.V., but in this respect, PW2 Smt. Sudesh, in the cross examination, has stated that she did not see any TV in the house of her deceased daughter , however, a fridge, almirah and bed were lying there. So, the contention of learned defence counsel is not forceful in any manner that T.V was not demanded by the accused persons.
In the cross examination, PW2 Smt. Sudesh has stated that no one was allowed to sit with her daughter at LNJP hospital. Neither she nor her husband or son went to meet her daughter, before arrival of the SDM. So, it is doubtful whether Rajni told PW2 Sudesh that she was beaten by the accused persons and that they were demanding TV and thereafter they set her on fire. In the examination in chief, PW2 Sudesh has not stated as to when these facts were told to her by Rajni and from the cross examination, it is clear that she was not allowed to meet Rajni before the arrival of the SDM.
PW6 Ravinder Gupta has contradicted with PW2 Smt. Sudesh and has deposed in the cross examination that his wife did not visit LNJP hospital on that day. So, in view of contradiction, PW2 Smt. Sudesh cannot be believed that she visited LNJP hospital and Rajni told her that she was beaten by the accused persons as they were demanding TV and thereafter they set her on fire. Hence, it cannot be said that Rajni also made any oral dying declaration before PW 2 Smt. SC No.21/1 21 Sudesh that accused persons were demanding TV and they set her on fire.
PW3 Amit has also deposed that accused persons used to harass and torture her sister for bringing insufficient dowry articles and they were demanding TV in dowry. Two months prior to the incident, his sister came to their house and told that accused persons were demanding TV and they told that they will arrange TV. Thereafter, his sister Rajni was sent back to her matrimonial house alongwith accused Rinku and her father in law on 23/12/2007, after their intervention and accused persons assured them that in future, they will not torture Rajni for demand of dowry and they will keep her with love and affection. So, from the statement of PW3 Amit also, prosecution has been able to prove that accused persons were demanding TV. In the cross examination also, PW3 Amit has stated that demand of TV was first raised by the accused persons after 2/3 months of the marriage and it was being made by her father in law and mother in law. PW3 Amit has also denied that there were two rooms in the matrimonial house of deceased Rajni and TV were installed in both the rooms.
From the statement of PW3 Amit, prosecution has not been able to prove the fact that accused Rinku had told him that Rajni had been set on fire and called him to take her back to parental house because the same is not appearing in Ex. PW3/DA,with which ,PW3 Amit has been confronted. So, PW3 Amit has made improvement in this respect that Rajni was set on fire by the accused persons. So, he cannot be believed in this respect in any manner.
PW6 Sh. Ravinder Gupta, father of the deceased, has also deposed that after one and half month of the marriage, his daughter was left in their house by accused Rinku. His daughter told that she was tortured and harassed by the accused persons for not bringing sufficient dowry and they were demanding television. He told his daughter that he was not in a position to fulfill the demand, but will try for the same. His daughter remained in his house for about one month and 15 days. His elder brother Rajinder, who was residing at Mangolpuri, came to SC No.21/1 22 their house alongwith accused Ram Babu and they made understand that they would not torture or harass his daughter on the pretext of demand of TV in dowry. So, he sent his daughter Rajni to her matrimonial house alongwith her husband Rinku. In the cross examination also, PW6 Ravinder Gupta has again testified that demand of TV was raised after two months of the marriage and all the accused persons demanded TV from them. PW6 Ravinder Gupta has also denied the suggestion that there were televisions in the rooms of the matrimonial house of Rajni.
The testimonies of PW2 Smt. Sudesh, PW3 Amit and PW6 Ravinder Gupta are corroborating each other and they inspire confidence regarding the demand of TV made by the accused persons in dowry. Not only this, the accused persons also deserted and dropped Rajni at her parental house, where she stayed for one and a half month and only after giving the assurance that no demand will be made, she was allowed to be taken back by accused Rinku on 23/12/2007 and on the next day morning, she sustained burn injuries in the kitchen.
In the explanation, accused Ram Babu has stated that it was simple marriage without any exchange of dowry and they never demanded any dowry. On 24/12/2007, Rajni caught fire accidentally, while she was boiling potatoes on the gas. Thereafter, he informed the brother of Rajni. At that time, his son Rinku was not present in the house and he alongwith his wife was present alone. Accused Rinku has stated that on the day of incident, he was not present at his house. He had gone to purchase clothes from the market as he was selling readymade garments in the weekly market and later on came to know that his wife caught fire accidentally, while she was boiling potatoes on gas. The explanation of accused Rinku is not acceptable as according to PW3 Amit, he was informed about the burning of Rajni on telephone by accused Rinku. It has also not come in the depositions of PW2, PW3 and PW6 that they received information about the incident from any other person also.SC No.21/1 23
DW1 Urmila Devi has also deposed that she used to visit the house of accused persons after the marriage of accused Rinku. On 24/12/2007 at about 10/10.30 a.m. , she heard a cry. She reached at the house of the accused persons and saw accused Kiran lying on the ground floor inside the shop in unconscious condition. She saw wife of Rinku i.e. Rajni sitting in the bathroom. She was not having any cloth on the upper side of her body. Accused Ram Babu was pouring water on her. She advised accused Ram Babu not to pour water on the burn injuries of the wife of accused Rinku because the same will adversely affect the injuries. She sent accused Ram Babu downstairs and asked Rajni as to what had happened and she told that she was boiling potatoes and caught fire in the corner of her saree. She draped Rajni in a saree, which was hanging there and took her downstairs and put her in the police vehicle. In the cross examination, she has admitted that she knew that accused Ram Babu had apologized by visiting the house of Rajender Gupta, brother of the father of deceased and had asked to send Rajni to their house. So, this fact is corroborating with the deposition of PW6 Ravinder Gupta.
DW2 Kamla Devi has deposed that Rajni had gone to her parental house for one and half month and she had come one day before the incident, which also corroborates the testimony of PW6 Ravinder Gupta regarding the fact that Rajni was left at her parental house for demand of TV and was taken back by accused Rinku on 23/12/2007 on giving assurance that they will not harass and torture Rajni on the pretext of demand of TV.
DW2 Smt. Kamla Devi has also corroborated in the cross examination with the fact that Rajni was brought back by accused Rinku.
DW3 is Suman. She is sister of accused Kiran. She came to know about the incident, while she was present on her job at school. Firstly, she came to her house from the school and made a call to the younger son of accused Ram Babu, who told her that all the persons of the family of accused had gone to Sanjay SC No.21/1 24 Gandhi Memorial Hospital hospital. She has further deposed about good moral character of the accused persons. She is neither eye witness to the incident nor to the circumstances in any manner. Even she has denied the suggestion in the cross examination that Rajni stayed with her parent for one and half month and she was brought hack when accused Ram Babu apologized to PW6 Ravinder Gupta, which facts have been admitted by DW1 and DW2. DW3 Suman has admitted that accused Rinku had gone to take back Rajni to her matrimonial house on 23/12/2007. So, DW1, DW2 and DW3 have also corroborated the facts that Rajni was staying at her parental house for the last one and half month due to some dispute and was taken back, when accused Ram Babu apologized to Rajinder, elder brother of PW6 Ravinder Gupta, to her matrimonial house by accused Rinku on 23/12/2007.
In view of the same, from the depositions of PW2, PW3 and PW6, prosecution has been able to prove that accused persons were demanding TV in dowry and for this reason, they were torturing and harassing Rajni. Not only this, Rajni was left at her parental house one and half month before the incident and was taken back by accused Rinku on 23/12/2007, only when accused Ram Babu apologized to PW6 and PW10 and assured that they will not harass or torture Rajni on the demand of TV. This fact has also been corroborated by DW1 and DW2. Desertion on the ground of non-fulfilling of dowry demand also amounts to cruelty and harassment. Accordingly, prosecution has been able to prove offence U/s. 498A/34 of IPC against the accused persons beyond reasonable doubts, for which, they are held guilty and convicted for the same.
According to dying declaration Ex. PW3/DB, Rajni caught fire accidentally, while she was boiling potatoes. According to second dying declaration Ex. PW1/A, she was set on fire by her father in law and mother in law and according to depositions of PW2 Smt. Sudesh, PW3 Amit and PW6 Ravinder SC No.21/1 25 Gupta, she was set on fire by accused persons as Rajni was already apprehending that accused persons will kill her, when she was taken back to her matrimonial house by accused Rinku on 23/12/2007, but PW2 Smt. Sudesh, PW3 Amit and PW6 Ravinder Gupta have been confronted with these facts that Rajni was apprehending that accused persons will kill her and PW3 Amit has also been confronted with the fact that accused Rinku told him on telephone that they had set Rajni on fire and called him to take her back to her parental house. So, these PWs i.e. PW2, PW3 and PW6 cannot be relied upon in this respect.
From the photographs, one small piece of gas pipe attached with the gas pipe is visible and one burnt gas pipe piece with gas cylinder is visible lying on the ground. It is difficult to understand as to whether Rajni caught fire, while she was removing utensil from the gas burner, in the palla of her saree or gas pipe burnt under same circumstances and she caught fire from the gas pipe. The space of the kitchen is very small and it is difficult for three persons to stand therein i.e. deceased and her parents in law. If we rely upon the second dying declaration that she was set on fire by her father in law and mother in law, it is also highly dangerous to burn any person with the help of gas pipe after removing the same from the gas stove and it can endanger the life of the person, who does so in such manner and no one will endanger his life in such situation.
Learned defence counsel has drawn the attention of the Court towards the order of the Hon'ble High Court of Delhi, which was passed during bail application of accused persons and pointed out certain observations of Hon'ble court which are as under :
" If the pipe of a gas cylinder is removed from the gas stove, then the gas stored in the cylinder is free to come out of the pipe without regulating knob attached to the stove. The gas is stored in gas cylinder in liquefied form under high pressure and the moment the gas comes out of the cylinder, where it is in liquefied from under high pressure, into atmosphere, it is bound to expand and SC No.21/1 26 spread all around. Any person holding a gas pipe if tries to lit a matchstick, the gas will catch fire instantly and spread in the entire room and the person trying to burn other will have to burn himself too. He ca save himself only if he is protected by fire resistant clothes. It is not the case of the prosecution that any other person got burnt in this incident of burning of the deceased because of cooking gas.
It is submitted by learned APP for State that the Court should not appreciate the evidence at this stage while granting bail and CFSL expert was yet to be examined. He also submits that if a gas pipe attached with the gas cylinder is aimed at a person, then that person only will get burnt. I consider that this argument must fail. A person holding the pipe cannot control either the flow of gas or spreading of gas into the area where gas pipe is opened. As per laws of physics, the gas coming from high pressure to atmospheric pressure or low pressure area will expand immediately and it will spread into the entire area and it cannot be aimed like a water or kerosene oil stream and the person lighting matchstick will have to burn himself also. This theory of burning by gas pipe, therefore, must be discarded".
Learned defence counsel has further submitted that in view of the above observations, it is clear that it was an accidental death, which has been corroborated by DW1 Urmila and DW2 Kamla and also the same is corroborating with the circumstances and with the first dying declaration, which, as per settled law, is to be relied upon. So, prosecution has not been able to prove that accused persons set Rajni on fire and killed her.
Learned defence counsel has further contended that both DW1 Urmila and DW2 Kamla made inquiries from Rajni as to what had happened and she told that she was boiling potatoes and caught fire in the corner of her saree, which in corroboration with first dying declaration Ex. PW3/DB that while she was cooking meals, she caught fire. She was boiling potatoes. When she ignite the gas, she SC No.21/1 27 caught fire.
PW4 Constable Madan Kumar joined the investigation with PW20 SI Uma Dutt and has deposed that in the mortuary of JPN hospital, on 12/01/2008, dead body of Rajni was identified by Amit and Ravinder. Thereafter, postmortem was got conducted and dead body was handed over to them against the receipt. One sealed pullanda was also received from the doctor of JPN hospital, which was taken into possession vide memo Ex. PW4/A and these proceedings were conducted in presence of SDM, Kanjhawala.
Learned defence counsel has contended that PW1 Sh. Ranjeet Singh, SDM, has not deposed that pullanda was taken into possession vide memo Ex. PW4/A in his presence.
PW5 Constable Yogender Singh has deposed that on 24/12/2007, on receipt of DD No. 11A, he alongwith PW20 SI Uma Dutt reached at J-1033, Mangolpuri, Delhi, and came to know that one lady, in burnt condition, was removed to Sanjay Gandhi Memorial Hospital hospital by the PCR. Investigating Officer went to Sanjay Gandhi Memorial. Crime team reached at the spot. Investigating Officer also came back at the spot and photographs of the spot were taken. Burnt clothes were seized vide memo Ex. PW5/A, after receiving the same in cloth pullanda sealed with the seal of "UD". The rubber gas pipe in two pieces was sealed in a pullanda with the seal of "UD" and was seized vide memo Ex. PW5/B and gas cylinder was taken into possession vide memo Ex. PW5/C. PW5 has further deposed that thereafter he got registered the case and search for the accused persons. All the three accused persons were interrogated and they made disclosure statements Ex. PW5/D to Ex. PW5/F. W/HC Raj Bala was called from the PS and accused persons were arrested vide memos Ex. PW5/G to Ex. PW5/J and their personal searches were conducted vide memos Ex. PW5/K to Ex. PW5/M. Thereafter, accused persons were taken to PS Mangolpuri, from where, they were taken to Sanjay Gandhi Memorial Hospital for their SC No.21/1 28 medical examination. After their medical examination, they were brought back to PS and were locked up. PW5 has also identified the burnt clothes as Ex. P1, gas pipe as Ex. P2 and gas cylinder with regulator as Ex. P3 and Ex. P4.
PW7 W/HC Sita Devi was working as duty officer on 24/12/2007. on receipt of rukka, she recorded FIR of this case, copy of which is Ex. PW7/A. She also made her endorsement on the ruqqa Ex. PW7/B. PW8 Head Constable Raj Bala reached at H.No. J-1033, Mangolpuri, Delhi, on 24./12/2007 and accused Kiran was arrested in her presence. She conducted her personal search vide memo Ex. PW5/L. Nothing was recovered in her personal search. Accused was taken to Sanjay Gandhi Memorial Hospital for her medical examination.
PW9 is SI Madan Lal. He has recorded DD No. 40A regarding death of Rajni, which was received from Duty Constable Devender Kumar at about 11.10 p.m. on 10/01/2008, copy of which was sent to SI Uma Dutt through Constable Ravi Dutt Ex. PW9/A. PW10 SI Satpal Singh has proved his inspection report Ex. PW10/A. PW12 HC Rishi Kumar was posted at Control Room, Police HQ. On 24/12/2007, while he was on duty, at about 10.22 a.m, he received a call from phone No. 27922639 that one lady had set herself on fire at J-1033, Mangolpuri, Delhi. He recorded the same and filled up PCR form Ex. PW12/A. Learned defence counsel has contended that this fact corroborates with dying declaration Ex. PW3/DB, wherein Rajni has stated that she caught fire accidentally.
PW13 SI Manohar Lal has prepared scaled site plan Ex. PW13/A. PW14 is Constable Bablu. He deposited the sealed pullandas, out of which, two were having seal of "UD" and one was having seal of "SKK", alongwith FSL form vide RC No. 355/21/07 at FSL., Rohini, and deposited the receipt with the MHC(M).
SC No.21/1 29PW16 Constable Virender Rathi is a witness to the identification statements recorded of Ravinder Gupta and Amit Gupta and signed the statements Ex. PW1/D and Ex. PW1/E as witness.
PW18 Constable Ramesh Chander has proved the photographs, which were taken by him of the spot i.e. positives as Ex. PW18/1 to Ex. PW18/6 and negatives as Ex. PW18/7 to Ex. PW18/12.
PW21 is ACP Om Prakash. On 13/03/2008, he was posted as SHO, PS Mangolpuri, Delhi. He received investigation of this case. He got prepared scaled site plan through SI Manohar Lal and got sent the case property to FSL through Constable Bablu. On completion of investigation, he prepared the charge-sheet and filed the same.
PW15 HC Niranjan Singh has corroborated with these witnesses and has proved the entries made in register No. 19 as Ex. PW15/A to Ex. PW15/E regarding deposit of sealed pullandas by Investigating Officer PW20 SI Uma Dutt on 24/12/2007, 01/01/2008 , 12/01/2008 and also entry regarding sending of the case property to FSL, Rohini, through PW14 Constable Bablu on 18/03/2008 and regarding deposit of the case property with result of FSL on 28/01/2009.
All these witnesses have corroborated with each other and have proved the investigation as carried out. The witnesses inspire confidence and are reliable.
According to PW19 Kavita Goyal, SSO, Chemistry, FSL, Rohini, Delhi, who examined partially burnt green colour pipe in polythene, has not opined that rubber pipe was removed forcibly from the gas stove to burn Rajni. The examination report is only to the effect that residue of kerosene, petrol or diesel could not be detected. In absence of any examination and opinion that green colour rubber pipe was detached from the gas stove by the accused persons forcibly to burn Rajni, it cannot be said that Rajni was set on fire by the accused persons, which also corroborate with first dying declaration Ex. PW3/DB that she caught fire accidentally, while boiling potatoes.
SC No.21/1 30It has been held in AIR 1993 Supreme Court 374 titled as Kamia Vs. State of Punjab that "if one of the dying declaration indicating the incident as an accident, then conviction U/s. 302 of IPC based on one of the dying declaration implicating the accused is liable to be set aside".
It has been further held that " a dying declaration should satisfy all the necessary tests and one such important test is that, if there are more than on dying declaration, then they should be consistent particularly in material particulars".
In view of above discussion, the dying declaration made by Rajni Ex. PW3/DB is first in time. It was recorded in presence of her brother Amit, who testified that the same was made by Rajni in the hospital in front of the doctor. PW11 Dr. Manisha Tomar has also testified that the statement of Rajni Ex. PW3/DB was recorded in her presence. PW11 has also deposed that at that time, Rajni was conscious and oriented. According to this statement, Rajni caught fire from the gas, while she was cooling meals and was boiling potatoes. It seems that gas pipe was leaking somewhere because gas pipe was found in burnt condition and due to fire, the gas pipe , which was attached with the gas cylinder, separated from the gas stove. The other circumstances, as discussed above, are corroborating with Ex. PW3/DB.
On the other hand, Ex. PW1/A cannot be relied upon as prosecution has not been able to prove the opinion of the doctor that Rajni was fit for statement. Moreover, the last sentence is contrary to the flow of statement of Rajni, whereas the main part of the dying declaration Ex. PW1/A in in first person, but in the last, it is not in first person. Rather SDM written that "Rajni told from her mouth that she was burnt by her mother in law and father in law". Had it been natural, then it could have written that she was burnt by her father in law and mother in law. According to the depositions of the witnesses, PW6 Ravinder Gupta, father of the deceased, was present while Ex. PW1/A was recorded and he has also attested the same by writing that this dying declaration Ex. PW1/A was SC No.21/1 31 given by his daughter Rajni in the hospital. So, there was possibility of tutoring of Rajni and the same is not free and voluntary made, hence Ex. PW1/A cannot be relied upon.
PW1 Sh. Ranjeet Singh, SDM, and PW20 SI Uma Dutt, both have contradicted each other as to whether PW1 Sh. Ranjeet Singh, SDM, reached at SGM hospital or directly reached at LNJP hospital. According to PW20 SI Uma Dutt, SDM reached at SGM hospital and if it is true, then why he did not record statement of Rajni in SGM hospital. The first dying declaration Ex. PW3/DB can be relied upon safely and same is corroborating with other facts and circumstances, as deposed by the prosecution witnesses and defence witnesses. It is proved that a quarrel had taken place before the incident and accused persons were quarreling with Rajni for demand of TV, but as per Ex. PW3/DB, she caught fire with gas, while she was boiling potatoes. So, it was purely an accident. Neither it was a bride burning nor it was a murder. Even it was not a suicide in any manner. Accordingly, prosecution has not been able to prove offences U/s. 304B/34 of IPC and U/s. 302/34 of IPC beyond reasonable doubts against the accused persons, for which, they are acquitted.
Announced in Open Court on dated 26th of April, 2011 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi SC No.21/1 32