Delhi District Court
State vs Om Parkash Etc on 29 October, 2024
IN THE COURT OF MS. SHEFALI BARNALA TANDON
ADDITIONAL SESSIONS JUDGE -05: WEST : DELHI
CNR No. DLWT01- 000105-2012
Case No. 57520/2016
FIR No. 44/2009
PS Nangloi
U/s 302/34 IPC
STATE
VERSUS
1. Om Prakash
S/o Sh. Roop Chand
R/o Village & PS Ranhola, Delhi
2. Manish @ Monu
S/o Sh. Om Prakash @ Ome
R/o House No. 243, Jhimmer Basti,
Village Ranhola, Nangloi, Delhi.
3. Parveen
S/o Sh. Devender
R/o Jhimmer Basti, Near Shiv Mandir,
Ranhola, Nangloi, Delhi.
Date of Institution 08.08.2012 against accused
Om Prakash and
supplementary on 19.10.2013
against accused Manish and
Parveen.
Date of Committal 14.08.2012 against accused
Om Prakash and 23.10.2013
against accused Manish and
Parveen.
FIR No. 44/2009 PS Nangloi Page 1 of 46
State v. Om Prakash & others
Charge framed Under Section Section 302/34 IPC against
accused persons namely Om
Prakash, Manish @ Monu
and Parveen.
Date of conclusion of final 21.10.2024
arguments and reserving judgment
Date of Pronouncement of Judgment 29.10.2024
Final Judgment Accused persons namely Om
Prakash, Manish @ Monu
and Parveen are acquitted for
the charge under Section
302/34 IPC.
JUDGMENT
Brief facts of the case:
1. Accused persons namely Om Prakash, Manish @ Monu and Parveen have been facing trial for the commission of offence Punishable U/s 302 read with Section 34 IPC for committing the murder of Parveen Son of Balbir Singh by setting him on fire. Briefly stated, Parveen was in love with Usha @ Sonu, daughter of accused Om Prakash and that he was called at the house of accused Om Prakash on the pretext of having some conversation with him where he was beaten by all the three accused persons and thereafter, they all set him ablaze.
Case of the Prosecution:
2. On receipt of information vide DD No. 50-A dated 11.2.2009, ASI Abhinandan along with Const. Sunil Kumar reached the FIR No. 44/2009 PS Nangloi Page 2 of 46 State v. Om Prakash & others spot of occurrence i.e. in front of the house of Om Prakash, Village Ranhola where he found lot of water scattered at the spot of occurrence which was cleaned by the people. One burnt jacket of green and brown colour, one white colour burnt plastic dibba, one empty pepsi bottle of 600 ml emitting smell of kerosene and a filled match box make Agni were found lying there. IO/ASI Abhinandan came to know that the victim had been taken to Sanjay Gandhi Hospital by the CATS Ambulance.
Leaving Const. Sunil for the surveillance of the spot, IO/ASI Abhinandan reached SGM Hospital and obtained MLC of victim Parveen who was declared unfit for statement by the doctor with history of 'thermal burn'. No eye-witness met IO/ASI Abhinandan in the hospital. Thereafter IO/ASI Abhinandan again returned at the scene of crime and all the above-said articles were taken into possession by him after preparing pullandas of the same, sealed with the seal of AN. The crime team was not called at the spot by the IO/ASI Abhinandan since the spot of occurrence was tampered with by the people gathered there.
Statement of injured, Registration of FIR and investigation conducted at the spot :
3. The patient was referred to LNJP Hospital by the doctors at SGM Hospital and therefore, IO/ASI Abhinandan reached LNJP hospital where after being declared 'fit for statement', FIR No. 44/2009 PS Nangloi Page 3 of 46 State v. Om Prakash & others IO/ASI Abhinanadan recorded the statement of patient Parveen in LNJP Hospital to the effect that at about 10.30 PM on 11.02.2009, he had gone to the house of Om Prakash on his own as he was in love with his daughter. On reaching the house of Om Prakash, inadvertently, he set himself on fire after pouring kerosene oil on himself which he had brought from a petrol pump at Najafgarh. The patient had not blamed anybody for his said act. After recording the statement of Parveen, IO/ASI Abhinandan obtained left thumb impression of the patient over the said statement.
4. On the basis of statement of patient Parveen, IO/ASI Abhinandan proposed case under Section 309 IPC was registered. Thereafter, he came to the police station and handed over the rukka to the duty officer at about 5.25 PM on 12.2.2019 for registration of the case. After registration of the case, further investigation was carried out by IO/ASI Abhinandan in which he inspected the spot and prepared the site plan. IO/ASI Abhinandan made interrogation from Shri Balbir Singh, father of injured Parveen as also from Smt. Santosh wife of Bijender, both of them informed the IO that about 9 months prior to the date of incident, Parveen had taken Usha @ Sonu D/o Om Prakash, to Bhatinda, Punjab, from where they both were taken back to their house by the Punjab Police and that Parveen was in love with said Usha @ Sonu.FIR No. 44/2009 PS Nangloi Page 4 of 46
State v. Om Prakash & others
5. On receipt of information through DD No.29-B, Insp. Rajbir Singh Malik, SHO, PS Nangloi along with ASI Suresh, ASI Abhinandan and SDM reached LNJP Hospital on 14.02.2009, where SDM Punjabi Bagh inquired about the health status of injured Parveen who was declared 'not fit' by the concerned doctor. Dr. Shailender informed the SDM that IO had recorded the statement of patient Parveen on 12.02.2009, duly attested by him on which case under Section 309 IPC was got registered by ASI Abhinandan.
6. Insp. Rajbir Singh Malik telephonically informed the said facts to his senior officers, obtained the statement of patient Parveen from ASI Abhinandan and handed over further investigation of the case to ASI Suresh Kumar. Insp. Malik recommended departmental inquiry against ASI Abhinandan for his carelessness in the matter vide DD No. 33A dated 14.02.2009 where after ASI Abhinandan was suspended which was later on confirmed vide order dated 10.08.2009.
7. Thereafter, ASI Suresh Kumar recorded the statement of injured Parveen to the effect that at about 9.00 PM on 11.02.2009 when he was present in his house, accused Monu made a call on the mobile phone of his father for calling Parveen to his house for having some talks with him. Thereafter Parveen reached the house of accused Monu at about 10.30 PM while alighting from the chhajja since the main door of the house of the accused was closed where accused Monu and his father Om Prakash gave FIR No. 44/2009 PS Nangloi Page 5 of 46 State v. Om Prakash & others him a leg blow due to which he fell down pursuant to which accused Monu and Parveen (cousin of accused Monu) poured kerosene oil on him and set him on fire with the help of lighter.
Thereafter Parveen became unconscious and regained consciousness in LNJP Hospital. Parveen stated that since he was in love with Sonu (sister of accused Monu), he had been set on fire by all the above-named three accused persons.
8. On the basis of above-said statement of injured Parveen which was duly attested by Dr. Shailender, IO/ASI Suresh Kumar added Section 307 IPC on 14.2.2009 in the already registered FIR of the present case. During investigation, ASI Suresh Kumar also recorded supplementary statement of Shri Balbir Singh, father of injured Parveen who made levelled allegations against all the three accused persons of beating Parveen and setting him on fire after pouring petrol on him. The IO obtained CDR of mobile phone Nos. 9211531049 as also of 9953891243 which do not reflect having any talk of Parveen with Monu around the time of incident. The IO came to know that police was called on No. 100 from the mobile phone of accused Om Prakash. MLCs of all the three accused persons were obtained by the IO. Injured Parveen expired in the hospital on 17.2.2009 where after the IO added Section 302 IPC in the already registered FIR and further investigation of the case was assigned to Insp. Prakash Chand who got conducted post- mortem on the body of the deceased and handed over the same FIR No. 44/2009 PS Nangloi Page 6 of 46 State v. Om Prakash & others to the relatives of the deceased.
9. Thereafter, as per directions of senior officers, further investigation of the case was entrusted to Insp. S.K. Rao who got inspected the scene of crime through the experts of FSL and interrogated friends and relatives of deceased Parveen. The doors of main gate of accused Om Prakash were taken into police possession and statements of witnesses Hari Kishan, Gopal Singh, Ajit Sharma and ASI Ram Khilari were recorded to the said effect. The postmortem report of deceased Parveen was obtained from the Forensic Department of MAMC in which the doctor reported the cause of death of deceased as due to septicemia consequent to infected burn injuries. All injuries were ante-mortem and caused due to flames of fire. Scalp hair of the deceased was preserved to detect traces of kerosene/petrol whereas viscera of the deceased was preserved for detecting common unknown poison. Left thumb impression of the deceased was taken on a plain paper which was kept in a sealed envelope and handed over to the IO. The exhibits of the case were sent to FSL Rohini for examination.
10. During investigation, the IO recorded the statement of Usha @ Sonu, daughter of accused Om Prakash who stated that Parveen was in love with her and that once Parveen had taken her to Punjab on 21.6.2008, from where family members of Parveen had brought him back. Usha further stated that on 10.2.2009 when a tempo containing the articles relating to marriage of her FIR No. 44/2009 PS Nangloi Page 7 of 46 State v. Om Prakash & others aunt (bua) had come to her house and on seeing the same Parveen might have thought the same to be related to the marriage of Usha, he had set himself on fire at about 10/10.30 PM on 11.2.2009 in front of her house. Usha also stated that despite setting himself on fire by Parveen, her family members had not opened the door of their house and the door was opened only on the arrival of the police.
11. Thereafter, the IO obtained copies of medical treatment of Parveen from LNJP Hospital and sent the same to FSL, Rohini and attended the hearings before different Courts at District Court as also the higher court with regard to petition filed by Shri Balbir Singh, father of deceased Parveen for conducting proper investigation by the police.
12. Thereafter, further investigation of the case was assigned to Insp. Gurmeet Singh on 3.11.2009 who during investigation, interrogated Jai Bhagwan, Ram Chander, Amarjeet, Niranjan @ Tinku, all residents of Jhimmer Basti, Ranhola. The FSL result was received on 1.12.2009.
13. Consequent thereto, further investigation of the case was assigned to Insp. R.K. Meena on 10.9.2010 where after the same was entrusted to Insp. Hoshiar Singh who prepared abetted charge-sheet against deceased Parveen. On filing the charge-sheet before the court of concerned MM, the file was sent to the record room on the directions of learned MM, the same was dismissed being not maintainable vide order dated FIR No. 44/2009 PS Nangloi Page 8 of 46 State v. Om Prakash & others 18.11.2011. After having discussions with senior police officers and on the directions of Hon'ble High Court in Criminal Writ No. 1386/2009, the investigation was re-opened where after application was moved for obtaining the original file of the case from the learned trial court which was refused by the trial court with the directions to file supplementary charge-sheet. The certified copy of the said original file was obtained from the court where after on the basis of dying declaration of Parveen dated 12.2.2009 which was duly attested by Dr. Shailender, accused Om Prakash was arrested on 14.5.2012. Since the other two accused namely Manish @ Monu and Parveen were evading the arrest, NBWs were issued against both of them and the charge-sheet qua accused Om Prakash was sent to the Court of Sessions vide order dated 8.8.2012.
14. Consequent to arrest of accused Manish @ Monu and Parveen, supplementary charge-sheet qua them was filed before the court of learned MM on 19.10.2013. Thereafter the said supplementary charge-sheet qua both the remaining two accused was also sent to the Court of Sessions for 23.10.2013.
Charge:
15. On 29.03.2014 Charge for the offence Punishable U/s 302 read with Section 34 IPC was framed by the Ld. Predecessor against all the three accused persons to which they pleaded not guilty and claimed trial.
FIR No. 44/2009 PS Nangloi Page 9 of 46State v. Om Prakash & others The Trial Prosecution Evidence :
16. To prove its case, the prosecution, in total, has examined 30 witnesses i.e. PW-1 Dr. Brijesh Singh (firstly examined patient Parveen); PW-2 HC Suresh Kumar (duty officer); PW-3 Shri Bijender Singh (identified the body of Parveen); PW-4 Shri Balbir Singh (complainant/father of deceased); PW-5 Shri Sanjeev Kumar (Record Clerk, LNJP Hospital); PW-6 Shri Amarjeet (neighbour of accused Om Prakash); PW-7 Const. Sunil Kumar (witness of investigation); PW-8 Shri Gopal Singh (relative of accused Om Prakash); PW-9 HC Narender Kumar (MHC/M); PW-10 SI Ram Khilari (witness of investigation); PW-11 Shri Rajeev Ranjan (Nodal Officer, Tata Tele services); PW-12 Dr. Shailendra Kumar (attested the statement of deceased Parveen dated 12.2.2009); PW-13 Shri Mukesh Anand (Record Clerk, LNJP Hospital); PW-14 Shri Parshuram Singh (Assistant Director, FSL); PW-15 Dr. Parmanand (prepared death summary of Parveen); PW-16 Dr. Nitin (Substitute doctor in place of Dr. Ajay Behl ); PW-17 Shri Hari Kishan (younger brother of accused Om Prakash ); PW-18 Dr. Manoj Dhingra (examined accused Om Prakash); PW-19 ASI Dharampal (accompanied IO/Insp. Anand Lakra); PW-20 Dr. Adesh Kumar (Sr. Scientific Officer, FSL); PW-21 HC Ramesh Kumar (deposited the exhibits in FSL); PW-22 ASI Abhinandan (1st IO of the case); PW-23 Retd. SI Suresh Kumar FIR No. 44/2009 PS Nangloi Page 10 of 46 State v. Om Prakash & others (2nd IO of the case); PW-24 Dr. Amit Sharma ( conducted autopsy on the body of deceased Parveen); PW-25 Shri Saurabh Aggarwal (Nodal Officer, Vodafone); PW-26 Retired ACP Gurmeet Singh (5th IO of the case); PW-27 Insp. R.K. Meena (6th IO of the case); PW-28 Insp. Prakash Chand (3rd IO of the case); PW-29 Retired Insp. S.K. Rao (4th IO of the case) and PW-30 Retired ACP Hoshiar Singh (7th IO of the case). The relevant portion of their testimony is discussed in the following paragraphs.
17. PW-1 Dr. Brijesh Singh deposed in his chief-examination that he examined patient whose name was later on revealed as Parveen was brought by CATS Ambulance with alleged history of thermal burn and smell of kerosene at about 11.50 PM on 11.02.2009 in the casualty of SGM Hospital. The patient was unconscious and his BP could not be recorded because of burns. The doctor found superficial to deep burns over face, both upper and lower lips, patchy areas over chest and upper abdomen. MLC proved as Ex.PW1/A of the patient was prepared whereafter he was referred to SR Surgery for further management and treatment.
17.1 The witness further proved the MLCs Ex.PW1/B, Ex.PW1/C and Ex.PW1/D of accused persons namely Om Prakash, Parveen and Manish respectively.
18. PW-2 HC Suresh Kumar deposed in his chief examination that while working as duty officer, he registered the FIR Ex. PW2/A FIR No. 44/2009 PS Nangloi Page 11 of 46 State v. Om Prakash & others of the present case under Section 309 IPC at about 5.25 PM on 12.2.2009 on the basis of rukka brought by ASI Abhinandan. The witness made his endorsement Ex. PW2/B on the rukka vide DD No. 20-A regarding registration of the case and handed over the original rukka as also the copy of FIR to Const. Pawan Kumar for handing over the same to ASI Abhinandan for investigation.
19. PW-3 Shri Bijender Singh, uncle of deceased Parveen in deposed in his chief examination about his identifying the body of deceased Parveen on 17.2.2009 at the mortuary of Maulana Azad Medical College and had made statement proved as Ex. PW3/A in that regard, which after the post-mortem was handed over to the relatives of the deceased.
20. PW-4 Shri Balbir Singh, the complainant deposed in his chief examination that after taking meal in the night when he was sleeping in his house on 11.2.2009, he woke up on knocking the door by the police officials who were asking about his son Parveen and informed him about Parveen having been hospitalized after being burnt. Meanwhile, the witness received phone call from doctor of LNJP Hospital asking the witness to reach the said hospital. Thereafter, the witness along with his sister-in-law (Bhabhi) Ms. Santosh reached LNJP Hospital and found his Parveen admitted in the hospital. The witness further stated that Parveen informed him about his having received phone call from Sonu, daughter of accused Om Prakash asking FIR No. 44/2009 PS Nangloi Page 12 of 46 State v. Om Prakash & others Parveen to reach her house as her father wanted to talk with him. On reaching the house of Sonu, all the three accused persons gave him beatings stating that accused Om Prakash gave him beatings on his thigh whereas accused Parveen poured petrol on him and he was put on fire by accused Monu. IO/ASI Abhinandan recorded the statement of Parveen in his presence as also in the presence of the doctor in which he disclosed all the above-said facts to IO/ASI Abhinandan and had thumb marked the said statement since his both hands were burnt. The witness stated that he is not recollecting if his statement was recorded by the police or not. His son Parveen expired 6-7 days of receiving the burn injuries. He identified the dead body of his son in the mortuary of MAMC on 17.2.2009 vide memo Ex. PW4/A. 20.1 On being again called for recording his further statement, the witness deposed that he is illiterate and that the police officials obtained his signatures on one blank paper at LNJP Hospital and that his statement dated 14.2.2009 Ex. PW4/B was recorded by the police at Maulana Azad Hospital which was signed by him. The witness denied having made statement dated 12.2.2009 mark B to the police as also his signatures appearing on that statement.
21. PW-5 Shri Sanjeev Kumar, Record Clerk from LNJP Hospital proved the attested copy of case sheet Ex. PW5/A running in 27 pages of Parveen Kumar.
FIR No. 44/2009 PS Nangloi Page 13 of 4622. PW-6 Shri Amarjeet, the eye witness deposed in his chief examination that at about 10.30 PM on 11.2.2009 when he reached near his house after completing his duty as Sewer Man at ESI Hospital, Shahdara, he saw one boy in the street having a bottle in his hand whereafter the witness went inside his house . After sometime, on hearing the noise "Aag Lag Gayee Aag Lag Gayee", the witness came out of his house and found said boy in flames whereas the door of house of accused Om Prakash was lying closed. The witness with the help of others poured water on the said boy so as to extinguish the flames upon which the boy said "Mujhse Galti Ho Gayee". The police reached the spot within half an hour and got opened the door of house of accused Om Prakash. The witness stated that all the persons of the street had seen the said incident however, the police recorded his statement mark A after making inquiries from him. The witness also stated that neither he had seen deceased Parveen setting himself on fire nor anybody setting him on fire.
23. PW-7 Const. Sunil Kumar deposed in his chief examination that on receipt of copy of DD No. 50A by ASI Abhinandan, he accompanied him at about 11.01 PM on 11.2.2009 for the spot i.e. outside the house of Om Prakash at Village Ranhola where a huge quantity of water was found lying. One empty bottle of Pepsi, one burnt plastic box of white colour, one match box containing match sticks and one burnt jacket of green and brown colour were also found lying at the spot. On inquiry, it FIR No. 44/2009 PS Nangloi Page 14 of 46 State v. Om Prakash & others came to their knowledge that injured has already been taken by CAT Ambulance to Sanjay Gandhi Hospital. Leaving the witness for the surveillance of the spot, the IO proceeded for the hospital.
23.1 The witness further stated that on his return from the hospital to the spot, ASI Abhinandan prepared two cloth pullandas, one of burnt jacket sealed with the seal of AN which was seized vide memo Ex. PW7/A and another of plastic bottle of Pepsi, match box and burnt plastic box, also sealed with the seal of AN and seized vide memo Ex. PW7/B. Since no eye-witness met them, both of them returned to the PS. The SHO was informed about the facts of the present case by ASI Abhinandan.
23.2 PW-7 further deposed to have again joined the investigation of the present case when a call was received from LNJP Hospital regarding admission of injured Parveen after being discharge from SGM Hospital whereafter the witness in the company of ASI Abhinandan reached LNJP Hospital. The IO/ASI Abhinandan made inquiries from injured Parveen and recorded his statement whereafter they both returned to the PS where tehrir was prepared by the ASI Abhinandan, which was made the basis for registration of the present case.
23.3 PW-7 further deposed that thereafter, he in the company of ASI Abhinandan reached the spot i.e. outside the house of FIR No. 44/2009 PS Nangloi Page 15 of 46 State v. Om Prakash & others Om Prakash where Const. Pawan also reached with copy of FIR and the original rukka and handed over to same to ASI Abhinandan for investigation. The witness has identified the articles seized by ASI Abhinandan from outside the house of accused Om Prakash collectively as Ex. P1 and also the burnt jacket as Ex. P2.
24 PW-8 Shri Gopal Singh, brother-in-law (Jija) of accused Om Prakash deposed in his chief examination that he is not recollecting the date and month but it was in the year 2009 that he had gone to the house of accused Om Prakash where in his presence, Insp. S.K. Rao with the help of one carpenter, removed the main doors of house of accused Om Prakash. The doors collectively proved as Ex.P-3, were covered with gunny bag cloth, tied with the help of plastic string which after sealing, were seized vide memo Ex. PW8/X. The photographs Ex. PW8/A and Ex. PW8/B of the doors were also taken. 24.1 PW-8 was cross-examined on behalf of ld. State Counsel since he had not disclosed the complete facts. In the said cross-examination, the witness stated that he does not remember if his statement was recorded by Insp. S.K. Rao and that he cannot say if the doors Ex.P-3 were taken into possession by the IO on 14.3.2009. The witness denied the suggestion that on the asking of Om Prakash, he had taken the carpenter namely Ajit Sharma to the house of Om Prakash on 14.3.2009 where Insp. S.K. Rao with his staff FIR No. 44/2009 PS Nangloi Page 16 of 46 State v. Om Prakash & others and Hari Kishan, brother of Om Prakash also reached and on the directions of Hari Kishan, the carpenter removed the doors. The witness was confronted with his statement Ex. PW8/C in this regard where said facts were found mention of the same.
25 PW-9 HC Narender Kumar deposed in his chief examination that while posted as MHC(M), ASI Abhinandan deposited two pullandas, sealed with the seal of AN along with two seizure memos pertaining to DD No.4A, with him on 12.2.2009 regarding which he made entry at serial No. 4914 in register No. 19, copy of which is Ex. PW9/A. 25.1 PW-9 also deposed that on 17.2.2009, Insp. Prakash Chand deposited one wooden box containing viscera of deceased, two envelopes containing scalp hair and the left thumb impression of deceased, all sealed with the seal of Department of Forensic Medicines, MAM, Delhi along with one unsealed envelope for which the witness made entry at serial No. 4921 in register No.19, copy of which is Ex. PW9/B. 26 PW-9 further deposed that on 14.3.2009, Insp. S.K. Rao deposited with him, a big parcel of gunny bag containing two wooden doors for which the witness made entry at serial No. 4950 in register No.19, copy of which is Ex. PW9/C. The witness also stated that on the directions of ACP, all the above-
FIR No. 44/2009 PS Nangloi Page 17 of 46State v. Om Prakash & others said articles were sent to FSL vide RC No. 62/21/09 through HC Ramesh Kumar and after depositing the same in FSL, HC Ramesh Kumar deposited RC Ex. PW9/D with acknowledgment Ex. PW9/E from FSL with him for which the witness made entry in register No. 19 against Ex. PW9/B. On 1.12.2009, HC Jabbar deposited three pulandas sealed with the seal of AY after obtaining the same from FSL along with FSL result regarding which the witness also made entry in register No. 19 against Ex. PW9/B. 27 PW-10 SI Ram Khilari joined investigation of the present case with Insp. S.K. Rao on 14.3.2009 and reached the house of deceased Parveen i.e. House No. 61/244, Village Ranhola where Insp. Rao conducted search of the said house but no incriminating material was recovered from the said house. Thereafter, the witness in the company of Insp. Rao reached the house of accused Om Prakash i.e. House No. SRS-243, Jhimmer Basti, Village Ranhola where Hari Kishan, brother of Om Prakash met them. The witness noticed burnt mark (blackish shine) on the wooden door of the main gate of said house, photographs of which were taken through the private photographer whereafter the said wooden doors were taken into possession vide memo Ex. PW8/X after keeping the same in jute bags, duly sealed with the seal of SKR, after removing the said doors by the carpenter Ajit Sharma.
FIR No. 44/2009 PS Nangloi Page 18 of 46State v. Om Prakash & others 28 PW-11 Shri Rajeev Ranjan, Nodal Officer of Tata Teleservices Ltd deposed in his chief examination that as per customer application form (CAF) Ex. PW11/A, mobile phone bearing No. 9211531049 was made functional in the name of Balbir Singh on 31.3.2007. The witness has placed on record the CDR Ex. PW11/B of above-numbered phone for the period 30.1.2009 till 16.2.2009.
29 PW-12 Dr. Shailendra Kumar deposed in his chief examination that on being referred from SGM Hospital, patient Parveen was brought to the Burn Ward of LNJP Hospital on 11.2.2009 where one police official requested the doctor to inform the condition of the injured for obtaining his statement. The witness recorded his noting at about 6.05 AM on 12.2.2009 on the MLC Ex.PW1/A regarding patient having been found fit for statement whereafter his statement mark A was recorded by the police which bears noting Ex. PW12/A of the witness at point A on the statement mark X. 30 PW-13 Shri Mukesh Anand, Record Clerk from LNJP Hospital proved the attested copy of case sheet (running into 28 pages) of injured Parveen Kumar as Ex. PW13/A. 31 PW-14 Shri Parshuram Singh, Assistant Director (Physics) from FSL Rohini deposed in his chief examination that on 20.2.2009, he along with Sanjeev Kumar Gupta, SSO (Photo) visited House No. 492, Village Ranhola, Delhi where Insp. S.K. Rao met them. The place was inspected and report of FIR No. 44/2009 PS Nangloi Page 19 of 46 State v. Om Prakash & others crime scene Ex. PW14/A was prepared.
32 PW-15 Dr. Parmanand Rai deposed in his chief examination that he prepared the death summary Ex. PW15/A of deceased Parveen vide which Parveen was admitted in LNJP Hospital at 1.45 AM on 12.9.2009 with alleged history of suffering from homicidal flame burns at 10.30 PM on 11.9.2009 as was informed to the witness by the patient himself where the patient expired at 1.30 AM on 17.2.2009.
32.1 PW-15 stated that at the time of admission, the patient was fully conscious, his pulse rate was 100 per minute, BP was 100/70 and respiratory rate was 18 per minute. On being clinically diagnosed, the patient was found having 75% total body surface with facial burns and the patient died of sudden cardio respiratory arrest at 1.30 AM on 17.2.2009. 33 PW-16 Dr. Nitin, substitute doctor in place of Dr. Ajay Behl deposed in his chief examination that Dr. Ajay Behl had allowed the application of applicant Balbir Singh vide endorsement made at point X on Ex. PW13/A by the said doctor.
34 PW-17 Shri Hari Kishan, younger brother of accused Om Prakash deposed in his chief examination that on the day of incident, he was not present at his house but came to know that one person had set himself on fire in front of house of his brother Om Prakash. He witnessed the police seizing the front doors installed at the house of his brother Om Prakash after FIR No. 44/2009 PS Nangloi Page 20 of 46 State v. Om Prakash & others taking photographs of the same of which the witness had signed the seizure memo Ex. PW8/X whereafter he got installed the new doors at the front doors of his brother Om Prakash. The witness identified the photographs of the doors as Ex. PW8/A, Ex. PW8/C, mark PW17/A, mark PW17/B and mark PW17/C whereas new doors installed by him are appearing in photographs mark PW17/D and mark PW17/E. 35 PW-18 Dr. Manoj Dhingra deposed in his chief examination that MLC No. 176 of Om Prakash was marked to him by the MS of SGM Hospital for giving opinion whereafter with the consent of Om Prakash who was conscious and oriented, the witness along with Dr. J.V. Kiran examined Om Prakash. PW- 18 observed following injuries on the person of Om Prakash:
i) Blister over an area 1 cm x 0.9 cm on middle fold (between first and second phalanx) of right index finger on its back. The blister smooth, glistening surface with no crepitus over it on palpation.
ii) A collapsed blister over an area 0.8 cms x 0.7 cms with its surface smooth and glistening on distal fold (between second and third phalanx) of back of ring finger with no crepitus over it.
iii) A collapsed blister over an area 1.8 x 0.8 cm with its surface smooth and glistening on middle fold (between first and second phalanx) of back of little finger with a pin head size punctum in the middle of blister with scabbing along the margins of the punctum.
35.1 PW-18 further deposed that the opinion was written by Dr. J.V. Kiran and also signed by the witness that possibility of injury on the person of Om Prakash, being caused by flame FIR No. 44/2009 PS Nangloi Page 21 of 46 State v. Om Prakash & others of fire could not be ruled out and that the time of sustaining the said injuries could be 5-7 days old.
36 PW-19 ASI Dharampal deposed in his chief examination that he joined investigation of the present case with IO/Insp. Anand Lakra on 14.5.2012 when accused Om Prakash was interrogated by Insp. Lakra in the office of DIU, West District. The accused was arrested vide memo Ex. PW19/A, his personal search was conducted vide memo Ex.PW19/B and he made disclosure statement, Ex. PW19/C. Thereafter, accused was got medically examined and was put up in the lock-up of PS Rajouri Garden.
37 PW-20 Dr. Adesh Kumar, Senior Scientific Officer deposed in his chief examination that five sealed parcels received in the office of FSL through HC Ramesh Kumar were examined by him whereafter the PW prepared the report Ex. PW20/A. As per report of the witness, plastic bottle without cork Ex. 1A, semi burnt plastic container Ex. 1B, semi partially burnt match sticks kept in match box Ex. 1C, green and light brown colour semi burnt jacket Ex. P2, some blackish brown hair Ex. 4, one wooden door with black deposits Ex. 6 were found containing residue of petroleum product (kerosene) whereas no metallic poison, methyl alcohol, cyanide phosphide and pesticide were detected in the viscera sent in Parcel No. 3. 38 PW-21 HC Ramesh Kumar deposed in his chief examination that pursuant to the directions issued to him vide letter dated FIR No. 44/2009 PS Nangloi Page 22 of 46 State v. Om Prakash & others 24.4.2009, he collected exhibits of the present case from PS Nangloi on 27.4.2009 from the malkhana of the PS in sealed intact condition and deposited the same with FSL Rohini vide RC No. 621/21/09. The witness obtained receipt from FSL regarding deposit of the exhibits with it vide acknowledgement Ex. PW9/E. The witness stated that so long the exhibits remained in his possession, the same were not tampered with. 39 PW-22 ASI Abhinandan, first IO of the case deposed in his chief examination that on receipt of DD No. 50-A on 11.2.2009 regarding burning of a person in the area of Village Ranhola, he along with Const. Sunil reached the spot of occurrence where he found a lot of water scattered in the street. He found one green and brown colour jacket in burnt condition, one match box, one plastic box as also one pepsi bottle of 600 ml. lying in the water. He came to know that the injured had been shifted to SGM Hospital by the PCR van. Leaving Const. Sunil at the spot, he left for the hospital where he found Parveen admitted in the hospital and was declared unfit for statement by the attending doctor. Since, no eye-witness met him in the hospital, he returned to the spot from where he seized the jacket Ex. P2 vide seizure memo Ex. PW7/A after keeping the same in a cloth pulanda, sealed with the seal of AN. He also seized the bottle vide seizure memo Ex. PW7/B as also the plastic box and the match box after preparing pulanda of the same. Thereafter, the seized articles were brought to the police FIR No. 44/2009 PS Nangloi Page 23 of 46 State v. Om Prakash & others station and deposited in the malkhana.
39.1 PW 22 further deposed that he received information from LNJP Hospital regarding shifting of injured Parveen there from SGM Hospital. Consequently, he reached LNJP Hospital and found injured Parveen fit for statement. The PW-22 then recorded statement Ex. PW22/A of injured Parveen on which Parveen had signed at point A1 and put his thumb impression at point A2. Thereafter, the SHO was briefed about the situation by the him on his return to the police station. He was directed by the Addl. SHO to conduct local inquiry however no eye-witness of the incident met him. Thereafter, the PW-22 again accompanied the SHO to LNJP Hospital where SHO made inquiries from Parveen who made another statement Ex. PW22/B, recorded by him on which impression of left thumb was obtained at point A and was duly attested by the PW-22 at point B. 39.2 He has further deposed that he prepared tehrir Ex. PW22/C on the subsequent statement of Parveen and presented the same to the duty officer for registration of the case. Thereafter he along with Const. Sunil reached the place of incident and prepared site plan Ex. PW22/D. He also recorded statements of some public persons including father, paternal aunt (Tai) and local residents of Parveen. Further investigation of the case thereafter was assigned to FIR No. 44/2009 PS Nangloi Page 24 of 46 State v. Om Prakash & others ASI Suresh.
40 PW-23 Retired SI Suresh Kumar deposed in his chief examination about assigning further investigation of the present case to him on 14.2.2009 which was registered by ASI Abhinandan under Section 309 IPC. The PW-23 deposed to have perused the subsequent statement Ex. PW22/A of Parveen and invoked Section 307 IPC in the already registered FIR. He recorded statement of father of Parveen on 15.2.2009. Injured Parveen expired on 17.2.2009 whereafter subsequent investigation of the case was handed over to Insp. Prakash Chand.
41 PW-24 Dr. Amit Sharma deposed in his chief examination about his conducting the autopsy on the body of deceased Parveen on 17.2.2009 at Maulana Azad Medical College, whose cause of death was opined to be consequent to infected burn injuries and prepared his report Ex. PW24/A. All the injuries were ante-mortem in nature, caused due to flame of fire. After the post-mortem, the doctor handed over sealed viscera and blood sample, sealed envelope containing scalp hair and left thumb impression of the deceased to the investigating officer.
42 PW-25 Shri Saurabh Aggarwal, Nodal Officer from Vodafone Idea Limited deposed in his chief examination that as per customer application form Ex. PW25/A, mobile phone No. FIR No. 44/2009 PS Nangloi Page 25 of 46 State v. Om Prakash & others 9953891243 was subscribed by Manish being activated on 29.1.2008. The PW has proved the CDR Ex. PW25/C for the call details made from the above-said mobile number for the period 1.2.2009 to 12.2.2009.
43 PW-26 Retired ACP Gurmeet Singh deposed in his chief examination that further investigation of the present case was marked to him on 3.11.2009 whereafter he re-visited the spot and interrogated the witnesses who were already examined under Section 161 Cr.PC. The said PW sent two reminders i.e. Ex. PW26/A dated 28.10.2009 and Ex. PW26/B dated 16.11.2009 to FSL for the report and ultimately received the same on 1.12.2009 through Const. Jabbar Singh. The witness also attended the hearings before Hon'ble High Court of Delhi being initiated by the father of the deceased. Consequent thereupon, further investigation of the case was assigned to some other police officer.
44 PW-27 Insp. R.K. Meena only deposed in his chief examination about receiving of further investigation of the present case on 10.9.2010 whereafter he attended the hearing before Hon'ble High Court of Delhi in the proceedings arising out of Writ Petition initiated by the father of the deceased. 45 PW-28 Retired Insp. Prakash Chand deposed in his chief examination about information being given to him by previous IO, ASI Suresh Kumar regarding addition of Section 302/34 IPC in the already registered FIR consequent upon the death of FIR No. 44/2009 PS Nangloi Page 26 of 46 State v. Om Prakash & others Parveen on 17.2.2009 whereafter further investigation of the case was conducted by the said PW. During the investigation, he visited mortuary of Maulana Azad Medical College where father and paternal uncle of Parveen met him and identified the dead body of Parveen. Thereafter, he recorded their statements Ex. PW3/A and Ex. PW4/A regarding identification of the dead body and filled up form 25.35 Ex. PW28/A. He also got conducted autopsy on the body of the deceased and after the autopsy, the doctor handed over him three sealed exhibits along with sample seal which were seized by the him vide seizure memo Ex. PW28/B. He also obtained the CDR of the mobile phone of father of the deceased as allegedly a call was received on his mobile phone from the mobile phone of accused Om Prakash in the night of the incident. Thereafter, further investigation of the case was transferred to DIU. 46 PW-29 Retired Insp. S.K. Rao deposed in his chief examination about receiving of further investigation of the present case on 20.2.2009 and during investigation, he recorded the statement of Insp. Prakash Chand, inspected the spot by visiting there and searched for the eye-witness but could not find the same. The said PW seized the door of the house of accused Om Prakash vide seizure memo Ex. PW8/X. 47 During testimony of PW-29, the Ld. Prosecutor had put certain leading questions to the witness who stated that due to depression, his memory power had weakened to which the FIR No. 44/2009 PS Nangloi Page 27 of 46 State v. Om Prakash & others witness admitted that he called the FSL team at the spot for inspection and made inquiries from Smt. Promila, Surender and Pinki. He also admitted that when he visited the house of complainant Balbir Singh, lot of people present there, were demanding arrest of the accused persons as they had committed murder of Parveen. The witness also admitted that on his visit to PS Nangloi, Insp. K.N. Subudhi and Insp. Prakash Chand handed him over two CDs prepared by 'Star Plus' and 'Aaj Tak' news channel. The witness also admitted having sent the exhibits to FSL and receiving the subsequent opinion Ex. PW29/A and also about his moving application Ex. PW29/C before the Record Keeper of LNJP Hospital whereafter copies of treatment papers collectively Ex. PW29/X were handed over to him. The said PW also conducted house search of deceased Parveen but could not find any bottle containing petrol or kerosene oil there and prepared the search memo Ex. PW29/B. 48 PW-30 IO/Retired ACP Hoshiar Singh deposed in his chief examination about assigning of further investigation of the case to him on 12.5.2011 whereafter he attended the hearings before Hon'ble High Court of Delhi in a transfer petition moved by complainant Balbir Singh for transfer of the case to Crime Branch or any other agency. The said PW stated that investigation of the present case was being monitored by Addl. CP of West District. He prepared the status report and after FIR No. 44/2009 PS Nangloi Page 28 of 46 State v. Om Prakash & others being approved the same by Addl. CP of West District, he filed the same before Hon'ble High Court of Delhi on 20.9.2011. The said PW visited the house of the complainant, made inquiries from Bijender Singh, brother of the complainant but since no eye-witness was found by him by that time, after discussing the matter with the senior police officers, prepared abated charge-sheet under Section 309 IPC. 49 Vide order dated 16.09.2019, the prosecution evidence was closed on the submission of the Ld. Prosecutor since all the witnesses were examined.
Statement of accused persons U/s 313 Cr.P.C 50 All the incriminating circumstances were put to the accused persons while recording their statements U/s 313 Cr.P.C wherein they have denied their involvements in the present case by stating that they are innocent and have been falsely implicated in the present case. The prosecution produced planted witnesses in the present case for proving its own case. They were made to sign on certain blank papers which later on were converted into evidence/statement against them. The accused persons opted not to lead evidence in their defense.
Final arguments:
51 The Court has heard Mr.M.A.Khan, Ld.Addl. PP for the State and Shri C.Prakash, Ld. Counsel for all the accused persons FIR No. 44/2009 PS Nangloi Page 29 of 46 State v. Om Prakash & others and have perused the record carefully including the written synopsis and case Laws filed on behalf of the accused persons.
Arguments addressed on behalf of the State: 52 Ld. prosecutor submits that the present case is based upon the dying declaration made by the deceased soon after the incident which is proved as Ex.PW-22/A and the same is well corroborated with the other evidence on record. He has further submitted that the other dying declaration has not been endorsed by the doctor which his Ex.PW-22/B. Hence, it cannot be relied upon and for recording contrary dying declaration and shoddy investigation, departmental action was initiated against the first IO/ASI Abhinandan. He has also argued that the scientific evidence is against the accused persons since one of the accused namely Om Prakash had burn injuries on his hands which are caused while setting the deceased on fire by him. Hence, the prosecution has been able to prove its case beyond reasonable doubt.
Arguments addressed on behalf of the Defence: 53 Ld. defence counsel has argued that though there is unfortunate death of a young man in the present matter but the accused persons are not guilty for the said offence as there is nothing incriminating proved on record against any of the accused persons. He has further submitted that the deceased FIR No. 44/2009 PS Nangloi Page 30 of 46 State v. Om Prakash & others committed suicide by burning himself and the same has been proved by DD no. 50A on record which has information of self burn. The accused Om Prakash is the PCR caller himself as he made a PCR call on 11.01 PM after seeing the deceased burning himself outside his house. He has further argued that since there was a love-affair between the deceased and daughter of accused Om Prakash and the articles for marriage of niece of accused Om Prakash had come that day at their house, the deceased thought that daughter of accused Om Prakash is getting married, therefore, he set himself on fire outside their house while the doors of their house was locked from inside and after noticing that the deceased had set himself ablaze and the flames were coming inside the house from the door, accused Om Prakash pushed it from inside to close the door and that is how he sustained burn injuries on the back side of his fingers. He has further argued that the dying declaration proved as Ex.PW-22/A is only an after thought as it is in total contradiction to the other evidence brought on record, since as per CDR, no call was made on the mobile phone of father of deceased by any of the accused; that though there are allegations of beatings of the deceased prior to setting him ablaze but neither the MLC nor the postmortem report finds any injury by assault and allegedly fire was set by lighter but no such lighter was found or recovered from the spot. He has further argued that the door of the house of accused FIR No. 44/2009 PS Nangloi Page 31 of 46 State v. Om Prakash & others persons was seized by the police and as per the report, it was proved to be burn from outside, which implies that it was closed at the time of incident and the deceased was outside the house. He has further argued that when there are two dying declarations contrary to each other, the one corroborating the evidence on record should be relied upon as none of the dying declaration has been made before the concerned SDM. 54 In the written synopsis filed by the defence, it has been stated that in the present matter, a detailed investigation was conducted not only by local police but also by various investigating special agencies like DIU but still abated charge sheet was filed in the concerned Court which was accepted by the Court and file was ordered to be consigned to record room. It was only after filing criminal Writ Petition by father of deceased before the Hon'ble High Court of Delhi that the investigating agency re-opened the investigation of the present matter. He even relied upon statement of independent public witness i.e. PW-6 Mr. Amarjeet Singh and the seizure memo of the articles found on the spot proved as Ex.PW-7/B. He even heavily relied upon the statements of other family members of deceased as well as local residents proved on record as Ex.PW-22/DB to Ex.PW-22/DE. Various case Laws have also been filed and relied upon, which shall be discussed in the succeeding paragraphs.
FIR No. 44/2009 PS Nangloi Page 32 of 46State v. Om Prakash & others Analysis of evidence on record:
(1) First information to the police:
55 As per record, the criminal machinery was set into motion after receipt of PCR call vide DD no.50A dated 11.02.2009 PS Nangloi wherein it is stated that 'एक लड़के ने अपने आप को आग लगा ली है' and the call was received from the mobile number 9953891243. As per evidence on record, the said mobile phone number was subscribed by one of the accused namely Manish vide Customer Application form proved as Ex.PW- 25/A and its CDR has been proved as Ex.PW-25/C. As per the aforesaid CDR, twice call was made to number 100 at 22:51:47 hours and 22:52:21 hours respectively. The accused Manish @ Monu is the son of accused Om Prakash and it has been putforth by the defence at the thresh-hold that accused Om Prakash was the PCR caller himself, which has never been denied by the prosecution and the same has been proved on record as aforesaid. Therefore, accused Om Prakash was the one himself who said the criminal machinery into motion soon after the alleged offence/incident.
(2) First Dying Declaration of the deceased: 56 On receipt of DD no. 50A, the first IO/ASI Abhinandan reached at the spot alongwith PW-7 Ct. Sunil. Thereafter, he went to LNJP hospital and found injured Praveen ' fit for statement' and recorded his statement relied upon as first dying declaration proved as Ex.PW-22/A. FIR No. 44/2009 PS Nangloi Page 33 of 46 State v. Om Prakash & others 57 As per dying declaration Ex.PW-22/A, the deceased Praveen had stated that on 11.02.2009, while he was present at his house, a call from accused Monu was received on his father's phone and he called him at his house for talking over something. Accordingly, he went to the house of Monu at 10:30. On knocking the door of their house, it was opened by accused Monu and his father. Accused Om Prakash gave him a leg blow due to which he fell down and accused Praveen alongwith accused Monu poured petrol on him and thereafter, accused Monu set him on fire by a lighter. He has also stated that since he was having love for sister of accused Monu, therefore, he was set ablaze by all the three accused persons in order to kill him. The said statement is having endorsement of Dr. Shailender wherein it is stated that patient is 'fit for statement' and has given the statement under full and free voluntary consent under my presence.
(3) Second Dying Declaration of the deceased: 58 As per testimony of first IO/ASI Abhinandan, he again visited LNJP hospital alongwith the SHO concerned and injured Praveen made another statement proved as Ex.PW-22/B. As per the said statement, the deceased stated that on 11.02.2009, he did not receive any phone call and on that night, at about 10:30 PM, he went to the house of accused Om Prakash since FIR No. 44/2009 PS Nangloi Page 34 of 46 State v. Om Prakash & others he was having love-affair for last two years with the daughter of accused Om Prakash, where he poured Kerosene oil on himself and set himself on fire. No one is responsible for the same. He further stated to have arranged the oil from Petrol Pump in a plastic bottle. He said to have committed a mistake. On the said statement, FIR was registered u/s 309 IPC, PS Nangloi and the Tehrir on the back side of second dying declaration has been proved as Ex.PW-22/C. (4) Relevant Law on Dying Declarations:
59 Reliance is placed upon case Laws filed and referred by Ld. Defence counsel as under :
(1) The Hon'ble Supreme Court of India in case titled as Surinder Kumar Vs. State of Haryana reported in (2011) 10 SCC 173, it has been observed that :
28.Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the FIR No. 44/2009 PS Nangloi Page 35 of 46 State v. Om Prakash & others deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction.
(2) The Hon'ble Supreme Court of India in case titled as Ramilaben Hasmukhbhai Khristi & Anr. Vs. State of Gujrat reported in (2002) 7 SCC 56, has observed that :
24. So far the law regarding dying declaration is concerned, on behalf of the appellants, learned counsel for the appellants placed reliance upon some cases. In Uka Ram VS. State of Rajasthan, the Court observed "it has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement."
25. xxxxxxxx
26. In Laxmi Vs. Om Prakash & Ors., this Court FIR No. 44/2009 PS Nangloi Page 36 of 46 State v. Om Prakash & others deprecated the practice of the police officers recording the dying declarations except where the condition of deceased was so precarious that no other alternative was left. The dying declaration is supposed to be recorded by a Magistrate. It is further observed that number of declarations nor the length of the statement is the factor to be taken into account to rely upon them. The main test is the mental and physical fitness and capability of the declarant to make the statement.
In all there were five dying declaration in the case including those recorded by the Magistrate, but it only contained a statement of the declarant in the end to the effect that he had given the statement in his full consciousness and senses.
(3) The Hon'ble Supreme Court of India in case titled as Bhadragiri Venkata Ravi Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad reported in (2013) 14 SCC 145, has observed that :
"In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the plurality of the dying declarations but the reliability thereof that FIR No. 44/2009 PS Nangloi Page 37 of 46 State v. Om Prakash & others adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout."
(4) Hon'ble Supreme Court of India in case titled as The State Of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai decided on 31.10.2022, has observed that :
"42. In Khushal Rao v. State of Bombay, AIR 1958 SC 22 this Court formulated the yardstick against which dying declarations may be evaluated:
"16. ... (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the FIR No. 44/2009 PS Nangloi Page 38 of 46 State v. Om Prakash & others weighing of evidence;
(5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested FIR No. 44/2009 PS Nangloi Page 39 of 46 State v. Om Prakash & others parties."
(5) Evidence brought on record to corroborate the Dying Declaration:
60 In view of the aforesaid Law of the Land, the two contrary dying declarations in the present matter have to be read with surrounding circumstances brought on record and testimonies of prosecution witnesses examined.
61 PW-4/father of deceased namely Sh.Balbir Singh has deposed on Oath that on information, he went to the hospital and found his son Praveen admitted in the hospital. The witness further stated that Parveen informed him about his having received phone call from Sonu, daughter of accused Om Prakash asking Parveen to reach her house as her father wanted to talk with him. On reaching the house of Sonu, all the three accused persons gave him beatings stating that accused Om Prakash gave him beatings on his thigh whereas accused Parveen poured petrol on him and he was put on fire by accused Monu. 62 However, as per the Dying Declaration made by the deceased Ex.PW-22/A, he received a call from accused Manish @ Monu on the mobile phone of his father/PW-4 and accused Manish called him to his house for having a conversation. As per the charge-sheet, IO obtained CDR of mobile phone Nos.
9211531049 proved as Ex.PW-11/B of Sh. Balbir Singh as also of 9953891243 proved as Ex.PW-25/C of accused Manish @ Monu which do not reflect any call between these two FIR No. 44/2009 PS Nangloi Page 40 of 46 State v. Om Prakash & others numbers thereby negating the fact of conversation between deceased Parveen and accused Manish @ Monu around the time of incident.
63 PW-4 has specifically deposed that he was apprised by his son that beatings were given to him by the accused persons before setting him on fire. However, as per the medical evidence proved on record by PW-24 Dr. Amit Sharma, all the injuries were ante-mortem in nature, caused due to flame of fire. Even as per the MLC proved on record Ex.PW-1/A, the doctor found superficial to deep burns over face, both upper and lower lips, patchy areas over chest and upper abdomen. No other external injury has been stated to be found thereby negating the allegations of assault by the accused persons. 64 Even the allegations of pouring petrol by the accused persons as per testimony of PW-4 and dying declaration Ex.PW-22/A, stands disproved on record since as per MLC, there was smell of Kerosene present and as per the FSL result proved as Ex.PW-20/A, the exhibits 1A, 1B, 1C, 2, 4 & 6 which are plastic bottle, semi burnt plastic container, burnt match stick, semi burnt Jacket, hair and wooden door are found containing residue of Kerosene.
65 The Independent public witness who has witnessed the incident i.e. PW-6 Shri Amarjeet, deposed in his chief examination that at about 10.30 PM on 11.2.2009 when he reached near his house after completing his duty as Sewer Man FIR No. 44/2009 PS Nangloi Page 41 of 46 State v. Om Prakash & others at ESI Hospital, Shahdara, he saw one boy in the street having a bottle in his hand whereafter the witness went inside his house. After sometime, on hearing the noise "Aag Lag Gayee Aag Lag Gayee", the witness came out of his house and found said boy in flames whereas the door of house of accused Om Prakash was lying closed. The witness with the help of others poured water on the said boy so as to extinguish the flames upon which the boy said "Mujhse Galti Ho Gayee". The police reached the spot within half an hour and got opened the door of house of accused Om Prakash. As per testimony of this witness, none of the accused was found present at the spot immediately before or immediately after the incident and this witness is stated to be the witness of res gestae. 66 As per the testimony of PW-6, the deceased was carrying bottle in his hand immediately before the incident and the door of accused persons was closed. Immediately after the incident, PW-6 alongwith other public persons poured water upon the deceased in order to extinguish the flame. The testimony of this witness finds corroboration with the testimony of PW-7 Const. Sunil Kumar who deposed that when he reached the spot after the incident with the first IO, they found a huge quantity of water lying at the spot alongwith one empty bottle of Pepsi, one burnt plastic box of white colour, one match box containing match sticks and one burnt jacket of green and brown colour. Even the said articles were seized by PW-22 1 st FIR No. 44/2009 PS Nangloi Page 42 of 46 State v. Om Prakash & others IO/ASI Abhinandan and the plastic bottle was sent to FSL, examined by FSL as Ex.1A and found to be containing residue of Kerosene Oil. Even the match box was seized and examined by FSL as Ex.PW-1/C having residue of Kerosene Oil. No lighter was ever found at the spot or recovered lateron by which the deceased is alleged to have been set on fire by accused Manish @ Monu.
67 Even the investigation is shoddy since as per evidence on record, the crime team was not called at the spot by the IO/ASI Abhinandan since the spot of occurrence was tampered with by the people gathered there.
68 The defence has heavily relied upon the statements of family members, neighbours and independent witnesses proved as Ex.PW-22/DA to Ex.PW-22/DM. As per statement of Smt. Santosh Ex.PW-22/DC, the deceased set himself on fire after pouring 'oil'.
69 As per MLC of accused Om Prakash proved on record, he sustained burn injuries over back side of his right index finger, back side of ring finger and back side of little finger. It has been contention of the defence that since the main gate of the house was double panel door and at the time of incident after ablazing himself on fire, the deceased approached the house of the accused and consequentially, the high flames of fire were entering inside the door from middle panel and in order to keep the door of the house intact, the accused Om Prakash FIR No. 44/2009 PS Nangloi Page 43 of 46 State v. Om Prakash & others kept on pushing it from inside and the flames burnt the back side portion of his fingers. As per the FSL report no. FSL 2009/SOC-012/PHY-08/09 dated 29.04.2009, the main entrance of the house was having double panel door; there was possibility of gap between the two panels, sufficient to enter the fingers of a normal person through it; effect of burning was on outer surface of the door; blackening was observed on small area near inner middle portion of the door and the pattern of blackening indicated that the fire was outside of the main door.
70 The Court deems it appropriate to refer to the Law on the point before appreciating the merits of the present matter. It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
71 The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no FIR No. 44/2009 PS Nangloi Page 44 of 46 State v. Om Prakash & others stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
72 The thrust of the prosecution has been on the Dying Declaration of the deceased however, reliance is placed again by this Court on the Judgment titled as Bhadragiri Venkata Ravi (supra), wherein it has been held that :
It is a settled legal proposition that in case there are apparent discrepancies in two dying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. (Vide: Sanjay Vs. State of Maharashtra, (2007) 9 SCC 148; and Heeralal Vs. State of Madhya Pradesh, (2009) 12 SCC 671).
Conclusion/findings :
73 In view of the ocular, medical and scientific evidence on record as well as the Law cited above, as in a criminal trial the onus is on the prosecution to establish the guilt of the accused before the FIR No. 44/2009 PS Nangloi Page 45 of 46 State v. Om Prakash & others Court beyond the shadow of all reasonable doubts and in the present matter serious doubts have been casted upon the story of the prosecution as already discussed in detail in the preceding paragraphs.
74 Accordingly, this Court is of the considered opinion that the prosecution has failed to prove the guilt with respect to the charge framed against all the accused persons beyond reasonable doubts. Hence, all the accused persons namely Om Prakash, Manish @ Monu and Praveen are acquitted of the charge against them under Section 302/34 IPC in present FIR bearing No. 44/2009, PS-
Nangloi. SHEFALI by Digitally signed SHEFALI BARNALA BARNALA TANDON TANDON Date: 2024.10.29 16:56:59 +0530 ANNOUNCED IN THE OPEN (Shefali Barnala Tandon ) COURT ON: 29.10.2024 ASJ-05 (West), THC, Delhi
It is certified that this Judgment contains 46 pages and each page bears my signatures.
Digitally signedSHEFALI by SHEFALI BARNALA BARNALA TANDON TANDON Date: 2024.10.29 16:57:04 +0530 (Shefali Barnala Tandon ) ASJ-05 (West), THC, Delhi 29.10.2024 FIR No. 44/2009 PS Nangloi Page 46 of 46 State v. Om Prakash & others