Delhi District Court
State vs Kenaram on 6 February, 2024
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01):
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No.2743/2016
STATE Vs KENARAM
FIR No.: 372/2016
U/S 302 IPC
PS : JAITPUR
Particulars of the case
1. Date of offence : 17.07.2016
2.Offence complained of : u/s 302 IPC
3.Name of the complainant : Sh.Rahul Singh
4. Name of the accused : Kenaram
his parentage s/o Sh. Gopal Mandal,
his residential address R/o: H. No. C-52, Ekta Vihar,
Jaitpur, New Delhi
5. Plea of accused : Pleaded not guilty
6.Final order : Accused Convicted u/s 302 IPC
Date of Institution : 25.10.2016
Date of Judgment reserved on : 06.01.2024
Date of Judgment : 06.02.2024
Ld. Addl PP for State : Sh. Ashok Debbarma
Ld. Legal Aid Counsel for accused
Kenaram : Sh. Rajiv Jain
JUDGMENT
SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 1 of 47 1. CHARGESHEET 1.1 As per the chargesheet, information was received in the police
station Jaitpur at 05.25 am regarding a PCR call wherein control room informed regarding a fire in house no. D-51, C-Block, Ekta Vihar, Jaitpur Extension. Ct. Rajeev registered the said PCR call and informed HC Umesh through telephone for taking action. Further, SI Rajeev along with Ct. S. B. Saheb were also sent to the above mentioned spot for proper action. They reached at the spot of incident i.e. house no. C-52, Ekta Vihar, Jaitpur, New Delhi and found HC Umesh Kumar and Ct. Rampal were already present there. It was revealed that the injured persons had been shifted to the hospital through CAT ambulance. After leaving HC Umesh and Ct. Rampal for preservation of the spot SI Rajeev along with SI S. B. Sahib reached Burn Department, Safdarjung hospital wherein SI Rajeev obtained the MLC of one Amit wherein doctor opined "A/H/O Sustaining thermal burn when patient was sleeping in his home and his father spilled some inflammable material in house and set house on fire. Patient was directly brought to SJH". SI Rajeev also obtained the MLC of one Sharmila wherein doctor opined "A/H/O sustaining thermal burn when patient was sleeping in her house and her husband spilled some inflammable material in her house and set house on fire. Patient is directly brought to SJH". SI Rajeev also obtained the MLC of injured Rang Lal wherein doctor opined "A/H/O sustaining thermal burn when patient was sleeping in his daughter home, his son-in-law spilled some inflammable material at his own house and set house on fire. Patient is directly brought to SJH". SI also obtained the MLC of accused Kenaram wherein doctor SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 2 of 47 opined "A/H/O thermal burn when patient poured imflammable material at house and set his home on fire. The patient was directly brought to SJH." SI Rajiv told SDM Jitender Singh to come to Safdarjung hospital. SI gave an application to the doctor for recording the statements of injured and doctor declared the injured persons fit for their statements. SI Rajiv in presence of SDM recorded the statement of Smt. Sharmila. 1.2 As per the statement of Sharmila, she used to reside with her family at Jaitpur, New Delhi and she was having one daughter Susmita aged 14 years and one son namely Amit aged 12 years. She got married around 16 years back with one Kenaram s/o Sh. Gopal Mandal and her husband works as a fish seller. Her husband used to fight with her since marriage and he threw her out of his house after beating and fighting with her many times and at that time she resided at her brother's house at Nangal but about 2½ months ago, on the advice of her family members, she came back to her husband's house and started living there. Her husband remained fine for a few days and then again he started coming to house under intoxication and started beating her.
On 16.07.2016, her husband Kenaram had quarreled with her. Therefore, she called her father Rang Lal. Her father tried to counsel her husband Kenaram but he said that he will not leave him and his daughter alive. Kenaram stated that whenever he asks his wife for money for liquor she refuses. Thereupon, Kenaram left the house after extending threats and stayed at unknown place throughout the night. He returned on the morning of 17.07.2016 at around 05.00 am and started quarreling with her and her father and said in a threatening tone that he will not leave them alive now.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 3 of 47 He said that they have disturbed his comfortable life. Thereupon, her husband Kenaram took out petrol in a bottle from the scooty parked at home and poured the same on her, her father Rang Lal and her son Amit and before they all could understand anything, her husband took out his matchbox and set them on fire. They all started shouting still he did not save them. Rather, he said that all of them may be saved from the fire but he will show them the bad consequences and he brought salt from the kitchen and started throwing it on them. Hearing their screams, someone called at number 100. The ambulance brought them to the Safdarjung hospital. Her husband had set them on fire after pouring petrol and also threw salt on them due to which he also got burnt slightly. She alleged hat her husband had poured petrol on them and set them on fire with the intention to kill them and he also threw salt on them so that they all could not survive. Strict legal action shall be taken against her husband. 1.3 On the basis of statement of Smt. Sharmila and MLCs, a case u/s 307 IPC was made out against the accused Kenaram and present case FIR was got registered and investigation was carried out by SI Rajeev. 1.4 Statement of injured Rang Lal in the presence of SDM was also got recorded through a translator Biplab Sarkar who translated his statement from Bangla to Hindi. During investigation, SI Rajeev got inspected the spot by the crime team as well as FSL team and got prepared the site plan. With the help of FSL team exhibits were given the serial numbers as below i.e.:-
1. Salt available on the wooden gate was kept in a plastic box and was given the serial as SL A-1, SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 4 of 47
2. Partly burnt clothes:-
(A) half burnt and torn green suit, blue jeans with white/pink design, kept in a transparent polythene and was given serial no. SL-A-2, (B) one partly burnt/torn petticoat of red colour was put in a transparent polythene and converted into pulanda and was given serial no.
SL-A-3,
3. Plastic bottle having petrol like liquid in small quantity was given serial no. SL-A-4,
4. Matchbox and partly burnt matchsticks were given serial no. SL-A-5.
The above exhibits were kept in two separate pullandas, sealed with the seal of RK and were taken into police possession.
During the investigation, FSL team lifted the following exhibits from the spot i.e.:-
1. One transparent plastic box containing the water given from the main gate which was marked with serial no. A-6,
2. One plastic box in which the navy blue underwear found near the gate of the bedroom was kept and given the serial no. A-7,
3. One transparent box in which the burnt clothes found near the toilet were kept and given serial no. A-8,
4. One transparent plastic box in which burnt clothes and debris recovered near the scooty Luna were kept and given serial no. A-9
5. One transparent plastic box in which pieces of plastic chair found near the water tank were kept and given Sl No. A-10.SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 5 of 47 With the help of doctor tape, the above mentioned exhibits were converted into pullandas, sealed with the seal of RK and were taken into police possession. Scooty/luna DL 3SBZ 2413 TVS XL Super Heavy Duty parked at the spot, used by the accused Kenaram for taking out the petrol from its petrol tank, was also taken into police possession. All seized exhibits/goods were deposited in the malkhana and statement of witnesses were obtained.
1.5 On 21.07.2016 accused Kenaram was arrested in the present case, his personal search was conducted and his disclosure statement was recorded wherein he disclosed that he had become addicted to drinking alcohol due to which his wife used to quarrel with him and for said reason, she stayed in her parents' house in anger for many days. Then he gave up and brought her back around 2½-3 month ago after counseling her. But her wife again started quarreling with him on his habit of drinking.
On 16.07.2016 he came home after consuming liquor and his wife Sharmila started abusing him on gate. He asked his wife for Rs. 20/- but she did not provide the same to him and called her father Ranglal at their home. Ranglal also spoke ill of him and Kenaram went out of the house in anger and slept at his fish shop. When he returned home on next day at 5.00 am, his wife started quarreling with him again. In anger, he took out a bottle of petrol from the scooty kept inside the house and poured it on everyone and lit it on fire with a matchstick and in anger he brought salt from the kitchen and threw it on everyone. Enraged by all this, he tried to kill his wife Sharmila, father-in-law Ranglal and his son Amit by setting them on fire.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 6 of 47 The accused was produced in the court on 22.07.2016 and sent to judicial custody.
However, during treatment, injured Amit died on 23.07.2016, injured Sharmila died on 24.07.2016 and injured Rang Lal died on 25.07.2016. Their autopsies were got conducted and after postmortem, their dead bodies were handed over to their heirs. Their postmortem reports were obtained. On the postmortem report of deceased Amit, the doctor gave the opinion "cause of death is septicemic shock as a result of antemortem infected thermal flame burn injuries involving about seventy percent of total body surface area" and the PM reports of deceased Sharmila and Rang Lal reported the cause of death as "death is due to septicemic shock as a result of antemortem thermal flame injuries involving about forty five percent of the total body surface area". Accordingly, the case was converted into Section 302 IPC. During investigation, scaled site plan of the spot was got prepared and exhibits were deposited in the FSL, Rohini for getting opinion and result of forensic examination was pending. However, from the investigation conducted so far following evidence had emerged against the accused Kenaram Mandal:-
1. Statement given by deceased Sharmila and Rang Lal before SDM.
2. History in the MLCs of all three injured Amit Mandal, Sharmila and Rang Lal.
3. History in the MLC of Accused Kenaram Mandal given by himself.
4. Statement of spot witness i.e. accused Kenaram's daughter.
5. Statement of spot witness Puspha Devi.
6. Exhibits seized from the spot.SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 7 of 47
7. Disclosure statement of accused after his arrest.
8. Death of all three deceased as well as their postmortem reports.
Accordingly, accused was charge-sheeted u/s 302 IPC. 1.6 Subsequently, FSL result was filed by way of supplementary charge-sheet by the IO Inspector Ram Sahay on 17.10.2016.
2. CHARGE 2.1 On the basis of the charge-sheet, charge u/s 302 IPC was framed against accused Kenaram. Accused pleaded not guilty to the said charge and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 24 witnesses.
S. No. Name of the witnesses Nature of the evidence PW-1 Ms. X (child witness) Daughter of the accused/eye witness of the case PW-2 ASI Satender Singh Duty Officer who registered the FIR PW-3 Bipalb Sarkar Interpreter of the Bangla language for the dying declaration of Ranglal PW-4 ASI Ratan Singh Duty Officer PW-5 Radhey Shyam Younger brother of accused who arrived at the spot soon after the incident PW-6 HC Ram Pal Singh Witness to seizure of exhibits from the spot SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 8 of 47 PW-7 Jogender Singh SDM/witness to dying declarations of Ranglal and Sharmila PW-8 Smt. Pushpa Devi Neighbour of the accused who arrived at the spot on hearing the noise PW-9 Sh. Vishnu Barman Brother-in-law of the accused who arrived at hospital after getting information about the incident PW-10 Ct. Rakesh Witness to the arrest proceedings of accused Kenaram PW-11 Srikant Biswas Neighbour of the accused who reached the spot on knowing about the fire PW-12 Dr. Piyush K. Thayal Witness who identified the signatures of concerned doctor on the MLCs of the injured and on the application of IO regarding fitness of injured persons to give statements PW-13 Dr. Mohit Gupta Witness who identified the signatures of concerned doctor on the postmortem report of deceased Amit Mandal PW-14 Dr. Rahul Barmal Witness who prepared the death summary of deceased Ranglal and who identified the signatures of concerned doctor on the death summary of deceased Amit and Sharmila PW-15 Inspector Mukesh Draftsman who prepared the scaled site Kumar Jain plan SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 9 of 47 PW-16 ASI Ram Gopal Duty Officer who proved DD No.8A and 11A regarding a fire incident at Jaitpur and sending of SI Rajiv along with Ct. S. B. Saheb to the spot PW-17 SI Lakhmi Chand In-charge Mobile Crime Team which inspected the spot PW-18 Ct. Suresh Police official who deposited the case exhibits at FSL, Rohini for examination PW-19 HC S. B. Saheb Police official who accompanied the IO during the investigation PW-20 ASI Umesh Kumar Police official who firstly reached at the spot and thereafter was witness to the investigation at the spot. He was also MHC(M) and made the relevant entries regarding deposit and dispatch of case property PW-21 SI Maharaj Singh Police official who on receipt of message regarding a fire incident reached at spot and took the injured to the hospital. He was also witness to the oral dying declaration by victim Sharmila PW-22 Inspector Ram Sahay Subsequent IO of the case who conducted the investigation after Section 302 IPC was added in the investigation SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 10 of 47 PW-23 Dr. Piyush K. Thayal Witness who identified the handwriting/ signatures of concerned doctor on the certificate of fitness of all injured and the accused on the application of IO on 17.07.2016 PW-24 SI Rajiv Kumar First IO of the case 3.2 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit
Ex.PW2/A FIR
Ex.PW2/B 65B IEA Certificate regarding FIR
Ex.PW4/A DD No.8 regarding death of Amit
Ex.PW4/B DD No. 3 regarding death of Sharmila
Ex.PW4/C DD No. 8 regarding death of Rang Lal
Ex.PW5/A Statement of PW5 regarding identification of
dead bodies of deceased Amit and Sharmila
Ex.PW5/B Receipt of receiving dead body of deceased
Amit
Ex.PW5/C Receipt of receiving dead body of deceased
Sharmila
Ex.PW6/A Seizure memo of exhibits regarding lifting of
salt from the spot
Ex.PW6/B Seizure memo of one plastic bottle of petrol
Ex.PW6/C Seizure memo of one match box
Ex.PW6/D Seizure memo of scooty recovered from the
spot
Ex.PW6/E Seizure memo of burnt clothes lying on the
scooty
Ex.PW7/A Statement of injured Smt. Sharmila
Ex.PW7/B Statement of injured Rang Lal
Ex.PW7/C Statement of interpreter Biplap Sarkar
SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 11 of 47
Ex.PW9/A Dead body identification regarding deceased
Rang Lal
Ex.PW9/B Receipt regarding receiving of dead body of
injured Rang Lal by his son
Ex.PW10/A Arrest memo of accused Kenaram
Ex.PW10/B Personal search memo of accused Kenaram
Ex.PW10/C Disclosure statement of accused Kenaram
Ex.PW10/D Pointing out memo by accused Kenaram
Ex.PW10/E Seizure memo of scalp hair of deceased Amit
along with sample seal of hospital
Ex.PW11/A Dead body identification memo of deceased
Amit
Ex.PW12/A Certificate of fitness given by Dr. Alok on
IO's application for recording statement of
injured Sharmila
Ex.PW12/B Certificate of fitness given by Dr. Alok on
IO's application for recording statement of
injured/accused Kenaram
Ex.PW12/C Certificate of fitness given by Dr. Alok on
IO's application for recording statement of
injured Rang Lal
Ex.PW12/D Certificate of fitness given by Dr. Alok on
the application moved by the IO for
recording statement of injured Amit
Ex.PW12/E MLC of injured Amit
Ex.PW12/F MLC of injured Sharmila
Ex.PW12/G MLC of injured Ranglal
Ex.PW12/H MLC of accused Kenaram
Ex.PW13/A Postmortem report of deceased Amit Mandal
Ex.PW14/A Death Summary of deceased Ranglal
Ex.PW14/B Death summary of deceased Amit
Ex.PW14/C Death summary of deceased Sharmila
Ex.PW15/A Scaled site plan of the place of incident
Ex.PW16/A DD Entry No.8A regarding fire incident at
D-51, C Block, Ekta Vihar, Jaitpur, Delhi
SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 12 of 47
Ex.PW16/B DD No. 11A regarding sending of SI Rajiv
Kumar along with Ct. S. B. Sahib to the
above mentioned spot on the instructions of
SHO PS Jaitpur
Ex.PW17/A Crime Team Inspection Report
Ex.PW19/A Seizure memo of scalp hair of deceased
Sharmila along with sample seal
Ex.PW19/B Seizure memo of scalp hair of deceased
Rang Lal along with sample seal
Ex.P1 (colly) Case property i.e. white, pink and blue
colour clothes in half burnt condition
Ex.P2 (colly) Case property i.e. a burnt petticoat along
with one transparent polythene bag
Ex.P3 Case property i.e. half burnt empty plastic
bottle
Ex.P4 (colly) Case property i.e. one red and yellow colour
match box labelled as "CAKE" along with
three unburnt matchsticks
Ex.P5 Case property i.e. one empty transparent
plastic jar
Ex.P6 Case property i.e. one transparent plastic jar
containing elastic of underwear of blue and
black colour
Ex.P7 Case property i.e. one transparent jar
containing one blackish colour semi burnt
cloth material
Ex.P8 Case property i.e. Transparent plastic jar
containing burnt pieces of cloth
Ex.P9 (colly) Case property i.e. Big Plastic Jar containing
some pieces of plastic chair of dark brownish
colour
Ex.P10 Case property i.e. one empty transparent box
Ex.PW20/A (colly) Entries made in register 19 at serial no. 1666 on 17.07.2016 and on 23.07.2016 vide serial nos. 1683, 1690 and 1695 regarding deposition of sealed pullandas in the malkhana SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 13 of 47 Ex.PW20/B DD entry made in register no.19 regarding dispatch of case properties to FSL, Rohini vide RC No. 180/21/6 Ex.PW20/1 Case property i.e. Scooty bearing no.
DL3SBZ 2413 recovered from the house of
accused Kenaram
Ex.PW22/A FSL result of case exhibits
Ex.PW24/A Site plan of the place of incident
Ex.PW24/B Seizure memo of certain exhibits from the
spot
Ex.PW24/C DD No.8A dated 23.07.2016 regarding death
of injured Amit
Ex.PW24/D Dead body identification of deceased Amit
by his relative Radhey Shyam
Ex.PW24/E DD No.3A dated 25.07.2016 regarding death
of injured Sharmila
Ex.PW24/F Dead body identification of deceased
Sharmila by her relative Radhey Shyam
Ex.PW24/G DD No.8A dated 26.07.2016 regarding death
of injured Rang Lal
Ex.PW24/H Dead body identification of deceased Rang
Lal by his son Vishu Barman
Ex.P11 One transparent plastic box containing the
salt
Ex.PW24/I-1 & Photographs of the scooty/luna bearing
Ex.PW24/I-2 registration no. DL3SBZ2413
Ex.AD1 and Post Mortem Reports of deceased Ranglal
Ex.AD2 and Sharmila admitted by the accused u/s
294 CrPC r/w section 58 Indian Evidence
Act
3.3 Though 24 witnesses have been examined by prosecution but
the main witnesses of the case are:
i. PW-1, Ms. X, Daughter of the accused/eye witness of the case,
SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 14 of 47
ii. PW-21 SI Maharaj Singh, witness to the oral dying declaration
of Sharmila,
iii. PW-7 Jogender Singh, SDM, South East District, who got
recorded the dying declarations of injured Rang Lal and Sharmila, iv. PW-3 Bipalb Sarkar, witness and Interpretor regarding dying declaration of Rang Lal from Bangla language to Hindi, v. PW-8 Pushpa Devi, who was witness to the events just after the incident, vi. PW-5 Radhey Shyam Mandal, younger brother of accused who arrived at the spot soon after the incident, vii. PW-9 Vishnu Barman, brother in law of the accused who arrived at hospital after getting information about the incident, viii. PW-11 Shri Srikant Biswas, Neighbour of the accused who reached the spot on knowing about the fire and ix. PW-24 SI Rajiv Kumar, 1st IO of the case.
3.4 PW-1 Ms. X was a child witness aged 13 years. She deposed that she was studying in Bal Vaishali Vinayak School situated in front of Gurudwara in Jaitpur and her father's name was Kenaram Mandal, who used to sell fish. During the time of alleged incident, she was residing with her father Kenaram Mandal, mother Sharmila Mandal and her brother Amit Mandal. Her brother Amit Mandal, aged around 10 to 11 years old, was studying in class fourth at that time.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 15 of 47 She further deposed that on 16.07.2016 there was quarrel between her father and mother and her mother had called her nanaji who came to pacify her father. She did not know why her father used to quarrel with her mother. She also did not know as to for what purpose her father quarreled with her mother on 16.07.2016. Her father used to take alcohol and the on date of incident also he was in drunken condition but her mother did not like the habit of her father taking alcohol. Her mother even tried that her father should leave taking alcohol but her father did not mend his ways. However, her father had stopped drinking for few days. Whenever her mother objected to the habit of her father for taking drink, her father used to beat her. On the date of incident, quarrel took place between her father and her mother at around 05.30 pm in the evening. When she came from tuitions, she saw that there was escalation of quarrel between her father and her mother. She called some neighbours, who came there and they tried to make her father understand. Thereafter, her father went to his shop for sleeping and returned to the house in the morning at around 5.30 am. Her mother thought that her father was in his senses, therefore, her mother made bed for her father. Her father asked her mother for money for purchasing alcohol but same was refused by her mother. Thereafter, her father started beating her mother and also threatened to burn them by petrol. Then, his father brought petrol from TVS scooter and sprinkled the same on her mother, her brother and her nanaji. She went aside to call neighbours. She even jumped from the wall of her house before her father could struck match stick on match box and threw the same on them. Her father threw burning sticks on them and they started burning. She saw all SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 16 of 47 three of them were burning in fire and called some neighbours and threw water from submersible pump to put out the fire. Someone called the police. Ambulance and police came at the spot and they took all three of them to the hospital. Her father was also taken by the police as her father also sustained burn injuries in the incident. Besides throwing petrol upon her mother, brother, nana and burning them, her father did not do anything else. The police officials came in Safdarjung hospital where her mother, brother and nanaji were being treated and they also made inquiry from her regarding the incident. The police officials also came to their house but she was not present at her house at that time and she was informed by her neighbours that police had visited her house. After few days of the incident, firstly her brother expired and thereafter her mother and nanaji also expired.
PW1 was duly cross examined by Ld. Amicus Curiae for the accused.
3.5 PW-21 SI Maharaj Singh deposed that on the intervening night of 16-17.07.2016, he was posted at PS Jaitpur as ASI and his duty hours were 8 PM to 8 AM. On 17.07.2016, at about 05:30 AM, he received a wireless message regarding a fire incident and injured at D-51, C Block, Ekta Vihar, Jaitpur Extension. He along with driver/Ct. Sher Singh reached at above-mentioned place in their ERV vehicle. When they reached at above-mentioned place, they found fire and there were four injured persons. Injured Rang Lal and accused Kenaram were shifted by them in their vehicle to hospital and remaining two injured persons were shifted in CAT ambulance to hospital i.e. Burn Department of Safdarjung Hospital.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 17 of 47 At the spot when PW21 asked from Sharmila that how the fire incident happened, she told him that accused Kena had poured petrol and salt on all the three injured namely Amit aged 12 years, Sharmila aged 33 years and Rang Lal aged 61 years and set them on fire. All the above-mentioned three injured and accused Kenaram were got admitted in Burn Department of Safdarjung Hospital for their medical treatment. The brother of accused i.e. Radhey Shyam and one of his neighbour Shrikant Vishwas also accompanied them to hospital. Later on, PW21 came to know that all the three injured persons namely Amit, Sharmila and Rang Lal died due to said burn injuries during treatment.
PW-21 was duly cross-examined by the Ld. Defence Counsel.
3.6 PW7 Jogender Singh, SDM, South East District, Sarita Vihar, Lajpat Nagar IV, New Delhi deposed that on 17.07.2016 he was present at his house being a Sunday and on that day he received an information from SHO PS Jaitpur for recording statement of a burnt person. He reached Safdarjung hospital where he met SI Rajiv Kumar who took him to the burnt ward wherein he found one Rang Lal and one lady Smt. Sharmila admitted therein in burnt condition. After being satisfied that both Smt. Sharmila and Rang Lal were able to give their statement, statement of Smt. Sharmila Ex.PW7/A was recorded by the police official SI Rajiv Kumar before him. Since Rang Lal was mainly speaking in Bengali, hence, one interpreter namely Biplab Sarkar, who was conversant with hindi language as well as bengali language was arranged and with the help of said interpreter, statement of Rang Lal Ex.PW7/B was also recorded by SI SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 18 of 47 Rajeev before him. The statement of Biplab Sarkar Ex.PW7/C was also recorded. Smt. Sharmila informed that her husband namely Kenaram used to fight with her, used to demand money from her for the purpose of drinking liquor and Kenaram had burnt her by taking out petrol from the scooty in the house in the early morning of 17.07.2016. In the incident, apart from her, her father Rang Lal and her son Amit also got burnt. Injured Rang Lal also corroborated the version of Smt. Sharmila regarding the incident.
PW7 was duly cross examined by Ld. Counsel for the accused.
3.7 PW-3 Bipalb Sarkar deposed that he was running a hardware shop in J. J. Colony, Madanpur Khadar. He do not know the date but about 3-4 months ago, the police official of PS Jaitpur required him that some injured had been hospitalized in Safdarjung hospital was not knowing hindi language and was only knowing Bangla language. Since he was aware of the Bangla language so he along with police officials reached Safdarjung hospital where he also met one SDM, whose name he do not remember. He also met SI Rajeev. One Rang Lal was admitted there in injured condition and he was burnt. On the instructions of SI Rajeev to know from Rang Lal as to how he got burnt, he inquired from said Rang Lal in Bangla language about the incident and how he sustained injuries. Rang Lal informed him that his son in law, who runs a fish shop used to fight in the night, almost every day after drinking liquor, with his daughter. On the day of incident, his son in law was drunk, had fought and said that he would burn everyone. His son in law was having bottle in his hand and he sprinkled oil on his SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 19 of 47 wife, son and when he intervened in the matter, he was also sprinkled and were burnt. He narrated all these facts to the SDM who was present there.
PW3 was duly cross examined by Ld. Amicus Curiae for the accused.
3.8 PW-8 Smt. Pushpa Devi deposed that accused Kenaram was residing with his family adjacent to her house and he was an alcoholic. It was the month of July of the year 2016 at about 5.00/5.30 am when she was sleeping, she heard the noise of "bachao bachao" and she woke up. She came outside of her house and reached near the house of Kenaram where she found the wife of Kenaram in a burnt condition and she was lying in a drain. She also found father in law and son of accused in burnt condition. People standing therein told her that accused had put salt on his father in law while he was in burning condition. All the injured were shouting as they were badly burnt. The daughter of the accused Kenaram told that her father had burnt the injured persons.
She made a call at 100 number from her mobile phone no. 9560179787 and informed the police about burn injuries received by the injured. After some time, police came to the spot and took away the injured as well as accused with them.
Later on, she came to know that all the three injured succumbed to their injuries. Police officials inquired from her about the incident and she told the same to them.
During her cross examination, she denied that she stated told to the police that the injured were saying that Kenaram had put them on fire by putting petrol and that said accused had put salt on them. She was SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 20 of 47 confronted with her statement Ex.PW8/A regarding the said fact. She deposed that the daughter of the accused Kenaram had told her about this. The day of incident was 17.07.2016 but due to lapse of time, she could not recollect the date.
PW8 was duly cross examined by Ld. Counsel for the accused. 3.9 PW5 Radhey Shyam, younger brother of the accused Kenaram deposed that his elder brother was married to Sharmila, having two children, one boy namely Amit aged about 12 years and one daughter namely Sushmita aged about 14 years. On 17.07.2016 he was present in his house when he was informed by his neighbours that fire took place in his brothers' house. Thereupon he reached his brother's house at C-52 in gali no. 2, Ekta Vihar, Jaitpur at about 5.30 am and found Smt. Sharmila, her father Rang Lal, Amit and accused in burnt condition. His brother was taken in an ambulance whereas he and Shri Srikant, his jija and other injured persons went in police vehicle to Safdarjung hospital. He do not know by what material they were burnt. He also did not come to know how and by whom they got burnt. He came to know from Sushmita, daughter of accused that accused had burnt them. After few days, all three i.e. Smt. Sharmila, Amit and Rang Lal had died in Safdarjung hospital.
PW5 identified the dead body of Amit and Sharmila and his statement Ex.PW5/A was recorded by the police. He also received the dead bodies of Amit as well as of Smt.Sharmila and also signed the receipts Ex.PW5/B and Ex.PW5/C regarding the same.
As the witness resiled from his earlier given statement, he was cross examined by Ld. Addl. PP for the State.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 21 of 47 During his cross examination he stated that police did not record his statement and only asked him to sign the documents. He did not tell the police that his brother Kenaram had burnt his wife Sharmila, son Amit and his father in law Rang Lal by pouring petrol on them and he was confronted with his statement Ex.PW5/D from portion A to A regarding the said fact. He did not tell the police that all the three persons were got burnt by accused Kenaram and accused himself sustained injuries. The witness was again confronted with his statement Ex.PW5/D from portion B to B regarding the said fact. He stated that he do not know if his brother had been rightly arrested by the police or not. He denied the suggestion that he had withheld material fact of the case in order to help his brother in the case. He was having friendly and close relationships with his brother. He do not know how to read Hindi and was conversant with Bangla language only.
PW5 was duly cross examined by Ld. Amicus Curiae for the accused.
3.10 PW-9 Vishnu Barman, brother in law of accused deposed that on 17.07.2016 he received a telephone call in the morning from his niece Sushmita Mandal informing him that her father Kenaram had burnt her mother Sharmila, his father Rang Lal and his nephew Amit by pouring petrol on them. Thereupon, he reached Safdarjung hospital where he found his father Rang Lal, his sister Sharmila and his nephew Amit were being treated. Accused Kenaram was also present in the hospital and he was also having some burn injuries.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 22 of 47 He further deposed that before this incident about 15-16 days ago, he was also informed by his niece Sushmita that accused used to fight after drinking liquor with his sister Sharmila. About a week prior to the incident of burning, his father Rang Lal had gone to the house of accused in Jaitpur, Delhi to pacify him for not causing beatings to his sister Sharmila and at the time of incident of burning, his father Rang Lal was also present in the house of accused. On 23.07.2016 his nephew Amit Mandal succumbed to burn injuries, on 25.07.2016 his sister Sharmila succumbed to burn injuries and on 26.07.2016 his father Rang Lal succumbed to burn injuries. He identified the dead body of his father along with one relative Sujit vide his statement Ex.PW9/A. After post mortem, the dead body of his father Rang Lal was handed over to him vide handing over memo Ex.PW9/A. PW9 was duly cross examined by Ld. Counsel for the accused. 3.11 PW-11 Shri Srikant Biswas deposed that on 17.07.2016 he was present at his house and at around 06.00 pm, someone knocked at his door and informed that fire had broken in the house of Kenaram. He rushed to his house and saw that mob had gathered at the spot. At the spot, he saw Ms. Sharmila, wife of Kenaram and his father in law Rang Lal were lying on the different staircase with burn injuries. Kenaram was applying medicines on the burnt injuries of his son and he himself was also suffering from burn injuries. When he asked from Ms. Sharmila as to what had happened, she told him that she tried to put herself on fire and in order to save her, other family members had also sustained injuries. Meanwhile, PCR van and ambulance arrived at the spot and he along with Radhey SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 23 of 47 Shyam and injured persons had gone to Safdarjung hospital for their medical examination and treatment.
All the injured persons were admitted in the hospital and he remained there while they were given treatment. On 23.07.2016 Amit son of Kenaram expired, on 25.07.2016 Ms. Sharmila wife of Kenaram expired and on 26.07.2016 father in law of Kenaram expired due to injuries sustained by them on burning. He identified the dead body of Amit vide dead body identification memo Ex.PW11/A. He also identified the dead bodies of Sharmila and of Rang Lal and the same were handed over to Radhey Shyam after their identification.
As the witness resiled from his earlier given statement, he was cross examined by Ld. Addl. PP for the State.
During his cross examination, he stated that he cannot say if Kenaram had burnt his wife Sharmila, son Amit and father in law Rang Lal by pouring petrol upon them as he was not present at that time. He denied the suggestion that Ms. Sharmila did not tell him that she tried to put herself on fire and in order to save her, other family members had also sustained injuries. Police never recorded his statement in this case. He denied the suggestion that his statement was recorded by the police in which he had not stated that Sharmila had told him that she had tried to put herself on fire and in order to save her, other family members had also sustained injuries. He was confronted with his statement Ex.PW11/PA recorded earlier regarding the said fact. He denied the suggestion that he had deposed falsely to save the accused.
PW11 was duly cross examined by Ld. Defence Counsel for accused.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 24 of 47 3.12 PW-24 SI Rajiv Kumar, 1st IO of the case, deposed as per the contents of the charge-sheet.
During PW24's testimony, he identified accused as well as case properties Ex.P-1 to Ex.P-11 in the court PW24 was duly cross examined by Ld. Counsel for accused.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Kenaram was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and has been falsely implicated in the present case.
4.2 Accused stated that there was some altercation (dhamka dhamki) with his wife on the issue of khana-peena. He stated that he used to drink and there used to be quarrel with his wife. He admitted that he had quarreled with his wife on 16.07.2016. He admitted that he used to take alcohol and on the date of incident, he was in drunken condition but his wife did not like his habit of taking alcohol and she even tried that he shall leave this habit and that he even stopped drinking for few days.
He stated that sometimes there used to be a hatta-pai with his wife when he asked money for liquor. He was outside home that night.
Accused admitted that on the morning at 05.30 pm he asked money from his wife for liquor, however, he stated that he did not cause beatings to her. Accused claimed that he did not take out petrol from the scooter, did not sprinkle petrol on anybody and did not set anybody on fire. He stated that he did not cause fire on anybody. Rather he claimed that he SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 25 of 47 tried to save his wife, son and his father in law and in that process, he suffered burn injuries. While he was saving his family members, they had moved out of the house. Accused stated that he was drinking alcohol throughout the night with salt but he did not throw salt on his father in law. Accused admitted that her wife Sharmila, his son Amit, his father in law Rang Lal and he himself were admitted in the hospital with burn injuries. However, he claimed that there was no quarrel with his wife when his father in law Rang Lal was present in their house. He denied that Rang Lal had come to pacify the dispute between him and his wife. Accused stated that Rang Lal ghumne aaya hua tha.
In regard to the case exhibits, he stated that the scooty bearing registration no. DL 3SBZ2413 was there in his house but he do not know about the petrol in the plastic bottle. He even do not know about the match sticks/match box. In regard to presence of salt at spot, he stated that the salt may have got stuck on the wooden gate when the water was sprinkled using submersible pump.
In regard to his disclosure statement, he claimed that he was asked by the police to sign some papers and he signed the same but he do not know the contents of the same. He was illiterate at that time. He had taken up some studies in the jail later on.
Accused admitted that his medical examination was conducted. Accused further admitted that he was produced before the court and then sent to jail. Accused admitted that on 17.07.2016 at around 06.00 pm his neighbour Sri Srikant Biswas rushed to his house and saw that mob had gathered at the spot. His neighbour saw accused's wife Sharmila and SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 26 of 47 his father in law Rang Lal lying on the different staircase with burn injuries. Meanwhile, PCR van and ambulance arrived at the spot and accused along with Radhey Shyam and injured persons had gone to Safdarjung hospital for their medical examination and treatment. Accused's both legs, one arm and left side of the chest got burnt. Accused's son Amit got most of the burn injuries among all.
Accused Kenaram further stated that whenever he used to ask money for liquor from his wife Sharmila, there used to be dhamka dhamki between them and his wife used to threaten that she will set herself on fire. He had consumed liquor in the night and asked for money from his wife. His wife again threatened to put herself on fire. His wife came out of the room and then he heard noise of bachao bachao. Accused did not know how the fire was caused. Then he jumped into the fire to save his wife, his son and while trying to save them, he also caught fire and suffered burn injuries. His father in law also tried to save them but he also caught fire.
5. DEFENCE EVIDENCE 5.1 Accused chose not to lead defence evidence and matter was listed for final arguments.
6. ARGUMENTS 6.1 Ld. Counsel for accused has argued that the testimony of the main witness i.e. daughter of accused is not trustworthy. She was a child witness and had been tutored against accused. Further her resentment/anger against the accused is evident from her cross-examination which shows that SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 27 of 47 she was a motivated witness deposing at the instance of her mother's family. It is submitted that even the presence of child witness during the incident is doubtful.
Ld. Counsel has submitted that even the dying declaration of the victims are doubtful. There is no sufficient proof that victims were in a fit state of mind and moreover, statement of one of the victims was recorded through an interpreter and therefore, Court cannot rely on either of the dying declarations. He has further argued that even PW11 Srikant Biswas has supported the defence of accused that it was victim Sharmila herself who tried to put herself on fire and in order to save her the other family members also sustained injuries. Moreover, even PW5 Radhay Shyam did not support the case of prosecution. Accordingly, it is submitted that prosecution has failed to prove its case beyond reasonable doubts. 6.2 On the other hand, Ld. Additional PP has argued that child witness has deposed categorically against the accused and even the victims have named the accused categorically in their dying declarations. It is submitted that neither of said evidence is doubtful by any means. Even the circumstantial evidence corroborates the case of prosecution. Accordingly, accused is liable to the convicted for the alleged offence.
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 302 IPC provides "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine"SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 28 of 47 Further the ingredients of murder are defined in Section 300 IPC. It provides "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
(secondly) - if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
(thirdly)- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
(fourthly)- if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
7.2 The accused has not disputed his presence at the time of incident at the spot. The fact that the injured persons died due to burn injuries is also not disputed. Rather, the defence has claimed that it was deceased Sharmila herself who ignited the fire.
Thus, from the facts of the case, defence of the accused, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether the fire was caused by the accused or it was a case of self immolation?
2. Whether the accused is liable to be convicted for the alleged offence?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 29 of 47 8.1 The main witness of the case is minor daughter of the accused i.e. PW1. She has deposed in detail about the incident and has given even background of the incident. The said background includes the routine quarrels between the accused and his wife due to his drinking habit. The presence of her grandfather has also been explained by PW1. She has explained the events of the evening of preceding day when the accused left the house and thereafter, returned on the next morning. She has specifically deposed about the events that transpired on the fateful morning. She has categorically deposed that her father had brought the petrol from the TVS scooter and sprinkled the same on her mother, brother and her nana. She has deposed that her father threw burning match sticks on them and they started burning. She has stood the test of cross-examination and nothing substantial has come therein to doubt her truthfulness.
Ld. Counsel for accused has submitted that PW1 was a child witness and hence her testimony cannot be considered as a substantive piece of evidence. I have considered said argument. The mere fact that a witness is a child witness is not sufficient to doubt her testimony. Section 118 of Evidence Act, 1872 provides that even children are competent witness unless the Court considers otherwise. Further, prior to recording the testimony of PW1, the Court informed her about the stage of criminal justice process, the role of witness, importance, timings and manner of testimony and even the way in which the testimony shall be recorded. Further, preliminary questions were put to her wherein she stated that she understands the meaning of oath and that same means to speak truth. Accordingly, the Court had taken due care that the child witness SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 30 of 47 understands the implication of her testimony and deposes with solemn responsibility. Further, her examination and cross examination reveals that she was an alert and responsive witness. Hence, there is no ground to doubt the testimony of PW1 merely on the ground that she was a child witness.
Ld. Defence Counsel has argued that during her cross- examination PW1 has deposed "I do not love my father. I do not love my father not only because he used to drink but because he burnt my mother, my brother and nanaji." Accordingly, Ld. Counsel has tried to project that said witness was a revengeful witness and, hence, cannot be relied upon. I have considered said argument. However, it is natural for any person to bear resentment against the person who has caused the death of his/her mother, sibling and grandparent. Moreover, at the same time, it is to be noted that accused is not a stranger to the witness and is rather her real father. Accordingly, in the given fact and circumstances, the testimony of PW1 cannot be discredited on the said ground.
Ld. Defence Counsel has submitted that there have been various improvements in the statement of child witness as compared to her statement u/s 161 CrPC. Accordingly, she is not a credible witness. I have considered said argument. However, various factors are to be noted here. Firstly, PW1 being a child witness, her testimony has to be evaluated keeping in mind that children tell the facts as per the skill of the persons examining the child. Further, the "improvements" referred by Ld. Counsel are the ancillary facts i.e. the incidents of previous day, actions of PW1/neighbours during/after the incident, and do not pertain to the main facts regarding the incident itself. Secondly, as per section 162 CrPC, as a SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 31 of 47 general rule the statements recorded u/s 161 CrPC cannot be used for any purpose during the trial. As per proviso to section 162 any part of such statement can be used, "if duly proved", to contradict the witness. Further, explanation to section 162 CrPC provides that an omission to state a fact or circumstance may amount to contradiction if same appears to be significant and otherwise relevant in the context of the facts. However, the alleged 161 CrPC statement has not been proved through the IO of the case by the defence. Moreover, said explanation has been narrowed down by Hon'ble Supreme Court of India in Tahsildar Singh v. State of UP AIR 1959 SC 1012. In the said judgment, while considering what omissions can be used for contradiction, the Supreme Court analyzed the earlier case laws on the point. The Court thought that there were conflicting views: (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness box; and (ii) they must be in regard to important features of the incident in the statement made before the police. The Court observed, "the first proposition not only carries out the intention of the Legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches the meaning of the word 'statement' to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness box, the proposition brings in, by construction, what he would SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 32 of 47 have stated to the police within the meaning of the word 'statement'. Such a construction is not permissible".
It is apparent from the language of S.162(1) CrPC that statements not reduced to writing by the police officer cannot be used for contradiction. However, the Supreme Court opined in aforesaid judgment that though a particular statement is not expressly recorded, such statement can be deemed to be a part of statement expressly recorded and can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement. (ref R. V. Kelkar's Criminal Procedure 4th Edition page 145) According to the Supreme Court such fiction is permissible by construction in the following three cases:-
(1) When a recital is necessarily implied from the recital or recitals found in the statement; Illustration- In the recorded statement before the police the witness stated that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B as the same point of time; in the statement before the police, the word 'only' can be implied i.e. the witness saw only A stabbing B. (2) a negative aspect of a positive recital in a statement; Illustration- in the recorded statement before the police the witness says that a dark man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (3) When the statement before the police and that before the court cannot stand together; illustration- the witness says in the recorded statement SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 33 of 47 before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run immediately after stabbing i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true the other must necessary be false.
Applying the said ratio, alleged omissions in 161 CrPC statement of the child witness are not the one which can be termed as contradiction. Accordingly, the defence has failed to pass the twin test provided u/s 162 CrPC i.e. (a) of getting the 161 CrPC statement proved and (b) getting a direct contradiction or getting any omission (amounting to contradiction) as envisaged in the ratio of abovesaid judgment.
Ld. Defence Counsel has further submitted that even the presence of PW1 at the spot is doubtful as she was present at her maternal uncle's house at the time of incident. Ld. Counsel has submitted that PW5 Radhe Shyam Mandal has deposed in his cross-examination that the daughter of accused is residing at her maternal uncle's house and he further deposed that when he reached at the house of accused his daughter was not present there. Ld. Counsel has submitted that same shows that said child witness was not present at the spot at the time of alleged incident. I have considered the said argument. However, two things are to be noted. Firstly, PW5 was declared hostile by the prosecution and was cross-examined by the Ld. Additional PP. Accordingly, his evidence has to be seen with caution. Secondly, he is the brother of the accused and therefore, apparently he is a witness interested in the welfare of the accused. Further, in his examination in chief itself, he has deposed that he came to know from the SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 34 of 47 daughter of accused that accused had burnt the victims. Moreover, there are various other circumstantial facts and the testimonies of other witnesses to show the presence of PW1 at the given spot. Firstly, PW1 was the minor daugher of accused and deceased, so her presence in their house was natural. Rather, there appears no cause that a young child shall be staying away from her mother without any reason. Secondly, even the other prosecution witnesses have categorically deposed about the presence of PW1 at the spot. PW8 Pushpa Devi who reached at the spot on hearing the noise of hue and cry has deposed that when she reached at the spot, the wife of Kenaram and even his son and father-in-law were in burnt condition. All the injured were shouting as they were badly burnt. She has further deposed that the daughter of the accused told her that her father had burnt the injured persons. During her cross-examination by Ld. Defence Counsel, she has categorically deposed that the daughter of Kenaram was already present in the house when Vish Berman had come. It is to be noted that PW8 was a neighbour of accused and therefore was not related to either accused or his wife. Thus, she was a neutral witness and had no reason to side with any of the parties. Further, PW9 Vishu Berman had also deposed that on 17.07.2016, he received telephone call in the morning from his niece (daughter of accused) informing him that her father Kenaram has burnt her mother Sharmila, her grandfather Rang Lal and her brother Amit by pouring petrol on them. Thus, considering the detailed narration of the incident by PW1, the spot being the paternal house of PW1 and the testimonies of PW8 and PW9, the Court is convinced about the presence of PW1 at the spot at the relevant time.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 35 of 47 8.2 It is to be noted that even the circumstantial evidence support the allegations of PW1. 8.2(a) The case exhibits were sent to the FSL for forensic
examination. As per the seizure memo Ex.PW6/B, one plastic bottle which was partly melted due to heat of the fire was found inside the house of the accused placed above the scooty and there was some petrol like substance in the same. As per the FSL report Ex.PW22/A, said plastic bottle (marked as Ex.A4 by the FSL expert) was found to contain residue of petrol. Though the residue of kerosene/diesel/petrol could not be detected from the other exhibits, however, same has to be seen in the context that the petrol being highly inflammable is consumed in the fire and shall rarely be detected from the remains of fire. In nutshell, the FSL report is consistent with the fire being caused by petrol.
8.2(b) As per PW1, her mother did not like the habit of his father of taking alcohol and whenever she used to object to said habit, her father used to beat her mother. She has deposed that even on the evening prior to the incident there was such quarrel and further even on the morning of the fateful day her father asked her mother money to purchase alcohol which was refused by her mother. Thereupon, her father started beating her mother and threatened to burn them by petrol and then actually did so. Thus, PW1 has explained the motive of her father to do such dastardly act. It is to be noted that during his examination u/s 313 CrPC the accused has admitted his habit of consuming alcohol, his wife not liking his habit and consequent quarrels regarding the same. He has admitted that there used to be altercations (dhamka-dhamki) and sometimes there used hatta-pai SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 36 of 47 (physical quarrel) with his wife when he asked money for the liquor. He even admitted that he asked money for liquor in the morning at 05.30 am. Thus, the testimony of PW1 regarding the motive of the accused gathers support from the the examination of the accused himself u/s 313 CrPC. 8.2 (c) The MLCs of the injured persons as well as the accused have been proved by PW12 who identified the signatures of Dr. Maninder on the same since he had seen him writing and signing during the course of his official duties as said doctor worked under PW12. He deposed on oath that said doctor has left the hospital and his present whereabouts are not known. None of said facts were disputed in the cross-examination of PW12. Thus, the MLCs Ex.PW12/E, F, G and H have been proved by virtue of Section 32 (2) r/w Section 47 and Section 114 Illustration (e) of the Indian Evidence Act. In the MLCs of all the injured persons, it has been mentioned that the father/ husband/son-in-law (i.e. accused) of the injured persons had spilled inflammable material in house and set house on fire. The MLCs were prepared at 6 AM i.e. so shortly after the incident that there was hardly any time with any injured/person accompanying them so as to manipulate the facts regarding the history of their injuries. Moreover, even the MLC of the accused mentions that the patient poured inflammable material in his home and set his home on fire. Even the said MLC was prepared soon after the incident and its contents were not disputed throughout the trial.
8.2 (d) Even the nature of injuries on the deceased and the accused are consistent with the case of prosecution. As per examination of accused u/s 313 CrPC, his wife threatened to put herself on fire. He came out of the SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 37 of 47 room and heard the noise of bachao bachao then he jumped into fire to save his wife and son. As per him, his father-in-law also tried to save them and he also caught fire. As per the accused, he himself also suffered burnt injuries. Thus, accused has tried to raise a defence that it was a case of self immolation by his wife wherein his father in law received burn injuries which rescuing his daughter.
As per the postmortem report Ex.AD1 (admitted by accused u/s 294 CrPC r/w 58 Indian Evidence Act) of deceased Rang Lal, following external injuries were found on his body :-
"Infected ante mortem epidermal to dermal deep thermal burn injuries present over face and neck, front and back of right upper limb sparing upper half of arm, patches in back of left arm and forearm, patches in back of chest, front and back of both lower limbs except patch in upper thighs, sparing soles left palm and genitalia involving about fourty five percent of total body surface area. Margin of burnt area are erythematous and peeled off at places. Base is covered with unhealthy granulation tissue and greenish yellow foul smelling slough at forearms, thighs and legs. Singeing of hairs present at places".
As per the postmortem report of deceased Amit Ex.PW13/A, following external injuries were found on his body :-
"Infected antemortem epidermal to dermo-epidermal thermal burns present over whole of face, whole of both the upper limbs, whole of back of abdomen, whole of both lower limbs, accounting to about seventy percent of total body surface area. Red line of demarcation is present between burnt and unburnt areas. Singeing of scalp hair, eye brow, eye lashes and SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 38 of 47 axillary hair is present. Base is covered with unhealthy granulation tissue and greenish yellow foul smelling slough at places."
On the other hand, as per the MLC of accused himself, he received 15% thermal burns over B/L lower limbs and left hand.
Thus, if we compare the injuries of the accused and his father-in-law, it cannot be said by any stretch of imagination that his father-in-law received such injuries only in his attempt to save the wife of accused from the fire. It is apparent from the postmortem report of Ranglal that there were serious burn injuries not only on face, neck and limbs but also on the back of chest and even in genitalia area. If a person is trying to save another person set on fire, most likely the injuries will be on his hands/upper limbs and least likely on the backside of his body. Further, the injuries are not likely to be 45% of the total body surface area. Likewise, the injuries on the boy Amit were over whole of his face, whole of upper limbs, lower limbs, whole of back of abdomen accounting for 70% of total body surface area. It is not the case of the accused that even the boy was trying to save his mother. Even otherwise, the boy was barely of 12 years. Moreover, if the defence version is to be believed and the deceased Sharmila is assumed to have committed self immolation, it is too hard to believe that she would put her young son also on fire. Rather, it is beyond the imagination of the Court that any mother would commit such an act qua her own son. Rather, the extent of injuries on the son corresponds to indiscriminate sprinkling of petrol on all three injured by the accused and putting them on fire. As per the MLC of the accused, he did not suffer any dangerous injury and further his injuries were only on his upper limbs.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 39 of 47 However, such injuries are possible if a person is putting a burning matchstick to a highly inflammable substance i.e. petrol from close range. Thus, the nature and extent of injuries of injured as well as accused corroborate PW1's version. It may further be noted here that though accused has taken a defence u/s 313 CrPC that her wife self immolated herself, however, no such specific defence was ever put to PW1 throughout her cross examination.
8.3 The prosecution has proved the dying declaration of deceased Sharmila as well as deceased Rang Lal vide Ex.PW7/A and Ex.PW7/B. Not only SDM/PW7 has deposed about the dying declaration but even the IO/SI Rajeev has deposed about the same. In both of their statements, deceased Sharmila and Rang Lal categorically stated that they along with Amit were put on fire by pouring petrol and lightening the matchstick by the accused. The version narrated by both deceased is in consonance with the testimony of PW1. Moreover, the incident occurred in the morning of 17th July 2016 around 5:30 AM and the statements were recorded on the very same day. Therefore, there was not much delay in the recording of the statements so as to suspect any manipulation or extrapolation of facts. Even the accused has not disputed the circumstances leading upto the incident as narrated by the deceased persons and has disputed only the ultimate event i.e. the causing of fire. Ld. Counsel for accused has submitted that none of the injured were in a fit state of mind at the time of alleged statement and further the statement of Rang Lal was recorded through an interpreter and therefore, same cannot be relied upon. I have considered the said argument. As far as the fitness of deceased persons is concerned, prosecution has SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 40 of 47 proved the fitness certificate given by Dr. Alok on the letter of the IO Ex.PW12/A and Ex.PW12/C. Though the concerned doctor was not examined, however, PW12 Dr. Piyush has duly identified and proved the signatures of Dr. Alok. Nothing has come in his cross-examination to doubt his testimony in this regard. Further Dr. Piyush was again summoned and examined as PW23 to prove the handwriting/noting made by Dr. Alok. He has duly identified the notings of Dr. Alok on the aforesaid exhibits and was cross examined nil. As per the certificate/noting given by the Dr. Alok on Ex.PW12/A, patient Sharmila was conscious, oriented to time, place and person and was not under any sedative and was fit for statement. Similar certificate/noting was given for Rang Lal vide Ex.PW12/C. Even otherwise, it is not the case that the injured died within minutes or even hours of recording of their statements. Rather, they died after few days during their treatment. Thus, no doubt has appeared regarding the fitness of injured persons at the time of recording their statements. Moreover, it is not the case that the dying declaration was cryptic or was devoid of material particulars or was a one line statement. Rather, detailed narration has been given both by injured Sharmila and injured Rang Lal which indicates that such statement was given by a conscious and oriented person in fitness of mind. As far as the argument of Ld. Counsel regarding the interpretation of the statement of deceased Rang Lal is concerned, PW3 Biplab Sarkar has categorically deposed about the circumstances under which he was called for assistance of the police to examine Rang Lal. PW3 has deposed in detail as to what facts were told by the injured Rang Lal and as per said facts, it was the accused only who put the injured on fire. It is to be noted SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 41 of 47 that nothing has come on record and rather no argument has been made that PW3 was an interested witness or related to the family of any of the deceased. Ld. Defence Counsel has submitted that the cross-examination of PW3 shows that he is not a qualified translator and therefore, he cannot be believed. I have considered said argument. During his cross-examination PW3 has deposed that "I am tenth pass. I have studied in Delhi. I have not studied in any Bengali School. I do not possess any certificate of being qualified as a translator of Bangla Language to Hindi". However, it is to be noted that it is not the case that PW3 translated any written document from Bangla to Hindi. Rather, he orally asked questions in Bangla and then translated the same orally in Hindi to the SDM. There is no mandate in the Evidence Act or CrPC that the person translating a dying declaration shall be duly qualified in the given language of the victim. For the purpose of understanding the words spoken by a person, the listener needs to have workable knowledge of said language and the language of translation. Nothing has come in the cross-examination of PW3 to doubt that he has no workable knowledge of either of the languages. The main requirement for a translator is that the translator shall translate the version of witness verbatim. In this regard, PW3 has deposed that he immediately translated whatever was said by the injured to the SDM in the presence of SI Rajeev. Moreover, he himself has deposed on oath before the Court as to what was narrated by the injured to him. Accordingly, the Court is of the view that both dying declarations Ex.PW7/A and Ex.PW7/B have been duly proved. 8.4 Further, even PW21 SI Maharaj Singh has deposed that he reached at the spot on receiving wireless message about the fire incident SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 42 of 47 and found all three injured with burn injuries at the spot. He has categorically deposed that when he asked Sharmila that how the fire happened she answered that accused Kena had poured the petrol and salt on all the three injured namely Amit, Sharmila and Rang Lal and set them on fire. Thus, even PW21 has deposed about the dying declaration of deceased Sharmila. Moreover, there has been no substantial cross-examination of PW21 in this regard to suspect his testimony to such effect. 8.5 It may be noted that though PW8 Pushpa Devi has not seen the causing of fire herself but she has deposed that at about 05.00/05.30 am while she was sleeping she heard the noise of bachao bachao and came outside her house and reached near the house of accused Kenaram where she found the injured Sharmila and Rang Lal in burn condition. She has specifically deposed that people standing there told her that accused had put salt on his father in law while he was in burning condition. Apparently said part of her testimony appears hearsay, however, same is relevant as Res-gestae u/s 6 of Indian Evidence Act. Illustration (a) of the said section provides "A is accused of murder of B by beating him. Whatever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact". Thus, even the allegations of throwing of salt by accused made by the deceased persons in their dying declarations gets corroboration from the said facts. Moreover, even salt was found stuck on the wooden plank gate of the house and was seized vide seizure Ex.PW6/A. It can be seen from the site plan of the house that kitchen of the house was inside the house after the courtyard. Thus, the presence of salt on the wooden plank gate also corresponds to SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 43 of 47 throwing of salt by the accused as alleged by the victim in their dying declaration.
8.6 Ld. Counsel for accused has further argued that PW11 Shrikant Vishwas has deposed in his examination in chief itself that when he reached the spot he found Sharmila, Rang Lal with burn injuries. He has specifically deposed that when he asked from Sharmila as to what had happened, she told him that she had tried to put herself on fire and in order to save her, other family members had also sustained injuries. Ld. Counsel has submitted that said part of testimony of prosecution witness itself completely exonerates the accused from any criminal liability. I have considered the argument. However, said witness was cross examined by the Ld. Addl. PP himself and was treated hostile by the prosecution in this regard. Therefore, the testimony of said witness has to be read with caution. Secondly, there is overwhelming evidence to the contrary through testimony of PW1 and the written dying declarations of injured Sharmila and Rang Lal besides the oral dying declaration to PW21 SI Maharaj Singh by injured Sharmila. Thirdly, as discussed in the preceding paras the injuries on the body of deceased Rang Lal and Amit correspond to the case of prosecution instead the defence version/version stated by PW11. Therefore, the said part of the testimony of PW11 does not create any reasonable doubt in the case of prosecution.
8.7 Ld. Counsel for accused has further argued that as per prosecution, the accused has taken out the petrol from the scooty parked in the house, however, neither any pipe nor any apparatus was recovered from the spot using which the petrol could have been taken out from the scooty.
SC 2743/2016FIR No. 372/2016 State v. Kenaram Pages 44 of 47 Moreover, no witness has explained as to how the accused took out the petrol from the scooty. Accordingly, the necessary facts have not been proved by the prosecution. Ld. Addl. PP has countered the argument saying that no special apparatus is required for taking out petrol from the scooty or other two-wheelers and the in-built connecting pipe of Scooty Luna itself can be used to take out petrol from its tank. I have considered said arguments. Firstly, there is substance in the argument of Ld. Addl. PP that there is a connecting pipe from the tank to the engine in such type of mopeds, therefore, no special apparatus is required to take out petrol from its tank. Secondly, PW1 has categorically deposed that her father brought petrol from the TVS scooter and sprinkled the same on her mother, brother and nana. During her cross examination, no specific questions were put to her regarding the manner in which the petrol was taken out from the said scooter/scooty. Accordingly, in the given circumstances, no reasonable doubt has appeared regarding the fact that accused has taken out the petrol from the said scooty to use in the offence.
8.8 Thus, in view of aforesaid discussion, it stands established that it was not a case of self immolation as claimed by accused and rather it was a case of deliberate putting on fire by the accused himself. Now the next question is whether the accused is liable for the alleged offence. As per the post mortem report Ex.PW13/A, the cause of death of deceased Amit Mandal was septicemia shock as a result of ante mortem thermal flame burn injuries involving about seventy percent of total body surface area. As per the post mortem report Ex. AD1 of deceased Rang Lal the cause of death was due to septicemia shock as a result of ante mortem thermal flame SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 45 of 47 burn injuries involving about forty five percent of total body surface area. As per the post mortem report Ex.AD2 of deceased Sharmila, the cause of death the cause of death was due to septicemia shock as a result of ante mortem thermal flame burn injuries involving about forty five percent of total body surface area. The cause of death mentioned in the post mortem report corresponds to the findings in the post mortem report and also to the MLC of the injured. Thus, it stands established that all the three injured died due to the fire caused by the accused.
PW1 has deposed categorically that on refusal by her mother to give money for alcohol, her father i.e. accused started beating her mother and also threatened to burn them by petrol. Thereupon he brought the petrol from the TVS scooter, sprinkled it on the victims and then threw burning match sticks on them. Even the dying declarations of both deceased Sharmila and Rang Lal mention that accused quarreled with them and threatened that he shall not leave them alive and then proceeded to get the petrol and put them on fire. Accordingly, it is apparent from the words and actions of accused that his intention was to kill said victims. Accordingly, the ingredients of section 300 IPC Part I are satisfied in the given circumstances qua the deceased Sharmila and Rang Lal. Ld. Counsel for accused has also argued that accused had no motive whatsoever to kill his own son Amit. I have considered said argument also. However, the act of putting someone on fire by sprinkling petrol on them is an act which is imbued with the intention to cause death of such person. Moreover, even if accused did not intend to kill his own son, his indiscriminate act of sprinkling petrol over his family members (including his son) and then SC 2743/2016 FIR No. 372/2016 State v. Kenaram Pages 46 of 47 throwing a burning match stick towards them was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and the accused committed such act without any excuse. Accordingly, the ingredients of section 300 IPC Part IV are still satisfied even qua the third victim.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, accused Kenaram is convicted for the offence u/s 302 IPC charged against him.
(Announced in the Open Court on SACHIN Digitally signed by
SACHIN SANGWAN
6th February, 2024) SANGWAN Date: 2024.02.06
16:01:03 +0530
(Sachin Sangwan)
Additional Sessions Judge (FTC-01): South
East: Saket District Court: New Delhi.
SC 2743/2016
FIR No. 372/2016 State v. Kenaram Pages 47 of 47