Delhi District Court
State vs 1. Pawan Kumar Sobti S/O. Kailash Nath on 19 May, 2010
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS
JUDGE; (EAST) FTC : KARKADOOMA COURT: DELHI.
SESSIONS CASE No. 71/08
FIR No. 279/01
U/S: 302/498A/34 IPC
P.S Gandhi Nagar
State Versus 1. Pawan Kumar Sobti S/o. Kailash Nath
2. Sunil Kumar Sobti S/o. Kailash Nath
3. Narender Kumar Sobti S/o. Kailash Nath
4. Gulshan Kumar Sobti S/o. Kailash Nath
5. Kailash Nath Sobti S/o. Late Sh. Hardayal.
6. Smt. Pushpa W/o. Narender Sobti
7. Smt. Tanu W/o. Sunil Kumar Sobti
8. Smt. Komal Sobti W/o. Gulshan Kumar Sobti
All R/o. H. No. IX, 6268, Mukherji Gali, Gandhi
Nagar, Delhi.
DATE OF INSTITUTION : 29.4.2002
JUDGEMENT RESERVED ON : 05.05.2010
JUDGEMENT DELIVERED ON : 17.05.2010
JUDGMENT
1. The case was for the first time reported to the police on 20.11.01 vide DD No. 24A. The information was received at 23.05 a.m regarding a quarrel at house No. 6268, Mukherjee Gali, Gandhi Nagar. This DD was marked to PW-20 SI G.S. Sharma, IO of this FIR No. 279/01 1 of 38 case. He alongwith PW-8 Ct. Omkar Singh reached at the spot and came to know one lady with burn injuries had already been taken to hospital by PCR van. Leaving PW-8 at the spot, IO reached at JPN Hospital and collected MLC of injured Monika. Injured was in Burn Ward and she told IO that her husband had burnt her and she was married about 3 years ago. IO informed SHO Gandhi Nagar and area SDM on phone about the incident. Doctor declared Monika fit to make statement. At about 1 a.m he interrogated Monika. Thereafter IO reached at the spot and called crime team and got the spot photographed. One bottle of kerosene oil and match box was lying in the room of the house, these articles were put in a pulanda and after sealing were taken into possession. IO leaving PW8 at the spot again went to JPN Hospital. There Area SDM PW-11 Sh. S. C. Tyagi met him at about 4 a.m. At about 4.30 a.m doctor on duty declared Monika to be fit to make statement, SDM recorded statement of Monika in his handwriting in PW-20 IO's absence. IO alongwith SDM reached at the spot. On the directions of SDM parents of Monika were called. On 24.11.01 case was registered on the directions of SDM. In her statement recorded by SDM, Monika alleged that her husband in drunk condition started beating her and demanded divorce from her. Thereafter her husband called all his brothers. His brothers, their wives gave severe beatings to her. Her father-in-law also gave beatings to her. She was made to lie on the floor. Her husband put kerosene oil upon her. Her father-in-law gave a match stick to her husband Pawan. After lighting the stick her husband FIR No. 279/01 2 of 38 Pawan threw it upon her. After opening the door she ran outside and was saved by her neighbourers.
2. On 24.11.01 IO arrested accused Pawan Kumar, Sunil Kumar, Gulshan Kumar and Narender Kumar u/s. 307/498A/34 IPC. IO recorded statement of Monika and her parents. On 27.11.01 Monika died and IO added section 302 in the FIR. On 12.12.01 accused Pushpa and Tanu were arrested. On 16.1.02 accused Kailash Nath and Komal were arrested. After investigation police filed chargesheet against all the accused persons u/s. 302/498A/34 IPC.
3. Charge under section 498A/302/34 IPC was given to accused Pawan Kumar Sobti to which he pleaded not guilty and claimed trial. Charge under section 302/34 IPC was given to accused Sunil Kumar Sobti, Narender Kumar Sobti, Gulshan Kumar Sobti, Kailash Nath Sobti, Pushpa, Tanu and Komal to which they pleaded not guilty and claimed trial.
4. To prove its case prosecution has examined 24 witnesses. PW1 Neelam Kapoor is the mother of deceased Monika. PW-2 Madan Lal Khanna is father of accused Tanu. He proved seizure memo of accused Pushpa Ex.PW2/1, personal search memo of accused Tanu Ex.PW2/2 and their arrest memos Ex,.PW2/3 and PW2/4. PW3 Bhim Singh Kapoor is the father of deceased Monika, he proved his statement Ex.PW3/A recorded by SDM on 23.11.01, his statement Ex.PW3/2 regarding identification of the dead body, receipt of receiving dead body Ex.PW3/3, seizure memo of the FIR No. 279/01 3 of 38 invitation card of marriage of his daughter Ex.PW3/4, the marriage card Ex.PW3/5 and PW3/6, list of dowry articles Ex.PW3/7. PW4 Dr. Bhim Singh, Maulana Azad Medical College proved postmortem report Ex.PW4/A. PW5 Sunil Kapoor is the brother of deceased.
5. PW-6 Ct. Naresh Kumar being photographer of the crime team proved photographs Ex.PW6/1 to PW6/5 and negatives as Ex.PW6/6 to PW6/10. PW-7 WASI Sunita accompanied IO on 12.12.01 and arrested accused Pushpa and Tanu Sobti. PW-8 Ct. Omkar Singh accompanied IO on the intervening night of 20/21.11.01 and reached at the spot. He proved seizure memo of one plastic bottle and one match box recovered from the room of Monika Sobti and Pawan Sobti as Ex.PW8/A. PW-9 Danveer Singh, Record Clerk produced the case sheet of Monika. PW-10A Ct. Sunil Kumar on 27.11.01 went to mortuary and guarded the dead body there. PW-10 Dr. Puneet Setia was posted as Junior Resident on 21.11.01 in Department of Burns, LNJP Hospital and he proved MLC Ex.PW10/A of Monika. PW-11A Lady Ct. Kavita accompanied IO on 16.11.01 and arrested accused Komal Sobti. She proved her personal search memo and arrest memo as Ex.PW11/A and PW11/B respectively. PW-11 Sh. S.C. Tyagi was working as SDM, Gandhi Nagar on 21.11.01, he proved endorsement by doctor on MLC as Ex. PW11/A, statement of Monika Ex.PW11/B, endorsement on the statement of Bhim Sen Ex.PW11/C and his endorsement Ex.PW11/D,directing SHO to lodge FIR, his request for postmortem of Monika Ex.PW11/E, form No. 25.35 Ex.PW11/F. FIR No. 279/01 4 of 38
6. PW-12 HC Bijender Singh was posted in PCR on 20.11.01 and on receiving information he reached at the spot and took Monika to JPN Hospital. PW-13 HC Rajender Singh was duty officer, P.S. Gandhi Nagar. He recorded FIR Ex.PW13/A. PW-14 HC Naval Kishore recorded DD No. 24A on 20.11.01. PW-15 SI Mahesh Kumar, Draftsman proved the scaled site plan Ex.PW15/A. PW-16 Inspector Dharam Pal Sharma was SHO P.S. Gandhi Nagar and on 27.11.01 investigation of this case was taken over by him and he did some investigation. PW-17 Sh. D.N. Malik is father of accused Komal Sobti, he is witness to the personal search and arrest memo of accused Kailash Nath as Ex.PW17/A and PW17/B. PW-18 Dr. Phanikiran was partially examined in this case and was not called subsequently. PW-19 Dr. P.S. Bhandari, proved MLC death summary of deceased Monika Ex.PW19/A.
7. PW-20 SI G.S. Sharma is IO of the case, he prepared site plan Ex.PW20/A, arrest memos of accused Pawan Kumar, Sunil Kumar, Gulshan Kumar and Narender as Ex.PW20/B to PW20/E and their personal search memos Ex.PW20/F to PW20/H and PW20/J, seizure memo of the photographs Ex.PW20/L-1 to PW20/L-6 vide memo Ex.PW20/K. PW-21 Dr. Ashish Rai, Specialist Burns, Lok Nayak Hospital proved admission summary Ex.PW21/A in the handwriting of Dr. Raman Deep Singh as he has left the service. He also proved Burn Assessment Record prepared by Dr. Simte as Ex.PW21/B. PW-22 Dr. Madhulika Sharma, Asstt. Director, FSL, Rohini tendered her FSL report No. 2002/C-787 dated 20.5.04. FIR No. 279/01 5 of 38
8. On the basis of incriminating evidence against the accused persons, their statements under section 313 Cr.PC were recorded giving them an opportunity to explain evidence against them. All the accused denied the entire prosecution evidence and took defence of their false implication in this case.
9. Accused led evidence in defence and examined four witnesses. DW1 Smt. Pinki Kapoor is the neighbourer of the accused persons, DW-2 Smt. Daya Jain is also their neighbourer, DW3 Sh. Danbir Singh, Record Clerk, LNJP Hospital produced the casualty register of dated 21.11.01 as Ex.DW3/A. DW-4 Kailash Nath is one of the accused and he has examined himself after seeking permission of the Court. He filed photocopy of his casualty card Ex.DW4/A.
10. Heard arguments of Sh. R. K. Mehta, ld. APP for the State , Sh. P.L. Behal, Ld Defence counsel for accused Pawan, Sh. I.L. Kapoor, Ld. Defence counsel for accused Kailash Nath and Sh. S.K. Ahluwalia, Ld. Defence counsel for remaining six accused persons. Perused the case. The Defence counsels also filed written submissions and judgments relied upon by them.
11. PW1 Smt. Neelam Kapoor is the mother of the deceased Monika. She deposed that marriage of her daughter was solemnised on 16.2.97. At the time of marriage they were told that Pawan was running a shop. Accused Sunil was got married after 7-8 months of marriage of her daughter. After marriage of Sunil family members of Pawan started ill-treating Monika. The shop was handed over to FIR No. 279/01 6 of 38 Sunil and Pawan became jobless. Thereafter Pawan asked Monika to bring 2-3 lacs from her parents as he wanted to start new business. Her husband was not in a position to fulfill the demand of Pawan. Thereafter Pawan started coming home drunk and started beating Monika. Pawan also used to harass and illtreat her. Monika complained about the conduct of Pawan to her father-in-law but her father-in-law supported Pawan and asked Monika to bring money from her parents as per demand of Pawan. About 2 - 2 ½ years back all the accused persons, Monika's sister-in-law Shashi and her husband Ashok came to their house to beat them and to pressurise them to fulfill their demand. They telephoned the police at 100 number. Accused persons tendered apology and assured that they will keep Monika well. Again accused persons started maltreating Monika after 10-15 days. They also used to beat children of Monika. About one or two months prior to her death Monika with her husband, children, her sister-in-law Shashi and her husband Ashok went to Vaishno Devi. Their a small quarrel took place between Monika and Pawan on account of milk. After coming back from Vaishno Devi, Pawan told Monika that he did not want to keep her and want to give her divorce. Thereafter Pawan did not come back home for 25 days. Monika asked Pawan to give in writing and only after that she will go to her parents house. When Pawan did not come back to his house, Monika asked them to intervene and get the matter settled. Pawan was living with his sister and they called him at this sister's house. All the accused persons and sister of Pawan came to their house on the FIR No. 279/01 7 of 38 next day of Dussehra and a meeting was held. Accused persons agreed to take Monika back. Accused Pawan told that he will take Monika after one week but he did not come to take her back. In the meantime festival of Karva Chauth came and they left Monika at her matrimonial house at the eve of Karva Chauth. Thereafter on Diwali day they took sweets to the house of Monika and asked Pawan to sent Monika to their house on Bhaiya Dooj. Monika did not come to their house on that day, Sunil and Sandeep went to the house of Monika for celebration of Bhaiya Dooj. After 2-3 days i.e. 20.11.01 Monika was given beating by all the accused persons, as told by her in the hospital. Monika also told her that Pawan poured kerosene oil on her and her father-in-law Kailash Nath gave him match stick and Pawan put her on fire. At 11.30 p.m Pawan telephoned them informing that Monika was slightly burnt and they should reach at Irwin Hospital. They reached Irwin hospital and find Monika seriously burnt. On 27.11.01 at 4.45 a.m Monika died. No one from the accused persons or family members of Monika's in-laws came to hospital to enquire about her health. SDM had come to hospital and has recorded the statement of Monika, Bhim Singh Kapoor, Sunil and her.
12. Ld. Defence counsel Sh. S.K. Ahluwalia for accused Sunil Kumar Sobti, Narender Kumar Sobti, Gulshan Kumar Sobti, Smt. Pushpa, Smt. Tanu and Smt. Komal Sobit filed written submissions and relied upon following judgments:-
FIR No. 279/01 8 of 38
"2010 Vol. I JCC 362, Sharda Vs. State of Rajasthan, 2009 Vol. IV JCC 2504, Ram Kalan Vs. State, 2009 Vol. IV JCC Bhawar Pal Singh Vs. The State of NCT, 2010 Vol. II JCC 972, Hans Raj Sharma & others Vs. The State of NCT, RCR 2004 Vol. III Crl. SC, 563, 1996 JCC, 584 Ram Singh V s. The State, DLT(41)1990, 542, Amrit Kaur Vs. The State, 1991 Crl. Law Journal,310 Edward John & Ors Vs. State of Delhi Administration, RCR 2005, Vol. 1, 16 State of Punjab Vs. Praveen Kumar, CCR 2002, Vol. I, 193(SC) Muneer Khan & ors Vs. State of M.P, Hon'ble Supreme Court in case Niranjan Prasad & ors Vs. State of M.P, reported in 1996, Criminal Law Journal, Page 1987, 2009 IVJCC 2564(SC) Mani Ben Vs. State of Gujarat, Hon'ble High Court in Ganesa Vs. State reported in 1997(II) Crimes 397 and Ishwar Singh Vs. State of Haryana reported in Criminal Report 1992(II),1.
13. Sh P. L. Behl, Ld. Defence counsel for accused Pawan Kumar Sobti filed written submissions and relied upon following judgments:-
1.2005(1)RCR Page 146 Supreme Court.
2.1989(2)RCR 350( DHC) 3.1996 JCC 584( DHC)
4. 2004(3) RCR 234
14. Sh. I.L. Kapoor, Ld. Defence counsel for accused Kailash Nath filed written submissions and relied upon following judgments:-
1.2009 (4) JCC Ram Kalan Vs. State 2.2009(1) JCC Delhi High Court referred to 2009(4)2504.
3.2009(4) JCC 2564.
4. 2009(4) JCC 2593 Delhi Court
5. 2009(1) JCC 2504, Delhi Ram Karan Vs. State FIR No. 279/01 9 of 38 6.2009(1) JCC 491, Delhi Jatinder Kumar Vs. State 7.2010(1) JCC 164, Delhi Rajinder Singh Vs. State 8.2009(4)JCC 2593, Delhi(DB) Bhanwar Singh Vs. State 9.2009(4) JCC SC 2564 Maniben Vs. State of Gujarat 10.2001(3)RCR Crl. SC Lamxi Vs. Om Prakash & Ors 11.2002 RCR Crl. SC 458 Muneer Khan Vs. State of M.P 12.2001(2)RCR Crl. SC 416, Uka Ram Vs. State of Raj. 13.2004(3) RCR Crl. Karnataka High Court(DB) Shafi Ahmed Vs. Sate of Karnataka 14.1996(1)Crimes 192 High Cort of Delhi Ten Singh Vs. State
15. Md. Ankoos Vs. PP High Court of A.P SC Crl. Appeal No. 120/08
15. PW-3 Bhim Sen Kapoor is the father of the deceased. He also deposed similar facts as deposed by PW1 Smt Neelam Kapoor. He deposed that on 20.11.01 at about 11.45 PM, he received a telephone call from hospital that his daughter Monika is burnt and admitted in JPN hospital. He along with his wife and son reached there. Her daughter was conscious at that time and he inquired from her about injuries. She replied that her in-laws had beaten her severally and they took her in a room, Pawan Sobti poured kerosene oil on her body. Accused Kailash Nath had handed over a match box to Pawan Sobti and accused Pawan Sobti set her on fire. Her daughter further told him that she raised alarm and also ran out from the room. PW-5 Sunil Kapoor is the brother of the deceased. He also deposed almost similar facts as deposed by PW1 and PW-3 regarding incident which took place on 20.11.01. Regarding burning of the FIR No. 279/01 10 of 38 deceased, he added that accused Kailash Nath gave a match box to accused Pawan Sobti and asked him " Aaj Kar De Kaam Tamam".
16. IO PW-20 SI G.S. Sharma deposed that on receiving DD No. 24A at about 11.00 PM, he reached at the spot. There he came to know that lady injured by burning had already been taken to hospital by PCR. He left Ct. Omkar at the spot and reached JPN hospital and collected MLC of injured Monika. There Monika told him that her husband had burnt her and she was married about three years ago. He informed SHO, PS Gandhi Nagar and area SDM on phone about the incident. Before making inquiry from the injured, doctor on duty had declared Monika to be fit to make statement. He came back at the spot and called crime team and photographer. He inspected the site. One bottle of kerosene oil and match box was lying in the room of the house which was seized by him. Again leaving Ct. Omkar at the spot, he went to JPN hospital and there area SDM met him at about 4 AM. At about 4.30 AM, doctor on duty again declared Monika to be fit to make statement and SDM recorded statement of Monika in his handwriting. He along with SDM came at the spot. On 24.11.01,case was registered on the directions of SDM. IO has further added that inadvertently in his earlier statement he has stated that SDM met him at 4.00 AM on 21.11.01 but in fact it was 1.00 PM on 21.11.01 when SDM reached at the spot.
17. Now let us see what PW11 Sh. S. C. Tyagi, District Employment Officer( East District) who was working as SDM has to FIR No. 279/01 11 of 38 submit about this case. He testified that in the morning of 21.11.01, he received an information that one lady Monika Sobti has admitted in LNJP hospital with alleged history of being burnt by her in laws. He went to LNJP hospital in the Burn Ward and met victim Monika and inquired about the circumstances as to how she sustained burn injuries. Monika was declared fit by the doctor on duty. At about 1.00 PM, he recorded her statement. He found her in fit mental condition as he had put question to her that whether she can reply to his question and she said that she can. He recorded her statement in question answer form. After recording statement, Monika put her signatures on three places and also admitted that she had given this statement voluntarily without any pressure. From the hospital, he went to the spot and came to know that police had already seized case property. Room was found to be closed and well guarded. From the spot, he came to his office and informed SHO, PS Gandhi Nagar that parents of Monika be called in his office. On 23.11.01 parents of Monika came to his office and he recorded statement of Bhim Sen Kapoor. Neelam Kapoor, mother of the deceased, endorsed the statement of her husband as correct. On 24.11.01, in view of the statement of Monika, her father and mother, he directed the SHO to lodge FIR against persons named in the statement. On 27.11.01, he was informed by the police that Monika has expired. He went to the hospital and requested for her postmortem. After postmortem dead body of Monika was handed over to Bhim Sen Kapoor,
18. Ex. PW4/A is the postmortem report prepared by Dr. Bhim FIR No. 279/01 12 of 38 Singh. External examination of the body of the deceased Monika disclosed following external injuries:-
Infected superficial two deep burns over the front and back, both lower limbs, touchy burns present over the abdomen and back of both form arms, except both ankles buttocks and genetic area. The skin was pilled of at places with crush formation at places heeling at margins. Pus present over the blunt area and having pus smelling over. Approximate area of burns was 36% total body surface area.
As per the opinion, death is due to septicemia as a result of infected burn injuries . Burns were ante mortem and could be caused by flame due to fire.
19. The entire case of the prosecution is based upon Dying Declaration made by prosecutrix. In Sasi Kumar Vs The State of Tamil Nadu 2009,(7) SCALE 444, it is observed that once a dying declaration is of such nature as to inspire full confidence of the Court in its correctness, the same can be the basis of the conviction. Though a dying declaration is entitled to great weight, the appellant has no power of cross examination which is normally essential for eliciting truth. The Court must satisfy itself that not only was the deceased in a fit state of mind after a clear opportunity to observe and identify the assailant, the declaration should be true and voluntary and not a figment of imagination of the deceased. The dying declaration is really a piece of evidence and has to be considered along with other FIR No. 279/01 13 of 38 relevant and admissible evidence brought on record.
20. All the ld. Defence counsels for accused has assailed dying declaration of deceased Monika Ex.PW11/B recorded by PW11 from all possible angles. Ld. Defence counsels have contended that victim has made two dying declarations, first at the time of her admission in hospital and second Ex. PW11/B recorded by PW11 the area SDM. It is stated that both the dying declarations are inconsistent and contradictory and deserves to be discarded. Ld. Counsels further contended that statement of PW11 is contradictory regarding time when he recorded it. As per PW11 he recorded it at 1.30 PM on 21.11.01 but there is no endorsement regarding Monika "
fit to make statement" which creates strong doubt on its authenticity. It is further stated that deceased was given sedative injections before her dying declaration was recorded, due to this reason Ex. PW11/B does not inspire confidence. It is further contended that as per case sheet, all the four limbs including both hands of the deceased were bandaged but very strangely SDM has obtained the signatures of Monika on Ex.PW11/B which further creates doubt on its genuineness. It is further urged that as per PW-1, police officials were also present alongwith SDM PW11 when he recorded statement of the deceased.
21. Whether statement Ex. PW11/B is trustworthy and inspire confidence of the courts before discussing this aspect, in view of the various objections raised by defence, it has to be first seen if it was FIR No. 279/01 14 of 38 recorded by PW11 in a fair manner.
22. What was the exact time of recording dying declaration Ex.PW11/B is a very important fact to be seen. There appears contradiction between statement of PW 11 and statement of IO PW20 regarding time when dying declaration Ex. PW11/B was recorded. Ex. PW10/A is the endorsement of Dr. Punit Setia on the MLC of Monika that " Patient is fit for statement". This endorsement was made at 4.30 PM on 21.11.01. Ex.PW11/A is the similar endorsement saying "Patient fit for statement," time is 1.00 AM on 21.11.01. MLC bears history as " Burn by her husband as per patient own words". As per PW11 SDM after patient was declared fit for statement by doctor on duty vide Ex.PW11/A at 1.00 AM, he proceeded to record her statement in question answer form. After recording her statement, she put her signatures on three places. During cross PW11 has stated that he reached at JPN hospital at 12.30/1.00 PM and started recording the statement of Monika within 5 minutes of his reaching there. He took 20-25 minutes in recording her statement. He left JPN hospital after recording statement by 1.30 PM. As per PW-20, he informed SHO PS Gandhi Nagar and area SDM on phone about the incident after reaching at the spot and interrogated Bhim Sen Kapoor. Area SDM met him there at 4.00 AM, doctor on duty declared Monika to be fit to make statement and SDM recorded statement of Monika in his handwriting in his (PW20) absence. During his statement, PW20 corrected himself by saying that in fact SDM met him at 1.00 PM on 21.11.01. During his cross IO PW20 has stated that SDM had reached FIR No. 279/01 15 of 38 in the hospital on 21.11.01 between 1.00 PM to 4.00 PM. He was present at Casualty when SDM came to the hospital and SDM met him there. The parents of the deceased were not with the deceased in the hospital when SDM came to the hospital.
23. Now let us see what PW1, PW3 and PW-5 have to say about reaching of the SDM in the hospital and recording dying declaration Ex. PW11/B. As per PW1, SDM came to the hospital and recorded their statement. During cross of PW1, she stated that she and her husband had given statement to the SDM for the first time after 3-4 days of the incident. She cannot tell time when SDM reached at the hospital and she cannot tell period of his stay in the hospital. PW-3 Bhim Sen Kapoor has stated that on the next day, SDM and SHO, PS Gandhi Nagar came in the hospital, SDM had interrogated his daughter and recorded her statement. PW-5 Sunil Kapoor has stated during cross that SDM had come to the hospital the next following date but he cannot tell the time of his arrival.
24. As per PW-3 and PW-5, SDM had come to the hospital next day when he has recorded dying declaration Ex.PW11/B. Both these witnesses have failed to give exact time when SDM had recorded dying declaration. As per SDM PW11, he recorded dying declaration at 1.00 AM on 21.11.01 and during his cross he gave time of recording dying declaration as 12.30 -1.00 PM. As per IO PW-20, SDM met him at about 1.00 PM on 21.11.01 in the hospital. It appears that mentioning of time of recording dying declaration as FIR No. 279/01 16 of 38 1.00 AM in examination in chief of SDM PW11 may be slip of tongue( by mentioning p.m as a.m) or clerical mistake. From the statement of various witnesses it stands established that dying declaration Ex.PW11/B was recorded in the afternoon of 21.11.01. As per PW11, before he recorded dying declaration of Monika she was declared fit for statement by doctor on duty. As already discussed, there is endorsement of 1.00 AM and 4.30 PM dated 21.11.01 on the MLC that patient is fit for statement. Doctor who had given this endorsement has not been examined by prosecution. From the statement of PW11, PW20 and various other circumstances it appears that dying declaration Ex.PW11/B was recorded by PW11 after 4.30 PM on 21.11.01 and due to lapse of time both PW11 and PW20 are unable to give the correct time of recording dying declaration. To me it appears to be a minor contradiction which often happens due to fading memory and lapse of time. By no stretch of imagination due to this contradiction regarding time of recording, dying declaration can be called as forged and manipulated. It is minor contradiction which do not go to the root of the matter. Law is settled that over much importance cannot be attached to the minor discrepancies. The reliance is placed upon Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, (1983) 3 SCC 217 wherein it was held as under:
"5. .....Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an FIR No. 279/01 17 of 38 incident. It is not as if a video tape is replayed on the mental screen.
(5) In regard to exact time of an incident,or the time duration of an occurrence, usually,people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness,though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts,get confused regarding sequence of events,or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear looking foolish of being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important " probabilities factor" echoes in favour of the version narrated by the witnesses".
25. Ld. Defence counsels on behalf of the accused has further assailed dying declaration Ex.PW11/B contending that as per admission summary Ex.PW21/A on 21.11.01 Monika was given injection of Phenargan and Fortwin which are pain killers as well as sedatives. When dying declaration Ex.PW11/B was recorded she was under the influence of sedatives and was not having normal alertness so no credence may be given to this statement. In support of his FIR No. 279/01 18 of 38 contention, ld defence counsel has relied upon Smt. Amrik Kaur( Supra) wherein dying declaration was discarded by the Hon'ble High Court on account of giving sedatives before recording of statement. As per the case sheet, between 6.00 AM to 1.00 PM, Monika was given injections of Phenargan and Fortwin. These injections bring some sedatives effect on the patients but as already observed that dying declaration Ex.PW11/B was recorded after 4.30 PM on 21.11.01 and Ex. PW11/A is the endorsement that patient is fit for statement. As per the case sheet, these injections were given between 6.00 AM to 1.00 PM, exact time of giving these injections is not found mentioned specifically. By the time dying declaration Ex. PW11/B was recorded after 4.30 PM the effect of these injections must have diminished. Moreover, there is specific endorsement Ex. PW11/A by Dr. Punit Setia that patient is fit for statement. Therefore this contention raised by Ld. Defence counsel is not tenable.
26. Dying declaration Ex.PW11/B has been further assailed by Ld defence counsels contending that as per case sheet, all the four limbs including both the hands of Monika were bandaged and she was not in a position to sign dying declaration Ex.PW11/B but as per SDM PW11, Monika had signed it on three places. It is stated that this shows that dying declaration was managed by the police in connivance with SDM PW11. There appears endorsement in the case sheet " Bandage has been done on all the four limbs." There is no date on the page of this case sheet. Case sheet Ex. PW21/A is in the reverse order i.e. case sheet pertaining to first date is in the end FIR No. 279/01 19 of 38 and of the last date is in the front. This page where it is mentioned that bandage has been done is placed after the page of 26.11.01 which proves that on 21.11.01 when dying declaration Ex.PW11/B was recorded hands of the Monika were not under bandage. This contention again raised by ld. Defence counsel is also not found tenable.
27. It is further objected by ld defence counsel that on Ex. PW11/B, SDM PW11 has not mentioned time of its recording and signatures of Monika are not attested which creates grave doubt on its authenticity. Merely on the ground that time beneath her signatures is not mentioned by PW11 and he has not certified the signatures of Monika, dying declaration otherwise recorded after complying with all the necessary requirements and formalities cannot be disbelieved. I find no reason to disbelieve the statement of PW11 that he recorded dying declaration Ex. PW11/B in a desired manner after completing the necessary procedural formalities.
28. Dying declaration Ex.PW11/B is further assailed on the ground that police officials i.e. IO PW20 and family members of deceased Monika were present with SDM PW11 when it was recorded. PW11 who has written this dying declaration during his cross specifically stated that he did not find any police official of PS Gandhi Nagar or any other police officials near Monika. He did not see parents of Monika or any of the relatives in the hospital. As per PW-11 he inquired from the counter about the concerned ward of LNJP hospital and confirmed about the patients from staff of the FIR No. 279/01 20 of 38 hospital and then recorded her statement. PW11 has further stated during his cross that he had introduced himself to Monika and he had satisfied himself before recording her statement as per opinion given by the doctor concerned. IO PW-20 has also stated that SDM recorded statement of Monika in his (PW11) handwriting in his absence. During his cross, PW-20 has stated that parents of the deceased were not with her in the hospital when SDM PW11 came to the hospital. PW1 Smt. Neelam Kapoor who is mother of Monika during her cross has stated that police officials were also present along with SDM when statement of Monika was recorded. Identifying the said police official, PW1 has stated that the same police official who was present inside the room along with SDM recorded their statements. Whether PW-20 was present with SDM PW11 when dying declaration was recorded or not is a fact which does not affect the credibility of dying declaration Ex. PW11/B which is otherwise found to be recorded in a proper and desired manner. Statement of PW1 being in contradiction to PW11 and PW-20 does not create any doubt regarding following of fair procedure by SDM PW11 in recording the said dying declaration. Moreover, as already discussed, some contradictions in the statements of witnesses are bound to come with the lapse of time and fading memory. The reliance is placed upon Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat ( Supra).
29. In view of the aforesaid discussions it stands clearly established that dying declaration Ex.PW11/B was recorded by PW11 after taking endorsement from doctor that patient is fit for statement. FIR No. 279/01 21 of 38 Various objections raised by defence creating doubt and suspicion on it are not found tenable and are rejected. Now it has to be appreciated whether in view of other circumstances of this case it will be safe to rely upon this statement and announce verdict accordingly.
30. Ld. Defence counsels has propounded theory of two dying declarations. First dying declaration as per them is MLC of Monika prepared by Dr. S. Pari Raj containing history " Burnt by her husband as per patient own words". It is stated that this statement of victim Monika made to doctor is in contradiction to her statement made to SDM in the statement 11/B. It is further contended that since Dr S. Pari Raj has not been examined, MLC and accordingly first dying declaration remains unproved. Prosecution has failed to examine either Dr. S. Pari Raj author of this MLC or any other doctor to prove his handwriting and signatures on it. Law is settled that since MLC report is prepared by medical officer, a public servant in discharge of his duty, it is a public document and its content will be admissible in the evidence. Reliance is placed upon Dilip Kumar Vs. State 1995 Criminal Law Journal 1742. No doubt Dr. S. Pari Raj could have thrown better light regarding history told to him by Monika but he being not produced as witness, history mentioned on MLC has to be accepted as true. It is specifically mentioned that history was told by the patient in her own words. Time of this MLC is 11.50 PM on 20.11.01. Time gap between the alleged incident and this MLC is very proximate. As matter of practice, in medico legal cases, the history of the patient is immediately noted by the doctor when FIR No. 279/01 22 of 38 patient reaches hospital. In my opinion, it is most authentic piece of evidence which has come directly from the mouth of the victim Monika. I have no hesitation to hold that history mentioned on MLC 102111 can be taken as first dying declaration.
31. In statement Ex. PW11/B, Monika has stated that her husband Pawan Kumar came to her house in inebriated condition, started beating her and demanded divorce from her. She asked him to give in writing and on this he started beating her more severally. Thereafter he called his all brothers and their wives and all gave her beating . Her father in law also beat her. She was thrown on the floor. Her husband put oil kept in a bottle on her. Her father in law gave a match stick to Pawan. Pawn lit match stick and threw it upon her. Fire caught her clothes. After opening latch of the door, she ran outside and she was saved by neighbourers. A blanket was put on her and water was also thrown on her. Her legs got burnt. Below belly button her stomach and her hands also got burnt.
32. IO PW 20 is the other person who had occasion to interrogate Monika at Burn Ward of the hospital. As per him, he interrogated Monika, after endorsement Ex. PW11/A of her fit to make statement, at about 1.00 AM; Monika had not specified roles of other accused persons except that of her husband; He had examined neighbourers who were living in the adjacent houses but did not record their statement under section 161 Cr. P.C; He talked with Monika for about 15-20 minutes. PW20 has further stated that parents of the deceased met him first time in the hospital and they FIR No. 279/01 23 of 38 had not made any complaint against accused persons. This statement of PW 20 also supports first dying declaration and partially supports second dying declaration Ex. PW11/B vis a vis role played by accused Pawan.
33. Defence taken by the accused persons is that deceased Monika was of quarrelsome nature and on the date of incident she herself poured kerosene oil on her clothes and received burn injuries. It is also stated on behalf of the accused that except accused Kailash Nath and Pawan Sobti who are father in law and husband of the deceased, all the other accused are brothers and sister in laws of husband of the deceased and were residing in separate portions in the same premises and were having separate kitchens. It is stated that they were also having separate business and they had no motive to commit murder of Monika. To prove his defence, accused had examined three witnesses and accused Kailash Nath had examined himself as DW-4 after seeking permission of the court under section 315 Cr. P.C. DW1 Smt. Pinki Kapoor is in the immediate neighbour of the accused persons and she was having visiting terms with them. As per her, Kailash Nath used to live in a separate room at the first floor and all the accused persons were living in separate units in the same building. All the four brothers were having their separate kitchens and independent separate businesses. Regarding the incident she stated that at 9.30 PM she heard noise and came out of her house and saw Monika in a burnt condition, Kailash Nath was trying to extinguish fire and accused Pawan came running and FIR No. 279/01 24 of 38 brought a blanket from the house and put it on Monika to extinguish fire. Monika would always quarrel with her husband and wanted to live in a separate abode and on refusal of Pawan she was threatening that she will end her life. During cross, DW1 stated that she was having visiting terms with the accused and used to visit their house daily. She used to spend few time with Monika whenever she visited their house. House is constructed in 100 sq. yards and there are four kitchens constructed in the said house. DW1 further stated that from his room on the first floors he saw Monika from the roof of her house. when Monika was being put in a PCR. She came to know about a quarrel between Pawan and Monika from the family members of accused Pawan.
34. DW-2 Smt. Daya Jain used to live in the house opposite to the house of the accused persons. As per her Monika was of hot temperament and she always insisted for separate residence and separate business of her husband. About 2-3 months prior to occurrence Monika had gone to her parental home because she was of quarrelsome and obstinate nature. Regarding happenings on 20.11.01, she has deposed that at 9.30 PM she heard sudden noise and came out of her house. As noise was coming from the house of accused Pawan she went there. On reaching there she noticed that there was fire on the salwar of Monika in the lower portion. Kailash Nath came on the first floor and tried to extinguish fire and got his hands burnt. Pawan went up stairs and brought a blanket and put it on Monika. Monika was crying and told her " Aunty ji mujhe bacha lijiye , FIR No. 279/01 25 of 38 mujhse galti ho gayi, gusse main khud ko aag laga li, mere bachho ka khayal rakhana. Maine sasural walo ko darane ke liye aisa kiya tha". On earlier occasions Monika has threatened accused persons that she will commit something to herself and would implicate the entire family in a false case. During cross, DW-2 has stated that she was having good terms with Monika and she used to tell her that she wants to live separately. She saw Monika inside her room and Kailash Nath was trying to extinguish fire with his hands.
35. Whether Monika with clothes on fire rushed outside house or not, two contradictory versions has come from DW-1 and DW-2. As per DW-1, she saw Monika from the room situated on the first floor of her house. Statement of DW-1 does not inspire confidence as it is unlikely that a person who is burnt will rush to the street. Moreover DW1 being immediate neighbourer of the accused persons cannot be put in the category of an independent, neutral witnesses and her deposing under the influence of the accused persons cannot be ruled out. Similar DW-2 appears to have been introduced by accused persons to establish their defence that Monika attempted suicide by putting herself on fire with purpose to scare the accused persons. There was a big age difference between Monika and DW-2 and there is nothing on record to accept the version of DW-2 that she was having good relations with Monika. Her statement also does not inspire confidence as she being neighbourer of the accused persons has every reason to depose in their favour, exonerating the accused persons and deposing in their line of defence. None of the accused FIR No. 279/01 26 of 38 persons during their statements under section 313 Cr. P.C has stated that Monika had told DW-2 that she had burnt herself to scare the accused persons. It further falsifies the statement of DW-2 regarding version of the incident as deposed by her on the fateful night.
36. DW-3 Sh. Danbir Singh, Record Clerk, LNJP hospital has proved photocopies of casualty register No.110076 of accused Kailash Nath Ex. DW3/A. DW-4 Kailash Nath is one of the accused persons. He deposed that at about 9.30 PM, he heard some noise and saw from the first floor that Monika had burnt herself. He came on the ground floor and tried to extinguish fire with his hands, due to which his both hands got burnt. Pawan came from outside and brought a blanket and threw it on Monika. Some one informed the police and Monika was taken to the hospital by PCR Van. Since his both hands were burnt his casualty card Ex.DW4/A was made by the doctor. DW-4 himself being accused in this case definitely will speak in the line of his defence but at least from Ex. DW4/A it stands established that he suffered burn injuries with 4 % burn on his both hands. Whether he sustained this injury while extinguishing fire or while subjecting Monika to fire in common intention with other accused persons will be seen in subsequent paras. However, as per statement of PW1 and PW-2 accused persons were having separate portions in their possession, separate businesses and separate kitchens. This fact finds support from the statement of other prosecution witnesses. PW1- has admitted that after 8-9 months of marriage of Monika, accused Sunil was married and thereafter he started running his shop FIR No. 279/01 27 of 38 alone; One elder brother of Pawan was also residing in the ground floor in his portion; She cannot say after how much time of marriage of Monika, a wall was erected in the house of accused persons.
37. As happens in normal families accused being brothers, sisters in law of the husband of deceased, having separate portions in their possession and having separate kitchens,were having interests independent to each other. Assuming for the sake of arguments, even if Monika was harassed on account of demand of dowry, it is unlikely that these accused persons may have got anything out of it. Now coming to Ex.PW11/B, this statement of Monika implicating accused persons, except her husband Pawan appears to be unrealistic and does not inspire confidence. Monika has alleged that Pawan Sobti called all his brothers and their wives, first she was beaten by all of them, her father- in -law Kailash Nath had also given beating to her and thereafter she was set on fire by Pawan as match stick was handed over by Kailash Nath. It is unlikely that within no time of calling by Pawan all the family members gathered in the room of Monika. It is further unbelievable that Pushpa, Tanu and Komal who were having same status in the joint family as of Monika will resort to beating Monika and thereafter burning her at exhortation of accused Pawan. IO PW20 who visited the spot of crime has stated that he did not find any hair of the deceased at the spot and he did not find fresh dragging mark on the surface at the place of occurrence. For the sake of arguments, believing prosecution version, if all the 8 accused persons with the intention to kill Monika started beating her by FIR No. 279/01 28 of 38 throwing her on the floor, Monika must have sustained injuries all over her body but as per MLC and PM report there is absolutely no mention of any injury mark on her body. It falsifies the statement of Monika to the extent that she was thrown on the floor and all the accused persons pulled her hairs and gave her severe beating. If all the eight accused persons were determined to kill Monika then Monika could not have saved herself from their clutches, is a point to be pondered. In Ex.PW11/B, Monika has stated that her clothes caught fire and she opened the Kundi( Latch) and ran outside. This statement shows that no resistance was given to Monika when she came outside with fire on her clothes. The other question which needs answer is that how Kailash Nath got his both hands burnt. If he was nurturing any intention to kill her and was one of the perpetrators of the crime, he would have never tried to extinguish fire. Monika has no where stated in her statement that it was Kailash Nath who set her on fire. It is clear from the burn injuries of Kailash Nath that he sustained burn injuries on his hands while trying to extinguish fire.
38. PW1, PW3 and PW5 also reiterated the version of incident as stated by Monika in Ex.PW11/B. Statement of these witnesses were recorded on 23.11.01. As per these witnesses, Monika had told them about the role played by the accused persons in setting her on fire. It is relevant to mention here that history of the patient, as already discussed on MLC of Monika was mentioned by Dr. S. Pari Raj at 11.50 PM. As per IO PW20, he also interrogated Monika in the hospital at about 1.00 AM and she only implicated her husband FIR No. 279/01 29 of 38 Pawan Kumar in this incident. It is admitted by PW1, PW-3 and PW-5 who are family members of Monika that they reached in the hospital immediately. There is a gap of around 16-17 hours between the time when Monika was brought to the hospital and recording of her statement by PW11. The version of the incident as has come on the MLC and as told by Monika to IO PW20 appears to be authentic being made at the shortest interval of time after the incident. Thereafter for a considerable time, Monika remained in the company of her parents and her brother, the possibility of her tutoring to implicate the entire family members in the incident cannot be ruled out.
39. The circumstances prevailing in the house of accused persons prior to the incident also assumes relevancy being so connected with the main incident as to form part of some transaction. As per PW1, Monika, accused Pawan, sister in law Shashi and other family members had gone to Vaishno Devi and there a quarrel had taken place between Monika and accused Pawan. Thereafter Pawan did not come back home for 25 days and demanded divorce from Monika. Thereafter on the intervention of PW1 and PW-3, some compromise was negotiated. Monika was left in matrimonial home on the eve of Karva Chauth. Even on Bhaiya Dooj she did not visit the house of her parents. Both the incidents happened just few days prior to fateful night of 20.11.01. It shows that relations of Monika and Pawan were strained and accused Pawan was annoyed with Monika and he did not come to home for 25 days. What was the role played by other accused persons in the incidents which happened prior to FIR No. 279/01 30 of 38 20.11.01, statement of PW1, PW3 and PW-5 are silent to that effect. Which proves that no active role was played by accused persons except Pawan in the incidents which happened prior to 20.11.01. These incidents also goes to prove that accused Pawan was nurturing anger and annoyance against Monika which can be taken as motive behind commission of this crime.
40. Other contention raised by Ld. Defence counsels is that it is a case of shoddy investigation as pulanda of kerosene oil and match box was sent to FSL on 26.07.02 after delay of 8 months. It is stated that finger prints were not lifted from the scene of crime by the crime team as per settled norms. It is stated that even the blanket and clothes of Monika were not seized during the investigation which could have thrown light if residue of kerosene oil was there or not. During cross PW20 has stated that he had seized bottle of kerosene oil from the spot as it was told to him by Monika that kerosene oil was poured on her. Crime Team had come to the spot and it had reported that the finger prints were not available on the bottle of kerosene oil. The Crime team had used magnified lenses to see the finger prints on the bottle but they could not see it. The Crime team had not reported any finger prints on the latch of the exit gate. He had not used graphite powder to search for the finger prints on the kerosene bottle or the latch on the exit gate. There was no blanket on the spot but there were water marks. The burnt match sticks were seized from the spot.
41. Ex.PW22/A is the report of senior Scientific Officer( Chemistry) FSL, Delhi Dr. Madhulika Sharma and as per the FIR No. 279/01 31 of 38 this report, one plastic bottle containing blue colour liquid stated to be " Kerosene Oil type Compound" volume approx-800 ml and other parcels containing 34 unburnt match sticks were sent for chemical examination. As per report, blue coloured liquid was found to be kerosene and residue of kerosene could not be detected on unburnt 34 match sticks. During cross, PW 22 stated that no degrees of Kerosene as per her knowledge is prescribed, it was standard kerosene oil.
42. Clothes which deceased was wearing at the time of incident was required to be seized and sent for chemical examination. Similarly it has come in the statement of the deceased that blanket was put on her by neighbourer to put off fire but even for seizure of this blanket no effort was made by IO. These are two important pieces of evidence which were not seized by IO. IO PW 20 has seized a bottle containing kerosene and the match box containing unburnt match sticks after returning from the hospital to the spot. The recovery of kerosene from the spot cannot be doubted. As per the photograph Ex. PW6/3 an open bottle, half full containing blue coloured liquid in it is visible, match box is also visible in this photograph. These are the articles which were seized by IO. In photographs Ex.6/1 to 6/2 kerosene oil is shown scattered on the floor. Statement of deceased Monika that she was set on fire after kerosene oil putting on her, finds support from the recovery of half full kerosene oil bottle from the spot. It appears from the bottle that at least 500-600 ML of kerosene oil must have been poured upon deceased before setting her on fire. No doubt scientific FIR No. 279/01 32 of 38 investigation i.e. lifting of finger prints from the scene of crime, play an important role in a fair and proper investigation of a case but this is a case where no chance print could be lifted from the scene of the crime. As per IO PW20 crime team made all efforts to see finger prints on the bottle but they could not find any on it. IO has further stated that there is no possibility of finger print on the match box as finger prints are generally found on the smooth surface. I therefore do not agree with the contention raised by Ld. Defence counsel that deliberately police did not take or withhold the chance print from the spot to propagate its theory of murder by the accused persons. No doubt, clothes worn by deceased Monika and blanket used to extinguish fire could have been an important piece of evidence, which could not be seized to the reasons best known to IO. But in my opinion, this does not affect the prosecution case in any manner and rest of the evidence which has come on record is required to be scrutinized independently. Reliance is placed upon AIR 2000SC 185 State of Karnatka Vs. K. Yarappa wherein it was held that even if investigation is illegal or suspicious, rest of the evidence must be scrutinized independently of the impact of it. Criminal justice should not be made the casualty for wrong committed by the investigating officers in the case.
43. In view of the aforesaid reasons, strong doubt emerges that accused Sunil Kumar Sobti, Sunil Kumar Sobti, Narender Kumar Sobti, Gulshan Kumar Sobti, Kailash Nath Sobti, Smt. Pushpa, Smt Tanu and Smt. Komal Sobit joined accused Pawan Sobti sharing FIR No. 279/01 33 of 38 common intention on 20.11.01 for killing deceased Monika by setting her on fire after pouring kerosene oil on her. However, on the basis of history mentioned on MLC prepared by Dr.S. Pari Raja of deceased, statement Ex. PW11/B of the deceased and the statement of IO PW20, the role played by accused Pawan by setting deceased Monika on fire after putting kerosene oil on her stands established beyond doubt. Dying declaration Ex.PW11/B of deceased quo other accused except Pawan is not held credible, as lacking support from surrounding circumstances and various other reasons discussed above. However, there is common thread of the role played by accused Pawan in the history of deceased mentioned on her MLC, dying declaration Ex. PW11/B and statement of IO.
44. Ld. Counsel on behalf of the accused has further contended that PW1 and PW3 have admitted that at the time of marriage of deceased with Monika there was no demand of any dowry. It is stated that even if for the sake of argument, statement of PW-1, PW3 and PW5 are accepted that accused used to pressurize the deceased Monika to bring money from her parents, the demand was for starting business by the accused Pawan which cannot be taken as demand for dowry. Even the victim in Ex.PW11/B has no where mentioned about the demand of dowry made by either accused Pawan or any of his family members. She has simply stated that accused used to ask to bring money from her parents as he wants to start business; Accused Pawan wanted divorce from her and when she asked him to give in writing she was set on fire after putting FIR No. 279/01 34 of 38 oil on her. During his cross PW1 has admitted that marriage was solemnized in a cordial atmosphere and accused persons had not made any demand of dowry prior to marriage and after marriage of Monika. As per PW1 after marriage of Sunil, family members of Pawan started ill treating Monika and a shop was handed over to Sunil and Pawan became jobless; therefore he started coming home drunk and started beating Monika. The same statement is made by PW-3 stating that accused Pawan had asked his daughter to bring 2-3 lacs for business from her father. Since they were unable to fulfill demand therefore behaviour of the accused Pawan towards his daughter changed. However, PW1 and PW-3 have also admitted that behaviour of accused Pawan was normal with deceased Monika, when Avinash was born to Monika.
45. In support of their contention, accused has relied upon Hans Raj Sharma Vs State of NCT of Delhi( Supra). In this case there were allegations that husband and his family members used to demand money from the parents of the wife as they have to purchase a shop at Laurance Road . In this case case, accused was charged under section 304 B and 498A of IPC. Hon'ble Delhi High Court has observed that it is difficult to accept that the demands which are not all referable to the marriage, would also constitute dowry demand. Demand of money is to purchase a shop which admittedly was never demanded or promised prior to, at the time of or after marriage and not even expected to be given in marriage cannot be said to be money demanded in connection with marriage consequently would not FIR No. 279/01 35 of 38 constitute demand for dowry.
46. Monika died after more then four and half years of her marriage. PW1, PW-3 and PW-5 and even deceased Monika in her dying declaration Ex. PW11/B has no where specified time as to when the alleged demand to bring 2-3 lacs was made by accused Pawan to Monika. All the witnesses have also stated that when demand of accused persons was not met, accused Pawan started beating Monika. Even the instances of giving beating to Monika has not been elaborated. Thereby in my opinion, prosecution has failed miserably to prove guilt of accused Pawan Kumar Sobti under section 498A of IPC.
47. The other contention raised by Ld. Defence counsel on behalf of the accused is that there is no evidence that accused had any intention to kill Monika. It is stated that Monika was admitted in the hospital with superficial burns and doctor has opined that death is due to septicemia as a result of infected burn injuries. In support of his contention Ld counsel for accused relied upon 2009(4) JCC 2504 Mani Ben Vs. State of Gujarat. In this case, deceased had sustained 60% burn injuries and died after 8 days of the incident of burning.
48. It has been observed by the Apex Court in this case that deceased developed septicemia, which was the main cause of the death of the deceased during the course of treatment. It was further observed that during the period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. It was further FIR No. 279/01 36 of 38 observed that it can not be said that the accused had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause death of the deceased. Accordingly case was covered under section304 part II of the IPC and not clause (4) of Section 300 IPC.
49. In the present case, as per the Postmortem report Ex. PW4/A, approximate area of burns was 36% total body of surface area and burn injuries were only confined to legs and other portions of the body of the deceased below her navel. Absolutely, no burn injury was received by the deceased on her body above her naval. As per the opinion in the postmortem, death is due to septicemia as a result of inflected burn injuries. In view of the aforesaid reasons, it cannot be inferred that accused Pawan Kumar Sobti had the intention that such action on his part would cause death or such bodily injury to Monika which was sufficient to cause the death. Therefore offence proved against accused Pawan Kumar Sobti fall under section 304 Part II IPC.
50. In view of the aforesaid reasons, I hold that prosecution has failed to prove beyond reasonable doubt that accused Sunil Kumar Sobti, Narender Kumar Sobti, Gulshan Kumar Sobti, Kailash Nath Sobti, Pushpa, Tanu and Komal Sobti sharing common intention with accused Pawan Kumar Sobti set deceased Monika on fire after putting kerosene oil on her. All the accused except Pawan Kumar Sobti are acquitted from the offence punishable under section 302/34 FIR No. 279/01 37 of 38 IPC. Prosecution has also failed to prove beyond reasonable doubt the offence under section 498A IPC against accused Pawan Kumar Sobti. He is accordingly acquitted from this offence. However, prosecution has proved beyond reasonable doubt that accused Pawan Kumar Sobti committed offence punishable under section 304 Part II of IPC. He is held guilt for this offence and convicted accordingly.
File be consigned to the Record Room.
Announced in the open Court ( SANJAY GARG )
on 17th day of May, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
Delhi
IN THE COURT OF SH. SANJAY GARG, ADDL. SESSIONS JUDGE (EAST): FTC: KARKARDOOMA COURT: DELHI SESSIONS CASE No. 71/08 FIR No. 279/01 U/S: 304 Part II of IPC P.S Gandhi Nagar State Versus Pawan Kumar Sobti S/o. Kailash Nath R/o. H. No. IX, 6268, Mukherji Gali, Gandhi Nagar, Delhi.
ORDER ON SENTENCE
1. I have heard Sh. R. K. Mehta, Ld. Addl. PP for the state and Sh. P.L. Behl, Ld. Defence counsel for the convict Pawan Kumar Sobti.
2. The Ld. APP submits that considering the nature of offence committed, no lenient view be taken against the convict. Ld. defence counsel for the convict submits that convict has two children aged 10 and 12 years. It is stated that both the children are studying in Veda Vyasa D.A.V. Public School, D-Block, Vikas Puri. It is stated that he has remained behind bar for about 21 months as an undertrial in this case. It is stated that FIR No. 279/01 38 of 38 he is not involved in any other criminal case and he is first offender. It is stated that keeping in view the circumstances of this case convict be either sentenced to period of imprisonment already undergone by him as an undertrial in this case or he be released after considering his case under Probation of Offenders Act.
3. In support of his contentions Ld. Defence counsel has relied upon the following judgments :-
1. Baldev Singh & Ors Vs. State of Punjab, 1995 (3) RCR, 750 S/C.
2. Sanjay Vs. State 2004 CRL. J. 4761 Delhi High Court.
3. State of Karnataka Vs. Salim Khan & Ors., 2004 CRL.J. 335 Karnataka High Court.
4. Roshan Lal Vs. State of Punjab, 2004(1) CC Cases 29 Punjab & Haryana High Court.
5. Makhan Singh Vs. State of Punjab, 2004 (4) RCR Crl. 328 Punjab & Haryana High Court.
6. Chota Singh & Ors. Vs. State of Punjab, 1998(1) CC Cases 329 Punjab & Haryana High Court.
7. Sawinder Singh Vs. State of Punjab, 1999 (3) CC Cases Punjab & Haryana High court.
8. Shaik Nurjahan Vs. State of AP, 2004 CRL.J. 78, Andhra Pradesh High Court.
4. Perused the judgments relied upon by the Ld. Defence counsel for the convict. The facts of the present case are distinguishable from the facts of the cases relied upon by the convict. A life has been lost. In my opinion, though the convict has two children to look after but on this very ground lenient view by either sentencing him for the period of imprisonment already undergone or giving him benefit of Probation of Offenders Act, cannot be taken. Keeping in view the facts of this case there should be deterrence in the quantum of punishment awarded to the convict. In my opinion the period of imprisonment undergone by the convict is not commensurate with the crime for which he has been held guilty. Accordingly the convict is sentenced as under :-
FIR No. 279/01 39 of 38 For the offence punishable u/s. 304 Part II IPC he is sentenced to undergo the RI for 5 years and shall also be liable to pay fine of Rs.3000/- in default to undergo SI for three months.
5. Benefit of section 428 Cr. PC be given to the accused. Copy of judgment and this order be given to the convict free of cost. File be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 19th day of May, 2010 Addl. Sessions Judge (East)
FTC, Karkardooma Courts:
DELHI.
FIR No. 279/01 40 of 38