Delhi District Court
State vs (1) Maya Devi on 22 October, 2009
-::1::- FIR No 642/07
PS: Pahar Ganj
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI
FIR no. 642/07
Police station: Paharganj
U/s 302/304B/498A/34 IPC
State V/s (1) Maya Devi
(2) Madan Kumar @ Madan Lal @ Akash @ Don
1. Session Case no. : SC no.3/08
2. Name of the accused : (1) Maya Devi W/o Late
and parentage Sh.Mohan Lal R/o H. no. 9964,
Gali no. 4, Multani Dhanda
Pahar Ganj, New Delhi.
(2) Madan Kumar @ Madan Lal
@ Akash @ Don S/o Late
Sh.Mohan Lal R/o H. no. 9964,
Gali no. 4, Multani Dhanda
Pahar Ganj, New Delhi.
3. Date of commission of : 19/12/2007
offence
4. Arguments concluded : 29/9/2009
on
5. Date of Judgment : 22/10/2009
6. Date of final order : 26/10/2009
JUDGMENT
1) According to the prosecution case deceased Shilpi wife of accused Madan Kumar was admitted in RML hospital in burn condition by her husband at about 11.30 AM on 19/12/2007. At the time of her admission in the hospital, she has told the doctors that she had a fight with her mother-in-law, following which her -::2::- FIR No 642/07 PS: Pahar Ganj mother-in-law poured kerosene oil upon her and set her on fire. She had scummed to those burn injuries and died on 25/12/2007 at about 5.00'0'clock. On receiving the information regarding her admission in the hospital vide DD no. 19A, ASI Khursheed Ali and Ct. Raj Kapoor of Police Station Pahar Ganj reached at RML hospital where doctor informed that Shilpi was having almost 90% burn injuries on her neck, face, chest, abdomen and both thighs, upper limbs. Father of Shilpi told ASI Khursheed Ali that she was married about 1½ years ago and as such ASI Khursheed Ali informed the SDM, Darya Ganj about the incident. After leaving Ct. Raj Kapoor in the hospital, ASI Khursheed Ali went to the spot at house no. 9964, Gali no. 4, Multani Dhanda Pahar Ganj, New Delhi. He called the Crime Team on the spot. The Crime Team took the photographs of the spot and then Ct. Chander Bhan was left at the spot to safeguard the scene of crime. ASI Khursheed Ali then went to the hospital and found Shri Vipin Talwar, SDM Darya Ganj present. Dr. Amit Saxena Junior Resident Surgery has declared Shilpi "fit for statement" at 6.20 PM on 19/12/2007. SDM Shri Vipin Talwar then recorded her statement wherein she alleged that she was married to accused Madan Kumar about 1½ years ago and at the time of her marriage her father had given sufficient dowry. After about 5-6 months of her marriage her -::3::- FIR No 642/07 PS: Pahar Ganj mother-in-law accused Maya Devi started harassing her for bringing more dowry. Her mother-in-law also instigated her husband Madan Kumar who used to beat her. For the last 2-3 days prior to incident her mother-in-law was continuously behaving quarrelsome for dowry. On 19/12/2007 at about 12.30 PM when Shilpi was in her room her mother-in-law Maya Devi came there and started quarreling with her and then poured kerosene oil upon her and thereafter set her on fire. Shilpi then came down in burning conditions from the stairs while writhing and shouting out of pain and came to the street; she was shouting by calling the name of her husband and then public persons in the street put water upon her and thereafter she became unconscious. After some time she regained her consciousness and found that her husband had brought her to hospital in a three wheeler scooter. She put her thumb impression on the statement and her statement was endorsed by the SDM with the direction to the SHO to register the case, accordingly the case FIR was registered u/s 307/498A/34IPC.
2) During investigation ASI Khursheed Ali found plastic bottle having kerosene oil, one half burnt match stick and box and took the same into his possession. After the death of Shilpi on 25/12/2007 section 302 IPC was added and investigation was -::4::- FIR No 642/07 PS: Pahar Ganj given to Inspector Satish Bhardwaj. On 25/12/2007 Maya Devi was arrested and husband of Shilpi i.e Madan Lal was arrested on 17/1/2008 u/s 498A IPC. After postmortem report section 304-B IPC was also added and after completing the investigation the chargesheet was filed.
3) On 4/6/2008 my Ld Predecessor has framed charge u/s 498A/34 IPC against accused Maya Devi and Madan Lal and charge u/s 302 IPC against accused Maya Devi and charge in alternative was framed against both the accused u/s 304-B/34 IPC to which they pleaded not guilty and claimed trial.
4) In support of its case prosecution has examined 26 witnesses.
1. FORMAL WITNESSES PW4 Om Prakash Mortuary attendant, Department of Forensic Science, Lady Harding Hospital has stated that after the postmortem on the dead body of the deceased he was handed over a parcel containing the scalp hair of the deceased alongwith sample seal and he had handed over these seals to the Investigating officer vide memo Ex. PW4/A. -::5::- FIR No 642/07 PS: Pahar Ganj PW6 Asha has stated that on 19/12/2007 Kaushal had given a telephonic call to her that Shilpi had been admitted to RML hospital with burn injuries; she tried to inform the parents of the deceased on telephone but could not contact them and then she went to their place and informed them about the incident.
PW9 SI Manohar Lal is draftsman who has stated that on 6/1/2008 on the asking of the Investigating officer, he had gone to the house no. 9964, Gali no.4, Multani Dhanda, Pahar Ganj, Delhi and had prepared the rough notes of the site and on the basis of the rough notes he had prepared the scaled site plan Ex. PW9/A. PW10 Ct. Maharaj Singh had taken the sealed exhibits alongwith form-CFSL to CFSL, Calcutta on 17/1/2008 vide RC no. 6/21 and had deposited the same there on 18/1/2008.
PW15 SI Raghubir Singh was posted as duty officer on 19/12/2007 from 5.00 PM to 1.00 AM and stated that he had received the rukka at 8.00 PM from Ct. Raj Kapoor which was sent by SI Khursheed Ali and on the basis of said rukka he has recorded FIR no. 642/07 copy of which was proved as Ex. PW15/A. He had also made endorsement on the rukka which is Ex. PW15/B. PW18 HC Subhash was member of the Mobile Crime Team and stated that on 19/12/2007 after receiving a message on wireless set by Crime Team Incharge SI Anil Kumar; he had -::6::- FIR No 642/07 PS: Pahar Ganj accompanied the Incharge and other crime team members and reached to the spot of the occurrence at about 4.15 PM. Ct. Ramesh had taken photographs on the instructions of the Investigating officer and the site was also inspected; the chance prints could not be detected as the same was not possible according to the situation at the place.
In his cross-examination by Ld defence counsel he has stated that crime team had made best efforts for chance prints but same could not be taken or detected from the spot.
PW19 HC Shailesh Kumar has stated that on 19/12/2007 HC Sita Ram was working as MHC (M) in Police Station Pahar Ganj and on that day one gunny bag having the seal of KA containing one plastic bucket with one cover of the plastic bucket in burnt condition alongwith one plastic bottle containing kerosene oil and one partially burnt dupatta, one burnt match sticks kept in a white cloth parcel, one empty match box were handed over to him by ASI Khushreed Ali and deposited the same in the malkhana and made entry at serial no. 3247/07 in register no. 19. He has proved the said entry as Ex. PW19/A and he had identified the signatures of HC Sita Ram. He has also proved the entry no. 2742/08 as Ex. PW19/B regarding deposit of the one sealed envelope sealed with the seal of SKB containing 10 photographs and negatives on 06/1/2008 by -::7::- FIR No 642/07 PS: Pahar Ganj Inspector Satish Bhardwaj. He has also proved the entry no. 2761/08 Ex. PW19/C regarding deposit of sealed envelops containing scalp hair of deceased Shilpi by ASI Khursheed Ali on 17/1/2008. He has proved the road certificate regarding the sending of sealed parcels to CFSL Calcutta vide RC no. 6/21 as Ex. PW19/D. He has further proved the entry no. 3247/08 as Ex. PW19/E regarding receiving of the result of the CFSL Calcutta on 17/5/2008.
PW20 W/Ct Suman has joined the investigation on 25/12/2007 when Inspector Satish Bhardwaj had arrested accused Maya Devi from her house vide arrest memo Ex.PW20/A; she had carried out personal search of accused Maya Devi vide memo Ex.PW20/B. PW21SI Anil Kumar has stated that on 19/12/2007 he as Incharge Mobile Crime Team alongwith team has reached at the first floor of house no. 9964/4, Multani Dhanda, Pahar Ganj where ASI Khursheed Ali was present; he has examined the place of occurrence and photographs of scene of crime were taken by Ct. Ramesh but no chance prints were reflected. He has prepared the report Ex.PW21/A. PW22 Ct. Ramesh has stated that on 19/12/2007 he was member of crime team as a photographer and has reached at house no. 9964, Gali no. 4, Multani Dhanda, Pahar Ganj, Delhi and on the -::8::- FIR No 642/07 PS: Pahar Ganj instructions of the IO, he had taken the photographs of the scene of crime. The negatives are proved as Ex. PW22/1 to Ex. PW22/5 and positives are proved as Ex. PW22/6 to Ex. PW22/10. (earlier mark-A to mark-E).
2. PUBLIC WITNESSES PW1 Rajender father of the deceased has stated that his daughter Shilpi had been married for about 1½ years ago prior to the date of her death; her in-laws used to harass her for dowry; whenever she visited him she used to complain about her in-laws; his daughter told him that accused Madan Kumar used to give beatings at the instigation of his mother Maya Devi; he had married his daughter in a simple way and it was her second marriage because of her first marriage had broken away and the matter was settled with her first husband. He further deposed that on 19/12/2007 he was present at his home when his sister-in-law Asha came there at about 4.00/4.30 PM and informed that Shilpi had been admitted in RML hospital with burn injuries; he alongwith his wife and others reached at RML hospital where he met his daughter Shilpi; on his asking Shilpi told him that her mother-in-law had poured kerosene oil on her person and had set her on fire. His statement Ex. PW1/A was recorded by the SDM in RML hospital on -::9::- FIR No 642/07 PS: Pahar Ganj 19/12/2007 at about 8.30PM. He further stated that his daughter expired in the hospital on 26/12/2007 due to burn injuries and he had received her dead body after postmortem vide memo Ex.PW1/B. He also proved the arrest of accused Madan Kumar Ex. PW1/C and his personal search was conducted vide memo Ex. PW1/D. In his cross-examination by Ld defence counsel he has stated that they had reached RML hospital within 30-45 minutes after receiving the information and found that deceased was admitted in Emergency; accused Madan Kumar alongwith two police personnels were present when he met his daughter. He further stated that her daughter was crying at that time by saying "look daddy Maya Devi had done whatever she wanted to". He further stated that SDM arrived in the hospital at about 7.00/7.30 PM and recorded the statement of his daughter Shilpi when she was all alone in the ward; no police personnel, doctor or relation was present at that time. He further stated that marriage of his daughter with accused Madan Lal was negotiated through his sister-in-law Kaushal and he had told Kaushal number of times that accused were harassing Shilpi on account of dowry.
PW2 Ritu sister of deceased Shilpi has stated that for about 4/5 months after marriage of Shilpi she was kept nicely by the accused but thereafter she was harassed by both the accused -::10::- FIR No 642/07 PS: Pahar Ganj persons for want of dowry despite that her parents had given sufficient dowry as per their status. She further stated that whenever Shilpi used to visit their house she used to complain against accused; Shilpi had visited to her parent's house 1 ½ month prior to the incident and was having an injury in her thumb of hand and told that her mother-in-law had beaten her up and her husband had given a danda blow on the thumb. She further stated that Shilpi told them that she was beaten as accused persons had been demanding dowry. A few days prior to incident Shilpi had given a telephonic call at their residence and had stated that accused were demanding more dowry and were giving her beatings; her mother and sister Lata had gone to the house of the accused in order to resolve the matter and had returned after pacifying the accused.
PW3 Beena is the mother of deceased Shilpi and has deposed that after marriage with accused Madan Kumar , Shilpi was living happily for about 4-5 months and thereafter both the accused had started harassing her for want of dowry; both the accused used to give beatings to her daughter and she had injury marks on various parts of her body; whenever her daughter used to visit their house she used to tell about the harassment meted out to her and her injury marks; she had come to their house 2 months prior to the date of incident and at that time she had an injury on her -::11::- FIR No 642/07 PS: Pahar Ganj thumb of hand; she had told that she received the said injuries as accused Madan had given a blow with the help of a remote which was thrown on her; she had also told her that her hand was twisted by the accused; accused Madan used to beat her at the instigation of his mother. She further stated that about 10-15 days prior to the incident, she had gone to the house of the accused alongwith her daughter Lata because she had received a telephonic call from her daughter that her mother-in-law had given beatings to her. She further stated that mother-in-law of Shilpi was advised by her to keep Shilpi as her own daughter but her mother-in-law insisted that she would be treating her in the same manner as she was keeping her and they returned to their house. She further stated that on the day of incident after receiving information of Shilpi being admitted in RML hospital with burn injuries, she went to RML hospital and met Shilpi who told her that her mother-in-law had set her on fire after pouring kerosene oil on her body from back side. This witness was suggested some leading questions by Ld Addl. PP for the State wherein she stated that her daughter Shilpi had told that she was given a danda blow by accused Madan Kumar at the instigation of her mother-in-law and her mother-in-law caught hold of her by her hairs; both the accused had misbehaved with Shilpi at the time when she visited their house in order to pacify the matter and also -::12::- FIR No 642/07 PS: Pahar Ganj demanded more dowry.
PW5 Lata sister of deceased Shilpi stated that on 11/12/2007 she had gone to her parental home and her sister Shilpi had given a telephonic call about the accused harassing her on account of dowry; she accompanied her mother to the house of the accused and then tried to reason out with the accused and at that time accused Madan Kumar was drunk; accused Maya Devi had been insisting that she would continue to harass Shilpi if her demands were not fulfilled.
PW7 Kaushal sister of mother of deceased Shilpi and she had acted as mediator to the marriage of Shilpi with accused Madan Kumar. She has stated that accused Madan Kumar was a divorcee as was Shilpi; relation between Shilpi and her husband were cordial but relations between Shilpi and her mother-in-law were not cordial as both of them used to quarrel over small household chores; Shilpi used to tell her that there were occasional taunts from her mother- in-law that she had brought less dowry; Shilpi told her that Maya Devi wanted a gas stove to be made available at her home; Shilpi also told her that her husband used to beat her. She further stated that on the day of incident somebody had come to her and asked to visit the house of the accused immediately; accordingly she went there and found that there was a great commotion; Shilpi had been -::13::- FIR No 642/07 PS: Pahar Ganj removed to the hospital by her husband; people in the gali were telling that Shilpi had come in a burnt condition from upstairs and had fallen down on the ground; she went to the hospital where she met Shilpi and she told her that her mother-in-law had poured kerosene oil on her and had set her on fire from the back. She further told that Shilpi told her that Madan Kumar was not present at the said time; she further told her that while Maya Devi was pouring kerosene oil on her she thought that she was pouring water. This witness was also suggested leading question by the Ld. Addl. PP for the State wherein she has stated that Maya Devi had been harassing Shilpi for want of dowry and both the accused had several times pushed her out of the house and has asked her to bring more money from her parents; harassment of the Shilpi started six months after her marriage and whenever Shilpi used to visit her she used to tell her about the harassment at the hands of the accused; she had gone to the house of the accused persons and tried to reason out with them .
In her cross-examination by Ld defence counsel she has stated that Shilpi did not like the rustic behaviour of her mother-in- law Maya Devi; infact Maya Devi used to tell Shilpi to ask her mother to provide her with all the amenities like gas stove etc; sometimes she would not allow Shilpi to use heater or stove; at the time when -::14::- FIR No 642/07 PS: Pahar Ganj statement of Shilpi was recorded all others were asked to go outside the room and Shilpi was all alone; Shilpi was talking when they met her even though she was in a traumatic condition.
3. OTHER MATERIAL AND OFFICIAL WITNESSES PW16 HC Chander Bhan has stated that on 19/12/2007 he was posted at Police Station Pahar Ganj as Constable and on receiving a call he had reached at house no. 9964/4 Multani Dhanda, Pahar Ganj, Gali no. 4 where he came to know that Shilpi wife of Madan Kumar was burnt by her mother-in-law; ASI Khursheed Ali was present at the spot who called crime team and site was inspected by the crime team and the photographs were also taken. He further stated that on the first floor of the house one plastic bucket in burnt condition, one burnt mehroon and white coloured dupatta, one burnt match stick, one plastic bottle having the kerosene oil with a red cap were lying there; Investigating officer has prepared the separate parcels for those articles after putting them into cloth parcel and affixed his seal of KA and had taken the same into possession vide memo Ex. PW16/A. He further stated that the site plan was prepared by the Investigating officer and Ct. Raj Kapoor has reached on the spot had handed over copy of the rukka and FIR to the Investigating officer; thereafter he alongwith ASI -::15::- FIR No 642/07 PS: Pahar Ganj Khursheed Ali and Ct. Raj Kapoor went to the RML hospital where father of the Shilpi met them and his statement was recorded by the IO. He has identified the plastic bottle containing kerosene oil Ex.P1, one plastic bucket partly burnt as Ex. P2; one mehroon and white coloured dupatta partly burnt, cover of the plastic bucket partly burnt Ex. P3 to Ex. P4. He further identified the one burnt match stick and half cover of a match box (Ex. P5 and Ex. P6) and has stated that the same were seized from the spot. Similarly, with regard to the Ex. P1 to Ex. P4 he has stated that same were seized from the spot.
In his cross-examination by Ld defence counsel he has stated that he had reached the spot at about 8.15 -8.30PM after receiving the information. Photographs mark- A to E were shown to him to identify the articles Ex. P1 to Ex. P6 and often seeing the same he had stated that plastic bolt containing kerosene oil Ex. P1, match stick Ex.P5 along with half match box cover Ex. P6 were not shown in photograph mark-A to E. PW17 Ct. Raj Kapoor has stated that he was on emergency duty in Police Station Pahar Ganj and at about 12.30 PM a call was received from RML hospital and he alongwith ASI Khursheed Ali went to RML hospital to collect the MLC of Shilpi; Doctor has declared 80-90% burns on the person of Shilpi; ASI Khursheed Ali -::16::- FIR No 642/07 PS: Pahar Ganj left him in the hospital and he went to the spot; ASI Khursheed Ali again returned to the hospital and informed the SDM who reached to the hospital and thereafter recorded the statement of Shilpi and her father Rajender Kumar; Investigating officer prepared rukka and then sent him to Police Station for registration of the case and after registration of the case he returned to the spot and handed over the rukka and copy of the FIR to ASI Khursheed Ali; thereafter he alongwith Investigating officer went to the spot where HC Chander Bhan was present as he was deputed by the Investigating officer .
In his cross-examination by the defence counsel he has stated that when they reached RML hospital Shilpi was in emergency ward and she was shifted to emergency ward after her bandage on the burn affected portions of the body; Shilpi was shifted to burn ward after one hour of their reaching to the hospital; ASI Khursheed Ali had informed SDM telephonically through his mobile at about 6.00PM; ASI Khursheed Ali has met Shilpi before 6.00 PM and he was also present at that time; SDM reached the hospital for half an hour of making call to him when SDM recorded the statement of Shilpi he was outside the emergency ward; ASI Khursheed Ali remained inside the ward till SDM recorded the statement of Shilpi; Investigating officer handed over rukka to him at about 7.00 PM; statement of father of Shilpi was also recorded in the hospital. The Rukka Ex. -::17::- FIR No 642/07
PS: Pahar Ganj PW11/A was recorded by the SDM.
PW24 ASI Khursheed Ali is the Investigating officer who has deposed that on 19/12/2007 he was on emergency duty from 8.00AM to 8.00 PM and had received the DD no. 19A Ex PW12/F regarding admission of an injured girl in RML hospital; he alongwith Ct Raj Kapoor went to the RML hospital and obtained the MLC of injured Shilpi from the emergency ward; he was telephonically informed the SHO Inspector Jaspal Singh about the condition of the injured after leaving Ct. Raj Kumar in the hospital he left the spot; he called the crime team on the spot; the crime team took the photographs of the scene of crime alongwith photographs, one plastic bucket, one plastic bottle having some kerosene oil, one empty match box, one red colour duppatta partly burnt; he telephonically informed the SDM who directed him to reach the hospital and he immediately rushed to the hospital 7.00PM and SDM recorded the statement of Shilpi Ex. PW11/A; statement of Rajender Kumar father of Shilpi also recorded by the SDM; the SDM handed over the statement of Shilpi to him which was endorsed by him as rukka and Ct. Raj Kapoor was sent to the Police Station for registration of the case; he has made endorsement on the statement Ex. PW24/A; he then returned to the spot and in the presence of SDM he had inspected the site of the occurrence and thereafter -::18::- FIR No 642/07 PS: Pahar Ganj prepared the site plan Ex.PW24/B. He has also proved two seizure memo Ex. PW16/A and Ex. PW24/C; he had taken into possession sealed envelope received from the mortuary Ex. PW4/A. He has further deposed that on 25/12/2007 on receiving DD no. 12A Ex.PW12/G regarding death of Shilpi and he alongwith Ct. Raj Kapoor reached at Mortuary of RML hospital; postmortem was got conducted on 26/3/2007 and dead body was identified by Surender Singh uncle of deceased vide memo Ex. PW12/D; accused Madan Kumar was arrested on 6/1/2008 vide arrest memo Ex. PW1/C and intimation was given vide memo Ex., PW24/E; he has correctly identified the articles Ex. P1 to Ex. P6 stating that same were seized from the spot.
In his cross-examination by Ld defence counsel he has stated that when he reached the hospital both the accused were present and parents of the deceased were also present outside the emergency ward where Shilpi was admitted; when he reached the emergency ward, the treatment was being given to Shilpi as her body was being washed as her body was almost totally burnt and she was crying; doctors did not allow him to talk to Shilpi at that time and he remained in the hospital till about 4.30 PM and could not talk to Shilpi during that period despite efforts made by him; he did not record statement of relative of Shilpi in the hospital; he had informed -::19::- FIR No 642/07 PS: Pahar Ganj the SHO from the hospital and Ct. Chander Bhan was already sent to safeguard the spot; he made a telephonic call to SDM at about 6.30PM and had enquired from the doctor about the condition of Shilpi as to whether she was able to make statement; before he left the hospital Shilpi was shifted to burn ward after bandage upon her body and she was not able to make her statement because injection was administered to her by the doctor.
He further deposed that the spot of the occurrence was first floor where he reached and the entrance of the spot was from the street by way of stairs; the ground floor was separately occupied by grand father and grand mother of accused Madan; when he reached the spot Ct. Chander Bhan was found sitting at the gate of the stairs as he did not allow anyone to enter the spot; he did not disturb the spot of the occurrence till the crime team reached there and carried out photographs and other proceedings on the spot; he had seized the articles from the spot after the proceedings by the crime team were finished. This witness was shown the photograph Ex. PW22/6 (mark- A) and he stated that the bottles shown in the said photographs were not seized by him; the bottle Ex. P1 was not shown in any of the photographs. Vol stated that the bottle Ex. P1 was seized later on as the same was kept behind the door plank (palla) and the crime team could not take the photograph of Ex. P1. He further stated that match -::20::- FIR No 642/07 PS: Pahar Ganj box and one half burnt match sticks are seen lying in the photograph mark-A of Ex. PW22/6 to Ex. PW22/10 collectively, encircled at point- X [the piece of match box was not having sign of being burnt and seems to have been cut on both sides and the match sticks were found partly burnt ]. He has further deposed that he returned to the RML hospital from the spot at about 6.30 PM and SDM has already reached in the hospital and was talking to Shilpi; he was standing nearby at the time of recording of statement and Ct. Raj Kapoor also present alongwith him; father of Shilpi was present and two nurses were also present; it took 30 minutes in recording the statement of Shilpi; statement of father of Shilpi was recorded outside the ward; at the time of making the statement to the SDM Shilpi was speaking without any difficulty; Shilpi expired after about one week; before her death he met her in the hospital 2-3 times but did not record her statement and as such he cannot assign any reason for not recording her statement. He has denied the suggestion that Shilpi has put herself on fire and when she ran for help, she fell down from the stairs and sustained injuries and because of which she has died.
PW25 Inspector Satish Bhardwaj was posted as Inspector Investigation and was handed over investigation of this case by the SHO and has deposed that he alongwith Lady Ct. Suman went to the house no. 9964, Gali no. 4, Multani Dhanda Pahar Ganj where -::21::- FIR No 642/07 PS: Pahar Ganj accused Maya Devi was present and had interrogated her and thereafter arrested her vide memo Ex. PW20/A; her personal search was conducted by Lady Ct. Suman vide memo Ex. PW20/B and brother of the accused Maya Devi was informed about her arrest vide memo Ex. PW 25/A; accused Maya Devi was taken to Lady Harding Hospital for her medical examination and she was medically examined vide MLC mark-B. He further deposed that on 6/1/2008 he alongwith ASI Khursheed reached at the house of the complainant Rajender where son of Rajender namely Bharat Kumar met them and handed over the photographs alongwith negatives of the marriage of deceased which were seized vide memo Ex. PW24/C; on the same day, accused Madan Kumar was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D and his brother was informed regarding his arrest vide memo Ex. PW24/E; on the same day scaled site plan was got prepared by SI Manohar Lal. He has further proved the FSL report Ex. PW25/B stating that he had recorded the statement of the witness during investigation and after completing the investigation challan was prepared and filed the charge sheet.
PW11 Shri Vipin Talwar was working as Executive Magistrate/SDM, Darya Ganj, Delhi on 19/12/2007 and deposed that at about 6.00/6.15 PM he had received a message from SDM Pahar -::22::- FIR No 642/07 PS: Pahar Ganj Ganj in connection with a case of burning; the patient had been admitted in RML hospital; he went to RML hospital for recording the statement of injured Shilpi at about 6.45 PM the statement Ex.PW11/A was recorded; the injured had put her left thumb impression at point- X and X1; he had made an endorsement Ex.PW11/B and he directed the SHO to take necessary action as per law. He further stated that before recording statement of Shilpi he had asked the doctor attending upon the patient as to whether she was fit for making a statement and the doctor had opined in the affirmative who had also recorded his opinion on the MLC mark-X at point-Y; He had recorded the statement of Shilpi in his own handwriting. He further deposed that at about 7.15 PM he had recorded statement of Rajender Kumar, father of Shilpi Ex.PW1/A in the hospital. He further deposed that he had made an endorsement Ex. PW11/C on the said statement which was recorded by him in his own handwriting.
In his cross-examination by Ld defence counsel he has stated that victim was perhaps admitted in emergency ward when he recorded her statement; her father was present with her at the time when he had reached the hospital; however, he had recorded the statement of Shilpi when nobody else was present and he had asked all others including father of Shilpi to go out; Doctor had already -::23::- FIR No 642/07 PS: Pahar Ganj made his endorsement regarding the fitness of the victim when he reached the hospital. He further deposed in his cross-examination that since doctor mentioned the time below his signatures he did not ask the doctor as to when he had made the endorsement on the MLC; it had taken about 10 minutes in recording the statement of Shilpi and Shilpi was not in a position to sign and had therefore affixed her left thumb impression; left thumb impression of the victim was obtained as it was easier for her to put the impression as per her position on the bed. He further clarified that police official of the rank of ASI/SI was present in the hospital when he reached there but he was not present at the time of recording of the statement of Shilpi; the right hand had also been burnt and left thumb was also having burn injuries except that she was able to put her thumb impression.
PW12 Shri Y.P. Malhotra Executive Magistrate has stated that on 26/12/2007 he was posted as Executive Magistrate Karol Bagh; ASI Khursheed Ahmad of Police Station Pahar Ganj had informed him on telephone that SDM Pahar Ganj Shri Vipin Talwar Executive Magistrate were on leave and had requested him to get the postmortem conducted on the dead body of Shilpi; he had gone to Mortuary, Lady Harding Hospital where IO already conducted inquest proceedings which were attested by him and proved the same as Ex.PW12/A. The request of the IO for conducting -::24::- FIR No 642/07 PS: Pahar Ganj postmortem was proved as Ex.PW12/B; the dead body had been identified by the relations of the deceased and their statements Ex.PW12/C and Ex. PW12/D were recorded by the IO. After postmortem the dead body was handed over to the relations of the deceased vide Ex. PW 1/B. He had also attested the death report Ex. PW12/E and DD nos 12A and 19A Ex. PW12/G and Ex. PW12/F respectively.
4. MEDICAL WITNESSES PW8 Dr. Jyoti Meena, has stated that on 25/12/2007 while working as Junior Resident in RML hospital; she had prepared the death report of Shilpi W/o Madan Kumar bearing serial no. 47792 MLC no. 62130/07 and proved the same as Ex. PW8/A. PW13 Dr. Amit Saxena was also working as Junior Resident in Surgery (Emergency) in RML hospital on 19/12/2007 under Dr.M.P.Arora unit. He has deposed that on the said date at about 6.20PM he had examined Shilpi W/o Madan Kumar and had declared her "fit for statement" on the MLC no. 62130/07 at point- Y (earlier marked as mark-X) and the same were proved as Ex. PW13/A which bears his signature at point- A. He further stated that words "Dr. M.P.Arora" at point- Y1 on Ex. PW13/A have been written by him to indicate that he was working in his unit and Dr. M.P. Arora -::25::- FIR No 642/07 PS: Pahar Ganj had not examined the patient and the patient was examined by the Senior Resident.
In his cross-examination by Ld defence counsel he has stated as under:-
"The patient was first brought to Casualty (Emergency) and was then shifted to Surgery(Emergency). The patient had been administered first-aid at casualty (emergency) and was then shifted to our ward. She was not admitted in my presence. She was being treated by our unit. At 6.20 PM when I had declared her "fit for statement". I had not personally treated her but she was being treated by the Sr. Resident Dr. S. N.Gole or Dr. Abhishek of our unit. While declaring the patient fit for statement, I had examined her and had seen that she was oriented and conscious with regard to time place and person. It is correct that I have not specifically recorded in my endorsement that I had examined the patient and had seen that she was oriented and conscious with regard to time, place and persons . I had also not recorded her physical and mental condition. Apart from the endorsement made by me, there is nothing in the MLC in my hand. I had informed the unit Incharge orally that I had declared the patient "fit for statement" but had not informed him in writing. It is correct that my endorsement had not been counter signed by any other doctor. Without consulting the treatment chart, I cannot say what medicines/injections were prescribed to the patient. I had myself examined the patient in order to see whether she was fit for statement. I had examined her on the direction of my Sr. Resident. I had handed over the MLC to the Constable on duty in the hospital. I might have handed over the MLC within half an hour of making -::26::- FIR No 642/07 PS: Pahar Ganj the endorsement. It is correct that if a patient is feeling difficulty in speaking, she cannot be declared fit for statement. It is incorrect to suggest that the patient was not fit for statement and I had made the endorsement under the pressure of the police. It is incorrect to suggest that I had made the endorsement without examining the patient under pressure of my seniors. It is incorrect to suggest that the patient was not in a position of speak. It is incorrect to suggest that the patient was not fit for statement and therefore Dr. M.P. Arora had refused to sign on the MLC."
PW14 Dr. Abhishek Yadav Senior Resident, Department of Forensic Medicine, Lady Harding Medical College has deposed as under:-
" On 26.12.07 at 12.00 p.m dead body of Shilpi W/o Madan Kumar aged 23years, female, was submitted to me with the inquest papers with alleged history of by being burnt after pouring Kerosene by her mother-in-law on 19.12.07 for which she was admitted in RML hospital. I conducted the autopsy examination at 12.05 p.m. On examining the body, the height of the deceased was 165 cms and weight was 48 Kg.
On external examination, I found body of a young female wrapped in blanket with antiseptic dressing present over the burnt area. I found superficial to deep ante mortem flames burns involving chest and abdomen, half of back at flanks, both upper limb, face and head alongwith neck, front of lower limb till the level of knee and back of thighs. Rest of the body parts along with genitalia were spared. Blackening and -::27::- FIR No 642/07 PS: Pahar Ganj charring was present at places. Singeing of scalp and body hair was present. Greenish discolouration with slough present over the burnt area at places. Total burnt area involved about 70% of total body surface area.
On internal examination, Head and neck, skull was NAD, brain was oedematous and congested and weighed 1300 gm. Larynx , Pharynx, neck structures, chest wall, mediastinum, diaphragm, oesophagus, trachea, bronchi, were NAD.
Lungs were both oedematous and congested. Right Lung weighed 440 gm, left lung weighed 400 gm. Heart weighed 180 gm and was NAD. Abdominal wall, peritoneum, pancreas, intestines, genital organs, spinal column, muscles and bones were NAD. Liver weighed 1000 gm and was congested. Spleen weighed 120 gm and were congested.
On the basis of above examination, I opined that the cause of death in this case is septicemic shock produced by the complication of ante mortem, superficial to deep, inflected flame burns involving about 70% of total body surface area and the time since death is about 1 day. The postmortem report is Ex. PW14/A which bears my signature at point- A. The report was prepared by me but Dr. Rajiv Sharma, Sr. Resident was also associated with the conduct of the post-mortem. He has signed the post-mortem report Ex. PW14/A at point- B. I identify his signatures as I have seen him signing during the course of my duties. Our report is correct. After the postmortem, I had handed over the inquest papers alongwith the postmortem report to the IO . Scalp hair was preserved and were also handed over to the IO .-::28::- FIR No 642/07
PS: Pahar Ganj XXXXXXXX by Shri Usman Chaudhary for the accused.
I cannot tell the state of the health of the patient before the injuries were inflicted on her.
Court Question: Was it possible to take the left thumb impression of the deceased? Answer: It is possible that the left thumb impression of the deceased might have been taken at the time of her admission or immediately thereafter and thereafter a dressing had been performed on the thumb, the skin might have peeled off.
At the time of postmortem the skin had peeled off from both the thumbs of the hands."
PW23 Dr. Padma was working as CMO as well as Emergency Control Room Officer in RML hospital and has deposed that the MLC of Shilpi was prepared by Dr. Jitender Chawla, Medical Officer on 19/12/2007 and she identified his signatures and writing because he had worked under her supervision; Dr. Jitender Chawla has proceeded on long leave for studying in USA and there was no chance of his return in near future. She has proved the MLC prepared by Dr. Chawla Ex. PW23/A and has identified his signature -::29::- FIR No 642/07 PS: Pahar Ganj at point-A. In her cross-examination by Ld defence counsel she has stated that though she had no personal knowledge as to how the patient was treated or handled by Dr. Chawla but she can explain the line of treatment from the record as well as from the contents of the MLC. She has stated that as per condition of the patient shown in the MLC the treatment mentioned on the MLC was insufficient. However, Vol. stated that medical officer in Casualty only gives first-aid and thereafter referred the patient for specialist treatment; the bandage to the burn patient is not a treatment in the category of only the first-aid and Vol stated that the bandage is done to a burn patient because the patient is to be referred in the same condition for further treatment by the specialist. The patient is to be sent in the same condition within 5/10 minutes immediately. She further admitted that bandage is done in surgery department/ burn ward as early as possible to a burn patient.
PW26 Dr. L. K. Makhija has stated that he was working as head of the department of Burns and Plastic Surgery, RML hospital. He has deposed that he had seen the death summary report of the patient prepared by Dr Ashish who was working as Senior Resident and was not working at present in the RML hospital as per information available with the hospital record. He had identified his -::30::- FIR No 642/07 PS: Pahar Ganj signatures on the death summary Ex. PW26/A which bears signatures of Dr Ashish at point- X. In his cross-examination by Ld defence counsel and during court question he has relied as under:-
"I have the personal knowledge of the matter because at that time also on 19/12/2007 I was working as head of the department of Burn and Plastic Surgery RML hospital and Dr. Ashish was working under my supervision being head of the department.
5) Both the accused were examined u/s 313 CrPC in which they have denied the allegation stating that they are innocent and falsely implicated in this case. They have desired to lead evidence in defence and accordingly examined two defence witnesses.
6) DW1 Jaspal Singh has deposed that on 19/12/2007 at about 11.30 AM to 12.30 PM on hearing voice of public persons at his shop in the same gali and went to the spot and saw Shilpi wife of Madan Kumar coming down stairs in a burnt condition, she reached in the gali and the public persons tried to extinguish the fire by pouring water as well as clothes upon her; someone informed the police and they including her husband took her to the hospital; thereafter police enquired from the locality including him; at the time of this incident husband of Shilpi was informed who came to the spot thereafter and the mother-in-law of the -::31::- FIR No 642/07 PS: Pahar Ganj Shilpi came when Shilpi was removed to hospital; being the neighbourer they were assured by the police that justice will be done.
In his cross-examination by Ld Addl. PP for the State he stated that he was running a sweet shop in the same gali on the corner and his statement was recorded by the police. He was confronted with the statement recorded by the police Ex. DW1/P1 as he has deposed that he did not state to the police that on 18/12/2007 he was not present at his house as he went to the house of his sister-in-law at Virender Nagar, Tilak Nagar and had come back to his house on 24/12/2007. He has admitted having made signature at point- A on Ex. DW1/P1. He further stated that he was not aware if deceased Shilpi had made statement to the SDM alleging that her mother-in-law Maya Devi poured Kerosene oil upon her and then set her on fire.
DW2 Prabhu Dayal has stated that on 19/12/2007 they are sitting in the gali for sun bath and in between 11.00 AM to 12.00 Noon they heard the noise of Mohala people " aag laga lee"
they saw that wife of Madan Kumar was burning and coming down by stairs.; all mohala people including him then poured water on her burning body and someone informed the PCR which reached on the spot and in between local police also came from -::32::- FIR No 642/07 PS: Pahar Ganj the Police Station; PCR rushed her to hospital; all mohala people including him went to the Police Station and accused Maya Devi also with them and they had requested SHO to carry out fair investigation and also assured them about her innocence and good conduct; after about 10-15 days accused Maya Devi was arrested in this case; they again approached the SHO and confirmed the innocence of the accused Maya Devi.
In his cross-examination by Ld Addl. PP for the State he was not aware whether deceased Shilpi had made a statement to the SDM by saying that her mother-in-law Maya Devi poured kerosene oil upon her and then set her on fire. He further stated that while Shilpi came down through stairs she was burning and was shouting. In a court question as to what shout/noise was being made by Shilpi while coming down in burning condition he replied that 'wah tadap rahi thi, gali me hum ne usper paani dala".
7) I have heard Shri Usman Chaudhary, Ld counsel for both the accused who has assailed the prosecution case on following grounds:-
i. Deceased Shilpi has not made any dying declaration as alleged and the same has been manipulated and fabricated statement. Statement Ex. PW11/A which -::33::- FIR No 642/07 PS: Pahar Ganj has been pressed into service by prosecution as dying declaration is a fabricated document because the MLC Ex.
PW13/A which shows the deceased "fit for statement "also mentioned in it that she was having difficulty in speaking. PW13 Dr. Amit Saxena who has declared her fit for statement after 6 hours of her admission in the hospital, in his cross-
examination has admitted that patient cannot be declared fit if there was any difficulty in speaking. Therefore, the MLC and the observation of the doctor declaring her fit for statement is contradictory as explained in his cross-examination which shows that since she was having difficulty in speaking and therefore she has been declared fit for statement under pressure from the police. It is further argued that PW13 Dr. Amit Saxena who has declared the patient fit was not competent to give the said observation. He had not treated her being Junior doctor and no reason has been assigned as to why Mr. M.P. Arora head of the department has not made the said observation regarding declaration for fit for statement. It is also stated by the PW13 Dr. Amit Saxena that he had not informed head of the unit doctor Mr. M P -::34::- FIR No 642/07 PS: Pahar Ganj Arora in writing about his declaring Shilpi fit for statement. PW13 Dr. Amit Saxena has not made any endorsement that he had examined the deceased for satisfying himself regarding declaring her fit for statement.
ii. Another reason that Shilpi has not made dying declaration is that considering the burn injuries on her body including her hands and thumb ,it was not possible for her to put her thumb impression on the statement Ex PW11/A because PW14 Dr Abhishek Yadav who has conducted postmortem on her dead body found the skin of thumbs having been peeled off.
iii. Even if, it is assumed that the statement Ex. PW11/A was allegedly made by Shilpi, same does not qualify to be a dying declaration as admissible u/s 32 (1) of Indian Evidence Act because the same was neither voluntary nor straight forward as Shilpi being tutored by her parents before making the said statement. Ld counsel pointed out that PW11 Shri Vipin Talwar in his cross-examination has admitted that father of the victim was present with her at the time when he had reached the hospital. PW1 Rajender Kumar father of Shilpi has stated that he had met -::35::- FIR No 642/07 PS: Pahar Ganj his daughter Shilpi in the hospital when she was in pain.
iv. Prosecution has failed to prove that the deceased was treated with cruelty on account of insufficient dowry immediately before her death and as such requirement of Section 113 (B) Indian Evidence Act for presumption about the dowry death has not been fulfilled. The only independent witness regarding cruelty before her death can be PW7 Kaushal who was mediator in the marriage of the deceased with accused Madan Kumar. The deposition of PW7 is not reliable and trustworthy and was declared hostile and was cross-examined by Ld Addl. PP for the State. Even she has admitted in her cross-examination that parents of the deceased had not complained to her about accused persons that they were harassing her daughter for dowry.
v. All the public witnesses are interested
witnesses being near relative of the
deceased and they have not witnessed the occurrence and their deposition is in the nature of hear-say evidence which is not admissible in evidence.
vi. The commission of the offence of burning of the deceased by her mother-in-
-::36::- FIR No 642/07
PS: Pahar Ganj law accused Maya Devi is not possible because the accused is about 55 years of age whereas deceased was 32 years of age. The deceased was not having any physical ailment or infirmity and was hail and hearty and as such it was not possible for accused/mother-in-law to pour kerosene oil upon her and then set her on fire.
vii. The recovery of articles Ex. P1 to Ex.
P6 from the spot is not admissible because PW16 HC Chander Bhan in his cross-
examination has stated that "I have seen photograph mark-A to mark-E. the plastic bottle containing kerosene oil Ex.
P1 and match stick Ex. P5 along with half match box cover Ex. P6 are not seen in the photograph mark-A to E." It is argued that the above fact shows that articles Ex. P1 to Ex. P6 were not recovered as the same has been manipulated in order to fabricate the false evidence against accused.
viii. The above deposition of PW 16 Ct.
Chander Bhan is contradicted by the deposition of IO PW24 ASI Khursheed Ali who has stated that bottle Ex. P1 was not seen in the photographs as the same was kept behind the door and was recovered lateron.
-::37::- FIR No 642/07
PS: Pahar Ganj
ix. DD no. 19A Ex. PW12/F was sufficient
to constitute as an FIR because the name of the deceased, place of occurrence and person who has brought her to hospital are mentioned in it, therefore the statement Ex. PW11/A recorded by SDM Vipin Talwar is hit by section 162 CrPC and the same has been manipulated and fabricated in order to falsely implicate the accused persons.
x. The defence witness examined by the accused has established that accused were not present at the time when deceased came down in burning condition and shouting and lateron her husband came there and rushed her to hospital. It was not a homicide but suicide by the deceased because she was frustrated as it was admittedly her fourth marriage and her three earlier marriages had failed because of her irreconcilable nature.
8) Ld defence counsel therefore vehementally argued that prosecution has failed to prove its case against accused and they are entitled to acquittal. In support of his arguments Ld counsel has referred and relied upon following cases:-
1. State of Punjab appellant Vs. Gian Kaur , AIR 1988 SC 2809 wherein it was held that :--::38::- FIR No 642/07
PS: Pahar Ganj "5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves . The High Court found evidence of Dr. Ajay Sahni - P.W.1 not reliable as he failed to satisfactory explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja he had performed the postmortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view.
2. Paparambaka Rosamma and others V. State of Andhra Pradesh, AIR1999 SC 3455 wherein it was held that :-
"7. After going through the evidence of K. Lakshamana Rao (PW13) and Dr. K. Vishnupriya Devi (PW 10) and on very careful perusal of the said document, there are some inherent defects and improbabilities which could not persuade us to accept the said dying declaration as a truthful and voluntary for the reasons set out hereinafter.
8.......In our opinion, in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration. It is a case of circumstantial evidence and only circumstance relied upon by the prosecution is dying declaration.
9. .........It was , therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was a fit state of mind. In our opinion, the certificate appended to -::39::- FIR No 642/07 PS: Pahar Ganj the dying declaration at the end by Dr. Smt K. Vishnupriya Devi (PW 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration ....................................... 12 ................There is also no evidence on record to indicate the Smt Venkata Ramana (since deceased) was meted out any ill treatment or there was any dowry demand. The only grievance made in the dying declaration was that she wanted to live separately but her husband was not prepared and on that score, the husband (acquitted) had beaten her in the afternoon on the previous day. It was then stated there in that her grand mother disliked her. These statements in the dying declaration, in our opinion, are not sufficient to substantiate the prosecution, are not sufficient to substantiate the prosecution case that Smt Venkata Ramana (since deceased) was meted out with ill treatment, an offence punishable under section 498A of the Indian Penal Code."
3. Mainram Vs. State of Madhya Pradesh, AIR 1994 SC 840, in this case allegations against the accused husband were that he poured kerosene oil on the deceased wife, set her on fire and ran away. There was no evidence against accused except the dying declaration recored by Sub-Inspector in the nature of FIR.
Failure to take the signatures and thumb impression of the deceased on the said statement and there being no attestation from the doctor to the effect as to whether patient was conscious or not, the dying declaration was held to be of highly -::40::- FIR No 642/07 PS: Pahar Ganj doubtful in nature and accused was acquitted.
4. K. Ramachandra Reddy and another Vs The Public Prosecutor, AIR 1976 SC 1994 , wherein it was held that :-
"A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example. Whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement. By circumstances beyond his control; the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. AIR 1958 SC 22, Rel. on."
5. Surinder Kumar Vs State, 45 (1991) Delhi Law Times 372 (DB). In this case it was held that dying declaration recorded by Magistrate without certificate of fitness by doctor, neither in question answer forms nor in the language of the deceased and recorded after 12 hours of burning incident and in the presence of near relative was not reliable.
6. In Kamal Kumar V state statement reported as 59 (1995) -::41::- FIR No 642/07 PS: Pahar Ganj DLT 65 (DB) it was held that when other circumstantial evidence is contradictory to the statements made in dying declaration and such dying declaration is falsified as well as becomes improbable and unbelievable in view of the circumstances and material on record , same cannot be relied for conviction without independent corroboration.
9) Ld Addl. PP for the state on the other hand argued that prosecution has established by the evidence of PW11 and PW12 and PW13 that the dying declaration made by deceased was voluntary and straight forward because PW13 Dr. Amit Saxena has proved that the deceased was fit for statement and PW11 Vipin Talwar has recorded a dying declaration after being satisfied that the deceased she was in fit state of mind, able to speak and has narrated the incident easily elaborating the circumstance of sustaining burn injury by her to which she ultimately succumbed and died. Ld Addl. PP for the State has further submitted that he has also taken due precaution at the time of recording the dying declaration by asking everyone near the patient to go out and has satisfied about the correctness and voluntariness of the statement made by deceased. Ld Addl. PP for the state further submitted that the deposition of defence witnesses does not support the defence -::42::- FIR No 642/07 PS: Pahar Ganj of the accused and they have rather supported and corroborated the prosecution story and as such prosecution has established the guilt of the accused persons by proving its case beyond reasonable doubt. It is also argued that there is no circumstance established on record so as to disbelieve the testimony of prosecution witness who has successfully faced the test of cross-examination.
10) I have considered the rival submissions made at bar and gone through the material on record.
11) The testimony of medical witnesses PW23 Dr. Padama who has proved the MLC Ex. PW23/A prepared by Dr. Jitender Chawla in the Casualty of RML hospital, PW13 Dr. Amit Saxena who had declared the deceased fit for statement at the time recording of the dying declaration Ex. PW11/A and Dr. Abhishek Yadav PW14 who had conducted the postmortem on the dead body of Shilpi, has established that the deceased died because of burn injuries sustained by her which were ante-mortem and has been caused by flame burns. Even the deposition of DWs has established that on 19/12/2007 at about 11.30 AM to 12.30 PM deceased Shilpi wife of accused Madan Kumar had sustained burn injuries and was seen by them coming down stairs in burnt -::43::- FIR No 642/07 PS: Pahar Ganj condition and they have poured water upon her in order to extinguish the fire. It is also established by the deposition of DWs that the PCR van came on the spot and injured was rushed to hospital by the PCR van and she was also accompanied by her husband accused Madan Kumar. It has not been disputed that Shilpi had sustained burn injuries and lateron died because it was suggested to PW24 ASI Khursheed Ali the IO that Shilpi had put herself on fire and when she ran for help, she fell down from the stairs, sustained injuries and died.
12) According to the defence, Shilpi had committed suicide because she was frustrated due to her churlish nature and was not able to continue in the present marriage because her three marriages had already failed. In view of the prosecution story and the admitted testimony of defence witnesses and the stand taken by the accused as suggested in the cross-examination of IO , it is established that the deceased Shilpi has sustained burn injury and lateron succumbed to the same and died in the hospital. The only dispute is left whether she had been set her on fire by accused Maya Devi as is being alleged by the prosecution or she has herself set on fire as is being alleged by the accused. In other words, the question to be determined is whether the material on record has established her death to be because of homicide as is the -::44::- FIR No 642/07 PS: Pahar Ganj prosecution case or because of suicide as is being claimed by the defence.
13) Let us examine the evidence of prosecution to ascertain whether it has been established that the deceased Shilpi was set on fire by accused Maya Devi after pouring kerosene oil upon her.
14) In order to establish the above fact, the prosecution is relying upon statement of deceased Shilpi Ex. PW11/A , testimony of PW1 Rajender Kumar , PW3 Beena and PW7 Kaushal.
15) Statement Ex. PW11/A alongwith testimony of PW1, PW3 and PW7 has been relied by the prosecution as a dying declaration made by the deceased, a piece of evidence admissible u/s 32 (1) of the Indian Evidence Act. In order to appreciate the said evidence, I find it necessary to discuss the relevant law on the admissibility of dying declaration. In Jai Karan Vs State of NCT Delhi, AIR 1999 Supreme Court 3512, it was held that :-
"A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rue forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person -::45::- FIR No 642/07 PS: Pahar Ganj who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence can not be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak- and can be acted upon without corroboration if it is found to be otherwise true and reliable. MANU/SC/0523/1991 Padmaben Shamalbhai Patel V.State of Gujrat Para 8.
In Panneerselvam V State of Taimil Nadu,(SC) 2008(3) R.C.R. (Criminal) 54:2008 (3) R.A.J.549 , it was held that :
"7. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on his deathbed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
8.Though a dying declaration is entitled to great -::46::- FIR No 642/07 PS: Pahar Ganj weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of min d after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It can not be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This court has laid down in several judgements the principles governing dying declaration, which could be summed up as under
as indicated in Smt. Paniben V. State of Gujarat, 1992(3) RCR (Criminal) 552; (AIR 1992 SC 1817):
(i)There is neither rule of law nor of prudence that dying declaration can not be acted upon without corroboration. (See Munnu Raja & Anrs. v. The State of Madhya Pradesh (1976) 2 SCR 764).
(ii)If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh V. Ram Sagar Yadav and Ors., 1985(1) RCR (Crl.) 600: (AIR 1985 SC 416) and Ramvati Devi v. State of Bihar (AIR 1983 SC 164) -::47::- FIR No 642/07 PS: Pahar Ganj
(iii)the Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.(See K.Ramacharandra Reddy and Anr. V. the Public Prosecutor (AIR 1976 SC 1994).
(iv)Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v.
State of Madhya Pradesh (1974 (4) SCC 264).
(v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (see Kaka Singh v State of M.P. (AIR 1982 Sc 1021)
(vi)A dying declaration which suffers from infirmity can not form the basis of conviction. (See Ram Manorath and Ors. V. State of U.P. (1981 (2) SCC 654).
(vii)Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurthi Laxmipati Naidu (AIR 1981 SC
617).
(viii)Equally, merely because it is a brief statement, it is not to be -::48::- FIR No 642/07 PS: Pahar Ganj discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Oza and Ors.v State of Bihar (AIR 1979 SC 1505).
(ix)Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (see Nanahau Ram and Anr. V. State of Madhya Pradesh (AIR 1988 SC 912).
(x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. V. Madan Mohan and Ors.(AIR 1989 SC 1519).
(xi)Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839).
9. We find that the High Court has erroneously discarded the statements made by PWs 3, 4 and 6 to the effect that the deceased voluntarily told each one of them that he had set himself on fire. As rightly contended by learned counsel for -::49::- FIR No 642/07 PS: Pahar Ganj the appellant, even though one police official was present when the statement was made to PWs. 3,4 and 6, yet large number of relatives of the deceased, more particularly, PW1 who had taken him to the hospital were present also.
Additionally, the High Court has misconstrued the dying declaration. The deceased had categorically stated therein that he did not know who set him on fire. The High Court observed, as if, the deceased had said that either A1 or A5 did so. The conclusions have been arrived at by misreading the evidence.
Therefore, the impugned judgment of the High Court can not be maintained and is set aside. The appellant in each case is acquitted of the charges. The appellants be released from custody forthwith unless required in any other case. The appeals are allowed.
In Amol Singh Vs State of M.P., (SC) 2008(3) R.C.R. (Criminal) 602: 2008 (4) R.A.J. 343: 2008 (5) S.C.C. 468, it was held that :
"13. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (see : Kundula Bala Subramanyam v. State of A.P. (1993) 2 SCC 684). However, if some inconsistencies are noticed between one dying declaration and the other, the court has to -::50::- FIR No 642/07 PS: Pahar Ganj examine the nature of the inconsistencies, namely whether they are material or not. While scrutinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."
16) In the light of law referred above, I will discuss the three oral dying declarations and one dying declaration recorded by Magistrate as relied by the prosecution.
17) The first and most important dying declaration is the statement of deceased Shilpi Ex. PW11/A recorded by PW11 Executive Magistrate Vipin Talwar. In the said statement the deceased has narrated the incident as under:-
" She was married to Madan Kumar as per Hindu Rites about 1½ year ago; my father had given sufficient dowry as per his capacity, but after 5-6 months of my marriage my mother-in-law Smt Maya Devi w/o late Shri Mohan Lal started giving beatings to me for bringing more dowry. On the instigation of my mother-in-law sometimes her husband Madan Kumar also gave beatings to her. I have two sister and one brother . I am at number three. I am not yet blessed with any baby. For the last 2-3 days in my home, my mother in law was quarreling for more dowry. Today at about 12.30 forenoon when I was in my home at that time my mother in law Maya Devi came upstairs and started quarreling with me and after taking kerosene oil from a bottle poured the same on me with the help of match box set me on fire. Writhing with pain I rushed towards street by stepping down stairs and at that time I was shouting and taking the name of my husband. In the street people poured water upon me and thereafter I -::51::- FIR No 642/07 PS: Pahar Ganj became unconscious and after some time I regained my consciousness and found that my husband was taking me in a three wheeler scooter. I have heard the statement and found the same to be correct . LTI of Shilpi Recorded by me at 6.45 pm Signature Vipin Talwar 19/12/07 Executive Magistrate Sub-division Darya Ganj Central District."
18) The above statement of Shilpi was endorsed as rukka Ex.PW11/B by ASI Khursheed Ali of Police Station Pahar Ganj. On the basis of said rukka the FIR Ex. PW15/A for the offence u/s 307/498A/34 IPC was registered .
19) Ld counsel for the accused has argued that statement Ex.PW11/B is not admissible u/s 32 (1) Indian Evidence Act because firstly, Shilpi was not in fit state of mind because the MLC Ex. PW 13/A shows that she was having difficulty in speaking and PW13 Dr. Amit Saxena has admitted in cross-examination that if a patient is feeling difficulty in speaking, she cannot be declared fit for statement; further, PW13 Dr. Amit Saxena admittedly did not treat Shilpi and as such he had declared her fit for statement without examining her and had not even informed the head of the -::52::- FIR No 642/07 PS: Pahar Ganj unit and as such the "fit for statement" endorsement has been manipulated and fabricated. Secondly, Shilpi has not signed/put her thumb impression on the said statement because after sustaining burn injuries admittedly skin of her thumbs was peeled off and she was not capable of either signing or putting her thumb impression on the said statement and PW11 Executive Magistrate has therefore recorded the statement on his own and has thus fabricated it in connivance with police. Thirdly, it is argued that even if it is assumed that statement Ex. PW11/A was made by Shilpi, the same has been made after she being tutored by her parents and other relatives who were present with her before making the statement and even at the time of making the statement by her. Hence, it is argued that the prosecution has failed to establish that the said dying declaration was made in a fit state of mind and for the above reasons the prosecution could not prove that the dying declaration was genuine, true and free from all doubts; and also that the other circumstantial evidence is contradictory to the statement made in the dying declaration because the bottle containing kerosene oil and other articles were not proved to have been recovered from the spot and accused was not physically competent to perpetrate the crime because it is admitted by the prosecution witnesses that the deceased was -::53::- FIR No 642/07 PS: Pahar Ganj physically fit and hail and hearty. Reliance has been placed by Ld defence counsel on AIR 1999 SC 3455 and Kamal Kumar Vs. State (referred supra).
20) I have carefully scrutinized the testimony of PW14 Dr.Abhishek Yadav who has conducted the postmortem and PW13 Dr. Amit Saxena who had declared Shilpi fit for statement and PW11 Vipin Talwar, Executive Magistrate who had recorded the dying declaration. In his cross-examination PW13 Dr. Amit Saxena has categorically stated that the patient was shifted to surgery (Emergency ward) from the casualty; she was being treated by their unit; at 6.20 PM when he had declared her fit for statement, he had examined her and had seen that she was oriented and conscious with regard to the time, place and person; he had informed the unit Incharge orally regarding declaring the patient fit for statement; he had himself examined the patient in order to see whether she was fit for statement; he had examined her on the direction of his senior resident.
21) PW14 Dr. Abhishek Yadav who had conducted the postmortem, in a question put by Ld defence counsel as to whether it was possible to take the left thumb impression of the deceased he has replied that it was possible that the left thumb -::54::- FIR No 642/07 PS: Pahar Ganj impression of the deceased might have been taken at the time of her admission or immediately thereafter and after a dressing had been performed on the thumb , the skin might have peeled off.
22) PW11 Shri Vipin Talwar has stated that on 19/12/2007 after receiving a message from SDM Pahar Ganj at about 6.15 PM regarding a case of burning he went to RML hospital and recorded the statement of injured Shilpi at about 6.45 PM; the statement was Ex. PW11/A and injured had put her left thumb impression at point- X and X1. He further stated that before recording the statement of Shilpi he had asked the doctor attending upon the patient as to whether she was fit for making statement and the doctor had opined in affirmative and has also recorded his opinion on the MLC mark-X at point-Y. He further stated that statement Ex. PW11/A was recorded in his own handwriting. In his cross-examination, PW11 has stated that at the time of recording of statement the victim perhaps was admitted in emergency ward; he had recorded the statement of Shilpi when nobody else was present and he had asked all others including the father of Shilpi to go out; the doctor had already made his endorsement regarding the fitness of the victim and he had also confirmed this fact from the doctor before recording her statement; he had taken about 10 minutes in recording her statement; Shilpi -::55::- FIR No 642/07 PS: Pahar Ganj was not in a position to sign and had therefore affixed her left thumb impression; the left thumb impression of the victim was obtained as it was easier for her to put that impression as per her position on the bed; the face of the victim had also been burnt; the right hand has also been burnt; the left hand had also burn injury except that she was able to put her thumb impression.
23) MLC Ex. PW23/A (mark-X and also PW13/A) was prepared by Dr. Jitender Chawla at about 1.15 PM when she was first brought to the hospital in a burnt condition. On general examination regarding her condition in column-VI (speech) it is mentioned difficulty in speaking. The endorsement fit for statement was made by Dr. Amit Saxena Junior Resident Surgery at 6.20 PM in Surgery ( Emergency ward). As per statement of PW23 Dr Padama who had proved the MLC prepared by Dr.Jitender Chawla, she has stated that the medical officer in Casualty only gives first-aid and thereafter refers the patient for specialist treatment; the burn patient is sent in a same condition within 5-10 minutes immediately for further treatment by specialist.
24) Thus, after treatment by specialist within a period of 5 hours the patient might have become stable and at the time she was declared fit for statement, she might not been facing difficulty in -::56::- FIR No 642/07 PS: Pahar Ganj speaking. Moreover, the patient had survived for six days, therefore there is nothing to show that she was not able to speak at the time when her statement was recorded by PW11 and she had been declared fit for statement by Dr. Amit Saxena at about 6.20 PM on 19/12/2007. Further, the deposition of PW1 Rajender PW3, Beena, PW7 Kaushal has also established that while in the hospital Shilpi was able to speak on 19/12/2007 and she had also narrated the incident to them. Regarding taking left thumb impression on the statement Ex. PW11/A, the explanation given by PW11 is found to be natural and as per the medical condition of the patient. Even on examination of thumb impression at point- X and X1 on Ex. PW11/A it is found that the ridges and curves are not completely visible and at some place the same are missing which shows that the thumb was also having burn injuries and for that reason the same was affixed by deceased Shilpi in the circumstances as explained by PW11. The above discussion shows that the statement Ex. PW11/A was made by Shilpi in a fit state of mind and had made the same voluntarily on the basis of her personal knowledge without being influenced by others. Her statement is not a result of either tutoring or prompting or a product of imagination. The medical expert as well as the Executive Magistrate who had recorded the statement has -::57::- FIR No 642/07 PS: Pahar Ganj unequivocally deposed that the deceased was in a fit state of mind and in conscious state while making the dying declaration. Thus, the statement Ex. PW11/A of deceased Shilpi recorded by PW11 Vipin Talwar, Executive Magistrate, therefore, qualifies, to be a statement of deceased about the cause of her death which is admissible u/s 32 (1) of the Indian Evidence Act. I am fortified in my view by the judgment of Hon'ble Apex court in the case of Heera Lal Yadav Vs. State of M.P and others, cited as 2006 (3) RCR (Crl.) 804 where it was held:-
10. The other ground on the basis of which the High Court rejected the dying declaration (Ex.P-2) as doubtful and unreliable is that PW-1 Dr.Khan did not state that the deceased was in a fit mental condition to give dying declaration and throughout remained conscious when his statement was recorded. According to the High Court as is evident from PW.1 Dr.Khan that the deceased was in semi-conscious condition and his blood pressure had gone down to 90/60. The High Court has also referred to Dr.Pramod Kaushik PW- 10 who conducted autopsy on the dead body and stated that due to excessive hemorrahage the deceased must have gone in shock within hlaf an hour after the incident. PW-10 also stated that blood transfusion could not be given, as the facility was not available at Agar.
Accordingly, the High Court held that in such mental condition, the recording of dying declaration could not be possible.
-::58::- FIR No 642/07
PS: Pahar Ganj
11. In our view, the High Court was grossly oblivious to the statement of Dr. Khan when he said that the deceased must have gone in shock at the place of incident but he recovered consciousness as he was given glucose saline and medicines.
12. The main attack on the dying declaration by the counsel for the accused is that considering the nature of the injury suffered by the deceased there was excessive hemorrhage and the deceased must have gone in shock within half an hour after the incident and since blood transfusion could not be given, the so called dying declaration recorded by Dr. Khan (Ex.P.2) is not reliable.
According to the counsel, the High Court was justified in not relying on the said dying declaration. We are unable to countenance such submission.
13. Ex.P-3 is the requisition dated 14-04- 1993 sought by the Investigating Officer regarding the condition of the deceased Gokul Singh son of Nirbhay Singh for recording dying declaration. There is an endorsement in Ex.P-3 by the Medical Officer Primary Heath Center by PW-1 Dr.A.S.Khan that the deceased Gokul Singh son of Nirbhay Singh aged 35 years would be able to give the statement of dying declaration. In the dying declaration (Ex.P-2) the deceased in an answer to the question "who has beaten you" clearly stated that accused Gokul Singh s/o Amar Singh, Bhawar Singh s/o Ram Singh, Babulal son of Lal Singh and there were many others whose names he did not remember. He further stated that he was beaten with farsi, dhariya and lathis and badly beaten up -::59::- FIR No 642/07 PS: Pahar Ganj with weapons. He further stated that he was beaten near his well and field itself.
In an answer to a question "what were you doing", he stated, "I wasd answering call of nature there. all the people beat me with dharia, sword and farsi etc. weapons." The deceased also stated that he was giving the statement in full consciousness. He also stated that the dying declaration was not under any pressure.
14. Dr.A.S.Khan was examined as PW-1.
He has stated that on 14-04-1993, he was posted as Medical Officer at Primary Health Centre, Agar. On that day he recorded the dying declaration (Ex.P-2). he has also admitted that he has given the fitness certificate (Ex.P-3). In cross- examination he has stated that after 9:30 a.m. his treatment started, glucose and antibiotic medicines has been given, therefore, after 9:30 a.m. he had become conscious. He denied a suggestion that the condition of the injured further deteriorated. He has stated that the dying declaration was recorded in the operation theater in the presence of staff and inspector (SI) and the policemen. He further stated that the relatives of the patient Gokul Singh were not inside the operation theater. PW-1 was confronted with the principle of Samson Wright's Applied Physiology, page 152. He categorically ruled out the application of the principle.
16. One of the grounds on which the High Court disbelieved the dying declaration was that Dr.Khan did not state that the deceased was in a fit mental condition to give dying declaration and throughout remained conscious when his statement -::60::- FIR No 642/07 PS: Pahar Ganj was recorded. this reasoning of the High Court, in our view, is also fallacious. In the instance case, the doctor himself recorded the dying declaration (Ex.P-2). He has given the fitness certificate vide Ex.P-3 as referred to above stating that the patient was fit for recording dying declaration. Even if it is assumed that was not there, in view of the decision of the Constitution Bench of this Court in Laxman v.State of Maharashtra, 2002(4) RCR (Crl.) 149: (2002) 6 SCC 710, these would be no impediment to the creditworthiness of the dying declaration.
17. Counsel for the respondents referred to the Samson Wright's Applied Physiology, thirteenth edition and strenuously urged that if the same principle is applied and considering the nature of injuries sustained by the decased and due to excessive hemorrhage the patient must have gone in shock within half an hour after the incident and since no blood transfusion could be given the patient was not conscious and was not in a position to give the statement. As already noted PW-1 was confronted with this principle in cross-
examination and he completely ruled out the application of the principle in the present case.
18. Counsel also referred to the decision of this Court in Balak Ram V.State of U.P., (1975) 3 SCC 219. In that case this Court did not rely upon the dying declaration because the condition of the patient was critical; when he reached the hospital. Before the dying declaration was recorded an attempt was made to give him saline but even after making -::61::- FIR No 642/07 PS: Pahar Ganj incisions on the hands and a leg, the attempt did not succeed. In the present case saline and glucose was administered and the deceased regained consciousness.
19. Counsel also referred to the case of Paparambaka Rosamma v. State of A.P., 1999(4) RCR(Crl.) 104: (1999) 7 SCC 695.
This decision has been expressly overruled by a Constitution Bench in the case of Laxman v. State of Maharashtra, (2002) 6 SCC 710.
20. In the view we have taken, we are clearly of the opinion, that the dying declaration of the deceased recorded by PW-1 Dr.A.S.Khan and well corroborated with other attending circumstances inspires confidence, on the basis of which conviction could be sustained. The High Court committed grave miscarriage of justice by reversing the conviction recorded by the Trial Court. the impugned order of the High Court is set aside. The sentence and conviction recorded by the Trial Court is restored.
the appeal is allowed."
25) The second dying declaration is disclosure of fact of sustaining burn injuries by deceased to her father Rajender Kumar (PW1) who has deposed that on 19/12/2007 his sister-in- law Asha came to his house at about 4.00 PM and told him that Shilpi was admitted in RML hospital with burn injuries; he alongwith his wife and others reached at RML hospital where he met his daughter Shilpi who was in pain; on his asking, she told -::62::- FIR No 642/07 PS: Pahar Ganj him that "her mother-in-law had poured kerosene oil on her person and had set her on fire". He has further stated that on 19/12/2007 at about 8.00/8.30 P.M his statement was recorded by the SDM in Ram Manohor Lohia hospital which was proved as Ex.PW1/A and signed by him at point- A. In his cross-examination by Ld defence counsel he has stated that in the hospital his daughter was crying at the time when he had met her and she was saying "look daddy Maya Devi had done whatever she wanted to".
26) In his statement Ex. PW1/A recorded by SDM PW1 Rajender Kumar has categorically stated that his sister-in-law (wife of his brother-in-law Pappu ) Smt Asha Devi came to his house at about 4.30 PM and told him that his daughter Shilpi was set on fire by her mother-in-law Maya Devi and she had been rushed to RML hospital. He alongwith other relatives went to hospital where he found that his daughter was admitted there in burnt condition and on his asking she told him that her mother- in- law Maya Devi had poured kerosene oil upon her and then set her on fire.
27) Thus, the presence of PW1 Rajender Kumar in the hospital on 19/12/2007 after 4.30 PM and his meeting with Shilpi in the hospital stands established and it is further stands established that -::63::- FIR No 642/07 PS: Pahar Ganj Shilpi had made disclosure of fact about sustaining burn injuries at the hand of her mother-in-law accused Maya Devi. There is nothing in the cross-examination of this witness which may assail his deposition regarding disclosure of event to him by his daughter Shilpi as to how she had sustained burn injuries.
28) The third dying declaration is disclosure of facts of sustaining burn injuries by Shilpi to her mother PW3 Beena who has deposed that after knowing the facts from her sister-in-law Asha regarding admission of Shilpi in RML hospital with burn injuries; she went to RML hospital and met her daughter who told her that "her mother-in-law had set her on fire after pouring kerosene oil on her body from back side." Even in her cross- examination by Ld defence counsel she had reiterated that she had met her daughter in the emergency ward of RML hospital where accused Madan Kumar was also present.
29) The fourth dying declaration is narration of incident by Shilpi to PW7 Kaushal who is Mousi (sister of her mother) of Shilpi and had acted as mediator in the marriage of Shilpi with Madan Kumar. She has stated that accused Madan Kumar was divorcee as was Shilpi; relation between Shilpi and her husband were cordial but relations between Shilpi and her mother-in-law were not cordial as both of them used to quarrel over small household -::64::- FIR No 642/07 PS: Pahar Ganj chores; Shilpi used to tell her that there were occasional taunts from her mother-in-law that she had brought less dowry; Shilpi told her that Maya Devi wanted a gas stove to be made available at her home; Shilpi also told her that her husband used to beat her. She further stated that on the day of incident somebody had come to her and asked to visit the house of the accused immediately; accordingly she went there and found that there was a great commotion; Shilpi had been removed to the hospital by her husband; people in the gali were telling that Shilpi had come in a burnt condition from upstairs and had fallen down on the ground; she went to the hospital where she met Shilpi and she told her that her mother-in-law had poured kerosene oil on her and had set her on fire from the back. She further stated that Shilpi told her that Madan Kumar was not present at the said time; Shilpi further told her that while Maya Devi pouring kerosene oil on her she thought that she was pouring water. This witness was also suggested leading question by the Ld. Addl. PP for the State wherein she has stated that Maya Devi had been harassing Shilpi for want of dowry and both the accused had several times pushed her out of the house and has asked her to bring more money from her parents; harassment of the Shilpi started six months after her marriage and whenever Shilpi used to visit her she used to tell her -::65::- FIR No 642/07 PS: Pahar Ganj about the harassment at the hands of the accused; she had gone to the house of the accused persons and tried to reason out with them.
30) Thus, the presence of PW7 Kaushal in hospital and her meeting with Shilpi and thereafter disclosure of event of sustaining burn injury by Shilpi stands established beyond any reasonable doubt.
31) Ld defence counsel has strongly argued that the oral dying declaration as stated by PW1, PW3 and PW7 are not worthy of reliance because they were relative of deceased and therefore they being interested witnesses were inimical and biased to the accused and have therefore deposed falsely. It was further argued that these witnesses have improved their statement given to the police and have been confronted with the same in their cross- examination.
32) It is settled law that relationship is not a factor to affect the credibility of a witness so as to discard their testimony of being a partition witness. A reliance can be placed on Arjun Mahto Vs. State of Bihar , 2008 V AD (Cr.) (SC) 19. Para no. 5 and 6 are relevant and reads as under:-
Para. 5: Merely because the eye-witnesses are family members their evidence cannot per se be discard. When there is allegation -::66::- FIR No 642/07 PS: Pahar Ganj of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Para. 6 :In Dalip Singh and Ors. Vs. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we -::67::- FIR No 642/07 PS: Pahar Ganj are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
Similarly in Vinay Kumar Rai and Another Vs. State of Bihar, 2008 V AD (Cr) (SC) 392. In para no. 6 and 13 it was held as under:-
Para no. 6: Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relative of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Para no. 13: The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates -::68::- FIR No 642/07 PS: Pahar Ganj of that house, it is upragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it though the neighborhood may be replete with other residents also.
33) Thus there is nothing in the testimony of PW1, PW3 and PW7 so as to discard their testimony on the ground that they are relative of the deceased.
34) The above discussion shows that all the four dying declarations are found to be consistent and has been voluntarily made while the maker being in a fit state of mental condition.
Reliance can be placed on Amol Singh Vs. State of M.P (referred Supra).
35) Thus, the four dying declarations discussed above are found to be reliable because it has been established that the deceased who has made these dying declarations had the opportunity of identifying the accused and has made the same in -::69::- FIR No 642/07 PS: Pahar Ganj a fit state of mind, on the basis of her personal knowledge, without being influenced by others . No reason has been culled out by the Ld defence counsel regarding false implication of accused Maya Devi by the deceased. Had the deceased been guided by that intention, she would not have exonerated her husband and should have necessarily implicated him also for setting her on fire. In these given circumstances I have no hesitation to conclude that the declaration made by deceased in her statement Ex PW11/A to the SDM and her narration to PW1, PW3 and PW7 is an absolute truth about fact and circumstances leading to her death.
36) In order to establish the charge u/s 302 IPC, it was required by the prosecution to prove that the act of pouring kerosene oil upon Shilpi and then setting her on fire was done with an intention to causing her death. There is nothing in the dying declarations of Shilpi that accused Maya Devi had poured kerosene Oil upon her with an intention to cause her death. In her dying declaration Ex PW11/A deceased Shilpi had stated that her mother- in-law who was having a quarrelsome behaviour for the last 2-3 days, that day at about 12.30 O clock came to her room upstairs and started quarreling with her and in between brought a kerosene oil bottle, poured kerosene oil upon her and set her on -::70::- FIR No 642/07 PS: Pahar Ganj fire [ pichale dau-teen din se mere ghar me meri Saas aur dahej ke liya kalah kar rahi thi aaj subah karib 12.30 subah jab mai apane kamre mai thi usi samaya meri Saas Maya Devi upper aai tatha mujha se lardane lagi tatha mitti ka tel ki bottle laa kar mujh per tel dal kar machi se aag laga di........."] .
37) The prosecution has also relied upon other circumstantial evidence to prove the charge u/s 302 IPC. One such circumstantial evidence is in the form of recovery of various articles from the spot of occurrence i.e one plastic bucket, one plastic bottle having some kerosene oil, one empty match box, one red coloured dupatta partly burnt, a half burnt match sticks etc. Recovery of some of the above articles has not been established beyond reasonable doubt because the deposition of PW24 ASI Khursheed Ali who had reached on the spot after receiving the information and got the same photographed from the Crime team is found lacking in its straight forwardness. In his examination in chief he has stated that, he called the Crime team on the spot; SI Anil Kumar of Crime team reached on the spot; he took the photographs of the scene of crime alongwith photographs of one plastic bucket , one plastic bottle having kerosene oil, one empty -::71::- FIR No 642/07 PS: Pahar Ganj match box , one red coloured dupatta partly burnt. In his cross- examination he was shown photograph Ex. PW22/6 (mark-A) and after seeing it he has stated that the bottles shown in the said photographs were not seized by him; the bottle Ex P1 was not shown in any of the photographs. It is pertinent to mention that the bottle Ex. P1 is the bottle containing residue of kerosene oil. His explanation regarding Ex. P1 was stated in voluntary deposition that the same was seized lateron as it was kept behind the door (plank) and Crime team could not take the photograph of the same. His deposition in cross-examination is thus contradictory to his examination-in-chief. Even PW16 HC Chander Bhan has stated that on the first floor of the house one plastic bucket in burnt condition, one burnt match stick, one plastic bottle having the kerosene oil with a red cap were lying there. Thus, the deposition of HC Chander Bhan has also contradicted the deposition of ASI Khursheed Ali where he has voluntarily stated that plastic bottle having kerosene oil (Ex. P1) was kept behind the door (plank). Even PW 16 HC Chander Bhan who had seen the scene of occurrence and had safeguarded it till the photographs were taken, in his examination-in-chief has stated about one plastic bottle having kerosene oil lying there. But in his cross-examination after seeing photograph mark-A to mark- -::72::- FIR No 642/07
PS: Pahar Ganj E he has admitted that the plastic bottle containing kerosene oil Ex. P1 and match stick Ex. P5 alongwith half match box cover Ex. P6 were not seen in the photographs mark-A to mark-E. PW18 HC Subhash who was member of Crime team has stated that chance prints could not be taken as it was not possible according to the situation at that place. In his cross-examination he has stated that his team did best efforts for the chance prints but the same could not be taken or detected at the spot. Thus, the above discussion shows that the recovery of plastic bottle Ex. P1 containing kerosene oil from the spot has not been established beyond reasonable doubt. The chain of circumstantial evidence is therefore not completed and prosecution has not been able to establish all the circumstances in evidence so as to prove the charge u/s 302 IPC beyond reasonable doubt.
38) The other contention of Ld defence Counsel is that requirement of Section 113 (b) of the IPC for drawing presumption about the dowry death have not been fulfilled. I have carefully scrutinized the testimony of prosecution witnesses to find out whether the deceased had been treated with cruelty on account of insufficient dowry immediately before her death.
39) Since the accused person has been charged in alternative under section 304-B IPC read with section 34 IPC, it is necessary -::73::- FIR No 642/07 PS: Pahar Ganj to ascertain whether prosecution has proved beyond doubt that the death of Shilpi was a dowry death.
40) The term "dowry death" is defined under section 304- B of the IPC as under:-
"Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death".
41) Section 113 (B) of the Indian Evidence Act, 1872 creates a presumption for dowry death by laying down as under:-
"When the question is whether a persons has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
42) Thus in order to establish and prove dowry death as defined under section 304-B IPC, the prosecution is obliged to prove that : (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years -::74::- FIR No 642/07 PS: Pahar Ganj of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) such cruelty or harassment the deceased should have been subjected soon before her death."
43) From the prosecution evidence it has been established beyond reasonable doubt that the death of Shilpi was caused by burn injuries sustained by her on 19/12/2007 and she had died otherwise than under normal circumstances. It is also stands established that Shilpi was married about 1½ year before her death and as such her death have occurred within 7 years of her marriage.
44) Regarding ingredient (b) and (c) of deceased being subjected to cruelty or harassment by her husband and relative of her husband and that such cruelty or harassment was in connection with the demand of dowry, PW1 Rajender Kumar has stated that in-laws of Shilpi used to harass her for dowry; whenever she used to come to him she used to complain against her in-laws; her daughter had told him that accused Madan Lal used to give her beatings at the instigation of his mother. In his cross-examination he has stated that the marriage of his daughter with accused Madan Kumar was negotiated through his sister-in- -::75::- FIR No 642/07
PS: Pahar Ganj law Kaushal and he had told Kaushal a number of time that the accused were harassing Shilpi on account of dowry and no Panchyat had been held to resolve the matter.
45) PW2 Ritu is sister of deceased Shilpi has stated that whenever Shilpi used to visit their house she used to complain against the accused; about 4/5 months after marriage of Shilpi she was kept nicely by the accused but thereafter she was harassed by both the accused persons for want of dowry despite that her parents had given sufficient dowry as per their status. She further stated that whenever Shilpi used to visit their house she used to complain against accused; Shilpi had visited to her parent's house 1½ month prior to the incident and was having an injury in her thumb of hand and told that her mother-in-law had beaten her up and her husband had given a danda blow on the thumb. She further stated that Shilpi told them that she was beaten as accused persons had been demanding dowry. A few days prior to incident Shilpi had given a telephonic call at their residence and had stated that accused were demanding more dowry and were giving her beatings; her mother and sister Lata had gone to the house of the accused in order to resolve the matter and had returned after pacifying the accused.
46) PW3 Beena is the mother of deceased Shilpi and has -::76::- FIR No 642/07 PS: Pahar Ganj deposed that after the marriage with accused Madan Kumar, Shilpi lived happily for about 4-5 months and thereafter both the accused had started harassing her for want of dowry; both the accused used to give beatings to her daughter and she had injury marks on various parts of her body; whenever her daughter used to visit their house she used to tell about the harassment meted out to her and her injury marks; she had come to their house 2 months prior to the date of incident at that time she had an injury on her thumb of hand; she had told that she received the said injuries as accused Madan had given a blow with the help of a remote which was thrown on her; she had also told her that her hand was twisted by the accused; accused Madan used to beat her at the instigation of his mother. She further stated that about 10- 15 days prior to the incident, she had gone to the house of the accused alongwith her daughter Lata because she had received a telephonic call from her daughter that her mother-in-law had given beatings to her. She further stated that mother-in-law of Shilpi was advised by her to keep Shilpi as her own daughter but her mother-in-law insisted that she will be treating her in the same manner as she was keeping her and then they returned to their house. She further stated that on the day of incident after receiving information of Shilpi being admitted in RML hospital -::77::- FIR No 642/07 PS: Pahar Ganj with burn injuries, she went to RML hospital and met Shilpi who told her that her mother-in-law had set her on fire after pouring kerosene oil on her body from back side. This witness was suggested some leading questions by Ld Addl. PP for the State wherein she stated that her daughter Shilpi had told that she was given a danda blow by accused Madan Kumar at the instigation of her mother-in-law and her mother-in-law caught hold on her by her hairs; both the accused had misbehaved with Shilpi at the time when she visited their house in order to pacify the matter and also demanded more dowry.
47) PW5 Lata is sister of deceased Shilpi stated that on 11/12/2007 she had gone to her parental home and her sister Shilpi had given a telephonic call about the accused for harassing her on account of dowry; she accompanied with her mother to the house of the accused and then tried to reason out with the accused and at that time accused Madan Kumar was drunk; accused Maya Devi had been insisting that she would continue to harass Shilpi if her demands were not fulfilled.
48) PW7 Kaushal is sister of mother of deceased Shilpi and she had acted as mediator to the marriage of Shilpi with accused Madan Kumar. She has stated that accused Madan Kumar was divorcee as was Shilpi; relation between Shilpi and her husband -::78::- FIR No 642/07 PS: Pahar Ganj were cordial but relations between Shilpi and her mother-in-law were not cordial as both of them used to quarrel over small household chores; Shilpi used to tell her that there were occasional taunts from her mother-in-law that she had brought less dowry; Shilpi told her that Maya Devi wanted a gas stove to be made available at her home; Shilpi also told her that her husband used to beat her. She further stated that on the day of incident somebody had come to her and asked to visit the house of the accused immediately; accordingly she went to there and found that there was a great commotion; Shilpi had been removed to the hospital by her husband; people in the gali were telling that Shilpi had come in a burnt condition from upstairs and had fallen down on the ground; she went to the hospital where she met Shilpi and she told her that her mother-in-law had poured kerosene oil on her and had set her on fire from the back. She further told that Shilpi told her that Madan Kumar was not present at the said time; she further told her that while Maya Devi pouring kerosene oil on her she thought that she was pouring water. This witness was also suggested leading question by the Ld. Addl. PP for the State wherein she has stated that Maya Devi had been harassing Shilpi for want of dowry and both the accused had several times pushed her out of the house and has asked her to bring more money from -::79::- FIR No 642/07 PS: Pahar Ganj her parents; harassment of the Shilpi started six months after her marriage and whenever Shilpi used to visit her she used to tell her about the harassment at the hands of the accused; she had gone to the house of the accused persons and tried to reason out with them .
49) Regarding ingredient (e) that such cruelty or harassment of the deceased should have been soon before her death, the deceased in her statement Ex. PW11/A has categorically stated that for the last 2-3 days her mother-in-law was quarreling for dowry. Even PW7 Kaushal has stated that Shilpi used to tell her that there were occasional taunts from her mother in law that she had brought less dowry. She has further stated that the harassment of Shilpi started six months after her marriage and whenever Shilpi used to visit her, she used to tell her about the harassment at the hands of the accused. She further stated that she had also gone and tried to reason out with the accused. Thus, the contents of statement Ex. PW11/A ( the dying declaration ) and deposition of other witnesses discussed above has sufficiently established all the ingredients of offence u/s 304 B IPC. I find no force in the arguments of the Ld defence counsel that the requirement of presumption u/s 113 (B) Indian Evidence Act has not been complied with and that the evidence of PW1, PW3 and -::80::- FIR No 642/07 PS: Pahar Ganj PW7 was not reliable because they being relatives are interested witnesses and thus deposed falsely being inimical and biased towards the accused persons. In that regard the Hon'ble Apex Court in Harbans Kaur vs. State of Haryana reported as 2005 (1) JCC 490 was pleased to hold that when a plea of partiality is raised regarding testimony of related witnesses , the reason has to be shown for that and it has to be established that they have reason to shield actual culprit and falsely implicate the accused.
50) From the above discussion I am of the considered opinion that prosecution has succeeded in establishing that the death of Shilpi was a dowry death because her death was caused by burns / bodily injuries and the same has occurred within 7 years of her marriage and further the deceased was subjected to cruelty for harassment by the accused persons and cruelty or harassment was in connection with demand of dowry and such cruelty or harassment of the deceased was soon before her death.
51) Both the accused persons have been charged u/s 304B IPC read with section 34 IPC. Prosecution evidence shows that accused Madan Kumar husband of deceased was not present at the time of pouring of kerosene oil upon the deceased by her mother in law accused Maya Devi and then setting her on fire. Deceased Shilpi has also stated nothing in her dying declaration -::81::- FIR No 642/07 PS: Pahar Ganj about the presence of accused Madan Kumar at the time when she was set on fire by her mother-in-law. PW7 Kaushal has stated that Shilpi has told her in the hospital that Madan Kumar was not present at the time when her mother-in-law poured kerosene oil and had set her on fire. Thus there is nothing to show that accused Madan Kumar had a common intention with accused Maya Devi for pouring kerosene oil upon Shilpi and then set her on fire.
52) However, Shilpi in her dying declaration has stated that her husband Madan Kumar used to beat her at the instigation of her mother in law Maya Devi. PW7 Kaushal has stated that Shilpi had also told her that her husband used to beat her. PW1 Rajender Kumar has also stated that her daughter had told him that accused Madan Lal used to give her beatings at the instigation of his mother. PW2 Ritu has deposed that Shilpi had visited their house 1 ½ months prior to incident and was having an injury on her thumb of the hand and had told her that her mother in law had beaten her up and her husband had given a danda blow on her thumb and that had been done as they had been demanding dowry. She has further stated that a few day prior to incident Shilpi has given a telephonic call and stated that accused were demanding more dowry and were giving her a beating. Similarly, PW3 Beena has also deposed about beatings given by accused -::82::- FIR No 642/07 PS: Pahar Ganj Madan Kumar to the deceased in connection with demand of dowry.
53) The accused persons in their statement u/s 313 CrPC has stated that they were innocent and falsely implicated. In order to prove their innocence they have examined defence witness DW1 Jaspal Singh and DW2 Prabhu Dayal. The prosecution has proved the signed statement of DW1 given to the police as Ex. DW1/P1 wherein he has stated that on the day of occurrence he had gone to Tilak Nagar , Delhi and had returned on 24/12/2007 and that he did not know as to how Shilpi died. On perusal of testimony of DW2 Parbhu Dayal it is found that the same was neither ;natural nor straight forward and his cross-examination has shown that whatever was deposed by him was not stated from his heart. Thus there is nothing in the testimony of defence witnesses to show that accused persons were innocent and had been falsely implicated.
54) From the above discussion it stands establish beyond reasonable doubt that between December 2006 and 19/12/07 accused Maya Devi , being mother in law of deceased Shilpi had subjected her to cruelty or harassment in connection with a demand of dowry immediately before her death and caused her death by burns after pouring kerosene oil upon her and setting her -::83::- FIR No 642/07 PS: Pahar Ganj on fire. I therefore hold her guilty and convict her for the offence u/s 304 B IPC.
55) From the prosecution evidence it stands established beyond reasonable doubt that between December 2006 to 19/12/2007 accused Madan Lal being husband of deceased Smt Shilpi had subjected her to cruelty for want of dowry. I therefore hold him guilty and convict him for the offence u/s 498A IPC. ANNOUNCED IN THE OPEN COURT ON 22nd day of October, 2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI -::84::- FIR No 642/07 PS: Pahar Ganj IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI FIR no. 642/07 Police station: Paharganj U/s 302/304B/498A/34 IPC State V/s (1) Maya Devi (2) Madan Kumar @ Madan Lal @ Akash @ Don ORDER ON SENTENCE Present: Ld Addl. PP for the state.
Both the convicts are in JC with Counsel Shri Usman Choudhary, advocate I have heard Ld counsel for the convicts who argued that the convicts are not previously convicted in any other offence. It is further submitted that accused Maya Devi is aged about 50 years and she is suffering from severe pains in her joints because of her old age . It is therefore, submitted that considering the antecedents and conduct of the accused persons during trial , lenient view may be taken and she may be either considered for releasing on probation of good conduct or minimum punishment may be given to her.
Regarding Accused Madan Kumar, it is argued that he is not previously involved in any other offence and having clear antecedents and is continuously in Judicial custody since arrest 6.1.2008 . It is therefore argued that he may be released on -::85::- FIR No 642/07 PS: Pahar Ganj probation of good conduct or otherwise lenient view may be taken by sentencing him to Imprisonment already suffered by him during trial as he has already undergone almost two -third of the imprisonment prescribed for the offence U/s 498 A IPC.
Ld Addl. PP for the state on the other hand submitted that seeing the gravity of the offence and the fact that the deceased was burnt alive in her prime youth within one and half year of her marriage , therefore, maximum punishment be awarded to accused Maya Devi. Similarly, regarding accused Madan Kumar , it is argued on behalf of the state that he be also awarded maximum sentence provided under law.
I have considered rival submissions made at bar and also carefully examined the facts and circumstances of the case . Considering old age and ailment of accused Maya Devi and also gravity of the offence with which she has been convicted, she is sentenced to undergo rigorous imprisonment for a period of 10 years for the offence under section 304 B IPC . The imprisonment suffered by her during trial shall be set off from the sentence awarded to her and benefit of Section 428 Cr. PC is given to her.
Considering the nature of the allegation which stands proved against accused Madan Kumar , he is sentenced to undergo rigorous imprisonment for a period of 3 years and to pay a fine of -::86::- FIR No 642/07 PS: Pahar Ganj Rs. 5,000/- for the offence under section 498 A IPC. Benefit of section 428 Cr. PC given to him. In default of payment of fine, he shall undergo rigorous imprisonment for a period of 3 months.
Copy of the judgment and order on sentence be supplied to convicts free of cost.
File be consigned to record room.
Announced in the open court on 26/10/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIAL JUDGE (NDPS) (WEST)DELHI