Delhi District Court
S C No. 37/14 State vs Ajay Singh & Ors. on 15 October, 2014
S C No. 37/14 State Vs Ajay Singh & Ors.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-04
DISTRICT COURTS DWARKA ; NEW DELHI
S. C. No. 37/14
FIR No. 88/09
Police Station Bindapur
Under Section 498A/108/302/34 IPC
I.D. No. 02405R0753892009
STATE
Versus
1. Ajay Singh
S/o Sh. Pitamber Singh
2. Kamlesh
S/o Sh. Ajay Singh
3. Kamalkant
S/o Sh. Ajay Singh
4. Deepak Kumar
S/o Sh. Ajay Singh
All resident of :-
RZV-129, Sector-A, Bhagwati Vihar,
Uttam Nagar, New Delhi. ......Accused persons
Date of institution 09/06/12
Judgment reserved on 22/09/14
Judgment Pronounced on 13/10/14
Decision Accused Kamalkant
Convicted, all other
accused acquitted
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S C No. 37/14 State Vs Ajay Singh & Ors.
JUDGMENT
1. Accused are facing trial on charge of murdering deceased Mamta on 09.03.2009 at about 09:30 am at RZV-129, Bhagwati Vihar, Uttam Nagar, New Delhi by pouring kerosene oil on her and letting her on fire, as result of which she sustained injuries and expired.
2. The case of the prosecution in brief is that the deceased Mamta married accused Kamalkant Singh on 15.08.2008. It was a love marriage against the wishes of the parents of the deceased. After her marriage the deceased resided at her matrimonial home along with the accused persons for about two months and during her stay at her matrimonial home, she was tortured and maltreated for demand of dowry. Thereafter, the deceased shifted to a rented accommodation along with her husband Kamalkant to another house. On 09.03.2009, the accused persons after pouring kerosene oil on the deceased Mamta burnt her and the deceased succumbed to her injuries on 12.04.2009.
3. Initially FIR was registered U/s 307/498A IPC. However, Mamta succumbed to her injuries. All the accused persons namely Kamalkant(husband), Ajay Singh(father-in-law), Kamlesh(mother-in-law) Judgment Page 2 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
and Deepak Kumar(brother-in-law) of the deceased were charge-sheeted U/s 498A/108/302/304B/34 IPC. The charge was framed against all the accused persons U/s 302/34 IPC on 07.01.2013 to which accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined 29 witnesses.
5. PW-1 Sodan Singh, complainant/ father of the deceased deposed that her daughter Mamta got married to accused Kamalkant after the accused and his family members kidnapped Mamta. He lodged a complaint in respect of the kidnapping. After the marriage, Mamta resided at RZ-129 Bhagwati Vihar, Uttam Nagar, Delhi at her matrimonial home with accused persons. During that period the accused persons and Heena (sister-in-law) and Ashu (brother-in-law) of deceased used to beat her for demand of dowry of Rs. 5 lacs. After 2 months the accused took a room on rent at Rajapuri and started residing with Mamta in the said house. The accused persons on one occasion pushed Mamta from the roof of the said house as result of which Mamta sustained injuries. The incident was reported to police but due to intervention of police the matter was compromised. After the said incident Mamta and accused Kamalkant shifted to another rented accommodation at Bharat Vihar.
On 09.03.2009, two persons namely Ashok and Ramesh came to his house at about 7-7.15 am and told his wife that Mamta was burning. Judgment Page 3 of 30
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Thereafter, the said persons came to his work place at Tilak Nagar and informed him about this fact. His wife informed the police at 100 number. After receiving the information, he immediately reached the house of deceased where he found his wife was already there. He came to know that Mamta was shifted to DDU hospital and from there she has been shifted to Safdarjung hospital. On reaching Safdarjung hospital they found that Mamta was having 90% burnt injuries but no one from the family of accused was present there. Mamta was unconscious at that time and when she regained conscious, PW-1 requested to get her statement recorded. The statement of the deceased was got recorded by the Tehsildar in the Safdarjung Hospital. The witness stated that his statement was not recorded by the Tehsildar, however, he identified his signatures on his statement as Ex. PW-1/A, wherein, he stated that on 16.03.2009 his daughter told him that there was some 'herapheri' in her statement on which he brought a video- grapher and got her statement videographed and after converting it in a CD it was given to the police. The witness proved the CD as Ex. P-1.
The witness deposed that on 12.04.2009 his daughter succumbed to burn injuries. The case was registered on 16.03.2009. PW-1 deposed that his daughter used to tell him and his wife that the accused persons used to threaten to burn her or electrocute her or hang her in case their demand of dowry is not fulfilled.
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6. PW-2 Mithlesh is the mother of the deceased Mamta. She deposed to the effect that her daughter Mamta was beaten on account of demand of Rs. 5 lacs by her in-laws and on one occasion Mamta was pushed from the roof by the accused persons. On 09.03.2009, Ramesh and Ashok came to their house and informed her that they saw accused Deepak, Ajay Singh and Kamalkant running from the house where Mamta was residing and also heard some noise of crying and smoke was coming out from the house of Mamta. She then informed the police at 100 number and along with police reached at the house of Mamta, there she saw some hair was lying on the floor and also noticed skin pieces and kerosene oil was lying there, no person was present there and meanwhile, her husband also reached the spot. They came to know that Mamta was taken to Safdarjung Hospital and on reaching Safdarjung Hospital, they came to know that Mamta was almost in fully burnt condition and no one from her in-laws was there. They got Mamta admitted in the Hospital. At that time, Mamta was unconscious and she regained conscious on 14.03.2009. On 14.03.2009, her statement was recorded by Tehsildar, When her husband requested Tehsildar that there should be "doodh ka doodh and pani ka pani", the Tehsildar threatened her husband to get a case registered against him. On 16.03.2009, on the request of her daughter, PW-1 got the statement of the deceased videographed. It has been deposed that since she was not satisfied by the progress of the case she made various complaint to the authorities, which are Ex. PW-2/A & B. Judgment Page 5 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
7. PW-3 Anita is the landlord to the premises where the incident took place.
She deposed that accused Kamalkant took a room on rent on the 1st floor of her house and was residing with the deceased Mamta. While she was preparing food at about 7.00 am she heard a noise of cry of Mamta upon which she rushed to the 1st floor and just when she had taken 2-3 steps upstairs she saw that the accused Kamalkant was bringing Mamta who was having burnt injuries.
8. PW-4 Ct. Raj Kumar deposed that as a Crime Team photographer he took photographs of the spot of occurrence. He proved the photographs as Ex. PW-4/A-1 to A-6 and its negatives as Ex. PW-4/B-1 to B-6.
9. PW-5 SI Dilip Singh reached the spot on receipt of DD no. 14 A, there he found landlady who informed him that her tenant got burnt injuries and was taken to the hospital by her husband. He entered the room where the incident took place and found one burnt cover of quilt, one quarter bottle containing kerosene, one polythene, one match box, stove and burnt pieces of ladies suit. Thereafter, he informed the Senior Officers and Crime Team. At Safdarjung Hospital he found Mamta to be admitted in burnt ward. He informed SDM. He moved an application for recording of statement of injured as Ex. PW-5/A, wherein, the injured was declared fit for statement. The SDM Najafgarh recorded statement of injured and her father in the hospital. Thereafter, he returned to the spot and lifted articles vide memo Judgment Page 6 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
Ex. PW-5/C. On 14.03.2009, SDM again recorded statement of Mamta and inquired from her father. On 16.03.2009 after registration of the case, he along with SI Domnica he reached the spot and prepared the site plan of the place of occurrence at the instance of landlady. On 17.03.09, SI Domnica arrested accused Kamalkant vide memo Ex. PW-5/D and took his personal search vide memo Ex. PW-5/E. The witness proved the case property i.e., one torn quilt recovered as Ex. PX-1, one empty glass bottle of Bony Whiskey as Ex. PX-2, one piece of green color cloth and burnt hair as Ex. PX-3, one small cylinder having burner as Ex. PX-4.
10. PW-6 W/Ct. Praveen Kumari proved the arrest memo of accused Kamlesh as Ex. PW-6/A and her personal search memo Ex. PW-6 /B.
11. PW-7 Ashok Kumar deposed that on 09.03.2009 he along with Ramesh while passing through a street in the area of Uttam Nagar saw smoke coming out of a house. They saw accused Kamlesh, Deepak and Ajay were running from that house. They also heard the noise of "aag lag gai, aag lag gai, Mamta jal gai Mamta jal gai" raised by the residents of that locality. Thereafter, he along with Ramesh reached at Mithlesh's (complainant's) house and informed her about the incident. At that time, his brother-in-law Sodan Singh was not present so they went to his workplace and informed him about said incident.
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12. PW-8 Ramesh Kumar deposed on the lines of PW-7. He also deposed that some residents of locality were shouting "Mamta jala di" and when they informed the mother of Mamta about incident of burning of Mamta, she informed the police about the said incident on 100 number.
13. PW-9 Vijay Pal, a public witness deposed that in his presence police seized clothes and house hold articles which were lying in the room (place of occurrence) vide Ex. PW-9/A.
14. PW-10 SI Harender deposed that on 09.03.2009 he along with Ct. Rajbir (photographer) and Ct. Arun (Finger Print proficient) inspected the spot and prepared Crime Team Inspection report proved as Ex. PW-10/A.
15. PW-11 HC Surender Singh proved the arrest of the accused Kamalkant.
16. PW-12 SI Domnica Purty deposed that on 16.03.2009 at about 10.00 am he reached the spot where Anita (owner of the house) met her and she called Crime Team at the spot. From there she went to Safdarjung Hospital and found Mamta being admitted in Burn Ward. After consulting Doctor concerned, she got recorded the statement of injured Mamta. She also recorded the statements of parents of injured Mamta who were present in the hospital. Thereafter, she prepared the site plan of place of occurrence vide Ex. PW-12/A. On 17.03.2009, she arrested the accused Kamalkant. Judgment Page 8 of 30
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17. PW-13 HC Ashok proved the arrest of accused Kamlesh, Ajay and Deepak vide memos Ex. PW-6/A, Ex. PW13/A & B and their personal search memos as Ex. PW6/B, Ex. PW-13/C & D.
18. PW-14 Ct. Rajesh Kumar deposed on the lines of ASI Dalip Singh (PW5) and deposed that on 28.04.2009, he deposited three pulandas sealed with the seal of DS vide RC no. 2/21/09 in FSL Rohini and obtained receipt on RC.
19. PW-15 SI Shanti Prakash proved the FIR 88/09 as Ex. PW-15/A and his endorsement on the same vide Ex. PW-15/B. He also proved recording of DD no. 48A as Qayami as Ex. PW-15/C.
20. PW-16 Ct. Hardeep Singh deposed that on 28.05.2009 he prepared the scaled site plan of the place of occurrence vide Ex. PW-16/A.
21. PW-17 Jyoti Dharmendra deposed that on 13.03.2009, as a Technical Expert for Delhi Commission for Woman on the complaint of Mithlesh (mother of deceased) she recommended the SDM to record the statement of victim again.
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22. PW-18 W/Ct. Kavita Yadav deposed on 09.03.2009, at about 8.52 am, she received a call from mobile no. 9718196768 from RZV-154, Bhagwati Vihar, Uttam Nagar, and was informed that caller ki betti ko aag laga di, uskey ghar wale ne aag laga di. She then filled Form no. 1 of PCR vide Ex. PW-18/A and informed the communication staff of west zone.
23. PW-19 Insp. Payare Lal deposed on the lines of PW-13. He further deposed that on 30.06.2009 complainant along with her wife Mithlesh came to police station and extract of CD (sent by complainant through dak) was prepared on two papers in Hindi with the help of TV and CD player in front of these witnesses and again their statements were recorded.
24. PW-20 Dr. Rishi deposed that on 09.03.2009, he medically examined Mamta with alleged history of burn injuries and on local examination there was found 85 to 90% burn on Mamta's body and she was not fit giving her statement. Dr. Sidharth Kumar prepared the her MLC Ex. PW-20/A. The patient was referred for plastic surgery department for further examination and from there she was referred to Safdarjung hospital.
25. PW-21 Manjeet Singh, SDM Vasant Vihar, deposed that on 09.03.2009, at Safdarjung Hospital recorded the statement of injured Mamta vide Ex. PW-21/A and of his father Sodan Singh as Ex. PW-1/A. On 14.03.2009, Judgment Page 10 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
he again recorded the statement of Mamta at Hospital which is PW-21/B. On 12.04.2009, Mamta died and on 13.04.2009 he conducted the inquest proceedings vide documents Ex. PW-21/C (collectively). He submitted his report before SHO vide Ex. PW-21/D.
26. PW-22 HC Ramchander deposed that on 09.03.2009, at about 9.30 am, Mamta was brought to hospital by her husband in burnt condition and MLC was prepared bearing no. 4179. He sent this information to PS Bindapur.
27. PW-23 SI Udai Singh, deposed that on 16.04.2009 the investigation of this case was assigned to him and during the course of investigation, he collected PM report of the deceased on 24.04.2009. On 28.04.2009, he added Section 304 B IPC in this case and on the same day, sent the exhibits of this case to FSL Rohini through Ct. Rajesh.
28. PW-24 Dr. Mehrajuddin Bhat apeared on behalf of Dr. Neeraj and deposed that in the MLC no. 4179 of deceased Mamta, Dr Neeraj referred the patient to the Safdarjung hospital vide endorsement Ex. PW24/A.
29. PW-25 Dr. Sarvesh Tandon deposed that on 13.04.2009 he conducted the postmortem on the dead body of Mamta and proved the postmortem report as Ex. PW25/A. Judgment Page 11 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
30. PW-26 Dr. Sanjay Rai appeared on behalf of Dr. Alok and proved that on MLC no. 4179, Dr Alok made an endorsement that patient is unfit for the statement as Ex. PW26/A.
31. PW-27 Dr. Prerna Nembang produced the treatment record of deceased Mamta at Safdarjung Hospital and proved the discharge summary as Ex. PW27/A and death summary of patient as Ex. PW27/B.
32. PW-28 Hayat Singh appeared on behalf of Dr. Debashish and proved his endorsement that patient was fit for statement at 1.20pm on 09.03.2009 vide Ex. PW-28/A.
33. PW-29 V. Lakshmi Narasimhan, Senior Scientific Officer, FSL deposed that he examined the two CDs marked Ex. 1a and Ex. 1B and gave his report proved as Ex. PW-29/A.
34. On conclusion of the prosecution evidence, the statement of accused Kamalkant was recorded U/s 313 Cr.PC who stated that since the parents of deceased were not happy with marriage as such, they have deposed falsely against him. It is stated that the deceased was living happily with him and she sustained burn injuries accidentally and at no point of time he demanded dowry or caused harassment upon the deceased. Judgment Page 12 of 30
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In their statements accused Ajay Singh, Kamlesh and Deepak stated that they were not in contact with the Kamalkant or his wife and they were not residing with them. The accused stated that they never demanded dowry from the deceased nor caused any harassment or torture upon the deceased.
35. I have heard the Ld. Addl. PP appearing for the State and Ld. Defense Counsels appearing on behalf of the accused. I have also gone through written submissions of the complainant and of the defense.
36. Cause of Death of Mamta: The deceased Mamta was brought to DDU Hospital, New Delhi with the burn injuries. The deceased was examined vide MLC Ex. PW-20/A. In the said MLC it was mentioned that she had burn injuries over her chest, abdomen, back, perineum, both thighs, neck and face and have burn injuries from 85-90 %. Later on she was taken to the Safdarjung Hospital and on 12.04.2009 she succumbed to the burn injuries. The postmortem report Ex. PW-25/A indicates that she died due to septicisim shock, suffered due to ante-mortem burn injuries. There is no dispute that the deceased Mamta died a un- natural death due to the burn injuries suffered by her in incident dated 09.03.2009.
37. Presence of all the accused persons at the place of occurrence: It is a case of the prosecution that all the accused persons were present in the said room where the deceased was burnt and in her dying declaration which is Judgment Page 13 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
videographed and proved on record as Ex. P-1, the deceased has categorically stated that all the accused persons poured kerosene oil on her and burnt her.
38. In the light of the dying declaration Ex. P-1 (the transcript of which is on the record as Ex. P-1/X) and the evidence produced in the matter, let us examine whether accused persons other than accused Kamalkant were present in the room of occurrence at the time of incident or not.
39. Prosecution examined PW-7 Ashok Kumar who deposed that he along with one Ramesh (PW-8) were going on search of work in the area of Bhagwati Vihar and at about 6.45 am to 7.00 am while they were passing through a street they saw smoke was coming out of the house of the accused and they also saw that accused Kamlesh, Deepak and Ajay were running from the house. On noticing this, he went to the house of the complainant to inform about the incident. During the cross-examination the witness deposed that they were many shops with facility of telephone between place of occurrence and his house and as soon as he saw the accused Deepak, Ajay and Kamlesh, he went to the house of his brother to inform him about the incident. The witness deposed that he did not visit the police station about 10 days after the incident but had visited the hospital 2 or 3 times after 09.03.2009. He also met the police in the hospital but did not narrate the facts to the police about the incident nor did he inform the Doctor about the Judgment Page 14 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
facts what he saw on 09.03.2009. Witness further testified that he did not visit the room from where smoke was emanating.
40. PW-8 Ramesh Kumar also deposed on the similar lines and testified that he saw the smoke coming out of the house where deceased was residing with the Kamalkant and after seeing Ajay, Kamlesh and Deepak running from the gali, he went to the house of the complainant to inform him about the incident. The witness deposed that he did not see the accused persons coming out from the gate of house in question. He deposed that he was residing as a tenant from 09.03.2009 till 30.05.2009 and was available for any investigation. The witness testified that he did not give any complaint with police or doctor regarding the aforesaid facts against any of the accused persons.
41. Although, the prosecution has relied upon the testimony of PW-7 & 8 to establish that they saw accused Ajay, Kamlesh and Deepak running from the tenanted room where the incident took place, however, both these witnesses have not deposed that they saw the accused persons coming out from the matrimonial home of the deceased rather they admitted of not disclosing the facts to the police even after they had met the police in the hospital. As per PW-7, he narrated the entire fact about the accused persons running from the house to the complainant Sodan Singh, however, in the statement Ex. PW-1/A of Sodan Singh, it is not mentioned that PW7 & 8 Judgment Page 15 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
disclosed him that they saw the accused persons running from the spot. Complainant Sodan Singh in his statement Ex. PW-1/A has stated that landlord of the tenanted premises informed her that the deceased was burnt and thereupon he and his wife called police at no.100.
42. More so, the call made by the complainant and his wife at 100 number has been recorded in the PCR form which is Ex. PW-18/A and in this form it has been recoded :-
"Mithlesh ney bataya ki Mamta (wife of Sh. Kamalkant) meri ladki Rajapuri mai Shadi hue hai aur wahan se unka Makan Malik aya aur bata kar gaya hai ki apki ladki jala de hai jisko DDU hospital le kar chale gaye hai"
43. This information given by the wife of the complainant clarifies that neither PW-7 nor PW-8 informed them about the incident and the information that the deceased was burnt was given to them by the landlord of the premises in which the deceased was residing.
44. Moreover, in his cross examination PW-1 has categorically deposed that he has no relation with Ashok Kumar and Ramesh Kumar and deposed that he took Ashok Kumar and Ramesh Kumar to the police station and testified that he does not remember their address where they were residing at the time of death of his daughter. The testimony of PW-1 Sodan Singh is falsified to the extent that PW-7 Ashok Kumar admitted that the complainant is his brother and PW-8 Ramesh Kumar categorically deposed Judgment Page 16 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
that from 09.03.2009 till 30.03.2014 he was a tenant in the house of the complainant. The prosecution has not been able to explain that why PW-1 Sodan Singh complainant wanted to conceal the identity of his real brother and tenant from the Court.
45. Even otherwise also, the conduct of both the PW 7 & 8 seems to be unnatural as both testified that they saw smoke emanating out of the house of the deceased but none of them tried to go in the said house to find out what has happened instead they choose to go to the house of the complainant and inform them about what they saw. They also did not made any call to the police or the complainant despite availability of the phones. The natural course for both these witnesses after noticing the smoke was to find out that what has happened inside the house but instead they proceeded to inform the complainant. It is also not believable that PW-7 who is the real Uncle of the deceased saw the accused persons running from the spot but he did not disclose the police about the incident despite meeting the police officials in the hospital.
46. PW3 Anita is the landlord of the premises. She deposed that she saw accused Kamalkant was bringing Mamta in burnt condition and taking her some where. PW3 who was residing in the same premises was the first person to reach the room of occurrence and it is not in her deposition that she saw the parents of the accused KamalKant in the said premises rather Judgment Page 17 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
during her cross-examination the witness specifically deposed the neither of the parents of Mamta or Kamalkant used to visit them.
47. Thus, the un- natural conduct of PWs 7 & 8, the statement Ex. PW1/A wherein the complainant does not mention that he was informed by the PW7 & 8 that they saw accused Ajay Singh, Kamlesh & Deepak running from the spot, the PCR form Ex PW18/A which mentions that the information that deceased sustained burn injuries was given to the mother of the deceased by the landlord, testimony of PW3 Anita that parents of accused Kamalkant never used to visit him and false statement of the complainant concealing his relationship with PWs 7 & 8 leads to a only conclusion that none of the accused other than Kamalkant was present at the time of incident.
48. Dying Declarations: The prosecution has heavily relied upon the vediographed dying declaration in CD Ex. P-1, transcript of which is Ex. P-1/X to establish the guilt of the accused persons. However, it is matter of record that the deceased has made three dying declarations that is Ex. PW-21/A & B and a CD Ex. P-1. Let us consider the genuineness of these dying declarations.
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49. Ist Dying declaration recorded on the date of incident: Ex. PW-21/A is the dying declaration which was recorded by the Executive Magistrate on the date of incident itself. The same is recorded at 2.30 pm and in this dying declaration the deceased stated that a day before the incident she applied kerosene oil on her body and when in the next morning she went to prepare tea, as soon as she lit the gas burner she caught fire. Her husband brought a quilt and extinguished the fire and then took her under a tap and made her sit under the water and in this attempt his hands also got burnt. The deceased stated that none of her in-laws nor her husband were responsible for the incident and the same was merely an accident.
50. IInd Dying declaration recorded on 14.03.2009: The 2nd dying declaration Ex. PW-21/B, was recorded on the directions of Delhi Women's Commission. In this dying declaration the deceased stated that the family members of her husband were not happy with her. She started residing in the tenanted premises along with her husband. The mother of her husband used to instigate him but her husband used to say that he is happy with the deceased. The day before the incident her husband went to his parents house and after coming back he stated to the deceased that all the problems would be solved if he would leave the matrimonial house and then he left the house. At about 11.30 pm in the night the deceased went and brought Judgment Page 19 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
her husband back to house. In the next morning at about 6.30 -7.00 am a quarrel took place between the deceased and her husband and when the deceased started preparing tea the accused Kamalkant poured kerosene oil which was kept in a quarter bottle on the deceased and stated that he would finish her only then entire problem would be over. Then he went and sat on the bed and started packing his clothes and told that he is leaving the house. Then the deceased tried to snatch the clothes from him to which he slapped the deceased and pushed her due to which she fell on the gas which was inside the room and her clothes caught fire. The accused Kamalkant then tried to extinguish the fire with the help of quilt and made her sit under the tap and after extinguishing the fire wrapped her in bed sheet and took her to the hospital. The deceased stated that the incident happened to her is actually an accident and her husband had no intention like that. The deceased stated that none from her in-laws were present at the time of incident, however, a quarrel which took place between her and her husband was due to the mother and brother of her husband.
51. IIIrd Dying declaration (video recorded on 16.03.2009): The day of recording of 3rd dying declaration as per the PW-1 is 16.03.2009. This dying declaration was recorded in the hospital and in this dying declaration the deceased has named all the accused persons. The deceased has stated that she used to be tortured in relation to the demand of dowry and when she was sleeping on the day of incident the family members of her husband, Judgment Page 20 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
father in law, mother in law and brother in law came there and they all after poured kerosene oil on her and burnt her. When the neighbors came at the spot, then along with the landlord her husband put water on her and extinguished the fire. Kamlesh, Ajay Singh & Deepak used to tell her that till she brings Rs. 5 lacs from her father, she cannot remain in the house. In this dying declaration the deceased mentions that nobody is listening to the complaints which are made by her father and even the police person are telling her father to run away otherwise her father will be implicated in a case.
52. In Sudhakar Vs State of M.P., (2012) 7 SCC 569, Hon'ble Apex Court has held that:
20. The 'dying declaration' is the last statement made by a person at a stage when he in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth.
Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.
21. Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the Court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the Judgment Page 21 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters.
53. In the light of the aforesaid principles, let us examine the genuineness of the each dying declaration.
54. The first dying declaration, Ex PW21/A, was recorded on the date of incident itself at 2:30 pm by the Executive Magistrate. As per MLC Ex PW20/A, the deceased was brought to the Hospital by her husband accused Kamalkant and she having burn injuries to the extent of 85-90%. She was unfit for statement at 11:00 am as per the endorsement of the Doctor Ex PW26/A on the MLC. However, as per endorsement Ex PW28/A deceased was found fit for statement at 1:20pm.
55. In her statement Ex PW21/A, the deceased stated that she applied kerosene on her body in the night as a treatment to her pains and in the morning when she lit the stove to prepare tea she caught fire. Her this statement is not believable to two accounts. Firstly, the inflammability of kerosene would subside within an hour or so if exposed to air due to the oxidation process therefore, it is not possible that the kerosene applied at night on the body would catch fire in the next morning. Secondly, the deceased had received almost 90% burns, she was brought to the Hospital by her Judgment Page 22 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
husband. At the time of recording of her statement she was still under the control and influence of her husband and under hope that her husband would save her life, therefore, it is obvious that she tried to save her husband from the wrath of the act. Thus, the dying declaration Ex PW21/A does not find support from the facts and medical evidence and thus found not be a genuine declaration.
56. The third dying declaration is in CD Ex P-1, transcript of which is Ex P-1/X. As per PW1 Sodan Singh, he got recorded dying declaration on 16.03.2009 on a CD through a photographer who met him at Safdarjung Hospital. The complainant deposed that he does not know about the particulars of the photographer his name, address or his shop etc. The complainant deposed that initially the recording was done in a cassette thereafter it was converted in to a CD from a shop at Tilak Nagar but he did not hand over the cassette to the IO and no permission was taken from any Doctor before recording the statement of the deceased.
57. It is evident from his statement that PW1 has evaded the answers as to from whom he got recorded the statement and from where he got converted the cassette into CD. The complainant also admits that he did not inform the Doctor before recording the same. The person who recorded the statement was a important witness to depose the veracity of the statement of the Judgment Page 23 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
deceased but his identity has been concealed by the complainant from the investigations of the case.
58. In this declaration the deceased stated that all the four accused persons poured kerosene on her and set her on fire but as discussed earlier the presence of the accused persons except the accused Kamalkant in the room of occurrence has not been established by the prosecution. The third dying declaration is also inconsistent with the other two declarations as in the other two declarations the deceased does not say about the presence of other accused persons except her husband in the room.
59. Moreover, it is in testimony of the parents of the deceased that they remained with the deceased in the Hospital throughout her stay there. PW1 & 2 also got her discharged from the Hospital and deceased was in their company till the time of her death. It is noteworthy that the deceased in her videographed statement also mentioned about the complaints of his father being not listened to by the authorities. This clearly demonstrates that deceased was being informed by her father about the direction of the investigations of the case. It is thus evident that at the time of recording of the third dying declaration the deceased was under influence of her parents and that is why she made a statement about of the presence of the all accused persons at the room of occurrence which is contradictory to the Judgment Page 24 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
facts established on record. Thus, all these circumstances render the videographed statement un- reliable and not trustworthy.
60. Now, coming to the the second dying declaration Ex PW21/B. This statement of the deceased was recorded on 14.03.2009 by the Executive Magistrate on the direction of Delhi Woman's Commission when the parents of the deceased approached the Commission being not satisfied with the first statement of the deceased recorded on the date of incident.
61. In this statement the deceased stated that the family members of her husband were not happy with her. She started residing in the tenanted premises along with her husband. The mother of her husband used to instigate him but her husband used to say that he is happy with the deceased. The day before the incident her husband went to his parent's house and after coming back from there he stated to the deceased that all the problems would be solved if he would leave the matrimonial home and then he left the house. At about 11.30 pm the deceased went and brought her husband back. In the next morning at about 6.30 -7.00 am a quarrel took place between the deceased and her husband and when the deceased started preparing tea the accused Kamalkant poured kerosene oil which was kept in a quarter bottle on the deceased and stated that he would finish her only then entire problem would be over. Then he sat on the bed and started Judgment Page 25 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
packing his clothes and told that he is leaving the house. When the deceased tried to snatch the clothes from him to which he slapped the deceased and pushed her due to which she fell on the gas which was inside the room and her clothes caught fire. The accused Kamalkant then tried to extinguish the fire with the help of quilt and made her sit under running water and after extinguishing the fire wrapped her in bed sheet and took her to the hospital. The deceased stated that the incident happened to her is actually an accident and her husband had no intention like that. The deceased stated that none from her in-laws were present at the time of incident, however, a quarrel which took place between her and her husband was due to the mother and brother of her husband.
62. This statement Ex PW21/B, appears to be probable and looks natural as the statement is corroborated with the following established facts:
a) It stands established from the medical record that the deceased was taken to the hospital by her husband.
b) The testimony of PW3 Anita landlady also testifies that the deceased was taken to the Hospital by accused Kamalkant.
c) This dying declaration is consistent with the recovery of the quarter bottle from the spot through which the kerosene was stated to be poured on her accused Kamalkant.
d) The statement was recorded after about 5 days of the incident and by
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that time the influence of her husband must be receding.
e) PW2 Mithlesh mother of the deceased deposed to the effect that Tehsildar recorded the statement of the deceased in his own handwriting and whatever the deceased was stating was recorded by him. She along with her husband (PW1) were present at the time when the statement was being recorded by the Tehsildar.
63. Thus, the dying declaration Ex PW21/B is an authentic, voluntary and duly corroborated by other prosecution witnesses including the medical evidence. It is a settled law that a dying declaration can form sole basis of conviction if found genuine and corroborated by other evidence.
64. On scrutinizing Ex PW21/B, it becomes clear that pursuant to a quarrel, the accused Kamalkant poured kerosene on the deceased. When the deceased tried to snatch the clothes from him, the accused slapped her and pushed her due to which she fell on the gas which was inside the room and her clothes caught fire.
65. It has been contended on behalf of the accused Kamalkant that the incident was merely an accident and in her dying declaration Ex PW21/B, the deceased has clearly stated that incident happened to her is actually an accident and accused Kamalkant had no intention like that. On the other Judgment Page 27 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
hand the prosecution has submitted that in this dying declaration the deceased stated that the accused pored kerosene on her and stated that he would finish her only then entire problem would be over. Therefore, the intention of the accused was to murder the deceased in which he succeeded.
66. The issue which arises is whether offence of Kamalkant is punishable under Section 302 IPC or is culpable homicide not amounting to murder punishable under Section 304 IPC or that he is innocent as the deceased got burnt due to an accident.
67. Admittedly, as per the dying declaration Ex PW21/B, a quarrel was going on between the deceased and Kamalkant. In that heated moment between the two, the accused took up the bottle of kerosene oil lying there and poured the same on Mamta. He did not even lit the fire. The accused pushed Mamta and but since she was near the fire, her clothes caught fire and she got burnt. The accused tried to save her by making the deceased sit under the tap and he also got her admitted in the hospital. The medical record also indicate that the accused was with the patient while admitting her.
68. The circumstances prove that there was no premeditation or any motive attributable to the accused to cause the death of his wife. There was no preparation with in intention to cause the death of Mamta. The incident took Judgment Page 28 of 30 S C No. 37/14 State Vs Ajay Singh & Ors.
place at the spur of the moment and the act of accused Kamalkant was neither pre- planned and it took place on the spur of moment due to heated exchange of words. In my considered opinion, Exception 4 to Section 300 of the IPC would be attracted in the present case and it is not a case of culpable homicide amounting to murder. However, the accused Kamakant has to be attributed the knowledge that being near the gas, there was every likelihood that the clothes of the deceased would catch the fire on kerosene oil being poured on her. The innocence of the accused is negated by his act of pouring the kerosene on the deceased and then pushing her. Hence, the act of the accused Kamalkant would fall under Section 304 (Part I) of IPC. Therefore, the accused Kamalkant is held guilty of the offence punishable under Section 304 (Part I) of IPC and he stands convicted for the said offence.
69. Since the presence of the accused Ajay Singh, Kamlesh & Deepak Kumar is not proved by the prosecution at the place of occurrence, they all stand acquitted of the charges of the offence punishable under Section 302 IPC. They are directed to furnish a personal bond in sum of Rs10,000/- with surety in like amount under the provisions of Section 437-A Cr.P.C. Judgment Page 29 of 30
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70. Matter be listed for hearing arguments on quantum of sentence qua the accused Kamalkant for 15.10.2014.
Announced in open Court on 13th Day of October, 2014.
( Gautam Manan )
ASJ-04/Dwarka/New Delhi
13.10.2014
Judgment Page 30 of 30
S C No. 37/14 State Vs Ajay Singh & Ors.
13.10.2014
Present: Sh. Pramod Kumar, Ld. Addl. PP for the State.
Accused persons on bail with counsel Sh. Joginder Singh. Vide separate judgment, the accused Ajay Singh, Kamlesh & Deepak Kumar are acquitted of the charges of the offence punishable under Section 302 IPC. They are directed to furnish a personal bond in sum of Rs10,000/- with surety in like amount under the provisions of Section 437 - A Cr.P.C.
Accused Kamalkant is convicted for the offences punishable U/s 304 (Part-I) IPC.
Matter be listed for furnishing of the bail bond on behalf of the accused persons and for hearing of arguments on quantum of sentence on behalf of accused Kamalkant for 15.10.2014.
( Gautam Manan )
ASJ-04/Dwarka/New Delhi
13.10.2014
Judgment Page 31 of 30
S C No. 37/14 State Vs Ajay Singh & Ors.
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-04 ; SOUTH WEST
DWARKA ; NEW DELHI
State Case No: 37/14
In the matter of:-
State Versus Ajay Singh & Others
FIR NO : 88/09
UNDER SECTION : 302 IPC
POLICE STATTION : Bindapur
ORDER ON SENTENCE
1. Vide judgment dated 13.10.2014, accused Kamalkant has been convicted for the offence punishable under Section 304( Part I) IPC.
2. I have heard detailed arguments on the point of sentence.
3. It is submitted that convict Kamalkant is 26 years old and has old aged parents to look after. He is still a student. It is submitted that the incident in question was merely an accident. There is no record of previous conviction against him and he has clean antecedents, as such a lenient view be taken.
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4. I have considered the submissions made before me.
5. As per the admitted facts, the convict had a love marriage with the deceased. He being the husband was supposed to take very good care of his wife instead he poured kerosene on her and pushed her towards fire. Having regard to the facts and circumstances of the case and keeping in view the relevant statutory provisions, the convict is sentenced to undergo rigorous imprisonment of seven years for offence punishable under Section 304 (Part I) IPC in addition to payment of fine of Rs.10,000/, in default whereof the above convict shall undergo SI for a period of one month. The convict shall be entitled for the benefit of the Section 428 Cr.P.C.
A copy of the order on sentence be supplied to the convict. file be consigned to record room.
Announced in the Open Court 15th Day of October, 2014 (GAUTAM MANAN) ADDL. SESSIONS JUDGE - 04 DWARKA DISTRICT COURTS Judgment Page 33 of 30