Delhi District Court
State vs . Neeraj Etc. on 24 December, 2011
1
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH)
DELHI
SC NO. 27/10
STATE
versus
1. Neeraj,
S/o Jagmohan.
2. Kiran @ Babli
W/o Jagmohan
Both R/o H. NO. 184, Gali No4,
ABlock, Tomar Colony,
Burari, Delhi.
FIR No. : 80/10
Offence U/S : 302/34 IPC
and alternative
u/s 498A/304B IPC
Police Station : Burari
DATE OF INSTITUTION : 06.08.2010.
DATE OF TRANSFER TO THIS COURT : 22.09.2010.
JUDGMENT RESERVED ON : 12.12.2011.
DATE OF JUDGMENT: 21.12.2011.
J U D G M E N T
1. Accused Neeraj, S/o Jagmohan and Kiran @ Babli, W/o Jagmohan have been prosecuted for the offence punishable u/s 302/34 IPC and in the alternative for the offences punishable u/s 498A/304B IPC S.C.No. 27/10 Page 1 of 36 pages State Vs. Neeraj etc. 2 read with section 34 IPC for causing the death of Priya @ Latika, wife of accused Neeraj and daughterinlaw of accused Kiran @ Babli.
2. The facts of the prosecution case are that Neeraj and Priya got married on 29.11.2009. The incident took place on 02.04.2010, whereby Priya received burn injuries at her matrimonial home and was brought to the hospital by PCR. She succumbed to burn injuries on the next day i.e. 03.04.2010. Priya gave statement to the Executive Magistrate, wherein she named her husband and motherinlaw being responsible for pouring kerosene oil on her and burning her. On the basis of this statement, FIR was registered at police station Burari. Inquest proceedings were conducted, postmortem was got conducted and statements of witnesses were recorded and after completion of investigation the charge sheet was submitted against both the accused.
3. On 19.08.2010, both accused were charged for having committed an offence punishable u/s 302/34 IPC and in the alternative for the offences punishable u/s 498A/304B/34 IPC to which they pleaded not guilty and claimed to be tried.
4. The prosecution in order to establish its case has examined 21 witnesses. The description of the evidence adduced by the prosecution is as follows : S.C.No. 27/10 Page 2 of 36 pages State Vs. Neeraj etc. 3
5. PW1 Nityanand Bhardwaj, posted as SDM Civil Lines on 02.04.2010, received information about the admission of a lady with burn injuries. At about 5.30 p.m., the message was received from SI Rajeev Kumar about fitness of the lady and accordingly PW1 proceeded to the hospital to record her statement. On reaching LNJP Hospital, PW1 met the doctor as well as the investigating officer and on being declared fit by the doctor, the statement of injured Priya was recorded from 7.20 p.m. to 7.40 p.m. in questionanswer form. The statement has been proved as EX PW1/A, bearing endorsement of PW1 as EX.PW1/B. On the next day, PW1 again visited LNJP Hospital on receipt of information about death of Priya and he signed inquest papers. The dead body was handed over to the father of the deceased after postmortem. During crossexamination, PW1 stated that face of injured Priya was open but rest of the body was under
cover. He denied the suggestion that Priya was under immense pain, feeling dizzy and hazy. Mother of Priya was present when PW1 entered the room but asked her to leave the place. The parents of Priya did not approach this witness. PW1 further deposed that whatever was stated by the victim was recorded in the statement. Since, doctor had given the certificate, he did not find out from the victim that she was mentally or physically fit to give the statement. According to PW1, the victim was replying to his questions properly. He denied the suggestion that statement was not recorded while the victim was not fully conscious.
S.C.No. 27/10 Page 3 of 36 pages State Vs. Neeraj etc. 4
6. PW2 Basant Kumar, is the father of the deceased and deposed that marriage between accused Neeraj and her daughter was solemnized on 29.11.2009. After the marriage, Priya visited her parental home thrice and lastly about one month prior to the incident. She informed her parents that she was being harassed for not bringing sufficient dowry and she was being pressurised to bring cash and motorcycle. On 01.04.2010, Priya telephoned from the house of her sisterinlaw and talked to her mother and complained about torture even during pregnancy and asked her mother to meet her. The mother assured to meet her on the next day alongwith her father and other relatives but in the morning on 02.04.2010, the information about burning of Priya was received from accused Neeraj. They immediately rushed to the hospital where Priya was admitted in burns ward. PW2 further deposed, that Priya named her motherinlaw Kiran @ Babli and her husband Neeraj for burning her by pouring kerosene oil on her. Thereafter, on 03.04.2010 Priya succumbed to her injuries. PW2 identified the dead body of his daughter vide EX PW2/A. He also handed over marriage card EX PW 2/B and photographs of marriage EX PW2/C to the police. During crossexamination, PW2 stated that he visited the matrimonial home of his daughter 23 times after the marriage and they were properly welcomed. After receiving call from Priya on 01.04.2010, they thought of visiting her inlaw's place but the next day information came about the incident. They did not lodge any complaint on receiving phone call on 01.04.2010. PW2 denied the suggestion that his daughter never complained on 01.04.2010 about torture. He stated that Priya S.C.No. 27/10 Page 4 of 36 pages State Vs. Neeraj etc. 5 was not suffering from any ailment and was hale and hearty. He denied the suggestion that mother of Priya used to visit the matrimonial home and used to interfere and quarrel with the inlaws as she wanted to bring her daughter back to home. He further denied the suggestion that on 14.03.2010 Priya telephoned her mother and said to her that she should not interfere in her life. The witness has no knowledge that his wife visited the matrimonial home of deceased on 28.02.2010 and quarreled with family members. Vikas, nephew of PW2 and cousin of Priya visited her matrimonial home with this witness but he has no knowledge that Vikas ever visited alone. PW2 denied the suggestion that his daughter committed suicide due to the conduct of his wife or that Kavita or other neighbours informed them that Priya tried to commit suicide. He denied the suggestion that stove was not being used at matrimonial home or that deceased brought kerosene oil from outside in order to burn herself. PW2, his wife and many relatives visited the hospital after the incident and talked to the deceased between 9.30 to 10.00 a.m. The statement of Priya was recorded by the police but not in their presence. PW2 further denied the suggestion that his wife was continuously with her daughter in the hospital. The SDM has sent everybody else out of the room while recording the statement. He denied the suggestion that no statement of his daughter was recorded in the hospital or that he is deposing falsely.
7. PW3 Vichitra, is the mother of the deceased and deposed that on S.C.No. 27/10 Page 5 of 36 pages State Vs. Neeraj etc. 6 01.04.2010 at about 10.30 p.m. her daughter telephoned from the house of her sisterinlaw and said that she was being harassed by the accused persons to bring cash of Rs. 1 lakh and motorcycle. She then assured her daughter to visit the matrimonial home tomorrow but in the morning the information was received that Priya has been burnt.
They rushed to the hospital and on talking to Priya, she told that both accused had burnt her. One officer came and recorded statement of Priya. PW3 was sent out of the room when the statement of Priya was recorded. At about 12.00 midnight, condition of Priya became serious and she expired at about 3.00 a.m. During crossexamination, PW3 stated that on 07.03.2010, she visited the matrimonial home of her daughter where she was insulted by brotherinlaw Ajay and his mother at the instance of accused Neeraj. She admitted that accused Neeraj has not demanded anything from her directly but voluntarily stated that on 25.03.2010, Ajay called her and asked for motorcycle and cash and on refusal stated that they would face the consequences within one week. The witness even complained of being pressurised by brotherinlaw Ajay even during the trial. PW3 reached the hospital on 02.04.2010 at about 8.45 a.m. The accused were also there. Police reached at about 11.00 a.m. and talked to Priya but at that time she was sent out. Accused Babli remained in the hospital till the statement of her daughter was recorded by SDM at about 9.00 p.m. She denied the suggestion that Priya stated before her uncle Satpal that she had herself burnt her. She denied that no phone call was made by her daughter from the house of her sisterinlaw or that no demand of dowry was raised or that Priya was not harassed for the S.C.No. 27/10 Page 6 of 36 pages State Vs. Neeraj etc. 7 dowry. She denied that her relations with Priya got strained after the marriage as she was interfering and insisting that she should come and reside with her. PW3 further denied that after 14.03.2010, she visited the matrimonial home of Priya and raised quarrel with them and even abused them and particularly her daughter by complaining that she had conceived prior to her marriage and with much difficulty she has been married with Neeraj. PW3 denied that she told Priya that if she was not listening to her, better she should die. According to PW3, she lastly visited her daughter's matrimonial home on 07.03.2010. She had seen stove at the matrimonial home and her motherinlaw told that she used to purchase kerosene. PW3 further stated that her daughter was able to speak properly when SDM came although she was serious. She denied that Priaya was not able to speak properly or that no statement of Priya was recorded by SDM. She denied that she had threatened accused Babli for false implication or that she was told by neighbour Kavita that Priya had committed suicide. She denied that she bribed SI Rajeev not to put on record the true statement whereby Priya had absolved the accused persons.
8. PW4 Satpal, uncle of the deceased identified her dead body vide EX PW4/A. During crossexamination, he denied that Priya @ Latika has given statement in his presence or that she had stated before the police that she had burnt herself. The witness has no knowledge about the dowry demands raised by husband and motherinlaw of Priya.
9. PW5 Vikas, cousin brother of deceased, visited her matrimonial S.C.No. 27/10 Page 7 of 36 pages State Vs. Neeraj etc. 8 home on 04.03.2010. He stated that Priya met her and told him that accused Neeraj and Kiran have been harassing her for dowry and demand of Rs. 1 lakh has been raised. PW5 also visited the hospital on receipt of information about the admission of Priya with burn injuries. During crossexamination, he stated that father of Priya was also with him on 04.03.2010. The statement of this witness was recorded at police station Burari but denied that it was blank. Priya was able to speak when he met her in the hospital. He denied the suggestion that Priya did not complaint about dowry demands or that he is a tutored witness and giving false statement.
10. PW6 ASI Kishan, has been the duty officer at police station Burari on 02.04.2010 and proved DD NO. 12A vide EX PW6/A and DD NO. 7A dated 03.04.2010 EX PW6/B.
11. PW7 HC Mahipal Singh, proved DD NO. 29A vide EX PW7/A.
12. PW8 HC Amarnath proved the FIR of this case vide EX PW8/A.
13. PW9 Dr. Vikas Sharma, proved the MLC of deceased by identifying the signatures of concerned doctor vide EX PW9/A.
14. PW10 Dr. Jyoti Barwa, junior resident conducted postmortem on the dead body of deceased and proved the report EX PW10/A. During crossexamination, he admitted that burn injuries could be possible by self ablaze. He could not comment about the health of S.C.No. 27/10 Page 8 of 36 pages State Vs. Neeraj etc. 9 fetus.
15. PW11 Ct. Ravinder Kumar, deposited the samples with FSL Rohini and stated that same remained intact.
16. PW12 Ct. Mukesh, joined the investigation with SI Rajeev Kumar on02.04.2010. They first reached the scene of occurrence house No. 184, Tomar Colony and found kerosene smell. They were informed that injured has been removed to hospital. Leaving PW12 at the spot, investigating officer left for the hospital and thereafter again came to the spot and lifted burnt match sticks, can of kerosene oil and one steel glass having kerosene oil vide EX PW12/A. The accused was arrested at about 11.00 p.m. vide arrest memo EX PW 12/B and C and his disclosure statement was recorded vide EX PW 12/D. On receipt of information about death of Priya, they came to the hospital and conducted inquest proceedings and postmortem was got done. The exhibits handed over by the doctor were seized by the investigating officer vide EX PW12/E. The witness has been crossexamined, during which, he stated that size of the room where the incident took place was about 10 x 12 ft. and one steel trunk and one sofa were lying there. Crime team visited the spot. He denied the suggestion that red colour blanket was lying in the room which was used for dousing the fire. The remnants of kerosene were found in the glass and same were poured in the bottle of coca cola and were seized. He admitted that in the open bath room, situated on the roof, kerosene oil was found spread on the floor but no kerosene was S.C.No. 27/10 Page 9 of 36 pages State Vs. Neeraj etc. 10 found on the floor where the incident took place. He denied the suggestion that neighbours collected at the spot and stated that deceased had burnt herself. Investigating Officer did not record the statement of any neighbour including Meera. No water was found spread on the floor of the room or on other things of the room where the incident took place. The witness denied to be deposing falsely.
17. PW13 Ct. Ravinder, took photographs of the place of occurrence being the member of the crime team vide EX PW13/A1 to A10.
18. PW14 SI Dheeraj Kumar, posted as incharge crime team inspected the spot of occurrence and prepared his report EX PW 14/A. During crossexamination, PW14 admitted that several persons were present but he did not make any enquiry from them. He only asked to investigating officer about the incident. He had also visited the bath room situated on the roof and kerosene oil was found spread there. Investigating Officer seized the kerosene oil sample from the can and the glass. No red colour blanket was seized from the spot.
19. PW15 Lady Ct. Preeti, deposed about arrest of accused Kiran vide EX PW15/A and B on 13.04.2010.
20. PW16 Dr. Kulbhushan, senior resident, conducted postmortem on the deard body of the deceased and proved the report EX PW 10/A. During crossexamination, PW16 could not comment whether S.C.No. 27/10 Page 10 of 36 pages State Vs. Neeraj etc. 11 it was a case of suicide or homicide.
21. PW17 SI Rajiv Kumar, conducted initial investigation of the present case and visited the spot of occurrence as well as the hospital. At about 7.00 p.m., he contacted doctor on duty, who opined that patient was fit for statement. He enquired from Priya, who told him that she set herself on fire. He then called SDM of the area and SDM recorded the statement of Priya vide EX PW1/A. PW17 proved endorsement EX PW17/A on the basis of which FIR was registered at 10.25 p.m. The exhibits were lifted from the spot and site plan was prepared vide EX PW17/B. He arrested accused Neeraj vide EX PW 12/B and 12/C and recorded his disclosure vide EX PW12/D. On 03.04.2010, on receipt of information about death of Priya, the postmortem was got conducted and inquest proceedings were also conducted. After the postmortem, the exhibits were handed over by the doctor vide EX PW12/C and dead body was handed over to the relatives. The case file was handed over to the SHO. The witness was crossexamined by Ld. APP on the aspect of making enquiry from the victim in the hospital and PW17 stated that he had recorded in writing the statement of victim Priya. He admitted that the said statement is neither placed on the judicial file nor on the police file. He further admitted that no mention is there either in rukka or in the case diary about any such statement. He denied that no such statement was recorded or that Priya did not tell him that she had herself burnt her. During crossexamination on behalf accused, he stated that public persons gathered at the spot of incident but they S.C.No. 27/10 Page 11 of 36 pages State Vs. Neeraj etc. 12 left without giving their names and addresses. One neighbour told that Priya had set herself on fire but on being requested to give the statement, the witnesses left the spot and the neighbour residing in front to the house of Priya, closed the door of her house. The parents of the victim and her uncle were present in the hospital. Accused Neeraj was also in the hospital. PW17 reached the hospital at about 9.30 a.m. Parents of victim were talking to her. Priya told that she had a quarrel with her husband on account of recharge of her mobile and she was insisting to go to her parental home and therefore burnt herself. The statement of Priya written by PW17 was handed over to SHO Inspector Shiv Dayal on 30.04.2010 at the time of handing over of the file. Kerosene oil was not scattered in the bed room, although the smell was coming. The kerosene oil was scattered on the floor of the bath room. The chance prints were not lifted from the can and steel glass. He denied the suggestion that accused have been falsely implicated in this case or that SDM had not recorded any statement of victim.
22. PW18 HC Jagbir, MHC(M) police station, Burari, deposed about deposition of exhibits of this case as well as sending of the same to FSL and proved relevant entries EX PW18/A.
23. PW19 SI Manohar Lal, prepared scaled site plan of the spot of occurrence and proved the same vide EX PW19/A.
24. PW20 Dr. Pranay R. Kapur examined Priya on 02.04.2010 and S.C.No. 27/10 Page 12 of 36 pages State Vs. Neeraj etc. 13 declared her fit for statement at about 7.10 p.m. vide EX PW20/A. During crossexamination he denied the suggestion that patient was throughout fit for making the statement.
25. PW21 Inspector Shiv Dayal, took over the investigation of the present case after the death of the deceased. On 13.04.2010, he arrested accused Kiran vide EX PW15/A and B and recorded her confessional statement EX PW20/A. He also seized photographs of the marriage, wedding invitation cards etc. The exhibits of this case were sent to FSL through Ct. Ravinder and scaled site plan was got prepared. During crossexamination, he stated that he visited the place of occurrence on the evening of 02.04.2010 but did not make any enquiry from the neighbours. He recorded the statement of first investigating officer SI Rajiv and also supplementary statements of parents and cousin of the deceased. He denied the suggestion that accused Kiran was lifted from Tis Hazari Courts and her arrest has been shown from police station or that accused has been falsely implicated. On being asked specific question about handing over of the case file and about the statement of victim recorded by SI Rajiv Kumar, PW21 replied that he took over the investigation on 06.04.2010 but no statement was ever handed over to him by SI Rajiv Kumar at any point of time.
Thereafter, prosecution evidence was closed.
26. Statements of both the accused persons were recorded u/s 313 S.C.No. 27/10 Page 13 of 36 pages State Vs. Neeraj etc. 14 CrPC, wherein entire incriminating evidence has been read over and explained to them. Accused Neeraj admitted that his wife Priya visited her parents one month prior to the incident but denied that she complained of dowry demands or harassment. He also admitted that Priya called her mother from his sister's home on 01.04.2010 but he has no knowledge about what Priya had talked to her mother since she was in separate room. According to accused Neeraj, he got up in the morning of 02.04.2010 on hearing screams and found Priya burning in the front room. He poured water on her, wrapped her in a blanket and called the police and immediately took her to hospital. In the hospital, Priya stated to her uncle Satpal that she had burnt herself. Subsequently, Priya's parents reached the hospital and instructed her to name both the accused for burning her. He further stated that her mother was not at home as she had gone to fetch milk.
Accused Kiran has also pleaded innocence and stated that Priya had named them at the instance of her parents. She herself was present in the hospital when the parents of Priya instructed her to hold the accused responsible for the incident. She stated that statement of Priya was tutored. She further stated that she had left the house in the morning of 02.04.2010 to fetch milk and on return found that crowd had gathered and Priya was being taken to the hospital.
In defence, the accused have examined two defence witnesses as S.C.No. 27/10 Page 14 of 36 pages State Vs. Neeraj etc. 15 well as they have examined themselves u/s 315 Cr PC.
27. DW1 Raj Kumar, deposed that he is neighbour of the accused and at the time of incident even accompanied the deceased and the accused to the hospital. He stated that Priya told in front of her uncle Satpal that she had herself burnt her. She also told the same to the doctor. He stated that his sister Asha also accompanied them to the hospital. The injured was conscious and speaking. At the time Priya talked to the doctor, Asha was present. Priya disclosed to the doctor about the reason of burns and thereafter she disclosed to her uncle. The statement of Priya was not reduced into writing. He denied the suggestion to be deposing falsely being neighbour of the accused.
28. DW2 Manju, is also the resident of same locality and stated that at the time of incident she was the first one to reach the spot and found Priya sitting in the angan and flames were put off. Motherin law was not there. Priya stated that she had burnt herself and on being asked the reason Priya stated that she had done it casually. DW 2 then instructed Neeraj to call the police as well as the parents of Priya. During crossexamination, DW2 stated that she found Neeraj screaming at about 7/7.15 a.m. Priya was conscious and was able to speak properly. The house was lying neat and clean. The glass was lying near the injured in angan. The accused Kiran used to heat water on the terrace on chullah with kerosene oil. She too denied the suggestion that she is deposing falsely at the instance of accused persons.
S.C.No. 27/10 Page 15 of 36 pages State Vs. Neeraj etc. 16
29. DW3 Kiran, (accused) while examining herself u/s 315 Cr PC repeated the plea of her innocence. During crossexamination, she denied that she had treated Priya with cruelty and had raised unlawful demands of dowry. She denied that she alongwith her son Neeraj poured kerosene oil on her daughterinlaw and set her on fire. She reiterated that statement given by Priya in the hospital is tutored.
30. DW4 Neeraj (accused) stated that on 01.04.2010, they went to the market and after coming back from there they slept. In the morning, he heard the cries of Priya and found her burning and screaming. He poured water on her and wrapped her in a blanket. He informed PCR and parents of Priya. Priya stated to her uncle that she had burnt herself but parents her started tutoring her on reaching the hospital. During crossexamination, Neeraj stated that there was no quarrel between him and Priya after the marriage and their relationship was normal. It was a dowryless marriage and no demand was raised. He denied the suggestion that he treated the deceased with cruelty and raised unlawful demands. He further denied to be deposing falsely. Thereafter, defence evidence was closed.
31. I have heard Sh. G.S. Guraya, Ld. Addl. P.P. for the State, Sh.
Vishwaranjan Kumar, Ld. defence counsel for both the accused and given due consideration to the facts and circumstances of the case, evidence and the record.
S.C.No. 27/10 Page 16 of 36 pages State Vs. Neeraj etc. 17
32. Ld. Addl. P.P. argued that case of the prosecution stands proved as against both accused in view of dying declaration dated 02.04.2010 EX PW1/A, made by the deceased few hours before her death. It is strong piece of evidence and can be the sole basis of conviction and does not require any corroboration. It is further contended that sufficient corroboration to the dying declaration is also on the record in the form of statements of the parents of the deceased, the seizure of exhibits from the spot, medical record and FSL report. Ld. Addl. P.P. further stressed that there is no reason to discard the dying declaration of the deceased. The deceased was pregnant and just after few months of her marriage, she has been burnt by the accused and therefore their conviction has to be recorded u/s 302 IPC, although the ingredients of section 304B IPC are also established.
33. On the other hand, it is contended by Ld. defence counsel that dying declaration made by the deceased is the result of tutoring by the parents. The initial investigating officer SI Rajiv has himself admitted that he recorded the statement of victim prior to the statement recorded by SDM, wherein victim stated that she had burnt herself. Ld. defence counsel also pointed out crime team report and statement of the doctor (PW10) to stress that it was a case of self ablaze. It is further argued that no kerosene oil was found on the floor of the room, where the incident had taken place. The case of the prosecution suffers from infirmities and cannot be accepted. According to Ld. defence counsel, the defence witnesses are probable S.C.No. 27/10 Page 17 of 36 pages State Vs. Neeraj etc. 18 and natural witnesses and should be believed and accused persons must be acquitted forthwith. Ld. defence counsel has relied upon the following judgments in support of their contentions :
1) Rani Vs State (NCT of Delhi), 2011 (3) Crimes, 432;
2) Smt. Misri Devi & Ors Vs State, 2011 [1] JCC 395,
3) Budh Ram @ Pappu & Ors. Vs State, 2010 [3] JCC 2343;
4) T. Aruntperunjothi Vs State, 2006, Crl. L. J., 3290;
5) T.K. Reddy Vs State of A.P., 2002 [3] JCC 1575;
6) Javed Masood & Anr. Vs State of Rajasthan, 2010 Crl. L. J. 2020;
7) State of Haryana Vs Ram Singh, 2002 Crl. L.J. 987;
8) J. Ramulu Vs State of A.P., 2008 Crl. L.J. 1918;
9) Pintu Ruidas Vs State, 2011 (3) Crimes, 567;
10) Narendra Singh & Anr. Vs State of M.P., 2004 [2] JCC 832;
34. I have given due consideration to the contentions raised by both the sides and also gone through the judgments cited in support thereof.
35. Both the accused have been charged for the offence punishable u/s 302 IPC and in the alternative u/s 498A/304B/34 IPC. On the charge of section 302 IPC, the prosecution is heavily relying upon dying declaration EX PW1/A to establish the charge of murder against the accused persons. Before dealing with the same, it is relevant to discuss the principles and rules governing the acceptability of dying declaration.
S.C.No. 27/10 Page 18 of 36 pages State Vs. Neeraj etc. 19
36. The dying declaration is considered as strong piece of evidence, because the situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
37. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "Nemo moriturus praesumitur mentire
- a man will not meet his Maker with a lie in his mouth."
38. The law relating to the dying declaration has been significantly summed up by the Supreme court in case Paniben Vs State of Gujrat (1992) 2 Supreme Court cases 474 as follows:
i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
iii) The court has to scrutinize the dying declaration carefully and must ensure that declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the S.C.No. 27/10 Page 19 of 36 pages State Vs. Neeraj etc. 20 assailants and was in a fit state to make the declaration.
iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration has to look to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
xi) Where there are 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 declaration could be held to be trustworthy and reliable, it has to be accepted.
It has also been held by Supreme court in Khushal Rao vs State of Bombay, AIR 1958, Supreme court 22 :
a) That each case must be determined on its own facts keeping in view S.C.No. 27/10 Page 20 of 36 pages State Vs. Neeraj etc. 21 the circumstances in which the dying declaration was made.
b) It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.
c) A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
39. Now coming to the case in hand, the sequences of events as evident is that the incident took place in the morning on 02.04.2010 at about 7.00/7.10 a.m. The PCR call was made at about 7.45 a.m. and deceased was brought to the hospital at 8.28 a.m. The doctor declared the victim fit at about 7.10 p.m. The SDM then proceeded to record the statement of the victim in questionanswer form from 7.20 to 7.40 p.m. In this statement, deceased stated that there was a fight between her and her husband on the previous night and she was slapped. Today morning i.e. 02.04.2010, she worshiped after taking bath. After some time, her husband Neeraj and her motherinlaw Babli @ Kiran sprinkled kerosene oil on her and her husband set her on fire. She further replied that her husband tried to douse the fire and at that time her motherinlaw left for fetching milk. To the next question, she replied that she was brought to the hospital by her husband in PCR van. On being specifically asked about harassment, victim replied that her motherinlaw used to taunt her about the articles brought by her from her parental home. The husband of her sisterinlaw Ajay and his mother prevail upon in the matrimonial home. Her husband Neeraj used to demand for bike and cash.
S.C.No. 27/10 Page 21 of 36 pages State Vs. Neeraj etc. 22
40. On examining the contents of the dying declaration and on giving due consideration to the facts and circumstances of the present case, in the light of ratio of law relating to dying declaration, I am of the opinion that there is no reason to discard or discredit the statement made by the victim being specific and voluntary. The statement is precise and complete and clearly contains the reasonable answers to the specific questions put to her. None of the answers given by her can be termed as vague, evasive or false. It demonstrates that Priya was conscious and her level of understanding and observation was proper. She spelled out specific role played by each accused at the time of incident.
41. PW1 SDM is a neutral and official witness and I find no reason to doubt his veracity. On evaluating the testimony of PW1 and the nature of version recorded by him, it is clear that dying declaration cannot be a work of manipulation. It is evident that PW1 was requisitioned by the investigating officer to record dying declaration and accordingly he reached the hospital and on being satisfied that deceased was in a fit and conscious state of mind proceeded to record the statement by putting questions to her. It is further clear from the MLC and statement of doctor (PW20) that Priya was fit and conscious to make the statement. Even, this is deposed by all the prosecution witnesses particularly the parents and the investigating officer that Priya was able to respond and speak properly. Also, this is not disputed by defence that after receiving burn injuries, Priya was S.C.No. 27/10 Page 22 of 36 pages State Vs. Neeraj etc. 23 fit for making the statement. It is important to note that during cross examination doctor (PW20) has been suggested that Priya was throughout fit for making the statement.
42. It is pleaded on behalf of defence that dying declaration of the deceased has been the result of tutoring as Priya was influenced by her parents at the hospital. On evaluating the testimony of prosecution witnesses and the facts and circumstances of the case, I find no substance to accept this plea. It is true that parents of Priya reached the hospital on receipt of information but the accused persons were also present there. It is stated by PW3 that motherin law was present till the statement was recorded by SDM. No suggestion has been given to parents of Priya (PW2 & PW3) that they influenced her to depose against her husband and motherin law and to hold them responsible for burning her. Contrarily, it has been suggested to both the witnesses that relations between Priya and her mother were strained and that Priya used to tell her mother not to interfere in her matrimonial life. It is also suggested that Priya stated to her uncle Satpal that she has burnt herself but Satpal examined as PW4 categorically denied that Priya stated to him that she had burnt herself. PW17 SI Rajiv, initial investigating officer stated that he contacted doctor in the hospital at 7.00 p.m. and Priya was declared fit for statement and on enquiry Priya told that she herself set her on fire. Thereafter, SDM was called to record her statement. In the light of this statement, it is again not believable that parents of Priya were tutoring her. The statement of Priya was S.C.No. 27/10 Page 23 of 36 pages State Vs. Neeraj etc. 24 recorded by SDM between 7.20 p.m. to 7.40 p.m. It is difficult to believe that till 7.00 p.m. she was not tutored and was saying that she had burnt herself and within twenty minutes she was tutored and deposed before SDM that she has been burnt by her husband and motherinlaw. It is not confronted that parents were sent out by the police as well as by the SDM when the statement of victim was recorded. It is also confirmed by SDM PW1 that he had sent mother of Priya out before recording her statement. In such circumstances, it is clear that dying declaration was recorded properly after taking due precautions by the SDM and after being satisfied that victim was able to speak and respond properly. The motherinlaw accused Kiran was also present in the hospital and therefore no opportunity of tutoring or influencing the mind of deceased could have been available. It is the unrefuted claim of parents of deceased that they were not allowed to freely talk to their daughter after the marriage. It is admitted case of defence that deceased visited her parents one month prior to the incident. During her married life of about four months, she visited only thrice to her parental home. One day prior to incident i.e. on 01.04.2010, deceased talked to her mother on phone. It is therefore evident that Priya has been at her matrimonial home continuously prior to the incident. It is improbable that after the incident, mother could influence the victim to such an extent that she attributed serious allegations against her husband and motherinlaw. It is important to note that none of the prosecution witnesses even the parents have not been suggested so during their crossexamination. Rather contrary suggestions of strained relations S.C.No. 27/10 Page 24 of 36 pages State Vs. Neeraj etc. 25 to such extent that mother of Priya even asked her to die, have been given.
43. The plea of tutoring has been taken up for the first time by the accused in their statements u/s 313 Cr PC and u/s 315 Cr PC, and no independent witness has been examined on this aspect. During entire prosecution evidence no such plea was raised. The doctor, investigating officer and SDM, who are crucial witnesses and were present in the hospital at the relevant time have not been put any questions or suggestions about tutoring. I, therefore conclude that statement of victim has not been the result of tutoring or prompting and find no reason to reject the dying declaration of the deceased, wherein she specifically held her husband and motherinlaw responsible for setting her on fire.
44. In order to controvert the dying declaration, the accused have also taken the plea that it was a case of suicide by self ablaze. On this aspect, the defence has relied upon the statement of investigating officer PW17 SI Rajiv, crime team report EX PW14/A, testimony of defence witnesses and the contents of daily diary entry No. 12A (EX PW6/A). However, on analysing the evidence and documents on this aspect, I find no justification to conclude that it was a case of suicide. No substantial plea has been raised by the accused to show that deceased had committed suicide. The daily diary entry EX PW6/A by which the PCR call was made is authored by accused Neeraj himself that too after about half an hour of the incident. The crime team S.C.No. 27/10 Page 25 of 36 pages State Vs. Neeraj etc. 26 report EX PW14/A wherein the incident is stated as of self ablaze has no sanctity as the members of the crime team were not supposed to make any inquiries at the spot. PW14 the incharge of crime team, has specifically admitted in his testimony that he has not made any inquiry at the spot and he only asked the investigating officer about the incident. Therefore, the mentioning of incident as of self ablaze on the crime team report has no basis. Coming to the statement of investigating officer PW17 SI Rajiv Kumar, it is true that he has stated about recording statement of Priya prior to the reaching of SDM but this is not believable as no such fact has been mentioned either in the rukka or in the case diary nor any such statement has been brought on record. PW17 initially himself did not explain as to what he has done with the statement and only during crossexamination on behalf of defence, he stated that he had handed over the said statement to next investigating officer on 30.04.2010. This version is again not believable as the investigation was taken over by next investigating officer Inspector Shiv Dayal (PW19) on 06.04.2010 and even the arrest of accused Babli was made by him on 13.04.2010. There was no occasion for the first investigating officer to withhold the dying declaration with him and hand over the same on 30.04.2010 to the second investigating officer. It is clear that SI Rajiv Kumar has not recorded any statement of the victim (much less dying declaration) as otherwise it would have been the part of record.
45. The dying declaration is further consistent with and S.C.No. 27/10 Page 26 of 36 pages State Vs. Neeraj etc. 27 strengthened by oral, circumstantial, medical and scientific evidence. Most importantly, parents have categorically deposed about complaints of dowry demand and harassment at the hands of accused. Even, one day prior to the incident, deceased had called up her parents to complaint about dowry demands and harassment but before her parents could reach out to her, the information about burning incident came to them. The parents have remained consistent and cogent during their crossexamination and their testimony could not be impeached. PW5 Vikas, cousin of the deceased has also supported the prosecution case and deposed about dowry demand and harassment to the victim. On evaluating cross examination of the parents, I find that contrary suggestions have been given to them but no substantial reason is given to indicate that deceased committed suicide. No specific reason has been attributed to show that deceased had committed suicide. The deceased was a young girl married only for five months. She was pregnant and was in the process of bringing another life to earth and no reason has been brought on record to show that deceased thought to end her life. The accused and defence witnesses are going by the theory of self ablaze but failed to spell out any specific reason for taking this step by the victim. I am not convinced that deceased committed suicide without any reason and she set herself on fire casually as stated by DW2.
46. No noting has been recorded on the MLC that Priya disclosed to the doctor about the self ablaze. PW16, the senior resident Dr. Kulbhushan, who has conducted postmortem examination has not S.C.No. 27/10 Page 27 of 36 pages State Vs. Neeraj etc. 28 commented that it was a case of suicide. The cause of death is due to shock consequent upon burn injuries. It is evident from the medical record that Priya sustained about 50% burn injuries on the frontal part of her body. There is nothing on record to suggest that such injuries could not result in case of homicide.
47. The dying declaration has been categorical about the use of kerosene by accused. Coming to the scene of occurrence, can and glass seized from the bathroom (situated on roof) were found having kerosene oil as per the FSL report (admissible u/s 293 Cr PC). It is also deposed by witnesses that oil was found spread on the floor of bathroom. The place of occurrence is the room downstairs and no traces of kerosene could be found on the stairs leading from bathroom to the room. It is improbable that deceased would pour kerosene on her in the bathroom and would come down to her room to burn herself. Even, otherwise if this would have been the case, the traces of kerosene oil would have been found on the stairs. If Priya had poured kerosene on her in the room, then she could not go upstairs to keep the can and glass in the bathroom. Therefore, theory of self ablaze does not go with the site from where the containers having kerosene oil were found. It is clear that after burning Priya, can and glass were kept on the roof in the bathroom.
48. Coming to the defence taken by the accused persons, they have pleaded innocence and false implication. On examination of testimony of both the witnesses DW1 and 2, who are neighbours, I S.C.No. 27/10 Page 28 of 36 pages State Vs. Neeraj etc. 29 find no justification to believe the same. Nowhere the presence of DW1 Raj Kumar or his sister Asha has been recorded or put to the prosecution witnesses. The testimony DW1 is not consistent with the facts and circumstances of the case. It is also inconsistent with the defence pleas taken during crossexamination of the prosecution witnesses. Sister of DW1 namely Asha, who was present in the hospital and in whose presence Priya allegedly gave statement to the doctor has not been examined. Also the testimony of DW2 is not believable and the version put forth by her that deceased told her that she had burnt herself casually is unnatural. The version of DW2 that Priya was sitting in the angan and steel glass was kept near her is not convincing . The defence has put inconsistent questions to prosecution witnesses, as PW2 (father) has been suggested that no stove was used at home and Priya brought kerosene oil from outside to burn herself but DW2 has stated that kerosene oil was used by accused for heating purposes. The presence of neighbours Meera and Kavita was put to the witnesses but they have not been examined. The presence of DW1 and DW2 were not suggested to any of the PWs to rebut or controvert the prosecution case. Due to inconsistency in taking up defence pleas, it is not clear, which specific defence is sought to be proved by accused. The statements of DW1 and DW2 would show that they testified only to oblige the accused. I conclude that accused have failed to establish their innocence. Inconsistent suggestions given to PWs render the defence pleas unworthy of credit. The judgments relied upon by the defence are distinguishable and not applicable to the present case.
S.C.No. 27/10 Page 29 of 36 pages State Vs. Neeraj etc. 30
49. Another contention raised by Ld. defence counsel has been that there is material discrepancy in the prosecution version as the first investigating officer has stated about recording of statement of the victim and same is not supported by the other prosecution witnesses. It is no doubt true that PW17 SI Rajiv has stated about recording of statement of the victim, but no such statement has been placed on record. However, due to this discrepancy brought by the investigating agency, the entire prosecution case cannot be thrown out. The IO SI Rajiv is already facing departmental action on this account. His version of recording dying declaration and handing over the same to the next investigating officer is not believable for the simple reason that there is no such mention in the rukka, case diary or on any other document prepared during the investigation. It is also not explained as to why investigating officer withheld the said statement till 30.04.2010, before allegedly handing over the same to the next investigating officer. It cannot be ruled out that investigating officer has deposed under some pressure. The accused cannot be extended any benefit of this, particularly in the face of proper dying declaration recorded by the competent officer and corroborated by other prosecution witnesses.
50. On evaluating the facts and events of this case, I find that dying declaration made by the deceased inspires confidence and is entitled to great weight and therefore is accepted for the following reasons :
i) This is single dying declaration recorded by competent S.C.No. 27/10 Page 30 of 36 pages State Vs. Neeraj etc. 31 independent official witness in proper manner in the form of questions and answers, few hours before the death of the deceased.
ii) The statement is precise and complete and suffers from no infirmity.
iii) It is recorded after the deceased was declared fit by the doctor on duty.
iv) There is nothing on record to suggest that deceased was unfit, unconscious or disoriented at the relevant time.
v) The dying declaration is consistent with medical and scientific evidence.
vi) It stands corroborated with the testimony of parents.
51. On careful and proper examination of the testimony of prosecution witnesses, I do not find any material contradictions or inconsistencies so as to render the case of prosecution unreliable. I, therefore conclude that prosecution has been able to establish the charge against the accused persons u/s 302 IPC.
52. Since, the main charge is proved against the accused persons, there is no need to consider the alternative charge u/s 498A/304B IPC. However, before parting with the judgment, I would like to observe that all the ingredients of section 498A/304B IPC are also established in this case and the legal presumption arising in favour of prosecution u/s 113B Evidence Act, has not been rebutted by the accused. However, I feel no need to record separate conviction of the accused under these offences.
S.C.No. 27/10 Page 31 of 36 pages State Vs. Neeraj etc. 32
53. In view of aforesaid discussions, I hold accused Neeraj and Kiran @ Babli guilty u/s 302 IPC read with section 34 IPC.
ANNOUNCED IN THE OPEN COURT ON 21st December, 2011.
(ANJU BAJAJ CHANDNA)
ADDL. SESSIONS JUDGE (NORTH)
DELHI
S.C.No. 27/10 Page 32 of 36 pages
State Vs. Neeraj etc.
33
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI SC NO. 27/10 STATE versus
1. Neeraj, S/o Jagmohan.
2. Kiran @ Babli W/o Jagmohan Both R/o H. NO. 184, Gali No4, ABlock, Tomar Colony, Burari, Delhi.
FIR No. : 80/10 Offence U/S : 302/34 IPC Police Station : Burari ORDER ON SENTENCE Present: Sh. G.S.Guraya, Ld. Additional PP for the State.
Sh. Vishwaranjan Kumar and Sh. P.C.Jha, counsels for both convicts.
Both convicts are in JC.
I have heard submissions on point of sentence.
It is submitted on behalf of convict Neeraj that he is 24 years of age and sole bread winner of his family consisting of his aged S.C.No. 27/10 Page 33 of 36 pages State Vs. Neeraj etc. 34 parents and younger brother. He is not a previous convict nor involved in any other criminal case. Lenient view is prayed for.
On behalf of convict Kiran @ Babli, it is submitted that she is 62 years of age and suffering from old age ailments. She is not a previous convict nor involved in any criminal activities. She has a son of about 12 years of age to look after. Lenient view is prayed for.
On the other hand, Ld. APP has argued that severest punishment be imposed upon both the convicts so that strong message is given to the society against such offences. The deceased was newly married and was pregnant to the knowledge of both convicts. In view of gravity of offence, capital punishment be handed out to both convicts.
On giving due consideration to the facts and circumstances of the case, age and antecedents of the convicts and keeping in view the guidelines of Hon'ble Supreme Court on sentencing policy, I am of the opinion that present case does not fall in the category of the rarest of the rare case and imposition of life imprisonment would meet the end of justice.
It has been held by Hon'ble Supreme Court AIR 1980 SC 898 (Bachan Singh Vs. State). "The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the S.C.No. 27/10 Page 34 of 36 pages State Vs. Neeraj etc. 35 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life can not be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised".
Considering the above guidelines, I sentence both convicts Neeraj and Kiran @ Babli to rigorous imprisonment for life and fine of Rs. 10,000/ each u/s 302/34 IPC and in default of payment of fine simple imprisonment for four months each.
Copy of the judgment and copy of order on sentence be given to both the convicts free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 24.12.2011 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE (NORTH) DELHI S.C.No. 27/10 Page 35 of 36 pages State Vs. Neeraj etc. 36 S.C.No. 27/10 Page 36 of 36 pages State Vs. Neeraj etc.