Delhi District Court
State vs . Sunil @ Guddu & Others on 3 January, 2014
State Vs. Sunil @ Guddu & others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 62/12
ID No. 02401R0450532012
FIR No. : 207/11
Police Station : DBG Road
Under Section :498A/304B/302/307/34 IPC
State
Versus
1. Sunil @ Guddu
S/o Late Sh. Chander Sen
R/o E-181, Jhuggi No. 2
Dev Nagar, Slum Land,
Karol Bagh, New Delhi.
.............Accused no.1
2. Sunny
S/o Late Sh. Chander Sen
R/o E-181, Jhuggi No. 2
Dev Nagar, Slum Land,
Karol Bagh, New Delhi.
.............Accused no.2
3. Geeta
W/o Anil
R/o E-181, Jhuggi No. 2
Dev Nagar, Slum Land,
Karol Bagh, New Delhi.
.............Accused no.3
SC No. 62/12 Page 1 of 32
State Vs. Sunil @ Guddu & others
4. Anil
S/o Late Sh. Chander Sen
R/o E-181, Jhuggi No. 2
Dev Nagar, Slum Land,
Karol Bagh, New Delhi.
.............Accused no.4
Date of Institution : 12.01.2012
Date of committal of case : 05.10.2012
Date of Judgment reserved on : 20.12.2013
Date of judgment : 03.01.2014
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State
Ms. Preeti Srivastav, Advocate, counsel for all accused
J U D G M E N T :-
1. Briefly stated facts of prosecution case are that on October 12, 2011 at about 10.53 PM an intimation was received at police control room from mobile phone bearing No. 9990250380 that one girl had set herself on fire at bus stand No. 212, Dev Nagar, Delhi. Said information was conveyed to police station DBG Road where it was reduced into writing vide DD No. 31A (Ex.PW8/A) and assigned to SI Arun Kumar. Accordingly, SI Arun Kumar (PW13) along with constable Vijender reached the place of occurrence where it was revealed that victim had already been shifted to JPN hospital. Accordingly, SI Arun Kumar left for hospital after deputing constable Vijender to preserve the place of occurrence.
(i) On reaching hospital, SI Arun Kumar collected the MLC of Shivani (since deceased), she was declared fit to make statement.SC No. 62/12 Page 2 of 32
State Vs. Sunil @ Guddu & others Accordingly, intimation was given to SDM Darya Ganj as SDM Karol Bagh was on leave. Thereafter, PW13 SI Arun Kumar returned to the place of occurrence and inspected the spot and collected the exhibits i.e. plastic bottle of bisleri from which smell of kerosene oil was coming, burnt clothes, hair and slippers were seized and thereafter, he returned to the hospital where Mr. Narender Kumar Sharma, SDM Darya Ganj recorded the statement of Shivani wherein she alleged that she had committed suicide in indignation on October 12, 2011 at about 10 PM in front of her jhuggi by pouring kerosene oil upon her and further submitted that her mother-in-law Lilawati and her husband Sunil extinguished the flames by pouring water upon her and further stated that she had never been tortured or harassed either by her husband or her mother-in-law on account of dowry nor they had ever tortured her. In view of her statement, PW13 made a DD entry No. 30A (Ex. PW8/B) in the police station.
(ii) It was alleged that on October 14, 2011 SDM Karol Bagh Mr. Girish Pandey (PW12) again recorded the statement of victim Shivani wherein she alleged that she was married with accused No.1 Sunil on November 7, 2009 and she had a daughter aged about 3 months. Her real sister Preeti was married to her jeth i.e. Anil (accused no. 4).It was alleged that on October 12, 2011 at about 10 PM her husband Sunil, jethani Geeta, dever Sunny and jeth Anil had beaten her and thereafter, they had poured kerosene oil upon her and set on her fire. It was further alleged that her husband and jeth Anil used to quarrel with her and beat her. It was further alleged that she was got admitted in the hospital at about 10.30 PM by her husband and also alleged that she was used to be tortured on account of dowry and stated that she had made a false statement on October 13, 2011 under the pressure of her husband as he had threatened her if she made a statement against them, he would kill her daughter. On her statement, an SC No. 62/12 Page 3 of 32 State Vs. Sunil @ Guddu & others FIR for the offence punishable under Section 498A/307/34 IPC was registered and further investigation was assigned to ASI Pushpa (PW16).
(iii) During investigation PW16 arrested her husband Sunil @ Guddu and also prepared the site plan. Efforts were made to arrest other accused persons but they were absconded.
(iv) It was alleged that Shivani succumbed to her injuries on October 17, 2011. Accordingly, body was got sent for post mortem. Doctor opined that cause of death was due to septicaemia consequent upon ante- mortem infected burn injuries caused by flames of fire. Accordingly, Section 304 B IPC was added. Thereafter, further investigation was assigned to inspector M. C. Pandey (PW24). During investigation, PW24 recorded the statement of family members and thereafter added Section 302 IPC. Exhibits were got sent to FSL. Efforts were made to arrest other accused persons. On obtaining anticipatory bail from Hon`ble High Court of Delhi, accused Sunny joined the investigation on December 23, 2011. Similarly, accused Anil and Geeta also obtained anticipatory bail from the Court of Ld. Additional Sessions Judge.
2. After completing investigation, challan was filed against all the accused persons for the offence punishable under Section 307/498A/304B/302/34 IPC. Name of co-accused Anil and Geeta was shown in column no. 11. After obtaining anticipatory bail, accused Anil and Geeta also joined the investigation on September 3, 2012, consequently supplementary challan was filed qua them.
3. After complying with the provisions of Section 207 Code of Criminal Procedure, case was committed to the Court of Sessions on SC No. 62/12 Page 4 of 32 State Vs. Sunil @ Guddu & others October 1, 2012. Thereafter, case was assigned to this Court on October 5, 2012 and registered as Sessions Case No. 62/12.
4. Vide order dated November 7, 2012, a charge for the offence punishable under Section 302/304B/498A/34 IPC was framed against all accused persons to which they pleaded not guilty and claimed trial.
5. In order to bring home the guilt of accused persons, prosecution has examined as many as following twenty four witnesses:-
PW1 Smt. Suman, mother of deceased
PW2 Sh. Rajender, father of deceased
PW3 Smt. Santosh, relative of deceased but turned hostile
PW4 Sh. Suresh, uncle of deceased but turned hostile
PW5 Sh. Ravi, uncle of deceased but turned hostile
PW6 Sh. Mukesh, uncle of deceased but turned hostile
PW7 Sh. Vikram, relative of deceased but turned hostile
PW8 SI Rajender, duty officer, proved the FIR and daily
diary
PW9 Const. Vijay, photographer
PW10 SI Dhan Singh, In-charge Crime Team
PW11 Const. Shailender, MHC(M)
PW12 Sh. Girish Pandey, the then SDM, Karol Bagh, proved
the last statement of deceased
PW13 SI Arun Kumar, first investigating officer
PW14 HC Suresh Kumar, proved the PCR form
PW15 HC Naresh Kumar, PCR official, took the injured to
hospital
PW16 ASI Pushpa, second investigating officer
SC No. 62/12 Page 5 of 32
State Vs. Sunil @ Guddu & others
PW17 Dr. Anju Rani, proved the autopsy report of deceased
PW18 Dr. Varsha Gupta, proved the MLC of deceased
PW19 Const. Sudhir, joined the investigation with ASI
Pushpa
PW20 Insp. Mahesh, draughtsman, proved the scaled site
plan
PW21 Dr. L.C. Sharma, proved the death summary report
PW22 Dr. Viresh Kumar, proved the MLC of deceased
PW23 Dr. Kanaklata Verma, Sr. Scientific officer, proved the
FSL
PW24 Insp. M. C. Pandey, third investigating officer
6. On culmination of prosecution evidence, all the accused persons were examined under Section 313 Cr. P.C. wherein they denied each and every incriminating evidence led by the prosecution and submitted that they have been falsely implicated in this case. Accused Anil took the plea that he was not even present at the time of incident as he was at the house of his in-laws. Accused Geeta took the plea that she has been falsely implicated in this case as parents of the deceased made a false allegations against her that she had illicit relations with accused Sunil. Accused Sunny submitted that he has been falsely implicated in this case. Accused Sunil took the plea that Shivani was not residing at her matrimonial house about 3 months prior to the incident. It was revealed that there was some dispute between Shivani, Preeti and their mother at her parents house and at that time, mother of Shivani i.e. PW1 asked her to go her matrimonial house if she intended to live. It was submitted that Shivani had committed suicide in the Chowk and at that time none of the accused was present. It was submitted that Shivani had made a false statement against them under the pressure of her parents. However, accused persons refused to lead SC No. 62/12 Page 6 of 32 State Vs. Sunil @ Guddu & others evidence in their defence.
6. Learned counsel appearing for the accused persons sagaciously contended that prosecution case is based on the dying declaration and on the deposition of parents of deceased. It was submitted that deceased had made two dying declaration firstly on October 13, 2011 and thereafter, on October 14, 2011. In her first dying declaration she categorically stated before the SDM that she committed suicide by pouring kerosene oil upon her in indignation and she did not utter even a single word against any of the accused persons but in her subsequent dying declaration she roped all the accused persons in the incident by stating that they had set her on fire by pouring kerosene oil and stated that earlier she had made the statement under the pressure of her husband as he had threatened her if she made any statement against them, he would kill her daughter. It was vigorously argued that there is no iota of evidence to establish that any such threat was ever given by any of the accused persons. It was urged that on the contrary there are overwhelming evidence that her family members were present when she had given her last dying declaration, thus, there is every probability that deceased had made the dying declaration under the influence of her parents. It was thus contended that no reliance can be placed on her dying declaration.
(i) Learned counsel appearing for accused persons further perspicaciously contended that parents of deceased turned hostile during the trial but when learned Additional Public Prosecutor put words in their mouth by putting leading questions, they deposed that deceased told them that she was set on fire by the accused persons by pouring kerosene oil. It was contended that mother of deceased (PW1) in her deposition categorically deposed that accused Anil, Geeta and Sunny were not SC No. 62/12 Page 7 of 32 State Vs. Sunil @ Guddu & others present in the house at the time of incident. Similarly, her father (PW2) deposed that accused Sunny was not involved in this incident. It was thus argued that even as per the testimony of PW1 and PW2 accused Anil, Geeta and Sunny are not involved in this incident in any manner, which itself falsifies the dying declaration.
(ii) Learned counsel appearing for the accused persons energetically contended that the alleged incident had not taken place within the four walls of matrimonial house; rather it had taken place at Chowk located at considerable distance from the matrimonial house. Despite that prosecution failed to produce any public witness to prove that accused persons were involved in the alleged incident. It was further contended that it was her mother-in-law who sustained burn injuries while rescuing the deceased and it was accused Sunil who took the injured to the hospital. It was contended that if accused persons had committed the offence, they would not have tried to save her.
(iii) Learned counsel further astutely contended that though prosecution has examined some other relatives of deceased but their testimonies are not helpful to the prosecution in any manner as they turned hostile on material points. It was further contended that there is no admissible evidence that accused persons had ever tortured the deceased on account of dowry. Though PW1 and PW2 deposed that accused used to demand motor cycle but they admitted that no such demand was ever made by the accused Sunil from them. They also admitted that accused Sunil had a motor cycle at the time of marriage. It was thus contended that parents of deceased had concocted a false story of motor cycle just to frame the accused persons.
SC No. 62/12 Page 8 of 32State Vs. Sunil @ Guddu & others
(iv) Learned defence counsel further vigorously contended that the real sister of deceased Preeti was married in the family with the brother of accused Sunil. But she never made any allegation that her-in-laws had ever tortured or harassed her for not bringing dowry. It was submitted that deceased was a short tampered lady and this fact is admitted by PW2 and she used to quarrel with her sister on house-hold works. It was contended that deceased was at her parents house for the last two months prior to the incident and she returned from her parents house in the late evening and thereafter she had a quarrel with her sister Preeti and then she all of sudden had committed suicide at the Chowk of the locality. It was further contended that it was otherwise highly improbable that accused persons would choose public place i.e. Chowk to set the deceased on fire.
7. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing vehemently that dying declaration is a substantial piece of evidence and there is no provision that no reliance can be placed on the dying declaration in the absence of any corroboration. It was contended that since deceased in her second dying declaration had categorically deposed that accused persons had killed her by pouring kerosene oil, there is no reason to disbelieve the same. It was further contended that deceased had given a just and reasonable explanation about her previous dying declaration by stating that she had made the said statement under the influence of her husband as he had threatened her that he would kill her daughter.
(i) Learned Additional Public Prosecutor further contended that though PW1 and PW2 turned hostile on some material points, but during their cross-examination they categorically deposed that deceased had told them that accused persons used to make a demand of motor cycle in SC No. 62/12 Page 9 of 32 State Vs. Sunil @ Guddu & others dowry and they also used to harass and torture her. They also deposed that deceased told them that accused persons set her on fire. It was further contended that mere fact PW1 and PW2 turned hostile on some points is not sufficient to discard their testimony as a whole. It was further contended that since PW1 and PW2 corroborated the second dying declaration, thus there is no reason to disbelieve the dying declaration.
8. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that counsel for both the parties failed to cite any case law in support of their contentions.
9. From the submissions advanced by counsel for both the parties, pivotal question emerges for consideration as to whether the dying declaration made by deceased is trustworthy or not?
10. Before dealing with the contentions relating to dying declaration raised by the counsel for both the parties, I deem it appropriate to have a look over the settled proposition of law in this regard.
11. Recently the Apex Court summarized the law relating to the admissibility of dying declaration in Krishan v. State of Haryana Criminal Appeal No. 766 of 2008 decided on December 13, 2012 wherein Apex Court highlighted the parameters laid down in Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22, in para 14 as under:
"......16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full SC No. 62/12 Page 10 of 32 State Vs. Sunil @ Guddu & others Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another 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; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is SC No. 62/12 Page 11 of 32 State Vs. Sunil @ Guddu & others not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."
(emphasis supplied)
12. After considering the principle laid in Khushal Rao's case (supra) Apex Court held in para 15 to 18 as under:
15. A bare reading of the above paragraphs shows that the Court opined that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. The Bench further clarified that where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
16. In the case of Ram Sagar Yadav (supra), this Court had followed the same principle and, in turn, specifically referred to the judgment of Khushal Rao (supra). Not only this, even in the case of Munnu Raja and Anr. v. State of Madhya Pradesh (1976) 3 SCC 104, this Court referred to the judgment in Khushal Rao's case (supra). In paragraph 6 of the judgment, the Court stated the same principle that where the dying declaration suffers from an infirmity, the Courts will have to adopt a different course to adjudicate the matter in accordance with law. In SC No. 62/12 Page 12 of 32 State Vs. Sunil @ Guddu & others the case of Ramilaben Hasmukhbhai Khristi v. State of Gujarat (2002) 7 SCC 56, this Court held as under:
"28. Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration."
(emphasis supplied)
17. In this regard, reference can also be made to a recent judgment of this Court in the case of Bhajju @ Karan Singh v. State of Madhya Pradesh (2012) 4 SCC 327.
18. From the above judgments, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with the established practice and principles.
13. Same view was taken by the Apex Court in case Hiraman v. State of Maharashtra Criminal Appeal No. 1288 of 2008 decided on January 31, 2013.
14. In the light of the above settled proposition of law, facts of the case in hand will be analysed to ascertain as to whether the dying declaration is trustworthy and whether conviction can be recorded without any corroboration or not? If not, whether prosecution has led sufficient SC No. 62/12 Page 13 of 32 State Vs. Sunil @ Guddu & others evidence to corroborate the dying declaration?
15. It is admitted case of prosecution that police control room received the intimation of this incident on October 12, 2011 at 22:48:35 hours from mobile phone no.9990250380 that "Dev Nagar 212 Bus Stand par Ek Girl Ne Aag Laga Lee Hi". Said information was conveyed to PS DBG Road at about 10:53 hours and same was recorded vide DD No. 31A (Ex. PW8/A). But surprisingly no effort was made either by the investigating agency to examine the person who informed the police control room about the said incident or by the prosecution to produce him in the witness box.
(i) On receipt of above information, PCR Van reached the place of occurrence and took the injured to the hospital and also informed the police control room about the facts of the case and the same are exhibited as Ex. PW14/A. The relevant portion of the conveyed message is "Lady Shivani w/o Guddu age 22 sal r/o E14 Jhuggi No. 2 Dev Nagar Jo Aaj Apne Sasural Aayi Thi Jiska Ghar Par Gharelu Chagra Hua Tha Jisne Mitti Ka Oil Dal Kar Aag Laga Li Thi. Jisko 055 Hospital Le Gayi Hai". This shows that after reaching spot it was revealed to the PCR official that Shivani had committed suicide by pouring kerosene oil due to some house-hold dispute.
16. Shivani was got admitted in the hospital at about 11:11 PM by HC Naresh Kumar (PW15) vide MLC Ex.PW22/A with the alleged history of burn at home address at around 10 PM. After medical examination she was referred to Burn and Plastic Surgery Department. As per Ex. PW18/A, she was shifted to Burn and Plastic Surgery Department at about 12:19 AM. At about 12:30 AM, Shivani told Dr. Imtiaz that she was put on fire with kerosene oil by her in-laws near her in-laws house. Doctor also noticed that kerosene smell was positive from her body. Thus, as per her first dying SC No. 62/12 Page 14 of 32 State Vs. Sunil @ Guddu & others declaration she was burnt by her-in-laws by pouring kerosene oil. But she did not divulge the name of her-in-laws.
(i) As per the testimony of PW13 SI Arun Kumar, Mr. N.K. Sharma the then SDM Karol Bagh recorded the statement of Shivani between 2 AM to 3 AM wherein she changed her previous statement by stating that on October 12, 2011 at about 10:00 PM she had committed suicide in front of her jhuggi by pouring kerosene oil upon her and stated that she had done so in indignation. She further stated that her mother-in-law Lilawati and her husband Sunil extinguished the fire by pouring water upon her. She further urged that her husband Sunil and mother-in-law Lilawati had neither harassed nor beaten her for dowry.
(ii) After about 6-7 hours i.e. at about 10:00 AM on October 13, 2011 Shivani made another statement, which was recorded by Dr. Imtiaz as under:-
"She was at her parents house after her baby delivery for the last 3 months approximately. She tried to call her husband to come to her parents home several times, but he refused to meet her. Due to repeated refusal of her husband to meet her. She became angry and herself came to meet her husband at her in-laws house. But, again he ignored that. After which, she brought kerosene oil and ignited her on fire near her in-laws house at Papa Nagar (Anand Parvat). From where she was brought to LNJP Hospital."
(iii) Said statement is exhibited as Ex. PW18/B. Thus, as per her second and third statement, she had committed suicide either in indignation or due to the feeling that her husband was neglecting her. But in her both the said statements she did not level any allegation of dowry or harassment against her-in-laws including husband.
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(iv) Thereafter on October 14, 2011 at about 4:25 PM, PW12 Mr. Girish Pandey, the then SDM Karol Bagh recorded another statement Ex. PW12/A in the hospital. In her said statement, she made certain allegations against her-in-laws. She stated that on October 12, 2011 at about 10:00 PM, her husband Sunil, jethani Geeta, dever Sunny and jeth Anil had given beating to her thereafter they poured kerosene oil upon her and set her on fire. She further alleged that her husband Sunil and jeth Anil used to quarrel with her and to beat her. Her husband got admitted her in the hospital at about 10:30 PM. She further stated that earlier she had made a wrong statement on October 13, 2011 as her husband Sunil had threatened her if she made a statement against them, he would kill her daughter.
17. From the aforesaid discussion, it becomes clear that deceased had made as many as four statements. First statement was made before Dr. Imtiaz at about 12:30 AM. Second statement was made before SDM between 2AM to 3AM. Third statement was made at about 10:00 AM and fourth statement was made on October 14, 2011 at about 4:25 PM. First statement is vague as in that statement she did not divulge the name of her-in-laws whereas last statement is in detail. In her second and third statement she did not level any allegation against any of the accused persons.
18. Since, in her last statement Ex. PW12/A, deceased alleged that she made the statement on October 13, 2011 under the pressure of her husband as he had threatened her that if she had stated anything against them, he would kill her daughter, question arises as to whether prosecution adduced cogent evidence to prove the fact that accused Sunil had given any such threat to the deceased or not?
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19. In this regard the testimony of PW13 and PW15 are relevant. PW15 is the person who removed the injured to the hospital. In his testimony, he nowhere deposed that accused also accompanied the victim. However, in the call book Ex. PW15/DA, it was recited that PCR van also took the accused Sunil to the hospital. As per the MLC, the victim was got admitted by PW15 HC Naresh Kumar. This shows that the victim was got admitted by PCR officials HC Naresh Kumar (PW15) and not by her husband. It appears quite unbelievable that husband could threat the victim in the presence of PCR officials. There is no iota of evidence on record to show that accused Sunil met with the victim in isolation.
(i) PW13 SI Arun Kumar is the first investigating officer who reached the hospital. No doubt in his cross examination, he deposed that when he reached the hospital, her husband Sunil also met near the victim but simultaneously he also deposed that the mother-in-law of the victim also sustained burns injuries on her hand and face and on enquiry, it was revealed that she had sustained burn injury while saving the victim. He also candidly admitted that during local enquiry no suspicion raised over the husband. Thus, from the combined reading of deposition of PW13, it cannot be said that accused Sunil had given any such threat to the victim. Had PW13 found any suspicion over the conduct of accused Sunil, he would have arrested him immediately. It appears quite unbelievable that accused Sunil could give any threat to the victim in the presence of police officials and doctors. The presence of accused in the hospital cannot be taken in negative as his wife and mother sustained burns injuries and being husband and son, he was supposed to be there. As mother-in-law of victim also sustained burns injuries in order to save the victim, thus she was an important witness for the prosecution to narrate the incident but surprisingly the investigating officer even did not deem it appropriate to examine her.
SC No. 62/12 Page 17 of 32State Vs. Sunil @ Guddu & others Nor prosecution produced her in the witness box. It is otherwise appears quite unbelievable that if the mother of the accused Sunil was against the death of victim, accused Sunil would have dared to set the deceased on fire.
(ii) PW1 and PW2 are the star witnesses of the prosecution but both the witnesses nowhere deposed that deceased told them that she had made a false statement before the SDM on October 13, 2011 under the threat of her husband Sunil. Prosecution failed to examine any other witness to prove the fact that accused Sunil had given any threat to the victim or that victim had made the statement dated October 13, 2011 under the influence of any such threat.
20. Next question emerges as to whether there is any admissible evidence on the record to prove that accused no. 2 to 4 were present in the house at the time of alleged incident or not?
21. Deceased in her statement Ex. PW12/A specifically alleged that on October 12, 2011 at about 10 PM, first of all accused persons namely Sunil (her husband), Geeta (jethani), Sunny (dever) and Anil (jeth) picked up a quarrel with her and thereafter, they set her on fire by pouring kerosene oil. PW1 in her cross-examination categorically admitted that accused Anil, Geeta and Sunny were not present in their house when her daughter (deceased) was burnt. Similarly, PW2 in his examination-in-chief deposed that subsequently he came to know that accused Sunny was involved in the incident. Thus, PW1 and PW2 did not corroborate the dying declaration Ex. PW12/A.
(i) No doubt, PW1 and PW2 were not present at the spot at the SC No. 62/12 Page 18 of 32 State Vs. Sunil @ Guddu & others time of incident, thus they were not in the position to depose whether accused no. 2 to 4 were in the house at the time of incident or not. But prosecution set up a case against the accused persons that deceased told them that she was set on fire by all the accused persons. Thus, prosecution attempted to use the testimony of both the witnesses against the accused persons to prove the fact that all the accused persons were in the house at the time of incident. But both the witnesses did not support the prosecution case by deposing that accused no. 2 to 4 were not present in the house at the time of incident. Thus heavy burden is shifted upon the prosecution to prove the presence of accused persons at the place of occurrence by adducing cogent and admissible evidence. But prosecution failed to produce any such evidence. In the absence of any cogent evidence on record, I am of the view that prosecution has even failed to prove the presence of accused no. 2 to 4 at the place of occurrence.
22. Prosecution has also set up a case that deceased also told to PW1 to PW5 that she was set on fire by the accused persons. But PW3 to PW5 turned hostile completely and did not support the prosecution case in any manner. Though PW1 and PW2 turned hostile on some material points, yet, they deposed some facts against the accused persons, hence their testimonies require detail analysis.
(i) PW1 and PW2 deposed that they received the intimation that their daughter Shivani was got admitted in the hospital in burnt condition through their one neighbour named Tota Ram and thereafter, they reached the hospital. PW1 deposed that they reached the hospital at 4 AM whereas PW2 deposed that he reached the hospital between 8 AM to 9 AM. PW1 in her examination-in-chief deposed that when she reached the hospital, her daughter was not conscious and she regained consciousness SC No. 62/12 Page 19 of 32 State Vs. Sunil @ Guddu & others after about 2-3 hours. She further deposed that though she met with her daughter but no talk had taken place between her and deceased. The testimony of PW1 is contrary to the MLC Ex. PW22/A wherein it is specifically mentioned that patient was fit for statement. During the cross- examination conducted by learned Additional Public Prosecutor she deposed that when she met with deceased in the hospital, she told her that she had been set on fire by her jeth Anil, jethani Geeta, dever Sunny and her husband by pouring kerosene oil. But she failed to clarify at what time deceased told her above-said facts. Even she also failed to clarify how the deceased told the said facts to her when she was unconscious.
(ii) Indisputably, the statement of PW1 was recorded by the SDM on October 14, 2011 and her statement is exhibited as Ex. PW1/A wherein she stated that when she reached the hospital on October 13, 2011 at about 4 AM, she saw her daughter in burnt condition and stated that she had suspicion that she was set on fire by her husband, dever, jeth and jethani. Admittedly, her statement was recorded at about 5:30 PM. It means that till PW1 made her statement to the SDM on October 14, 2011 at 5:30 PM, she was not aware how the incident had taken place; nor deceased had informed PW1 that she was set on fire by the accused persons. Had deceased informed PW1 that she was burnt by the accused persons, PW1 would have certainly divulged before the SDM that her daughter told her that she was burnt by the accused persons. But it is not so. In other words, till PW1 made her statement to the SDM on October 14, 2011 at 5:30 PM, she did not know how the incident had taken place; but PW1 had a suspicious that she was killed by her-in-laws by pouring kerosene oil. It is pertinent to state that suspicious howsoever it may be strong shall remain mere a suspicious in the absence of any cogent evidence. In these circumstances, the testimony of PW1 wherein she SC No. 62/12 Page 20 of 32 State Vs. Sunil @ Guddu & others deposed that she did not talk with the deceased in the hospital appears more trustworthy and the later portion of her deposition that deceased told her that she was set on fire by the accused persons is nothing but the result of afterthought.
(iii) PW2 in his examination-in-chief deposed that when he reached the hospital, his daughter Shivani was conscious and she was able to talk, accordingly he talked with her and at that time she told him that her jethani Geeta, jeth Anil and her husband tried to set her on fire by pouring kerosene oil. During his cross-examination conducted by learned Additional Public Prosecutor, he also added the name of accused Sunny but swiftly added that later on he came to know that Sunny was not involved in the incident. However, in his cross-examination he deposed that he reached the hospital between 8 AM to 9 AM and thereafter, he met with his daughter. He further deposed that at that time accused Anil, his another daughter Preeti, his wife (PW1) and other relatives were also present in the hospital. He further deposed that when he met with his daughter between 8 AM to 9 AM, she did not tell him anything about the incident. Rather she asked him to take her to AIIMS. He further deposed that in his statement Ex.PW2/C, he had raised suspicion that his daughter was set on fire by her jeth Anil, jethani Geeta, dever Sunny and husband Sunil after pouring kerosene oil. Admittedly, the said statement was recorded on 14.10.2011. It means that till 14.10.2011, deceased did not inform PW2 that she had been set on fire by the accused persons otherwise he would have stated that his daughter told that she was burnt by the accused persons. But it is not so. Thus, till October 14, 2011 PW2 had mere a suspicious that she was killed by the accused persons by pouring kerosene oil. This fact is clarified by PW2 in his cross-examination by deposing that till that time Shivani did not tell him that she was set on fire by her husband, jeth, SC No. 62/12 Page 21 of 32 State Vs. Sunil @ Guddu & others jethani and dever. He further clarified that Shivani had never told him that she was set on fire by the above said persons. But in the next breath, he deposed that Shivani told him in the evening of October 14, 2011 that she was set on fire by the above said persons and police had recorded his statement at that time. It is admitted case of the prosecution that no such statement of PW2 was recorded at that time. From his testimony, it is clear that there is no consistency in his statement.
(iv) In the light of the above discussion, I am of the view that the testimonies of PW1 and PW2 are not helpful to the prosecution to prove the culpability of accused persons.
23. Next question emerges as to whether there is any possibility to tutor or influence the victim or not?
24. It is admitted case of the prosecution that the alleged incident had taken place at about 10.30 PM and the last dying declaration Ex. PW12/A of deceased was recorded on October 14, 2011 at about 4.25 PM. PW1 admitted in her examination-in-chief that she reached the hospital at 4 AM and admitted in her cross-examination that when Shivani regained consciousness, all her family members i.e. Santosh, Suresh, Mukesh, Ravi met with Shivani and she remained with Shivani till she remained admitted in the hospital. She further admitted when her statement was recorded by the SDM, she was present with Shivani. PW2 also corroborated the testimony of PW1 by deposing that till Shivani expired, he, Ravi, Mukesh and Vicky remained in the hospital. He also clarified that his wife (PW1) also remained in the hospital. Thus, it becomes clear that entire family of deceased remained with her from the time she regained consciousness and till her statement Ex. PW12/A was recorded. As already stated that SC No. 62/12 Page 22 of 32 State Vs. Sunil @ Guddu & others deceased was fit to make statement from the time when she was admitted in the hospital, thus, the family members of victim had ample opportunity to influence the victim to make a statement against her in-laws. PW12 also admitted in his cross-examination that when he reached the hospital, he found that 4-5 family members were sitting near Shivani but swiftly added that he had sent them out while recording her statement. But this shows that the family members were in touch with deceased, thus they had sufficient opportunity to influence or tutor her. PW1 also admitted in her cross-examination that they had also given beating to the accused persons in the hospital. This shows that after seeing Shivani in burnt condition, they lost their temper and had given beating to the accused persons. In these circumstances, the possibility that in order to take revenge or in indignation they induced the victim to make a fresh statement before the SDM implicating the above accused persons cannot be ruled out.
25. Next question emerges how mother-in-law of victim sustained injury?
26. Initially, PW1 in her cross-examination deposed that mother-in- law of deceased also sustained burns injuries on that day but swiftly added that she was not got admitted in the hospital and further deposed that she did not know how she had sustained injury. But subsequently, she admitted that she had sustained burn injuries when she tried to save Shivani. This shows that PW1 was reluctant to admit that her mother-in-law sustained injury while saving the deceased. PW2 fairly conceded that her mother-in- law tried to save her and in that process she also sustained burns injuries. PW13 also admitted in his deposition that on local enquiries, it was revealed that her mother-in-law tried to save the victim from flames and in that process she had sustained burns injuries. Thus, it is proved beyond SC No. 62/12 Page 23 of 32 State Vs. Sunil @ Guddu & others doubt that her mother-in-law attempted to save the deceased from flames and while saving her she had sustained burns injuries. Thus, Lilawati, mother-in-law of deceased should have been a star witness of the prosecution but surprisingly investigating officer did not even try to interrogate her nor her statement was recorded. Even prosecution did not deem it appropriate to bring her in the witness box. This proves that prosecution has withheld the material witness deliberately knowingly well that if she be produced in the witness box, she would not support the prosecution case.
27. Now question arises as to whether PW12 Mr. Girish Pandey had followed the due procedure while recording the dying declaration of deceased?
(i) PW12 in his cross-examination deposed that though he met with a doctor, yet he did not recall his name and he has also not mentioned this fact anywhere in the proceeding. He further deposed that though he made an enquiry from the doctor about the mental condition of the patient and doctor told him orally that she was fit to make statement but further admitted that he had not seen the MLC or any other document in this regard. He admitted that there is no endorsement of the doctor on the MLC about the mental condition of patient on October 14, 2011. He further deposed that he did not record the statement of victim in question-answer form but swiftly added that he was not aware whether dying declaration should be recorded in question and answer form. He also admitted that the statement Ex. PW12/A is not in his handwriting but stated that the same was recorded by his staff. He also admitted that at the end of statement, he made an endorsement that the statement was recorded by him and further admitted that he did not record in the endorsement that the SC No. 62/12 Page 24 of 32 State Vs. Sunil @ Guddu & others same was recorded by his Naib Court at his dictation. He also admitted that Shivani had put her thumb impression on her statement whereas on her previous statement dated October 13, 2011 she put her signature but swiftly added that he did not obtain her signature as Shivani told him that she would not be able to sign but also admitted that he did not mention this fact in his endorsement. Needless to say that recording of dying declaration is an important task and to avoid any kind of manipulation, fabrication and to bring fairness and transparency, this task has been assigned to the Executive Magistrates, thus it is the paramount duty of Executive Magistrates to take proper steps and precautions while recording the dying declaration but in the instant case, it is evident that PW12 has failed to take requisite steps.
28. Applying the above facts in the settled proposition of law as laid down by the Apex Court in Khushal Rao's case (supra) and followed in Krishan v/s. State of Haryana (supra), it can safely be culled out that in the instant case dying declaration had not been recorded in proper form i.e. question and answer form; same was not recorded by PW12 in his own handwriting; rather it was recorded by unknown Naib Court of PW12 to whom prosecution failed to produce in the witness box; even PW12 failed to disclose the name of said person; it is not clear what was the mental condition of the victim at the time of making statement. There is inconsistency in the dying declaration as she had changed her statement from time to time and made as many as four statements. In her first statement, she did not disclose the name of culprits, in her second statement, she did not utter even a single word against any accused persons and stated that she had attempted to commit suicide in indignation. Thereafter, she made a third statement before SDM, she reiterated that she had attempted to commit suicide but in her last SC No. 62/12 Page 25 of 32 State Vs. Sunil @ Guddu & others statement, she implicated all the accused persons. It is proved that family members of deceased with her for a substantial period before she made her last statement to the SDM, thus there were ample chances and opportunities to the family members of deceased to tutor or influence the deceased to make a statement as per their desire. Further, there is no evidence to prove that at the time of incident accused no.2 to 4 were present in the house.
29. Pondering over the ongoing discussion, I am of the opinion that no reliance can be placed on the dying declaration Ex. PW12/A without any corroboration on substantial points. Since the prosecution has failed to produce any corroborative evidence, I am of the opinion that no reliance can be placed on the dying declaration Ex. PW12/A.
30. Now coming to the contentions relating to place of occurrence.
31. It is admitted case of prosecution that the alleged incident had taken place at a circle which was located at a considerable distance from the matrimonial house of deceased. As per scaled site plan Ex. PW20/A, the matrimonial house of deceased is located at point A whereas the incident had taken place at point B and the distance between both the said points is 5700 cm. It means that the incident had taken place at the distance of about 57 metres from the matrimonial house. Admittedly, the place of occurrence is located in a thickly populated area as jhuggi dwellers were residing there. Despite that investigating agency failed to find out even a single person who had witnessed the said incident. It is unbelievable that no such public person would be present at the time of incident. It is admitted case of prosecution that when PW13 made a local enquiry, he came to know that her mother-in-law had sustained injury while SC No. 62/12 Page 26 of 32 State Vs. Sunil @ Guddu & others saving her, it means that public persons were present who had witnessed the incident but investigating officers deliberately failed to bring them in the witness box. It appears otherwise quite unreasonable that the accused persons would set the victim on fire at the public place. Needless to say that such type of offences are generally committed within the four walls of house but in the instant case, the alleged incident had taken place at the public place which strengthen the defence version that victim had committed suicide as she narrated in her second and third dying declaration.
32. During the course of arguments, an attempt was made that kerosene oil was poured upon the victim in the house and thereafter, victim was chased by the accused persons and she was set on fire at the Chowk. But this contention is without any substance. Seizure memo Ex. PW13/A proves that all the exhibits were found at the place of occurrence i.e. Chowk. Though the place of occurrence was inspected by the crime team but there is nothing in the report which may suggest that any kerosene oil was found in the jhuggi i.e. matrimonial house of deceased. Had any kerosene oil been poured upon the victim in the matrimonial house as contended, crime team would have noticed some traces of kerosene oil in the house as well as on the way but it is not so. Similarly, in that situation the kerosene bottle would not have been found from the spot rather it would had been recovered from the jhuggi itself. In these circumstances I do not find any substance in the said contention.
33. Now coming to the contentions relating to the dowry demands.
34. Prosecution has set up a case that accused Sunil used to harass the victim as she had not brought motor cycle in the dowry. In order SC No. 62/12 Page 27 of 32 State Vs. Sunil @ Guddu & others to prove the allegations, prosecution has relied upon the testimony of PW1 and PW2. Other witnesses turned hostile and did not support the prosecution case in any manner.
35. PW1 in her examination-in-chief deposed that after 2-3 months of the marriage, quarrel had started between Shivani and accused Sunil on the ground that they had not given motor cycle in the marriage and on this ground accused Sunil had given beating to Shivani. She further deposed that Shivani came to her house 2-3 times and made a complaint to her in this regard but she persuaded her to go to her matrimonial house. It is admitted case of prosecution that marriage had taken place on November 7, 2009 and Shivani had given a birth to a female child on August 12, 2011. In her cross-examination, she admitted that accused Sunil had a motor cycle make Yamma at the time of his marriage and further admitted that whenever Shivani came to her parents house along with her husband, they came on the said motor cycle. It is not clear why accused would demand a motor cycle when he had already a motor cycle. Similarly, PW2 in his deposition admitted that Sunil had never made any demand of motor cycle from him and further deposed that since he never talked with Sunil on this issue, Sunil never asked him to give motor cycle nor he made any effort to convince the accused Sunil on this issue. PW2 further deposed that he had visited the matrimonial house of deceased 2-3 times to settle the matter in Panchayat but her in-laws sent them back after serving tea and food stating that they would talk later on and further deposed that neither accused persons raised their voice nor he made any complaint to them. In his cross examination, PW2 also clarified that whenever he visited the house of his daughter, her in-laws never misbehaved with him. Accused Sunil never made any demand of motor cycle. From their testimony, it is difficult to cull out that accused Sunil had made any demand of motor cycle SC No. 62/12 Page 28 of 32 State Vs. Sunil @ Guddu & others or he had harassed or tortured the victim for not giving the motor cycle in dowry. Admittedly, the real sister of deceased named Preeti also married with the brother of accused Sunil and it is also admitted case of prosecution that Preeti had never made any allegation against her in-laws that she was ever harassed or tortured on account of dowry. Though Preeti was one of the witnesses, yet prosecution failed to bring her in the witness box. Probably prosecution had apprehension that she would not support their case. In the given circumstances, I am of the view that prosecution has failed to adduce sufficient evidence on record to prove the fact that deceased was harassed or tortured either by accused Sunil or other accused persons for not bringing motor cycle in dowry.
36. During the course of arguments, learned Additional Public Prosecutor also contended that accused Sunil had made a call to the deceased on October 12, 2011 and asked the victim to come at her matrimonial house and also told her that he would give divorce to her and would also give ` 5.00 lac to her. She further deposed that Shivani had told this fact to her in the hospital. It is admitted case of prosecution that deceased had left for her matrimonial house after receiving the call. It means that Shivani does not inform her mother about the said call before going to her matrimonial house as PW1 deposed that Shivani had told the above facts to her only in hospital. It is also admitted case of prosecution that PW1 had got recorded her statement to the SDM on October 14, 2011 at 5:30 PM and same is exhibited as Ex. PW1/A. But in her said statement she did not utter even a single word about the alleged call. Even investigating officer did not deem it appropriate to collect the CDR of mobile either of accused Sunil or deceased. Thus, there is no cogent evidence to establish that accused Sunil had made any call to the deceased as deposed by PW1.
SC No. 62/12 Page 29 of 32State Vs. Sunil @ Guddu & others
(i) PW2 in his examination-in-chief deposed that my daughter did not tell him that Sunil asked her to pay ` 5.00 lac and to give divorce. He further deposed that deceased had not told these fact to him even in the hospital. Thus, the testimony of PW2 is not helpful to the prosecution in any manner.
37. In the light of above discussion, I am of the view that prosecution has failed to connect the alleged phone call with the accused. Even in this regard the second dying declaration of the deceased is also relevant wherein she stated that during the last three months she tried to call her husband to her parents' house several times but he neglected her and due to that reason she became angry and went to her matrimonial house to meet her husband but he again ignored her, consequently, she committed suicide. This shows that Shivani had committed suicide due to the dispute between husband and wife but her parents attempted to give a colour to the incident of dowry death. This appears more plausible as PW2 also admitted in his cross-examination that deceased was a short tempered girl.
38. Now coming on the next question as to whether prosecution has succeeded to bring to home the guilt of any of the accused for the offence punishable under Section 304B IPC with the aid of Section 113B of Evidence Act or not?
39. As per the definition of "dowry death" in Section 304B, IPC and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the 'woman' must have been "soon before her death" subjected to cruelty or SC No. 62/12 Page 30 of 32 State Vs. Sunil @ Guddu & others harassment "for, or in connection with, the demand for dowry".
Presumption in terms of Section 113B is one of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
(Relied on AIR 2009 SUPREME COURT 1454 "Tarsem Singh v. State of Punjab")
40. As already discussed that prosecution has failed to establish that deceased was subjected to cruelty or harassment in connection with the demand of dowry. Even prosecution has failed to establish that accused Sunil had ever demanded motor cycle in dowry either at the time of marriage or thereafter. Rather, it is admitted case of prosecution that accused Sunil had a motor cycle prior to his marriage. It is also admitted case of prosecution that deceased was residing for the last more than two SC No. 62/12 Page 31 of 32 State Vs. Sunil @ Guddu & others months at her parents house and she all of sudden reached her matrimonial house in the evening on October 12, 2011 and committed suicide. As per her second dying declaration she returned to her matrimonial house as her husband did not visit her parents' house despite her repeated calls and when she of own reached her matrimonial house, he again ignored her and due to that reason she became angry and in indignation she committed suicide at the Chowk by pouring kerosene oil and her mother-in-law and husband tried to save her by extinguishing flames by pouring water upon her. In these circumstances, I am of the considered opinion that prosecution has failed to fulfil the requisite conditions to raise presumption against the accused Sunil with the aid of Section 113B of Evidence Act.
41. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused persons for the offences punishable under Section 302/304B/498A/34 IPC beyond the shadow of all reasonable doubts, thus, I hereby acquit all the accused persons namely Sunil @ Guddu, Sunny, Geeta and Anil from all the charges.
Announced in the open Court
on this 3rd day of January, 2014 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI
SC No. 62/12 Page 32 of 32