Delhi District Court
State vs Mahender @ Dabbu//Fir No.109/08 on 11 May, 2011
:1:
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 145/2008
FIR No. 109/2008
PS : Saraswati Vihar
U/s. 302 IPC
STATE
VERSUS
MAHENDER @ DABBU
S/O. SITA RAM
R/O. N-17-B-170, PATHARWALA BAGH
JJ COLONY, WAZIRPUR
DELHI.
Date of Institution : 02.06.2008.
Date of receipt of case in this court : 01.12.2008.
Arguments heard On : 07.05.2011
Order Announced On : 12.05.2011.
Order on Sentence Announced on : 13.05.2011
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI SATISH BAJAJ, COUNSEL FOR THE ACCUSED.
ORDER ON SENTENCE
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:2:
Present : Sh. P. K. Verma, APP for the State.
Convict in JC with his counsel Sh. Satish Bajaj.
1. It has been submitted by Sh. Satish Bajaj, counsel
for convict that convict is unmarried and aged about 27
years and his family consists of two married brothers. It is
also submitted that the convict has no previous record of
conviction. He request that lenient view may be taken
against the convict.
2. On the other hand, Sh. P.K. Verma, Ld. APP for the
State submits that the convict planned the incident, in which,
he killed his wife in a gruesome manner. Ld. APP has
vehemently submitted that convict be awarded maximum
punishment.
3. I have heard Ld. APP for the State as well as the
Ld. Defence Counsel for Convict.
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:3:
4. Security of persons and property of the people is a
paramount function of the State which could be achieved
through machinery of criminal law. Protection of society and
stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence.
The facts and given circumstances in each case, the nature
of crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the
convicts. The nature of weapons used and all other attending
circumstances are relevant facts which would enter into the
area of consideration. Undue sympathy to imposed
inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of
law and society could not long endure under such serious
threats. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc.
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:4:
5. It was observed in case of Dhananjoy
Chatterjee @ Dhana Vs. State of West Bengal, 1995
AIR SCW 510 as under :-
"Of course, it is not possible to lay down any
cut and dry formula relating to imposition of
sentence but the object of sentencing should be
to see that the crime does not go unpunished
and the victim of crime as also the society has
the satisfaction that justice has been done to it
in imposing sentences, in the absence of
specific legislation. Judges must consider
variety of factors and after considering all
those factors and taking an overall view of the
situation impose sentence which they consider
to be an appropriate one. Aggravating factors
cannot be ignored and similarity mitigating
circumstances have also to be taken into
consideration.
In our opinion, the measure of punishment in a
given case must depend upon the atrocity of
the crime; the conduct of the criminal and the
defenceless and unprotected state of the
victim. Imposition of appropriate punishment is
the manner in which the courts respond to the
society's cry for justice against the criminals.
Justice demands that courts should impose
punishment fitting to the crime so that the
courts reflects public abhorrence of the crime.
The courts must not only keep in view of the
rights of criminal but also the rights of the
victim of crime and the society at large while
considering imposition of appropriate
punishment."
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:5:
6. It was also observed in case of Jashubha
Bharatsing Gohil Vs. State of Gujrat, (1994) 4 SCC 353
that the protectiion of the society and deterring the criminal
is avowed object of law and that is required to be achieved
by imposing appropriate sentence.
7. It was held in the case of Siddarama & others
Vs. State of Karnataka, (2007) 1 SCC (Cri) 72 :-
"the object should be to protect the society and
to deter the criminal in achieving the avowed
object to law by imposing appropriate sentence.
It is expected that the courts would operate the
sentencing system so as to impose such
sentence which reflects the conscience of the
society and the sentencing process has to be
stern where it should be.
Imposition of sentencing without considering its
effect on the social order in many cases may be
in reality a futile exercise. The social impact of
the crime e.g. where it relates to offences
relating to narcotic drugs or psychotropic
substances which have great impact not only on
the health fabric but also on the social order
and public interest, cannot be lost sight of and
per se require exemplary treatment. Any liberal
attitude by imposing meagre sentences or
taking too sympathetic view merely on account
of lapse of time or personal inconveniences in
respect of such offences will be result wise
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:6:
counterproductive in the long run and against
societal interest which needs to be cared for an
strengthened by a string of deterrence inbuilt in
the sentencing system."
8. It was observed in the case of Shivaji @ Dadya
Shankar Alhat Vs. State of Maharashtra, 2008 (4) RCR
(Criminal) 202 as under :-
"Proportions between crime and punishment is
a goal respected in principles, and in spite of
errant notions, it remains a strong influence in
the determination of sentences. The practice of
punishing all serious crimes with equal severity
is now unknown in civilized societies, but such
a radical departure from the principle of
proportionality has disappeared from the law
only in recent times. Even now for a single
grave infraction drastic sentences are imposed.
Anything less than a penalty of greatest
severity for any serious crime is unwarranted
and unwise. But in fact, quite apart from those
considerations that make punishment
disproportionate punishment has some very
undesirable practical consequences."
9. In case State of Punjab Vs. Prem Sagar and
Others (2008) 7 SCC 550 it was observed that the Indian
Judicial System has not been able to develop legal principles
as regards sentencing. It was further observed that whether
the court while awarding sentence would take recourse to
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:7:
the principle of deterrence or reform or invoke the doctrine of
proportioonality would depend upon the facts and
circumstances of each case and while doing so nature of
offence said to have been committed by the accused plays
an important role. A wide discretion is conferred on the court
but said discretion must exercise judicially while sentencing
an accused. It would depend upon the circumstances in
which the crime has been committed and the mental state
and the age of the accused is also relevant. It was observed
as under :
"In our judicial system, we have not been able
to develop legal principles as regards
sentencing. The superior courts except making
observations with regard to the purport and
object for which punishment is imposed upon
an offender, have not issued any guidelines.
Other developed countried have done so.
Whether the court while awarding sentence
would take recourse to the principle of
deterrence or reform or invoke the doctrine of
proportionality would no doubt depend upon
the facts and circumstances of each case. While
doing so, however, the nature of the offence
said to have been committed by the accused
plays an important role. The offences which
affect public health must be dealt with
severely. For the said purpose, the courts must
notice the object for enacting Article-47 of the
Constitution of India.
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:8:
A sentence is a judgment on conviction of a
crime. It is resorted to after a person is
convicted of the offence. It is the ultimate goal
of any justice delivery system. Parliament,
however, in providing for a hearing a sentence,
as would appear from sub-section (2) of Section
235, sub-section (2) of Section 248, Section 325
and also Section 360 and 361 of the Code of
Criminal procedure, has laid down certain
principles. The said provisions lay down the
principle that the court in awarding the
sentence must take into consideration a large
number of relevant factors; sociological
backdrop of the accused being one of them.
Although a wide discretion has been conferred
on the court but said discretion must exercise
judicially. It would depend upon the
circumstances in which the crime has been
committed and the mental state. Age of the
accused is also relevant."
10. The punishment provided under Section 302 IPC is
death or life imprisonment as a penalty for murder. The
Indian Penal Code has under gone multi facet changes for the
last three decades which indicates that the Parliament has
taken note of contemporary criminological thought and
movement. The Indian Penal Code reflects a definite swing
towards life imprisonment. Death sentence is ordinarily ruled
out and can only be imposed for "special reasons". As
provided in Section 354 (3) CrPC. It indicates that
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:9:
reformation and rehabilitation of offenders and no
deterrence, are now among the foremost objects of the
administration of criminal justice in the country. Section
354(3) CrPC. is a part emerging picture of acceptance by the
legislature of the new trends in criminology. The personality
of an offender revealed by his age, character, antecedents
and other circumstances and the tractability of the offender
to reform must necessarily play the most prominent role in
determining the sentence to be awarded. A judge has to
balance the personality of the offender with the
circumstances, situations and the reactions and choose the
appropriate sentence to be imposed. The former rule that the
normal punishment for murder is death is no longer operative
and it is now within the discretion of the court to pass either
the sentence prescribed in Section 302 IPC.
11. In case Bachan Singh Vs. State of Punjab, AIR
1980 SC 899 it was observed that a real and abiding
concern for the dignity of human life postulates resistance to
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:10:
taking a life through law's instrumentality. The ought not to
be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed.
12. In case Machhi Singh Vs. State of Punjab, AIR
1983, SC 957 the guidelines are laid down which are to be
kept in view, considering the question whether the case
belongs to the rarest of rare category. It was observed that
the following question may be asked and answered as a test
to determine the 'rarest of rare' case in which death
sentence can be inflicted:-
1. Is there something uncommon
about the crime which renders
sentence of imprisonment for
life inadequate and calls for
death sentence?
2. Are the circumstances of the
crime such that there is no
alternative but to impose
death sentence even after
according maximum
weightage to the mitigating
circumstances which speak in
favour of the offender?
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:11:
13. In the case of Machhi Singh (Supra) the
guidelines were culled out which are to be applied to the
facts of each individual case where the question of imposition
of death sentence arises. The following preposition emerges
from the Bachan Singh's case :-
i. The extreme penalty of death need not
be inflicted except in gravest cases of
extreme culpability.
ii. Before opting for the death penalty the
circumstances of the 'offender' also
required to be taken into consideration
along with the circumstances of the
'crime'.
iii. Life imprisonment is the rule and death
sentence is an exception. 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 cannot be conscientiously
exercised having regard to the nature
and circumstances of the crime and all
the relevant circumstances.
iv. 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 just balance has to be
struck between the aggravating and
the mitigating circumstances before
the option is exercised.
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:12:
14. In case Bablu @ Mubarak Hussain Vs. State of
Rajasthan, AIR 2007 SC 697 the Supreme Court observed
as under :-
"In rarest of rare cases when collective conscience
of community is so shocked that it will except the
holders of the judicial power center to inflict death
penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death
penalty, death sentence can be awarded. The
community may entertain such sentiment in the
following circumstances :-
i. When the murder is committed, in an
extremely brutal, grotesque, diabolical,
revolting and dastardly manner so as to
arouse intense and extreme indignation
of the community.
ii. When the murder is committed for a
motive which evinces total depravity and
meanness; e.g murder by hired assassin
for money or reward or a cold-blooded
murder for gains of a person vis-a-vis
whom the murderer is in a dominating
position or in a position of trust, or
murder is committed in a course for
betrayal of the motherland.
iii. When murder of a member of a
Scheduled Caste or minority community
etc., is committed not for personal
reasons but in circumstances which
arouse social wrath, or in cases of 'bride
burning' or 'dowry deaths' or when
murder is committed in order to remarry
for the sake of extracting dowry once
again or to marry another woman on
account of infatuation.
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:13:
iv. When the crime is enormous in
proportion. For instance when multiple
murders, say of all or almost all the
members of a family or a large number of
persons of a particular caste, community
or locality, are committed.
v. When the victim of murder is an innocent
child, or helpless woman or old or infirm
person or a person vis-a-vis whom the
murder is in a dominating position or a
public figure generally loved and
respected by the community."
15. On the basis of above observations and discussion
in the present facts and circumstances of the case, the
present case does not fall within the category of "rarest of
the rare category", as such, the death penalty cannot be
awarded to the convict. The latest decision of the Hon'ble
Supreme Court of India pertaining to imposition of sentence
in the case of Santosh Kumar Satishbhushan Bariya vs.
State of Maharashtra, decided on 13.05.2009. Another
important fact pertaining to sentencing the procedure being
considered. Imprisonment for life as a penalty entails that the
convict must remain in the imprisonment till his life i.e would
never to set free from the jail. However, the code of Criminal
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:14:
Procedure provides power to executive under Section 433
CrPC which subject to the restrictions provided by Section
433 CrPC. According to which a convict sentenced to
imprisonment for life for whose death sentence has been
commuted to imprisonment for life cannot be released for
prison unless served at least 14 years of imprisonment. The
Hon'ble Supreme Court of India in the case of Swami
Shraddhanand vs. State Karnataka 2008 (13) SCC 767
imposed upon State the condition that accused would not be
entitled to any commutation or premature release.
16. In the recent times, acid has become a very fatal
weapon for committing offence specially by the persons who
keep grudge against any girl or women. Recently the
Supreme Court of India has taken up the issue and directed
the government to form a policy for sale of acid. In this case
convict in a brutal and gruesome manner threw acid on the
deceased. The manner in which the convict committed
murder is very painful and the pain must have been felt not
only by the body of the deceased but also by her soul.
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:15:
17. Hence in the present case, I sentence convict
Mahender @ Dabbu to undergo Rigorous Imprisonment
for life along with fine of Rs. 10,000/- (Rupees Ten
Thousand) and in default of payment of fine Simple
Imprisonment for one year for offence punishable
under Section 302 IPC.
18. It is made clear that in view of the law laid down
by Hon'ble Supreme Court of India in the case of Swami
Shraddhanand (Supra) the appropriate sentence of
imprisonment for life is that the convict namely Mahender @
Dabbu has to undergo actual sentence of 35 years and grant
of remission shall not be considered till the actual sentence
of 35 years. Benefit of section 428 Cr.P.C. Shall be given to
the convict. Copy of judgment and order on sentence be
supplied free of cost. Sessions file be consigned to record
room.
Announced in the open court (SANJAY KUMAR)
today i.e. 13.05.2011 ASJ-01 (NW),ROHINI
COURTS: DELHI
STATE VS MAHENDER @ DABBU//FIR NO.109/08
PSSARASWATI VIHAR//U/S. 302 IPC.
:16:
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 145/2008
FIR No. 109/2008
PS : SARASWATI VIHAR
U/s. 302 IPC
STATE
VERSUS
MAHENDER @ DABBU
S/O. SITA RAM
R/O. N-17-B-170, PATHARWALA BAGH
JJ COLONY, WAZIRPUR
DELHI.
Date of Institution : 02.06.2008.
Date of receipt of case in this court : 01.12.2008.
Arguments heard On : 07.05.2011
Order Announced On : 12.05.2011.
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI SATISH BAJAJ, COUNSEL FOR THE ACCUSED.
JUDGMENT
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:17:
1. The factual matrix of the case is that on 29.02.2008 on receiving DD No. 17A, IO SI Daya Chand alongwith Constable Amar Singh went to Petrol Pump, Britannia, JJ Colony, Shakurpur where no eye witness or complainant met them. In the meantime, PCR Control Room informed that the injured was removed by PCR Van Commander 21 to Bhagwan Mahavir Hospital. IO alongwith Constable Amar Singh reached at the hospital and collected the MLC of injured Jyoti, w/o. Mahender @ Dabbu aged 24 years, r/o. G-233, JJ Colony, Shakurpur, Delhi. Doctor had mentioned on the MLC alleged history of 75% acid burn and declared her unfit for statement and result on nature of injuries as grievous. No eyewitness met them at the hospital. IO prepared rukka on DD No. 17A and handed over the same to Constable Amar Singh for registration of FIR, who left the hospital. During the investigation, doctor handed over acid burnt clothes of injured Jyoti in a sealed parcel alongwith a sample seal. In the meantime, Constable Amar Singh returned back to the hospital and handed over a copy of FIR and original rukka to the IO. IO alongwith Constable Amar STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:18: Nath again reached the place of incident and taken into possession some burnt clothes lying at the spot, which were smelling like acid and turned it into cloth parcels and sealed and seized with the seal of DCS. IO prepared site plan of the spot and informed the SDM about the incident. SDM, Model Town went to LNJP Hospital and recorded the statement of injured Jyoti, wife of Mahender @ Dabbu and made inquiries from her. Thereafter, IO recorded the statement of witnesses and tried to search for the accused but he could not be traced. On 05.03.2008, accused surrendered himself before the Court. The Court made inquiries from the accused and remanded him police custody for one day. Thereafter, he was formally arrested, sent in judicial custody and his disclosure statement recorded. IO prepared site plan of the spot at the instance of accused and tried to search for the acid bottle, which could not be recovered. IO recorded statement of witnesses and deposited the case property in the Malkhana. On 12.04.2008, IO received the information from LNJP Hospital that the injured Jyoti expired. The offence was thereafter converted from U/s. 307 IPC to 302 IPC and STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:19: further investigation was handed over to Inspector Ajay Kumar. Thereafter on 13.04.2008, M.Z.Ansari, Executive Magistrate, Model Town reached at the hospital and recorded the statement of witnesses in respect of identification of dead body of Jyoti. Executive Magistrate prepared inquest papers and directed for postmortem of the dead body. IO Inspector Ajay Kumar collected the postmortem report of the deceased Jyoti and prepared scaled site plan of the spot through Draftsman. After the completion of investigation, IO filed the charge sheet before the concerned Court.
2. Ld. MM after compliance of section 207 Cr.P.C., committed the case to the court of Sessions.
3. My Ld. Predecessor framed the charge for trial of offence u/s 302 IPC vide order dated 07.08.2008, to which, the accused pleaded not guilty and claimed trial.
4. Prosecution in support of the present case examined in total 23 witnesses.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:20:
5. As per statement of Ld. APP for the State Sh. P.K.Verma, prosecution evidence was closed vide order dated 22.01.2011.
6. Statement of accused u/s. 313 Cr.P.C. recorded and the accused pleaded innocence in this case. Accused wished to examine witnesses in his defence.
7. In support of his defence, accused examined three witnesses.
8. I have heard learned APP for State Shri P.K.Verma and learned counsel for the accused Shri Satish Bajaj and perused the material on record.
9. The prosecution examined PW-1 Sukhram, who is father of the deceased Jyoti deposed that on 13.04.2008, he identified the dead body of his daughter Jyoti in the Mortuary of LNJP Hospital, who died on 12.04.2008 during her treatment in the said hospital as acid was thrown on her by STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:21: her husband Mahender @ Dabbu on 29.02.2008. He further deposed that after the postmortem of deceased JYoti, the dead body was handed over to him. He proved his identification statement Ex. PW-1/A. In the cross- examination, he stated that this was the second marriage of his daughter with the accused. Her first husband had left her and she was having a male child out of that marriage. He further stated that no divorce had taken place between the deceased Jyoti and her previous husband. After the marriage, his deceased daughter was kept well for two years by the accused but thereafter dispute arose between them. He never visited the house of accused, even on festivals. He was not present at the spot at the time of incident. His statement was recorded by the IO in the hospital. He does not remember whether he signed the statement or not.
10. PW-2 Smt. Amarjeet Kaur, who is mother of the deceased Jyoti deposed that he had two children, one boy and one girl. Deceased Jyoti was his daughter. She deposed that on 29.02.2008 at about 8.00/8.30 AM, a telephone call STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:22: was received by deceased Jyoti from accused in her presence, with whom she had married about two years ago to talk in connection with their divorce matter. She further deposed that her deceased daughter Jyoti was living with her for the last about one year and the accused used to call her and visit her and also used to threaten her that he would finish her or would get her killed. On 29.02.2008, on telephone, accused asked her deceased daughter to come at the bus stand of Shakurpur alongwith her marriage certificate and a photograph as they had to visit the Court for divorce. She left for her house for her job and at that time, her deceased daughter was in the house. She used to work in the houses of Shakurpur and a boy came to her and told that acid had been thrown on her deceased daughter by her husband Mahender at the bus stand of Shakurpur. Thereafter, she went there and found shawl and clothes of his deceased daughter lying in torn and burnt condition. There was a crowd at the spot and she was told that her daughter was taken to hospital by PCR Van. She went to Bhagwan Mahavir Hospital and found her daughter in burnt STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:23: condition and on seeing her, her daughter told her that accused Mahender had done this with her. At that time, media persons also gathered there and she also told to them that accused Mahender had thrown acid on her daughter. She further deposed that this was the second marriage of her deceased daughter with accused Mahender and she was having a male child aged about 6-7 years from her first marriage. Jyoti was shifted to LNJP Hospital where she remained under treatment for about one month and 12 days and thereafter, she expired. She identified the dead body of deceased Jyoti in the Mortuary of LNJP Hospital on 13.04.2008 and her identification statement Ex. PW-2/A was recorded. She further deposed that after the postmortem, the dead body was handed over to her. Despite opportunities granted, this witness was not cross-examined on behalf of accused.
11. PW-3 M. Z. Ansari, Executive Magistrate deposed that on 13.04.2008, he was posted as Executive Magistrate, Sub Division Model Town and on that day, he STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:24: received a telephonic call from Shri B.S. Takur, SDM, Model Town, who called him at LNJP Hospital to conduct the inquest proceedings of deceased Jyoti. He reached at LNJP Hospital on 13.04.2008 and went to Mortuary at LNJP Hospital. Statements of Sukh Ram and Amarjeet Kaur to the effect of identification of dead body of Jyoti were recorded, who also signed in his presence. He attested their signatures at point 'X' by putting his signatures and seal at point 'Y' on Ex. PW- 1/A and PW-2/A respectively. Form No. 25.35 Ex. PW-3/A-1 was filled up and request to perform autopsy was made vide document Ex. PW-3/B. He had mentioned on Ex. PW-3/B that the dead body may be handed over to Shri Sukh Ram through SI Daya Chand after postmortem. Thereafter, brief facts Ex.PW-3/C was prepared. In the cross-examination by learned defence counsel, he stated that he went alone to LNJP Hospital and relatives of deceased Jyoti, police officials and some neighbours were present in the Mortuary at LNJP Hospital. He did not record statement Ex. PW-1/A and PW-2/A in his handwriting but same were recorded in his presence by SI Daya Chand. He further stated that prior to going to STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:25: Hospital, he had information through SDM concerned regarding unnatural death of Jyoti. He denied that whatever is stated in the statements of Sukhram and Amarjeet Kaur Ex. PW-1/A and Ex. PW-2/A respectively were dictated to him by SDM or that he was deposing falsely.
12. PW-4 Dr. Pankaj Shah, Casualty Medical Officer deposed that on 29.02.2008, he was posted in the Casualty of Bhagwan Mahavir Hospital as Casual Medical Officer and patient Jyoti, wife of Mehender @ Dabu was brought in Casualty with the alleged history of acid burn about half an hour back and he examined the patient. Patient complained of pain, swallowing, burning sensation over both arms, legs, upper chest and unable to see. On examination, she was conscious oriented, her pulse rate were 88 per minute, blood pressure was 120/80, temperature was 98.4 F., respiratory system - bilateral air entry and clear, cardio vescular system - S1, S2 normal, no murmur, per abdomen - soft, bowel sound (+), central nervous system - no focal deficit, Pallor (-), Oedema (Negative), LN (Negative) STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:26: JVP - Normal. Patient was referred for surgical opinion and Opthalmologoi (eyes) opinion and conservative management given. It includes injection ATS / Tetnes tocside / I.V. Fluid antibiotic / antacid / Analgesic / Aseptic dressing with silver sulfadiagen. After surgical/Opthal opinion, patient was referred to higher Centre LNJP Hospital. He prepared MLC Ex. PW-4/A and his handwriting appear on this MLC in red enclosed circle. In the cross-examination, he deposed that he does not remember, who told him about the pouring of acid on the deceased. The deceased brought to the hospital at about 12.00 pm in the noon. He initially examined for 15 minutes and again examined the deceased. The deceased was not in a position to give statement during the time till she remained in the hospital in his presence. Patient told him about pouring of acid about half an hour prior to she was brought to hospital and at that time, she was talking properly. The clothes which were worn by the deceased were taken out and sealed by the SI. As per procedure of treatment of burn patient, first cloth should be removed then the body washed. The injury was fresh having fresh burns. At STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:27: the time of examination of deceased, her relatives and police persons were present. He denied that he prepared the MLC at the instance of police officer. The clothes were so much burnt that he could not identify whether it was Saree or Suit.
13. PW-5 Sri Narain, Senior Scientific Officer deposed that the FSL report dated 23.07.2008 Ex. PW-5/A was signed by him and as per this report, vide letter dated 28.03.2008 of SHO Saraswati Vihar, two sealed parcels in connection with FIR No. 109/08 PS Saraswati Vihar under Section 307 IPC with seals intact were received in Chemistry Department through Physics Department on 25.06.2008. He opened Parcel No. 1 and found containing Ex. 1-a, 1-b, 1-c and 1-d. Parcel no. 2 was also opened and found containing Ex. 2-a, 2-b, 2-c, 2-d and 2-e. On chemical and ionchromatography examination, the above exhibits were found to contain "sulphuric acid". In the cross-examination, he deposed that as per his report Ex. PW-5/A, Ex. 1-a was one green colour cloth piece having dirty stains. He conducted chemical test, and instrumental examination on STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:28: exhibits himself. The seal remained intact and after examination, again the seal of FSL was affixed. He denied that he had not conducted any chemical test and that his report is wrong.
14. PW-6 Parshu Ram Singh, Senior Scientific Officer deposed that as per this report dated 24.07.2008 Ex. PW-6/A, vide letter dated 28.03.2008 of SHO, PS Saraswati Vihar, two sealed parcels in connection with FIR No. 109/08 PS Saraswati Vihar were received in the Physics Division, FSL Rohini through Constable Surender. Out of the two sealed parcels, one was a cloth parcel and another parcel was a polythene bag. He opened the cloth parcel and found containing Ex. 1-a to 1-d. Similarly, Polythene bag parcel was also opened and found containing Ex. 2-a to 2-e. On physical examination under magnification and subsequent comparison, piece of cloth adhering to Salwar in Ex. 1-b was found similar to cloth of lady's shirt Ex. 2-c in respect of colour, textures, design, number of wrap and weft, type of twist of thread and pattern of weaving. In the cross-
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:29: examination, he stated that he had received two sealed parcels and that he does not remember regarding the piece of cloth whether it was of shirt or salwar. He denied that his report is wrong.
15. PW-7 W/ASI Sunita Datta deposed that on 29.02.2008, she was posted as Duty Officer in PS Saraswati Vihar from 9.00 am to 5.00 pm and on that day at 1.35 pm, she received a Rukka from Constable Amar Singh sent by SI Daya Chand. She registered FIR, copy Ex. PW-7/A on the basis of said Rukka Mark X-1 and made endorsement on the Rukka by mentioning DD No. 24-A dated 29.02.2008. Copy of FIR and original Rukka were handed over by her to Constable Amar Singh to take the same to SI Daya Chand for investigation. Copy of FIR Ex. PW-7/A was not signed by her but her signatures appear in the original FIR. On 12.04.2008, again she was posted as Duty Officer from 9.00 am to 5.00 pm and on that day at 11.45 am, Head Constable M.K. Khan posted at JPN Hospital gave an information, which she reduced in writing in DD No. 13-A Ex. PW-7/B. In the cross-
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:30: examination, he stated that he returned the rukka immediately and also made DD entry and at the time of recording of DD entry, he had no knowledge of full facts of the incident.
16. PW-8 Sanjay deposed that he was running a juice rehri at Netaji Subhash Place and on 29.02.2008 due to some personal work, he was going from his shop to Shakurpur at about 11.00 am in the morning. When he had reached at red light, F-Block, Shakurpur, then he saw one lady was crying there and found that somebody had poured acid on her body. He further deposed that seeing the serious condition of the girl, he telephoned police at No. 100 through his mobile No. 9891847761. Police vehicle came there within 15 minutes of his making call and removed that girl from the spot. In the cross-examination, he states that the fact regarding pouring of acid was told to him by that girl but she did not name the person, who poured acid on her. The girl was sitting and her clothes were torn. There were 6-7 public persons.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:31:
17. PW-9 Constable Surender deposed that on 31.03.2008, MHC(M) handed over to him two sealed pullandas for depositing at FSL, Rohini, Delhi. He went to FSL and deposited two sealed parcels there. He received a receipt and handed over the same to MHC(M) after returning to Police Station. He further deposed that nobody tampered the sealed pullandas till they remained in his possession. He had taken the sealed pullandas vide Road No. 37/21/08 dated 31.03.2008. In the cross-examination, he stated that he had no knowledge what was the material in the two sealed pullandas.
18. PW-10 SI Manohar Lal, Draftsman deposed that on 20.05.2008, he accompanied Investigation Officer SI Daya Chand to Service Road, Ring Road, Near F-Block, JJ Colony, Shakurpur. On the pointing out of SI Daya Chand, he took rough notes and measurements and on the basis of the said notes and measurements, he prepared scaled site plan Ex. PW-10/A on 21.05.2008. After the preparation of scaled site plan, he had destroyed the rough notes and rough STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:32: measurements. PW-11 Dr. P. S. Bhandari, Senior Plastic Surgeon deposed that he has been deputed by Medical Superintendent to appear and depose in place of Dr. Vikas Kalara as he has left the services of hospital and his present whereabouts are not available. He further deposed that he can identify the handwriting and signatures of Dr. Vikas Kalara as he has seen his writing and signing. He proved the MLC Ex. PW-4/A of patient Jyoti, wife of Mahender, who was declared fit for statement by Dr. Vikas Kalara on 29.02.2008 at 9.30 pm as mentioned in red encircled portion on the MLC. Despite opportunity granted, these witnesses were not cross- examined on behalf of accsued.
19. PW-12 Head Constable Devi Dutt deposed that on 29.02.2008, he was posted in PCR - PHQ from 8.00 am to 2.00 pm and he was to attend calls made at No. 100 and was to attend such calls at Channel No. 104. On that day at about 11.08 am, he received a call from mobile No. 9891847761 and the caller informed him that acid was thrown on a lady near Petrol Pump, Britannia Chowk, JJ STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:33: Colony, Shakurpur. He further deposed that he filled up PCR Form Ex. PW-12/A1 and gave the information to District Net (Commander Net) in PHQ to give information to nearby PCR Can and also to District Control Room. The PCR which reached the spot, gave the information to Commander Net in PHQ that PCR Van took the injured lady to Hindu Rao Hospital. He further deposed that in normal procedure, whatever was performed or seen by the Incharge, PCR Van, the said information is recorded in Part-II of PCR Form. Incharge, PCR Van used to gave back the information to PHQ that injured Jyoti was got admitted in Bhagwan Mahavir Hospital and was placed in the custody of Duty Constable Suresh. Injured Jyoti informed him that her husband had poured acid on her and the information of this incident was also passed on to the mother of the injured. The doctor had disclosed that the injured had received 70% burns and this information when given to PHQ by Incharge, PCR Van, the same was recorded at PHQ on the back of the PCR Form.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:34:
20. PW-13 Dr. Amit Sharma, Senior Resident deposed that he has been deputed by Medical Superintendent in place of Dr. Ullasa Shetty, who has left the services of the hospital and his present whereabouts are not available. He can identify the handwriting and signatures of Dr. Ullasa Shetty as he had seen him writing and signing. He proved the postmortem report Ex. PW-13/A of deceased Jyoti, wife of Mahender, which is in the hand of Dr. Ullasa Shetty. The alleged history was acid attack and sustaining injuries on 12.04.2008 at 10.00 am. The postmortem report mentions following injuries in external examination :-
(i) Eyes are burnt, cornea ulcerated, nose and lips are charred.
(ii)Deep to superficial infected burn injuries present in face, neck, most part of front of chest, patchy area in front abdomen, most part of front of both upper and lower lips. Palms and soles are spared. Most of the burnt injuries are deep shows reddish base with pus and scab on it. Burn injuries show dripping pattern.
Tendons are exposed in both wrist joint. Body hairs are burnt at places. Total area of burn is about 50% of total body surface area.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:35: On internal examination, following findings are noted :-
(i) The pharnyx, larnyx, trachea are congested and their mucosa covered with greenish yellow sputum.
(ii)Both lungs are congested and edematous, which on cut section shows oozing of frothy fluid mixed with pus.
(iii)The mucosa of stomach over its posterior wall is ulcerated.
(iv)In brain, menings are congested. Covered with greenish yellow exudates. Parenchyma is congested and edematous. Ventricles are filled with turbid CSF.
21. He further deposed that the opinion given was that death was due to septicemic shock consequent upon infected burn injuries. All injuries are antemortem in nature and could be caused as alleged. As per postmortem report, 16 inquest papers were submitted alongwith the dead body. In the cross-examination, he stated that once the injuries become infected, it is very hard to pin point the exact duration of them but in this case, since alongwith infection, scabbing was also present over the burnt areas, therefore, it suggest that the injuries are in healing phase. Since there is evidence of trickling/dripping mentioned in the external examination as such it can be safely said that such injuries were caused by an acid attack.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:36:
22. PW-14 Head Constable Narender Kumar deposed that on 29.02.2008, when SI Day Chand deposited two pullandas alongwith sample seal, he made relevant entry in register No. 19 at serial No. 3959 Ex. PW-14/A. On 31.03.2008, three pullandas alongwith sample seal were sent to FSL vide RC No. 31/21/08 through Constable Surender vide entry at point 'X' on Ex. PW-14/A. On 24.03.2009, two sealed envelopes allegedly containing FSL result were received in the Malkhana vide entry at point 'Y' on Ex. PW-14/A. He further proved the register No. 21 i.e. Road Certificate Register Ex. PW-14/B. As per Road Certificate Register, on 31.03.2008, two sealed pullandas alongwith sample seal were taken from Malkhana by Constable Surender Kumar to deposit the same in FSL, Rohini with seals intact. Constable Surender Kumar came back to Police Station and handed over to him the acknowledgment of FSL Ex. PW-14/C regarding receipt of abovesaid case property.
23. PW-15 Shri B.S.Thakur, Deputy Director deposed that on 29.02.2008, he was posted as SDM, Division Model Town, Delhi and on that day on receiving a call from STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:37: the police, he went to LNJP Hospital and met Investigation Officer of this case. Investigation Officer took him before injured Jyoti, who was admitted in the hospital due to acid burns. He consulted the doctor, who certified that she was fit for statement. Thereafter, he recorded the statement of injured Jyoti Ex. PW-15/A. He gave a certificate on the statement being recorded before him. This witness was also not cross-examined despite opportunity granted.
24. PW-16 ASI Nain Singh deposed that on 29.02.2008, he was posted at PCR, Commander 21 as Incharge and on that day, his duty hours were from 8.00 am to 8.00 pm. On that day at about 11.05 am, he received information from the Control Room that one lady got burn injuries as somebody threw acid on her at near Shakurpur Red Light, Ring Road near Petrol Pump opposite Britannia. On that information, he immediately alongwith his staff reached at the spot and saw that one lady was lying in burnt condition. She was having burn injuries on her face, breast and also on hand and her clothes were also burnt by the STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:38: acid. He immediately removed her through PCR vehicle to Bhagwan Mahavir Hospital and asked her on the way about her name, to which, she told her name Jyoti, wife of Mahender Singh, resident of G-230, Shakurpur J.J. Colony. She also told to him that she was having one child and was contesting a divorce case since six months back with her husband. She further told to him that on that day, she was going outside from her house to join her duty and on the way, her husband had thrown acid on her and due to which, she received burn injuries. He narrated all the facts to the Control Room through Wireless Set and when they reached near the hospital, the condition of injured Jyoti started deteriorating and she became very serious. He got admitted her in Bhagwan Mahavir Hospital and his statement was recorded by Investigation Officer.
25. In the cross-examination, he deposed that when he had reached at the spot, 10-15 male and 10-15 female persons were present. Two ladies helped him to put the injured into the PCR Vehicle. She did not disclose him the STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:39: place of her duty. She did not disclose that she was going to duty at Alipur Petrol Pump. He does not know whether any water trolley was or fruit seller were present at the spot. There is a petrol pump situated across the road of place of occurrence. He admitted that initially they had received the information that some person had thrown acid on a lady. She was having a purse at that time and he handed over that purse to ladies, who were neighbourer of the deceased.
26. PW-17 Constable Dharmender deposed that on 05.03.2008, he joined the investigation of this case alongwith SI Daya Chand and reached at Rohini Court as the accused Mahender @ Dabbu surrendered before the Court. Accused was arrested with the permission of the Court vide memo Ex. PW-17/A and his personal search was conducted vide memo Ex. PW-17/B. Accused made his disclosure statement vide memo Ex. PW-17/C and his police custody remand was obtained from the Court. Accused pointed out the place of occurrence vide memo Ex. PW-17/E. After the medical examination, accused was confined in the lock-up.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:40: Thereafter, Investigation Officer recorded his statement. On the next day i.e. on 06.03.2008, he again joined the investigation of the case and taken out the accused from the lock-up. He further deposed that the accused led them to H. No. 17B-170, Pattarwala Bagh, Wazirpur, JJ Colony, Delhi in search of accused Kamal but he could not be traced there. Medical examination of accused was conducted and he was sent into judicial custody for 14 days. In the cross- examination, he stated that IO interrogated the accused outside the Court premises and recorded his disclosure statement. The interrogation was done for about one hour. All the proceedings were reduced into writing. The writing work was done by the Investigation Officer while conducting interrogation at the same hour. He admitted that many persons were present outside the Court when accused was interrogated and nothing was recovered in his presence at Court premises from the possession of the accused. From the Court premises, accused had taken them to the place of occurrence i.e. Ring Road, Near Beriwala Bagh Service Road. He further stated that on the next day, they went to Wazirpur STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:41: JJ Colony alongwith accused to arrest the brother of the accused Naval Kishore, who was present at that time. He denied that he never joined the investigation and that the accused did not make any disclosure statement in his presence. He further denied that all proceedings were conducted at the Police Station and that the signature of the accused were taken forcibly by the Investigation Officer on all documents.
27. PW-18 Constable Amar Singh deposed that on 29.02.2008, he joined the investigation of this case and on that day, Investigation Officer handed over a rukka to him for registration of the FIR. He went to Police Station and got registered the case and went to the hospital and handed over the copy of FIR and rukka to the Investigation Officer. Doctor handed over sealed parcel and sample seal, same were seized by the Investigation Officer vide memo Ex. PW- 18/A. They went to the place of occurrence at G-230, JJ Colony, Shakurpur and recovered the clothes of the injured Smt. Jyoti, which were burnt due to acid and smell of acid STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:42: was coming out and same was turned into parcel with the help of cloth and seized the same vide memo Ex. PW-18/B. Investigation Officer recorded his statement. In the cross- examination, he deposed that the place of occurrence is a house of 25 Sq. Yds. There was no papers or stamp papers found at the spot. They did not found anybody present at the spot and wanted to know about the person who could have seen the occurrence but nobody met them.
28. PW-19 SI Dayachand deposed that on 29.02.08 on receipt of DD no. 17A Ex. PW19/A in respect of burning of a girl by throwing acid near petrol pump, Britannia, JJ Colony, Shakurpur, Delhi, he along with Ct. Amar Singh reached the spot but no eye witness or complainant met them. In the meantime, on getting information from PCR that injured was removed to Mahavir Hopsital, they both reached Bhagwan Mahavir Hospital and collected the MLC of injured Jyoti w/o Mahender with alleged history of 70% acid burns. The doctor had declared her unfit for statement and injuries were opined to be grievous in nature. He has further deposed that he STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:43: prepared rukka Ex. PW19/B on DD no. 17A and sent the same for registration of FIR through Ct. Amar Singh. He seized the acid burnt clothes of injured vide memo Ex. PW18/A which were given to him by the doctor. Ct. Amar Singh returned back with copy of FIR and original rukka and thereupon they both again reached the place of occurrence. Some burnt clothes ie. salwar, kamiz and chunni which were lying at the spot were smelling like acid and they were seized by him vide memo Ex. PW18/B. He prepared site plan Ex. PW19/C and informed the SDM, Model Town about the injured. Thereafter injured was removed to LNJP hospital and he and SDM reached there and when the doctor declared her fit for statement, SDM made inquiries from injured and on the directions of SDM and as per dictation of injured, he recorded the statement of injured Ex. PW15/A. Thereafter statement was read over and explained to injured Jyoti by the SDM and accordingly injured signed the statement which was also attested by the SDM.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:44:
29. He has further deposed that on 05.03.08 accused surrendered before the court and was arrested vide memo Ex. PW17/A and his personal search vide memo Ex. PW17/B and disclosure statement Ex. PW17/C were recorded. Accused also pointed out the the place of occurrence vide memo Ex. PW17/D. He also prepared the site plan at the instance of accused Ex. PW19/D. The bottle of acid could not be recovered. Case property was deposited in the malkhana.
30. On 12.04.08 he received information vide DD no. 13A that injured Jyoti has expired at LNJP and thereafter he reached the hospital and got the dead body of deceased Jyoti preserved in the mortuary for postmortem and informed SDM about the death of Jyoti. He also added Section 302 IPC and thereafter investigation of the case was handed over to Insp. Ajay Kumar. On 13.04.08 in his presence Executive Magistrate recorded statement of Ashram and Amarjit Kaur in respect of identification of dead body vide memo Ex. PW1/A and PW2/A. Inquest papers were prepared by Executive Magistrate and dead body was subjected to STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:45: postmortem. After postmortem body was handed over vide memo Ex. PW19/E. Insp. Ajay Kumar recorded statement of witnesses.
31. In his cross examination he has stated that he did not recover empty bottle of acid at the spot. He has further stated that her family members were instigating her husband to kill her. He tried to search the brother of accused. He also admitted it as correct that apart from the statement recorded by the SDM, statement u/s 161 CrPC was also recorded by him. He also stated that he has no personal knowledge about the personal like of injured Jyoti and he stated the fact before the court regarding her matrimonial life on the basis of her statement given to SDM Ex. PW15/A. He denied all the suggestions put to him by the Ld. Defence Counsel.
32. PW-20 Dr. Rakesh Kumar Gupta deposed that he was deputed by Medical Superintendent to depose in respect of MLC No. 1385 of patient Jyoti, wife of Mahender STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:46: examined and prepared by Dr. Jyoti Talwar, Eye Specialist, who has left the services of the hospital. Dr. Jyoti Talwar worked with him and he can identify her handwriting and signatures. She made the following observations :-
Alleged history of burns (Acid). Vn-Right PL + PR inaccurate.
Left PL + PR inaccurate.
Severe burns over both the eye lids, eye lashes cornea and conjunctiva.
Rest details not visible.
Fundus no glow.
33. In the cross-examination, he stated that he has not brought the MLC register. Injured Jyoti was transferred to Satyawadi Raja Harish Chander Hospital, Delhi. He does not have any personal knowledge about the said MLC and the observations given by her.
34. PW-21 Inspector Ajay Kumar deposed that on 12.04.2008, the investigation of this case was handed over to him as the victim had expired and the section was converted from 307 IPC to 302 IPC. On 13.04.2008, he handed over the file to SI Daya Chand for getting the postmortem conducted of the deceased Jyoti alongwith the STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:47: SDM. Lateron, he continued with the investigation of the case and collected the postmortem report of deceased. He also got prepared the scaled site plan through Draftsman on 20.05.2008. He recorded the statement of witnesses i.e. SI Manohar Lal and SI Daya Chand under Section 161 Cr.P.C. During investigation, he collected the PCR call form and recorded the statement of other witnesses i.e. Head Constable Devi Dutt and public witness Sanjay Kumar, who had informed the Control Room on 28.05.2008. He further deposed that after completion of investigation, the case file was put up before SHO and charge sheet was filed in the Court for trial. Lateron, he also filed scaled site plan and FSL report in the Court. In the cross-examination, he deposed that he neither met deceased Jyoti nor recorded her statement. He never met or recorded the statement any Arun, who is stated to be the husband of deceased Jyoti. He further stated that on 29.02.2008, he was not the Investigation Officer and therefore, he cannot tell about any fact happened on that day. He never interrogated the accused. He denied that deceased Jyoti was never divorced STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:48: by Arun and that she wanted to marry the accused. He further denied that to put undue influence on the accused to marry her, she put a small quantity of acid in her house to falsely implicate the accused. He further denied that these facts came during investigation and they have deliberately suppressed those facts and falsely implicated the accused on the wrong statement given by Jyoti. He further denied that Jyoti never thought that she will die of these injuries and she committed the incidence only to put pressure upon the accused to marry her.
35. PW-22 Dr. Vivek Goel, Consultant Surgeon deposed that on 29.02.2008, he was Incharge of Surgery, Department of Bhagwan Mahavir Hospital and on that day, Dr. Sadanand was working as Senior Resident in Department of Surgery. He was conversant with the writing and signature of Dr. Sadanand as he was working under his supervision. He is not aware about the whereabouts of Dr.Sadanand. On that day, Dr. Sadanand discussed the matter with him about shifting of patient Jyoti, wife of STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:49: Mahender @ Dabbu aged 24 years, male to LNJP Hospital. After discussing the condition of the patient, he directed him to refer the patient to LNJP Hospital. The MLC of Jyoti Ex.PW- 4/A contains the endorsement of Dr. Sadanand and as per endorsement, the patient was referred to him in Surgery Department with the alleged history of acid burn. On examination, patient was conscious oriented, GCS (Glasgow Coma Scale) was 15/15, 70% burns. He advised the patient oxygen inhalation. Her injuries were dressed with silver sulphadyzene etc. and treatment was given. He also advised for eye opinion and after that, the matter was discussed with him for shifting the patient to LNJP Hospital. He identify writing and signature of Dr. Sadanand. In the cross- examination, he deposed that this patient was never examined and seen by him in the hospital. This MLC was not prepared in his presence. He has stated only on the basis of MLC shown to him. When he left the hospital in October, 2008, Dr. Sadanand was already working there. He does not know about Dr. Sadanand, if he is working in Bhagwan Mahavir Hospital or not till date. It is a government hospital.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:50:
36. PW-23 Constable Om Prakash deposed that on 12.04.2008, he joined the investigation of this case with the Investigation Officer and on that day, dead body of Jyoti was got preserved at JPN Hospital for 72 hours in his custody. HE further deposed that on 13.04.2008, Tehsildar Model Town reached at the hospital and prepared inquest papers of the dead body of Jyoti for post mortem. He also recorded statement of witnesses regarding identification of dead body and after post mortem, dead body was handed over to its father. Investigation Officer prepared handing over of dead body Ex.PW-19/E and identification of the dead body memos Ex.PW-1/A and PW-2/A and recorded his statement. In the cross-examination, he denied that he is deposing falsely and no investigation was conducted in his presence.
37. DW1 Manish Malik, who is an advocate by profession has deposed that in the month of February 2008 accused Mahender came to him along with Jyoti, who were referred to him by his client Gopi Chand regarding divorce. He has further deposed that Jyoti wanted to divorce her STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:51: husband who was living at Bihar and he told them that it will take 6-7 months time for divorce if her husband agrees for the same otherwise it will take minimum one year. She wanted to take divorce within one week but he told her that it is not possible. He further deposed that he later on came to know that Jyoti committed suicide. In his cross examination by Ld. APP for state he stated that he came to know about the death of Jyoti within one week of her death. He denied the suggestions put to him in cross examination.
38. DW2 Rinku, has deposed that they were proposing the marriage of his younger sister Sohni with accused about three-four years back but after hearing about the present case they dropped the marriage proposal. In his cross examination he admitted it as correct that hey dropped the proposal of marriage of Sohni with accused as he married to one lady named Jyoti.
39. DW3 Kamal, who is the elder brother of accused, has deposed that he knew deceased Jyoti, who used to reside in their neighbourhood about 15 years ago and accused and deceased Jyoti used to go to school together. He has further STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:52: deposed that deceased Jyoti married a person at Bihar and had one child from her husband. Thereafter Jyoti left her matrimonial home and came to Delhi and started living with her mother. He has testified that deceased Jyoti came to their house and made a proposal of marriage with accused Mahender but the refused to the same as she was already married and had not taken divorce from her previous husband. Thereupon deceased Jyoti created scene in the mohalla and gave threats that she will commit suicide and involve their whole family in a murder case. He has further deposed that thereafter he was detained by the police for 2-3 days and accused was arrested in this case.
40. In his cross examination by he denied all the suggestion put to him by Ld. APP for the State. He has further stated that he or his brother i.e. accused did not make any complaint against Jyoti to the police of her intention to forcibly marry with the accused. He also admitted it as correct that he did not make any complaint against the police officials or anyone for false implication of my brother in the present case.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:53:
41. The most important vital piece of evidence is the statement of deceased Jyoti dt. 29.02.2008 Ex. PW15/A on the basis of which initially FIR was registered u/s 307 IPC. According to Section 32 of Evidence Act, this piece of evidence falls in the category of dying declaration. In order to appreciate its admissibility and in order to appreciate this important facit of vital evidence, let us peruse the law laid down by the Apex Court.
42. The decision of the Privy Council in Pakala Narayana Swami V. Emperor, AIR 1939 PC 47 is a leading judicial authority on dying declaration. Lord ATKIN observed as under :--
The circumstances must be circumstances of the transaction ;
general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person or that he had been invited by such person to meet him, would each of them be STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:54: circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. such a statement might indeed be exculpatory of the person accused. "circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence", which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae" circumstances must have proximate relations to the actual occurrence.
43. The principles laid down in Palaka Narain Swami case relating to the relevancy of a dying declaration were accepted by the Supreme Court in Kaushal Rao V State of Bombay, AIR 1958 SC 22. In case of Khushal Rao, the following proposition of law were laid down relating to the test of reliability of dying declaration:--
1. That is 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 STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:55: declaration is a weaker kind of evidence than other piece of evidence;
4. That a dying declaration stands on the same footing as another piece of evidence and ha 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 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.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:56:
44. In Jai Karan V State of (NCT of Delhi), AIR 1999 SC 3512 it was held as under :--
A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premises which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC. :57:
45. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:58: decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.
46. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:59: magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:60:
47. In Paniben V State of Gujrat, AIR 1992 SC 1817 it was held as under :--
The principle on which dying declarations are admitted in evidence is indicated in legal maxim:
"Nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth."
Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:61:
48. The Supreme Court in Paniben case summed up the principles governing dying declaration laid down in several judgments as under :--
i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja V State of U.P., AIR 1976 SC 2199).
ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. V Ram Sagar Yadav, AIR 1985 SC 416;
Ramavati Devi V State of Bihar, AIR 1983 SC 164).
iii.This court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy V Public Prosector, AIR 1976 SC 1994).
iv.Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg V State of Madhya Pradesh, AIR 1974 SC 332).
v. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to its is to be rejected. (Kake Singh V State of M.P., AIR 1982 SC 1021).
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:62: vi.A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath V State of U.P., 1981 SCC (Crl) 581).
vii.Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(State of Maharashtra V
Krishnamurthi Laxmipati Naidu,
AIR 1981 SC 617).
viii.Equally, merely because it is a brief statement it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(Surajdeo Oza V State of Bihar, AIR 1979 Sc 1505).
ix.Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up 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. (Nanahau Ram V State, AIR 1988 SC 912).
x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon (State of U.P. V Madan Mohan, AIR 1989 SC 1519).
49. In the light of above discussion and observation on Section 32 (1) Indian Evidence Act, the statement Ex. PW15/A of deceased Jyoti dt. 29.02.2008 falls under the category of dying declaration. The statement was made by deceased STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:63: Jyoti in the circumstances where she never foresee her death. Her statement was recorded after the doctor declared her fit to make the statement and it suffers from no infirmity or exaggeration of the incident which took place with her. Hence the statement Ex. PW15/A i.e. dying declaration of deceased Jyoti is admissible as it passes the test that it was made in fit state of mind, voluntarily and on the basis of personal knowledge.
50. PW8 Sanjay has proved the fact that on the day of incident, he saw one lady was crying at red light, F-Block, Shakurpur and he found that somebody had poured acid on her body. He has stated that the fact of pouring acid on her was told to him by that girl. Corroboration to the fact that acid had been poured on deceased Jyoti has also been proved by PW12 HC Devi Dutt and PW16 ASI Nain Singh. Both these witnesses have proved the fact that injured Jyoti had told them that acid was poured upon her by her husband accused Mahender.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:64:
51. Statement made by deceased Jyoti Ex. PW15/A has also been corroborated by PW15 B. S. Thakur, SDM and PW19 SI Dayachand as according to the instructions and directions of SDM, PW19 recorded statement Ex. PW15/A and the same was attested by PW15 also. After recording her statement, PW19 SI Dayachand read over the said statement to injured Jyoti and thereafter she signed the same. It is pertinent to mention here that statement of deceased Jyoti Ex. PW15/A was got recorded by SDM PW15 B. S. Thakur through PW19 SI Dayachand after she was declared fit for making statement by Dr. Vikas Kalra on 29.02.2008 at 9.30 pm and Dr. Kalra's endorsement to this aspect has been proved by PW11 Dr. P. S. Bhandari.
52. Prosecution also examined PW13 Dr. Amit Sharma, who proved post mortem report Ex. PW13/A which was prepared and signed by Dr. Ullasa Shetty. As per Ex. PW13/A the following observations were made while giving the opinion regarding the cause of death :- "Death is due to septicemic shock consequent upon infected burn injuries. All STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:65: injuries are antemortem in nature and could be caused as alleged". There is no reason to disbelieve the postmortem report Ex. PW13/A and the cause of death is established on the basis of this postmortem report. Prosecution has also examined PW5 Sri Narain, from Chemistry department, FSL Rohini who proved the presence of "sulphuric acid" on the exhibits sent for analysis through his report Ex. PW5/A. PW6 Parshuram Singh, Sr. Scientific Officer (Physics), FSL, Rohini also proved vide report Ex. PW6/A that the piece of cloth adhering to salwar was found similar to cloth of lady's shirt in respect of colour, textures, design, number of wrap and weft, type of twist of thread and pattern of weaving.
53. DW1 Manish Malik, advocate has testified that deceased Jyoti and accused Mahender met him in connection with a divorce that deceased Jyoti wished to take from her previous husband who used to live in Bihar. DW3 Kamal, who is the elder brother of accused, also deposed that deceased Jyoti made a proposal of marriage with accused but the same was refused as she had not taken divorce from her previous STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:66: husband. He further deposed that deceased used to create scene in the locality and used to extend threats to them that she will implicate their whole family in a case but they did not make any complaint regarding those threats to police or any other authorities. The allegations levelled by the defence are baseless and have no legs to stand upon. Hence the defence led by accused is of no help to him.
54. Ld. Defence Counsel has relied upon the following judgments in support of his case : -
1. Sita Ram v. State of Rajasthan 1998 CRI. L. J. 287 &
2. Kishan Singh Munsha Singh v. The State AIR 1963 Punjab 170 (v 50 c 54)
55. The above cited judgments relied upon by the Ld. Defence Counsel are distinguishable in the facts and circumstances of the present case. Statement Ex. PW15/A was made by deceased Jyoti when she was in fit state of mind after she was declared fit for statement by the doctor STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.
:67: and Ex. PW15/A cannot be disbelieved as it is purely trustworthy, cogent, specific and has also been proved the prosecution witnesses.
56. Hence on the basis of above observation and discussion, the prosecution has succeeded in bringing home the guilt of accused Mahender @ Dabbu beyond reasonable doubt. Accused Mahender @ Dabbu is, therefore, convicted for commission of offence punishable u/s 302 IPC. He shall now be heard on the point of sentence.
Announced in the open court (SANJAY KUMAR) today i.e. 12.05.2011 ASJ-01 (NW),ROHINI COURTS: DELHI.
STATE VS MAHENDER @ DABBU//FIR NO.109/08 PSSARASWATI VIHAR//U/S. 302 IPC.