Delhi District Court
State vs (1) Mehraj on 11 January, 2018
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No: 44749/2015
CNR No. DLNE01-000295-2012
STATE Versus (1) MEHRAJ
S/o Mehmood
R/o A-26, Seemapuri, Delhi.
(2) RAFEEQ
S/o Madan
R/o B-90, Gali No. 2,
Pappu Colony, PS Sahibabad,
Ghaziabad, UP.
(3) ZAREENA
W/o Rabeeq
R/o B-90, Gali No. 2,
Pappu Colony, PS Sahibabad,
Ghaziabad, UP.
(4) RUKSHANA
D/o Late Mehmood
R/o A-26, Old Seemapuri, Delhi.
(5) AMINA
W/o Late Mehmood
R/o A-26, Old Seemapuri, Delhi.
(6) NAZMA
W/o Rabeeq
R/o A-26, Old Seemapuri, Delhi.
(7) RABEEQ
S/o Sh. Mehmood
R/o A-26, Old Seemapuri, Delhi.
FIR No. : 43/2012
PS. : Seema Puri
U/s. : 498-A/302/34 IPC
Chargesheet Filed On : 04.07.2012
Date Of Allocation : 17.07.2012
SC No. 44749/2015 State Vs. Mehraj & Ors. Page 1 of 20
Judgment Reserved On : 11.01.2018
Judgment Announced On : 11.01.2018
JUDGMENT:
1. On 05.02.2012, an information was received at PS Seemapuri from GTB Hospital about admission of one Farzana in burnt condition. ASI Iftekhar Ahmad alongwith Ct. Kunji Lal reached hospital and obtained MLC of injured. It was revealed that injured was married 1½ years back. As such, SDM concerned was informed. The SDM recorded statement of Farzana on 05.02.2012 itself. She disclosed that she got burnt while preparing food on stove. She stated that no one was responsible for her burning. The site was got inspected. Crime Team was also called at the spot. Exhibits were lifted from the spot.
2. On 14.02.2012, an application was given by the injured for getting her statement recorded again by the SDM. The concerned SDM again recorded the statement on 14.02.2012. In this statement, injured Farzana alleged that she had given earlier statement under pressure. Now she stated that on 05.02.2012 at about 2:00 - 2:30 pm, her nanad Zareena, husband of Zareena namely Rafeeq, mother-in-law Amina, younger nanad Ruksana, jethani Nazma, jeth Rabeeq and her husband Mehraj had burnt her. She alleged that both the nanads sprinkled kerosene oil upon her. Her husband Mehraj was present in the room. She alleged that she had a six months old daughter and in-laws had threatened to kill the child if she disclosed the truth and, therefore, on 05.02.2012, she could not tell the truth. After recording the statement, SDM directed for taking necessary action. FIR was registered u/s 498-A/307/34 IPC. SC No. 44749/2015 State Vs. Mehraj & Ors. Page 2 of 20
3. During investigation, accused were formally arrested as there were anticipatory bail orders in their favour.
4. On 29.02.2012, Farzana expired in the hospital. As such, Sec. 302/304-B IPC were added in the case. SDM was informed. Postmortem was got conducted. Anticipatory bail orders were cancelled. Accused Mehraj was arrested. The other accused were granted anticipatory bail again.
5. Exhibits were sent to FSL.
6. After completion of investigation chargesheet was filed u/s 498- A/302/304-B/34 IPC against Mehraj, Rafeeq, Zareena, Rukshana, Amina, Nazma and Rabeeq. FSL result was awaited. It was filed later on.
7. After complying with provisions of Sec. 207 CrPC, learned MM committed the case to the Court of Sessions as the offence u/s 302 IPC was exclusively triable by it.
8. My learned Predecessor, on 30.07.2012, framed charges against all the accused u/s 302/498-A/34 IPC. All the accused pleaded not guilty to the charges and claimed trial.
9. Prosecution examined as many as 17 witnesses.
10. Statements of all the accused U/s. 313 CrPC were recorded. All of them stated that they were innocent and falsely implicated in this case. They examined three witnesses in defence.
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11. Let us take note of the evidence led by the parties. MATERIAL / INJURED / EYE WITNESS(ES)
12. PW-1 is Smt. Khatoon. She is mother of the deceased. She stated that deceased was married to accused Mehraj. They had given all the articles in the marriage. She did not state anything else.
13. She was declared hostile and cross-examined by learned Prosecutor.
14. In the said cross-examination, she stated that her statement was not recorded by the IO. It was marked as Mark PW1/A. She told the date of marriage as 29.11.2010. She denied that in-laws of her daughter were not happy with the dowry articles. She denied that the accused persons were harassing deceased for bringing less dowry. She denied that they used to give beatings to her. She denied that accused persons demanded Rupees One lakh and motorcycle. She denied all other suggestions as well. She stated that Farzana died on 29.02.2012 due to burn injuries. She deposed about identifying dead body of Farzana vide Ex.PW1/A.
15. In cross-examination on behalf of accused persons, she stated that it was accused Mehraj who had informed her about the incident. She also stated that Farzana had given statement before SDM on 05.02.2012 without any fear and pressure. She stated that accused persons had borne all the expenses of treatment of Farzana. She stated that statement given before SDM by Farzana SC No. 44749/2015 State Vs. Mehraj & Ors. Page 4 of 20 on 14.02.2012 was given under influence of relatives. She stated that Farzana had also told her so.
16. PW-3 is Dilshad. He is brother of the deceased. He was also totally hostile. He was cross-examined by learned Addl. PP but he denied all the suggestions. Nothing came out in favour of the prosecution in his evidence.
17. PW-4 is Sh. Kamaldeep Gupta. He was the concerned SDM. He deposed about recording statement of Farzana on 05.02.2012 as well as on 14.02.2012. The statement recorded on 05.02.2012 is Ex.PW4/A. He stated that doctors had declared Farzana fit for statement and, thereafter, he recorded the same.
18. He deposed that on 14.02.2012, he received message from SHO, PS Seemapuri that Farzana was requesting for recording her statement afresh. He again went to GTB Hospital and SHO handed over request of Farzana to him which is Ex.PW4/B. He recorded statement of Farzana afresh which is Ex.PW4/C. He directed SHO to take necessary action.
19. He also deposed about receiving information about death of Farzana on 29.02.2012. He went to the hospital and conducted further proceedings. He got the dead body identified vide Ex.PW1/A and 3/A. He got prepared death report from SI Manish Kumar which is Ex.PW4/D. He submitted request for postmortem which is Ex.PW4/E. Postmortem was got conducted and, thereafter, the dead body was handed over to the relatives. SC No. 44749/2015 State Vs. Mehraj & Ors. Page 5 of 20
20. In cross-examination, PW-4 denied that deceased Farzana gave tutored statement on 14.02.2012.
INVESTIGATION WITNESS(ES)
21. PW-9 is SI E.S. Yadav. He was Incharge, Mobile Crime Team, North-East. He deposed about visiting the spot i.e. A-26, Old Seema Puri 3 rd Floor on 05.02.2012. HC Surender Prasad and photographer Ct. Neeraj were with him. At the spot, he found some burnt clothes and a kerosene stove. The injured had already been removed from the spot to the hospital. He prepared report Ex.PW9/A.
22. PW-12 is Ct. Shikha Bansal. She witnessed arrest of accused Amina on 22.02.2012 vide Ex.PW12/A and conduct of personal search vide memo Ex.PW12/B. She also witnessed recording of disclosure statement Ex.PW12/C. She further witnessed arrest of other accused persons namely Rafiq, Zarina, Rafiq, Nazma and Rukshana vide arrest memos Ex. PW12/J, Ex. PW12/K, Ex. PW12/L, Ex. PW12/M to Ex. PW12/N. She also witnessed their disclosure statements which are Ex.PW12/D, Ex. PW12/E, Ex. PW12/F, Ex. PW12/G and Ex. PW12/H. There is no cross-examination.
23. PW-13 is Insp. Mahesh Kumar. He had prepared scaled site plan which is Ex.PW13/A.
24. PW-14 is SI Manish Kumar. He is one of the Investigation Officers. He got the investigation on 14.02.2012. He recorded statement of SC No. 44749/2015 State Vs. Mehraj & Ors. Page 6 of 20 Farzana u/s 161 CrPC. He prepared site plan Ex.PW14/A. He formally arrested accused persons. He conducted personal search of accused Nazma, Zarina, both Rafeeq and Ruksana vide Ex.PW14/B to F. He recorded disclosure statements of accused persons. After receiving information about death of Farzana on 29.02.2012, he informed the SHO. He got conducted postmortem after preparing inquest papers. Dead body of deceased was handed over to the relatives vide memo Ex.PW14/G. Sec. 304-B and 302 IPC were added in the case. Investigation was transferred to Insp. Jai Pal Singh.
25. He further deposed about joining investigation with IO Insp. Jai Pal alongwith Ct. Rakesh (PW-16). He deposed about arrest of accused Mehraj at instance of secret informer vide memo Ex.PW14/H. Personal search was conducted vide memo Ex.PW14/I. Accused Mehraj made disclosure statement vide Ex.PW14/J. Supplementary disclosure statement was also recorded which is Ex.PW14/K. Accused Zarina, both Rafeeq, Ruksana, Amina and Nazma were arrested again vide memos Ex.PW14/L to Q. Their personal search were conducted vide memo Ex.PW14/R to W. All of them were granted anticipatory bail by the courts. He also deposed about receiving sealed parcel bearing seal of SDP from the doctor after postmortem which he seized vide memo Ex.PW14/X.
26. He was generally cross-examined about investigation conducted by him. He denied all the suggestions of the defence.
27. PW-15 is SI Iftikar Ahmed. He alongwith PW-11 Ct. Kunji Lal were SC No. 44749/2015 State Vs. Mehraj & Ors. Page 7 of 20 the first police officials who had reached the hospital. They deposed that PW-15 received information vide DD No. 40B about admission of Farzana in GTB Hospital in burnt condition. Copy of the DD No. 40B is Ex.PW15/A. PW-15 alongwith PW-11 reached the hospital and collected MLC of Farzana. He made enquiries from Farzana who told that she had married with Mehraj 1 ½ years ago. As such, PW-15 informed the SDM concerned. He deposed that SHO and SDM reached there. The SDM recorded statement of Farzana in which she did not make any allegations against the accused persons and told that she got burnt due to stove. He stated that mother of Farzana also did not make any allegations against Mehraj and rather praised him and his family members. After receiving copy of the statement recorded by the SDM, PW-15 went to the spot and seized one stove and burnt clothes of Farzana i.e. bra, one ladies shirt and "salwar". He converted the clothes into a pulanda with seal of 'IK' and seized the same vide seizure memo Ex.PW11/A. He deposited case property in Malkhana.
28. PW-15 had also called for the Crime Team. He deposed that on 14.02.2012, Smt. Khatoon (mother of Farzana) and other persons of the locality visited PS Seema Puri and made request for recording statement of Farzana again. He accordingly informed the SHO. The SHO asked him to immediately reach GTB Hospital. After reaching there, PW-15 talked to Farzana who told him that she had made earlier statement under the pressure of her husband and in-laws. She further told that Rafique, brother in law of Mehraj (Behnoi) poured kerosene oil over her person and Jamina, her sister in law (Nanad) caught hold SC No. 44749/2015 State Vs. Mehraj & Ors. Page 8 of 20 of her hands and legs. PW-15 informed the SHO and also called the SDM to GTB Hospital. The SDM recorded fresh statement of Farzana and sent the same to the SHO for further action. PW-15 stated that he had not seen the second statement of Farzana. Thereafter, FIR was lodged under the directions of the SHO and further investigation was handed over to SI Manish Kumar.
29. PW-15 identified the case property i.e. stove as Ex.P1, half burnt kameej as Ex.P2, half burnt salwar as Ex.P3 and burnt bra as Ex.P4.
30. In cross-examination, it has come that in his statement u/s 161 CrPC recorded on 15.02.2012, PW-15 had not stated that injured had told him that nandoi Rafeeq had poured kerosene oil and nanad Zarina had caught hold of her hands and legs. He denied that he had deliberately improved upon his earlier statement. It has come that brother of the deceased was present at the spot and he did not level any allegations against accused persons. Similarly, mother of the deceased had also not levelled any allegations of demand of dowry or harassment against the accused persons. It has come that mohalla people had also supported version of the accused persons. It has come that on 14.02.2012, relatives and family members of the deceased were present in the hospital at the time of recording of fresh statement by the SDM.
31. PW-17 is Inspector Jai Pal Singh. He was the later IO after addition of Sec. 304-B and 302 IPC. He had made endorsement Ex.PW17/A on the statement Ex.PW4/C recorded by the SDM. He made another endorsement Ex.PW17/B on the second statement of Farzana recorded by the SDM which is SC No. 44749/2015 State Vs. Mehraj & Ors. Page 9 of 20 Ex.PW4/D. FIR was registered thereafter. DD No. 7A is Ex.PW17/C vide which SI Manish informed him about death of deceased Farzana. He had arrested accused Mehraj. He arrested other accused persons also. He got prepared scaled site plan. He got sent the exhibits to FSL. He collected postmortem report and FSL result.
32. In cross-examination, it has come that one stove of kerosene was found at the spot. It has come that neighbours did not make any allegations against the accused persons. It has come that mother and brother of the deceased also did not make any allegations on 05.02.2012. It has come that during investigation was found that deceased was living in upper portion of the house separately from her in-laws. It has come that Rafeeq and his wife Zareena were living separately at Ghaziabad.
MEDICAL/EXPERT WITNESS(ES)
33. PW-5 is Dr. Prashant Mishra. He had medically examined deceased Farzaja on 05.02.20123 at about 3:30 pm in GTB Hospital when she was brought to Casualty. He noticed 45% to 60% burns. He prepared MLC which is Ex.PW5/A.
34. PW-6 is Dr. Shabarish Dharampal. He had conducted postmortem on 29.02.2012. The postmortem report is Ex.PW6/A. Cause of death was "septicaemic shock as a result of antemortem infected thermal burns involving about 45% of total body surface area". He opined that time since death SC No. 44749/2015 State Vs. Mehraj & Ors. Page 10 of 20 was about 6 hours.
FORMAL WITNESS(ES)
35. PW-2 is HC Dharambir Singh. He was Duty Officer on 14.02.2012. He deposed about registering FIR No. 43/12 at about 8:40 pm on receipt of rukka. Copy of the FIR is Ex.PW2/B. Photocopy of DD No. 36A is Ex.PW2/A.
36. PW-7 is Ct. Neeraj. He was also member of Crime Team. He had taken five photographs of the spot. Photographs are Ex. PW7/A1 to Ex. PW7/A5 and negatives are Ex. PW7/B1 to Ex. PW7/B5.
37. PW-8 is HC Dinesh Chand. He was MHC(M). He produced record of deposit of case property and its movement. The record is Ex.PW8/A to D.
38. PW-10 is HC Manoj Kumar. He had taken exhibits to FSL, Rohini and deposited the same there.
STATEMENTS OF ACCUSED PERSONS
39. Incriminating circumstances appearing in evidence against accused persons were put to all the accused persons as required U/s. 313 Cr.P.C. Accused persons stated that they were innocent and were falsely implicated.
40. Accused Mehraj stated that he was sleeping at the time of the incident. He woke up after hearing cries of the deceased. He stated that he SC No. 44749/2015 State Vs. Mehraj & Ors. Page 11 of 20 poured water on her to save her life and also took her to hospital. He stated that the second statement of the deceased to the SDM was tutored one.
41. Accused Nazma (jethani) stated that she was at Bulandshahar and was in advanced stage of pregnancy and she delivered a child after three days of the incident. Her husband accused Rabeeq @ Rafeeq (jeth) also took up the same defence.
42. Accused Rafiq s/o Madan (nandoi) stated that he was not present at the spot and was living separately at Ghaziabad for long. His wife accused Zarina (nanad) also stated that she was not present at the spot.
43. Accused Ruksana (nanad) and Amina (mother-in-law) both stated that they were innocent and did not commit any offence. DEFENCE WITNESS(ES)
44. DW-1 is Julfikar. He is brother of accused Nazma. He deposed that on 20.01.2012, accused Nazma was in the advanced stage of pregnancy. On that day, he took her to his house at Village Usmanpur for care as there was no one at Delhi to look after her. On 05.02.2012, he took Nazma to PHC Dankaur, District Gautam Budh Nagar and she was admitted there. He deposed that on 06.02.2012, she was referred to NOIDA District Hospital. However, on suggestion of his maternal uncle, he took her to Bulandshehar where she was taken to one hospital namely KMC Women Hospital and there she gave birth to a SC No. 44749/2015 State Vs. Mehraj & Ors. Page 12 of 20 child on 08.02.2012. Nazma was discharged on 10.02.2012 from the hospital. The documents regarding treatment of Nazma of PHC Dankaur and KMC Women hospital are Mark DW1/A and B.
45. DW-2 Dr. Ashok Kumar appeared from PHC, Dankaur, District Gautam Budh Nagar, UP. He identified signature of Dr. Khurshida on Mark DW1/A. He also produced register regarding admission of Nazma at PHC on 05.02.2012. He deposed that from PHC, Nazma was referred to District Hospital, Noida on 06.02.2012. Photocopy of the register is Ex.DW2/A.
46. In the cross-examination, he admitted that the figure of 10 was written in blue ink whereas rest of the portion was in black ink on Ex.DW2/A.
47. DW-3 is Dr. Saira Bano. She deposed that in the year 2012, she was posted as Medical Officer at KMC Women Hospital. She deposed that on 08.02.2012, Nazma gave birth to a female child at 10:20 am regarding which she prepared discharge slip which is Mark DW1/B. She stated that delivery was conducted by Dr. Sudha Rani.
SUBMISSIONS OF THE PARTIES
48. I have heard Sh. D.K. Singh, learned Addl. PP for the State and Sh. Z. Babar Chauhan, learned Counsel for all the accused.
49. Learned Addl. PP argued that prosecution has proved the charge even though family members of the deceased have turned hostile. He relied upon dying declaration Ex.PW4/C in support of his submissions. He submitted SC No. 44749/2015 State Vs. Mehraj & Ors. Page 13 of 20 that in the said declaration, deceased made specific allegations against the accused persons. He argued that the said dying declaration must be accepted.
50. On the other hand, learned Counsel for accused persons submitted that prosecution was unable to prove the charge as family members turned hostile and did not support its case. Regarding dying declaration, he pointed out that there were two dying declarations which were contrary to each other and as such the second dying declaration cannot be believed. He also submitted that through evidence of DWs, it has been shown that accused Nazma was not present at the spot of incident which falsifies all the allegations of the prosecution. He prayed for acquittal.
51. I have considered submissions.
FINDINGS
52. From the submissions of the learned Counsels, the following points for determination arise in the present case:
a). Whether dying declaration Ex.PW4/C can be believed?
b). Whether accused Nazma was not present at the scene of crime at the relevant time?
53. Both the points for determination are taken up together.
54. As per postmortem report Ex.PW6/A, the deceased received antemortem thermal burns involving about 45% of total body surface area SC No. 44749/2015 State Vs. Mehraj & Ors. Page 14 of 20 present over anterior aspect of neck, patches over the anterior aspect of right arm and forearm and over the anterior aspect of left arm and forearm, patches over the upper chest and the abdomen, anterior aspect of the bilateral lower limbs upto just below the knee, patches over the right side mid back, posterior aspect of the right elbow joint, patches over the right lower back, right buttocks, posterior and lateral aspect of the right thigh and medial aspect of the left thigh. On internal examination, PW-6 noted signs of septicaemia i.e. both the lungs were congested and oedematous with multiple pus pockets in the upper lobes of both the lungs and middle and lower lobe of right lung. And he also noticed that the spleen was enlarged. He opined about cause of death as septicaemic shock, as a result of antemortem infected thermal burns involving about 45% of total body surface area. He told the time of death was about 6 hours.
55. From evidence of PW-6, it is clear that deceased died due to receiving burn injuries. Now it is to be determined whether the burn injuries were result of self-immolation by deceased or was she put on fire by the accused persons?
56. Prosecution heavily relied upon the dying declaration dated 14.02.2012 which is Ex.PW4/C.
57. Ex.PW4/C is the second dying declaration. Ex.PW4/A is the first dying declaration. Both were recorded by PW-4.
58. Initially deceased had stated that she got burnt as she was cooking SC No. 44749/2015 State Vs. Mehraj & Ors. Page 15 of 20 food on stove in the matrimonial house. She did not blame anyone. She rather stated that accused Mehraj had tried to douse the fire with water. This statement is dated 05.02.2012.
59. However, subsequently, on 14.02.2012, an application was given by the deceased for recording her statement again. The SDM recorded another dying declaration Ex.PW4/C on 14.02.2012 itself. This time, deceased changed her version completely. She stated that she had earlier given statement under compulsion. She told that at about 2:00 - 2:30 pm of 05.02.2012, her nanad Zareena, husband of Zareena namely Rafeeq, mother-in-law Amina, younger nanad Ruksana, jethani Nazma, jeth Rabeeq and her husband had burnt her. She alleged that both the nanads sprinkled kerosene oil upon her. Her husband Mehraj was present in the room. She alleged that she had a six months old daughter and in-laws had threatened to kill the child if she disclosed the truth and, therefore, on 05.02.2012, she could not tell the truth.
60. As is visible, the second dying declaration is totally different from the first dying declaration. The only reason stated by deceased for making first dying declaration is that she was compelled by accused persons to make the said statement as she was threatened that her daughter would also be burnt.
61. In the case of State of Rajasthan vs. Shravan Ram & Anr. reported as (2013) 12 SCC 255, the Hon'ble Supreme Court dealt with the issue of multiple dying declarations. It extensively considered various other cases and observed as follows:
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"18. This Court had occasion to consider the scope of multiple dying declarations in Smt. Kamla v. State of Punjab (1993) 1 SCC 1, this Court held as follows:
"A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars."
19. In Kishan Lal v. State of Rajasthan (2000) 1 SCC 310, this Court held has follows:
"Examining these two dying declarations, we find not only that they gave two conflicting versions but there is inter se discrepancies in the depositions of the witnesses given in support of the other dying declaration dated 6.11.1976. Finally, in the dying declaration before a Magistrate on which possibly more reliance could have been placed the deceased did not name any of the accused. Thus, we have no hesitation to hold that these two dying declarations do not bring home the guilt of the appellant. High Court, therefore, erred in placing reliance on it by erroneously evaluating them."
20. In Lella Srinivasa Rao v. State of A.P. (2004) 9 SCC 713, this Court had occasion to consider the legality and acceptability of two dying declarations. Noticing the inconsistency between the two dying declarations, the Court held that it is not safe to act solely on the said declarations to convict the accused persons.
21. In Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468, this Court interfered with the order of sentence noticing inconsistencies between the multiple dying declarations. It is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration but the SC No. 44749/2015 State Vs. Mehraj & Ors. Page 17 of 20 statement should be consistent throughout. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not and while scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
22. In State of Andhra Pradesh v. P. Khaja Hussain (2009) 15 SCC 120, this Court rejected the appeal filed against the acquittal holding that it was not a case where the variation between the two dying declarations was trivial in nature.
23. In Sharda v. State of Rajasthan (2010) 2 SCC 85, this Court has dealt with three dying declarations. Noticing inconsistencies between dying declarations, this Court set aside the sentence ordered by Sessions Judge as well as High Court and held as follows:
"Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or 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 aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.""SC No. 44749/2015 State Vs. Mehraj & Ors. Page 18 of 20
62. At the time of making first dying declaration Ex.PW4/A, the SDM/PW-4 had made enquiries from the concerned doctor who had declared the deceased as fit for statement. As such, it appears that Ex.PW4/A was made by the deceased in her full senses.
63. After the incident, and during her hospital stay, deceased had met with her family members and relatives number of times. Subsequent request Ex.PW4/B for recording her statement afresh appears to have been made at the instance of family members and / or relatives. This possibility cannot be ruled out. One stove is visible in photograph Ex.PW7/A4. This corroborates the first dying declaration which is about deceased suffering accidental fire.
64. The family members i.e. PW-1 (mother) and PW-3 (brother) both have become hostile and have deposed against prosecution case. They rather stated that behaviour of accused persons towards deceased was good and there were no complaints. Evidence of PW-1 and PW-3 has virtually demolished the case of the prosecution. PW-1 herself stated that deceased gave second dying declaration under influence of her relatives. With this statement, Ex.PW4/C became a doubtful statement.
65. The second dying declaration is totally inconsistent with the first one. The scene of crime corroborates the first dying declaration which talks about accidental fire. It is held that Ex.PW4/C is a doubtful statement and it will not be safe to rely upon the said statement.
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66. The basis for the prosecution case has been rejected. There is no other evidence to show that accused persons caused death of deceased. It appears to be a case of accidental fire.
67. Evidence of DWs also shows that accused Nazma was in advanced stage of pregnancy and she delivered a child on 08.02.2012. It is almost impossible that a lady in such an advanced stage of pregnancy would participate in causing death due to fire. Defence has been able to create doubt about prosecution case.
68. In view of the above, all the accused Mehraj, Rafeeq, Zareena, Rukshana, Amina, Nazma and Rabeeq are hereby acquitted of the charges. Accused persons are required to furnish bail bonds as per Sec. 437-A CrPC in sum of Rs.10,000/-. Bonds furnished and accepted for a period of six months for the purposes of Sec. 437-A CrPC.
69. Case property be confiscated and be destroyed as per rules.
70. File be consigned to Record Room.
Announced in open court on 11th day of January, 2018.
(Sanjay Bansal) Special Judge (NDPS) / ASJ/ NE / KKD Courts / Delhi.
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