Delhi District Court
Judgments In Balbir Singh vs State Of Punjab, (2006) on 9 October, 2009
1
IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 111/05
STATE
versus
RAMKALI
D/o Sh. Vardhi Lal
R/o 3047, Gali Sushila,
Turkman Gate,
Delhi
&
SHABNAM
S/o Sh. Nanda
R/o 3047, Gali Sushila,
Turkman Gate,
Delhi
FIR No. :179/05
Offence Under Section : 302/34 IPC
Police Station : Chandani Mahal
Date of institution: 01.09.05
Date of taking up the matter for the first time:06.07.09
Date of conclusion of arguments:23.09.09
Date of judgment:09.10.09
Counsel for State: Sh.Rakesh Kumar, Additional Public Prosecutor
Counsel for Accused: Sh.RPA Jaiswal&Sh. Gajender Singh, Advocate
SC No. 111/05 Page 1 of 60 pages
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JUDGMENT
1. Case set up by prosecution unfolds as follows. On 17.05.05 at about 11:45pm DD NO. 33 was recorded at police post Turqman Gate as per which the duty constable Ram Babu from JPN Hospital telephonically informed that one Lachhmi, a eunuch had been got admitted in the hospital in burnt condition by Ramkali and Shabnam. The said DD entry was marked to SI Mahender Singh and was sent to him through HC Satish Kumar since SI Mahender Singh was investigating DD NO. 32. On receipt of DD No. 33, SI Mahender Singh reached JPN Hospital and found Lachhmi admitted there. Investigating Officer (IO) SI Mahender Singh obtained MLC of Lachhmi, on which the alleged history had been recorded by the doctor as burn injury caused when Ramkali and Shabnam set her alive on fire after putting kerosene on 17.05.05 at 10:00pm as told by patient herself; Dr. Ramanand a junior resident SC No. 111/05 Page 2 of 60 pages 3 declared Lachhmi fit to make statement at 12:30am and thereafter IO recorded her detailed statement.
2. In her statement, Lachhmi stated that she had been residing with Ramkali and Shabnam in a house of their guru (master) who had transferred the property in the name of three of them; that for past some time, Ramkali and Shabnam had been pressurising her to get her share in the house transferred in their name; that at about 10:00pm Ramkali and Shabnam again insisted for transfer of her share in their name for which she declined; that thereafter Ramkali and Shabnam made her consume liquor in campa cola; that Ramkali caught her, Shabnam poured kerosene oil on her and Ramkali ignited fire on her with matchstick; that on being burnt she started screaming and neighbours reached there; that alongwith the neighbours, Ramkali and Shabnam brought her to the hospital.
3. On the basis of the above statement of Lachhmi, IO made endorsement of rukka and sent the same through Ct.
SC No. 111/05 Page 3 of 60 pages 4 Surender to police station Chadani Mahal for registration of FIR for offence under Section 307 IPC and also sent request for crime team and photographer to be sent on the spot.
4. Upon receipt of copy of FIR, IO proceeded with further investigation in the case, wherein personal search articles and burnt clothes of Lachhmi were seized. Thereafter, IO reached the spot of offence where crime team and photographer had already reached. IO got the spot photographed and examined by crime team. IO seized a canister of kerosene oil and matchbox after sealing the same with his seal SK. Few burnt matchsticks also were seized from the spot. IO prepared the siteplan and interrogated Ramkali and Shabnam. During investigation Ramkali got recovered from an iron box lying on first floor of her house, sale deed and mutation papers of their house.
SC No. 111/05 Page 4 of 60 pages
5
5. Ramkali and Shabnam were arrested and
information of their arrest was sent to their relatives.
6. On 18.05.05, vide DD No. 14 of PP Turqman Gate, information about death of Lachhmi received telephonically from JPN Hospital was recorded. After converting the provision of offence to Section 302 IPC, further investigation was handed over to the second investigating officer Inspector Devender Kumar, who got the post mortem conducted and after completing the investigation, filed chargesheet against the accused persons for offence under Section 302/34 IPC.
7. Upon committal of case, my learned predecessor framed charge for offence under Section 302 read with 34 IPC, to which both the accused pleaded not guilty and claimed trial.
8. In support of its case, prosecution examined 21 witnesses, whereafter statements of accused persons under Section 313 CrPC were recorded. Both the accused SC No. 111/05 Page 5 of 60 pages 6 persons in their statements expressed willingness to lead defence evidence but subsequently, their counsel made specific statements that they did not want to lead any evidence. I have heard Sh. Rakesh Kumar, Additional Public Prosecutor for State and Sh. R.P.A. Jaiswal and Sh. Gajender Singh, counsel for accused persons, who took me through record.
9. PW1 Sh. Rameshwar is a public person who was residing in the neighbourhood of the deceased at the relevant time, but he did not support case of prosecution. As per PW1, on the fateful night while sleeping he heard screams of a woman and on coming downstairs he saw the deceased had been set afire and was screaming; immediately, he rushed to the house of Sunita, about 10-11 houses away in order to inform the accused persons who had gone there in a party. As per PW1, accused persons took the deceased to hospital and he returned home. PW1 stated that police did not record his statement. In cross SC No. 111/05 Page 6 of 60 pages 7 examination on behalf of prosecution on being declared hostile, PW1 identified his signatures on arrest memos Ex.PW1/A&B of accused persons and stated that he did not inform any police authority that the accused persons had been falsely implicated.
10. PW2 Sh. Pradeep also is a public witness but did not support prosecution. PW2 stated that on the fateful night while being on his shop, he heard screams and saw the deceased coming out of her house in burnt condition; he poured water lying in his shop on the deceased to extinguish fire and thereafter Rameshwar (PW1) reached and went to call the accused persons. As per PW2, the accused persons took the deceased to the hospital. In his cross examination on behalf of prosecution on being declared hostile, PW2 deposed that his statement was not recorded by the police.
11. PW3 Sh. Prakash was brother of the deceased, who stated to have identified the dead body at the time of SC No. 111/05 Page 7 of 60 pages 8 postmortem. PW3 proved on record receipts Ex.PW3/A&B, whereby he had received the dead body of the deceased after postmortem and his statement Ex.PW3/C whereby he had identified the dead body of the deceased.
12. PW4 Smt. Rajrani was god sister of the deceased, who identified the dead body vide statement Ex.PW4/A.
13. PW5 is Ct. Naresh Kumar, who proved the photographs of spot of crime taken by him as Ex.PW5/A-E and negatives thereof as Ex.PW5/F-J. In his cross examination, PW5 explained that the photographs depicted a room in which bowl and a tin container of kerosene were placed. PW5 also admitted that the photographs do not show any sign of smoke etc.
14. PW6 Ct. Yogender was posted as DD writer in police post Turqman Gate and on 18.05.05 he recorded DD NO.14 Ex.PW6/A as regards death of the deceased on the basis of telephonic information from JPN Hospital.
SC No. 111/05 Page 8 of 60 pages 9
15. PW7 is Ct. Surender who had joined investigation in this case. On 17.05.05, PW7 accompanied the IO to JPN Hospital where the IO seized burnt clothes of the deceased vide memo Ex.PW7/A and personal search articles of the deceased vide memo Ex.PW7/B. As per PW7, in his presence statement of the deceased was recorded by the IO and her right thumb impression was obtained thereon; right thumb and palm were not burnt, as per PW7 and the deceased was fully conscious. After preparing rukka, IO handed over the same to PW7 which he took to the police station and got the FIR registered. After registration of FIR, PW7 returned to the spot and handed over the documents to SI Mahender Singh. In presence of PW7, the IO seized a tin canister containing 2 litre kerosene oil without any lid, one matchbox, burnt sticks, and unburnt sticks vide seizure memo Ex. PW7/C. Both the accused were interrogated and arrested. Accused Ramkali got recovered sale deed and mutation documents which were seized vide SC No. 111/05 Page 9 of 60 pages 10 seizure memo Ex. PW7/D on the basis of statement Ex. PW7/E of accused Ramkali. PW7 identified the tin canister as Ex. P1, kerosene oil as Ex. P2, cloth covering the canister as Ex. P3, matchsticks as Ex. P4, match box as Ex. P5, white cloth as Ex. P6, yellow envelop as Ex. P7 and property documents as Ex. P8.
16. During cross examination of PW7, my learned predecessor recorded a specific observation that the witness was evasive. PW7 in cross examination stated that he had met the deceased Lachhmi before her death and her statement was recorded in his presence which took about 15-20 minutes, but he could not say as to how many people were present at that time; he also could not say as to how many persons were in doctor's uniform and how many were from hospital staff at the time of recording statement of the deceased, though there was one nurse, one duty staff, one doctor and one or two other persons when statement of the deceased was being recorded, as SC No. 111/05 Page 10 of 60 pages 11 per PW7. As per PW7, the sealed parcels were handed over by the doctor to the IO inside the staff room when PW7 was standing out at the door. On the spot, IO recorded statements of 10-12 persons in his presence. PW7 further stated in cross examination that at the relevant time the deceased was lying with a white sheet covering her body till neck and both her hands were outside the sheet; both arms of the deceased were burnt but right hand and right thumb was not burnt; deceased was groaning with pain; IO had asked the deceased as to whether she could read and write, to which she replied that she did not know. Stamp pad used to take thumb impression of the deceased was in the IO bag, as per PW7.
17. PW8 ASI Anand Swaroop was working as duty officer at PS Chandni Mahal on the relevant day and recorded FIR Ex. PW8/A.
18. PW9 Ct. Chander Bhan was working as DD writer on 17.05.05 and recorded DD No. 32 and 33 Ex. PW9/A&B. On SC No. 111/05 Page 11 of 60 pages 12 25.06.05, PW9 collected four pullandas from MHC(m) with CFSL form and road certificate and deposited the same at CFSL Hyderabad on 27.06.05. On 30.06.05, PW9 returned and handed over the receipt of CFSL to MHC(m).
19. PW10 Ct. Sonu Kaushik was posted at PP ISBT as draftsman and prepared siteplan Ex. PW10/A after taking rough notes. Later on, the rough notes and measurement were destroyed by PW10.
20. PW11 Ct. Rambabu was posted as duty constable at JPN Hospital on 17.05.05 from 8:00pm to 8:00am. Vide DD NO. 33, PW11 informed the Incharge PP Turqman Gate about admission of a lady in burnt condition in the hospital at about 11:10pm.
21. PW12 Dr. Rohit conducted postmortem on the dead body of the deceased and proved his report as Ex. PW12/A. As per PW12, time of death of the deceased reported was 9:00am on 18.05.05. PW12 explained that dermo epidermal burns were present all over the dead body; burnt area SC No. 111/05 Page 12 of 60 pages 13 showed peeling of skin at places exposing reddened base and all body hair including scalp hair were found burnt and burnt area was 100% of total body surface area. In his cross examination, PW12 stated that generally death occurs within 24 hours in cases of 100 % burns. PW12 stated that the mucosal wall of the stomach was normal and there were no symptom of consumption of alcohol. Hands and legs as well as hair on the body were also burnt, as per PW12.
22. PW13 ASI Sunita deposed that on 18.05.05 she conducted personal search of accused persons vide personal search memo Ex. PW13/A&B.
23. PW14 HC Behru Sahai was posted as MHC(m) malkhana in PS Chandni Mahal at the relevant time and proved as Ex. PW14/A-D copies of entries in register no.19 as regards deposit of case property, road certificate and receipt from CFSL Hyderabad.
SC No. 111/05 Page 13 of 60 pages 14
24. PW15 HC Satish deposed that on 17.05.05 he handed over a copy of DD No. 33 Ex. PW9/B to SI Mahender Singh.
25. PW16 Dr. S.N. Basna was working as CMO, LNJP Hospital on 17.05.05 and proved MLC of the deceased as Ex. PW16/A. As per PW16, at about 11:10pm on 17.05.05 the deceased was brought to hospital with 90% burns and she stated in his presence that burn injury had been caused to her by Ramkali and Shabnam after pouring kerosene oil on her at about 10:00pm. After preparation of MLC, the deceased was referred to Burns Ward, as per PW16. In his cross examination, PW16 stated that the MLC had been prepared by junior resident Dr. Girish under his supervision and it is Dr. Girish who had examined the deceased in his presence. As per PW16, statement of deceased was not recorded in his presence and he could not say as to who wrote the endorsement "fit for statement" in MLC Ex. PW16/A or signed the endorsement; he also could not say as to who had done the SC No. 111/05 Page 14 of 60 pages 15 cuttings encircled on the MLC Ex. PW16/A. PW16 could not say as to whether palm and fingers of the deceased were burnt. During the span of 15 minutes when the deceased remained with him and Dr. Girish, she was conscious, as per PW16.
26. PW17 Ct. Anand Swaroop was posted at PP JPN Hospital on 18.05.05 and informed vide DD NO. 14 Ex. PW6/A about death of the deceased in the hospital.
27. PW18 SI Mahender Singh is investigating officer of this case, who described the investigation conducted by him and proved on record statement of the deceased recorded by him in the hospital as Ex. PW18/A, his endorsement thereon as Ex. PW18/B, siteplan as Ex. PW18/C, inspection memos as Ex. PW18/D&E, disclosure statement of accused Shabnam as Ex. PW18/F, seizure memo of scalp hair of the deceased as Ex. PW18/G, applications for medical examinations of accused persons as Ex. PW18/H&I, brief facts as Ex. PW18/J and form no.
SC No. 111/05 Page 15 of 60 pages 16 25.35 as Ex. PW18/K. PW18 identified the case property Ex. P1-P8.
28. In his cross examination, PW18 stated that he reached LNJP Hospital at about mid night and first of all met Dr. Girish in emergency room. After getting from Dr. Ramanand on MLC in the emergency room the endorsement of fitness for statement, PW18 alongwith Ct. Surender went to bed of the deceased and recorded her statement at about 12.10am. As per PW18, at the time of recording statement of the deceased, except Ct. Surender none else was present. The ink pad used to take thumb impression of the deceased had been taken by him from the hospital, as PW18. At the time of recording statement, the deceased was sitting on bed and no attendant or assistant was present there. Hands of the deceased were not burnt as per PW18. PW18 admitted having not informed the SDM concerned and stated that when he recorded the statement of the deceased, no doctor or SC No. 111/05 Page 16 of 60 pages 17 senior officer was available as the doctor had refused to join at the time of recording the statement. At the time of recording the statement, only hands and face of the deceased were visible and rest of the body was bluish and blackish in colour. But in later part of his cross examination, PW18 stated that he could not say as to whether body of the deceased was covered with white cloth and some ointment had been applied. As per PW18, no liquor bottle was found at the spot. Area Magistrate was informed about the occurrence on 18.05.05 at 12:00noon, as per PW18.
29. PW19 Inspector Devender Kumar partly investigated this case by way of inquest proceedings, post mortem, handing over of dead body and preparation of scaled siteplan, whereafter chargesheet was filed. PW19 proved CFSL report as Ex. PW19/A. In cross examination PW19 stated that he did not request the doctor to preserve viscera of the deceased, though he had seen the statement SC No. 111/05 Page 17 of 60 pages 18 of the deceased recorded by SI Mahender Singh. PW19 also stated having not inquired about the cuttings made on MLC Ex. PW16/A and explained that the entire MLC was prepared in the handwriting of Dr. S.N. Basna.
30. PW20 Sh. Tara Chand from MCD office proved mutation record of house of the deceased and accused persons as Ex. PW20/A-C. As per PW20, vide letter dated 12.07.03, Ramkali, Praveen, Lachhmi and Shama had been called upon to complete certain formalities. After completion of formalities the property was mutated in the name of Ramkali, Praveen, Lachhmi and Shama vide letter Ex. PW20/B and House tax was paid vide receipt Ex. PW20/C.
31. PW21 Dr. Ramanand, a junior resident of LNJP Hopsital deposed that on 18.05.05 at 12:30am he declared the deceased fit for statement after examining her. In his cross examination, PW21 stated that he did not remember name of the junior resident or senior doctor who was on SC No. 111/05 Page 18 of 60 pages 19 duty with him; he did not prepare the MLC; treatment was given to the deceased in the casualty while he was in Burns Ward throughout the day; certificate of fitness was given by him on his own without being asked for the same; and statement of the deceased was not recorded in his presence.
32. No other evidence was brought by prosecution.
33. Entire incriminating evidence was put to the accused persons in their statements under Section 313 CrPC and they opted not to lead any evidence in their defence.
34. On behalf of prosecution it was argued with the help of case law that dying declaration need not necessarily be recorded by judicial or executive magistrate and if inspires confidence, a dying declaration recorded by a police officer can be a solitary evidence to convict an accused. It was argued that mere absence of fitness certificate in the statement of the deceased in present case is not sufficient to reject the dying declaration on the basis whereof FIR SC No. 111/05 Page 19 of 60 pages 20 was registered. Learned Additional Public Prosecutor argued that even where no thumb mark had been taken, the dying declaration was accepted by courts; present case stands on a better footing as the dying declaration on the basis whereof FIR was registered bears thumb impression of the deceased. It was argued that accused led no evidence to show any complaint lodged by them as regards the bribe allegedly demanded by the IO, as suggested to prosecution witnesses in cross examination. Non examination of Dr. Girish who prepared MLC of the deceased is insignificant as per learned prosecutor since MLC was prepared under supervision of PW16. Learned Additional Public Prosecutor placed reliance on the judgments in BALBIR SINGH vs STATE OF PUNJAB, (2006) 12 SCC 283; LAXMAN vs STATE OF MAHARASHTRA, (2002) 6 SCC 710; RAMAWATI DEVI vs STATE OF BIHAR, AIR 1983 SC 164; and RAJENDRA vs STATE OF MAHARASHTRA, (2006) 10 SCC 759.
SC No. 111/05 Page 20 of 60 pages 21
35. Per contra, learned defence counsel argued with the help of case law that testimony of PW1 and PW2 eye witnesses, who saw the deceased being burnt but did not support case of the prosecution cannot be ignored. It was argued that the dying declaration Ex.PW18/A on the basis whereof FIR was registered is a tailored document as thumb mark of the deceased could not have been taken on the same in view of her having suffered 100% burns. Dying declaration ought to have been recorded by some magistrate instead of a police officer and that too with a fitness endorsement of the doctor. It was further argued that prosecution failed to prove consumption of liquor prior to the occurrence by the deceased as stated allegedly by her in Ex.PW18/A; the investigating officer ought to have got viscera of the deceased preserved for forensic analysis to test presence of alcohol but the same was not done. It was argued that prosecution has failed to specify the extent of burns in so far as PW16 says the burns were SC No. 111/05 Page 21 of 60 pages 22 90%, MLC says the burns were 95% while postmortem report says the burns were 100%. Non examination of Dr. Girish, who allegedly prepared the MLC of the deceased is fatal to prosecution as per learned defence counsel. CFSL report Ex.PW19/A also falsifies version of prosecution as it reports no presence of kerosene on the burnt clothes of the deceased. Contradictions in the testimony of PW7 Constable and PW18 IO also were highlighted by the learned defence counsel. Learned defence counsel placed reliance on the judgments in DINESH GOPAL BHURE vs STATE OF MAHARASHTRA, 2003 (4) CRIMES 502 BOMBAY DB; BHERU SINGH @ RAJU vs STATE OF MADHYAPRADESH, 2003 (2) CRIMES 268 DB; CHACKO vs STATE OF KERALA, 2003 (2) CRIMES 497 SC; and SHAIKH RAFIQ vs STATE OF MAHARASHTRA, 2008 (3) RCR (CRIMINAL) 921 SC.
36. I have perused the case law cited on behalf of prosecution as well as defence. The basic principles of law SC No. 111/05 Page 22 of 60 pages 23 are consistent in all the judgments cited before me. In the case of BALBIR SINGH (supra) cited by the prosecution, Hon'ble Supreme Court held that merely because the dying declaration was not recorded by a magistrate, the same is not a ground to reject it; but in the said case, there was clear testimony of a doctor who witnessed the recording of dying declaration by another doctor to the effect that they thought of calling some magistrate but due to serious condition of the patient and lack of time they decided not to wait. In the case of LAXMAN (supra) cited by prosecution it was held that in view of certification of doctor to the effect that patient was conscious, it would be hypertechnical to expect a certification that the patient was in fit state of mind; but in that case, the dying declaration was recorded by a magistrate categorically indicating the questions he had put to the patient and answers which satisfied the magistrate about mental fitness of the patient; it was held that what is essential is SC No. 111/05 Page 23 of 60 pages 24 that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. In the case of RAMAWATI DEVI (supra) cited by prosecution, Hon'ble Supreme Court held that there is no requirement of law that dying declaration cannot recorded by a police official; the dying declaration in that case was corroborated by testimony of four witnesses, whose testimony was unshaken. In the case of RAJENDRA (supra) cited by prosecution, it was held that no law mandates the recording of dying declaration by magistrate only; in the said case, the dying declaration was recorded by a senior clerk in government department on being authorised by the tehsildar to record the same as an executive magistrate.
37. The present case being based solely on dying declaration, law in that regard has to be recapitulated. The philosophy underlying the admissibility in evidence of the dying declaration is nemo moriturus praesumitur mentire
- no one at the point of death is presumed to lie. Way SC No. 111/05 Page 24 of 60 pages 25 back, in the case of KHUSHAL RAO vs STATE OF BOMBAY, AIR 1958 SC 22, Hon'ble Supreme Court ruled that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence; a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. It was held that in order to pass the test of reliability, the dying declaration has to be subjected to a very close scrutiny, keeping in mind that the statement has been recorded in the absence of accused, who had no opportunity to test the veracity of the statement by way of cross examination. In the case of STATE OF UTTAR SC No. 111/05 Page 25 of 60 pages 26 PRADESH vs RAM SAGAR YADAV, AIR 1985 SC 416, Hon'ble Supreme Court again held that there is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated; the primary effort of the court has to be to find out as to whether the dying declaration is true.
38. In the case of DANDU LAKSHMI REDDY vs STATE OF AP, III (1999) CCR 190 SC, Honble Supreme Court observed thus:
"3. There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in Court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth.
SC No. 111/05 Page 26 of 60 pages 27
4. In TAPINDER SINGH v. STATE OF PUNJAB, 1971 (1) SCR 599, this court, by following an earlier decision in KUSHAL RAO v STATE OF BOMBAY, 1958 SCR 582, has reminded the Courts that a dying declaration should be subjected to very close scrutiny. Following observations were also made by this Court:
"The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person's death comes into question. It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court on its guard while testing its reliability, imposing on it SC No. 111/05 Page 27 of 60 pages 28 an obligation to closely scrutinise all the relevant attendant circumstances."
39. In the case of MUNNU RAJA vs STATE OF MADHYA PRADESH, AIR 1976 SC 2199, Hon'ble Supreme Court rejected the dying declaration recording by the investigating officer and cautioned that investigating officers are naturally interested in the success of the investigation and the practice of investigation officer himself recording a dying declaration ought not to be encouraged.
40. In the case of STATE vs LAXMAN KUMAR, AIR 1986 SC 250, Hon'ble Supreme Court observed that where doctor is available, there is no justification for the police officer to record dying declaration. Hon'ble Supreme Court further observed as under:
"28. We also find that under the relevant rules applicable to Delhi area, the investigating officer is not to SC No. 111/05 Page 28 of 60 pages 29 scribe the dying declaration. Again, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the court." (emphasis supplied)
41. In the case of MADHUBALA vs STATE, 1990 CrLJ 790, Hon'ble Delhi High Court after making a reference to the above observation of Hon'ble Supreme Court held that even if the rules framed under Chapter 13A of the Rules and Orders of the Punjab High Court Volume III, as applicable to Delhi are directory, they have to be adhered to; Rule 2 of the said rules makes it mandatory for the investigating officer to apply to the Chief Metropolitan Magistrate to depute some magistrate for recording of the dying declaration.
SC No. 111/05 Page 29 of 60 pages 30
42. In the case of LAXMI vs OM PRAKASH, 2001 (6) SCC 118, Hon'ble Supreme Court deprecated the practice of a police officer recording a dying declaration thus:
"29. A dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore not tested by cross examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances (see TAPINDER SINGH vs STATE OF PUNJAB). One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to a satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the SC No. 111/05 Page 30 of 60 pages 31 dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains great doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. In BHAGWAN DAS vs STATE OF RAJASHTAN the learned Session Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This court while upholding the finding of the learned Session Judge held the dying declaration by itself insufficient for SC No. 111/05 Page 31 of 60 pages 32 sustaining a conviction on a charge of murder. In KAKE SINGH vs STATE OF MP the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In DARSHAN SINGH vs STATE OF PUNJAB this court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore, said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In MOHAR SINGH vs STATE OF PUNJAB the dying declaration was recorded by the investigating officer.
This court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present.
SC No. 111/05 Page 32 of 60 pages 33
30. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaring being recorded by an investigating officer has been discouraged and this court has urged the investigating officer to avail the services of a magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer, later on relied on as dying declaration. In MUNNU RAJA vs STATE OF MP: This court observed (sccp. 108 para 11) "Investigating officer are naturally interested in the success of investigation and the practice of the investigating officer himself in recording a dying declaration during the course of any investigation ought to be encouraged".
SC No. 111/05 Page 33 of 60 pages 34 The dying declaration recorded by the investigating officer in the presence of doctor and some of the friends and relations of the deceased was excluded from consideration as the failure to requisition the services of a magistrate for recording the dying declaration was not explained. In DALIP SINGH vs STATE OF PUNJAB this court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof "that better and more reliable methods of recording dying declaration of injured person" were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a SC No. 111/05 Page 34 of 60 pages 35 statement which was a bit doubtful."
(emphasis supplied)
43. In the case of CHAKO vs STATE OF KERALA, 2003 (2) CRIMES 497 SC, Hon'ble Supreme Court observed thus:
"Further in the absence of any certificate by a competent doctor as to the mental and physical condition of the deceased to make such a dying declaration, we think it is not safe to rely on the same. We are aware of the judicial pronouncements of this Court that it is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration.
(See: RAM BAL vs STATE OF CHHATTISGARH [2002 (8) SCC 83]. In the instant case it is not as if the doctor was not available. As a matter of fact, PW3 who treated the deceased in the first SC No. 111/05 Page 35 of 60 pages 36 instance was available at the time when the deceased allegedly made the dying declaration, still we find he has not either given a certificate as to the condition of the deceased nor has he attested the said document." (emphasis supplied)
44. In the case of KAMALAKAR NANDRAM BHAVSAR vs STATE OF MAHARASHTRA, AIR 2004 SC 503, Hon'ble Supreme Court observed thus:
"It is very surprising that a doctor who admittedly did not treat a patient during her life time would be called upon to certify the fitness of the patient to make a dying declaration when other doctors who treated the said patient were available for the said purpose. From the evidence on record also, it is clear that the deceased was in no condition to make a dying declaration. She had almost 95% burns and she was put on oxygen right from the moment she was brought to the hospital and continued to be on oxygen till she died. In such circumstances, it is SC No. 111/05 Page 36 of 60 pages 37 difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. The evidence on record shows that she died within about half an hour after making the alleged dying declaration. All these circumstances lead to one and the only conclusion that this dying declaration is not a genuine document and the High Court was justified in rejecting the same on that basis."
(emphasis supplied)
45. Falling back to the present case, as described above, PW1 and PW2 the public persons, neighbours of the deceased who saw her burning and screaming rushed to the house of one Sunita where accused persons had gone to attend a party; PW3 and PW4 brother and god sister of the deceased made no whisper in their testimony as regards the alleged property motive of accused persons or even suspicion against them. Entire prosecution case hinges on three statements of the deceased, which as per SC No. 111/05 Page 37 of 60 pages 38 prosecution are her dying declarations. First statement is in the form of alleged history on MLC Ex.PW16/A; second statement is in the form of testimony of PW16, Dr. Basna; third statement is the thumb marked detailed statement Ex. PW18/A of the deceased on the basis whereof FIR was registered. In view of legal position discussed above, all these three statements need to be scrutinized and that too very closely in order to arrive at decision as regards truthfulness thereof.
46. First, I would deal with the third statement of the deceased, Ex.PW18/A on the basis whereof FIR was registered. In this thumb marked dying declaration, allegedly made by the deceased to the IO SI Mahender Singh, the deceased stated that she had been residing with the accused persons in a house that had been transferred in the name of three of them by their guru (master) Munni but for past few days accused persons were pressurizing the deceased to get her name removed from the title SC No. 111/05 Page 38 of 60 pages 39 documents; that at about 10.00pm that night, accused persons again pressurized the deceased to get her name removed from documents but she declined, whereafter accused persons made her consume liquor mixed in soft drink; that thereafter accused Ramkali caught her, accused Shabnam poured kerosene oil on her and accused Ramkali set her aflame with a matchstick; that when the deceased screamed, neighbours came and both the accused persons with the help of neighbours brought the deceased to the hospital; that accused persons with the intention to kill her made her consume liquor, poured kerosene on her and set her aflame with a matchstick; that action be taken against Ramkali and Shabnam; that she has heard the statement and the same is correct.
47. At the very outset, it needs to be noticed that the thumb mark affixed on statement Ex.PW18/A very neatly shows the thumb print specifically the ridges and troughs of the thumb mark. It also needs to be noticed that SC No. 111/05 Page 39 of 60 pages 40 substantial portion towards the end of this statement appears to have been unnecessarily added simply to fill in the space between the thumb mark and end of the relevant portion; the relevant portion ends with the statement that the accused persons with the help of neighbours brought the deceased to the hospital and the avoidable portion is the subsequent part describing the intention of accused persons and demanding action against them. This description of the statement is quite significant to my mind, especially in view of further discussion.
48. The most glaring aspect that dents the credibility of Ex.PW18/A is the testimony of PW18, the investigating officer SI Mahender Singh who allegedly recorded this statement. As stated by PW18 in his cross examination, he recorded statement of the deceased at about 12.10am; while as per MLC Ex.PW16/A even if the cuttings and over writings are ignored, the deceased was declared fit for statement at 12.30am. There is nothing on record to SC No. 111/05 Page 40 of 60 pages 41 suggest that at 12.10am when Ex.PW18/A was recorded by the investigating officer, the deceased was in a fit mental state to make her statement.
49. I find it extremely difficult to believe that a person who suffers 100% burns would be able to protect thumb of the right hand. The natural response of a human being is to ward off the assault with right hand by way of reflex action. It is not believable that despite being set aflame in such a manner that led to 100% burns, the deceased would not have tried to save herself with the help of her hands. Mark of a burnt thumb cannot reflect such clear ridges and troughs. Further, PW12 the autopsy surgeon clearly described the condition of the deceased that she was burnt 100% of the total body surface area including both hands as well as legs and burnt area showed peeling of skin at places exposing reddened base. With such extreme burnt condition, such clear expression of thumb mark is not possible.
SC No. 111/05 Page 41 of 60 pages 42
50. As per MLC Ex.PW16/A, the deceased was brought in the hospital at 11.10pm on 17.05.05 and as per postmortem report Ex.PW12/A, the deceased breathed her last at 09.00am on 18.05.05. There is nothing on record to suggest that the deceased was in fit mental condition only for a span of one hour from 12.30am to 01.30am during this span of about 10 hours of her stay in the hospital. Nothing prevented the investigating officer to make a request to appropriate authorities for sending some judicial magistrate or even some executive magistrate to record statement of the deceased; even some senior doctor of the hospital could be requested by the investigating officer to record statement of the deceased. But what to say of making any efforts in that direction, the investigating officer did not call the doctor even for the limited purpose of ascertaining the mental fitness of the deceased to make her statement. The investigating officer PW18 himself also did not put any questions in order to SC No. 111/05 Page 42 of 60 pages 43 satisfy himself about mental fitness of the deceased prior to initiation of recording the dying declaration Ex. PW18/A.
51. Even Dr. Ramanand, the junior resident who allegedly declared the deceased fit for statement admitted in his testimony as PW21 that the deceased was not administered any treatment by him; neither he prepared the MLC nor treated the deceased nor even remained present during the period when statement Ex.PW18/A of the deceased was being allegedly recorded.
52. Even the endorsement of fitness to make statement was recorded by PW21 Dr. Ramanand not on the statement Ex.PW18/A but on MLC Ex.PW16/A, which had been prepared by another doctor namely Dr. Girish who was never produced in the box. Not just this, even as regards the endorsement of fitness on MLC Ex.PW16/A, PW21 Dr. Ramanand failed to explain the cuttings and over writings of the timing at portions B&C of the MLC. Even the cuttings are not by way of a single slash but in a SC No. 111/05 Page 43 of 60 pages 44 distinctly manner by shading hard and dark on the earlier endorsement, conveying an impression that efforts were made to somehow make it impossible for anyone to read the portion being cut.
53. In the case of KAMAL KUMAR vs STATE, 1995 JCC 280, Hon'ble Delhi High Court found it unsafe to rely on a dying declaration that was not in question answer form, did not bear endorsement of the doctor at the beginning regarding mental fitness and at the end regarding presence of the doctor throughout and that the patient was conscious and fit for statement throughout. In the present case also, Ex.PW18/A suffers these infirmities.
54. As held in the case of LAXMAN KUMAR (supra) unless the dying declaration is in the form of specific questions put to the maker thereof and specific answers advanced, it is very difficult to know to what extent the answers were suggested by the questions put. As described above, the purported dying declaration Ex. PW18/A not SC No. 111/05 Page 44 of 60 pages 45 just mentions about the incident and motive but travels much further, using stereotyped police expressions "Jo in dono ne mujhe sharab pila kar mitti ka tel dal kar mujhe jan se mar dalane ki niyat se machis ki tilli jala kar mere ko aag lagai hai........" , which expressions are not expressions of a common man; such expressions, especially the word "Jo" are found only in those statements of investigation files which are not required to be recorded verbatim. Even the abovesaid italicised sentence shows a well deliberated effort to wrap up the entire version of the event. From Ex. PW18/A it is very difficult to rule out that words were not put into the mouth of the deceased with an aim to obtain specific kind of dying declaration.
55. Then, there are certain glaring discrepancies and contradictions pertaining to specifically the alleged dying declaration Ex. PW18/A. PW18 investigating officer states that the deceased was sitting on bed at the time of recording the dying declaration while his accompanying SC No. 111/05 Page 45 of 60 pages 46 constable PW7 states that the deceased was lying on bed at that time. Even otherwise, it defies all logic that a person with 100% burns would sit for a span of approximately one hour in order to make a statement. Further, the investigating officer PW18 states that the ink pad used for obtaining thumb impression of the deceased was brought from the hospital while his accompanying constable PW7 states that the ink pad was in the investigation kit of the IO. PW18 the investigating officer states in his cross examination dated 06.04.09 that when he recorded the dying declaration Ex. PW18/A, except Ct. Surender none else was present while Ct. Surender PW7 states that at that time there was duty staff, one nurse, one doctor and one or two other persons also present but IO did not ask their name to be put as a witness. In his initial cross examination dated 06.04.09 the investigating officer PW18 stated that body of the deceased at the time of recording dying declaration was bluish and blackish, while SC No. 111/05 Page 46 of 60 pages 47 in subsequent cross examination dated 15.05.09 he stated that he could not say as to whether some ointment had been applied on the whole body of the deceased.
56. There is yet another glaring aspect as regards the allegation of use of kerosene oil. Post mortem report Ex. PW19/A specifically describes that kerosene or even its residues could not be detectd in Ex.1 the partially burnt clothes of the deceased, Ex. 3 the match box with burnt and unburnt sticks as well as Ex. 4 the hair of the deceased. This finding of post mortem report is not just on the basis of smell; on account of evaporation, smell of kerosene may not last long. This finding of post mortem report is based on the test of gas chromatography. Even the post mortem report Ex. PW12/A is silent about any smell of kerosene. MLC Ex.PW16/A does make a mention of finding that smell of kerosene was positive, but author of the MLC Ex.PW16/A Dr. Girish Rajpal was never produced in the box. Since author of MLC was not subjected to cross SC No. 111/05 Page 47 of 60 pages 48 examination, no reliance can be placed on this finding recorded in the MLC. Under such circumstances, as in the case of MADHUBALA (supra), prosecution version of kerosene oil use becomes doubtful.
57. Further, as per overall prosecution case, depicted in the testimony of PW5 photographer and site plan Ex. PW10/A, the deceased was set aflame in an enclosed area, apparently a room, photographs whereof are Ex. PW5/B-E . Even as regards this, there is a vital self contradiction in the testimony of photographer PW5, who stated in chief examination that the photographs are of the spot on the ground floor while in his cross examination he stated that photographs are of first floor room. One of the photographs Ex. PW5/B depicts an open bowl containing kerosene oil, photograph Ex. PW5/E reflects a canister and an LPG cylinder also while the other photographs depict a bed and beddings and some clothes hanging in the room. If the deceased was set aflame in this room, it is not SC No. 111/05 Page 48 of 60 pages 49 possible to conceive no destruction of clothes etc. in the room by flames, rather presence of open bowl of kerosene alongwith a kerosene canister and LPG cylinder were a sure formula for massive destruction. But PW5 in his cross examination states that he did not find any sign of smoke etc. in the room; even photographs do not show any soot. This casts a shadow of doubt on the version of use of kerosene oil in the incident of burning.
58. Another doubtful circumstance in the case of prosecution is the alleged use of liquor. In view of specific allegation in the dying declaration Ex. PW18/A, the investigating officer ought to have asked the autopsy surgeon to preserve viscera of the deceased for being sent to forensic lab, but the same was not done. Rather, the investigating officer PW19 stated that if the doctor considers fit, he preserves the viscera. Such an impression of the investigating officer, in my view cannot be called reasonable since it is not the doctor but the investigating SC No. 111/05 Page 49 of 60 pages 50 officer who has to decide what evidence to collect in order to reach at truth. Even the bottles and/or glasses used to consume liquor mixed with soft drink were not seized by the investigating officer. Rather, the autopsy surgeon PW12 specifically deposed that there were no symptoms on the mucosal wall of stomach reflecting consumption of alcohol.
59. Dr. Ramanand, the junior resident of the hospital admitted in his cross examination having neither prepared the MLC nor administered any treatment to the deceased nor he remained present during recording of the statement of the deceased but he issued a certificate of fitness of the deceased to make statement. Even that endorsement of fitness was not made on the statement Ex. PW18/A itself but on MLC Ex. PW16/A and that too about 20 minutes after the recording of statement had begun. And even in the said endorsement of fitness there are unexplained cuttings and overwritings. Interestingly, PW21 Dr. SC No. 111/05 Page 50 of 60 pages 51 Ramanand states in his cross examination that he gave certificate of fitness on his own without being asked by anyone, which is not believable. Such a certificate of fitness cannot be relied upon.
60. At the time of recording dying declaration Ex. PW18/A, nothing prevented the investigating officer to call Dr. Girish who allegedly prepared MLC Ex. PW16/A or atleast Dr. Basna, both of whom were as per prosecution case, present in the hospital only. Even Dr. Ramanand who issued certificate of fitness as described above was not asked to remain present during the period of recording dying declaration in order to ascertain the continuous mental fitness of the deceased during that span.
61. I am not oblivious to the legal position that failure to prove motive is not always fatal to prosecution case. But at the same time, if allegations and investigation in a case are on record to establish motive, scrutiny of the same is very important. Motive of the accused persons, as per the SC No. 111/05 Page 51 of 60 pages 52 alleged dying declaration Ex.PW18/A was to grab share of the deceased in the immovable property held jointly by the deceased and the accused persons. As per Ex.PW18/A, the house in question had been transferred by their guru Munni in the name of the deceased Lachhmi and the accused persons Ramkali & Shabnam jointly but the accused persons had been pressurizing the deceased to withdraw her name from the title documents. Evidence in this regard adduced by prosecution is the testimony of PW20 from MCD office and documentary record Ex.PW20/A-C. A perusal of documentary record presents somewhat different picture. As per mutation letter Ex.PW20/A, the recorded owner of the house in question were Smt. Maya Devi, wife of Khushi Ram and Sh. Mohan Lal, son of Tara Chand and the property was sought to be mutated in the names of Ramkali, Parveen, Laxmi and Shama. There is no reference in the documentary record as regards accused Shabnam and there is also no evidence SC No. 111/05 Page 52 of 60 pages 53 on entire judicial record to show that Shabnam was also named Shama. Similarly, Parveen named in the mutation documents is nowhere explained in the prosecution case. There is another glaring loophole in the alleged motive part of prosecution. Assuming that only three persons namely Ramkali, Shabnam and Lachhmi had jointly held the property, as sought to be projected by prosecution, though contrary to record, it remains unexplained as to why would Ramkali and Shabnam gang up against Lachhmi instead of Lachhmi and one of the accused joining hands against the other accused. As described from documentary record, Parveen also stood benefited by the death of Lachhmi but there is absolutely no investigation on her role.
62. In the above described circumstances, I find it unsafe to rely on the dying declaration Ex. PW18/A. But as discussed above, Ex. PW18/A is not the only dying declaration allegedly made by the deceased; two more SC No. 111/05 Page 53 of 60 pages 54 dying declarations are on record which need to be scrutinized.
63. The remaining two alleged dying declarations are the alleged history on MLC Ex.PW16/A and oral testimony of PW16 Dr. Basna that the deceased stated in his presence as regards her having been set aflame by the accused persons. Both these pieces of evidence are inter connected in the sense that Dr. Basna allegedly heard the deceased when she allegedly described the history of injury to Dr. Girish, the author of MLC. While appreciating the soundness of these two pieces of evidence, the overall evidence and law described above has to be constantly kept in mind. For, fabrication of such a vital piece of evidence as Ex.PW18/A dying declaration is bound to cast shadow of doubt on overall investigation and prosecution case.
64. So far as MLC Ex.PW16/A is concerned, it records the alleged history as follows:
"Alleged H/O burn injury caused when Ramkali and Shabnam set her SC No. 111/05 Page 54 of 60 pages 55 alive on fire after putting kerosene on 17.05.05 at around 10.00pm at home as told by patient herself."
65. As described above, author of this MLC Dr. Girish Rajpal was not brought to box. In that regard, statement dated 06.04.09 was made by investigating officer SI Mahender Singh before my learned predecessor to the effect that despite his best efforts, he could not effect service of summons on Dr. Girish Rajpal, hence unable to procure presence of Dr. Girish. But earlier part of the same statement shows that SI Mahender Singh took dasti summons from this court and went to native house of Dr. Girish where uncle of Dr. Girish met him and stated that he was not aware of whereabouts of Dr. Girish. I find the explanation unbelievable that a Sub Inspector of Delhi Police was not able to locate a doctor of a government hospital. No serious efforts were made by the investigating officer to serve Dr. Girish with summons.
SC No. 111/05 Page 55 of 60 pages 56
66. The other remaining purported dying declaration is the oral testimony of PW16 Dr. Basna, who claims to have heard the deceased disclosing before Dr. Girish that she had been set aflame by the accused persons.
67. First and the foremost, there is nothing on record to suggest the exact manner in which the alleged history was described by the deceased before Dr. Girish and heard by Dr. Basna. These two pieces of evidence also suffer from the infirmities described above. Neither of these two pieces is in question answer form and neither of these pieces reflect any question put to the deceased before recording this alleged history dying declaration as regards mental soundness of the deceased.
68. Going a step deeper, even as regards oral testimony of Dr. Basna PW16 and the MLC Ex.PW16/A evidence on record is not flawless. PW16 Dr. Basna states that the MLC was written by Dr. Girish under his supervision but Dr. Basna did not know as to whether palm and fingers of the SC No. 111/05 Page 56 of 60 pages 57 deceased had got burnt; Dr. Basna did not know who wrote the endorsement of fitness for statement on the MLC; Dr. Basna could also not explain the cuttings made on the MLC. And in a glaring contradiction, the investigating officer PW19 stated that the entire MLC had been prepared by Dr. Basna in his handwriting.
69. Deceased had suffered 100% burns and her mental status in such a condition cannot be ignored. Since unfortunately the victim succumbed to the burns and did not survive to face the test of cross examination, whatever others allege to have been stated by her has to be very minutely scrutinized. A mere one liner alleged history written in the MLC, author whereof does not appear in the box and the person who overheard the same is not able to explain the above described infirmities cannot be a safe piece of solitary evidence to convict the accused persons.
70. Testimony of neighbours PW1 and PW2 also cannot be ignored. Although both these witnesses were declared SC No. 111/05 Page 57 of 60 pages 58 hostile and were cross examined by the learned prosecutor, their testimony remains unshaken to the effect that when the deceased suffered flames, accused persons were in a different house attending a party and were called from there. They are independent public persons with no interest to shield the accused. Even PW3 and PW4, brother and god sister of the deceased did not whisper any suspicion against the accused persons.
71. As per the dying declaration Ex. PW18/A around which the entire prosecution case revolves, the deceased was caught hold by accused Ramkali, kerosene was poured on her by accused Shabnam and thereafter accused Ramkali set her aflame with a matchstick. As described above, the entire incident as brought forward by prosecution took place in an enclosed area. It cannot be disputed that during the process of being caught hold and being drenched with kerosene followed by burning of matchstick, the deceased would have tried to save herself SC No. 111/05 Page 58 of 60 pages 59 and even subsequent to having been set aflame would have tried to run away with accused persons trying to prevent her escape while she was burning. In such a scenario as presented by prosecution, some burn injuries were inevitable on the hands of the accused persons also. But medical examination reports of accused persons Ex. PW18/H&I reflect absolutely no injury on the accused persons which also casts a doubt on the overall prosecution version of the manner in which the deceased got burnt.
72. Except death of a human being by way of burning, prosecution has not been able to establish anything else in this case. Prosecution has failed to establish not just a complete chain of circumstances, even the circumstances tried to be established could not be cogently and firmly so established by the prosecution. Prosecution has not been able to walk through the distance between "may be true"
and "must be true".
SC No. 111/05 Page 59 of 60 pages 60
73. Prosecution has failed to prove beyond reasonable doubt that the accused persons committed murder of the deceased Lacchmi.
74. Consequently, both the accused persons are held not guilty of the charges framed against them and are acquitted.
75. I must also record appreciation for the learned defence counsel and learned Additional Public Prosecutor for the able assistance extended by them in conducting the hearing of this case on day to day basis, because of which the matter came to be decided within the time as targeted.
76. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 09th OCTOBER 2009 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI SC No. 111/05 Page 60 of 60 pages