Delhi District Court
State vs Parshant Kumar on 14 February, 2024
DLNW010000642009
Presented on : 03-10-2009
Registered on : 04-11-2009
Decided on : 14-02-2024
Duration : 14 years, 4 months,
11 days
IN THE COURT OF
ASJ/SPECIAL JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC/52337/2016
Annexure 'A'- List of witnesses
Annexure 'B'- List of exhibits
STATE
Through Police Station Officer Ashok Vihar
NORTH WEST DELHI
VERSUS
1. PRASHANT KUMAR
S/o Sh. Hawaldar Mehto
2. HAWALDAR MEHTO (since expired)
S/o Sh. Mohar Lal
3. SEEMA
W/o Sh. Hawaldar Mehto
All R/o House No. 183, Delhi Admn. Flats,
Ashok Vihar, Phase-IV, Delhi.
SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 1
SC No. 688/2018 State Vs. Babita
DLNW010108062018
Presented on : 08-01-2018
Registered on : 08-01-2018
Decided on : 14-02-2024
Duration : 6 years, 1 months,
6 days
IN THE COURT OF
ASJ/SPECIAL JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC/688/2018
Annexure 'A'- List of witnesses
Annexure 'B'- List of exhibits
STATE
Through Police Station Officer Ashok Vihar
NORTH WEST DELHI
VERSUS
BABITA
W/o Sh. Raj Kumar Mehto
R/o House No. 183, Delhi Admn. Flats,
Ashok Vihar, Phase-IV, Delhi.
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Ld. Addl. PP for State : Sh. K.D. Pachauri
Ld. counsel for complainant : Sh. J.P. Malik
Ld. counsel for accused persons : Sh. Mukesh Kalia
Sh. Sidharth Gaurav
FIR No. : 319/2009
Police Station : Ashok Vihar
Under Section : 498A/34, 302, 302/109 IPC
SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 2 of 49
SC No. 688/2018 State Vs. Babita
JUDGMENT
(Delivered on 14-02-2024)
1. Brief facts of the prosecution case, emanating from chargesheet, are that deceased Suman was married to accused Prashant on 06.12.2008, after which she lived at her matrimonial home. However, Suman was harassed and tortured for demand of dowry by her in laws i.e. father in law Hawaldar Mehto (since deceased), sister in law Seema (Nanad) and sister in law Babita (Jethani).
On 06.07.2009 at about 12.45 pm police received a call vide DD no.20, Ex.Pw17/B regarding admission of Suman vide MLC no. 6966, at SL Jain Hospital. The call was marked to ASI Dev Raj (Pw21), who along with Ct Subhash (Pw22) reached at hospital and found Suman admitted with burn injuries. ASI Dev Raj collected her MLC where doctor had declared the patient fit for statement. ASI Dev Raj made inquiries from Suman and she told him that she was married to Prashant on 06.12.2008 and he has burnt her after pouring kerosene and then lit with matchstick. Finding that the incident happened within 7 years of marriage, Pw21 discussed with senior officials and informed SDM Kanjhawala (Executive Magistrate), and requested him to record statement of Victim.
The Executive Magistrate was preoccupied and was taking time, therefore, Pw21 went to spot and called the crime team. As the camera of crime team was not in working condition the IO got the spot photographed from Pvt. Photographer (Pw9). Meanwhile Pw21 got call from hospital that parents of victim SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 3 of 49 SC No. 688/2018 State Vs. Babita have arrived at hospital and they were crating scene, therefore, Pw21 bolted the lock and asked accused Babita and Seema not to disturb the crime scene till his return from hospital. After that SDM Kanjhawala, Sh. Shauryaveer Singh (Pw14) arrived at the hospital and recorded following statement of victim at, 5.30 pm:-
I, Suman w/o Prashant R/O H. No. 183, Delhi Admn Flats, Ashok Vihar Phase IV Delhi, aged 21 years, state that my marriage was solemnized with Parashant on 06.12.2008. My mother-father reside at house no. RZ-81B Gali no. 16, Kailashpuri Delhi. Before marriage my husband was doing a private job which he had had quit. In my matrimonial home, besides my husband Prashant, father in law Hawaldar Mehto, brother in Law (Jeth) Raj Kumar, his wife Babita and sister in law Seema are residing. From the very beginning my father in law, my Jethani and my sister in law (Nanad) used to harass me and sometimes they used to beat me. My husband used to side with them and used to beat me if I told any thing or complained.
I further state that my husband is having illicit relationship with my Jethani Babita and when I saw it I objected it and asked him if you had to keep relations with her why did you merry me. On this he apologized and explained to me. Two days before Holi I had visited my mother's home to meet my mother and had stayed there for last four months. Despite repeated requests to take me home my husband did not come to take me and he used to say that I should come back by myself like I had left. Yesterday on 05.07.2009 about 12 noon, when I came back to my matrimonial home with my brother Vijay, I was not allowed to enter. I told this to my mother on phone and she asked me to SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 4 of 49 SC No. 688/2018 State Vs. Babita wait there and after some time my mother, my father and my three maternal uncles came there and they made my husband and father in law understand and calmed down the matter. However, in the night, again, my father in law and husband talked about me indirectly (ulta seedha) and abused my mother. I kept mum to avoid escalation.
This morning again, around 11.30 my husband Prashant abused me and also slapped me. At that time only me, my husband and my Jethani were in the house. My Jethani also kept abusing me. I withdrew myself from there and went to Kitchen and started warming the tea. At that time my husband came in the kitchen, he was having a can of kerosene oil in his hand which he poured on me and lit me on fire with a matchstick. I tried to save myself and started crying and picked the bucket of water which was near me, splashed the water on me. After that my husband and Jethani brought me to hospital.
Statement is heard. It is written like it is stated. After recording the statement at 5.30 pm, Pw14 directed to take legal action and Pw21 forwarded the statement for registration of FIR. DO/Pw4 registered the FIR Ex.Pw4/B. At the hospital Pw21 seized the burnt clothes of deceased vide Ex.Pw3/B. After that IO visited the spot where Pw13 handed Crime Team Report Ex.Pw13/A and Pw21 prepared the site plan Ex.Pw20/A (should have been Ex.Pw21/A). From the spot i.e. kitchen, Pw21 seized the exhibits from the kitchen i.e. three burnt matchsticks lying on slab at east side, one matchbox containing un-burnt matchsticks and one chunni, multi-colour, having smell of kerosene, lying at slab. These were seized vide Ex.Pw21/B. SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 5 of 49 SC No. 688/2018 State Vs. Babita Subsequently accused came to his house and was arrested vide Ex.Pw21/C. In his disclosure accused confessed that he had put kerosene and fire on his wife and on disclosure Ex.Pw21/E recovery of plastic cane of kerosene oil was effected from bedroom under the bed. Cane was seized vide Ex.Pw21/F. After that Pw21 returned to hospital and again recorded statement of injured.
On 15.07.2009 injured Suman expired due to septicemia. Police received the information of death vide information Ex.Pw17/C. Pw21 collected death certificate Ex.Pw7/A and sent the body for postmortem. After postmortem, report Ex.Pw11/A confirmed the cause of death due to septicemia post multiple burn injuries. The investigation, thereafter, was taken over by Pw23 who sent the exhibits to FSL, arrested remaining accused persons and collected the documents and filed chargesheet before Ld. MM.
2. Ld. MM after compliance of section 207 Cr.PC committed the case for trial before this court and on 22.07.2010 charge for offence under Section 498A/34 IPC was settled against accused Prashant Kumar, Hawaldar Mehto, Seema and Babita and under Section 302 IPC was also settled against accused Prashant Kumar. However, after recording evidence vide order dated 14.03.2017 charge under Section 302 IPC r/w Section 109 IPC was also settled against accused Babita and thereafter on 08.06.2017 after framing charge against accused Babita under Section 302 r/w 109 IPC, separate file with respect to accused Babita was prepared and at the same time qua remaining accused SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 6 of 49 SC No. 688/2018 State Vs. Babita matter was listed for final arguments. The final arguments against accused persons except Babita were not addressed considering that the evidence against all the accused was same and a separate file was prepared only for the purpose of recalling witnesses for cross examination qua accused Babita that too only qua charge under Section 302 r/w Section 109 IPC. Hence, this common judgment in both files.
3. In order to prove its case prosecution examined 26 witnesses. A gist of their testimony is as under:
3.1 Pw1 Ganika Mehto (father of deceased) deposed about the marriage of deceased with accused Prashant and ordeal of his daughter at her matrimonial home that accused Prashant, his father Hawaldar, sister Seema and sister in law Babita used to torture and harass her. He deposed about 11.01.2019 when he had visited the house of accused persons where deceased complained that accused persons used to torture her for dowry and used to beat her. He also deposed that on that day Hawaldar Mehto demanded Rs.50000/- from him to start business of Prashant as Prashant was jobless. He expressed his inability to pay the said amount and told him that he had already spent a sum of Rs.5-6 lakh during the marriage of his daughter Suman with accused Prashant.
He further deposed that on 08.03..2009, his daughter came to her parental house as her mother was not well and at that time, she stayed with them for 3-4 months at her parental house. He further deposed that at that time, Suman was having the pregnancy of 3-4 months. At that time He had made a telephonic SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 7 of 49 SC No. 688/2018 State Vs. Babita call to Prashant to bring his daughter Suman as his wife was not well on which Prashant had told them that as he was not having any time so Pw1 should send his son Vijay to bring Suman. Thereafter, Vijay brought Suman to his house. After that his wife made several telephonic calls to accused Prashant to take back Suman to her matrimonial home but Prashant did not turn up.
He further deposed that in the month of June, 2009, accused Prashant made a telephonic call to his wife and requested to send Suman back on which his wife told Prashant to come and take her back but Prashant replied as he was out of house and could not come and asked to send Suman with Vijay.
He further deposed that on 05.07.2009, his son Vijay took Suman to her matrimonial home but they were not allowed to enter into the house and the in laws did not open the door of the house. Suman informed him about the above said fact through telephone and he replied her to stay there and they were also coming there. Accordingly, she along with Puran Chand, Narinder, Ishwar (his brothers-in-law) and his wife went there and saw that his daughter Suman and son Vijay were standing outside the house of accused and door of house was bolted. Thereafter, they got opened the door of the house by making noise and when they entered into the house of accused Hawaldar Mehto started abusing them and accused Prashant threw a table and helmet towards them due to which helmet got broken. Thereafter, Ishwar made a call at 100 number and called the police. On this, accused Hawaldar Mehto apologized and assured them that in future, no complaint would come from their side. Thereafter, they came back to their house.
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He further deposed that on 06.07.2009 at about 12.00 noon, he received a telephonic call regarding the admission of his daughter at Sunder Lal Jain Hospital. He heard it Safdarjung Hospital and went there. When he did not find his daughter he called his wife who told him about Sundar Lal Jain hospital and then he reached at Hospital at about 6 p.m. At Sunder Lal Jain Hospital, he found his daughter in burnt condition. He asked her as to what had happened to which she replied that "at about 11.30 a.m, she had gone to kitchen for preparation of tea and in the meantime, accused Prashant also reached there and started abusing and slapping. Accused Babita (Jethani), also came there and started abusing her and accused Prashant poured kerosene oil stored in a can, on her and set her on fire". She told him that she tried to save herself by pouring water. He further deposed that on his asking about the kerosene oil, "Suman told that the kerosene oil was in a can which was kept in the room of Babita".
He further deposed that after 10 days, his daughter Suman died in the hospital due to burn injuries and he spent Rs.70,000/- to 80,000/- on her treatment. He further deposed that none of the accused persons nor any family members came there to see his daughter in the hospital during those 10 days of her admission. He and his wife only, looked after her during that period. Pw1 also deposed that SDM had recorded statement of Suman on 06.07.2009. he proved the dead body identification memo Ex.Pw1/B and handing over memo Ex.Pw1/A. 3.2 PW-2 Smt. Meena Devi is the mother of deceased Suman.
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She deposed similar to the testimony of Pw1. The additional facts she deposed are that after about a week of marriage Prashant started beating her daughter and Suman had informed her telephonically that there was illicit relation between accused Prashant and Babita and she had told Prashant that if he had to keep illicit relations with Babita why he got married with her on which Prashant had apologized and assured that he would not have illicit relation with Babita in future. Pw2 also deposed that deceased had also told her over telephone that accused Babita also used to abuse her. Pw2 further deposed that her daughter again made a telephonic call to her and requested to come at her matrimonial home to make her in-laws understand on which she rang to accused Prashant on telephone but Prashant told her to come at his house and when she reached at the entry of the house, accused Hawaldar Mehto met her there and he asked her why she had come there and she replied that his son had called her through telephone. She further deposed that when she entered into the house she found her daughter weeping and on her asking, her daughter told her that her husband still had illicit relations with Babita and when she objected, her in laws beat her. Pw2 also deposed that when her daughter was narrating the above said facts to her, accused Hawaldar Mehto came there and shouted upon her daughter and asked her to tell the facts in his presence. Thereafter, accused Hawaldar Mehto caught hold the hand of his daughter and dragged her in the gallery and he scolded her asking when had she seen his son Prashant with Babita. Accused Hawaldar Mehto also threatened his daughter Suman while saying "Tu Aise Hi Adalat Mein Bolegi". She made her daughter SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 10 of 49 SC No. 688/2018 State Vs. Babita understand and pacified the matter and thereafter, she came back to her house.
Pw2 further deposed that in the month of March, 2009, two days prior to Holi Festival, she fell sick. Since there was no one to look after the household work, she asked her husband to call Suman for few days. On this, her husband talked accused Prashant on telephone and requested him to send Suman for few days but he replied that he had no time and that is why he said to send someone from their side to bring Suman. Accordingly, her husband sent Vijay to bring Suman who brought Suman to their house and Suman remained in their house for about 4 months. She further deposed that when her daughter came to their house, she was having 4 months pregnancy. During the course of stay of her daughter, accused Prashant visited her house only once and he told her that he did not have any desire of any child and he insisted to get abortion but Pw2 denied for the same and asked him to take Suman back and do whatever he wanted. Accused Prashant was having no job and no source of income as he had already left his job prior to his marriage. Thereafter, accused Prashant went back to his house after leaving Suman in her house.
She further deposed that on 05.07.2009, her son Vijay took Suman to her matrimonial home but the accused persons did not allow them to enter into the house and they also did not even open the door for them. Her daughter Suman made a telephonic call and narrated the whole story to them. On this, they told her that they would come soon. Accordingly, she along with her husband went there. Her brother namely Puran Chand, Ishwar SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 11 of 49 SC No. 688/2018 State Vs. Babita and Narender also reached there later on. When she along with her husband reached at the door of house of accused persons, they found that her daughter and son were standing outside their house. On seeing them, accused Hawaldar Mehto taunted them "Ye Randi Aayee Hai, Aur Bacha Gira Diya Hai". She replied that she had got her daughter treated in DDU Hospital and she got miscarriage there. In the meantime, her above said brothers also reached there and thereafter, accused persons opened the door and they entered into the house. Her brothers told them to leave their house and they would make understand the accused persons. Accordingly, she along with her husband and son left for their house as accused Hawaldar Mehto assured them that it was his responsibility and no complaint would come from their side in future.
She further deposed that on 06.07.2009, a telephonic call was received by them from Sunder Lal Jain Hospital and they came to know that Suman was admitted there and they should come there. Thereafter, she along with her Bhabhi went to Sunder Lal Jain Hospital where they found her daughter Suman admitted there in burnt condition. On her asking, her daughter told her that she was set on fire by accused Prashant by pouring kerosene oil upon her. She further told that after their leaving their house on 05.07.2009, accused Babita and Prashant abused her. She also told that on 06.07.2009 when she went to kitchen, accused Prashant came there and asked her to apologize from Babita and when Suman objected, he brought a kerosene can and poured kerosene oil upon her and set her on fire. She further told that she tried to save herself by pouring SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 12 of 49 SC No. 688/2018 State Vs. Babita water upon her. She also told that Babita was also standing at the door of kitchen.
3.3. PW-3 Dr. Alam is the CMO from Sunder Lal Jain Hospital. He appeared on behalf of Dr. Dalip on being deputed by MS of Sunder Lal Jain Hospital and deposed that on 06.07.2009, ASI Devraj had brought patient Suman W/o Prashant, aged about 21 years with the alleged history of burn by husband Prashant by kerosene oil 30 minutes back as told by patient vide MLC No. 6936. He further deposed that as per MLC, the burn injuries were over abdomen, bilateral upper arm, back, face, bilateral lower expiratory and superficial burns (defuse) 35% to 40% burns. He proved the MLC of injured/deceased prepared by Dr. Dalip as Ex.Pw-3/A. He further deposed that as per MLC, the patient was fit for statement at about 1.00 p.m. He also proved the seizure memo prepared by Dr. Dalip as Ex.Pw- 3/B. 3.4. PW-4 SI Surjit Singh is the duty officer of P.S Ashok Vihar. He proved the copy of FIR got recorded by him as Ex.Pw-4/B and his endorsement on the rukka produced before him by SHO as Ex.Pw-4/A. 3.5. PW-5 Sh. Vijay Kumar is the brother of deceased Suman. Like Pw1 and Pw2 he too deposed that accused persons used to harass the deceased. However, all these facts he had come to know from his mother.
To the 05.07.2009, Pw5 deposed that he took his sister SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 13 of 49 SC No. 688/2018 State Vs. Babita Suman to her matrimonial home and on reaching there, they rang the doorbell of house of accused persons. Accused Prashant opened the door and on seeing them, he shut the door and they remained standing outside the house for a long time and kept ringing the bell several times, but no one opened the door and lastly, Hawaldar Mehto opened the door and started abusing them and he also slapped him twice while saying as to why he brought his sister Suman there. When he was making a telephonic call to his mother, accused Haldar snatched his mobile phone from his hands and ultimately, he took it back from him and then he handed over the same to his sister, who made a call to his mother and narrated all the facts to her. Subsequently, his mother, father along with his maternal uncles namely Narender, Ishwar and Puran Chand Mehto reached there and after that, his sister and them, went inside the house while he remained outside the house. Thereafter, they all made the accused persons understand and pacified the matter and they all came back to their house after leaving Suman there.
To the date of incident Pw5 deposed that a telephone call was received by his maternal uncle Ishwar in his office and it was made from Sunder Lal Jain Hospital regarding admission of his sister in burnt condition there. Accordingly, his uncle Ishwar informed them about the same. Thereafter, he along with his mother and one of his maternal aunts went there and found Suman admitted there in burnt condition. When he met his sister, she told him that at about 11.30 a.m, when she was preparing tea, accused Prashant and Babita came inside the kitchen and Prashant was having can of kerosene oil and he poured SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 14 of 49 SC No. 688/2018 State Vs. Babita kerosene oil upon her and accused Babita handed over match box to accused Prashant and he sat Suman on fire.
3.6. PW-6 Sh. K.G. Goswami is the Principal of Shahid Amirchand Govt. Sarvodaya Vidyala, Ludlo Castle No. 2, Shamnath Marg, Delhi where accused Hawaldar Mehto was working as lab assistant. He proved the reply given by him to IO upon the notice, as Ex.Pw-6/A and the attendance detail of Hawaldar Mehto as Ex.Pw-6/B. 3.7. PW-7 Dr. Richie Gupta is the Senior consultant from Fortis Hospital, Shalimar Bagh, Delhi. She deposed that on 06.07.2009, while working as Sr. Consultant (Plastic Surgery) at Sunder Lal Jain Hospital, she had examined the patient Suman who was admitted with alleged history by patient that kerosene was thrown at her and she was set on fire by her husband Prashant. She was having 46% burn injuries. She further deposed that she was treated by intensive management, dressings and other medical treatment, however, she suffered complications and expired on 15.07.2009. She deposed that she was also the member of treating team of doctors. She proved the MLC of patient Suman as Ex.Pw-3/A and the death certificate issued by Dr. Sanjeev Kumar as Ex.Pw-7/A and the death summary as Ex.Pw-7/B. She further deposed that she had examined the patient Suman on 06th, 08th, 09th, 10th and 13th July, 2009 in casualty. She proved the copy of treatment sheets of the patient in this regard as Ex.Pw-7/C (colly.).
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3.8. PW-8 Sh. Pooran Chand Mehto, Pw10 Sh. Narender Mehto and Pw19 Ishwar Singh are the maternal uncles of deceased. Their knowledge about ordeal of Suman at her matrimonial home is hearsay from mother of Suman as all three of them deposed that mother of Suman had told them that Suman had complained of harassment over phone.
They deposed about the incident of 05.07.2009 that Suman and her brother were not allowed to enter in the house and on call from her parents they went to the house of accused persons where accused Prashant and Hawaldar Mehto started quarrel. They further deposed that when they called police Hawaldar apologized and settled the matter after which they returned home.
To 06.07.2009 these witnesses deposed that Pw10 got information about admission of Suman in Sundar Lal Jain Hospital. Pw10 informed this to Pw8 and went to office of Pw8 and from there Pw8 and Pw10 they went to Hospital and met Suman. Suman was conscious and she told them that when she was in kitchen Prashant came in the kitchen and set her on fire after pouring kerosene on her. To this Pw8 stated that Babita was in kitchen and she abused Suman before Prashant set her on fire, Pw10 deposed that Babita had handed over the matchstick to Prashant, with which she was set on fire.
The testimony of Pw19, however, gives a varied account. He deposed that on 05.07.2009 Suman had gone to her matrimonial house with her brother Ravi. For 06.07.2009 Pw19 deposed that he got information from hospital therefore went there and when he met Suman she asked him why she was left alone in the house of accused persons on that day. Pw19 also SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 16 of 49 SC No. 688/2018 State Vs. Babita deposed that Suman told her that in the morning when she went to kitchen Prashant came from behind and set her on fire by taking matchbox from hand of Babita and when she raised alarm they did not help her therefore she poured a bucket of water on herself but she became unconscious and when she regained consciousness she found herself in hospital.
Pw19 also deposed that when he had reached in Hospital he asked police officials if statement of Suman was recorded and he came to know from them that statement is already recorded but Suman was not admitted therefore he asked them why she is not admitted. Pw19 further deposed that on his question about admission of Suman police officials told him to ask father-in-law of Suman and on seeing Hawaldar Mehto standing outside he slapped him. Pw19 also deposed that Hawaldar Mehto told him that Suman was to be shifted to some other hospital but he was not having money therefore he deposited the money for treatment and only then Suman was admitted at 3.22 pm 3.9. PW-9 Sh. Raj Kumar is the photographer. he was called by police for taking photographs of kitchen i.e. SOC. He proved the said photographs on record as Ex.PW-9/A1 to Ex.PW-9/A3.
.
3.10. PW-11 Dr. Vijay Kumar Jha is the Medical Officer from BJRM Hospital. He proved the detailed postmortem report prepared by him as Ex.PW-11/A as per which the time since death was consistent with hospital timing of death i.e. 11.35 a.m on 15.07.2009.
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3.11. PW-12 HC Satpal is the MHC(M) P.S Ashok Vihar. He deposed that on 06.07.2009, while being posted as MHC(M) at P.S Ashok Vihar, ASI Dev Raj had deposited three pulandas in the malkhana which were deposited by him vide entry made at serial No. 4290 in register No. 19. He proved the copy of same as Ex.PW-12/A. He further deposed that on 01.09.2009 on the instructions of IO, he handed over four pulandas, out of which three pulandas were sealed with the seal of DRS and one pulanda was sealed with the seal of FMT BJRM Hospital along with sample seal, to Ct. Dharmender for depositing the same to FSL, Rohini vide R/C No. 63/21. After depositing the same, he obtained receipt on RC and same was handed over to him and he placed the same in RC book. He proved the photocopy of said R/C as Ex.PW-12/B. He further deposed that on 16.09.2009 on the instructions of IO, he handed over two pulandas sealed with the seal of SLJH and FMT BJRM Hospital and one sample seal to Ct. Subhash vide RC No. 65/21 for depositing the same in FSL, Rohini. Ct. Subhash got deposited the same in FSL, Rohini. After depositing the same, he obtained receipt on RC and same was handed over to him and he placed the same in RC book. He proved the photocopy of said R/C as Ex.PW-12/C. 3.12. PW-13 SI Matadin Meena is the Incharge, Crime Team, P.S Maurya Enclave. He deposed that on 06.07.2009, he received message through Control Room (North West) District to reach 183, Delhi Administration Flats, Nimri Colony. On that day, the official camera was not available as it was deposited for repair.
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He inspected the site i.e. kitchen of the aforesaid premises where he found that water had been used for putting out fire of the victim and there were no traces of kerosene oil. He further deposed that at site, one plastic kerosene oil can, one match stick, home light with three used matchsticks and one duppata kept on the slab of kitchen were also found. He advised the IO to seize all these articles. No chance prints were recovered from the spot. He proved his report as Ex.PW-13/A. 3.13. PW-14 Sh. Shaurya Vir Singh is the Superintendent, STF from Land & Building Department, I.P. Estate, New Delhi. He deposed that on 06.07.2009, while being posted as Executive Magistrate at Saraswati Vihar, Sub-Division, Kanjhawala, he received an information from P.S Ashok Vihar that a married woman had been admitted in Sunder Lal Jain Hospital in burnt condition in suspicious circumstances. He reached the hospital at about 4.30 to 5 p.m where he found the injured in Burns Ward of Sunder Lal Jain Hospital. After being declared fit for recording the statement by doctor and after satisfying himself that the injured is fit to give her statement, he recorded the statement of injured/victim Suman in his handwriting and obtained the right thumb impression of the victim. He proved the said statement as Ex.Pw14/A wherein he had recorded the time of recording statement as 5.30 p.m. He further deposed that after considering the statement given by victim, he directed SHO Ashok Vihar to take appropriate legal action by making endorsement on it at point encircled 'C'.
On query to Court question put to this witness qua SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 19 of 49 SC No. 688/2018 State Vs. Babita presence of other persons from the parental family or in laws family of the victim, this witness replied in negative. On further query to Court question put to this witness qua presence of any police official present in the room when he recorded statement of the victim, this witness replied in negative and stated that he had directed all the persons to go out of the room when he recorded the statement of victim.
He further deposed that on 16.07.2009, he received an information regarding the death of victim Suman in the hospital. He went to the mortuary of BJRM Hospital where the dead bod was already shifted. He proved the inquest papers to perform autopsy on the dead body of Suman as Ex.PW14/B, the brief facts written by him as Ex.PW-14/C and the form 2535 prepared by IO as Ex.PW-14/D. He further deposed that he had also recorded the identification statements of maternal uncle and father of the deceased in the said hospital Ex.PW-10/A and Ex.PW-10/B respectively. Thereafter, he directed the autopsy surgeon to hand over the dead body to Inspector Arvind Kumar after postmortem.
3.14. PW-15 HC Banar Singh is another MHC(M) from P.S Ashok Vihar. He deposed that on 06.07.2009, while being posted as MHC(M) at P.S Ashok Vihar, ASI Dev Raj had deposited three pulandas in the malkhana which were deposited by him vide entry made at serial No. 4290 in register No. 19. He proved the copy of same as Ex.PW-15/A. He further deposed that on 16.07.2009, Inspector Arvind Kumar handed over two sealed pulandas sealed with the seal of SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 20 of 49 SC No. 688/2018 State Vs. Babita FMT BJRM Hospital and one sample seal to him which were deposited in malkhana vide entry made at serial No. 4300 in register No. 19. He proved the copy of same as Ex.PW-15/B. He further deposed that on 01.09.2009, as per the directions of IO, four sealed pulandas sealed with the seal of DRS and FMT BJRM Hospital along with sample seal, were handed over to Ct. Dharmender for depositing the same to FSL, Rohini vide R/C No. 63/21/09. He made entry in that regard I register No. 19 at point X on Ex.PW-15/A. He further deposed that on 16.09.2009, he handed over two sealed pulandas sealed with the seal of SLJH and FMT BJRM Hospital along with sample seal to Ct. Subhash vide RC No. 65/21/09 for depositing the same in FSL, Rohini vide entry in register No. 19 at point Y on Ex.PW-15/A. He further deposed that on 19.07.2010, two parcels and one report was brought by Ct. Vinay Kumar which was deposited by him in the malkhana vide entry in register No. 19 at point Z on Ex.PW-15/A. He further deposed that on 21.09.2010, he handed over the result received from FSL to ASI Dev Raj for filing the same in the Court vide entry in register No. 19 at point Z on Ex.PW-15/A. He further deposed that on 11.06.2021, four sealed pulandas duly sealed with the seal of FSL with the result was deposited by Ct. Vijay Pal in the malkhana and the result was handed over to IO by him vide entry in register No. 19 at point Z2 on Ex.PW-15/A. 3.15. PW-16 Dr. Dilip Kumar is the Medical Officer from SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 21 of 49 SC No. 688/2018 State Vs. Babita Sunder Lal Jain Hospital, Delhi deputed by M.S,to depose in place of Dr. Sanjeev Kumar, Medical Officer who has since left the services of hospital. He deposed he had seen the death certificate already Ex.PW-7/A which is in the handwriting of Dr. Sanjeev Kumar bearing his signatures at point A. He also identified the handwriting and signatures of Dr. Sanjeev Kumar on the case summary Ex.PW-7/B (colly.) deposing that he and Dr. Sanjeev Kumar were working together in the same hospital and he had seen him signing and writing during the regular course of his duties.
3.16. PW-17 HC Vijay Laxmi is the DD Writer. She deposed that on 05.07.2009 at about 2.30 p.m, she received a PCR call regarding quarrel at H.No. 183, Nimri Colony, Near Government School which she reduced into writing vide DD No. 18 Ex.PW- 17/A. She further proved information of admission of Suman on 06.07.2009 at about 12.45 p.m, vide DD No. 20 Ex.PW-17/B and information of death of Suman vide DD No. 20 Ex.PW-17/C. 3.17. Pw18 SI Manohar lal proved scaled site plan Ex.Pw18/A 3.18. Pw20 HC Ompal had attended the call dated 05.07.2009 and visited the house of accused persons. He was, however, told by the owner of house that there is no quarrel. He had also inquired from in charge PCR Van who also told him that there was no quarrel therefore filed report Ex.Pw20/A. 3.19. Pw21 ASI Dev Raj is first IO. His deposition is already SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 22 of 49 SC No. 688/2018 State Vs. Babita discussed in brief facts. He proved site plan Ex.Pw21/A (wrongly written as Ex.Pw20/A), seizure memo of exhibits from the kitchen i.e. burnt matches, matches box and chunni, as Ex.Pw21/B. He also proved the arrest memo of accused Prashant as Ex.Pw21/C, personal search memo Ex.Pw21/D, disclosure statement Ex.Pw21/E and the seizure memo of plastic cane recovered at the instance of accused Prashant Ex.Pw21/F. Pw21 had also recorded statement of deceased, u/S 161 Cr.PC in the hospital an proved the same as Ex.Pw21/G. After death of Suman he had applied for post mortem of deceased vide application Ex.Pw21/H and after post mortem, seized the pulanda handed over by autopsy surgeon vide memo Ex.Pw21/J. He identified and proved the case properties, matchbox Ex.P1, Chunni Ex.P2 and the plastic can Ex.P3.
3.20. Pw22 Ct. Subash was with Pw21 and he deposed like Pw21.
3.21. Pw23 Inspector Arvind Kumar had taken the investigation after death of Suman. He proved the seizure of 5 photographs and marriage invitation card of marriage of Suman and Prashant vide memo Ex.Pw23/A. He also proved the invitation card Ex.Pw23/B and photographs mark Pw23/C-1 to Pw23/C-5. As the other accused were on anticipatory bail he also proved their formal arrest and personal search as Ex.Pw23/D to Ex.Pw23/J. 3.22. Pw24. W/HC Raj Rani is the female officer at the time of SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 23 of 49 SC No. 688/2018 State Vs. Babita formal arrest and personal search of accused Babita.
3.23. Pw25 SI Amin Chand proved the PCR Form of call dated 05.07.2009 as Ex.Pw25/A. 3.24. Pw26 R B Shukla is another witness in arrest and personal search of accused Babita.
4. After completion of prosecution evidence accused persons were examined u/S 313 Cr.PC and all the incriminating material were put to them. Accused persons denied any harassment of deceased, for any dowry demand and other allegations leveled by parents of Suman.
5. Towards the deceased accused persons claimed that they had cordial relations with Suman however, Suman used to insist Prashant to have a separate house to which Prashant was not agreeing as it was not in his capacity to have separate house. They also claimed that after Suman went to her parents house in march 2009 she did not return for four months. To the incident of burning, accused Seema and Hawaldar were not in house. Babita and Prashant, however, claimed that in order to put pressure on Prashant Babita staged the incident by setting herself on fire so that accused persons can succumb to her demands. Babita and Prashant claimed that entire story was concocted by Suman and her parents and she gave her dying declaration after consultation with he parents after which the documents in the case were manipulated.
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6. In defence evidence accused persons produced two witnesses.
6.1. Dw1 Smt. Raj Kumari is the neighbour in the same building. She deposed that she had family terms with the family of accused and had also attended the marriage and she also used to talk with deceased Suman who never complained about any problem in the matrimonial house. She further deposed that as the house of accused persons was small Suman used to insist Prashant to live separately. She also deposed that wife of Hawaldar Mehto had expired about 15-16 years ago and after her death accused Babita being had brought up accused Prashant, Sushma and accused Seema as her own children.
6.2. Dw2 Raj Kumar is brother of accused Prashant and Seema and husband of Babita. He deposed that his mother passed away on 29.01.2001 and at that time Prashant was 13-14 years old and Seema was just 9-10. he got married with Babita in the year 2002 and after that she brought up his brother and sisters. He further deposed that at the time of marriage of Prashant in 2008 there was no dowry demand and after marriage Suman was treated very affectionately. However, Suman wanted Prashant to live separately as Babita commanded more respect. He further deposed that he advised Suman that she too is respected and loved in the family and on his advised she was willing to live in joint family, however, on provocation of her parents and maternal uncles she kept insisting on living separately. Prashant was not SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 25 of 49 SC No. 688/2018 State Vs. Babita agreed therefore in the month of March 2009 she went to her house and did not return for four months. Dw2 further deposed that on 05.07.2009 Suman was brought to house by her brother and mother and on 06.09.2009 when he was in office, at about 12.30 pm Prashant called him and informed that Suman has set herself ablaze and he and Babita have taken her to Hospital. Dw2 further deposed that when he reached hospital he saw that parents and uncles of Suman were threatening Prashant to implicate him in false case and police arrested Prashant in the hospital itself. He also deposed that he met Suman and talked to her and she told him that "Prashant had not agreed on her terms, as such she had set her ablaze to cause fear in the mind of Prashant & she will falsely implicate Prashant & my family members in criminal case. I told her that it is not good to falsely implicate the family members in a case and then she told me that after her discharge from the hospital, if we would arrange a separate accommodation for her and Prashant then she will change her statement".
Dw2 further deposed that he deposited Rs. 10,000/- in hospital after withdrawing from ATM and showed his passbook entry for same. He further deposed that as Hospital authorities demanded more money, he went to his house and saw those police officials who were taking photographs. He also deposed that in the kitchen he saw a can of fortune brand in the kitchen slab and after taking photographs police left. He further deposed that he again reached hospital and deposited Rs. 15,000/-. He further deposed that from time to time his father arranged money and deposited the same for treatment of Suman. He proved the SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 26 of 49 SC No. 688/2018 State Vs. Babita Bills Ex.Dw2/A (colly 24 pages). He also deposed that he donated the blood himself and arranged donors and proved that slips regarding blood transfusion services Ex.Dw2/B (colly 8 pages) Dw2 further deposed that after the death of Suman he received the dead body as her parents refused and he performed last rites. He proved the receipt of same Ex.Dw2/C. He also deposed that his statement was recorded by IO and was assured that it will be kept on record.
7. Cw1 Sh. Radhey Shyam from Govt. Girls Sr. Sec. School proved the age of accused Seema as per record. Her date of birth as per admission register Ex.Cw1/A and Ex.Cw1/B and birth certificate Ex.Cw1/C is 15.041996.
ARGUMENTS
8. It is submitted by Ld. APP for State, assisted by SH. J B Malik Ld. Counsel for parents of deceased, that the marriage was solemnized in December 2008 and deceased left for her matrimonial home in three months and she was never taken back till she returned the day before incident. This in itself shows that accused persons did not want to keep the deceased. The witnesses have deposed specifically that deceased was subjected to dowry demand however, the main reason to eliminate the deceased was the illicit relation between accused Prashant and Babita therefore on the date of incident when it were only accused Babita and Prashant with the deceased, they tried to SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 27 of 49 SC No. 688/2018 State Vs. Babita eliminate her by setting her ablaze with kerosene. It is further submitted that presence of accused Prashant and Babita is undisputed as they took the deceased to hospital where the deceased gave her statement to executive magistrate which is free from any tutoring because if she had to make false implication she should would have not left any member of family of accused. It is also submitted that even before her statement recorded by executive magistrate, the first information about the alleged history of incident in MLC, it has been told to doctors that deceased was set on fire by her husband i.e. accused Prashant and the injuries do not show that it was a case of self immolation, like defence has claimed. It is, therefore, submitted that as the prosecution witnesses have deposed that all four accused used to torture Suman for dowry the charge u/S 498A IPC is proved against all accused persons and for 06.07.2009 as dying declaration says Prashant set Suman ablaze after pouring kerosene on her in which Babita abated by giving matches to Prashant, charge u/S 302 IPC is proved against both of them.
9. In support the prosecution has placed reliance on Mannu Raja and Another versus The State of Madhya Pradesh AIR 1976 SC 2199 and Satya Narayan Tiwari alias Jolly & Another versus State of Uttar Pradesh (2010) 13 SCC 689.
10. Per Contra, Ld. Defence Counsel contends that the prosecution has miserably failed to prove its case against any accused on any charge. It is submitted that there was no case of cruelty u/S 498A IPC and the prosecution has not brought any SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 28 of 49 SC No. 688/2018 State Vs. Babita evidence to prove that charge. To this charge it is also submitted that it was the high handedness of IO that he, in connivance with family of deceased, chargesheeted Seema as an accused who was minor till the date deceased left for her mother's house and despite having no allegations against her after her attaining majority.
11. To the incident of burning of Suman it is the contention of defence that it was done by Suman herself to pressurize the accused persons, specifically Prashant, to live separately, that is why the burn injuries are indicative of self pouring of kerosene. Ld. Defence Counsel has pointed to the fact that there was no burn injuries on head and back of deceased which belies the dying declaration as it claims that accused Prashant poured kerosene from behind. It is further submitted by Ld. Defence Counsel that the dying declaration itself is not free from taint of malice and tutoring as the same was recorded after the parents of deceased had met the deceased, therefore cannot be relied. It is further submitted that when the deceased made dying declaration she was sure that she will survive and use this case a leverage to force the accused Prashant live separately that is why she told Dw2 to agree on her demand for separate residence.
12. To the testimony of other witness defence contends that they have lied regarding the allegation of cruelty and accused Babita abating the offence as no such thing is recorded in dying declaration or in statements u/S 161 Cr.PC with which they were confronted. Therefore it is contended that the case being based on SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 29 of 49 SC No. 688/2018 State Vs. Babita circumstantial evidence and the dying declaration being tutored and motivated, no fact is proved against any accused on any charge. Alternatively, without prejudice, it is submitted that even if the dying declaration has to be accepted to be true, it does not prove the charge u/S 498A against any accused persons and u/S 302 IPC against accused Babita as declaration nowhere says Babita was present in the kitchen, rather it was Babita who put out the fire by pouring water on Suman and it was Babita who asked accused Prashant to take her to hospital. As against Prashant it is further submitted that if the dying declaration is accepted to be true it does not make out the case of murder, as the deceased did not die of burns but due to septicemia that too after 10 days. Therefore at the most it will be a case u/S 304 part II.
13. In support the defence relied on:
Irfan @ Naka Vs. State of UP 2023 INSC 758, Bengai Mandal Vs State of Bihar 2010 SCC OnLine SC 149.
Maniben Vs State of Gujrat 2009 SCC OnLine 1470, Sultan @ Munna & Anr. Vs State of UP Cri.
Appeal No. 5184 of 2021, Chirra hivraj Vs State of AP 2010 SCC OnLine 1343, and Harish Kumar Vs. State (Delhi Administration) AIR 1993 SC 973, Findings
14. The case of prosecution is based on dying declarations made by deceased Suman. The deceased survived for about 10 SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 30 of 49 SC No. 688/2018 State Vs. Babita days after getting burns and there are multiple declaration. Three of such declarations are in writing i.e. the history given in MLC, the statement recorded by Executive Magistrate Ex.Pw14/A and the statement u/s 161 Cr.PC, recorded by Pw21, Ex.Pw21/G. All these statements were recorded on 06.07.2009 itself. The oral account of dying declaration is given by Pw1, Pw2, Pw5, Pw8, Pw10, Pw19, Pw21 and Dw2. Even the statements of these prosecution witnesses, except Pw21, were recorded on 06.07.2009. There is no other statement from 06.07.2009 to 15.07.2009, either of deceased or of family members. There is no prior statement of Pw21 as he was the first IO and the second IO did not record his statement.
15. There is the contention of defence that all the prosecution witnesses who have deposed about dying declaration of Suman had met Suman prior to recording of Ex.Pw14/A, therefore, Ex.Pw14/A is not free from taint of tutoring. Hence cannot be relied. It is further the contention that the Prosecution witnesses who are relatives of deceased have made drastic improvements in their depositions from what they stated to IO, in statement u/S 161 Cr.PC, and gone on lying to the extent to show that the statement before executive magistrate was recorded prior to their meeting with the deceased. Therefore, they are not reliable witnesses.
16. Hence, before adverting to the reliability of dying declaration, in writing, I would first refer to the other facts of the case and the attending circumstances in which dying declaration SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 31 of 49 SC No. 688/2018 State Vs. Babita was recorded.
17. It is un-controverted that deceased Suman, after the marriage, stayed in her matrimonial house for around three months only. She left for her parental home and stayed there for about four months, before she came back to her matrimonial home on 05.07.2009. There was no complaint about any dowry demand or harassment or cruelty during the period Suman stayed in her matrimonial home or at her parental home. However Pw1 and Pw2 have deposed that Suman had complained about taunts and harassment by all accused persons for bringing insufficient dowry. Pw1 have also deposed that accused Hawaldar had demanded Rs. 50,000/- for starting business of Prashant. However, Pw1 and Pw2 in their statements u/S 161 Cr.PC, Ex.Pw1/DA and Ex.Pw2/DA respectively, with which they were confronted, have stated no such fact to IO. All that Pw1 and Pw2 had stated to IO is that Suman had told Pw2 that Prashant has illicit relationship with Babita and when she objected, Prashant slapped her and other accused namely Seema, Hawaldar and Babita used to abuse her. Even after her objection Prashant had not changed his behaviour and whenever she objected all the accused persons used to abuse and beat her. It is pertinent to note here that source of all the information, of Pw5, Pw8, Pw10 and Pw19, about ordeal of Suman, is Pw2 only as these witnesses have deposed that they came to know about ordeal of Suman from Pw2 only.
18. Pw2 has also deposed about an incident where she was SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 32 of 49 SC No. 688/2018 State Vs. Babita called by accused Prashant and when she went to the house of accused persons she had met Seema and at that time also Seema had complained about illicit relations of Prashant and Babita on which deceased accused Hawaldar Mehto had scolded her. Again this was complete improvement from her statement u/S 161 Cr.PC.
19. It is an admitted fact that Mother of Prashant had expired long back. No date of death of mother is brought on record but Dw2 has deposed that his mother had expired before his marriage and at the time of marriage of Dw2, Prashant was around 13-14 years old and his wife Babita had brought up both Prashant and Seema.
20. There is no evidence of Prashant having illicit relations with Babita. Given the fact that Prashant was raised by Babita they had to have special bond. There is nothing in the prosecution case to show that Suman had seen Prashant and Babita in compromising position. It is not even there in her dying declaration. Therefore, may be Suman mistook this special bond between Prashant and Babita as illicit relationship or may be there was illicit relationship. In both cases it would be an unacceptable position for accused persons to accept and live with such allegations. This appears to be the reason Prashant or other accused persons had differences with Suman and they were not inclined to bring Suman back to matrimonial home, after she left for her parents. However, as contended by defence, the fact that Suman was not happy with Babita having command over family SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 33 of 49 SC No. 688/2018 State Vs. Babita and getting more respect than others, is also admitted by Pw1 in his cross examination.
21. Coming to 05.07.2009 when Suman came to her matrimonial home with Pw5, it is the case that accused persons did not allow the Suman to enter in house. Given the fact that Suman had accused Babita and Prashant of having illicit relationship it is natural to have objection in Suman coming to that house. That by itself does not make out any offence. However, on that day the uncles and parents of Suman intervened and the matter was pacified.
22. The burning of Suman happened the next morning when only Prashant and Babita were in the house with Suman. Although the witnesses have tried to show that Prashant and Babita did not help Suman but it is undisputed fact that Suman was taken to Hospital by Prashant and Babita. MLC Ex.Pw3/A records the arrival of Suman at 12.12 pm and name of relative and friend is mentioned as Prashant and the alleged history as per MLC is "burn by husband (Prashant) by carosein (kerosene) oil". This underscore, italic and bold portion in MLC appears to be added later on as in the photocopy of the same MLC, Ex.Pw3/DA, these words are not mentioned.
23. The police got the information about the admission of Suman by Prashant, vide information Ex.Pw17/B. It was marked to Pw21. Pw21 deposed that when he inquired from Suman as to what happened she told him that she was burned with Kerosene SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 34 of 49 SC No. 688/2018 State Vs. Babita by Prashant. Pw21 in his wisdom, did not record the statement of Suman at that time and on instructions from seniors, approached the executive magistrate for recording of statement. As the SDM Model Town was on leave it was SDM Kanjhawala who had to record the statement. However, the SDM was preoccupied and could not come at that time and arrived only at 4.30 pm and recorded statement at 5.00pm. However, Pw21 did not record the statement of Suman, despite the fact that he was not sure when the SDM would arrive. Instead, he preferred to visit the house of accused. It would be highly insensitive and irresponsible behaviour on the part of Pw21 to not record the statement of Suman, unless it was sure that Suman is not going to die of those burn injuries. Suman has, in fact, not died on that day nor due to any shock/trauma on account of burn injuries. She died due to septicemia after about 9 days. It was the month of July.
24. It is however, pertinent to note here that Pw21 did not make any record in writing about his conversation with Suman and his version appears for the first time in summary of chargesheet. There is not even a rukka of Pw21 with which he could have been confronted. On the other hand Ct. Subhash Chand who had accompanied Pw21 and the only witness to seizures memo Ex.Pw21/B, arrest memo Ex.Pw21/C, disclosure statement Ex.Pw21/E and seizure memo Ex.Pw21/F was conveniently dropped by prosecution citing repetitive witness. Ct. Subhash in his statement would have contradicted Pw21 about his claim of talking to Suman after reaching hospital.
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25. To the opportunity of tutoring by parents of Suman, when Pw21 reached at hospital, first thing he did was to collect the MLC of Suman where she was fit for statement at 1.00 pm. Pw21 had left from hospital before 2.00 pm as his deposition records that the crime team had reached at spot at 2.00 pm. After getting the spot photographed from private photographer, he left for hospital as the parents of Suman had reached and they were making scene (hue and cry). Pw2 has not deposed about the time of her arrival in the Hospital and about the arrival of SDM for recording statement of Suman. When asked in cross examination Pw2 deposed that she had conversation with Suman before the SDM recorded statement on Suman. Pw2 also revealed in cross- examination that Pw8, P10 and Pw19 had also arrived at hospital and they too had conversation with Suman. The cross- examination of Pw10 also reveals that executive Magistrate had arrived in the hospital after they had conversation with Suman. The testimony of Pw14 and statement Ex.Pw14/A shows that it was recorded at 5 pm. The receipt, Ex.Pw3/DB shows that at 2.30 pm mother and aunt of Suman were handed over the jewelry of Suman. Therefore it is a fact that all the family members had arrived in the hospital before SDM and they had conversation with Suman before arrival of SDM. It also proves that Pw2 was with Suman for about 2.30 hours before recording of her statement. This brings sufficient opportunity of tutoring Suman. However, the truthfulness and reliability of dying declaration will be discussed at later stage.
26. At the spot i.e. Kitchen, crime team had made inspection SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 36 of 49 SC No. 688/2018 State Vs. Babita and Pw9 had taken photographs. The inspection report Ex.Pw13/A records that at the spot the team found a plastic can of kerosene, one matchbox, three burnt matches and one Chunni. The photographs Ex.Pw9/A1 to A3 show that there is an 'L' shaped slab having a gas stove before which there is one bowl and a half eaten banana. At the right side of of stove there is one 5 liter can having some oil. Before that can there are some Utensils and tiffin and an upside down blue bowl. Near that blue bowl there is a matchbox and before that there is Pink color flower printed chunni. There are only three photographs of spot and none of these photographs have covered the floor of kitchen, nor three burnt matchsticks.
27. Pw9 had taken these photographs with digital camera. He is a private person and called by Pw21 because the camera of crime team was out of order. When asked in cross-examination Pw9 deposed that he do not remember how many photographs were taken by him but he had handed over all the photographs to IO. He also revealed that he took only those photographs which he was asked to take by IO. The crime Scene is a kitchen. The floor of the kitchen was the place where Suman got burned. It is impossible that the IO would not have instructed Pw9 to cover the floor of kitchen. Which suggests that some of the photographs, crucial one, were deliberately not made part of chargesheet.
28. Pw21 had left from spot without collecting the crime team report and seizing the exhibits from the spot because the family SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 37 of 49 SC No. 688/2018 State Vs. Babita of Suman had arrived at hospital. Pw21 came back to spot to seize the exhibits after registration of FIR. It is the deposition of Pw21 that he along with Ct. Subhash came back at the spot where he examined crime team and collected the report Ex.Pw13/A. The time of registration of FIR is 06.00 pm which means that from 2.00 pm to 6 pm crime team members remained at the spot, therefore, there was no occasion with anyone to disturb the crime scene and the exhibits lying there.
29. However, the seizure memo Ex.Pw21/B suggests either the crime scene was disturbed or Pw21 made some manipulation. Deposition of Pw21 is that after collecting crime team report he prepared the site plan Ex.Pw21/A, after inspecting the scene and then seized all the relevant exhibits vide Ex.Pw21/B. In Ex.Pw21/B and in his deposition there is no mention of can of kerosene which is there in the report of crime scene. It cannot be an inadvertent omission because Pw21 had counted 43 un-burnt matchsticks in the matchbox. It appears that while preparing site plan Ex.Pw21/A and seizure memo Ex.Pw21/B IO left this can of kerosene purposefully to show it as recovered at the instance of accused Prashant because that kerosene can is subsequently shown to be seized from another room as a discovery on the basis of disclosure statement Ex.Pw21/E of accused Prashant. Therefore, the discovery of can of kerosene on the basis of disclosure statement of accused Prashant is prima-facie planted by Pw21.
30. Coming to the dying declarations, the law on dying SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 38 of 49 SC No. 688/2018 State Vs. Babita declaration is settled that a conviction can rest solely on the basis of dying declaration if it is found to be voluntary and truthful and which is free from any doubts. The picture that emerges on cumulative assessment of the material on record and discussed above is that Suman was not happy at her matrimonial house, either because she suspected relation with Prashant and Babita or because she was not happy with Babita having command over the family. Suman left for her parents home for taking care of ailing mother but did not return for four months. Accused persons also did not take any step to bring Suman back. Suman arrived in her matrimonial home on 05.07.2009 when she was not allowed to enter in the house till her parents and uncles intervened. Next day at 12.12 pm Suman was brought to Hospital in burnt condition where she gave alleged History of "burn by Husband 30 minutes back". On report to PS Pw21 arrived in hospital and after that the parents and uncles also met Suman and to them also she disclosed the incident and then at 5 PM Pw14 recorded Ex.Pw14/A. After FIR, Pw21 again recorded statement of Suman Ex.Pw21/G.
31. As opposed to deposition of Pw1, Pw2, Pw5, Pw8, Pw10 and Pw19 regarding the role of accused Babita in burning of Suman, there is nothing in the dying declaration Ex.Pw14/A and Ex.Pw21/A. These declarations are only against accused Prashant that he poured the kerosene oil and he lit the matchstick. Suman has not stated anything about handing matchstick by Babita to Prashant. It was a lie born out of the grudge of parents of Suman.
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32. However, to the Prashant also, the defence contends that this is a case of controlled self immolation to force accused Prashant to agree to her demands of separating from other family members.
33. The medical documents and PM report show the extent of burns on the body of Suman. As per Pw7 who treated Suman there was 47% BSA burns. Pw7 explained the burns to head and neck 5%, right upper limb 8% left upper limb 5% right lower limb 16%, left lower limb 9% and anterior trunk 4%. The treatment sheet Ex.Pw7/C contains the sketch showing burnt parts of body. The sketch shows that there were no burn injuries on the back and head of Suman. It was mostly on the hands, abdomen and legs.
34. As per dying declaration given by Suman accused Prashant came from behind and poured kerosene on her. The vessel used for kerosene is a can. The dying declaration nowhere shows if there was struggle between Prashant and Suman, while he was pouring the kerosene. Given the fact that kerosene was poured from a can and it has a narrow mouth it is natural to have some protest or struggle between the person pouring kerosene and the persons on whom it is poured. Unless Suman stood still daring Prashant to do what he is about to do, it is not possible to first empty the kerosene can and light the matchstick. The fact that the Chunni of Suman was kept at the slab, which as per Pw21 was also having smell of kerosene, shows that the Chunni was removed after pouring the kerosene and before lighting the SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 40 of 49 SC No. 688/2018 State Vs. Babita match. If all this was done by Prashant it should have been part of statement Ex.Pw14/A or Ex.Pw21/G. The dying declaration therefore appears to be lacking in material particulars. It would have been acceptable if Suman had died of trauma consequent to burn injuries and her statement was recorded when she was running short of breath. However, not just the medical record but the conduct of Pw21 shows that the burn injuries on Suman were not so grave to cause danger to her life therefore her statement was not recorded at the earliest by Pw21. This also shows that when Suman was brought in hospital and when she gave statement to Pw14 she was not just not expecting any danger to her life but also sure of her coming out well.
35. Suman was not welcome at her matrimonial home and nobody called her for 4 months. Suman went to her matrimonial home and the next day she got burned with kerosene oil. If Prashant had to kill her by pouring kerosene oil there was no reason for him to do it in presence of Babita. He could have waited for Babita to leave or made her leave for any reason. She was in the kitchen and her chunni was removed after pouring kerosene. There was no struggle despite the fact that kerosene was poured from a can, not splashed from big mouthed utensil like jug. Kerosene was not poured on the head and back of Suman but mostly on hands, legs, abdomen and chest. This all suggest that kerosene was poured by Suman herself in order to pressurize accused Prashant, as claimed by defence and deposed by DW-2.
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36. In view of the discussion above held, prosecution failed to prove its case beyond reasonable doubt against all the accused persons. Therefore, all accused persons are acquitted of the charges levelled against them.
Digitally signed by VIKRAMVIKRAM Date: 2024.02.14 17:14:57 +0530 Date : 14.02.2024 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/14.02.2024 Dictated on : 14.02.2024 Digitally signed by VIKRAM Transcribed on : 14.02.2024 VIKRAM Date: 2024.02.14 checked on : 14.02.2024 17:15:03 +0530 Signed on : 14.02.2024 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/14.02.2024 SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 42 of 49 SC No. 688/2018 State Vs. Babita Annexure 'A' List of Prosecution Witnesses S.No. PW No. Name of Witness Details of Witness 1. PW-1 Sh. Ganika Mehto Father of deceased 2. PW-2 Smt. Meena Devi Mother of deceased 3. PW-3 Dr. Alam CMO, Sunder Lal Jain Hospital, Ashok Vihar 4. PW-4 SI Surjit Singh Duty officer 5. PW-5 Sh. Vijay Brother of deceased 6. PW-6 Sh. K.G. Goswami Principal, Shahid Amirchand Govt. Sarvodaya Vidhyalya 7. PW-7 Dr. Richie Gupta Sr. Consultant, Fortis Hospital 8. PW-8 Sh. Pooran Chand Uncle of deceased Mehto 9. PW-9 Sh. Raj Kumar Photographer 10. PW-10 Sh. Narender Mehto Maternal uncle of deceased 11. PW-11 Dr. Vijay Kumar Jha MO, BJRM Hospital 12. PW-12 HC Satpal MHCM 13. PW-13 SI Mataddin Meena Incharge Cime Team 14. PW-14 Sh. Shaurya Vir Singh Superintendent, STF, Land & Building Department (Executive Magistrate at Saraswati Vihar, Sub Division in Kanjhawala on the 06.07.2009) 15. PW-15 HC Banar Singh MHCM 16. PW-16 Dr. Dilip Kumar MO, Sunder Lal Jain SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 43 of 49 SC No. 688/2018 State Vs. Babita Hospital, Delhi 17. PW-17 HC Vijay Laxmi DD writer 18. PW-18 SI Manohar Lal Draftsman 19. PW-19 Sh. Ishwar Kumar Maternal uncle of deceased 20. PW-20 HC Om Pal Singh Police witness 21. PW-21 ASI Dev Raj 1st IO 22. PW-22 Ct. Subhash Police witness 23. PW-23 Insp. Arvind Kumar Taken investigation after death of Suman 24. PW-24 W/HC Rajrani Police witness 25. PW-25 SI Amin Chand Proved PCR Form 26. PW-26 Sh. R.B. Shukla Witness in arrest and personal search of accused Babita List of defence Witnesses 1. DW-1 Rajkumari Public witness/neighbour 2. Dw-2 Raj Kumar Brother of accused Prashant and Seema and husband of accused Babita Digitally signed by VIKRAM VIKRAM Date: 2024.02.14 17:15:13 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/14.02.2024 SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 44 of 49 SC No. 688/2018 State Vs. Babita Annexure 'B' List of Exhibits S.No. Exhibit No. Details of Remarks Documents 1. Ex. PW1/A Dead body handing over memo 2. Ex. PW 1/B Statement of PW1 3. Ex. PW 1/DA Statement of witness u/S 161 Cr.P.C. 4. Ex. PW 2/DA Statement of witness u/S 161 Cr.P.C. 5. Ex. PW 3/A MLC of deceased 6. Ex. PW 3/B Seizure memo of pullanda containing burnt clothes of deceased, handed over by doctor 7. Ex. PW 3/DA Carbon copy of & PW 3/DB MLC and slip attached therewith 8. Ex. PW 4/A Endorsement on rukka 9. Ex. PW 4/B Copy of FIR 10. Mark PW Statement of witness 5/DX u/S 161 Cr.P.C. dated 06.07.2009 11. Ex. PW 6/A Reply of Principal 12. Ex. PW 6/B Attendance details of Hawaldar Mahto 13. Ex. PW 7/A Death certificate of deceased 14. Ex. PW 7/B Death summary 15. Ex. PW 7/C Treatment sheets SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 45 of 49 SC No. 688/2018 State Vs. Babita 16. Ex. PW 8/DA Statement of witness u/S 161 Cr.P.C. 17. Ex. PW 9/A1 Photographs of the to PW 9/A3 spot 18. Ex. PW 10/A Statement of witness 19. Ex.PW 10/DA Statement of witness under Section 161 Cr.P.C. 20. Ex. PW 11/A Postmortem report 21. Ex. PW 12/A Entry no. 4290 in register no. 19 22. Ex. PW 12/B RC No. 63/21 23. Ex. PW 12/C RC No. 65/21 24. Ex. PW 13/A Crime team report 25. Ex. Statement of witness PW13/DA under Section 161 Cr.P.C. 26. Ex. PW 14/A Statement of deceased recorded by Executive Magistrate 27. Ex. PW14/B Request to perform autopsy on the dead body 28. Ex. PW 14/C Brief facts written by Pw-14 29. Ex. PW 14/D Form 2535 30. Ex. PW15/A Entry no. 4290 in register no. 19 31. Ex. PW 15/B Entry no. 4300 in register no. 19 32. Ex. PW 17/A DD No. 18 33. Ex. PW 17/B DD No. 20 dated 06.07.2009 34. Ex. PW 17/C DD No. 20 dated SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 46 of 49 SC No. 688/2018 State Vs. Babita 15.07.2009 35. Ex. PW 18/A Scaled site plan 36. Ex. PW Statement of witness 19/DA under Section 161 Cr.P.C. 37. Ex. PW 20/A Report of Pw-20
38. Ex. PW 21/A Site plan of scene of Wrongly mentioned occurrence as Ex. PW 20/A in the testimony of witness
39. Ex. PW 21/B Seizure memo of burnt sticks, match box and chunni
40. Ex. PW 21/C Arrest memo of accused Prashant
41. Ex. PW 21/D Personal search memo of accused Prashant
42. Ex. PW 21/E Disclosure statement of accused Prashant
43. Ex. PW 21/F Seizure memo of cane
44. Ex. PW 21/G Statement of injured Suman recorded under Section 161 Cr.P.C.
45. Ex. PW 21/H Application for preservation of dead body
46. Ex. PW 21/J Memo of two sealed pullandas with one sample seal of FMT BJRM Hospital
47. Ex. PW 23/A Seizure memo of five photographs and invitation card of SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 47 of 49 SC No. 688/2018 State Vs. Babita marriage
48. Ex. PW 23/B Marriage card
49. Ex. PW 23/C1 Five photographs to C5
50. Ex. PW 23/D Arrest memo of accused Seema
51. Ex. PW 23/E Personal search memo of accused Seema
52. Ex. PW 23/F Arrest memo of accused Hawaldar Mehto
53. Ex. PW 23/G Personal search memo of accused Hawaldar Mehto
54. Ex. PW 23/H Arrest memo of accused Babita
55. Ex. PW23/J Personal search memo of accused Babita
56. Ex. PW 25/A Photocopy of PCR form
57. Ex. CW 1/A Copy of relevant School record of page of admission Seema register
58. Ex. CW 1/B Copy of admission School record of form Seema
59. Ex. CW 1/C Copy of birth certificate of Seema
60. Ex. DW 2/A Prescriptions of (colly) medicines
61. Ex. DW 2/B Proof of payment made for blood transfusion services
62. Ex. DW 2/C Receipt of cremation ground SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 48 of 49 SC No. 688/2018 State Vs. Babita
63. Ex. P-1 One matchbox having three burnt and 43 unburnt match sticks
64. Ex. P-2 One multicolored chunni
65. Ex. P-3 One plastic cane Digitally signed by VIKRAM VIKRAM Date: 2024.02.14 17:15:34 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/14.02.2024 SC No. 52337/2016 State Vs. Prashant & Ors. Page no. 49 of 49 SC No. 688/2018 State Vs. Babita