Decided on August 06,2007



R.S.SODHI, J. - (1.) Criminal Appeal No.946 of 2002 is directed against the judgment and order of the Additional Sessions Judge, New Delhi in Sessions Case No.86 of 2000, arising out of F.I.R. No.156 of 2000, registered at Police Station Sangam Vihar, whereby learned judge vide his judgment dated 30.10.2002 has held the appellant, Dalip Kumar, guilty for offence under Sections 302/34 IPC while acquitting Sanjay Kumar, co-accused, of the said offence. Further vide his separate order dated 31.10.2002, he has sentenced the appellant to undergo imprisonment for life together with fine of Rs.2,000/- and in default of payment of fine, simple imprisonment for three months.
(2.) Brief facts of the case as have been noted by the learned Additional Sessions Judge in his judgment under challenge are as follows :- "....that the deceased Shabnam was housewife and on 24.4.00, she had an altercation with Deepu and one more boy aged about 13 years and both of them had threatened her that they would not spare her life. At about 11 p.m., she was waiting outside for arrival of her husband in a gali as her husband became late. At the same time, that other boy caught hold of her and Deepu took a bottle of kerosene oil out of his pocket and poured the oil over her and other person ignited fire with match stick and both of them ran away. She cried a lot and fell down. After sometime, her husband and son also came there. PCR personnel took her and admitted her in the hospital. Both the aforesaid persons had acted in the aforesaid manner with intention to kill her. She requested to take action against them. She put her right hand impression on her statement. On the basis of the above statement, a case under Section 307 read with Section 34 IPC was got registered against both the accused. Later on victim succumbed to injuries and the offence was converted from Section 307 to Section 302 IPC. On completion of investigation, challan under Section 302 read with Section 34 IPC was laid in the court against the accused persons."
(3.) Prosecution in order to bring home its case, examined as many as 15 witnesses. The trial court has analyzed the witnesses as follows :- "PW-1, Dr. Alxender, Safdarjung Hospital, New Delhi deposed to have conducted postmortem on the body of the deceased Smt. Sabnam on 27.4.2000 and proved his report Ex. PW1/A opining that the death in this case was due to shock caused by ante-mortem thermal burn injuries. PW-2, Smt. Laxmi and PW-3, Budh Ram, are the neighbourers of the deceased as well as of the accused but denied to have any knowledge about this case. They did not support the case of the prosecution and were cross-examined by the prosecution. PW-4, Shakeel Ahmed, brother of the deceased identified and received the dead body of the deceased vide Ex. PW 4/A. PW-5, Shabir, husband of the deceased deposed to have taken the injured to the hospital and showed his ignorance about the incident. He too did not support the case of the prosecution and was cross-examined. PW-6, Chhotu, son of the deceased is a child witness. His statement was recorded in question and answer from. His intelligence was attested by my ld. predecessor by questioning him and on the basis of his opinion that PW-6 did not understand the sanctity of oath. Statement was recorded without oath. He stated that when his mummy was alive, he found a purse containing a sum of Rs.400/- and he along with his companion spent that money. He thereafter came to his house. Sanjay and Deepu came outside his house and levelled allegation of theft against him. He identified both the accused persons " Sanjay and Deepu and he further stated that both of them had settled the matter with him and he did not know whether his mummy had quarrel with Sanjay or Deepu or whether accused Sanjay or Deepu had threatened to kill his mummy. He was cross-examined by addl. PP for the State but nothing material came out during his cross-examination. PW-7, HC Ram Rattan deposed to have recorded FIR, the copy of which is Ex. PW 7/B on the basis of rukka Ex. PW 7/A received from Const. Kishore on 26.4.2000 at about 2.40 a.m. PW-8, SI Mahesh Kumar, draftsman deposed to have prepared scaled site plan Ex. PW 8/A on the basis of rough notes and measurements taken on 13.6.2000. PW-9, Yad Ram, neighbourer and resident of the locality showed ignorance about the facts of this case and was cross-examined. He denied to have seen the accused in darkness or saw the accused running when Sabnam was in flames. PW- 10, ASI Shanti deposed to have recorded DD No.6A on receipt of information from Safdarjung Hospital about death of Sabnam and proved the copy thereof as Ex. PW 6/A and DD entry Ex. PW 10/B. PW-11, Const. Kishore Singh, deposed that he visited the spot along with IO Girish Kumar in intervening night of 25th and 26th April, 2000 and a lady in a burnt condition was found and she was sent to Safdarjung Hospital in PCR Van. IO is stated to have recorded the statement of the injured and thereafter he took rukka to the police station and got this case registered and brought the copy of the FIR to the spot. Thereafter, they came back to the police station and recorded the statement of the witnesses. PW-12, Dr. Aditya Aggarwal, deposed to have medically examined Sabnam on 26.4.2000 at about 1.20 a.m. and found that she had suffered deep burns over whole of her body amounting to almost 100 % thermal burns and the burns were dangerous in nature leading to loss of life and proved his report Ex. PW 12/A. He also deposed that according to the patient she suffered burns when a person called Deepu and another person, name not known, poured kerosene oil over her and set her on fire. He recorded statement of the patient himself by way of alleged history in MLC Ex. PW 12/A. PW-14, Dr. Rajat Dev, the then Jr. Resident doctor, Safdarjung Hospital, deposed to have given his endorsement Ex. PW 14/A that he found patient Sabnam fit for recording of statement upon an application moved by the IO. In his cross-examination, he admitted that he had not prepared any record with regard to mental and physical condition of the patient Shabnam. His duty was just to assist the senior doctors in the hospital. He was not at all concerned with the treatment being given to the deceased Shabnam. He admitted that on Ex. PW 14/A, he had not mentioned the exact time at which he had made the endorsement that the patient is fit for giving statement. He further admitted in his cross-examination that her statement was not recorded in his presence or that he had not attested any statement which would have been recorded by the IO in this case. PW-15, SI Girish Kumar, is the IO who supported the prosecution case in entirety and proved documents Ex. PW 15/A, application for recording the statement of the injured, Ex. PW 15/B, her statement, Ex. PW 15/3 rukka, Ex. PW 15/D site plan, inquest proceedings Ex. PW 15/E and F, application Ex. PW 15/G for conducting postmortem, arrest memos Ex. PW 11/A and B and the personal search memos Ex. PW 11/C and D. He also recorded the statements of the witnesses and got conducted the postmortem on the dead body which was handed over to the husband and brother of the deceased. He arrested the accused persons. On completion of investigation, he prepared the challan against the accused person and laid the same through SHO in the court.";

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