- (1.) THIS Criminal Appeal has been preferred against the judgment and order dated 3.5.2007 passed by the High Court of Delhi in Criminal Appeal No. 255 of 2004 by which the High Court has reversed the judgment and order of the trial Court dated 4.3.2004 in FIR No. 280 of 2002 by which the respondent stood convicted under the provisions of Section 302 of Indian Penal Code, 1860 (hereinafter referred as 'IPC ') and had been sentenced to suffer rigorous imprisonment for life with fine.
(2.) FACTS and circumstances giving rise to this appeal are that: A. In the intervening night between 19/20.5.2002, Babita (now deceased) was admitted in Safdarjung Hospital with burn injuries about which an intimation was received in Police Station. Nirbhay Kumar, S.I., was assigned the duty of investigation. He went to Safdarjung Hospital accompanied by Constable Yogesh. He after completing the formalities and getting the permission from the doctor recorded Babita 's statement and sent to police station for registration of the case. In view thereof an FIR was, thus, recorded for the offence under Sections 498-A and 307, IPC. In her statement, Babita stated that she was married to the respondent Jugesh Kumar and it was a love marriage. After sometime of the marriage, the couple started quarrelling on petty matters and the respondent-husband used to make dowry demands and used to tell her to pressurise her parents for giving a television, fridge etc. Her husband also pressurised her to live in his parents ' house which had also been the reason for quarrel. On 19.5.2002, her husband taunted her for not bringing dowry and then picked up a kerosene stove from the kitchen and poured kerosene on her and set her afire. She then shouted on which some neighbours came there, her husband also started pretending as he was trying to extinguish the fire and thereafter, he took her to hospital and got her admitted there. B. Babita 's statement was also recorded by the Executive Magistrate, wherein a similar version was given by her. Respondent-accused was arrested on 20.5.2002 itself. He was medically examined and found having burn injuries in the fingers of the left hand. Babita, injured, expired in the hospital after seven days on 27.5.2002. Post-mortem was conducted on her body and finally investigations led to the filing of the chargesheet against the respondent-accused under Sections 498A and 302, IPC. C. The respondent-husband was put to trial for the offences under Sections 498-A and 302, IPC with alternative charge under Section 304-B, IPC. D. The prosecution examined 13 witnesses, however, principal among them being Chandra Kumari (PW.1) and Vinod Kumar (PW.2), the parents of the deceased. According to them, they did not have any relationship with the deceased after she got love marriage against their wishes. However, they made it clear that no demand had ever been made for dowry either by the respondent-accused or Babita, deceased nor Babita had informed them about the demand of dowry by respondent-accused. E. Surendra Khurana (PW.3), the landlord of the parties, deposed that immediately after she caught fire, he reached the place of occurrence and found that accused-respondent was trying to extinguish the fire. Babita, deceased, had told him that she was cooking upon the LPG stove and, thus, got burnt. F. Dr. Sumit Malhotra, (PW.13), attended Babita, deceased, in the hospital, deposed that she had told him that while cooking she caught fire from the LPG stove and got burnt. G. SI Nirbhay Kumar, (PW.11), Investigating Officer, has recorded her dying declaration on 20.5.2002, wherein she had stated to him that her husband-respondent had been asking for dowry. The accused had been asking her to pressurise her parents to give T.V., Fridge etc. He had been ill-treating her and on the fateful day, he first made some taunt for not bring the dowry and then poured kerosene from stove on her and put the fire. Thus, she was burnt. H. A.K. Singh, Sub-Divisional Magistrate (PW.6), also recorded the statement on 20.5.2002 at 6.00 p.m. wherein she stated that her husband put kerosene on her and put on fire. I. The respondent-accused when examined under Section 303, Cr.P.C., not only denied the allegations made by the prosecution rather made a statement in the Court that Nirbhay Kumar, (PW.11), I.O., had put a demand of money as bribe and as he did not give that is why he had falsely been enroped in the case. In support of the defence, the accused examined two witnesses, his brother (DW.2) and his employee (DW.1), who made it clear that the Investigating Officer had been asking for bribe to the tune of Rs.20-25,000/. J. After completing the formalities and conclusion of the trial, the trial Courtvide judgment and order dated 4.3.2004 convicted respondent under Section 302, IPC though acquitted under Sections 498-A/304-B, IPC and awarded the imprisonment for life and a fine of Rs. 5,000/- in default to undergo simple imprisonment for three months. K. Aggrieved, the respondent preferred Criminal Appeal No. 255 of 2004 before the High Court, which has been allowed by the High Court observing mainly that Surendra Khurana (PW.3) and Dr. Sumit Malhotra, (PW.13) who had an opportunity to talk to Babita, deceased, immediately after the incident, depicted a different picture as stated by Babita, deceased. The statement of pouring the kerosene oil and putting on fire had been found only in the dying declaration recorded by the I.O. and SDM. L. After reappreciating the entire evidence on record, the High Court concluded the inferences as under: (a) There were no independent witnesses for the recovery of the kerosene stove and bottle. (b) The I.O. has admitted in cross-examination that in the case diary no mention has been made by him that there was any smell of kerosene on the spot though in the testimony before the Court he had improved his version by saying that there was smell of kerosene on the spot. (c) He states that the kerosene stove was sent to the FSL Laboratory but not-returned. (d) In the so called dying declaration made before the I.O. there is no endorsement of the fitness of the deceased. (e) Even the dying declaration made to the SDM does not have an endorsement on the declaration about the fitness of the deceased but such declaration is on a separate loose sheet of paper. (f) Contrary to the established police procedure, no information was given to the Crime Branch for proceeding to record the scene of incident by the I.O. (g) There is crucial overwriting about the time on the Report dated 20th May 2002 sent by the Investigating Officer in which 5.30 p.m. was overwritten as 5.30 a.m. (h) There is also overwriting about the fitness certificate given by the CMO, Burn Ward, Safdarjung Hospital, New Delhi, and the original certification which showed that the deceased was fit to make statement at 11.00 a.m. has been altered by the superimposition of 'NO ' so as to support the prosecution case that when the SDM first came on the forenoon of 20 th May, 2002 at 11.05 a.m. when the deceased Babita was not fit to make a statement as per medical certification and again visited at 6 p.m. (i) As compared to meticulously worded and comprehensive and detailed declaration to the I.O. the SDM was given a two line laconic statement by the deceased. (j) The declarations to the police and the SDM about dowry demand being the motive of the murder of Babita, are falsified by the statements of the parents of Babita who stayed 5-6 houses away from the deceased 's house to the effect that there was neither any dowry demand and nor any suspicious circumstances regarding Babita 's death. (k) Even though the photograph of the place of the incident produced by the prosecution clearly shows that there is a gas cylinder and a gas stove, the Investigating Officer SI Nirbhay Kumar has blatantly and persistently stated in his testimony that he did not find either a gas cylinder or a gas stove on the spot. This clearly shows that the Investigating Officer was bent upon twisting the truth so as to establish the presence of a kerosene stove and the absence of a gas stove and cylinder. We were taken by Shri Ashok Bhan, learned senior Counsel appearing for the appellant-State and Dr. (Mrs.) Vipin Gupta, learned advocate appearing for the respondent, through the impugned judgment and order as well as the evidence on record. We do not find any cogent reason to interfere with the aforesaid findings.
(3.) THE High Court has also issued directions to initiate the disciplinary proceedings against Shri Nirbhay Kumar, (PW.11), I.O. as he is not a party before us, it is not appropriate for us to make any remark in that regard. However, considering the aforesaid facts and circumstances and taking into consideration the parameters laid down by this Court time and again for interfering with the order against acquittal, we are of the considered opinion that the instant case does not warrant any interference. The appeal lacks merit and is, accordingly, dismissed. Appeal dismissed.;