KAMLA PRASAD Vs. STATE (NCT) OF DELHI

JUDGEMENT

(1.) A woman married for 27 years with six children was burnt on 30th April 2006 at about 9:20 PM. DD No.18 was received at PP Metro Vihar regarding quarrel and the fact that one lady had got burnt. The information was received from the PCR which was marked to HC Anil Kumar who along with Ct.Phool Kumar informed SI Omvir Singh. HC Anil Kumar and Ct.Phool Kumar reached the spot i.e. H.No.A-1288, Phase II, Metro Vihar, and in one room of the said house, one empty plastic kerosene oil can was lying and one match stick was also lying on the floor. It was also made known that the PCR van had removed the deceased to the hospital. Thereafter, SI Omvir Singh, leaving HC Anil Kumar at the spot, along with Ct.Phool Kumar reached JPN Hospital where he obtained MLC of the injured Smt.Savitri Devi who had been opined fit for statement by the concerned doctor. The following statement was made by Smt.Savitri Devi:-

(2.) ON the basis of the statement, rukka was written by SI Omvir Singh to PS Narela for registration of the FIR. On 1st May, 2006 after registration of the FIR, appellant Kamla Prasad was arrested. Smt.Savitri Devi succumbed to her injuries and expired on 8th May 2006. Post mortem was conducted on the deceased on 10th May 2006. Charge-sheet under Section 302 IPC was framed. 18 witnesses were examined by the prosecution.

(3.) COUNSEL for the appellant contends that the impugned judgment of conviction and order on sentence are not sustainable and the apellant has been falsely implicated in the case by the IO to solve the case. It is contended that there are innumerable glaring contradictions and inconsistencies in the statements made by the witnesses. According to the appellant, the judgment has been given on the basis of guesswork and the evidence is fabricated by the prosecution. It is submitted that the two public witnesses Smt.Raja Bai PW-2 and Smt.Bala PW-9 did not support the case of the prosecution and the witnesses turned hostile as the case was fabricated against the appellant by the prosecution. It is further contended that there is no eye-witness, the deceased first poured kerosene oil on herself while setting herself on fire and falsely implicated her husband who is innocent. At the time Savitri Devi poured kerosene oil on her body, she miscalculated that the burns would be serious and would lead to her death. It is contended that the deposition of Savitri Devi was not coherent and cogent as she was suffering with approximately 85% burns and she was not conscious nor was she able to speak either to the IO Inspector Omvir Singh or to Dr.Dev Kumar Borgdhaia who has stated in the MLC "the patient herself stated to me that her husband poured kerosene oil on her body and put her on fire". It is contended that the Trial Court has failed to appreciate the statement of the appellant recorded under Section 313 Cr.P.C. that he has been falsely implicated in the case and he was not present at his house at the time of the incident as he had gone to answer the call of the nature and when he came back a crowd had gathered near his house and later on he was wrongly shown to have been arrested from Metro Vihar area. It is urged before this Court that no statement was given by the deceased Smt.Savitri Devi as she was not in a condition to make such a statement and the IO has concocted a false statement against the appellant to solve the case. It is also contended that the Trial Court has wrongly relied upon the dying declaration of the deceased. The Trial Court did not consider that Smt.Savitri Devi died 8 days after the incident. It is submitted that on the one hand the Trial Court has justified the conviction on the ground that people who fear God are unlikely to lie when they believe death is imminent, and on the other hand the victim died after 8 days of the incident and she has implicated her husband to teach him a lesson on account of a fight which took place a few days ago. Counsel for the appellant has also pointed out that the patient was examined at 10:45 PM and doctor had miscalculated the percentage of burns as 50-60% which is evident from the fact that in the post mortem report the burns were shown to be 85%. It is also contended that the Trial Court has given attention to the fact that the GCS of the patient was 15/15 when the statement of the deceased was recorded but it is not mentioned that the GCS of the patient was checked at 1:15 AM on 1.5.2006 when the patient was declared fit for statement, especially when Dr.Dev Kumar in his cross examination has stated that the GCS scale keeps on changing from time to time. Counsel submits that although a dying declaration is admissible under Section 32 of the Evidence Act but since it is a statement not on oath which cannot be tested by cross-examination the Courts have to apply the strictest scrutiny before acting upon it. Counsel submits that the Court has to ensure and satisfy itself that a concocted story to implicate an innocent person is not made nor the statement should be as a result of tutoring, prompting, and on account of bitterness to a relationship or a product of his/her imagination.