MUNNA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The appellant seeks to challenge the judgment dated 06.09.2004 of the Additional Sessions Judge, Delhi in sessions case No.98/2001 arising out of FIR No.175/2000 P.S. Sangam Vihar whereby the learned Judge has held the appellant guilty under Section 302 IPC. Further by his order dated 13th September, 2004 the trial court has sentenced the appellant to imprisonment for life together with fine of Rs.10,000/- and in default thereof further simple imprisonment for six months. The facts of the case as have been noted by the Additional Sessions Judge in his judgment are as follows:-

(2.) Along with the appellant his mother, father and his sister were also tried under Sections 304B/498A/34 IPC. An alternative charge under Sections 302/34 IPC was also framed against the four accused persons. Relying upon two dying declarations of the deceased Parveen, wife of the present appellant, the learned trial court convicted the appellant under Section 302 IPC while his mother and sister were acquitted. His father Mehfooz had died during the trial and so proceedings against him stood abetted. Charges under Sections 304B/498A IPC were not found to have been established at all.

(3.) It is contended by the counsel for the appellant that PW-2 Ms. Naseem, sister of the deceased, cannot be relied upon since there are contradictions in her testimony regarding the deceased having made a statement to this witness and also about the fact that she spoke to the deceased. He contends that the only evidence is that of the deceased herself in the form of two dying declarations. In the first statement made to the doctor and as is recorded in the MLC the deceased had stated that she was set ablaze by her husband and her in-laws but in the statement made by the deceased to the SDM she did not in so many words name her in-laws also to be the perpetrators of the crime along with her husband but chose to implicate only her husband. He submits that this the two statements of the deceased are thus at variance and, therefore, neither the dying declaration made before the SDM by the deceased nor the one made before the doctor should be taken into consideration. He goes on to contend that in the absence of a credible dying declaration there is nothing available to the court to hold the appellant guilty under Section 302 IPC for which offence the appellant had not been charged also since the charge was under Section 302 read with Section 34 IPC and other accused have been acquitted the appellant could not be convicted alone under Section 302 IPC simplicitor.