Delhi District Court
State vs . Krishna on 21 February, 2014
State Vs. Krishna
FIR NO: 720/06
fIN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE-01, DWARKA COURTS, NEW DELHI
In the matter of :--
SC No. : 06/12
FIR No. : 720/06
Police : Najafgarh
Station
Under : u/s 498A/304B/302/34
Section and u/s 174A of Indian
Penal Code, 1860.
State
Versus
Krishna
W/o Dilbagh Singh
R/o H.No. RZ-200, Gopal Nagar
Phase-II, Near Baba Amarnath Mandir
Surakhpur Road
Najafgarh
New Delhi. ... Accused
Sessions Case : 03.08.2012
received by
way of transfer
on
Reserved for : 30.01.2014
judgment on
Judgment : 21.02.2014
announced on
FIR NO: 720/06 1/46
State Vs. Krishna
FIR NO: 720/06
JUDGMENT
1. The case brought up by the prosecution is that on 23.07.2006 at around 3.40 p.m., DD No. 24A was recorded in PS Najafgarh regarding a fire in Gali no. 3, behind Lal Kothi, Surakhpur Road, Near Baba Amar Nath Mandir, Gopal Nagar, Delhi. Said DD entry was marked to SI Amarpal Singh, who reached at the spot alongwith HC Ravinder. At the spot, a large crowd had gathered and from the inquiry, it came into their knowledge that in house no. RZ-200, Gopal Nagar, Phase II near Lal Kothi, Surakh Pur Road, Najafgarh, New Delhi, a lady by the name of Praveen Kumari wife of Pardeep Kumar had died due to burns in the bathroom and was taken to the RTRM Hospital by her father in law Dilbagh Singh. At the spot, SI Amarpal had observed burnt clothes, one plastic can having kerosene like material, burnt slippers and a burnt washing machine and even inside portion of the bathroom was found burnt. No eye witness was found at the spot. In the meanwhile, constable Ram Niwas and Head Constable Baljeet also reached at the spot. Both these constables were left at the crime scene for its protection and SI Amarpal alongwith HC Ravinder reached RTRM Hospital where deceased Praveen Kumari was declared brought dead in casualty. Since SI Amarpal also got the information that deceased was married on 04.05.2004 and her marriage had only lasted for two years, therefore, he had FIR NO: 720/06 2/46 State Vs. Krishna FIR NO: 720/06 informed the senior police officials and the area SDM on telephone. SI Amarpal also noticed that body of deceased was fully burnt and even a cloth was visible in her mouth. Thereafter, SDM Najafgarh i.e.Sh.S.S.Parihar had reached at the spot and search for any eye witness was made but none was available. Thereafter, parents of deceased were informed and SI Amarpal alongwith SDM, Najafgarh reached at the spot where crime team was already present. Thereafter, in the presence of crime team, SDM, Najafgarh had inspected the spot and evidence found at the spot was sealed.
2. During inquest proceedings, SDM had recorded statement of father, mother and brother of deceased and has also got post mortem of the deceased conducted.
3. In the statement made by father of deceased to the SDM, he had alleged that deceased was being tortured for the purpose of dowry by her in laws. Thereafter, based upon the statement of parents of deceased and the MLC of deceased, SDM had ordered for registration of FIR and accordingly, FIR for the offence u/s 302/304B/498A/34 IPC was registered at PS Najafgarh and the matter was taken up for investigation.
4. During the course of investigation, statement of witnesses was recorded and the post mortem report of deceased was obtained. In the post mortem report, doctor had opined the "cause of death to be asphyxia with super added shock following gagging with ante mortem burn injuries."
FIR NO: 720/06 3/46State Vs. Krishna FIR NO: 720/06
5. Accused Dilbagh Singh, father of deceased, Pardeep Kumar, husband of deceased and Sandeep, brother in law of deceased were charge sheeted. However, the present accused i.e.Krishna could not be arrested at that point of time and investigation qua present accused was kept pending.
6. Thereafter, in the trial conducted of accused Dilbagh Singh, Pardeep Kumar and Sandeep, all the three were acquitted for the offence u/.s 498A/304B/34 IPC but they were found guilty of having committed offence u/s 302/34 IPC vide judgment of the Ld.Predecessor of this court dated 18.09.2009.
7. Regarding the present accused, proceedings u/s 82-83 Cr.P.C.were got conducted and thereafter, she was declared Proclaimed Offender vide order dated 22.12.2006 of the Ld.Magistrate.
8. On 23.05.2011, present accused had surrendered before the ld.trial court and was sent to judicial custody.
9. Thereafter, further investigation with regard to present accused was got conducted and thereafter, a supplementary charge sheet was filed for the offence u/s 302/304B/498A/34 IPC alongwith offence u/s 174A IPC against the present accused.
10.After filing of supplementary charge sheet against present accused, the present case was committed to the court of Sessions as the case was exclusively triable by it.
11.The ld.Predecessor of this court after hearing the arguments on the point of charge, had prima facie found material on record to FIR NO: 720/06 4/46 State Vs. Krishna FIR NO: 720/06 frame charge against present accused for the offence u/s 498A/304B/34 IPC and in the alternative u/s 302/34 IPC and for having committed offence u/s 174A IPC. The present accused pleaded not guilty and had claimed trial.
12.At trial, prosecution has examined in all 23 witnesses.
13.PW1 is Sh.Dilawar Singh. PW1 happens to be the father of deceased. In his examination in chief, he has adopted his earlier examination in chief recorded in the trial of convicts Dilbagh Singh, Pardeep Kumar and Sandeep recorded on 24.09.2007. In his examination in chief, PW1 Sh.Dilawar Singh has deposed that deceased was married to accused Pardeep Kumar on 04.05.2004 and initially after the marriage, she was kept properly but thereafter, she was being harassed by her in- laws on account of dowry demands. PW1 Sh.Dilawar Singh had further deposed generally about the expectations of huge dowry by accused persons and giving of taunts by accused persons for failure to bring dowry. PW1 also deposed that accused persons used to demand ear rings for accused Krishna, gold chain for sister in law Babita, computer for brother in law Sandeep and food grains for accused Dilbagh. He also deposed that when he reached the matrimonial home of deceased, he found that deceased had been murdered. He proved his statement given to the SDM as Ex.PW1/A.
14.In his cross examination, PW1 denied that deceased used to remain tense and in agony as she was unable to conceive and FIR NO: 720/06 5/46 State Vs. Krishna FIR NO: 720/06 on that account, she committed suicide. PW1 denied that no dowry demand was ever raised by accused persons from deceased.
15.PW2 HC Baljeet Singh has also adopted his examination in chief recorded in the previous session case on 12.07.2007. PW2 HC Baljeet Singh is the person, who was left at the crime scene by SI Amarpal Singh to protect the same. PW2 HC Baljeet Singh has deposed that in his presence, crime team and local SDM had come and on the directions of the SDM, IO had seized one half burnt saree of coca cola colour, one half burnt plastic chappal, one match box make Ship, some broken bangles of red colour with yellow print and one plastic can. He also proved seizure memo Ex.PW3/A and the case property as Ex.P1 to Ex.P5.
16.In his cross examination, PW2 stated that he had seen the place of incident i.e.bathroom and the door of the bathroom was burnt and it was blackened from the rear side.
17.PW3 Deepak is the brother of deceased and he has also adopted his previous examination in chief recorded on 26.09.2007 in the previous session trial. PW3 had deposed that he was told by his deceased sister that accused persons used to taunt her for bringing insufficient dowry. He further deposed that on 22.07.2006, he had gone to the matrimonial home of deceased on account of Teej Festival and there he had enquired from the deceased, if there was any problem but FIR NO: 720/06 6/46 State Vs. Krishna FIR NO: 720/06 she did not tell anything and told him that she will tell after 2-3 days. He further deposed that on 23.07.2006 when he reached at the spot, neighbours had told him that she/deceased was given beatings since morning. He has also proved the statement given to the SDM Ex.PW14/A and handing over of all photographs of marriage Ex.PW14/D. In addition to that, he deposed before the present court that present accused used to taunt the deceased for bringing less dowry.
18.In his cross examination, PW3 was unable to tell the name of any neighbour, who met him on 23.07.2006. PW3 denied that no neighbour had told him that deceased was given beatings. PW3 also denied that his deceased sister was happy in her matrimonial home.
19.PW4 Roopwati is the mother of deceased. She has also adopted her examination in chief recorded in previous session case on 13.07.2007. PW4 Roopwati has also deposed generally regarding deceased being harassed for the purpose of dowry by accused persons. She also proved her statement given to SDM as Ex.PW5/A. In addition to the previous examination in chief, she has deposed before this court that present accused used to demand from deceased gold chain for her daughter and ear rings for herself.
20.In her cross examination recorded on 13.07.2007 which was adopted by defence in the present case, Roopwati had admitted that in-laws of deceased were getting treatment for FIR NO: 720/06 7/46 State Vs. Krishna FIR NO: 720/06 deceased with regard to her not conceiving. PW4 also admitted that she had made her deceased daughter understand that after treatment, she will be able to conceive. PW4 admitted that deceased remains to be in agony for not conceiving as long time had passed. However, she denied that due to depression on account of not conceiving, deceased had committed suicide.
21.PW5 Dr.Deepak Mathur was the doctor responsible for conducting post mortem on the deceased. In his examination in chief recorded on 12.07.2007 in the previous Sessions Case, it was deposed to by him that during the post mortem on the deceased Praveen, he had recovered one lemonish coloured blood stain cloth from the mouth and throat of deceased measuring 53 cm X 20 cm. It was further deposed to by him that total burn area was approximately 90% and externally body was seen in pugilistic attitude. PW5 further deposed that cause of death was asphyxia with super added shock following gagging with ante mortem burn injuries. PW5 proved his post mortem report Ex.PW5/A
22.In his cross examination, PW5 admitted that due to deficiency of oxygen, oral cavity enlarges and gagging substance in the mouth may slip down the cavity. PW5 also admitted that some people put a cloth before committing suicide with a view to stifle a cry. PW5 also admitted that it is likely due to air hunger gagging substance may get blood stains. PW5 also admitted that there is a possibility of suicide by deceased in the present FIR NO: 720/06 8/46 State Vs. Krishna FIR NO: 720/06 case. PW5 also admitted that carbon particles were found in the anterior mouth uptil nasopharynx.
23.PW6 Dr. Shanker Narain has also adopted his examination in chief recorded on 24.09.2007 in the previous sessions trial. PW6 proved his MLC Ex.PW6/A.
24.In his cross examination, PW6 admitted that deceased was wearing two bangles, two earrings, two rings, one nose pin of gold and two payal silver in her respective limbs. PW6 also admitted that father in law Dilbagh Singh had brought the deceased to the hospital.
25.PW7 Ram Singh is the uncle of deceased and he has also adopted his examination in chief recorded on 26.09.2007 in the previous sessions case. PW7 Ram Singh only deposed about visiting the matrimonial house of deceased on one occasion where in-laws of deceased did not talk with him and were ready to quarrel with them and, therefore, he had returned.
26.In his cross examination, PW7 Sh.Ram Singh deposed that on 23.07.2006, he came to know about the death of Praveen from police officials in the presence of Munshi Ram and Dilawar and that deceased had been shifted to RTRM Hospital.
27.PW8 Munshi Ram is the brother of deceased's father and he has also adopted his examination in chief recorded on 13.07.2007 in the previous sessions case. He had only deposed that convict Dilbagh Singh had demanded computer, ear rings and golden chain but the same were not given to the FIR NO: 720/06 9/46 State Vs. Krishna FIR NO: 720/06 in laws of deceased. Since PW8 Munshi Ram was not supporting the prosecution story, therefore, he was allowed to be cross examined by ld.Addl.PP. In his cross examination by State, PW8 admitted that accused Krishna, Dilbagh and Pradeep, all three had picked up quarrel with him and had told him that deceased's father had not given computer, gold chain and ear rings.
28.In his cross examination by defence, PW8 denied that immediately after receiving the information, he had gone to the house of deceased and had taken out the deceased from the bathroom after breaking the door of bathroom. PW8 denied that deceased Praveen had committed suicide as she was mentally upset for not having children. PW8 also denied that in laws of deceased used to keep her happy and there was no dowry demand from her in-laws.
29.PW9 Retd.ASI Hukum Chand has also adopted his examination in chief recorded on 12.07.2007 in previous sessions case and while being posted as Head Constable at PS Najafgarh, he was working as duty officer on 24.07.2006 and on the said date, on receipt of rukka from SI Amarpal Singh, he had recorded the FIR which is Ex.PW1/A and he had made his endorsement on the same vide Ex.PW9/A. He also proved DD No.24A vide Ex.PW9/B.
30.In his cross examination, he had admitted that since he had not recorded DD No.24A, therefore, he does not have the personal FIR NO: 720/06 10/46 State Vs. Krishna FIR NO: 720/06 knowledge about the same.
31.PW10 Sh.Kaptan Singh has also adopted his examination in chief recorded on 24.09.2007 in the previous Sessions Case. He has only proved that on 23.07.2006, he had received DD No.24A which was handed over by him to SI Amarpal Singh.
32.PW11 Ct.Shashi Kapoor has also adopted his examination in chief recorded on 12.07.2007 in previous sessions case. PW11 had deposed that he had joined the investigation alongwith IO on 24.07.2006 and thereafter, they had gone to matrimonial house of deceased. From there, convicts Dilbagh, Pardeep and Sandeep were arrested vide arrest memo Ex.PW11/A to Ex.PW11/C and their personal search was also got conducted vide Ex.PW11/D to Ex.PW11/F and their disclosure statement was also recorded vide Ex.PW11/G to Ex.PW11/I.
33.Nothing could be brought out in the cross examination of said witness.
34.PW12 HC Pawan Kumar has adopted his examination in chief recorded on 16.07.2007 in previous sessions case. PW12 HC Pawan Kumar was posted as duty constable at RTRM Hospital (Casualty), on 23.07.2006. He has only proved that on 23.07.2006, Doctor of RTRM Hospital had handed over to him a sealed parcel with the seal of RTRM Hospital containing jewelery of deceased Praveen having two kangans, two ear rings, two anklets, one nose pin and two rings which were handed over by the said witness to IO vide seizure memo FIR NO: 720/06 11/46 State Vs. Krishna FIR NO: 720/06 Ex.PW12/A.
35.PW13 Inspector Udham Singh has also adopted his examination in chief recorded on 26.09.2007 in previous sessions case. PW13 was the incharge of crime team, South West District, who had reached at the matrimonial home of deceased on 23.07.2006 on receipt of information. The said witness had inspected the bathroom and the house and at his instance, photographer had taken the photographs of the spot. He also proved his inspection report Ex.PW13/A.
36.In his cross examination, he admitted that door of the bathroom was blackened from inside but he further deposed that he does not remember whether the latch of the door was broken from inside or not.
37.PW14 HC Omender Singh has adopted his examination in chief recorded on 16.07.2007 in previous sessions case. Said witness has only proved eight sealed parcels, five parcels with the seal of APS and three parcels with the seal of RTRM Hospital and one sample seal were deposited with CFSL, Hyderabad.
38.PW15 Retd.Inspector Mahender Singh has adopted his examination in chief recorded on 04.08.2008 in previous sessions case. Said witness was responsible for conducting further investigation and he has proved the recording of statement of witnesses Munshi Ram, father of deceased and brother of deceased. He had also arrested accused persons FIR NO: 720/06 12/46 State Vs. Krishna FIR NO: 720/06 and had conducted their personal search vide memos Ex.PW2/A to Ex.PW2/C. He has also proved the site plan Ex.PW15/A and he has also seized invitation card of the marriage of the deceased vide Ex.PW15/B. He has also proved the FSL report received from Hyderabad Ex.PW15/C.
39.PW16 ASI Ajeet Singh has also adopted his examination in chief recorded on 26.09.2007 in previous sessions case. He was the photographer in the crime team and as per directions of the IO, he had taken certain photographs of the spot. Photographs were exhibited from Ex.PW16/A8 to Ex.PW16/A14 and negatives from Ex.PW16/A1 to Ex.PW16/A7.
40.In his cross examination, PW16 deposed that he does not recollect whether the latch of the bathroom door was broken when he went to the spot. He also deposed that he does not recollect whether bathroom door was wooden and the same had turned black from inside due to fire.
41.PW17 SI Amarpal Singh has also adopted his examination in chief recorded on 01.12.2008 in previous sessions case. PW17 was the first person to reach at the spot alongwith Ct.Ravinder on receipt of DD No.24A. On reaching the spot, he had come to know that deceased got burnt due to fire and she was taken to RTRM Hospital by her father in law Dilbagh Singh. Thereafter, PW17 informed the senior officials and SDM and had collected the MLC of deceased Praveen from RTRM FIR NO: 720/06 13/46 State Vs. Krishna FIR NO: 720/06 Hospital. Thereafter, PW17 alongwith the SDM reached at the spot and on directions of SDM, PW17 had collected half burnt sari, a left foot bathroom slipper, matchbox and had also collected a plastic can and some broken pieces of bangles from the bathroom vide seizure memo Ex.PW17/B. He had also seized three parcels from RTRM Hospital on 24.07.2006 vide Ex.PW17/A. Thereafter, he had joined the investigation alongwith Inspector Mahender Singh and convicts Dilbagh Singh, Pradeep and Sandeep were arrested in this case and he also proved the arrest memo and personal search of aforesaid accused persons.
42.In his cross examination, said witness also stated that he did not notice whether the latch of the bathroom was broken from inside or not. He denied that witnesses were tutored by him.
43.PW18 HC Nihal Singh has adopted his examination in chief recorded on 12.08.2009 in previous sessions case. He was posted as MHCM, Najafgarh on 23.07.2006 and he has proved the deposition of sealed parcels by SI Amarpal Singh and sending of exhibits to CFSL, Hyderabd on 08.09.2006 vide Ex.PW18/A to Ex.PW18/C.
44.Nothing material was brought out in the cross examination of said witness.
45.PW19 SI Yogender Kumar was posted as SI at PS Najafgarh on 23.05.2011. He had come to the court of Sh.N.K.Laka, Ld.MM, Dwarka Courts, New Delhi where present accused had FIR NO: 720/06 14/46 State Vs. Krishna FIR NO: 720/06 surrendered. He had proved his copy of application for interrogation vide Ex.PW19/A, arrest of accused Ex.PW19/B and personal seach of accused vide Ex.PW19/C. PW19 was also responsible for filing supplementary charge sheet against accused in the court.
46.Nothing material could be brought out from the cross examination of PW19.
47.PW20 W/Ct. Raj Bala was the lady constable posted at PS Najafgarh, who had accompanied IO PW19 on 23.05.2011 to the court and in her presence, accused was arrested vide arrest memo Ex.PW19/B and personal search was conducted vide Ex.PW19/C.
48.Nothing material could be brought out from the cross examination of said witness.
49.PW21 Ct.Ram Niwas has adopted his examination in chief recorded on 12.08.2009 in the previous sessions case. PW21 was the beat constable who was on patrolling duty on 23.07.2006 and on receipt of the call regarding some fire in a house, he reached at the matrimonial home of deceased. They had found SI Amarpal Singh there, who had left him at the spot for the protection of crime scene. He has also proved the seizure memo of the various articles seized from the bathroom as Ex.PW3/A.
50.In his cross examination, he admitted that door of the bathroom had turned black due to smoke from inside and It was clean FIR NO: 720/06 15/46 State Vs. Krishna FIR NO: 720/06 from outside and the said door was also burnt from inside.
51.From the cross examination of the said witness, nothing incriminating has come on record.
52.PW22 Ct.Naveen has only proved delivery of copy of FIR to DCP Office and at the residence of ld.MM being special messenger on 24.07.2006.
53.PW23 Sh.S.S.Parihar SDM has also adopted his examination in chief recorded on 08.04.2008 in the previous sessions case. Sh.S.S.Parihar was posted as SDM, Najafgarh on 23.07.2006 and he had conducted the inquest proceedings with regard to deceased in the present case. He has also proved recording of statement of father, mother and brother of deceased on 24.07.2006 Ex.PW10/A, Ex.PW14/A and Ex.PW5/A and on his direction, present FIR was got registered.
54.PW23 has also deposed on oath that during his inquest proceedings, he had observed that mouth of the deceased was found open with the cloth inside.
55.In his cross examination, PW23 had explained as to why he did not record the statement of relatives of deceased on 23.07.2006 as verbal duel had taken place between family of deceased and accused.
56.In his cross examination, PW23 deposed that although he had noticed black smoke in the entire bathroom but he did not remember observing the black smoke at the back side of the bathroom door and latch of the bathroom door being broken FIR NO: 720/06 16/46 State Vs. Krishna FIR NO: 720/06 from inside due to force being applied from outside.
57.No other witness was examined by the prosecution and accordingly, prosecution evidence was closed.
58.Thereafter, accused was examined u/s 313 Cr.P.C. and all the incriminating evidence coming on record was put to accused.
59.In her examination u/s 313 Cr.P.C., accused denied that Deepak, brother of deceased had visited her house on 22.07.2006. Accused also denied harassment of deceased on account of dowry demands. Accused denied of having any knowledge regarding the pendency of this case and also denied that proceedings u/s 82-83 Cr.P.C.were affixed at her place. It was further the defence of accused that on 23.07.2006, she was not present in the house when deceased had died and she was away to other plot to look after her cattle and when she returned then she came to know that deceased had committed suicide. It was further stated by her that deceased was not conceiving the child and was undergoing treatment for the same and under depression, she committed suicide and she and her family members had no concern with the death of deceased. Accused also admitted to lead evidence in her defence.
60.Thereafter, the matter was posted for defence evidence. In her defence, accused examined as many as 10 witnesses.
61.DW1 Sh.Amit Kumar is the brother of convict Pardeep. He has deposed on oath that on 23.07.2006, he was staying with his FIR NO: 720/06 17/46 State Vs. Krishna FIR NO: 720/06 uncle Dilbagh Singh at the matrimonial home of deceased and he and his sister were watching T.V.when he noticed smoke in the house. He alongwith his brother broke down the door. He noticed that her bhabhi (deceased) had fallen on the ground and thereafter, her bhabhi was taken out and was taken to hospital by his uncle Dilbagh Singh. He further deposed that accused Krishna had left the house at around 2.45 p.m. and had returned around 4.00 p.m.
62.In his cross examination, DW1 denied that he did not depose as a defence witness in favour of convicts Dilbagh, Pardeep and Sandeep as he had not seen any incident taking place in his presence. DW1 denied that he is a tutored witness.
63.DW2 Dr. Arun Sharma was the Incharge of Dr. Poonam Sharma Memorial Clinic. He has only proved that deceased had come to his clinic for treatment of Urinary tract infection in the year 2005.
64.DW3 Sh. Ram Chander is the Admission Incharge from Govt. Boys Sr.Sec School, Najafgarh, who had brought the admission register pertaining to the admission of DW1 Amit. He has also proved that DW1 Amit had taken admission in the school on 29.04.2004 and had left the school in the year 2006.
65.DW4 Sh.O.P.Saini had brought the computer copy of ration card Ex.DW4/A wherein name of DW1 Amit was mentioned.
66.In his cross examination, DW4 stated that he could not tell as to when name of DW1 Amit was added in the ration card FIR NO: 720/06 18/46 State Vs. Krishna FIR NO: 720/06 Ex.DW4/A.
67.DW5 ASI Sudesh has only proved computerized copy of NCR dated 19.01.2009 vide Ex.DW5/A.
68.DW6 Dr. (Mrs.)Neelam Sharma of Dr. Poonam Sharma memorial Clinic has only proved that deceased was suffering from urinary tract infection as per Ex.DW6/A.
69.DW7 Dr. M.S Kiran Minz, of Uni star health care, Najafgarh has only proved her report vide Ex.DW7/A by which deceased was diagnosed to be suffering from urinary tract infection.
70.DW8 Sh.Vijay Pal is the Incharge of Unique Health Care, Najafgarh. He has only proved documents pertaining to his clinic Ex.DW7/A and mark DB and DC.
71.DW9 Dr. Manish Kumar from Gobhania medical Centre had come to prove the prescription slip Ex.DW9/A written by Dr. Ravinder who was stated to be working in some place in Orissa. DW9 further deposed that as per Ex.DW9/A, deceased was suffering from polycystic ovarian disease which leads to complication in the menstrual cycle and fertility.
72.In his cross examination by ld.Addl.PP, it was admitted by DW9 that polycystic ovarian disease is curable and deceased had only visited their hospital once on 04.01.2005. He has also admitted that no fact was recorded that deceased had become infertile or was suffering from menstrual disorder.
73.DW10 Dr. Bharat Bhushan was the Radiologist, who conducted ultrasound on deceased. He deposed that on FIR NO: 720/06 19/46 State Vs. Krishna FIR NO: 720/06 04.01.2005, he was working as Radiologist at Unique Health Center, Najafgarh and in his report Mark 9/B, he had observed that deceased/patient was suffering from Polycystic Ovarian Disease.
74.In his cross examination by ld.Addl.PP for state, DW10 stated that he did not observe any kind of Cyst in the Ovary of deceased when he conducted ultrasound on the patient i.e.deceased.
75.DW10 deposed that he gave the report that deceased was suffering from Polycystic Ovarian disease on the basis of ultrasound examination. DW10 admitted that opinion regarding the polycystic ovarian disease cannot be given solely on the basis of ultrasound report and same has to be clinically co- related and report of Gynecologist is also required.
76.No other witness was examined on behalf of defence. Accordingly, defence evidence was closed and the matter was posted for final arguments.
77.I have heard Ld.Addl.PP for state and ld.defence counsel Sh.G.P.Thareja for accused. I have also carefully perused the evidence recorded in the present case as well as in the previous sessions case No.107/2008.
78.It was contended by ld.defence counsel that in the present case, accused deserves to be acquitted for the offence u/s 498A/304B/34 IPC as convicts Dilbagh Singh, Pardeep and Sandeep, who had faced a separate trial regarding the same FIR NO: 720/06 20/46 State Vs. Krishna FIR NO: 720/06 allegations, have already been acquitted for the offence u/s 498A/304B/34 IPC vide judgment dated 18.09.2009 of Sh.N.K.Kaushik, Ld.ASJ-02 (as he was then). It was further submitted by ld.defence counsel that the allegations against convicts Dilbagh Singh, Pardeep and Sandeep and the present accused are the same and indivisible and since the present accused could not attend the previous trial alongwith convicts Dilbagh Singh, Pardeep and Sandeep, therefore, present accused also deserves to be acquitted for the offence u/s 498A/304B/34 IPC as no incriminating evidence has come on record against her in the present case. It was further submitted by the ld.defence counsel that order of acquittal of convicts Dilbagh Singh, Pardeep and Sandeep for the offence u/s 498A/304B/34 IPC has become final and binding as State has not challenged said acquittal before any appellate court till date.
79.In support of his contention, he has relied upon the judgment of the Hon'ble Supreme Court of India delivered in Raja Ram Vs. State of M.P., (1994) 2 SCC 568 and Dandu Lakshmi Reddy Vs. State of A.P., (1999) 7 SCC 69.
80.With regard to offence u/s 302/34 IPC, it was submitted by ld.defence counsel that evidence on record do not in any way incriminate the present accused for the offence of murder. In support of his submission, he has relied upon following judgments: (1) Narendra Singh and anr. Vs. State of M.P., Appeal (Crl.) 298 of 1997; (2) Om Prakash and Ors. Vs. FIR NO: 720/06 21/46 State Vs. Krishna FIR NO: 720/06 State of U.P., 2004 CriLJ 3939; (3) Sham Lal Vs. State of Haryana etc., Appeal (crl.) 559 of 1990; (4) Sunil Bajaj Vs. State of M.P., Appeal (crl.) 1029 of 2001; (5) Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116; and (6) Naseem Ahmad Vs. Delhi Administration, (1974) 3 SCC 668.
81.It was further submitted by the ld.defence counsel that it has come in the evidence that deceased might have committed suicide as she was not able to conceive for a long time. Ld.defence counsel further submitted that deceased committed suicide is further borne from the fact that door of the bathroom where deceased had set herself on fire was bolted from inside and the same was broken up, which is admitted in the cross examination by PW1 Dilawar Singh and is also proved from the photographs Ex.PW16/A4 and Ex.PW16/A5.
82.Ld.Defence counsel further submitted that all the gold and silver jewelery which the deceased was wearing on the day of incident was found to be intact during the course of post mortem which also shows that accused never intended to commit any murder and had they done so, they would have removed the jewelery of deceased before her murder.
83.Ld.Defence counsel further submitted that deceased was taken to the hospital by convict Dilbagh Singh, who happens to be the father in law of deceased which further shows that deceased was not murdered by the convicts or by present accused.
FIR NO: 720/06 22/46State Vs. Krishna FIR NO: 720/06
84.Ld.Defence counsel also submitted that the presence of cloth in side the mouth of deceased has been properly explained in the evidence of PW5 Dr.Deepak Mathur, who has stated in his cross examination that some people put a cloth before committing suicide with a view to stifle a cry. Ld.Defence counsel further submitted that PW5 Dr.Deepak Mathur had also admitted that there is a possibility of suicide by deceased in the present case and cloth being blood stained and found deep inside the oral cavity has also been explained by PW5 Dr.Deepak Mathur in his cross examination.
85.It was submitted that in the present case, accused has been able to prove that deceased had in fact committed suicide and prosecution has not lead any positive evidence on record to show that deceased was murdered.
86.Ld.Defence counsel submitted that there is no evidence on record to show that cloth was forcibly inserted into the mouth of deceased as post mortem report is silent on any kind of injury outside the mouth of deceased or inside the mouth of deceased.
87.Ld.Defence counsel further submitted that no injuries were observed on the body of the deceased in the post mortem report which further demonstrates that deceased was not beaten up prior to her death as was deposed to by PW 3 Deepak.
88.Ld.Defence Counsel further submitted that presence of carbon FIR NO: 720/06 23/46 State Vs. Krishna FIR NO: 720/06 particles in the mouth, throat and nose of the deceased as per admission of PW5 Dr.Deepak Mathur also proves that deceased was alive when she put herself on fire and falsifies the prosecution story that she was first murdered and then put on fire.
89.Ld.Defence counsel also submitted that prosecution has not lead any evidence on record to show that door was not bolted from inside and deceased did not commit any suicide by putting herself on fire. Accordingly, it was prayed that present accused be acquitted for the offence u/s 302/34 IPC.
90.Lastly, with regard to offence u/s 174A IPC, it was submitted by ld.defence counsel that since 30 days from the date of publication and the date fixed in the appearance in the court were not provided to accused to put in her appearance in the court, therefore, proceedings u/s 82 Cr.P.C.were not validly conducted and hence, accused cannot be convicted for the offence u/s 174A IPC. Accordingly, it was prayed that accused be also acquitted for the offence u/s 174A IPC.
91.On the other hand, Ld.Addl.PP for state submitted that prosecution has been able to discharge the onus put upon it and has been able to prove that deceased was murdered by accused by gagging her with cloth and thereafter putting her on fire by use of kerosene. Ld.Addl.PP further submitted that the evidence of PW23 Sh.S.S.Parihar SDM, post mortem report Ex.PW5/A and evidence of PW5 Dr.Deepak Mathur proves that FIR NO: 720/06 24/46 State Vs. Krishna FIR NO: 720/06 deceased was found to be having a cloth in her mouth which was found deep inside the oral cavity and the same was forcibly thrust into the mouth of deceased so that she does not raise any alarm while she was put on fire by accused. It was also submitted that convicts Dilbagh Singh, Sandeep and Pardeep have already been found guilty in the previous sessions case for the offence u/s 302/34 IPC and on the ground of parity, present accused against whom there are similar allegations, also deserves to be convicted for the offence u/s 302/34 IPC.
92.It was further submitted that accused being mother in law of deceased and wife of convict Dilbagh Singh and mother of convict Pardeep and aunt of convict Sandeep was very well aware of the arrest of convicts Dilbagh Singh, Pardeep and Sandeep and deliberately did not appear before the investigating officer and the court and had absconded. Ld.Addl.PP contended that the very fact that present accused absconded after the alleged incident and could not be apprehended for about 05 years is an importance circumstance to show that accused was guilty of the offence of murder and for the offence u/s 174A IPC. Accordingly, a prayer was made for passing of conviction order against accused for the offence u/s 302/34 IPC and u/s 174A IPC.
93.I have considered the rival submissions made by Ld.Addl.PP for state and ld.defence counsel. I have also carefully perused FIR NO: 720/06 25/46 State Vs. Krishna FIR NO: 720/06 the judgments relied upon by the ld.defence counsel.
94. I shall first take up whether charges u/s 498A/34 and u/s 304B/34 IPC have been proved by the prosecution or not?
95.Accused has been charged u/s 498A/34 IPC for having treated the deceased with cruelty from 04.05.2004 till 23.07.2006 alongwith convicts Dilbagh Singh, Pardeep and Sandeep on account of dowry demands and she has been charged u/s 304B read with Section 34 IPC for being responsible for the death of deceased Praveen as she was subjected to cruelty on account of dowry demands soon before her death within 07 years of her marriage.
96.To prove the aforesaid charges, prosecution had examined PW1 Dilawar Singh, PW3 Deepak and PW4 Roopwati, who are father, brother and mother of deceased respectively and PW 7 Ram Singh and PW8 Munshi Ram, who are the uncles of deceased.
97.All the aforesaid witnesses were examined in the previous sessions case and after perusing the evidence of said witnesses, predecessor of this court had returned a finding of acquittal against convicts Dilbagh Singh, Pardeep and Sandeep for the offence u/s 304B/498A/34 IPC.
98.The deposition against present accused of aforementioned PWs in previous sessions case is indivisible and inseparable regarding the present accused.
99.The present accused did not join the trial of convicts Dilbagh, FIR NO: 720/06 26/46 State Vs. Krishna FIR NO: 720/06 Pardeep and Sandeep wherein they were acquitted for the offence u/s 304B/498A/34 IPC as she was absconding at that point of time. However, the allegations of aforementioned witnesses against convicts Dilbagh, Pardeep and Sandeep and present accused are indivisible and inseparable, therefore, in the light of judgment delivered by the Hon'ble High Court of Delhi in Smt.Urmila Devi Vs. The State (N.C.T. Of Delhi), 2006 (3) JCC 1642, accused deserves to be acquitted. In the said judgment, it has been held by the Hon'ble High Court of Delhi that where co-accused have been acquitted and thereafter some other co-accused, who had absconded are apprehended, then whether they are required to face trial or not, will depend upon the material collected by police during investigation. If the material collected by police during investigation is separable and divisible from other co-accused who have been acquitted, then charge is required to be framed against accused and he is required to face trial. However, if evidence against co-accused, who have been acquitted and accused, who had absconded is inseparable and indivisible in nature, then accused (absconder) should not be made to suffer the ordeal of trial the result of which would be of "acquittal".
100.In the light of aforementioned judgment of the Hon'ble High Court of Delhi, since allegations against present accused were indivisible and inseparable from the allegations made against convicts Dilbagh, Pardeep and Sandeep, who have been FIR NO: 720/06 27/46 State Vs. Krishna FIR NO: 720/06 acquitted for the offence u/s 498A/304B/34 IPC, even present accused could not have been charged for the offence u/s 498A/304B/34 IPC. Therefore, in the light of aforesaid discussion, when accused could not have been charged for the offence u/s 498A/304B/34 IPC, question of her conviction u/s 498A/304B/34 IPC does not arise. Therefore, on this ground alone, present accused deserves to be acquitted for the offence u/s 498A/304B/34 IPC.
101.Further, in the matter of Raja Ram and Dandu's case (supra), the Hon'ble Supreme Court of India had extended the benefit of acquittal to those convicts who were not present before it in appeal when allegations against non-appealing accused were also the same.
102.Applying the analogy of aforementioned judgments to the present case, present accused also can be extended the benefit of acquittal u/s 498A/304B/34 IPC although she was not facing the trial with convicts Dilbagh, Pardeep and Sandeep, who were eventually acquitted for the offence u/s 498A/304B/34 IPC.
103.Even otherwise, I have carefully perused the evidence of PW1 Dilawar, PW3 Deepak, PW4 Roopwati, PW7 Ram Singh and PW8 Munshi Ram recorded in the present case and there is no evidence on record which proves that soon before her death, deceased was subjected to cruelty on account of dowry demands by accused. All the aforementioned witnesses have FIR NO: 720/06 28/46 State Vs. Krishna FIR NO: 720/06 deposed generally that accused used to demand dowry from deceased but no specific incident has been deposed to by these witnesses to show that soon before her death, deceased was subjected to cruelty on account of dowry demands by accused.
104.Even the deposition made by PW3 Deepak that on 23.07.2006, he came to know from neighbour that deceased was given beatings since morning cannot be believed as the deposition made by PW3 Deepak is hearsay evidence and is not admissible. The neighbour, who had told PW3 Deepak about giving beatings to deceased on the date of incident, has not been examined by the prosecution in this case. Therefore, testimony of PW3 Deepak is hearsay and is inadmissible.
105.Even otherwise, the testimony of PW3 Deepak that deceased was beaten up on 23.07.2006 is not believable as no such injuries were observed on the body of deceased in the post mortem report by PW5 Dr.Deepak Mathur.
106.Therefore, no evidence has been lead on record by the prosecution to show that deceased was subjected to cruelty on account of dowry demands soon before her death.
107.In the light of aforementioned discussion, accused is acquitted for the offence u/s 498A/304B/34 IPC.
108.The present accused has also been charged in the alternative for having committed the murder of deceased Praveen alongwith convicts Dilbagh Singh, Pardeep and Sandeep u/s FIR NO: 720/06 29/46 State Vs. Krishna FIR NO: 720/06 302/34 IPC.
109.In the present case, there is no eye witness to the gagging of deceased and burning of deceased with kerosene and the entire prosecution case rests upon circumstantial evidence.
110.The law with regard to appreciating circumstantial evidence has been succinctly summarised in the judgment delivered in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 wherein three-Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622: (1973) 2 SCC 793, it was opined that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be' and `must be' is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and FIR NO: 720/06 30/46 State Vs. Krishna FIR NO: 720/06 must show that in all human probability the act must have been done by the accused."
111.In the present case, prosecution case is that on 23.07.2006 at her matrimonial home, deceased Praveen was initially gagged by putting a cloth in her mouth and thereafter, she was burnt by pouring kerosene over her.
112.Now, let us see whether in the present case, complete chain of circumstances has been established which is capable of reaching a conclusion that accused is guilty of having committed the murder of deceased Praveen on 23.07.2006.
113.In the present case, the first and the foremost circumstance which was required to be established on record by the prosecution was that deceased was murdered in the bathroom and door of the bathroom was not found locked from inside and even if it was found locked from inside, the accused had the opportunity of escaping from the bathroom through some other access point.
114.If the accused had set the deceased on fire by pouring kerosene over her in the bathroom then in normal circumstance, the door of the bathroom should have been found locked from outside and in any case if it was found locked from inside, there should have been some other exit point from the bathroom for the accused to escape.
115.The prosecution has not been able to show on record that there was any other access point to the bathroom apart from FIR NO: 720/06 31/46 State Vs. Krishna FIR NO: 720/06 the main door of the bathroom. Therefore, there was only one access to the bathroom which was the main door of the bathroom.
116.The defence of the accused is that door was locked from inside and the same was broken up by accused to take out the deceased. In order to substantiate their defence, accused had examined DW1 Amit, who happens to be the nephew of accused, as a witness, who was alleged to be present in the house on 23.07.2006 and had noticed smoke coming out from the bathroom and thereafter, he alongwith his brother convict Pardeep had broken the door and had taken out the deceased. But testimony of DW1 Amit Kumar cannot be relied upon as firstly, said witness was not examined as an eye witness by defence in the previous sessions case and secondly, no suggestion was given by defence to prosecution witnesses in the present case that DW1 Amit Kumar had assisted convict Pardeep in breaking the door of the bathroom to take out the deceased. Therefore, defence of presence of DW1 Amit Kumar on 23.07.2006 in the matrimonial home of deceased has been taken up for the first time during trial of this case which is nothing but an after thought and hence, cannot be believed and has to be discarded.
117. However, defence of accused cannot be ignored in the light of the fact that PW23 Sh.S.S.Parihar, SDM and members of the crime team i.e.PW13 Inspector Udham Singh and PW16 ASI FIR NO: 720/06 32/46 State Vs. Krishna FIR NO: 720/06 Ajeet Singh who reached at the spot on 23.07.2006 and had the occasion to inspect the bathroom and door, had deposed that they do not recollect whether the latch of the bathroom door was broken from inside. Even the crime team did not deem it fit to take the photographs of the bathroom door from front portion and rear portion. This was an important fact which was required to be observed by the members of the crime team and the SDM but the same has not been noticed by them at the spot. Although it cannot be said with certainty that PW23 Sh.S.S.Parihar SDM and PW13 Inspector Udham Singh, Incharge of crime team had deliberately not observed this fact of latch of the bathroom door being broken from inside or it was due to their negligence in performance of their duties that they did not observe such an important fact but the fact of the matter is that importance evidence which was available has not been brought on record which makes this court raise an adverse inference against the prosecution that in case, the latch of the bathroom door was properly observed from inside, it would not have supported the prosecution story and accordingly, evidence regarding the same was not collected and was ignored.
118.The task of the crime team and the SDM is quite important in cases where they get the information regarding death of a woman occurring in suspicious circumstance within seven years of her marriage in a closed room. The primary duty of the FIR NO: 720/06 33/46 State Vs. Krishna FIR NO: 720/06 SDM and the crime team is to observe the crime scene minutely and every endeavor should be made to collect evidence as to whether room was locked from inside or not and if the room was found locked from inside whether the room had any other access point through which a person could escape after locking the room from inside to rule out the possibility of death being homicidal or suicidal. Therefore, direction be issued to the Commissioner of Police, Delhi and Secretary (Revenue), Government of Delhi to direct their crime team and the SDM respectively to ensure that in future, they perform their duties diligently and responsibly whenever information is received regarding death of a woman occurring in suspicious circumstances within seven years of her marriage in a closed room.
119.Even otherwise, as per cross examination of PW13 Inspector Udham Singh, who was the member of the crime team and PW21 Ct. Ram Niwas, who was on patrolling duty, they had observed that door of the bathroom was blackened from inside and was clean from outside. Therefore, from the evidence of PW13 Inspector Udham Singh, it has come on record that door was closed and that is why inside portion of the door was found blackened by the smoke by burning of kerosene oil.
120.The onus was upon the prosecution to prove the circumstance that door was not locked from inside and the accused after putting the deceased on fire, had come outside the bathroom FIR NO: 720/06 34/46 State Vs. Krishna FIR NO: 720/06 and had locked it from outside. However, no evidence has been lead by the prosecution to show that door was locked from outside and was not locked from inside as put up by the accused.
121.On the contrary, accused has established the circumstance on record to show that door of the bathroom was infact locked from inside.
122.In the cross examination of PW1 Sh.Dilawar Singh, who happens to be the father of deceased, a suggestion was put by accused that PW1 Sh.Dilawar Singh had reached the matrimonial home of deceased on the date of incident i.e. 23.07.2006 where he had met his brother Munshi Ram and he had told PW1 Sh.Dilawar Singh that deceased was taken out from the bathroom after breaking the door. Although PW1 Dilawar Singh had denied the suggestion of the defence but had voluntarily deposed that he was told regarding this fact on 24.07.2006. This voluntarily deposition by PW1 Sh.Dilawar Singh that he was told by his brother Munshi Ram on 24.07.2006 that deceased Praveen was taken out from bathroom after breaking the door establishes the fact that door of the bathroom was infact broken from outside.
123.Although PW8 Munshi Ram in his cross examination has denied the suggestion of accused persons that with the help of accused persons, he had taken out the deceased from the bathroom after breaking the door of the bathroom but in the FIR NO: 720/06 35/46 State Vs. Krishna FIR NO: 720/06 opinion of this court, PW8 Munshi Ram has deposed falsely regarding this fact as he had also denied going to the house of deceased on 23.07.2006 but his presence at the matrimonial home of deceased has been proved by PW7 Ram Singh, who happens to be the uncle of deceased.
124.In his cross examination, PW7 Ram Singh has deposed that on 23.07.2006 at around 3 --3.30 p.m.he has told by the police officials that deceased has been shifted to RTRM Hospital and at that time, PW8 Munshi Ram and PW1 Dilawar Singh were also present. Therefore, presence of PW8 Munshi Ram on 23.07.2006 at the matrimonial home of deceased is proved in the light of testimony of PW7 Ram Singh and that PW8 Munshi Ram had helped accused in breaking the door of the bathroom, is further proved by the evidence of PW1 Dilawar Singh.
125.Yet, another fact which establishes that deceased was taken out after breaking open the bathroom door are the photographs which were taken by the crime team of the bathroom on 23.07.2006. The photographs Ex.PW16/A4 and Ex.PW16/A5 show that cemented portion of the inside wall near the door frame of the bathroom was found broken which also supports the defence of accused that door was forced open from outside resulting into breaking of cemented portion near door frame of bathroom due to impact on the latch which was bolted from inside.
126.Therefore, the circumstances brought on record shows that FIR NO: 720/06 36/46 State Vs. Krishna FIR NO: 720/06 the door of the bathroom where deceased had burnt herself was bolted from inside and there was no other access from where accused could have escaped after putting the deceased on fire. Therefore, this circumstance raises a possibility that deceased could have committed suicide by bolting the door of the bathroom from inside and it makes the prosecution story doubtful about the deceased being burnt inside the bathroom by the accused.
127.Prosecution was also required to establish on record the circumstance that deceased was first murdered by gagging and thereafter, she was put on fire and there was no possibility of her committing suicide.
128.In the present case, as per post mortem report Ex.PW5/A, the cause of death of deceased has been opined by doctor as asphyxia with super added shock following gagging with ante mortem burn injuries.
129.The medical definition of "asphyxia" is a condition in which an extreme decrease in the amount of oxygen in the body is accompanied by increase of carbon dioxide which leads to loss of consciousness or death and some of the common causes of "asphyxia" are drowning, electric shock, inhalation of toxic gas, hanging, suffocation, strangulation and poisoning.
130.Asphyxia in the present case is either due to suffocation or due to gagging material i.e.cloth material found inside the mouth of deceased. The possibility of cloth being forcibly FIR NO: 720/06 37/46 State Vs. Krishna FIR NO: 720/06 inserted in the mouth of the deceased is doubtful in the light of no injuries being observed by PW5 Dr.Deepak Mathur inside the mouth of deceased in the post mortem report Ex.PW5/A. Further, presence of cloth in the mouth of deceased has been explained in the cross examination of PW5 Dr.Deepak Mathur. PW5 Dr.Deepak Mathur has admitted in his cross examination that some people while committing suicide put a cloth in their mouth with a view to stifle a cry. Said admission of PW5 Dr.Deepak Mathur is corroborated by Modi's Medical Jurisprudence and Toxicology, 23rd Edition at page 638 wherein he has observed that "occasionally people commit suicide by soaking their clothes with kerosene oil and then setting fire to them. Sometime they may keep cloth in their mouth."
131.Further, PW5 Dr.Deepak Mathur had admitted in his cross examination that there is a possibility of suicide in the present case. PW5 Dr.Deepak Mathur has also explained in his cross examination about the presence of cloth deep inside the oral cavity by admitting that due to deficiency of oxygen due to burning, oral cavity enlarges and gagging substance in the mouth slips down in the cavity.
132.In the present case, gagging substance was found to be blood stained as per post mortem report Ex.PW5/A. PW5 Dr.Deepak Mathur has also explained in his cross examination that it is possible that due to air hunger, gagging substance may get FIR NO: 720/06 38/46 State Vs. Krishna FIR NO: 720/06 blood stains.
133.PW5 Deepak Mathur also admitted that in the present case, if kerosene is burnt in a small bathroom having an area of 6X5 ft.and if door is bolted, death may occur in few minutes due to emission of carbon monoxide. Therefore, cross examination of PW5 Deepak Mathur does not establish any circumstance on record to show that gagging substance i.e.cloth found inside the mouth of the deceased was forcibly inserted and possibility of deceased committing suicide by putting a cloth in her mouth cannot be ruled out by the evidence of PW5 Deepak Mathur and Medical Jurisprudence and Toxicology by Modi, 23rd Edition.
134. In his cross examination, PW5 Deepak Mathur has admitted the presence of carbon particles in the anterior mouth uptil nasopharynx which indicates that burns were ante mortem in nature and respiratory system was on. Therefore, this fact establishes that when deceased got burnt, she was alive and that is why presence of carbon particles have been found inside the mouth and nasopharynx of deceased as her respiratory was working. Therefore, the circumstance that deceased was first murdered by gagging and thereafter, was put on fire has become doubtful.
135.Another circumstance which creates doubt regarding the deceased being murdered is the probability of defence of accused that deceased was depressed due to non conceiving FIR NO: 720/06 39/46 State Vs. Krishna FIR NO: 720/06 for a long time and that is why she committed suicide.
136.The said defence of the accused that deceased had committed suicide as she used to remain depressed due to not conceiving, has been established on record by the admission made by PW4 Roopwati, who happens to be mother of deceased in her cross examination recorded on 13.07.2007. PW4 Roopwati had admitted in her cross examination recorded on 13.07.2007 that deceased had told her that in-laws of deceased are getting her treated for not conceiving. PW4 Roopwati also admitted that she had made her deceased daughter understand that after treatment, she would be able to conceive. PW4 Roopwati admitted that deceased remained to be in agony for not conceiving as long time had passed. Therefore, the evidence of PW4 Roopwati, who happens to be mother of deceased, proves that deceased was getting treatment for not conceiving and due to said fact, she used to remain depressed. The fact of deceased suffering from disease due to which she was unable to conceive has been established on record by the defence in the light of evidence of DW9 Dr.Manish Kumar and DW10 Dr. Bharat Bhushan.
137.DW10 Dr.Bharat Bhushan was the radiologist and was responsible for conducting the ultrasound on deceased and he had opined that deceased was suffering from polycystic ovarian disease as per his report Mark 9B and due to said disease, a women may get problem in getting conception.
FIR NO: 720/06 40/46State Vs. Krishna FIR NO: 720/06
138.In his cross examination, he has also deposed that he had observed less than 10mm immature follicle (egg) in the ultrasound of the deceased and for conceiving the ideal size of the egg has to be between 20-24 mm on day 15 of the cycle for conception.
139.Nothing material was brought on record by the prosecution to create a doubt in the diagnosis arrived at by DW10 Dr.Bharat Bhushan. Therefore, the circumstances which have been established on record are that deceased was suffering from polycystic ovarian disease which lead to problem in her conception due to which she used to remain depressed.
140.In the matter of Sharad Birdichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court of India has cited passage from text books of psychology setting out various causes why a woman commits suicide and in para 40, it was observed by the Hon'ble Supreme Court of India that " an eminent psychiatrist Robert J.Kastenbaum where in his book "Death,Society and Human Experience" he analysis the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustrations are more prone to commit suicide than any other person".
141. In the present case since it was admitted by PW4 Roopwati, who happens to be mother of deceased that deceased used to FIR NO: 720/06 41/46 State Vs. Krishna FIR NO: 720/06 remain tense on account of not conceiving hence, possibility of deceased committed suicide cannot be ruled out. Further, it was admitted by PW4 Roopwati that in-laws of deceased were caring and concerned about the health of the deceased and were taking deceased to doctor for her medical treatment, therefore, it is doubtful that they would have committed the murder of deceased. Therefore, possibility of deceased committing suicide due to depression and frustration on account of her medical condition cannot be ruled out.
142.Another circumstance which creates a doubt in the prosecution story that deceased was murdered by accused is the fact that the jewelery worn by the deceased was found to be intact by PW6 Dr.R.Shankar Narayanan, who had prepared the MLC Ex.PW6/A.
143.PW6 Dr.R.Shankar Narayanan had deposed on oath that deceased was found to be wearing two bangles, two earrings, two rings, one nose pin of gold and two payal silver. Even the MLC Ex.PW6/A records the said fact that the entire above mentioned jewelery worn by the deceased was found to be blackened.
144.It is not believable that accused, who was allegedly demanding gold ornaments from relatives of deceased, would murder the deceased without ensuring removal of valuable gold and silver jewelery items from the deceased. This circumstance also creates a doubt that deceased was murdered by accused FIR NO: 720/06 42/46 State Vs. Krishna FIR NO: 720/06 on account of non-fulfillment of dowry demand or otherwise.
145.Although it is true that bangles of deceased were found broken inside the bathroom by PW2 HC Baljeet Singh but that itself is not sufficient circumstance to hold that bangles of deceased might have been broken during resistance put by her when accused persons were gagging her with the cloth. The possibility of bangles breaking when deceased had put herself on fire by pouring kerosene or the possibility of bangles breaking when deceased had fallen down to the ground after her death also cannot be ruled out in the present case in the light of circumstance which has come on record which shows that deceased might have committed suicide. Further, possibility of accused putting the deceased on fire by pouring kerosene over her is also doubtful in the light of fact that bathroom door was bolted from inside and possibility of accused escaping from any other access does not arise as prosecution has not brought any other access point of exiting from the bathroom. Therefore, this circumstance also does not establish the complicity of accused in putting the deceased on fire by pouring kerosene over her.
146.Although it is true that in the present case, accused had absconded after the incident and evaded the presence before the court for around 05 years but this circumstance alone does not prove the guilt of accused in the light of fact that chain of circumstances established on record do not in any way FIR NO: 720/06 43/46 State Vs. Krishna FIR NO: 720/06 establish beyond reasonable doubt that deceased was murdered by the accused. Therefore, this circumstance alone does not in any way help the prosecution.
147.In the light of above discussion, the circumstances proved on record are not capable of forming the sole hypothesis that accused had murdered the deceased. The possibility of deceased committing suicide cannot be ruled out in the proved circumstances.
148.Since from the circumstances proved on record, two views are possible, therefore, the view favouring the accused has to be accepted in the light of judgment of the Hon'ble Supreme Court of India reported as State of U.P.Vs. Ashok Kumar Srivastava, AIR 1992 SC 840.
149.Accordingly, accused is acquitted for the offence u/s 302/34 IPC also.
150.Lastly, prosecution was required to prove that accused failed to appear in the court at specified time and place as required by proclamation u/s 82 Cr.P.C. to prove the charged offence u/s 174A IPC.
151.To prove the aforesaid charge, prosecution has relied upon the proceedings u/s 82 Cr.P.C. dated 22.12.2006 Ex.A1.
152.As per the proceedings Ex.A1, accused was declared a proclaimed offender on the basis of statement of HC Mahinder Singh. As per the statement of HC Mahinder Singh, he had affixed process u/s 82 Cr.P.C.at village Nigana, District FIR NO: 720/06 44/46 State Vs. Krishna FIR NO: 720/06 Rohtak, Haryana on 08.10.2006. Further, the application of the investigating officer dated 27.09.2006 reflects that 82 Cr.P.C.proceeding was issued by Ld.Magistrate on 27.09.2006 returnable on 10.11.2006. Since process u/s 82 Cr.P.C.was affixed at the premises of accused on 08.10.2006 and accused had clear 30 days time to put in the appearance before the court by 10.11.2006, therefore, proceedings u/s 82 Cr.P.C.were validly conducted as per Section 82 Cr.P.C, and there is no illegality in the order of the Ld.Magistrate dated 22.12.2006 Ex.A1 declaring the accused as proclaimed offender.
153.The defence of the accused that she had shifted to the place of her brother at VPO Bhaiswan Khurd, Distt.Sonepat and was not aware about the proceedings, is not acceptable as no evidence has been lead on record by the accused in support of her plea. Further, it has come in the statement of accused Krishna u/s 313 Cr.P.C. that she knew about the arrest of male members on 23.07.2006 and immediately thereafter she had left on 24.07.2006, goes to show that she had absconded just to evade her arrest as it is not believable that accused being the wife of convict Dilbagh Singh, will not pursue the case of her husband. This fact shows that accused was aware that she was wanted in the present case and intentionally had absconded to evade her arrest.
154.Therefore, in the light of proceedings Ex.A1 which accused has admitted to be correct, accused is held guilty for the FIR NO: 720/06 45/46 State Vs. Krishna FIR NO: 720/06 offence u/s 174A IPC.
155.Copy of judgment be sent to the Commissioner of Police, Delhi and Secretary (Revenue), Government of Delhi to ensure compliance of directions given in paras 117 and 118.
Announced in the open court (Vikas Dhull)
Dated: 21.02.2014 ASJ-01/Dwarka Courts
New Delhi
FIR NO: 720/06 46/46