Delhi District Court
5 vs . on 25 November, 2014
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE -02, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 83/09
FIR No. : 211/04
P.S. : Narela
U/s : 302/304B/498A/120 B IPC
Date of registration : 06-10-2004
Reserved for Judgment on: 22-11-2014
Judgment Announced on : 25-11-2014
State
Vs.
1. Ravinder S/o Sh. Babu Lal
R/o Q. No. 38, Police Colony,
A/5, Narela, Delhi.
2. Pushpender Singh S/o Sh. Babu Lal
R/o 252, Old Chandrawal,
Civil Lines, Delhi-110054.
3. Phoolwati W/o Sh. Babu Lal
R/o 252, Old Chandrawal,
Civil Lines, Delhi-110054.
4. Babu Lal S/o Late Sh. Karodelal
R/o 252, Old Chandrawal,
Civil Lines, Delhi-110054.
5. R. Harshinder S/o Sh. Babu Lal
R/o 252, Old Chandrawal,
Civil Lines, Delhi-110054.
JUDGMENT
1. Briefly stated the facts of the case are that on 29-05- 2004, at about 8:30 a.m. a call was received which was recorded as DD No. 6 A that a dead body of a lady was lying in house No. Sessions Case No: 83/09 Page 1 of 82 2 38, Pocket 6, Sector A/5, Narela, Police Colony. IO went to the spot and saw dead body of a lady whose neck was slashed. On inquiries the name of the deceased was revealed as Meena wife of accused Ravinder. IO also found the articles of the ground floor room and upper floor room scattered. A minor child aged around 3 years was present there but he was not in a position to speak at that time. The dead lady was found to be pregnant. Thereafter rukka was prepared and further investigation was carried out. The crime team was called at the spot which was photographed and dead body was sent for postmortem. Statement of Mani Ram father of the deceased was recorded, who narrated that he married his daughter Meena with accused Ravinder on 20-06-1999. After the marriage accused Ravinder and his family members started making dowry demands. At the time of Tilak rupees One lakh was demanded from him which he failed. The accused persons after 5-6 months of the marriage, according to the complainant again demanded rupees One lakh from him for purchasing a Tata Sumo Vehicle for accused Pushpender, the amount of Rs. One Lakh was paid by the complainant to accused Ravinder. According to the complainant regular demand of money was raised from him mainly through deceased Meena. Once accused Pushpender demanded a house from him and this demand could not be fulfilled by the complainant. In 2001, Meena was badly beaten by accused Ravinder, Pushpender, Harender, Babu Lal and Phoolwati because of which Meena received severe injuries and due to timely intervention of wife of accused Pushpender her life was spared. After beating Meena she was left in injured condition at S Block Mangol Puri and she somehow reached the house of her Sessions Case No: 83/09 Page 2 of 82 3 bua. An FIR No. 129/01 P.S., Civil Lines, U/s 498 A IPC was registered. In the year 2003, accused Ravinder and accused Babu Lal begged pardon from Meena so a compromise took place between the parties. Thereafter accused Ravinder took Meena to his police quarter which was alloted to him in Narela. Accused Ravinder was not allowing anybody to meet Meena and from the neighbourhood the complainant came to know that accused Ravinder used to beat Meena. In the evening of 26-05- 2004, Meena telephoned complainant and told that accused Babu Lal, accused Pushpender, accused Harender were present at her house and she was fearing for her life. Complainant then went to her house alongwith his wife and son, where in-laws of his daughter were present and they asked him to arrange rupees 3 Lakh till 28-05-2004, and threatened him that in case the amount was not arranged they could do anything. On 28-05-2004, at about 6:30 a.m Meena asked him to come to her house immediately. Complainant told her that he was unable to arrange rupees 3 lakh. On hearing this Meena disconnected the phone. On 29-05-2004, SHO P.S. Narela informed the complainant on telephone that his daughter has been murdered. So the complainant alongwith his family members reached Narela at the house of accused Ravinder.
2. F.I.R. bearing No. 211/04, was registered at P.S. Narela and investigation went underway. During the course of investigation accused persons were arrested. After completion of investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
Sessions Case No: 83/09 Page 3 of 82 43. On 08-04-2005, a charge u/s 498 A r/w Section 34 of IPC, U/s 302 r/w Section 34 of IPC and an alternative charge U/s 304 B r/w Section 34 of IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Thereafter an application U/s 216 Cr.P.C r/w section 300 Cr.P.C. r/w article 20 was moved seeking amendment in the charges framed against the accused persons on 8-4-2005, on the ground that in one earlier proceeding initiated against the accused persons on the complaint of Meena (since deceased) for the offences U/s 498A IPC they all were acquitted vide judgment dated 21-10-2003, passed by the Ld. MM. The Ld predecessor Court observed that the accused persons could no be re-tried for the alleged acts of cruelty meted out by them to Meena either for or in connection with the demand of dowry or of any other nature whatsoever for the period w.e.f. 20-06-1999 till 21-10-2003. The Ld. predecessor further observed that therefore, the charge dated 8-4-2005 needed to be re-framed. The application U/s 216 Cr.P.C was therefore allowed and fresh amended charges were framed observing that "the amendment of charge in fact merely curtail on the alleged period of cruelty for which the accused persons needs to be tried". So again on 14-03-2007, an amended charge U/s 498 A r/w Section 34 of IPC, U/s 302 r/w Section 34 of IPC and an alternative charge U/s 304 B r/w Section 34 of IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Vide this order the period of cruelty was curtailed for the period w.e.f. 20-06- 1999 till 21-10-2003. This order dated 14-3-2007, remained unchallegned and became final.
4. In order to prove the guilt of the accused persons, the Sessions Case No: 83/09 Page 4 of 82 5 prosecution examined as many as 26 witnesses.
5. PW 1 ASI Murti Devi is the duty officer. She proved on record FIR No. 211/04 as Ex. PW 1/A and her endorsement on the rukka as Ex. PW 1/B.
6. PW 2 Constable Karam Bir delivered the copies of FIR No. 211/04 to the senior officers and concerned Ld. MM on 29- 05-2004.
7. PW 3 Mani Ram, PW 4 Shiv Kumar, PW 5 Savitri, PW 6 Gyanwati are the material public witnesses and I will discuss their testimonies in the later part of the judgment.
8. PW 7 R.K. Singh is the nodal officer, Bharti Air Tel Limited. He proved on record the request addressed to the General Manager, Air Tel, Okhla, Delhi by SHO PS Narela to prove the details of mobile phone No. 9818419048 alongwith the cell ID w.e.f 25-05-2004 to 29-05-2004 as Ex. PW 7/A; call details of the above said mobile no. for the said period as Ex. PW 7/B; cell ID Bhati Airtel Ltd. As Ex. PW 7/C; enrollment form as Ex. PW 7/D pertaining to the issuance of SIM card and mobile No. 9818419048. He deposed that the said Sim Card and mobile NO. was issued in the name of Ravinder Kumar S/o Sh. Babu Lal R/o Q. No. 38, Sector 8/5, Saket-6 , D.P. Colony, Narela, Delhi and applicant mentioned his residence phone No. 23813865 in the enrollment form Ex. PW 7/D. He further proved on record the photocopy of driving licence of Ravinder as ID proof as Ex. PW 7/E. PW 7 also proved on record the mandatory certificate as required U/s 65 B of the Indian Evidence Act in connection with the details of mobile No. 9818419048 as Ex. PW 7/F.
9. PW 8 G.P. Singh, ADM, Central Delhi is also a material witness and I will discuss his testimony in the later part of the Sessions Case No: 83/09 Page 5 of 82 6 judgment.
10. PW 9 H.C. Surender Pal is the duty officer. He proved on record the copy of FIR bearing No. 129/01 U/s 498 A IPC as Ex. PW 9/A.
11. PW 10 Dr. B.N. Acharya conducted the postmortem and proved on record the P.M. Report as Ex. PW 10/A. He opined that cut throat injuries are antemortem in nature and are caused by sharp edged weapon and death was due to hemorrhagic shock resulting from cut throat injuries with injury to the blood vessels of neck.
12. PW 11 Ct. Sushil is the photographer of the Crime Team. He took the photographs of the spot on 29-05-2004. He proved on record the photographs as Ex. PW 11/A1 to Ex. PW 11/A8 and negatives of the photographs as Ex. PW 11/B1 to Ex. PW 11/B8.
13. PW 12 SI Rajesh Kumar is the in-charge Crime Team. On 29-05-2004, he reached at the spot with his team; inspected the spot and prepared the report which he proved as Ex. PW 12/A.
14. PW 13 is Ct. Sanjiv Kumar who on 11-06-2004, obtained the exhibits of this case from malkhana moharar vide RC No 76/21; took them to FSL Rohini and deposited there. He obtained the receipt on the RC.
15. PW 14 H.C. Bijender Singh is the MHC(M). He proved on record the relevant entries made by him in register No. 19. He proved on record entry No. 1270 and entry at serial No. 1273 A as Ex. PW 14/A collectively. He also proved on record the copy of RC No. 76/21/04 as Ex. PW 14/B. He deposed that after depositing the exhibits at FSL Rohini, Ct. Sanjiv Kumar had Sessions Case No: 83/09 Page 6 of 82 7 brought the receipt of the same on the carbon copy of the RC form the FSL Rohini and he proved the same as Ex. PW 14/C.
16. PW 15 SI Ram Chander is the first IO of the case and he also remained associated with the second IO during the investigation of the case. He unfolded the sequence of investigation done by him and also narrated about the sequence of investigation done by the second IO in his presence. He proved on record DD No. 6A as Ex. PW 15/A; his endorsement on the rukka as Ex. PW 15/B; seizure memo of blood lifted from the spot, blood stained earth and earth control lifted from the spot as Ex. PW 15/A; brief facts as Ex. PW 15/B; form 25.35 B as Ex. PW 15/C; his application to in-charge mortuary for preserving the dead body as Ex. PW 15/D; application for conducting the postmortem as Ex. PW 15/E; statement of Anand regarding identification of dead body of Meena as Ex. PW 15/F; seizure memo of the pullanda containing blood sample of deceased Meena and her clothes besides the ornaments as Ex. PW 15/G; seizure memo of two railway tickets as Ex. PW 15/H; disclosure statement of accused Ravinder as Ex. PW 15/J; disclosure statement of accused Phoolwati as Ex. PW 15/K; arrest memo of accused Ravinder as Ex. PW 15/L; his personal search memo as Ex. PW 15/M; arrest memo of accused Phoolwati as Ex. PW 15/N; Sketch of the ustra as Ex. PW 15/O; seizure memo of ustra as Ex. PW 15/P; arrest memo of accused Pushpender as Ex. PW 15/Q; his personal search memo as Ex. PW 15/R; disclosure statement of accused Pushpender as Ex. PW 15/S; seizure memo of the pullanda containing clothes of accused Pushpender which he was allegedly wearing at the time of incident as Ex. PW 15/T; seizure memo of the Maruti Car Sessions Case No: 83/09 Page 7 of 82 8 which was used in the commission of murder of Meena as Ex. PW 15/U; seizure memos of the phones recovered from accused Ravinder, Pushpender and Saroj as Ex. PW 15/V, Ex. PW 15/W and Ex. PW 15/X; pointing out memo of the place of incident pointed out by accused Ravinder and Pushpender as Ex. PW 15/Y; seizure memo of the calender as Ex. PW 15/Z. PW 15 also identified the case property.
17. PW 16 SI Manohar Lal is the draftsman. He prepared the scaled site plan of the place of occurrence and proved on record the same as Ex. PW 16/A.
18. PW 17 SI R.K. Man deposed that on 5-8-2004, he alongwith Inspector Mahipal Singh and Ct. Kuldeep reached H. No. 252, Old Chandrawal, Civil Lines during investigation of this case where accused Babu Lal and Harshender were present. He further deposed that Inspector Mahipal interrogated both of them and arrested them vide memos Ex. PW 17/A and Ex. PW 17/B respectively and their personal search was conducted vide memos Ex. PW 17/C and Ex. PW 17/D respectively. He further deposed that both of them made their disclosure statements as Ex. PW 17/E and Ex. PW 17/F.
19. PW 18 is Lady Ct. Sheela who on 30-05-2004, conducted the personal search of accused Phoolwati in the police station vide memo Ex. PW 15/O which bears her signature at point B. Accused Phoolwati also made her disclosure statement Ex. PW 15/K which bears the signature of PW 18 at point B.
20. PW 19 Ct. Ishwar Singh deposed that on 29-05-2004, on receiving DD No. 6 A he accompanied SI Ram Chander and Ct. Ram Nihor to H. No. 38 Pkt. 6 Sector A-5, Narela Police Sessions Case No: 83/09 Page 8 of 82 9 Colony and in the said house he had seen a dead body of a lady lying on the floor. He further deposed that he had also noted that there were cut marks on the neck of the said dead body and blood was lying on the floor.
21. PW 19 also deposed that SI Ram Chander lifted blood stained earth on a piece of cotton, earth control and also the blood by way of cotton. These were then sealed separately by placing in separate jars and the seal of MPS was appended. These three articles were then seized vide memo Ex. PW 15/A which bears his signature at point X. He further deposed that under his supervision the dead body was sent for postmortem in BJRM Hospital. He further deposed that after the postmortem the doctor handed over to him blood sample duly sealed with the seal of BJRM hospital and a sample seal and he handed over these two articles alongwith a sealed polythene allegedly containing clothes of deceased to the IO who seized the same vide memo Ex. PW 19/A.
22. PW 20 L/H.Ct. Shashi Tyagi filled the information in the PCR form about a lady lying dead in House No. 38 Narela Police Colony, Pkt 6 Sector A-5 and handed it over to the official managing the NET for onward transmission. She proved on record the copy of the PCR form as Ex. PW 20/A.
23. PW 21 Ct. Rakesh Kant was residing in Qtr. No. 37, Sector A-5, Pkt. 6 Police Colony, Narela. In his adjacent quarter No. 38 accused Ravinder was residing with his wife Meena and a small child. PW 21 upon peeping inside the house of accused Ravinder saw Meena wife of accused Ravinder lying dead on the ground and blood was lying scattered around her head. He then immediately rang up PCR at No. 100 through his mobile phone Sessions Case No: 83/09 Page 9 of 82 10 No. 9810691495.
24. PW Ct. Rakesh Kant has also been inadvertently examined as PW 20 and he deposed on the same lines as deposed by him while he was examined as PW 21.
25. PW 21 is Ct. Ram Nihor. He should have been examined as PW 22 but it seems that due to some typographical error he has been examined as PW 21. This witness took the rukka prepared by SI Ram Chander to the police station Narela and got the present case registered.
26. PW 22 H.C. Sanjeev Kumar took the exhibits of this case from MHC(M) vide Road Certificate No. 76/21 in sealed condition to deposit the same at FSL office Rohini. He took the same to FSL office and deposited the same there. He further deposed that thereafter he handed over the copy of road certificate to MHC(M) on the same day regarding the receipt of exhibits at FSL office.
27. PW 23 Anuj Bhatia is the nodal officer from Hutch / Vodaphone Mobile Service. She deposed that the original documents pertaining to the ownership and call details of mobile phone No. 9899798669 of Hutch company were not available in his office as the same has been misplaced. He deposed that Mark L i.e Cell I.D. Chart (5 sheets) if of their company i.e Hutch Company. He also deposed that he had no idea about the misplacement of the said document as the same pertained to the year 2004 when he was not posted in the department.
28. PW 24 Retd. Inspector Mahipal Singh is the second IO of the case. He unfolded the sequence of investigation conducted by him and proved on record the site plan of the place of occurrence prepared by him as Ex. PW 24/A. Sessions Case No: 83/09 Page 10 of 82 11
29. PW 25 Ms. Shashi Bala, Sr. Scientific Assistant (Biology) FSL Rohini, Delhi prepared her detailed biology report which she proved on record as Ex. PW 25/A.
30. PW 26 Sh. Parshuram Singh, Sr. Scientific Officer (Physics), FSL Rohini, Delhi proved on record his report as Ex. PW 26/A.
31. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and all the incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated in this case. Accused Ravinder, Phoolwati and Pushpender also led defence evidence and in their defence they examined Dr. Binay Kumar as DW 1, Smt. Saroj as DW 2, Sh, Jeevan as DW 3, Sh. Jaswant as DW 4, Sh. Vishal as DW 5 and accused Pushpender Kumar also examined himself as DW 6 and accused Ravinder examined himself as DW 7.
32. I have heard Ld. Addl.PP for the state and Ld. counsel for the accused persons and have also gone through the records of the case.
33. It is submitted by the Ld. Addl. PP for the state that all the accused persons have harassed Meena for demand of dowry and when her father was unable to fulfill the demand, she was killed. He further urged that the call record of accused Pushpender and accused Ravinder clearly shows that on the day of the incident they were present in Narela. It is further urged by the Ld. APP that Meena has been murdered in a very planned manner and her murder has been given a colour of robbery. It is further urged by the Ld. Addl. PP for the State that the previous conduct of the accused persons shows that Meena was Sessions Case No: 83/09 Page 11 of 82 12 continuously harassed by them for dowry since the day of the marriage and for their conduct an FIR bearing No. 129/2001 U/s 498 A IPC was registered in PS Civil Lines. It is further urged that the alibi of accused Ravinder and Pushpender is a false alibi and at the time of the murder they were very much present in Narela. It is further urged that even if some discrepancies have occurred in the testimonies of the witnesses, those does not effect the case of the prosecution. It is further urged by the Ld. Addl. PP for the State that parents and the brother of the deceased has supported the case of the prosecution and on the basis of the evidence and the material available on record, all the accused persons are liable to be convicted.
34. On the other hand, it is submitted on behalf of the accused persons that the perusal of order dated 21-10-2003, of the Ld. MM before whom the matter was compromised shows that she has lodged the complaint out of frustration and anger. It is further urged that after the death of Meena the IO and the parents of the deceased have cooked up a false story in order to solve a blind murder case. It is further urged that accused Ravinder was separately residing with Meena since 2003 in the police quarter and there is not even a single complaint against the accused persons prior to her death when allegedly a demand was raised 3 days prior to death. It is further urged that there are improvements in the testimonies of the witnesses. It is further urged that accused Pushpender was admitted in S.G.M. Hospital on the day of the incident and he has been falsely implicated. It is further urged that the IO had not joined any public witness at the time of the recoveries. It is further urged that the sketch of Ustra exhibit PW 15/O and the disclosure statement of accused Sessions Case No: 83/09 Page 12 of 82 13 Pushpender which is Ex. PW 15/S does not carry the date of preparation which shows that all the documents were fabricated in the police station. It is further urged that accused Pushpender, accused Babu Lal, accused Harender and accused Phoolwati were residing separately from the deceased and they were not interfering in the married life of deceased Meena and accused Ravinder. For this he relied upon Prem Singh Vs. State of Haryana (1998) 8 SCC 70. It is further urged that no reliance can be placed on the call record documents as the mandatory certificate U/s 65 B of the Evidence Act has not been produced either by PW 23 or PW 27. It is further urged that there was no animosity between accused Ravinder and his wife Meena since all their matrimonial disputes were compromised and they started living separately from other accused persons. It is further urged that the predecessor Court has curtailed down the period of cruelty since the date of Marriage i.e 20-6-1999 till the date of statement of Meena since deceased before the Ld. MM on 21- 10-2003. It is further urged that there has been no complaints against the accused persons from October 2003 to May, 2004. It is further urged that the prosecution has failed to produce the last seen witness who could say that accused Ravinder and Meena were together. It is further urged that the house was found ransacked by the IO which gives credence to the theory of the accused persons that the robbery was committed. It is further urged that the signatures of the accused persons were taken on blank papers which were lateron converted into disclosure statements.
35. At the outset, the Ld. Addl. PP for the state has also not disputed the fact that the period of cruelty was curtailed by the Ld. Sessions Case No: 83/09 Page 13 of 82 14 Predecessor of this court vide order dated 14-03-2007.
36. For the purpose of this case, Sections 304 B IPC and 498 A IPC, the said provisions alongwith section 113 B of the Evidence act are relevant. The same are extracted herein under :
"304 B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purpose of this sub- section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, cruelty means-
a) any willful conduct which is of such a nature as is likely to derive the woman to commit suicide or to cause grave injury or danger to life, limb or health Sessions Case No: 83/09 Page 14 of 82 15 (whether mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
113 B. Presumption as to dowry death.-
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.- For the purposes of this section, dowry death shall have the same meaning as in section 304 B of the Indian Penal Code (45 of 1860)."
37. In K. Prema S. Rao and another V. Yadla Srinivasa Rao and others - (2003) 1 SCC 217 it has been held as under in paragraph 16:
"To attract the provisions of Section 304-B IPC, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry"".
38. In Kaliyaperumal and another Vs. State of Tamil Nadu (2004) 9 SCC 157 paragraph 5 is relevant which reads as under:
"5. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The expression "soon before" is very Sessions Case No: 83/09 Page 15 of 82 16 relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression soon before is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the Sessions Case No: 83/09 Page 16 of 82 17 expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and life link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
39. Now coming to the relevant witnesses, PW 3, father of the deceased has narrated the sequence of events from the day of the marriage till the death but as already observed hereinabove the period of cruelty has been curtailed down vide order dated 14- 03-2007, so in view of this, it would be appropriate to read the testimony of this witness and other witnesses excluding the events / harassments / cruelty which took place during 20-6-99 to 21-10-2003. This has also not been opposed by the Ld. Addl. PP for the state during the course of the arguments because the order dated 14-3-2007 became final as it was not challenged.
40. PW 3 has deposed that in the year 2003, the matter was compromised but the accused persons did not allow him to meet his daughter . He further deposed that a police quarter was allotted to accused Ravinder at Narela and Meena went to live with him but again he was not allowed to meet Meena. He further deposed that during winter they had gone to give her woolen clothes but they were not allowed to meet Meena. But they were told by neighbours that Meena was being beaten by accused Ravinder.
41. He further deposed that on 26-5-2004, Meena Sessions Case No: 83/09 Page 17 of 82 18 telephoned him and said that her father-in-law Babu Lal, Jaith Pushpender, mother-in-law Phoolwati, Devar Harshender and her husband Ravinder have gathered at her house and she was apprehending danger to her life. He further deposed that he alongwith his wife and son went to her matrimonial home where all the accused persons were present and they demanded Rs. 3 Lakh from him. He further deposed that they directed him to give Rs. 3 Lakh on or before 28-5-2004, till 12 noon. He further deposed that accused Babu Lal made it particular that the amount should be given by the dead line fixed. He further deposed that on 28-5-2004, his daughter Meena telephoned him in the morning and asked him to come immediately to her house. He told her that he could not arrange Rs. 3 Lakh and on hearing this she disconnected the phone. On 29-5-2004, he was informed by SHO Narela about the murder of his daughter Meena.
42. He proved his statement given by him to SDM Alipur as Ex. Pw 3/C. He further deposed after seeing the photograph of his daughter that she was having injury marks on her body. He further deposed that at the time of her death her daughter was 7 months pregnant.
43. PW 4 Shiv Kumar, brother of the deceased deposed that after the compromise between accused Ravinder and deceased Meena they started living in Narela Police Colony in the year 2003. He further deposed that on 26-5-2004, his sister made a telephone call to his father and told that all the accused persons had gathered at her Narela Police Colony Quarter and she apprehended danger to her life. He further deposed that he alongwith his parents immediately rushed to the quarter of his sister where all the accused persons were present. He further Sessions Case No: 83/09 Page 18 of 82 19 deposed that accused Babu Lal demanded Rs. 3 Lakh from his father and asked his father to pay the same on or before 28-5- 2004, by 12 noon. He further deposed that his father expressed his inability to pay such a huge amount at such a short notice but accused Babu Lal stated to his father that the money should be handed over to them in time, otherwise, "Hum Kuchh Bhi Kar Sakte Hai". He further deposed that all the other accused were also present when these words were uttered by accused Babu Lal to his father. He further deposed that again on 28-5-2004, his sister Meena telephoned her father and asked him to come immediately but when his father stated that amount could not be arranged then she disconnected the phone. He further deposed that on 29-5-2004, they received an information from SHO Narela about the death of his sister.
44. PW 6 Gyanwati is the mother of the deceased. She has deposed that on 26-5-2004, in the evening her daughter Meena had made a telephone call and talked with her husband who told her that Meena had told him about the presence of accused Babu Lal, Jaith Pushpender, Devender Harshender, mother-in- law Phoolwati in her house and she apprehended danger to her life. She further deposed that Meena also told that accused persons were saying that if their demand of Rs. 3 Lakh is not fulfilled then they can do anything. He further deposed that her husband told that he was not in a position to give Rs. 3 Lakh. She further deposed that when they reached at the house of accused Ravidner at Narela, accused Babu Lal was insisting that cash amount of Rs. 3 Lakh should reach timely. She further deposed that on 28-5-2004, his daughter Meena made a call at her house at about 6:30 a.m and the call was received by her husband.
Sessions Case No: 83/09 Page 19 of 82 20Meena asked her husband to reach Narela immediately. But her husband told her that he was unable to make arrangement of Rs. 3 Lakh as per the demand of accused persons. But thereafter the phone was disconnected by Meena and on 29-5-2004, they received a phone call from SHO P.S. Narela about the death of their daughter.
45. PW 8 is Sh. G.P. Singh, A.D.M Central. He deposed that on 1-6-2004, he was posted as SDM Narela. The IO called him and informed about death of a lady in police colony. He was also informed that the death had taken place within 7 years of the marriage and the name of the lady was disclosed as Meena. He further deposed that he was informed that the incident had taken place a few days ago but not realizing the fact that the lady was married for less than 7 yeas so instead of registering a case of dowry death the police had registered a case of murder, but now they wanted him to record the statement of the relatives of the deceased. So he asked the IO to bring the witness to him on that day itself i.e on 1-6-2004. He further deposed that on 1-6-2004, IO brought with him father, mother and brother of deceased Meena and their statements were recorded. He proved the statement of Mani Ram as Ex. PW 3/C; statement of Gyanwati as Ex. PW 6/DB and that of Shiv Kumar as Ex. PW 8/A.
46. It was argued by the Ld defence counsel that the accused persons had no motive to kill Meena as there was no animosity between them and the previous matter was compromised on the statement of Meena wherein she stated before the Ld. Magistrate that out of frustration and anger she had lodged the complaint. No doubt such statement must have been made by Meena before the Ld. Magistrate but that does not Sessions Case No: 83/09 Page 20 of 82 21 mean that nothing had happened between the accused persons and Meena which culminated in the registration of FIR bearing No. 129/2001. Accused Ravinder had even filed a divorce and a theft case against her. It is also on record that accused Ravinder and Babu Lal were Govt. Servant so it was important for them that the criminal proceedings against them should end which subsequently ended into a compromise wherein the above said statement was made by Meena. It is a matter of fact that whenever a compromise is effected no allegations and counter allegations are levelled and generally the complainant makes some lame excuses for the withdrawal of the complaint, moreso, in matrimonial cases the courts also takes a lenient view in order to ensure that the matrimonial home is safe. So looking into the previous history of this case accused Ravinder had a very strong motive to get rid of his wife with whom his relations were very much strained since the day of his marriage.
47. Now coming to the testimony of the parents and brother of the deceased. The parents of the deceased have categorically stated that when after the compromise Meena shifted with accused Ravinder to police colony they were not allowed to meet her and even told by the neighbours that Meena was beaten by accused Ravinder although in their cross examination they could not name the neighbours who told them about the beatings being given to Meena by accused Ravinder. They had also deposed that during winter time they had gone with some woolen clothes to be given to Meena but again they were not allowed to do so. But again in their cross examination they could not tell the exact date when they had gone to give the clothes. To my mind not giving such date cannot make their testimonies untrustworthy. It Sessions Case No: 83/09 Page 21 of 82 22 is highly improbable for a normal human being to remember each and every date and time. Otherwise, there is nothing in their cross examination to make them unbelievable. It is also a matter of common knowledge that public persons and neighbours prefer to keep themselves away from any controversy, moreso when it is police case. According to the witnesses accused Ravinder did not allow Meena to meet with her parents when she was living in matrimonial home, which also tentamounts to cruelty.
48. PW 3 has categorically stated that on 26-5-2004, telephone call was received by him about the presence of all the accused persons at her matrimonial house and when he alongwith his wife and son reached there a demand of Rs. 3 Lakh was made from him and accused Babu Lal had even fixed the dead line for payment as 28-5-2004. This part of his testimony finds corroboration from the testimony of PW 4 Shiv Kumar and PW 6 Gyanwati. In the cross examination of PW 3 though there is some improvement regarding the mentioning of the names of accused Phoolwati and Ravinder but it is not the case of the defence that at that time Ravinder who is the husband of the deceased was not present in the house. This witness has further stated in the cross examination that all the accused persons were present in the house of Meena when he went there. He denied the suggestion that he had not gone to the house of Meena on 26-05-2004. PW 4 has also corroborated the version of PW 3 regarding the demand of Rs. 3 Lakh made on 26-5-2004 and further fixing of dead line by accused Babu Lal about the payment of Rs. 3 Lakh on or before 28-5-2004. He has also corroborated PW 3 regarding presence of all the accused Sessions Case No: 83/09 Page 22 of 82 23 persons in the house of Ravinder on 26-05-2004. In the cross examination he clarified that in his statement Ex.PW 4/DA instead of accused Babu Lal he has mentioned Sasural walo by which he meant all the five accused persons. He further stated in his cross examination that all the other accused persons were endorsing the demand of Rs. 3 Lakh made by accused Babu Lal.
49. PW 6 mother of the deceased has also corroborated the testimonies of PW 3 and PW 4 regarding their visit to the matrimonial house of Meena. She has categorically deposed that on 26-5-2004, when she reached the house of accused Ravidner at Narela, all the accused persons were present there and a demand of Rs. 3 Lakh was made. In the cross examination, she stated that 26-5-2004 was the last occasion on which demand of dowry was made by the accused persons. She was put the following questions by the Ld defence counsel :
Q. Who had asked you for giving money on 26-5-2004? Ans. All the accused persons had demanded money on that day. Q. Whether all of them had asked for money in chorus? Ans. It was not in chorus but it was asked together. Vol. They were all speaking and demanding intenderum. Accused Babu Lal had specifically asked that "Paisa Samai Par Pahuch Jay Nahi To Hum Kuchh Bhi Kar Sakte Hai.''
50. So from the testimonies of these witnesses, it is crystal clear that all the accused persons were present in the house at Narela and a demand of Rs. 3 Lakh was raised on 26-4-2005.
51. It was argued by the Ld defence counsel that if there was a threat to life of Meena as stated by the witnesses then why no complaint was lodged with the police. On the other hand it is submitted by the Ld. Addl. PP for the state that as per the parents Sessions Case No: 83/09 Page 23 of 82 24 of the deceased the accused persons had threatened them in case any complaint was lodged. In the cross examination PW 3 father of the deceased stated as follows : "I found the apprehension of Meena to be genuine however, I did not lodge any complainant regarding the said apprehension with any authority. Vol. Earlier also accused persons had been telling me that in case any complaint will be lodged then Meena will be killed. I had not stated the aforesaid volunteered part of my statement in any of my three statements Ex. PW 3/C, Ex. PW 3/DA and Ex. PW 3/DB as I had stated upon the question put by the Ld defence counsel only." Similarly, PW 6 who is the mother of the deceased in her cross examination stated "on 26-5-2004, also we did not lodge any complaint with any authority because the threatening was given." So both these witnesses are corroborating each other and have explained the reason why the complaint was not lodged with the police or any other authority. It is also pertinent to mention here that the past history of the disputes between Meena and accused persons which resulted in the registration of FIR must have weighed heavily on their minds and also the fact that Meena was seven months pregnant.
52. It was also argued that the statement of the witnesses were recorded after a considerable delay by the SDM. The SDM has been examined as PW 8 and he has given the reason as to why the statements of the relatives of the deceased were recorded on 1-6-2004. He has deposed that since it was not realized that a women died within 7 years of the marriage so a case of murder was registered instead of a dowry death case and it was only when the IO realized that the death had taken place Sessions Case No: 83/09 Page 24 of 82 25 within 7 years of the marriage, so the SDM told the IO to bring the witnesses to him.
53. The ingredients of the offence to be established U/s 304 B IPC have already been discussed hereinabove. One of the ingredient is that "soon before the death" of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry. In the present case, as per the testimonies of the witnesses the demand of Rs. 3 Lakh was made on 26-5-2004 and Meena died on the intervening night on 28/29-5-2004. So there was a live and proximate connection between the demand and the death. It is also pertinent to mention here that on 28-5- 2004, Meena had asked her father about the money and when his father showed his inability she disconnected the phone abruptly which shows that something was going on in her matrimonial home. The death of Meena since deceased was not under normal circumstances, she had bodily injuries as mentioned in the P.M. Report Ex. PW 10/A which resulted in her death. It is evident from the evidence of the parents and brother of the deceased that she was being harassed and a sum of Rs. 3 Lakh was being demanded by the accused persons and that too 2-3 days prior to her death. The marriage took place on 20-06- 1999 and Meena died on 29-05-2004 i.e within the 7 years of the marriage. So all the ingredients of Section 304 B IPC are fulfilled in this case.
54. Therefore, the prosecution has been able to establish the basic ingredients of Section 304 B IPC. All the above factors clearly established the legal requirement for an offence falling U/s 304 B and Section 498 A IPC with the aid of Section 113 B of the Evidence Act conclusively proves the guilty of the accused Sessions Case No: 83/09 Page 25 of 82 26 persons. So all the accused persons are held guilty and convicted U/s 304 B/498A/34 IPC.
55. The accused persons have also been charged U/s 302/34 IPC for the murder of Meena.
56. Call Records : According to the prosecution on the day of the incident accused Ravinder and accused Pushpender were present in the area of Narela and at that time accused Ravinder was using mobile No. 9899798669 belonging to Saroj wife of Pushpender and accused Pushpender was using mobile No. 9899167335. In order to prove the location of the accused persons in Narela the prosecution has examined PW 7 R.K. Singh Nodal Officer Bharti Air Tel Limited. He has deposed that on 31-5-2004 a request was made to the company to provide the call details of phone No. 9818419048 alongwith the Cell ID w.e.f 25-5-2004 to 29-5-2004. He has proved the request letter as Ex. PW 7/A. He further deposed that he had provided the call details of the above said mobile for the aforesaid period vide Ex. PW 7/B. He further deposed that as per the record of the company the said mobile phone was in the name of accused Ravinder. He proved cell ID consisting of 72 pages as Ex. Pw 7/C, enrollment form as Ex. PW 7/D and photocopy of driving licence of accused Ravinder as Ex. PW 7/E. According to him the SIM card and mobile No. i.e 9818419048 was issued in the name of accused Ravinder and he further deposed that the applicant mentioned his land line no. as 238138 in the enrollment form.
57. In the cross examination he stated that the original of Ex. PW 7/D and Ex. PW 7/E were not available and further stated that Ex. Pw 7/D is the scanned copy of the original and Ex. PW 7/E is the photocopy submitted by the customer i.e. accused Sessions Case No: 83/09 Page 26 of 82 27 Ravinder. He further stated that the scanning of Ex. PW 7/D and of Ex. PW 7/E had not taken place in his presence. He further stated that he had not seen the originals of said two documents. He further stated that Ex. Pw 7/B was issued by him and the work had taken place in his office under his supervision.
58. When this witness came to depose in the court for the first time i.e on 18-10-2007, he had not brought the necessary mandatory certificate required U/s 65 B of he Indian Evidence Act. Subsequently he was recalled and he proved the certificate U/s 65 B of the Indian Evidence Act in connection with the details of mobile No. 9818419048 as Ex. PW 7/F.
59. It was argued by the Ld defence counsel that the call records and cell ID records produced by PW 7 cannot be read in evidence because no certificate U/s 65 B of the Indian Evidence Act was filed alongwith the call records when PW 7 was examined for the first time in the court i.e on 18-10-2007. It was only subsequently i.e on 4-12-2010, the certificate U/s 65 B in respect of the documents / electronic records was filed in the court. He relied upon Anvar P.V. Vs. P.K. Basheer Civil Appeal No. 4226 of 2012 decided on 18-09-2014 by the Hon'ble Supreme Court of India.
60. PW 23 Anuj Bhatia Nodal Officer Hutch Vodaphone after seeing documents mark A, mark B, mark C, mark D, mark E, mark F, mark G, mark H, mark J, mark K pertaining to ownership and call details of mobile phone no. 9899798669 deposed that the said documents are of their company but the original documents are not available and the same have been misplaced. He further deposed that mark L i.e cell ID chart is of their company but he has no idea about the misplacement of the Sessions Case No: 83/09 Page 27 of 82 28 documents as they pertain to the year 2004 when he was not posted in the department. In the cross examination he stated that documents Mark A to Mark L pertain to two mobile phone numbers i.e 9899798669 and 9899167335. This witness has also not produced any certificate U/s 65 B of the Indian Evidence Act in support of the cell ID chart. As already observed PW 7 has not produced the certificate U/s 65 B of the Indian Evidence Act alongwith the call records and cell ID chart. It has also not been stated by this witness that the certificate U/s 65 B of the Indian Evidence Act was obtained at the time of making the documents. So the same cannot be read into evidence in view of the judgment Anvar P.V. Vs. P.K. Basheer "supra" wherein it has been held that :
"The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by Sessions Case No: 83/09 Page 28 of 82 29 way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
61. So in these circumstances, the prosecution has not been able to prove that mobile No. 9899798669 which according to the prosecution belonged to Saroj wife of Pushpender was being used by Ravinder on the day of the incident and mobile No. 9899167335 which was with accused Pushpender were operating from the area of Narela.
62. ALIBI : According to accused Ravinder on the night of the incident i.e the night intervening 28/29-05-2004, he was on his way to Gwalior alongwith his mother Poolwati by Habib Gunj express and according to accused Pushpender he was admitted in S.G.M. Hospital so it was not possible for them to have committed the murder of Meena.
63. In order to prove his alibi accused Ravinder examined Jaswant as DW 4 who deposed that on 29-5-2004 at about 4:30 / 5:00 a.m his Jeeja i.e accused Ravinder and his mother accused Phoolwati came to his house. He further deposed that his sister was married with Pushpender and since Ravinder is brother of Pushpender so he used to call Ravinder as Jeeja. He further deposed that at that time Ravinder was not keeping well and he had come to meet his grand mother aged around 75/80 years who was on death bed and also for his own treatment. He further deposed that at about 7:30 am they left for the house of bua ji of Sessions Case No: 83/09 Page 29 of 82 30 accused Ravinder. He further deposed that on 6-6-2004 his grandmother expired.
64. In his cross examination he stated that no other relative came to see his grand mother. He further stated that prior to 29- 5-2004 and after 29-5-2004, his relatives used to visit his house for seeing the condition of his grandmother but he was unable to tell their names. He further stated in his cross examination that he cannot tell by which mode/conveyance accused Ravinder and Phoolwati had come to his house. He further stated that at that time accused Ravinder used to walk with the assistance of a stick and his one eye was having some problem. He further stated that he had not inquired from his Jeeja as to why he had come to Gwalior in such a condition. He admitted that there are good medical facilities in Delhi then Gwalior. He further stated that he had not visited any doctor on that day. He further stated that they remained in his house for about 2 hours and thereafter went to his bua's house. He further stated that bua ji of the accused never visited his house to see the condition of his grand mother. He further stated that he had not informed any authority that accused Ravinder and his mother were at his house in Gwalior on 29-5-2004. He further stated that his Jeeja Pushpender never visited his grandmother.
65. Accused Ravinder examined himself as DW 7. He deposed that he was married with Meena on 20-6-1999 and it was a dowry less marriage. His in-laws used to interfere in his married life and wanted him to become their Ghar Jamai. He further deposed that they also used to demand money from him form time to time fur running their business, so he helped them once or twice. He further deposed that they became angry and in Sessions Case No: 83/09 Page 30 of 82 31 order to pressurize him got a false case registered against him and his family members and all the cases were compromised in the year 2003. Thereafter he shifted with Meena in the year 2003 to his Govt. Quarter and stated living happily. He further deposed that on 23-4-2004, he was admitted in Sant Parmanand Hospital as he was suffering from headache (tuberculous meningitis) and remained admitted in ICU in economy ward up to 8-5-2004. He further deposed that due to his ailment he developed weakness and vision of his left eye was also effected. He further deposed that he was getting treatment from IHBAS for headache. He further deposed that as he was unable to get any relief from allopathic treatment so he was advised spiritual treatment. He further deposed that on 28-5-2004, he boarded a TSR with the help of his wife Meena for his ancestral property at Old Chandrawal Delhi and from there he alongwith his mother left for Hazarat Nizamuddin Station to board Habib Gunj Express for Gwalior. He further deposed that they reached Gwalior in the house of the in-laws of his brother Pushpender at about 4:30 / 5 a.m. and met grandmother-in-law of Pushpender who was on death bed. Thereafter he visited the house of his bua Parvati at about 7:30 / 8 a.m to see the danda mar baba for his spiritual treatment. He further deposed that at about 9 a.m he received a call from PS Narela that some casualty had taken place in his house and he was asked to come back immediately. He further deposed that he left Gwalior at about 10 a.m in a train for Delhi and reached Nizamuddin Railway Station at about 2:30 p.m and reached PS Narela in a TSR.
66. He further deposed that IO threatened him and gave beatings to him in order to compel him to confess the crime which Sessions Case No: 83/09 Page 31 of 82 32 was never committed by him. He further deposed that IO of the case demanded Rs. 2.5 Lakh from him and when he showed his inability the IO took him and his mother to PS Narela and confined them and detained them illegally from 29-5-2004 to 30- 5-2004 and on 31-5-2004 they were produced before the court and two days PC remand was given to the police. He further deposed that he was kept in the police station during the remand period and was not taken anywhere and IO took his signatures on blank papers. He further deposed that nothing was recovered from him or at his instance and all the proceedings were conducted in the police station. He further deposed that in the year 2005, he recovered his vision and visited his Govt. Flat at Narela on parole and found that his household articles were scattered and most of the valuable articles were missing and the same was giving an impression as if robbery/theft had taken place. He further deposed that he lodged a written complaint with the court, LG and CP of Delhi but no action was taken. He proved his complaint sent to LG from jail as Ex. DW 7/A.
67. He was cross examined and in his cross examination he stated that the marriage was done through a mediator whose name he does not remember but he had made complaint to the mediator about the unnecessary interference in his married life by the parents of the deceased. He further stated that he helped the parents of the deceased financially with a sum of Rs. 10,000/- to Rs. 50,000/- and the help was asked by his father-in- law. He stated that he had not produced any medical record to show that on 23-4-2004, he was admitted in Sant Parmanand Hospital and was discharged on 8-5-2004. He was again re- examined and placed on record the medical documents with Sessions Case No: 83/09 Page 32 of 82 33 regard to his treatment at Sant Parmanand Hospital which are collectively marked as Mark DW 7/B and the complaint lodged by him U/s 156 (3) Cr.PC is marked as Ex. DW 7/C. He stated in his cross examination that it is correct that the discharge summary mark DW 7/B is not readable. He also admitted it to be as correct that from the medical documents mark DW 7/B the identity of Ravinder Kumar is not established. He denied that the medical documents does not pertains to him or they are forged and fabricated. He admitted that the medical documents Ex. DW 7/B does not contain any medical bill for the medicine purchased by him. He also admitted that Ex. DW 7/B does not contain any CGHS document which shows that he had taken the medicine from CGHS. He admitted that he had claimed the medical reimbursement from his department but nothing has been placed on record by the accused. He admitted that prescription slip dated 22-4- (year not mentioned) does not bears the name of the concerned doctor. He denied that he never lost his vision at any point of time. He denied the suggestion that on 28-5-2004, he had not boarded a TSR for Chandrawal. He denied that he had not boarded Habib Gunj Express for Gwalior. He denied that he has filed a false plea of alibi.
68. It was argued by the Ld defence counsel that at the time of the incident the accused was not present in his house and he was on his way to Gwalior. It is further urged by him that as per the testimony of PW 24 who is one of the IO of the case when he contacted the accused on the mobile No written on the calender he told the IO that he was in Gwalior. It is further urged that the accused had handed over two tickets to the IO which were seized vide memo Ex. PW 15/H. So it was argued that there was no Sessions Case No: 83/09 Page 33 of 82 34 question of accused committing the crime.
69. On the other hand, it was urged by the Ld. Addl. PP for the state that a fake alibi has been set up by the accused. It is further urged by him that the onus to prove alibi was heavy on the accused and the same has not been discharged by him.
70. A plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. When a plea of alibi is raised by an accused, it is for the accused to establish the said plea by positive evidence. Reliance can be placed upon Brij Lal Prasad Sinha Vs. State of Bihar 1998 Supreme Court 2443 and State of Maharashtra Vs. Nar Singh Rao Ganga Ram 1984 Criminal Law Journal Page 4.
71. It is not in dispute that the accused Ravinder and Meena were residing in police Quarter Narela where Meena died unnatural death. According to the prosecution accused Ravinder and accused Pushpender in the night of 28-05-2004, were present in the area of Narela which was evident according to the prosecution from the call details record of their mobile phone. But as already discussed hereinabove, the call details have not been proved by the prosecution as per law.
72. Now according to accused Ravinder he left for Gwalior alogwith his mother from Nizamuddin Station by Habib Gunj Express. No witness has been examined by him who could say that the said journey was undertaken by him. The stand of the accused is that he had gone to Gwalior for his treatment and to see the ailing grandmother in-law of his brother Pushpender. First of all the accused has not been able to prove on record that he was suffering from any ailment as stated by him. The Sessions Case No: 83/09 Page 34 of 82 35 documents placed by him on record also does not reveal that he has received any treatment as alleged by him. There is no document from any ophthalmologist to show that he was suffering from any eye ailment. All the documents produced by the accused are photocopies and there is no explanation as to why the original documents have not been produced in evidence. No permission was sought from the Court to produce secondary evidence. So this ground that he was suffering from ailment could not be proved by the accused.
73. One of the other reason for accused visiting Gwalior was to see the ailing grandmother in-law of his brother Pushpender but it is highly surprising that accused who is himself stating that he was walking with the help of stock and his vision was also not right visited grandmother-in-law of his brother at Gwalior when according to DW 4 Jaswant accused was the only person to have visited her and no other relative visited the house of DW 4 to see the ailing grandmother. It has also come in the testimony of PW 4 that neither Ravinder nor Pushpender nor Phoolwati went to Gwalior in the cremation of grandmother-in-law of Pushpender and it is also not the case of the accused that any one of them including Ravinder ever attended last rites ceremonies of the grandmother-in-law. According to DW 4 he had not informed any authority that accused Ravinder and his mother were at his house at Gwalior on 29-5-2004. This conduct of DW 4 is also very strange as to why he did not inform any authority/police that look, accused Ravinder and his family members could not have committed the crime as accused Ravinder and Phoolwati were in Gwalior on 29-5-2004. This has not been done by him which throws doubt on his testimony. Moreover, death certificate of Sessions Case No: 83/09 Page 35 of 82 36 grand-mother-in-law has also not been placed on record to show that she actually died and when she died. The accused has produced two railway tickets which were seized vide memo Ex. PW 15/H but the tickets are of general class and nowhere from the tickets it can be said that the journey from Nizamuddin to Gwalior and from Gwalior to New Delhi was undertaken by accused Ravinder and his mother on those tickets which are Ex. X-1 and X-2. It is also pertinent to mention here that accused has not disclosed the name of the train which he took from Gawalior to New Delhi. The accused had then examined himself as DW 7 but he could not prove on record that he was suffering from any ailment. He could not produce on record any CGHS document to show that any reimbursement was claimed by him from his department. He could not prove that medicines were purchased by him from the market or that he took medicine prescribed from the CGHS store. As already observed hereinabove he has also not produced any cogent evidence to show that he was suffering from any eye ailment. So the stand of the accused that he had gone to Gwalior on the day of the incident cannot be believed.
74. It is also pertinent to mention here that the IO PW 24 has deposed that when he went to the house of the accused after the murder he saw a calender hanging on the wall in which the accused has written his mobile number as "self 9818419048". I have perused the calender which is Ex. X-3 and the perusal of the same shows that the number "self 9818419048" has been written on the calender in unusually big font likewise the number of the parents of the deceased and of his own house have also been written in big fonts but the number "self 9818419048"
written on the calender appears to be written in such a manner Sessions Case No: 83/09 Page 36 of 82 37 that it can immediately catch the attention of the person visiting the house of accused Ravinder. This is what actually happened in this case when after the murder IO went inside the house, the number written on the calender caught his attention and he immediately telephoned accused on the number mentioned as "self" on the calender which accused Ravinder was expecting and from the other side the accused quickly responded. The manner of writing the number was nothing but an invitation to call the accused.
75. The accused has further stated in his deposition when he appeared as DW 7 that he used to give financial help to the father of the deceased but no where this has been suggested to the father of the deceased and to any other prosecution witness. The accused according to him had visited the house of his bua ji but has failed to examine his bua. Parvati (bua of accused) was cited as a witness by the prosecution but she failed to appear in the court and became untraceable. She was also not produced by the accused for the reasons best known to him. He has also not given the details of Latth Mar Baba from where he was supposed to get the treatment. But since the accused has not been able to show that he was suffering from any ailment on the date of the incident so in my opinion, the question of getting his treatment from latth mar baba is also not truthful. The onus was heavy on the accused but the same could not be discharged by him. He made his best efforts to set up a perfect alibi but he has failed.
76. Accused Pushpender has also led defence evidence in order to setup alibi and examined 5 witnesses in his defence.
77. DW 1 Dr. Binay Kumar deposed that one certificate Sessions Case No: 83/09 Page 37 of 82 38 dated 14-10-2005, was issued by him in the name of Pushpender, 31 years male vide casualty registration No. E- 57703 on the basis of casualty card produced by applicant and registration No. of the patient is verified by casualty registration register. He proved the photocopy of the said certificate as Ex. DW 1/A.
78. In the cross examination by the Ld. APP he admitted it to be as correct that the identify of the person in whose name Ex. DW 1/A was issued is not established from DW 1/B. He further stated that the identity of accused Pushpender is also not established from the documents Ex. DW 1/C. He further admitted it to be as correct that as per Ex. DW 1/C the patient in whose name the OPD card was issued was not admitted in the hospital. He further stated that he has no personal knowledge about Ex. DW 1/C and further stated after seeing Ex. DW 1/C that majority of the doctors who worked with him did not write the prescription in capital letters. Ex. DW 1/C is the OPD ticket on the basis of which DW 1 had issued Ex. DW 1/A on 14-10-2005 regarding admission of accused Pushpender in the hospital from 7 p.m to 6 a.m (29-5-2005). Ex. DW 1/C is dated 28-5-2004 and time is mentioned as 7 p.m. but there is interpolation on the date and it appears that 29 has been changed to 28. DW 1 has categorically stated that he cannot say whether document Ex. DW 1/C is manipulated or not but he stated that doctors known to him never write OPD cards in capital letters. Accused has not filed any document/receipt to show that the medicines were purchased by him or issued by the hospital. It is also surprising that Ex. DW 1/C is dated 28-5-2004 and Ex. DW 1/A is dated 14-10-2005. There is no explanation as to why the certificate was obtained after Sessions Case No: 83/09 Page 38 of 82 39 more than one and a half year of the alleged admission in the hospital. As a general practice the OPD card remains with the patient but the accused has not produced the original card and there is no explanation as to what happened to the original OPD card. It is also a fact that doctors don't write prescription in capital letter which further makes the document Ex. PW 1/L doubtful.
79. DW 2 Smt. Saroj deposed that on 28-05-2004, at about 3:30/3:45 p.m she herself and her husband Pushpender left for her Mama's house at Jahangir Puri to asses his cousin Anjali who is mentally challegned as she herself and her husband are special educators. DW 2 further deposed that there her mama informed her that Anjali was not present at the house and they better go to her maternal grand parent's house at Sultan Puri as Anjali had gone there. She further deposed that her husband Pushpender was not well. On the way to Sultan Puri while passing through Mangol Puri, the health of her husband got deteriorated. She further deposed that her husband was got treated at Sanjay Gandhi Memorial Hospital in the evening but she could not tell the exact time. She further deposed that at the hospital doctor examined her husband and prescribed the treatment. At the hospital they stayed over night and in the morning they left the hospital on the advice of the doctors as her husband had recovered. She could not recollect the exact time. She further deposed that her husband was falsely implicated in this case.
80. She was cross examined and in her cross examination she has stated that on 28-5-2004, she was going with accused in an auto to her mama's house. She further stated that she cannot Sessions Case No: 83/09 Page 39 of 82 40 tell the ward in which her husband was admitted. She could not tell the name of the doctor who checked her husband. She even could not tell the department of the hospital in which her husband was taken. She further stated that she had not inquired about the ailment of her husband from the doctor. She even did not ask the nurses present there as to what happened to her husband and what medicines were given. She further stated that she does not know if injections were given to her husband. She even stated that she cannot tell if drip was given to her husband. She further stated that at the time of discharge medical prescription was given to her and she was explained how the medicines were to be administered. She further stated that she has not purchased the medicines from the market.
81. First of all this witness does not know anything about the hospital. Ex. DW 1/C is the OPD card which is relied upon by the accused and it clearly shows that drip was given to the accused and he was also given 4 injections. But all this has been denied by DW 2. So in these circumstances she also appears to be a untruthful witness otherwise there was no reason for her to atleast tell that drip and injections were given to her husband.
82. DW 3 Jeevan deposed that about 7 / 8 years ago he received a call on 1st or 2nd June from his Jeeja Darshan Singh. He told him that husband of Saroj has been implicated in a case. He further deposed that Pushpender and Saroj were with him on 28 th May about 7-8 years back. On that day Pushpender and Saroj had come to his house to get his mentally weak daughter treated. He further deposed that when they reached his house his wife was not present in the house. From his house he alongwith Saroj and Pushpender were going to Nangloi in a TSR but in the meantime Pushpender started vomiting so he was given some water from a road side vendor Sessions Case No: 83/09 Page 40 of 82 41 but his condition worsened. So they took him to SGM Hospital and got him admitted there. He further deposed that he remained in the hospital up to 12:30 a.m thereafter he went to sleep in the house of his sister Laxmi.
83. DW 2 in her examination in chief has stated that on the way to Sultan Puri while passing through Mangol Puri the health of her husband i.e. accused Pushpender got deteriorated and he was treated in Sanjay Gandhi Memorial Hospital but according to DW 3 he alongwith Saroj and accused Pushpender was going to Nangloi in a TSR and in the meanwhile accused Pushpender started vomitting but nothing of this soft has been stated by DW 2. She has no where deposed that her mama DW 3 was also with them in the TSR. So there is a material contradiction in the testimonies of both these witnesses.
84. DW 6 accused Pushpender Kumar has deposed that on 28-5-2004, at about 3:45 / 4:00 p.m. he alongwith his wife Saroj went to Jahangir Puri to see Anjali, the daughter of maternal uncle of his wife as she is mentally retarded. On reaching there he was informed by the maternal uncle of his wife that Anjali had gone to the house of her Nana. Thereafter maternal uncle (Mama) of his wife hired a T.S.R, and they all went to Nangloi in the TSR at the house of Nana of Anjali. But in the way he started vomiting and maternal uncle of his wife took water from the road side vendor and made him drink water but vomiting did not stop so maternal uncle of his wife took him to S.G.M. Hospital, Mangol Puri where he had got him medically examined by the doctor through a person in the casualty where he remained under the observation of the doctor and on the next morning he was discharged from the hospital and at around 8 / 8:30 a.m he reached at his home. He further deposed that on Sessions Case No: 83/09 Page 41 of 82 42 reaching his house he received call from P.S Narela and was asked to reach P.S. Narela as some incident had taken place in the house of Ravinder. He reached PS Narela at about 1:00 p.m where he had been falsely implicated by the police in the present case. His signatures were obtained on some blank papers. No recovery has been effected at his instance. Neither the police went to his house at any point of time nor he had pointed out anything to the police. He further deposed that in the police station Inspector Mahipal (IO) of the case demanded Rs. 2.5 Lakh from him in order to save me.
85. In the cross examination, he stated that he has not made any complaint regarding of 2.5 lakh by the IO of this case. He admitted that there was a dispute in the matrimonial life of his brother Ravinder. He denied that he had obtained forged documents from SGM Hospital. According to DW 5 mama of his wife accompanied him to the hospital but again his wife Saroj who has been examined as DW 2 has not uttered a single word that his mama was there in the hospital when accused Pushpender was admitted there. Moreover, it is pertinent to mention here that accused has failed to prove the documents of his treatment and discharge for the reasons discussed hereinabvoe. So I have no hesitation to hold that the accused has failed to discharge the onus and his plea of alibi cannot be accepted. So both the accused persons have failed to prove their respective alibis.
86. RECOVERIES : The witnesses of recovery are PW 15 SI Ram Chander and PW 24 Retd. Inspector Mahipal Singh. Constable Mohinder was also one of the witness of recovery but he was dropped by the prosecution on 5-11-2009 as his testimony was repetitive in nature.
Sessions Case No: 83/09 Page 42 of 82 4387. Pw 15 SI Ram Chander has deposed that on 30-5-2004, accused Ravinder made a disclosure statement Ex. PW 15/J and accused Phoolwati made her disclosure statement Ex. PW 15/K. He further deposed that accused Ravinder was arrested vide memo Ex. PW 15/L and his personal search was conducted vide memo Ex. Pw 15/M. He further deposed that accused Phoolwati was arrested vide memo Ex. PW 15/N. In pursuance of his disclosure statement accused Ravidner got recovered surgical gloves and ustra from the house of his father i.e. situated at Chandrawal. Accused produced one polythne bag lying inside a double bed and the said bag was containing a pant of blue colour and a check shirt, a pair of surgical gloves and an ustra. All the articles were having blood stains. The sketch of ustra is Ex. PW 15/O and it was seized vide memo Ex. PW 15/E. Accused Pushpender also made a disclosure statement and after his arrest he also got recovered his clothes which he was allegedly wearing at the time of the incident from inside a diwan. The clothes produced by him a green colour pant and a check shirt and both were having blood stains on them. They were seized vide memo Ex. PW 15/T. Accused Pushpender also got recovered Maruti car bearing No. DN B 5118 which was seized vide memo Ex. PW 15/U. Accused Ravinder also produced a mobile phone after taking from his Bhabi Saroj and accused Pushpender and his wife Saroj also produced one mobile phone each which were seized vide memo Ex. Pw 15/V, Ex. PW 15/W and Ex. PW 15/X. Thereafter accused Ravinder and Pushpender pointed out the place of occurrence.
88. In the cross examination PW 15 stated that the house at Chandrawal consisted of 2-3 rooms. He further stated that the Sessions Case No: 83/09 Page 43 of 82 44 ustra produced by accused Ravinder was in folded condition and blood stains were visible on the blade of ustra. He has further stated in his cross examination that the IO had asked 3-4 persons to join the investigation but none has agreed. He has further stated that the recoveries were effected from the ground floor portion of the house at Chandrawal.
89. PW 24 Retd. Inspector Mahipal Singh is the recovery witness and he is also the IO of the case. With regard to the recovery he has deposed that accused Ravinder in pursuance to the disclosure statement got recovered his blood stained clothes which he was wearing at the time of the incident, weapon of offence i.e ustra and surgical gloves from the house of his parents at Chandrawal. According to this witness accused Ravinder and his mother Phoolwati came to the police station on 30-4-2004, at about 10 a.m on his verbal instructions which were given to them on 29-4-2004. This witness has totally corroborated the testimony of PW 15 regarding the recovery. It was urged by the counsel that no public witness was joined but there is a explanation for not joining the public witness. It is also a matter of common knowledge that public person seldom come forward to join the investigation. In the present case there is no contradiction between the testimonies of the witnesses and nothing has been brought out from their cross examination to make their testimony regarding recovery untrustworthy.
90. Accused persons have examined one Vishal Singh as DW 5 to show that police never visited the house of accused Babu Lal at Chandrawal. He has deposed that he is a TSR driver. He used to live in the house of Babu Lal at 252 Old Chandrwal, Civil Lines, Delhi from 2001 to 2007. He further deposed that the case Sessions Case No: 83/09 Page 44 of 82 45 happened in the months of summer but he did not remember the exact year, it was some times in the year 2003 or 2004. He used to leave for work alongwith his TSR at about 5:30 a.m and used to come back at 5:30 p.m. He used to sit daily on the Chabutra of the house till 9:00 p.m and in his presence, police never came to the house of Babu Lal.
91. This witness could not place any document on record to show that he was residing in the house of accused Babu Lal from the year 2001 to 2007 and he could not even tell the size of the house of the accused. His testimony is totally vague and cannot be relied upon.
92. It is a matter of common knowledge that public persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. In this regard reliance can be placed on a judgment in case titled as Ambika Prasad Vs. State reported as JT 2000 (1) SC 273. In another case titled as Mohd. Anwar Vs. State reported as 1999 (10) AD 317 SC, it was held that there is no reason to disbelieve the statement of PW-1 that SI Pankaj Singh tried to record the statement of some persons who collected at the spot but none agreed to be a witness. For such a situation prosecution cannot be blamed. So in view of the testimony of PW 15, PW 24 and DW 5, the recoveries effected from the house of accused Babu Lal at the instance of accused Ravinder and Pushpender could not be doubted.
93. The FSL report is Ex. PW 25/A and serological report is Ex. PW 25/B. As per the report Ex. PW 25/B Ex. '1a' is full sleeves shirt having very few brown stains; Ex. '1b' is one jeans pants having brown stains; Ex. '2a' is one shirt having very few Sessions Case No: 83/09 Page 45 of 82 46 darker stains; Ex. '3a' is one lady's shirt having extensive brown stains; Ex. '3b' is one salwar having yellowish stains; Ex. '3c' is one brassiere having brown stains; Ex. '4' is brown gauze cloth piece; Ex. '8' is ustra having rusty stains and they all were having blood of human origin and blood group O. As per report Ex. PW 25/A the blood was detected on exhibits '1a', '1b', ('1c' i.e one pair of gloves having very light brown stains,) '2a', ('2b' i.e one jeans pant having few darker stains), '3a', '3b', '3c', '4', ('6' i.e. mosaic pieces having blackish brown stains), ('7' i.e foul smelling cotton wool swab having brown stains) and '8'.
94. According to the prosecution the weapon of offence is ustra and the same has been recovered at the instance of accused Ravinder which was having blood of O group on it which according to the FSL report Ex. PW 25/B was of deceased Meena. It is nobody's case that accused Ravinder and accused Pushpender were having any injury on their person so as to show that the blood on the clothes i.e the jeans and the shirt was their's and not that of the deceased.
95. Accused Pushpender has failed to establish his alibi. On the other hand, the prosecution has also failed to prove the presence of accused Pushpener at the place of incident and his taking part in the murder of Meena. There is no evidence to show that he actively participated in murdering Meena except his disclosure statement. The Maruti Car recovered at his instance also does not get connected with the crime. Moreso, when the prosecution has been unable to prove the call records which could have shown about the presence of accused Pushpender around the house of the deceased. So in my opinion, he cannot be convicted for the offence U/s 302 IPC.
Sessions Case No: 83/09 Page 46 of 82 4796. Similarly the prosecution has also not been able to prove the presence of Phoolwati near the house of the deceased. No doubt Phoolwati has also failed to prove her alibi but that does not mean that the prosecution has not to stand on its own legs. There is no evidence against Phoolwati to show that she actively participated in murdering Meena.
97. Now coming to the role of accused Ravinder who is the husband of deceased Meena, it was argued by the Ld defence counsel that it was a case of theft and robbery which resulted in the murder of Meena and the accused had no connection with the murder. It is further urged that many house hold articles/jewellery were found missing and the accused had even filed a complaint U/s 156 (3) Cr.P.C. But from the evidence on record it is clear that there was no forced entry in the house of the accused meaning thereby who ever entered in the house of accused had a friendly entry and Meena (since deceased) knew that person. The ornaments on the person of deceased Meena were found intact which were seized by the IO vide memo Ex. Pw 15/G. If it was a case of robbery/theft as argued by the Ld defence counsel, then in that case there was no reason for the intruder to leave those articles on the body of the deceased. No doubt PW 15 and PW 24 have deposed that the house was found ransacked but looking into the circumstances, it all appears to be made up. It is an old saying that a man may lie but the circumstances don't. In the present case accused Ravinder came to the police station on 29-5-2004 and after interrogation he was relieved by the IO PW 24 and he was asked to come to the police station on the next day i.e. on 30-5-2004, on which day he was arrested. The accused when appeared as DW 7 has deposed that IO Inspector Sessions Case No: 83/09 Page 47 of 82 48 Mahipal Singh demanded Rs. 2.5 Lakh from him but no such suggestion has been given by him to the IO. Rather, in the cross examination by counsel for accused Ravinder PW 24 IO stated as follows :
''Accused reported to me on 30-05-2004 at about 10:00 a.m. Accused had also come to me on 29/05/2004. It is correct that accused was interrogated by me on 29/05/2004 and 30/05/2004. On 30-05-2004, accused Ravinder and his mother Phoolwati came to the PS at about 10 a.m. I had not given any notice to them to appear before me on 30-05-2004. I had only instructed them verbally.''
98. But the accused when appeared as DW 7 deposed that he and his mother were detained in the police station by the IO from 29-5-2004 to 30-5-2004 and on 31-5-12004, they were produced before the court. But when the IO was cross examined as already observed hereinabove, no suggestions to the contrary was given to him rather IO has stated that the accused was sent off on 29-05-2004 and was directed to come to the police station on 30-05-2004. This fact has not been challenged in the cross examination. Rather accused has himself falsified his stand. It is to be kept in mind that Ravinder was employed in Delhi Police and he could have definitely made the complaint to Sr. Police officer when he was relieved by the IO on 29-5-2004 which has not been done by him. When the IO relieved the accused on 29- 5-2004, he must have definitely gone to his house and found his house ransacked but no action was taken by him then and there, he did not file any list of articles which according to him were missing. He did not make any complaint about theft or robbery to Sessions Case No: 83/09 Page 48 of 82 49 any authority for the reasons best known to him. When he appeared as DW 7 then he has deposed that he had filed a complaint U/s 156 (3) Cr.P.C. This complaint was filed belatedly and there is no explanation that despite having considerable time at his disposal before his arrest why he took no action against the IO who demanded money from him and why he immediately did not made a report about his missing articles.
99. The case is based on circumstantial evidence and the law as far as circumstantial evidence has been well settled. The principles of law governing the proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of the Hon'ble Supreme Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstance, circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is the accused and nobody else who had committed the crime. The above said principles deducible from the 5 principals of law laid down by the Hon' Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116.
100. In the instant case though there is no eye witness who could say that on the night of 28-4-2005, accused Ravinder and his wife were seen together but it is to be noted here that the accused Ravinder was residing with Meena (since deceased) in the matrimonial home and if the offence takes place inside the privacy of the house, it is extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence is insisted upon. In Stirland Sessions Case No: 83/09 Page 49 of 82 50 Vs. Director of Public Prosecution (1944) AC 315 which was quoted with approval in State of Punjab Vs. Karnail Singh 2003 (11) SCC 271 that a judge does not preside over a criminal trial merely to see that no innocent man is punished but a judge also presides to see that a guilty man does not escape and both were held to be public duties.
101. As already observed hereinabove, that the crime in the present case has taken place in the confines of the matrimonial home, so in these circumstances, it is very difficult for the prosecution to lead evidence. The neighbours whose evidence may be of some assistance are generally reluctant to depose in the court. The parents and other family members of the woman are away from the seen of commission of crime and they are not in a position to give direct evidence, regarding the demand of dowry and dowry harassment. The duty which has been caste on the prosecution is to lead such evidence which it is capable of leading having regard to facts and circumstances of this case.
102. In Mukesh Vs. State, 2012 (2) JCC 1563 in which decision, after surveying various decisions of the Courts concerning homicidal death of a wife, in paragraph 52, it was observed as under:-
"52. Having examined the decisions of the Supreme Court on the point of death of a wife in her matrimonial house, we deem it appropriate to classify the said judicial decisions into undernoted 4 broad categories for the reason we are finding considerable confusion in the minds of the subordinate Judges as to the correct position of law:-
I In the first category fall the decisions where it is proved by the prosecution that the husband was present in the house when the wife suffered a homicidal death and rendered no explanation as to how his wife Sessions Case No: 83/09 Page 50 of 82 51 suffered the homicidal death. (See the decisions reported as State of Rajasthan v Parthu (2007) 12 SCC 754, Amarsingh Munnasingh Suryavanshi v State of Maharashtra AIR 2008 SC 479, Ganeshlal v State of Maharashtra (1992) 3 SCC 106, Prabhudayal v State of Maharashtra (1993) 3 SCC 573, Dynaneshwar v State of Maharashtra (2007) 10 SCC 445, Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681, Bija v State of Haryana (2008) 11 SCC 242 and State of Tamil Nadu v Rajendran (1999) 8 SCC 679).
II In the second category are the decisions where the prosecution could not prove the presence of the husband in the house when the wife suffered a homicidal death but the circumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suffered a homicidal death. The circumstances wherefrom it could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there and the death took place in such hours of the night when a husband was expected to be in the house i.e. the hours between night time and early morning. (See the decisions reported as State of UP v Dr Ravindra Prakash Mittal (1992) 3 SCC 300 and Narendra v State of Karnataka (2009) 6 SCC 61).
III In the third category would be proof of a very strong motive for the husband to murder his wife and proof of there being a reasonable probability of the husband being in the house and having an opportunity to commit the murder. In the decision reported as Udaipal Singh v State of UP (1972) 4 SCC 142 the deceased wife died in her matrimonial home in a room where she and her husband used to reside together. The accused- husband had a very strong motive to murder the deceased which was evident from the letter written by him to his mistress, which letter clearly brought out the feeling of disgust which the accused had towards the deceased. The accused had the opportunity to commit the murder of the deceased as there was evidence to show the presence of the accused in the village where Sessions Case No: 83/09 Page 51 of 82 52 the house in which the deceased died was situated at the time of the death of the deceased. Noting the facts that the accused had a strong enough motive and an opportunity to murder the deceased, noting that there was no evidence that the appellant was seen in his house by anybody, the Supreme Court convicted the accused.
IV In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their job and there was either no proof of motive or very weak motive being proved as in the decision reported as Khatri Hemraj Amulakh v State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri.
1211."
103. The instant case would fall in the second category of the decisions noted in paragraph 52 of the decision in Mukesh's case (supra). In the present case accused Ravinder and Meena were residing in the matrimonial home together; the accused had the motive for the crime as the relations between them were strained since the day of marriage; the accused has not given the time when he left his matrimonial home; there is no forced entry in the house; robbery/theft could not be proved as the accused failed to report the same at the first opportunity available to him when he was let off by the IO on 29-05-2004; the falsity of the accused that the IO demanded Rs. 2.5 Lakh from him; the falsity of the accused that he was detailed illegally by the IO till 30-05-2004; the recoveries effected at the instance of the accused and the false plea of alibi taken by him shows that in all human probabilities the crime must have been committed by him.
Sessions Case No: 83/09 Page 52 of 82 53104. Section 106 of the IPC specifically postulates that where any fact is especially within the knowledge of any person, the burden of proving it is upon him. Section 106 of the Evidence Act reads as under :-
106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
105. It was for the accused to explain and answer as to how his wife has died. In the present case as already observed hereinabove, the relationship of the deceased and the accused was of husband and wife; the place of death was their matrimonial home; the place where the dead body was found was also the matrimonial home; there was no evidence of any intruder; so in such a situation the circumstances leading to the death of the deceased stood shifted to be explained by the accused, for it is only he who is to be expected to know the manner and the circumstances under which his wife had died. It cannot be lost sight that the house of the accused in which the murder took place was situated in a police colony and the entry in the colony for any outsider was not easy.
106. Meena (since deceased) died a homicidal death as per the postmortem report. The weapon of offence i.e ustra was recovered at the instance of accused Ravinder, accused Ravinder failed to prove his alibi, so accused Ravinder is also held guilty and convicted U/s 302 IPC.
107. Accused Pushpender, Phoolwati, Babu Lal and R. Harshender have also been charged U/s 302/34 IPC but the Sessions Case No: 83/09 Page 53 of 82 54 prosecution has not been able to prove on record that they have participated in any manner in the committal of the murder of Meena (since deceased) or that they had been seen in an around the police quarter of accused Ravinder where the murder of Meena (since deceased) took place). So accused Pushpender, Phoolwati, Babu Lal and R. Harshender are acquitted U/s 302/34 IPC. Put up for arguments on the point of sentence on 03-12- 2014.
(Announced in the open Court on 25-11-2014.
(RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE -02, NORTH DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 83/09 FIR No. : 211/04 Sessions Case No: 83/09 Page 54 of 82 55 P.S. : Narela U/s : 302/304B/498A/120 B IPC State Vs.
1. Ravinder S/o Sh. Babu Lal R/o Q. No. 38, Police Colony, A/5, Narela, Delhi.
2. Pushpender Singh S/o Sh. Babu Lal R/o 252, Old Chandrawal, Civil Lines, Delhi-110054.
3. Phoolwati W/o Sh. Babu Lal R/o 252, Old Chandrawal, Civil Lines, Delhi-110054.
4. Babu Lal S/o Late Sh. Karodelal R/o 252, Old Chandrawal, Civil Lines, Delhi-110054.
5. R. Harshinder S/o Sh. Babu Lal R/o 252, Old Chandrawal, Civil Lines, Delhi-110054.
ORDER ON OF SENTENCE
1. I have heard Ld. Addl. PP for the state and Ld. counsel for the convicts on the point of sentence.
2. It is urged by the Ld. counsel for the convicts that convicts Ravinder, Pushpender and R. Harshender are young men and accused Pushpender and R. Harshender have family to support. It is further urged that accused Babu Lal and Phoolwati are old age person and have clean past antecedents. It is further urged that they are not menace to the society.
Sessions Case No: 83/09 Page 55 of 82 563. It is further urged by him for accused Ravinder that this is not a rarest of the rare case which could entail death penalty.
4. On the other hand, it is urged by the Ld. Addl. PP for the state that the allegations against the convicts are grave and serious in nature and they have been constantly torturing and harassing Meena (since deceased) since the date of her marriage. It is further urged by the Ld. Addl. PP for the State that Meena (since deceased) at the time of her death was having a 3 years old child and was 7 months pregnant and she was murdered by accused Ravinder by cutting her throat with ustra which shows the brutality and the acts of the accused false in the category of rarest of the rare cases. It is further urged bythe Ld. Addl. PP for the State that accused Ravinder should be awarded death penalty and no leniency be shown to him.
5. All the convicts have been convicted by me vide separate judgment dated 25-11-2014 U/s 304 B/498 A/34 IPC and convict Ravinder has also been convicted U/s 302 IPC.
6. Considering all the facts and circumstance of this case, I sentence all the convicts to undergo rigorous imprisonment for 3 years each U/s 498A/34 IPC and pay a fine of Rs. 20,000/- each. They will undergo rigorous imprisonment for three months each in case of default of payment of fine.
7. I further sentence all the convicts to undergo rigorous imprisonment for 10 years each U/s 304 B/34 IPC and pay a fine of Sessions Case No: 83/09 Page 56 of 82 57 Rs. 20,000/- each. They will undergo rigorous imprisonment for six months each in case of default of payment of fine.
8. Now as far as accused Ravinder is concerned, he has also been convicted U/s 302 IPC. So now it is to be seen whether the case of accused Ravinder falls within the category of rarest of the rare cases. In Mahesh Dhanaji Shinde v. State of Maharashtra 2014 (3) SCALE 96 a three Judge Bench of the Supreme Court, reaffirmed the decision in Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 wherein it was held that while awarding death sentence the „crime test‟ has to be fully satisfied i.e. 100% and „criminal test‟ should be 0%. In other words, there ought to be no mitigating circumstances favouring the accused. If there was any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of accused, not being a menace to the society, no previous track record etc., then the „criminal test‟ may favour the accused to avoid capital punishment. Even if both the tests were satisfied i.e. aggravating circumstance to the fullest and no mitigating circumstance favouring the accused, still the Court had to apply the Rarest of Rare test (RR Test). The RR test depended upon the perception of the society i.e. it is "Society centric" and not "Judge centric". Thus the test is whether the society will approve awarding of the death sentence for certain types of crimes or not.
9. In Machhi Singh v. State of Punjab AIR 1983 SC 957, the Supreme Court noted the principles culled out in Bachan Singh's case Sessions Case No: 83/09 Page 57 of 82 58 for awarding death sentence. It was held that the following propositions emerged from Bachan Singh's case: "(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." The three-Judge Bench further laid down that the Court may award the extreme penalty of death sentence in the rarest of rare cases when society‟s collective conscience is so shocked that it will expect the holders of the judicial power to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining death penalty.
10. In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 wherein it was held that while awarding death sentence the ''crime test'' has to be fully satisfied i.e. 100% and ''criminal test'' should be 0%. In other words, there ought to be no mitigating circumstances favouring the accused. If there was any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of accused, not being a menace to the society, no previous track record etc., then the ''criminal test'' Sessions Case No: 83/09 Page 58 of 82 59 may favour the accused to avoid capital punishment. Even if both the tests were satisfied i.e. aggravating circumstance to the fullest and no mitigating circumstance favouring the accused, still the Court had to apply the Rarest of Rare test (RR Test). The RR test depended upon the perception of the society i.e. it is "Society centric" and not "Judge centric". Thus the test is whether the society will approve awarding of the death sentence for certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges."
11. Turning to the case on hand, the Court finds that the aggravating circumstances could be stated to be as under:
(a) The life of a young woman who was 7 months pregnant and had a three years old child has been taken away in a cruel manner by slashing her throat with an razor (ustra).
(b) The offence was preplanned by accused Ravinder.
(c) There was no provocation by the deceased.
(d) The deceased and the accused were living as husband and wife in the same house.
12. The mitigating circumstances could be as under :
(a) There is no earlier criminal history of the convict.
(b) The convict is of a young age. (c) The convict belongs to lower middle class family.
13. Although there are aggravating circumstances as noted above, there is no material placed on record by the State to show that Sessions Case No: 83/09 Page 59 of 82 60 convict Ravinder is a person who cannot be reformed or is a menace to the society. No such material has been placed during the trial of this case which could have been placed in the present proceedings. From the material already on record, it is evident that the over all conduct of convict Ravinder was satisfactory in jail and there were no complaints against him. Thus in these circumstances the death penalty cannot be awarded to convict Ravinder.
14. I, therefore, sentence convict Ravinder to undergo life imprisonment U/s 302 IPC and pay a fine of Rs. 25000/-. He will undergo rigorous imprisonment for three months in case of default of payment of fine. Ordered accordingly.
15. Further keeping in view the facts and circumstances of this case, I deem it fit and proper to make a recommendation U/s 357 A Cr.P.C to North District Service Legal Authority to award appropriate compensation to the legal heirs of Meena (since deceased) under the the Delhi Victim Compensation Scheme 2011 or under any such scheme applicable.
16. All the sentences to run concurrently. The benefit of section 428 Cr.P.C. be given to all the convicts. Copy of judgment and order on sentence be given to all the convicts free of cost. File be consigned to Record Room.
17. Copy of this order and judgment be also sent to Ld. Secretary, North District Legal Service Authority, Rohini Courts, for necessary compliance. File be consigned to Record Room.
(Announced in the open Court on 08-01-2015) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE-02 NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No: 83/09 Page 60 of 82