Delhi District Court
State vs . 1. Mahesh Solanki on 2 May, 2019
IN THE COURT OF AJAY GOEL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 441006/16
In the matter of:
State Vs. 1. Mahesh Solanki
S/o Sh. Raghbir Singh
R/o WZ-719A, Near Bata Chowk,
VPO- Palam Delhi.
2. Nirmala
W/o Sh. Raghbir Singh
R/o WZ-719A, Near Bata Chowk,
VPO- Palam Delhi.
3. Raghbir Singh
S/o Sh. Chandgi Ram
R/o WZ-719A, Near Bata Chowk,
VPO- Palam Delhi.
4. Jai Kumari
D/o Sh. Sh. Raghbir Singh
R/o WZ-719A, Near Bata Chowk,
VPO- Palam Delhi.
2nd Address:
RZ-189A, T Extn. Vishwas Park,
Uttam Nagar, Delhi.
FIR No. : 243/13
PS : Palam Village
U/S : 498A/304B/302/34/174A IPC
SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 1/96
Date of Institution of case : 19.10.2013
Date of committal of case to sessions : 25.11.2013
Date of assignment to this court : 24.08.2017
at the stage of PE
Date of arguments : 30.04.2019
Date on which judgment was pronounced : 02.05.2019
JUDGMENT:
Case of Prosecution:
1. The case of the prosecution is that accused Mahesh Solanki was married to Ms. Sunny (since deceased) on 14.02.2013. After marriage, she started residing with accused Mahesh Solanki and co-
accused persons at her matrimonial house situated at WZ-719A, Palam Village, New Delhi.
2. It is alleged that sufficient dowry articles including jewellery of gold approximately 10 Tolas were given to accused Mahesh Solanki and his family in the marriage and Sh. Satbir singh, father of deceased had spent approximately Rs. 13-14 lakhs in SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 2/96 the marriage.
3. It is the case of prosecution that accused Mahesh Solanki, his father co-accused Raghbir, his mother co-accused Nirmala and sister co-accused Jai Kumari subjected deceased Sunny to cruelty for bringing more dowry and car make Duster. It is stated that deceased Sunny informed her father Sh. Satbir Singh, mother Rajwati, cousin Sh. Gurdeep Singh, Mausi Smt. Phool Mati and maternal uncle Sh. Dharampal about the harassment and aforesaid demand.
4. Thereafter, in the year 2013 on the occasion of Holi, Sh. Gurdeep Singh had come to house of accused for giving Sidha and accused Mahesh Solanki and co-accused persons had stated that the clothes given in Sidha were of lower quality and taunted ''kya bhikarion jaise kapde diye hain'' and Sh. Gurdeep Singh had brought Sunny to her parental SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 3/96 house. It is stated that deceased Sunny told to Sh. Gurdeep Singh that accused Mahesh Solanki used to give her beatings saying that ''kya bhukhe nange ghar se aai hai''.
5. It is further the case of prosecution that on 15.05.2013, Sh. Gurdeep, Sh. Dharampal and Sh. Satbir Singh visited house of accused and Accused Mahesh Solanki and co-accused persons demanded a car of Rs. 12-13 lacs and costly clothes from them. Thereafter, co-accused Raghbir Singh had given beatings to Sunny and obtained her signatures on a cheque and got transferred Rs. 1,00,000/- to his bank account from the bank account of Sunny.
6. It is averred that on 18.07.2013, Sunny had come to her matrimonial house and on 21.07.2013, Smt. Rajwati received a phone call from Sunny and Sunny stated that as early as possible car may be arranged and given otherwise accused Mahesh SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 4/96 Solanki and co-accused persons would kill her.
7. It is averred in complaint that on 23.07.2013, Sunny since deceased, was brought to Divya Prastha Hospital in unconscious condition and she was examined by Dr. Gyan Vats and during treatment she had expired. Thereafter, accused Mahesh Solanki informed the family of the deceased at about 12 - 12.30 p.m. that Sunny was ill and admitted in Divya Prastha Hospital, Palam Colony, New Delhi.
8. It is stated that on receiving the aforesaid information, Sh. Satbir Singh made a call to co- accused Raghubir Singh who stated that there was no need to talk on phone and to reach at the hospital and whatever they wanted, they had done. It is stated that Sh. Satbir Singh along with other relatives reached Divya Prastha Hospital and the doctor informed them that Sunny had expired.
9. It is further the case of prosecution that on SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 5/96 23.07.2013, an information was received at PCR on telephone no. 100 at about 1.03 p.m. from Divya Prastha Hospital, Palam, New Delhi and the said information was recorded in the control room vide PCR form by HC Grace Soren.
10. It is stated that on 23.07.2013, an information was received at PS Palam Village regarding the incident of the present case and the same was recorded vide DD No. 26A and on receipt of the same SI Jagdish Chander along with Ct. Rakesh Sakia reached Divya Prastha Hospital, Palam, New Delhi and Sh. Satbir Singh along with his family members met them there and told SI Jagdish Chander that sunny was married with accused Mahesh Solanki on 14.02.2013. Thereafter, SI Jagdish Chander had taken Sh. Satbir Singh along with his other relatives to the office of Sh. Satish Kumar Rawat for their statements. It is stated that Sh. Satish Kumar Rawat had recorded SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 6/96 statement of Sh. Dharampal and Sh. Satbir Singh and sent dead body of deceased to DDU Hospital, filled form 25.35, made request for postmortem and instructed the SHO PS Palam Village to take action.
11. Thereafter, the crime team was called at the spot i.e. WZ-719A, Palam Village, New Delhi and ASI Jitender, In-Charge Mobile Crime Team inspected the spot and Ct. Parvesh had taken photographs. It is stated that on 23.07.2013, SI Jagdish Chander prepared rukka and presented before Sh. Amrender (then Duty officer) who recorded the FIR and made his endorsement on the rukka.
12. It is averred that on 23.07.2013, the stomach wash of deceased Sunny in a plastic container was given to SI Jagdish Chander by the Doctor and he seized the same vide seizure memo, after sealing the same with the seal of JC. Thereafter, on 24.07.2013, Dr. Komal Singh had conducted postmortem on the SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 7/96 dead body of deceased Sunny and subsequently he had given opinion regarding the cause of death dated 25.09.2013 and after postmortem the doctor handed over three sealed jars mark A, B and C, blood in gauge and clothes of deceased in sealed pullandas with sample seal to Inspector Ashok Saini who seized the same. After postmortem, the dead body of the deceased was handed over to her father Sh. Satbir Singh.
13. It is stated that on 24.07.2013, accused Mahesh Solanki was arrested by Inspector Ashok Saini and his personal search was conducted and his disclosure statement was recorded. Thereafter, on 01.08.2013, co-accused Nirmala Devi was arrested by Inspector Ashok Saini and personal search memo was conducted and her disclosure statement was recorded. It is stated that on 23.11.2013, co-accused Raghbir Singh was declared PO vide court order. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 8/96
14. It is averred that on 25.09.2014, co-accused Jai Kumari was arrested by Inspector Ashok Saini. It is stated that on 12.11.2014, co-accused Raghbir Singh was arrested by Inspector Ashok Saini. Inspector Ashok Saini during investigation of this case, collected lots of documents and completed the investigation of this case.
15. After completion of investigation, charge sheet in the matter was filed by prosecution against accused persons.
16. Since the offence under Section 302 IPC is exclusively triable by the Court of sessions, hence after supply of documents, Ld. MM committed the case to the Court of sessions vide its order dated 11.11.2013.
17. It is pertinent to mention here that accused Jai Kumari did not appear in the investigation of this case despite protection from Hon'ble High Court and SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 9/96 later on, NBW were issued against her on 04.09.2013, however, she did not appear before the court and thus proceedings U/s 82/83 Cr. P. C. were issued against her and she was declared Proclaimed Offender vide order dated 07.07.2014. On 13.10.2014, IO filed supplementary charge sheet against accused Jai Kumari and later on charge against her was framed.
18. Similarly, accused Raghbir Singh also did not join investigation and after issuance of several processes as per law, he did not turn up, hence he was also declared Proclaimed Offender on 25.11.2013 and after his arrest, supplementary charge sheet was filed against him in the matter on 04.12.2014.
Charge against the accused:
19. Vide order dated 16.01.2014, after hearing SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 10/96 arguments on charge, charge was framed against accused Mahesh Solanki and Nirmala for the offences U/s 498A/304B/34IPC or in alternative U/s 302/34 IPC.
Accused pleaded not guilty and claimed trial against charge.
20. Separate charge was framed against accused Jai Kumari vide order dated 14.10.2014 for the offences U/s 498A/304B/34 IPC or in alternative U/s 302/34 IPC and also for the offences punishable U/s 174A IPC. Accused pleaded not guilty and claimed trial against charge.
21. Vide order dated 30.06.2015, separate charge was framed against accused Jai Kumari vide order dated 14.10.2014 for the offences U/s 498A/304B/ 302/34 IPC and also for the offences punishable U/s 174A IPC. Accused pleaded not guilty and claimed trial against charge.
SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 11/96 Witnesses examined :
22. Prosecution in support of its case examined witnesses who are as follows:-
PW1 is Sh. Satish Kumar Rawat, Tehsildar/ Executive Magistrate. He deposed that he received the information from PS-Palam on
23.07.2013 regarding death of deceased Sunny and on same day, he recorded the statement of Sh. Satbir Singh and Sh. Dharampal Ex. PW-1/A and PW- 1/B. The form No. 25.35 was proved as Ex. PW-1/C, his request for postmortem was Ex. PW-1/D and his order for taking action under relevant sections of IPC was Ex. PW-1/E. He was again summoned twice after filing of supplementary charge sheet against accused Jai Kumari and Raghbir Singh. PW-2 is Dr. Komal Singh, HOD, Department of Forensic Medicine DDU Hospital. She deposed SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 12/96 that she received a request Ex. PW-2/A from Tehsildar for conducting postmortem on the dead body of Smt. Sunny. The postmortem report was Ex. PW-2/B and subsequent opinion / report dated 25.09.2013 given by her was Ex. PW-2/C. She was again summoned twice after filing of supplementary charge sheet against accused Jai Kumari and Raghbir Singh.
PW-3 is Dr. Gyan Vats, Medical Director, Divya Prastha Multi Specialty Hospital. He deposed that on 23.07.2013, he was available in his hospital and one patient namely Smt. Sunny came to his hospital in unconscious condition and she was admitted and was given treatment, however during treatment, patient expired. The medical treatment papers were Ex. PW-3/A and MLC was Ex. PW-3/B. This was also again summoned twice after filing of supplementary charge sheet against accused Jai SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 13/96 Kumari and Raghbir Singh.
PW-4 is Sh. Gurdeep Singh. He deposed that deceased Sunny was his cousin (sister). He had deposed regarding allegations of demand of dowry against accused persons as disclosed by deceased Sunny. He further deposed that on 23.07.2013, he received an information on telephone regarding admission of Sunny in hospital and on reaching hospital, she was found dead. He further deposed that police met him and recorded his statement. He was also again summoned after arrest of accused Jai Kumari and Raghbir Singh.
PW-5 is Smt. Phoolwati. She deposed that deceased Sunny was the daughter of his real sister Rajwati and her Jeth Sh. Satbir Singh. She deposed that they had given sufficient dowry in the marriage and spent about Rs. 13-14 lacs in the marriage of Sunny. She further deposed that accused persons SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 14/96 used to beat and harass Sunny on the demand of money and car from them. She also deposed that on 23.07.2013, she received an information that Sunny had died in a hospital and police met her and recorded her statement. She was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-6 is Sh. Dharampal. He deposed that deceased Sunny was the daughter of his sister Rajwati. He also deposed that after marriage, father of Sunny used to tell him that accused Mahesh and his family members were greedy persons and they used to harass and beat Sunny for demand of dowry. He further deposed that he alongwith Satbir, Gurdeep and Sunny came to village Palam at matrimonial house of Sunny where accused persons met them and blamed them that they had not given sufficient dowry and car in the marriage. He further SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 15/96 deposed that on 23.07.2013, he came to about the death of Sunny and his statement was recorded by Tehsildar which is already Ex. PW-1/B. He further deposed that police also met him and recorded his statement Ex. PW-6/A and memo regarding receipt of dead body of Sunny was witnessed by him and was Ex. PW-6/B. He was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-7 is Ct. Rakesh Sakia. He deposed that on receipt of a call, he alongwith IO SI Jagdish Chander reached Divya Prashta Hospital, Palam where one lady namely Sunny was found admit and during treatment, she expired. He also deposed that statements of relatives of deceased were recorded by Tehsildar and stomach wash of deceased as handed over by doctor was seized by IO vide seizure memo Ex. PW-7/A. This witness was also again SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 16/96 summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-8 is Ct. Pravesh Kumar. He deposed that on requisition of local police, he alongwith In-charge mobile crime team ASI Jitender reached at spot at village Palam and he took six photographs of the scene of spot from different angles which were Ex. PW-8/A1 to A6 and negatives of same were Ex. PW- 8/B1 to B6. He was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-9 is Sh. Satbir Singh. He deposed that deceased was his daughter who was married on 14.02.2013 with accused Mahesh Solanki. He deposed that he had spent Rs. 13 Lacs approximately in the marriage and had given jewellery of gold approximately 10 tolas in the marriage and also deposited Rs. 1 Lac in the bank SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 17/96 account of Sunny. He further deposed that when Sunny came to their house, she disclosed that accused persons were harassing her for demand of dowry. He also deposed that on 15.05.2013, accused Raghvir Singh made a call to him and called him to his house and when he alongwith other relatives went to matrimonial house of Sunny, accused persons met them and accused Mahesh and Nirmala demanded a car of Rs. 12-13 lacs and accused Jai Kumari demanded costly cloths for family members. He also deposed regarding other occasions when the deceased was tortured and demand was made. He further deposed that on 23.07.2013, a call was received from accused Mahesh regarding admission of deceased Sunny in hospital who later on expired. He further deposed that their statements were recorded by Executive Magistrate. His statement regarding identification of dead body of deceased SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 18/96 was recorded and was proved as Ex. PW-9/A. The marriage card seized by IO was Ex. PW-9/B. He was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh. PW-10 is Smt. Rajwati. She deposed that deceased was her daughter. She further deposed on the lines of PW-9 that whenever Sunny came to their house from matrimonial house, she used to tell her that accused persons used to torture and beat her for demand of money and car. She was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-11 is W/ct. Grace. She is a witness who received an information in Police Control Room on telephone No. 100 which was recorded in prescribed form of Delhi Police Control Room and was transmitted to the police network. The attested copy of prescribed form was Ex. PW-11/A. She was also SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 19/96 again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh. PW-12 is SI Jagdish Chander. He deposed that on receipt of DD No. 26A, he alongwith Ct. Rakesh Sakia reached Divya Prastha Hospital where Sunny was found admit and during treatment, she was declared dead. He further deposed that he took the complainant and his relative to the office of Tehsildar who had recorded their statement and instructed him to take action as per law. He deposed that he made his endorsement and prepared rukka Ex. PW- 12/A, the copy of application for preservation of dead body was Ex. PW-12/B. He further deposed that he joined investigation of present case with Inspector Ashok Saini on 24.07.2013 and IO arrested accused Mahesh Solanki vide arrest memo Ex. PW-12/C and took his personal search vide memo Ex. PW-12/D, his disclosure statement was proved as Ex. PW-12/E, SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 20/96 seizure memo was proved as Ex. PW-12/F. He was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh. PW-13 is Ct. Jagbir Singh. He deposed that on the instructions of SI Jagdish, he had taken the dead body of deceased Sunny to Mortuary DDU Hospital with an application of SI Jagdish Chander. Three sealed pullandas and sample seal were seized by IO vide Seizure memo Ex. PW-12/F. He deposed that accused Mahesh Solanki was arrested by IO in his presence and he signed the arrest memo, personal search memo and disclosure statement of accused as a witness. He was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-14 is Sh. Amrender. He deposed that on 23.07.2013, he was posted as Sub Inspector at PS- Palam Village and he was working as Duty Officer SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 21/96 and recorded FIR No. 243-13 in the present case on the basis of rukka sent by SI Jagdish Chander. The copy of FIR was proved as Ex. PW-14/A, his endorsement on rukka as Ex. PW-14/B and copies of DD No. 44A, 26A, 28A and 29A were proved as Ex. PW-14/C1, C2, C3 and C4 respectively. PW-15 is Sh. Krishan Gopal Garg. He deposed that his daughter in law Dr. Anvita Garg is Director of Shanti Nursing Home and on 31.08.2013, Inspector Ashok Saini contacted him and he handed over the copies of relevant entries of dispensary register pertaining to patient Mrs. Sunny which were seized by IO vide seizure memo Ex. PW-15/A and copies of relevant entries of register were Ex. PW-15/B. PW-16 is Dr. Anvita Garg. She deposed that on 20.02.2013 patient namely Jai was examined by her and prescription slip in this regard was Ex. PW-16/A. She further deposed that during investigation SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 22/96 Inspector Ashok Saini made requisition for some documents and she gave him said information about Sunny and Jai Kumari vide her letters Ex. PW-16/B and Ex. PW-16/C. She was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh.
PW-17 is Ct. Seema. She deposed that accused Nirmala Devi was arrested by IO Inspector Ashok Saini his her presence. The arrest memo of accused Nirmala Devi was proved as Ex. PW-17/A, her personal search memo as Ex. PW-17/B and her disclosure statement as Ex. PW-17/C. PW-18 is Ct. Deepak. He deposed that on 30.07.2013, the relevant documents of Syndicate Bank Bharthal Branch were seized by IO in his presence vide seizure memo Ex. PW-18/A. He further deposed that on 03.09.2013, the CDR of mobile phone numbers 9968790476 and 9654092725 were SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 23/96 seized by IO vide seizure memo Ex. PW-18/B. PW-19 is Sh. Vinod Kumar, Nodal Officer, MTNL. He brought the customer application form in respect of mobile number 9968790476 in the name of Raghbir Singh and attested copy of said form was Ex. PW-19/A and attested copies of Election I card and DTC I card were Ex. PW-19/B and PW-19/C respectively. He also brought the CDR of said mobile phone for the period from 15.07.2013 to 23.07.2013 which was Ex. PW-19/D and computerised and attested copy of cell ID chart was Ex. PW-19/E. The certificate U/s 65 B of Indian Evidence Act was Ex. PW-19/F. He was also again summoned and examined after framing of charges against accused Jai Kumari and Raghbir Singh.
PW-20 is Ct. Om Prakash. He deposed that on 21.08.2013 he joined investigation of this case with IO Inspector Ashok Saini and went to Oriental Bank SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 24/96 of Commerce, Palam Village where Chief Manager, handed over the statement of account of Sh. Raghbir Singh with letter which were seized vide seizure memo Ex. PW-20/A. PW-21 is HC Vishram. He deposed that in the month of July 2013 SI Jagdish Chand deposited one sealed pulanda with him and he made entry in this regard in register No. 19 at S. No. 1233 and copy of same was Ex. PW-21/A. He also deposed that on 24.07.2013, he made another entry at S. No. 1234 and copy of same was Ex. PW-21/B. He also proved road certificate No. 79/21/13 as Ex. PW-21/C, copy of acknowledgement issued by FSL as Ex. PW-21/D and report of FSL as Ex. PW-21/E. PW-22 is ASI Jitender Prakash. He deposed that he was posted as In-charge, Mobile Crime Team and on receipt of message from Police Control Room on 23/24.07.2013, he alongwith his staff reached at SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 25/96 spot and inspected the spot and photographs were taken. He proved his detailed report as Ex. PW-22/A. PW-23 is Sh. Kulbhushan Gupta, Chief Manager, Oriental Bank of Commerce. He deposed that in compliance of notice U/s 91 Cr. P. C., he handed over the statement of account of Sh. Raghbir Singh to Inspector Ashok Saini, the said statement of bank account was proved as Ex. PW- 23/A and his letter as Ex. PW-23/B. PW-24 is Sh. Vinod, Branch Manager, Syndicate Bank. He deposed that on the request of IO, he handed over the verified copy of bank account opening form in respect of account of Sunny. The said account opening form was proved as Ex. PW- 24/A, statement of her bank account as Ex. PW-24/B and the documents handed over to police with letter as Ex. PW-24/C. He was also again summoned and examined after arrest of accused Jai Kumari and SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 26/96 Raghbir Singh.
PW-25 is Sh. Suresh. He deposed that he is working as Jeweller and in the month of February, 2013, one Satbir Singh had given old jewellery of gold 173gm for making jewellery for the marriage of his son and daughter Sunny and new jewellery articles were prepared by him after altering the old jewellery. He deposed that he handed over the estimate to police which was proved as Ex. PW-25/A. PW-26 is Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services. He brought the CAF and CDR with certificate U/s 65B of Indian Evidence Act pertaining to mobile No. 9654092725 which was alloted in the name of Sunny. The copy of CAF with copy of Election I card was proved as Ex. PW-26/A, CDR as Ex. PW-26/B and certificate U/s 65B of Indian Evidence Act as Ex. PW-26/C. PW-27 is Sh. Laxmi Narayan Udupa, Assistant SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 27/96 General Manager, Syndicate Bank. He deposed that on 19.08.2013, in response to notice U/s 91 Cr. P. C., he had given the copy of cheque to IO with letter which was Ex. PW-27/A. PW-28 is Inspector Ashok Saini. He deposed that on 23.07.2013, the investigation of present case was assignment to him after registration of FIR. He further deposed regarding the investigation done by him in the present case to the effect of arrest of accused Mahesh Solanki, his interrogation, recording of his disclosure statement, recording of statement of family members of deceased, arrest of accused Nirmala Devi, her interrogation, recording of her disclosure statement, collecting of treatment papers of deceased and records from bank, arrest of accused Jai Kumari and Raghbir Singh, recording of statement of witnesses and other proceedings done by him.
SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 28/96 On 14.08.2014 Ld. APP for the State by making statement tendered the FSL report prepared by Sh. Amit Rawat, Sr. Scientific Officer which was Ex. PW- 21/E. It was also recorded in his statement that report may be read in evidence as the same is admissible U/s 293 Cr. P. C.
23. Thereafter, Prosecution Evidence was closed vide order dated 20.03.2019.
24. The statements of accused U/s 313 Cr. P.C. was recorded on 06.04.2019 whereby all the incriminating evidence was put to accused persons to which they denied. During recording of statement of accused, they pleaded their innocence and stated that they never demanded any dowry nor harassed Sunny at any point of time. It was also stated that deceased was treated as daughter of the family and she was under depression due to miscarriage and that was the reason she had taken this drastic step of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 29/96 committing suicide.
25. I have heard the Addl. PP for the State and the counsel for the accused. The material on record has also been perused.
26. The prosecution of the accused persons had been launched on receipt of information regarding hospitalization of deceased Sunny who during treatment expired. It is stated by Ld. APP for State that deceased was married to accused Mahesh Solanki on 14.02.2013 and since beginning, the dowry demands were made to deceased by accused persons and she was harassed and tortured by the accused persons on various occasions when demands for money and car was made to her and she was subjected to cruelty at the hands of accused persons. Ld. APP for the state further stated that the death of the deceased had taken place within 6 months of her marriage and she was being regularly SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 30/96 harassed for dowry by the accused persons. It is further submitted by Ld. APP that prosecution by producing several reliable witnesses in witness box has succeeded in proving the guilt of accused persons beyond reasonable doubt. It is argued that the contradictions in the testimony of material witnesses are minor and natural and does not affect the case of the prosecution and the accused persons had committed offence punishable U/s 498A/304B/302/34 IPC. Further accused Jai Kumari and Raghbir had also committed offence punishable U/s 174A IPC apart from above offences.
27. On the other hand, Ld. Counsel for accused vehemently argued that the accused persons are innocent. It is argued by him that the evidence of prosecution is full of omissions, improvements and full of material contradictions. In view of improvements made by material witnesses and contradictions in their statements, their evidence has SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 31/96 lost the credibility and cannot be relied upon to give finding of guilt against the accused persons. It is also argued that accused persons have been falsely implicated by the parents and family members of deceased by leveling false and vague allegations of demand of dowry and harassment. The counsel for accused has argued that there are material contradictions in the testimony of the witnesses which goes to the root of the case and falsify the case of the prosecution. It is further argued that the prosecution has failed to prove the present case beyond doubt that there was any demand of dowry by accused persons to the parents of deceased. It is also argued that prosecution has miserably failed to prove its case and even failed to prove the basic ingredients of offences U/s 498A/304B/ 302/174A/34 IPC.
28. Section 498A IPC has two limbs. The first limb of section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 32/96 woman to cruelty shall be punished. 'Cruelty' has been defined in clause (a) of the Explanation to the said section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. When there is harassment of the woman for demand of dowry, any property or valuable security or is on account of failure by her or any person related to her to meet such demand then the case comes under clause (b) of the Explanation to Section 498A.
29. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 33/96 Explanation to Section 498A gives the meaning of 'Cruelty'. In Section 304B there is no such explanation about the meaning of 'Cruelty' but having regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence. Under section 304B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in section 498A. A person charged and acquitted under section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. In this regard, reliance is placed upon judgment titled as Akula Ravinder and others Vs. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 34/96 of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of 7 years from the date of marriage. The above position was highlighted in case titled as Balwant Singh & Ors. Vs. State of H. P. [2008 (10) JT 589. 2008 AIR SCW 6372].
30. The Courts cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304B. Where other ingredients of Section 304 B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 35/96 be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of section 304 B, the court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304B of the IPC.
31. Of Course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304 B were not satisfied, rebut the same. While referring to raising of presumption under section 304B of the Code, the Hon'ble Supreme Court of India, in case having titled Kaliyaperumal Vs. State of Tamil Nadu [AIR 2003 SC 3828]: (2003 AIR SCW 4387) stated the following ingredients which should be satisfied:
"4...........
SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 36/96
1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under section 304B IPC).
2) The woman was subjected to cruelty or harassment by her husband or his relatives.
3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
4) Such cruelty or harassment was soon before her death."
32. In the light of above essential ingredients, for constituting an offence under Section 304 B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 37/96 with the marriage. Once these ingredients are satisfied, it would be called the 'dowry death' and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence.
33. It is to be kept in mind that though the investigation agency has tried to join the threads and prosecution has also tried to establish and justify the allegations but some of the witnesses have put the nail in the coffin of the same as discussed henceforth.
34. After going through the file, the following facts, improvements and contradictions in the testimony of PWs are clearly visible.
35. PW-1 Sh. Satish Kumar Rawat, Tehsildar is a formal witness in the present who had recorded statement of complainant on receipt of information regarding death of Sunny. In his cross-examination, he has admitted that "signatures of investigation officer as required in Ex. PW-1/D do not appear thereon". The perusal of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 38/96 record shows that Ex. PW-1/D is a request letter sent to HOD, DDU Hospital for conducting postmortem on the dead body of deceased. The name of IO SI Jagdish Chander is found mentioned in the name. Words mentioned in said letter are that ".....Above IO is directed to be present at the time of post-mortem proceedings whose signature is attested below. He is also authorised to collect P. M. report after post mortem examination and hand over the body to the relatives after proper verification". So by way of this letter, the Executive Magistrate / PW-1 has authorised SI Jagdish Chander to collect PM report and his signatures has to be there on same but same is missing.
36. PW-2 Dr. Komal Singh, HOD, Department of Forensic Medicine DDU Hospital is a witness who had conducted the postmortem on the dead body of deceased on receipt of request from Tehsildar. He has opined cause of death as respiratory failure subsequent to the aluminum phosphide poisoning and the manner of death was SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 39/96 suicide. In his cross-examination, he deposed that there was no mark of external injury on the body of deceased.
37. PW-3 Dr. Gyan Vats, Medical Director, from, Divya Prastha Multi Specialty Hospital had deposed that on 23.07.2013, one patient namely Sunny came to his hospital in unconscious condition and during treatment she was expired. He proved the relevant medical documents as Ex. PW-3/A and MLC of patient as Ex. PW- 3/B. During his cross-examination, he had admitted that "Deceased was brought to the hospital by her mother in law, daughter in law and husband. The name of daughter in law is Sonia. The condition of deceased never improved during the treatment given to her. No foul smell was noticed from the mouth of deceased regarding taking any kind of poison. None of the family members of deceased (her mother, father or brother) met me during the treatment. The patient was treated for profound circulatory shock in our hospital. No police official SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 40/96 informed us that any case has been registered by them in respect of the deceased." From above discussion of deposition of PW-3, it is important to note here that deceased was brought to hospital by her mother in law and husband. If accused persons had committed the offence then they would not have tried to take the deceased to the hospital. It shows their bonafide intention to save the deceased Sunny.
38. Sh. Gurdeep Singh was examined as PW-4. He is cousin brother of deceased. Though he has supported the case of prosecution, however during his cross- examination, he deposed that "I had stated to the police that Sunny met me in her matrimonial home and she stated that her in laws and sister in law Johny used to taunt her that she was from a very poor family.... I had stated to the police that I assured the family members of the accused to bring much better articles on the next occasion"
but when this witness was confronted with statement Ex. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 41/96 PW-4/DA, the above facts were not found mentioned therein. He further deposed that "I had stated to the police that Sunny also told me that her father in law used to ask her to bring money from her parental house when I went to her matrimonial house. .... on 23.07.2013 at about 3. p.m., I received an information on telephone that Sunny was admitted in the Divya Prastha hospital". On these aspects also, this witness was confronted with statement Ex. PW-4/DA and these facts also were not found recorded.
39. It is pertinent to mention here that during his cross-
examination recorded on 06.02.2016, he has deposed that "It is correct that the lagan /sagai in the present case was of Rupee 1 only". From his above deposition, it is clear that there was no demand of dowry from the side of accused persons otherwise the accused persons had not accepted ceremony of lagan/sagai for Rupee 1 only. This witness could not answer, if deceased SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 42/96 had gone to outstation pleasure trips with her husband / accused No. 1. On this, the witness was shown five photographs mark PW-4/DX1 to PW-4/DX5 during evidence wherein he identified deceased in the photographs.
40. On page No. 2 of his cross-examination, he further deposed that "My signatures had been obtained on the documents prepared by the IO while taking the photographs. Besides that my signatures were not obtained on any other paper. Police had recorded my statement. (Vol. My signatures were not obtained on the same. The statement was read over to me by IO Ashok Saini. It is correct that I had not mentioned about demand of duster car, in my statement given to the IO. I had accompanied my uncle about 2-3 times just to know about the progress of the investigation. Vol. No investigation was made from us on those dates". From above discussion, it is clear that he had disputed his signatures SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 43/96 on his statement itself. He also admitted that he had not averred regarding demands of accused persons for Duster car in his statement made to police. He further admitted that "To my knowledge, no complaint was ever made prior to the death of my deceased cousin sister Sunny with regard to treatment meted out to her at her matrimonial house". So this witness is not believe-worthy as he had made some improvements in his examination which is different from the version recorded in his statement made to police.
41. PW-5 Smt. Phoolwati is the younger real sister of mother of deceased. In her cross-examination, she deposed that "I had stated to the police in my statement that we had given sufficient dowry in the marriage and spent about Rs. 13-14 lacs in the marriage of Sunny...... I do not remember the exact date or month, however, on the festival of Holi, Sunny told me that her father in law Sh. Raghubir Sigh had got transferred Rs. 1 lakh to his SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 44/96 bank account from her account. I told to the police that Mahesh had stated that what his father was doing, was right". She was confronted with the statement Ex. PW-5/DA, however the above facts were not found mentioned in the statement Ex. PW-5/DA. During her cross-examination recorded on 17.04.2014, she further admitted that deceased stayed with them for about 10-15 days on many occasions from her marriage till her death and that deceased Sunny again came to them and remained at their house till 18.07.2013. She further deposed that she had stated to the police that on 21.07.2013, she was present with the mother of Sunny and at about 7 am, a telephonic call from Sunny came on the phone which was attended by her sister in her presence, however time and presence of witness is not found recorded in the statement Ex. PW-5/DA.
42. PW-5 in her cross-examination recorded on 17.08.2015 also admitted that lagan of this marriage was Rs. 1. She also admitted that "whatever I have SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 45/96 stated about the information received from Naveen and Gurdeep, on the occasion of Holi with regard to Sidha, it is based only on the information received by me from them. It is also correct that I do not have any personal knowledge regarding the same. I never visited Sunny at her matrimonial house and I never talked to her even on phone". In her cross-examination, she also deposed that "the amount of Rs. 13-14 Lacs was towards expenditure on rent, catering, furniture, clothes of the relatives, jewellery of Sunny. There was no electronic item including T.V., Fridge or AC". So this witness is also not believe-worthy as she had also made some improvements in her statement which is different from the version recorded in her statement made to police.
43. Sh. Dharampal was examined as PW-6 in this case. He is maternal uncle of the deceased. He has supported the case of prosecution, however, in his cross- SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 46/96 examination, he deposed that "I had stated to the police that in the marriage, sufficient dowry was given as per the capacity of parents of Sunny and Rs. 11-12 lacs were spent in the marriage. I had stated to the police that after marriage of Sunny whenever I used to talk with Satbir, my brother in law and father of Sunny, he used to tell me that the accused Mahesh and his family members were greedy persons and they used to harass and beat Sunny for demand of dowry" but when he was confronted with the statement Ex. PW-6/DA, the above facts were not found recorded in the same. In cross- examination, he admitted the fact that his statement was written by the police, but he averred that same was not read over to him and that he had not signed any statement except the one recorded by Tehsildar.
44. He further deposed that "I had stated to the police in my statement that when I talked to Satbir he told me that when Gurdeep had gone to the SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 47/96 matrimonial house of Sunny at village Palam for giving 'Seedha', the accused Mahesh Solanki, his mother accused Nirmala and his sister Johny had misbehaved with Gurdeep saying that "Bhikhario Jaise Kapde Le Aaya'. On this deposition also, he was confronted with his statement Ex. PW-6/DA, however the above submissions were not found recorded in same. Moreover, he seems to be hearsay witness as the above fact was not told by deceased Sunny to him but by father of deceased Satbir. So he is not direct witness to above fact. This witness was confronted with his statement on some other facts also wherein either the same was not found recorded or there were discrepancies in the name of accused persons.
45. It is pertinent to mention here that though in his cross-examination recorded on 17.04.2014, he deposed that his statement recorded by police was not read over to him, however in the cross-examination recorded after arrest of accused Jai Kumari and Raghbir Singh on SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 48/96 06.02.2016, he deposed that the statement recoded by police was read by him. So he has given contradictory version regarding his statement being read over to him. He further deposed that "It is correct that whatever has been stated by me in the statement made in the court, with regard to the giving of Sidha, is based on the information received from other family members since I was not physically present there". So in view of his above deposition, it is clear that his deposition in above respect is based on hearsay evidence and he is not direct witness to said fact.
46. In his further cross-examination recorded on 30.04.2016 in para No. 1, though he admitted about the expenditure of Rs. 11-12 Lacs in marriage but he also admitted that no such record was handed over to the IO of this case by Satbir Singh. He further deposed that "It is correct that at the time of fixing the matrimonial alliance, the relationship was settled at Rs. 1 as customary gift. It is correct that in majority of the SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 49/96 cases, the customary gifts are given at the time of lagan /sagai. However, at times it goes till Bidai Ceremony. The figure of Rs. 11-12 lacs as given by me in my earlier statement, is based on the information received by me from my brother in law Satbir". From above discussion, it is crystal clear that apart from deposition of PW-4 Sh. Gurdeep and PW-5 Mrs. Phoolwati, he also admitted that matrimonial alliance was settled at Rs. 1 only as customary gift. From the testimonies of above public witnesses, it has become clear that the lagan ceremony was of Rs. 1 only and nothing has come on record with regard to the any demand of car or cash by accused persons at the time of marriage.
47. PW-7 and 8 are formal police witnesses who had deposed as per their role in the investigation of present case.
48. The next material witness produced by prosecution SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 50/96 is PW-9 Sh. Satbir Singh. He is father of deceased and he has also supported the case of prosecution. However, in his cross-examination recorded on 24.05.2014, he also admitted the fact that "in the Lagan ceremony, he gave only Rs. 1 to the accused Mahesh Solanki and Rs. 1 for Sagai (engagement) for cloths". He stated that he spent Rs. 13 lacs as per the demand of accused persons in the marriage but he failed to place the bills on record regarding expenditure of Rs. 13 Lacs. No bill of jewellery items has been placed on record and this witness admitted that he paid only bill for making the jewellery of Rs. 12,000/-.
49. In his cross-examination recorded on 09.06.2014, he further admitted that "In the marriage of my daughter Sunny, no expensive items such as two wheeler, refrigerator, TV, Cooler, washing machine etc. was presented by me. There was other cash in the house apart from Rs. 5 lac and the same was with my wife. I cannot tell the exact amount of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 51/96 said cash amount. After the marriage, I had not given any article as mentioned above to the accused persons. .... I did not deposit any amount in the bank account of Sunny after her marriage. I did not deposit any amount in the bank account of accused Mahesh Solanki or his any family member. .... I could not mention the name of Raghubir Singh in my statement before the Executive Magistrate as I was in a position of mental shock".
50. In his cross-examination, recorded on 30.04.2016, he deposed that "I did not hand over any record of my income for the amount spent by me on the marriage of Sanjana (Sunny) to the IO of this case. I did not hand over record/ receipts/bills to the IO of this case with regard to the expenditure of the marriage of Sunny. It is correct that accused Raghbir Singh did not make any demand of Rs. 1 Lac from me. (Vol. It was made by my daughter in the month of March, 2013. The part of amount of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 52/96 Rs. 1 lac was deposited by me in the bank account of Sunny on 12.02.2013 i.e. prior to the marriage of my daughter Sunny...... It is correct that I did not mention the names of accused Raghbir Singh and Jai Kumari in the statement given to Tehsildar. I had told to Tehsildar that Sunny was ill-treated for the sake of Rs. 1 Lac (confronted with the statement Ex. PW-1/A where it is not so recorded. I had told to Tehsildar that Sunny was forced to sign papers for withdrawal of an amount of Rs. 1 lac from her account by accused Raghbir (confronted with the statement Ex. PW-1/A where it is not so recorded). I had told to Tehsildar that my daughter was ill treated and harassed by accused Raghbir and Jai Kumari (confronted with the statement Ex. PW-1/A where it is not so recorded)". From above deposition of PW-10, it is clear that records / bills /receipts regarding expenditure incurred on marriage were not handed over to IO. Moreover, the amount of Rs. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 53/96 1 Lac was not demanded by accused persons as per his statement but it was demanded by deceased only. The said amount was transferred in the account of deceased only. He has admitted that he did not make any complaint to any authority even after acquiring information from her daughter during her stay with them. If there were demands of dowry and accused persons were harassing the deceased for same and said fact had been told to family members by the deceased then they must have made complaint to concerned authorities regarding same.
51. Further during recording of cross-examination on 30.04.2016 after lunch session, he deposed that "It is correct that about one month prior to the incident of her death, my daughter Sunny had gone with the accused Mahesh Solanki and his sister on a pleasure trip to Rishikesh, Nainital and I was told about the same by Sunny. I have seen the photographs mark PW4/DX1 to DX5 and my SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 54/96 daughter is not looking under stress in those photographs." He further admitted that "After knowing about the threats on 21.07.2013, as stated by me, I did not take any step for the safety/security of my daughter." There are several improvements in his statement which are not found mentioned in the statement recorded by police. The above discussion of his deposition shows that he has not initiated any action or complaint against accused persons on coming to know the intentions of accused persons. If the allegations of demand of dowry were true and genuine then no sane person would wait for any untoward incident with her daughter and instead of making some complaint to any authority, they have chosen to keep mum. In this regard, Ld. Defence Counsel has rightly relied upon decision of Hon'ble High Court of Delhi given in the case titled as State Vs. Ashok Kumar & Others, Manu/DE/1810/2010 and Ahmed Sayeed Vs. State, 2014 (1) JCC 727 in support of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 55/96 his plea that "when the allegations of dowry demand emerged only after the incident and no complaint of protest is made in any corner and no report or complaint is filed, it reflects and gives an impression that the entire theory of demand of dowry is an afterthought".
52. PW-10 Smt. Rajwati is the mother of deceased.
In her cross-examination recorded on 21.05.2014, she deposed that "We converted my old jewellery in new style for presenting the same to my daughter in her marriage from a goldsmith of my village Bharthal. I do not know how much amount was given to my village goldsmith as the same was given by my husband Satbir Singh. I do not know whether some bill was raised by the goldsmith at that time or not. I did not visit the shop of my village goldsmith. Vol. But my deceased daughter Sunny and my husband went there for converting the gold jewellery into new style jewellery. I have SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 56/96 no bill regarding jewellery, cloths and other items presented in the marriage of my deceased daughter Sunny to her family members. The marriage was covered by the photographer arranged by the accused family. We had not given any motorcycle and car in the marriage. We arranged the marriage expenses of Rs. 13.00 Lac altogether by the brothers of my husband Satbir as they are 9 brothers. I do not know how much share was spent by my husband in the marriage of my deceased daughter out of Rs. 13.00 lac. Today I do not recollect the date of depositing Rs. 1 Lac in the account of my deceased daughter Sunny but it was deposited by my husband prior to her marriage". From her above deposition, it is clear that she had also admitted apart from her husband Satbir that they had converted old jewellery in new style for presenting the same to deceased in her marriage from a goldsmith. No bill regarding jewellery, cloths and other SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 57/96 items alleged to be given in marriage of deceased have been placed on record. It is also admitted that no photographer was engaged by them. It is also admitted that motorcycle or car was not given in the marriage. She also admitted that amount of Rs. 1 Lac was deposited in the account of her deceased daughter prior to her marriage.
53. In her cross-examination recorded on 28.07.2015, she deposed that "Police never issue any summon/ notice on me regarding this case. Police never met me in context with this case. Police did not record my statement in context with this case. I do not know, if any proof with regard to the expenditure on marriage was given to the police or not. Myself also did not give any proof to the police regarding expenditure of Rs. 13 lacs on marriage...... Sunny came and resided with us, once for 15 days, after that for two months near Holi. After that also, she came once. In all, Sunny came 4-5 times but I SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 58/96 cannot tell the duration and dates of the same...... I came to know for the first time about the fact that my daughter was not happy with the marriage, soon after when she visited us after her marriage. No complaint/ protest was made by me after coming to know that my daughter was not happy with the marriage. It is correct that the lagan in the marriage of my daughter was of Rs. 1. .....It is correct that whatever I have stated about the information received from Naveen and Gurdeep, on the occasion of Holi with regard to Sidha, it is based only on the information received by me from them. It is also correct that I did not have any personal knowledge regarding the same.". So in view of her above deposition, it is clear that her deposition in above respect is based on hearsay evidence and she is also not direct witness to said fact. She specifically deposed that police never issued any summon to her nor met her and police did not record her SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 59/96 statement. She failed to produce any bill /receipt to prove the expenditure incurred on marriage. It is not made out as to why she kept mum when deceased Sunny told her that she was not happy with her marriage and no complaint or action was initiated by them. Besides other close family members or relatives of deceased who appeared before the court in witness box, she also admitted that lagan in the marriage was of Rs. 1 only. So in her deposition also, there are material contradictions as observed in deposition of other public witnesses/ family members of deceased.
54. Reliance is placed upon judgment titled Dr. Jhamman Lal Vs. State (Delhi Administration) 2011 [4] JCC 2932 wherein it was held that ".....It is settled law that if a witness makes even two inconsistent statements- Evidence of such a witness cannot be relied upon-No conviction can also be based on such evidence....". It was also held that "......A person cannot be held guilty on mere probabilities- SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 60/96 Evidence of witnesses or circumstances surrounding the incident should in a definite tendency and unerringly point towards the guilt of accused......." Reliance is also placed upon judgment titled Suraj mal Vs. State (Delhi Administration) 1979 AIR (SC) 1408 wherein it was held that "A witness whose testimony in respect of same transaction has been rejected in one part cannot be relied for conviction of other accused".
55. PW-11 Wct. Grace is formal police witness who had received information in this case in PCR on telephone No.
100.
56. PW-12 Retd. SI Jagdish Chander deposed regarding the investigation conducted by him in this case. He deposed that he investigated the present case initially and later on investigation was done by Inspector Ashok Saini.
57. PW-13 Ct. Jagbir Singh is also formal police witness SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 61/96 who had taken the dead body of deceased Sunny to Mortuary, DDU Hospital and nothing contrary has come in his deposition. Similarly, PW-14 Sh. Amrender is also formal police witness who had recorded FIR in the present case.
58. PW-15 Sh. Krishan Gopal Garg deposed that his daughter in law Dr. Anvita Garg is Director of Shanti Nursing Home and on 31.08.2013, Inspector Ashok Saini contacted him and he handed over the copies of relevant entries of dispensary register pertaining to patient Mrs. Sunny which were seized by IO vide seizure memo Ex. PW-15/A and copies of relevant entries of register were Ex. PW-15/B.
59. PW-16 Dr. Anvita Garg had also deposed in similar lines as of PW-15 by stating that on 20.02.2013 patient namely Jai was examined by her and prescription slip in this regard was Ex. PW-16/A. She further deposed that during investigation SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 62/96 Inspector Ashok Saini made requisition for some documents and she gave him said information about Sunny and Jai Kumari vide her letters Ex. PW-16/B and Ex. PW-16/C. She was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh. In her cross-examination recorded on 28.07.2014, she deposed that "On 19.07.2013, when Sunny came to me in my Nursing Home, I did not notice any visible injury on her person. As far as I remember, she also did not make any complaint to me about any one".
60. In her cross-examination recorded on 27.02.2019, she deposed that "Police never inquired from me the cause of mis-carriage of pregnancy of deceased Sunny as such I had no occasion to give the same. It is correct that in many cases the mis-carriage may occurs in normal circumstances."
SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 63/96
61. PW-17 Ct. Seema is also another formal witness in whose presence accused Nirmala Devi was interrogated and her disclosure statement was recorded.
62. PW-18 Ct. Deepak deposed that on 30.07.2013, the relevant documents of Syndicate Bank Bharthal Branch were seized by IO in his presence vide seizure memo Ex. PW-18/A. He further deposed that on 03.09.2013, the CDR of mobile phone numbers 9968790476 and 9654092725 were seized by IO vide seizure memo Ex. PW-18/B.
63. Sh. Vinod Kumar, Nodal Officer, MTNL was examined as PW-19 in this case who brought the customer application form in respect of mobile number 9968790476 in the name of Raghbir Singh and attested copy of said form was Ex. PW-19/A and attested copies of Election I card and DTC I card were Ex. PW-19/B and PW-19/C respectively. He also brought the CDR of said mobile phone for the period SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 64/96 from 15.07.2013 to 23.07.2013 which was Ex. PW- 19/D and computerised and attested copy of cell ID chart was Ex. PW-19/E. The certificate U/s 65 B of Indian Evidence Act was Ex. PW-19/F. He was also again summoned and examined after framing of charges against accused Jai Kumari and Raghbir Singh.
64. PW-20 Ct. Om Prakash is another formal police witness who deposed that on 21.08.2013 he joined investigation of this case with IO Inspector Ashok Saini and went to Oriental Bank of Commerce, Palam Village where Chief Manager, handed over the statement of account of Sh. Raghbir Singh with letter which were seized vide seizure memo Ex. PW-20/A.
65. HC Vishram was examined as PW-21. He deposed that in the month of July 2013 SI Jagdish Chand deposited one sealed pulanda with him and he made entry in this regard in register No. 19 at S. No. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 65/96 1233 and copy of same was Ex. PW-21/A. He also deposed that on 24.07.2013, he made another entry at S. No. 1234 and copy of same was Ex. PW-21/B. He also proved road certificate No. 79/21/13 as Ex. PW- 21/C, copy of acknowledgement issued by FSL as Ex. PW-21/D and report of FSL as Ex. PW-21/E.
66. PW-22 ASI Jitender Prakash is a witness who was posted as In-charge, Mobile Crime Team and on receipt of message from Police Control Room on 23/24.07.2013, he alongwith his staff reached at spot and inspected the spot and photographs were taken. He proved his detailed report as Ex. PW-22/A. This witness was not cross-examined by the Ld. Defence counsel for accused persons.
67. PW-23 Sh. Kulbhushan Gupta, Chief Manager, Oriental Bank of Commerce deposed regarding handing over the statement of account of Sh. Raghbir Singh to Inspector Ashok Saini and the said SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 66/96 statement of bank account was proved as Ex. PW- 23/A and his letter as Ex. PW-23/B. This witness was not cross-examined by the Ld. Defence counsel for accused persons.
68. PW-24 Sh. Vinod, Branch Manager, Syndicate Bank deposed regarding handing over the verified copy of bank account opening form in respect of account of Sunny. The said account opening form was proved as Ex. PW-24/A, statement of her bank account as Ex. PW-24/B and the documents handed over to police with letter as Ex. PW-24/C. He was also again summoned and examined after arrest of accused Jai Kumari and Raghbir Singh. In his cross- examination, he deposed that he never visited the PS in context with the investigation of present case and his statement was never recorded by the police.
69. PW-25 is Sh. Suresh. This witness was working as Jeweller. He deposed that in the month of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 67/96 February, 2013, one Satbir Singh had given old jewellery of gold 173gm for making jewellery for the marriage of his son and daughter Sunny and new jewellery articles were prepared by him after altering the old jewellery. He deposed that he handed over the estimate to police which was proved as Ex. PW- 25/A. In his cross-examination, this witness deposed that "It is correct that I do not know how many articles of jewellery were given by Satbir in the marriage of his son Naveen and daughter Sunny. It is also correct that I have stated the aforesaid fact to the police in my statement. No separate bill was given to Satbir except the copy of Ex. PW-25/A."
70. PW-26 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services is a formal witness who had proved the CAF and CDR with certificate U/s 65B of Indian Evidence Act pertaining to mobile No. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 68/96 9654092725 which was alloted in the name of Sunny. The copy of CAF with copy of Election I card was proved as Ex. PW-26/A, CDR as Ex. PW-26/B and certificate U/s 65B of Indian Evidence Act as Ex. PW- 26/C.
71. PW-27 Sh. Laxmi Narayan Udupa, Assistant General Manager, Syndicate Bank deposed that on 19.08.2013, in response to notice U/s 91 Cr. P. C., he had given the copy of cheque to IO with letter which was Ex. PW-27/A. In his cross-examination, he deposed that "I never visited any police station in context with the present case. No statement of mine was ever recorded in the present case. It is correct that there is no reference of Defence Colony Branch, New Delhi on mark PW-27/A".
72. Inspector Ashok Saini was examined as PW-28.
He deposed that on 23.07.2013, the investigation of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 69/96 present case was assignment to him after registration of FIR. He further deposed regarding the investigation done by him in the present case to the effect of arrest of accused Mahesh Solanki, his interrogation, recording of his disclosure statement, recording of statement of family members of deceased, arrest of accused Nirmala Devi, her interrogation, recording of her disclosure statement, collecting of treatment papers of deceased and records from bank, arrest of accused Jai Kumari and Raghbir Singh, recording of statement of witnesses and other proceedings done by him.
73. In his cross-examination recorded on 27.02.2019, he deposed that "I had inspected the spot at about 10 p.m. At that time, the house was not locked. I cannot tell the name of person/persons, whom I had met at that house. I did not examine anybody there at that time. I SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 70/96 also did not note down name, address and other particulars of person/ persons present at that time". In para No. 2 of his cross-examination, he further deposed that "I had not asked from the doctors as to the reasons of miscarriage of pregnancy of the deceased. I had not made any efforts to find out as to after the above miscarriage of deceased Sunny, she had undergone any treatment for the same or not. I had not joined in my investigation any neighbour residing near the matrimonial home of the deceased. It is correct that matrimonial house of the deceased was situated in a thickly populated areas surrounded by residential houses and shop etc". So from his above deposition, it is apparent that at the time of inspection of spot, the house was not locked and it was in open condition. He admitted the factum of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 71/96 presence of public persons at spot but he neither recorded their names and addresses nor recorded their statement. It is also important to note here that this witness had not asked the reason of miscarriage of deceased from concerned doctor. No person from neighbourhood of deceased at her matrimonial house was examined by police official / IO.
74. In his cross-examination recorded on 12.03.2019, Inspector Ashok Saini admitted that accused Mahesh Solanki was apprehended from Bata Chowk Palam on the pointing out of SI Jagdish. He further admitted that in Ex. PW-12/C i.e. arrest memo of accused Mahesh Solanki does not find mention his place of arrest as Bata Chowk. He further admitted in his cross-examination that "entries dated 01.02.2013 and 12.02.2013 of amount of Rs. 1 Lacs in the account of Sunny are prior to the date of marriage. I did not come across any evidence SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 72/96 raising any demand, prior to solemnization of the marriage. I did not come to know about the source from which the amount of Rs. 1 Lac had come in the accound of Sunny (since deceased)". In para No. 5 of his cross-examination, he further admitted that "I was not furnished any record/receipts/bills of expenditure of Rs. 13 Lacs by the complainant and his other family members. I did not come to know about any evidence of accused Mahesh Solanki with Sunny since deceased when they travelled outside Delhi on pleasure trips with other family members. I did not come to know, during investigation, if accused Mahesh Solanki was in possession of any vehicle/car etc. prior to the marriage. It is correct that during investigation, I did not come across any evidence suggesting any sort of complaint or SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 73/96 any allegation by the complaint party against the accused persons prior to this case".
75. From the above discussion of deposition of prosecution witnesses, it is apparent that the evidence adduced by the prosecution to establish the guilt of accused persons under Section 498A/304B/34 IPC is lacking in this case.
76. Section 113B of Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment for or in connection with any demand of dowry. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman are required to be established to bring home the application of section 498A IPC.
77. In 2008 CRI. L. J. 3061 having titled Dalbir Singh Vs. State of Haryana, the Hon'ble Apex court SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 74/96 held that :
"Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 75/96 particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "Falsus in uno falsus in omnibus" (False in one thing, false in everything) has not received general acceptance in different jurisdiction in India nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (Reliance is placed upon Nisar SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 76/96 Alli Vs. The State of Uttar Pradesh, AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (Reliance is placed upon Gurucharan Singh and another Vs. State of Punjab AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would some to a dead- SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 77/96 stop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain, a grain of untruth or at any rate exaggeration, embroideries or embellishment. (Reliance is placed upon Sahrab s/s Belli Nayata and another Vs. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 78/96 The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others Vs. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made in discard the evidence in toto. (Reliance is placed upon Zwieolae Ariel Vs. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others Vs. The State of SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 79/96 Punjab, AIR 1975 SC 1962). As observed by this court in State of Rajasthan Vs. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
78. The counsel for accused persons has also relied SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 80/96 upon judgment passed by Hon'ble Supreme Court of India (from Punjab & Haryana) (D.B.) titled Rohtash Vs. State of Haryana 2012 (6) SCC 589. In said judgment, Hon'ble Supreme Court had discussed the judgment titled Appasaheb Vs. State of Maharashtra 2007 1 SCC 721 and discussed the definition of the word 'dowry' which are reproduced herein below:
"A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
79. The said judgment was reconsidered by this court in case titled Bachni Devi Vs. State of Maharashtra 2011 4 SCC 427, wherein the Hon'ble Court held that the said judgment does not lay down a law of universal application. Each case has to be decided on its own facts SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 81/96 and merits. If a demand for property or valuable security, directly or indirectly, has nexus with marriage, such demand would constitute demand for dowry. The cause of raising of such demand remains immaterial. The said judgment is fully applicable to the facts of the present case.
80. Reliance is placed upon judgment passed by Hon'ble High Court of Delhi titled as State Vs. Paramjeet Singh & Ors.. In the said judgment, the Hon'ble High Court reproduced the observation made by the Apex Court in case titled as Satvir Singh Vs. State of Punjab, (2001) 8 SCC 633, with respect to the phrase "soon before" and same is reproduced herein below:-
"It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if section 304-B is to be invoked. But it should have SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 82/96 happened "soon before her death."
81. Counsel for accused persons has further relied upon judgments titled as Umed Singh & Ors. Vs. The State, NCT of Delhi and titled as Naveen Vs. The State, NCT of Delhi decided by Hon'ble High Court of Delhi. In said judgment, the Hon'ble High Court has discussed the observation of Hon'ble Supreme Court in case titled as Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010 (1) SCC 750 which are given below:
"In State of West Bengal V. Orilal Jaiswal and Anr. (1994) 1 SCC 73, this court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide....." SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 83/96
82. It is the settled law that the dowry demand should have some nexus with the death and it should have been made sometime soon before the death. Reliance has been placed upon by the counsel for the accused on the judgment passed by Hon'ble Supreme Court titled as Baijnath & Ors vs State of Madhay Pradesh, Criminal Appeal No. 1097 of 2016 decided on 18.11.2016, the relevant para 35 wherein it has mentioned that "This Court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Alias Sawinder Kaur and another vs State of Punjab- (2011) 11 SCC 517 and echoed in Rajeev Kumar vs State of Haryana-(2013)16 SCC 640. In the latter SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 84/96 pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act."
83. Thus, statutory presumption under Section 113B under Indian Evidence Act has not been proved beyond reasonable doubt and accused is required to be given benefit of doubt.
84. None of the witnesses could categorically prove or cite any instance showing that they had SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 85/96 complained regarding the dowry demand or beatings/harassment and torturing to deceased Sunny to any authority and only general allegations have been levelled. If it was so then, the family members would have taken the remedial measures. It is the settled law that demand should be made immediately before the death or at least near the connected time with the death.
85. The court has to make out as to whether demand made by accused are due to establishment of business or something else which can be termed as demand of dowry. The present case is on better footing as the demands are not clear and same are not proved. The demands have not been made out. Specific reasons have not been assigned for the demand and they are not soon before the death coupled with other circumstantial evidence which has gone rather against prosecution.
86. The witnesses produced in witness box had made SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 86/96 material contradictions in their deposition. Rather, they had made improvements in their statement recorded before the Court and said facts are not found mentioned in their statement made to police as well as in the statement made to Tehsildar. Admittedly, the father of deceased rather had not made allegations against accused Jai Kumar and Raghbir Singh in the statement made to Tehsildar. All the public witnesses / relatives of deceased had admitted that lagan ceremony was of Rs. 1 only. It has also been admitted that no expensive gifts and electronic items like TV, Fridge, AC, Refrigerators etc. were not given in the marriage. As far as allegations of transfer of Rs. 1 Lac is concerned, the said amount was transferred before the marriage of deceased and that too in the account of deceased only and not in the account of any accused persons. Some allegations levelleved by public witness regarding demand are based no hearsay evidence and same as per settled principles of law does not hold any water. SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 87/96 Furthermore, the deceased was taken to hospital on the date of incident by accused persons only.
87. It is also observed that on the one hand, the witnesses/ family members of deceased had deposed regarding demands of accused persons and cruelty and harassment caused to deceased as conveyed by deceased Sunny herself and on the other hand, they are also admitting that no complaint was made by them to any authority in this respect. The judgment relied upon by the court titled as State Vs. Ashok Kumar & Others, Manu/DE/1810/2010 and Ahmed Sayeed Vs. State, 2014 (1) JCC 727 supra is fully applicable to the facts of the present case which says that "when the allegations of dowry demand emerged only after the incident and no complaint of protest is made in any corner and no report or complaint is filed, it reflects and gives an impression that the entire theory of demand of dowry is an afterthought". In the present case also, the allegations of dowry demand SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 88/96 emerged only after the incident and no protest / complaint was made prior to incident and thus entire theory of demand of dowry is held to be afterthought.
88. It is further pertinent to mention here that though it has been alleged that sum of Rs. 13-14 lacs was spent in marriage but witnesses /family members of deceased in witness box admitted that they had not handed over any bills /receipts to the IO of the case. They have also admitted that no expensive items, electronic item, motorcycle etc. was given in the marriage thus in these circumstances, it is not made out as to how the said expenditure of Rs. 13-14 lacs was incurred on the marriage of deceased. Further in the absence of any documentary proof, the allegations of family members of deceased for spending the above figure in the marriage cannot be ascertained and substantiated.
89. The counsel for accused has also relied upon judgment titled State of Gujrat Vs. Jayrabhai SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 89/96 Punjabhai Varu having Criminal Appeal No. 1236/10 decided by Hon'ble Supreme Court of India wherein in para No. 13 it was held as under:-
13)..... The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of accused and the other towards his innocence, the view which is favourable to the accused should be adopted......
90. So circumstantial evidence is also missing and it will not be safe to convict the accused persons on the uncorroborated broken chain.
91. As far as offence U/s 302 IPC is concerned, the PM report suggests the cause of death as respiratory SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 90/96 failure subsequent to the aluminium phosphide poisoning and manner of death is suicide, however, it could not be established that accused persons had given her aluminium phosphide or she herself has taken the same. PM report further suggests that "no any obvious fresh external injury present over the body", so it is clear that there was no beating marks of the body of deceased. There is no circumstantial evidence which could show that accused persons had murdered the deceased. Thus in the absence of any scientific and circumstantial evidence, the guilt of accused for the offence U/s 302 IPC cannot be proved.
92. As far as Offfence U/s 174 A IPC against accused Jai Kumari and Raghbir Singh is concerned, it is argued by the counsel for accused persons that accused Jai Kumari was not declared Proclaimed Offender and as such she is not liable for the offence U/s 174 A IPC. It is further argued by counsel that proclamation U/s 82 (4) Cr. P. C. is required to attract the offence U/s 174A IPC but in this SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 91/96 case the proclamation issued against accused Raghbir Singh does not fall within the category of offences mentioned in Section 82 (4) Cr. P. C. and therefore he is not liable to be convicted for the offence U/s 174 A IPC.
93. Before parting with the decision on the point of offence U/s 174A IPC, it would be appropriate to discuss the relevant provisions of Section 82 Cr. P. C. and Section 174 A IPC which are reproduced herein below:-
"82. Proclamation for person absconding:
(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) and such person fails to appear at the specified place and SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 92/96 time required by the proclamation, the court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect".
174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974 - Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 93/96 extend to seven years and shall also be liable to fine."
94. From perusal of record, it transpires that accused Jai Kumari was not declared proclaimed offender. Further as per case of prosecution when proclamation U/s 82 Cr. P. C. was issued against accused Raghbir Singh, at that time, Section 302 IPC was not added in this case which is requisite condition for proclamation U/s 82 (4) Cr. P. C. The arguments of Ld. Defence counsel has force. In view of the above observation, accused Jai Kumari and Raghbir Singh are not liable to be convicted for the offence U/s 174 A IPC.
95. It is important to note here that though it is pitiable that valuable life of deceased Sunny has been lost and responsibility of causing death would not be fixed on anybody but similarly, accused persons cannot be saddled with same for want of connecting evidence.
96. From the perusal of contradictions pointed by SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 94/96 counsel for accused persons, story of prosecution put forward does not hold water and is not trustworthy as there are material points extracted from the testimonies of Pws which disprove the version of prosecution and give benefit of doubt to accused. There are material contradictions in the deposition of witnesses and as per their deposition, the allegations of demand of dowry, causing cruelty soon before the death and murder of deceased are found to be baseless and does not hold any water. Since there are several latches in the testimony of Pws on some material points and scientific evidence is also not supporting the case prosecution, hence the prosecution case has miserably failed to stand on its own footing and to prove its allegations against the accused beyond reasonable doubt. Thus on all counts, guilt of accused persons has not been proved. In the absence of any cogent and reliable evidence, benefit of doubt has to be given to accused. So on all counts, the accused persons i.e. Mahesh Solanki, Nirmala, Jai Kumari and SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 95/96 Raghbir Singh are acquitted for the offences U/s 498A/304B/34 IPC and U/s 174 IPC.
97. Bail bonds u/s 437A Cr. P.C. in the sum of Rs.25,000/- has been furnished on behalf of the accused persons which have been accepted and shall remain in force for a period of six months from the date of its acceptance. Previous bail and surety bond of accused stand discharged. File be consigned to Digitally signed by record room. AJAY AJAY GOEL GOEL Date:
2019.05.16 15:00:16 +0530 Pronounced in the open court. (AJAY GOEL) Dated: 02.05.2019 ASJ/Special Judge (NDPS) Dwarka Courts/New Delhi.
SC No. 441006-16 State Vs. Mahesh Solanki & Ors. Page No. 96/96