Delhi District Court
State vs . Ashok And Others on 7 June, 2014
State Vs. Ashok and others
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No :192/13
ID No. : 02401R0616342013
FIR No. : 238/06
Police Station : Pahar Ganj
Under Section : 498A/304B/34 IPC
State
Versus
ASHOK KUMAR & OTHERS
.........Accused
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. S. Shahi, Advocate, counsel for the complainant
Sh. Vijay Dalal, Advocate, counsel for all the accused
ORDER ON THE POINT OF CHARGE:
1. Vide order dated February 26, 2007 the then learned
predecessor of this Court discharged all the accused persons for the
offences punishable under Section 498A/304B/34 IPC. Aggrieved by the
said order, complainant had filed a criminal revision petition no. 173/2007
SC No. 192/13 Page 1 of 33
State Vs. Ashok and others
before the High Court of Delhi at New Delhi. While setting aside the order
dated February 26, 2007, Hon`ble High Court remanded back the matter
with following directions:
"This petition, therefore, is allowed and the order dated
26th February, 2007 passed by the Additional Sessions
Judge discharging respondent nos. 2-5 is set aside and
the matter is remanded back for passing of a fresh order on charge in accordance with law after giving fresh hearing to the parties and considering the entire material on record highlighted by the counsel for the petitioner. It is, therefore, made clear that this Court has not gone into the merits of the prosecution case and the matter is being remanded back only for the reason that the trial Judge has not passed the impugned order of discharge after considering the entire material submitted by the prosecution with the charge-sheet the trial Judge shall be at liberty to pass the fresh order totally uninfluenced by the setting aside of the impugned order."
2. Briefly stated facts of prosecution case are that on May 13, 2006, complainant Amar Nath had got recorded his statement before SDM Pahar Ganj alleging that marriage of his daughter Sushma (since deceased) was solemnized with accused Mohan on January 16, 2001 as per Hindu rites and customs and in the marriage, he had given sufficient dowry as per his capacity such as double bed, sofa set, T.V make Onida, fridge, washing machine, cooler, oven, stitching machine, geyser, dinner set, two wheeler school make Bajaj Chetak, gold set 30 gm, wrist watch and other household articles. It was alleged that after next day of the marriage, her mother-in-law i.e. accused Madhu Bala taunted the deceased that in her marriage (marriage of Madhu Bala) gold rice were given but complainant had not given anything in the marriage of deceased. Accused Madhu Bala also taunted her that even no millinee was given to her family members and relatives. It was alleged that when deceased had told the SC No. 192/13 Page 2 of 33 State Vs. Ashok and others same to the complainant, he had given millinee @ ` 51/- to her in-laws and other relatives. It was alleged that since then her husband i.e. accused Mohan, father-in-law i.e. accused Ashok and mother-in-law i.e. accused Madhu Bala started harassing the deceased. It was alleged that during the 5-6 months of the marriage, deceased used to visit her parents house often but after 5-6 months of the marriage, she was being harassed severely and their demand of dowry started increasing and deceased used to tell them (complainant and his family) that her mother-in-law and other in-laws were harassing her for not giving dowry and they also used to beat her. It was alleged that this continued for about one year and thereafter, deceased was thrown out from her matrimonial house by her husband and in-laws stating that whenever she wanted to come, she had to come with a sum of ` 2 lac. It was alleged that thereafter, a complaint was made with DCP; then a complaint was made at PS Uttam Nagar. Thereafter they made a complaint before Women Cell, Nanak Pura and thereafter, an FIR No. 550/2002 was got registered for the offences punishable under Section 498A/406/34 IPC at PS Uttam Nagar. .
(i). It was alleged that after three-four months of registration of the said FIR, compromise talks were initiated at the instance of her in-laws as they assured that they would keep Sushma very well and accordingly bail was granted to them. It was alleged that however, after some times Sushma was being harassed again by her in-laws and they did not permit the complainant and his family members to meet with her.
(ii). It was alleged that complainant had fixed the marriage of his son Kuldeep for November 4, 2003 and about one week ago he had brought Sushma from her in-law's house. It was alleged that her in-laws SC No. 192/13 Page 3 of 33 State Vs. Ashok and others refused to take back Sushma after the marriage of Kuldeep. It was alleged that Sushma was sent to her in-laws through Court. It was further alleged that whenever complainant visited the matrimonial house of Sushma, he found that Sushma used to remain disturbed or scared and her in-laws did not use to permit him to meet with her.
(iii). It was alleged that in a court case, samdhi of accused Ashok named Jagdish used to appear and he used to say that he would not permit Sushma to live with accused Mohan and he would not care how much amount he had to spend for that.
(iv). It was further alleged that thereafter the accused persons got quashed the criminal case from the Hon`ble High Court and further alleged that whenever he used to go to the matrimonial house of deceased to meet her, her in-laws did not allow him to meet her. It was alleged that when his son Rocky @ Brij Mohan went to her matrimonial house, deceased told him that she was still disturbed and further told him that her in-laws were harassing her.
(v). It was alleged that on May 13, 2006 at about 4 PM he had received a call from his son-in-law i.e. accused Mohan that his daughter Sushma was not feeling well and thereafter told that she had died.
(vi). It was alleged that complainant had suspicion that his daughter Sushma had been killed by her husband Mohan, mother-in-law Madhu Bala, father-in-law Ashok and her brother-in-law named Ashu.
3. On his statement, SDM directed the SHO to register a case SC No. 192/13 Page 4 of 33 State Vs. Ashok and others for the offence punishable under Section 304-B/498A/34 IPC.
4. During investigation, accused persons were arrested and medical treatment documents of the deceased were seized. It was alleged that the accused persons failed to produce any current medical treatment documents of the deceased. Body was sent for post-mortem. After post- mortem, doctor kept the opinion pending till the receipt of viscera report. Exhibits were sent to FSL Rohini for analysis.
5. During investigation, it was revealed that deceased was a patient of thyroid and she was getting treatment. It was further alleged that deceased had died in suspicion condition as they had informed her parents after arrival of the police; blood was found on her clothes and they failed to produce any medical treatment documents. It was further alleged that deceased was taken to hospital when she became unconscious. On the basis of these facts, police concluded that there are sufficient material on record to prosecute the accused persons for the offence punishable under Section 498A/304B/34 IPC.
6. After receiving the viscera report, doctor opined that death could have resulted from anaemia and its complication arising out of hypothyroidism, a natural common disease.
7. During the course of arguments, counsel appearing for the complainant moved an application for further investigation of the matter, same was dismissed vide detailed order dated March 28, 2014.
8. Learned Counsel for complainant has filed written SC No. 192/13 Page 5 of 33 State Vs. Ashok and others submissions in detail stating that the investigating officer had not investigated the matter intensively as he was in conclusion with the accused persons and similarly doctors were also in collusion with the accused persons. It was further contended that the doctors had given the opinion about the cause of death which is contrary to the inquest and post- mortem report and contended that doctors were in conclusion with the accused persons as one of the accused was working in the said hospital. It was further contended that physical condition of deceased did not tally with the cause of death. It was further submitted that there was no record of illness immediate to her death which further creates a doubt over the cause of death that is given by the doctors. It was further argued that the accused Mohan had informed the complainant about the death of deceased at about 4 PM whereas she had already died at about 1.30 PM. It was urged that this conduct further creates a suspicions on their intention. It was argued that had their intention be clear they would have informed the complainant and his family immediately. It was further contended that the blood group of deceased was AB+ whereas in CFSL report the blood group of deceased has been shown as A+ which suggests that the investigating officer had changed the blood. It was further contended that the deceased was deliberately not taken to Suchita Kirplani Hospital, which is located just 1 km away from the house of accused persons and she was deliberately taken to LNJP hospital which was located 4 km away from the house of accused persons. It was argued that deceased was taken to LNJP hospital because accused Ashok was working there and with the help of doctors, accused persons managed to manipulate the record. It was further contended that the deceased was taken from the Court of Ld. Additional District Judge under the conspiracy to torture her and to starve her to death as the deceased was kept without food and medicine for months together in SC No. 192/13 Page 6 of 33 State Vs. Ashok and others a rented accommodation. It was further alleged that deceased was not allowed to meet with her parents/brothers. It was further contended that whenever complainant and his family members used to visit the matrimonial house of deceased, she used to disclose her torture perpetrated by the accused persons. It was submitted that soon before her death Brij Mohan @ Rocky went to her matrimonial house to meet her and she told him that accused persons were still torturing her physically and mentally and her life was not safe at their hands. It was further contended that police had deliberately not arrested Jagdish and Priyanka who abetted the accused persons. It was further submitted that deceased had not been died on account of anaemia as opined by doctor; rather she was killed by the accused by putting her on starvation for long period. It was further contended that cushion (gada) was destroyed by the accused persons over which deceased was bleeding while the deceased was being killed. It was further alleged that the investigating officer had not recorded the statement of witnesses correctly as he was in collusion with the accused persons. It was contended that when a person dies of anaemia, his or her body becomes blue not pale. It was further contended that the height of deceased was 163 cm (5.3 ft) and her weight was 60 kg which itself contrary to the symptoms of anaemia as alleged by doctor in his opinion. It was further alleged that persons suffering from hypothyroidism or hyperthyroidism will die of cardiac arrest, thus it was contended that the opinion of doctor Amit Kaucher can only be verified during trial and not prior to that. It was further argued that no time period has been fixed for the phrase "soon before" as mentioned in Section 304B IPC. It was further contended since the deceased was being tortured just prior to her death, the case squarely falls under Section 304 B IPC. It was further contended that the viscera report cannot be taken in isolation, it was argued that the SC No. 192/13 Page 7 of 33 State Vs. Ashok and others other material available on record are also to be considered. It was further contended that at the stage of charge, Court is not required to go into the detail of investigation. It was further submitted that Court has to only see whether prima-facie case is made out against the accused persons or not. It was submitted that since there are sufficient material on record against the accused persons, thus accused persons deserve to face trial for the offences punishable under Section 304B/498A/34 IPC.
9. In support of his contentions learned counsel appearing for the complainant relies on the following judgements:
(i) Subhash Chand Gupta vs. State of Delhi,I (2007) DMC 394
(ii) Raghuvir Singh & Ors. vs. State of Delhi,I (2007) DMC 594
(iii) Amit Kochar vs. State of Delhi,2007 (I) JCC 709
(iv) Madan Lal Kapur vs. Rajiv Thappar, 2008 (3) JCC 1626
(v) Yamin & Ors. vs. State, 2009 (4) JCC 2967
(vi) Ajay Kr. Vs. State, 2011 (4) JCC 2789
(vii) Shri N. Nivasulu vs. State of A.P., 2007 (4) JCC 2698
(viii) Palwinder Singh vs. Balwinder Singh & ors., 2009 (1) JCC
(ix) Indu Jain vs. State of M. P., 2009(1) JCC 246
(x) Dean Dayal & Anr. vs. State of U. P, 2009(1) JCC 540
10. Learned Additional Public Prosecutor appearing for the State supported the contentions raised by counsel for the complainant. However, it was submitted that he is not agree with the submissions of counsel for the complainant that investigating officer and doctors were in collusion with the accused persons. It was submitted that there is no material on record to arrive at any such conclusion.
SC No. 192/13 Page 8 of 3311. On the other hand, counsel appearing for the accused persons sagaciously contended that deceased was suffering from anaemia and hypothyroidism since long and she died due to the above said diseases and this fact is clear from her medical treatment documents as well as post-mortem report. It was contended that since the accused Ashok was working in JPN hospital, deceased was taken to JPN hospital with an intention to get better and prompt treatment in the hospital. It was further contended that the intimation was given to her parents at 4 PM because all family members were busy in the medical treatment of deceased. It was contended that during post-mortem, no external injury was found on her body, which rules out any possibility of torture etc. It was further contended that during post-mortem semi-digested food was found in her stomach which also rules out the possibility that deceased was used to keep on starvation for long period. It was also argued that from the post-mortem report, it is established that deceased had died of natural disease and it was a natural death. It was contended that since deceased had died of her natural death, no offence is made out against the accused persons. It was further contended that there is no evidence on record that the accused persons ever demanded any dowry particularly when the matter was settled between the parties and the FIR was quashed by the Hon'ble High Court.
12. I have heard rival submissions advanced by learned counsel for both the parties at length, perused the record carefully and gave my thoughtful consideration to their contentions.
13. Before dealing with the contentions raised by counsel for both the parties, I prefer to refer the principles laid down by the Apex Court on the point of framing of charge in Prafulla Kumar Samal (1979) 3 SCC 4 SC No. 192/13 Page 9 of 33 State Vs. Ashok and others and reiterated by the High Court of Delhi in Aruna Chadha versus State 2013 (6) LRC 306 (Delhi). The principles are as under:
"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
(emphasis supplied)
14. In Aruna Chadha case (supra) it was held:-
"33.Thus, on the basis of the judgments relied upon by SC No. 192/13 Page 10 of 33 State Vs. Ashok and others the parties and noting the language used in Sections 227 and 228 of the Code it can very well be stated that if on the basis of material placed before the Court the commission of offence appears to be probable, the Court shall be duty bound to frame the charge against the accused. To put it differently, if two views are possible and there is strong suspicion against the accused again the Court would be justified in framing the charge. As against this, if there is only a mere suspicion and two views are possible, the Court on the basis of mere suspicion should not proceed to frame the charge against an accused and should in the circumstances discharge him without making him undergo the ordeal of the trial.
(emphasis supplied)
15. Thus, it becomes clear that a charge will be framed only if prosecution succeeds either to show that collected material are sufficient to make out a prima-facie that offence has been committed or there is strong suspicion against the accused persons. But if prosecution able to show mere suspicion against the accused, accused persons shall be entitled for discharge as prayed by them.
16. In view of the aforesaid settle proposition of law, no purpose will be achieved to refer the judgements relied upon by counsel for the complainant relating to the principles to be kept in mind at the time of framing of charge.
17. Since, learned counsel appearing for the complainant vehemently relied upon the case Subhash Chand Gupta versus State of Delhi (supra), I deem it appropriate to take up this case first. In the said matter, learned Trial Court discharged the accused persons for the offence punishable under Section 304 B of IPC, which was challenged before the Hon'ble High Court of Delhi at New Delhi. After hearing both the parties, SC No. 192/13 Page 11 of 33 State Vs. Ashok and others Hon'ble Court remanded back the matter with direction to decide the matter afresh. Para No. 3 of the judgment is relevant and same is reproduced as under:
"The learned counsel for the petitioner, however, placed reliance on the decision of the Supreme Court in the case of Anant Chintaman Lagu versus The State of Bombay, 1960 (2) SCR 460 and Om Wati (Smt) and Another versus State (Through Delhi Admn.) and Others, 2001 (4) SCC 333 to show that the post mortem report would not be conclusive at the stage of framing of charges because there could be other evidence to establish the circumstances under which the death took place. As an example, he read out a portion from Anant Chintaman Lagu (supra). which referred to a medical text wherein the example of carbon monoxide poisoning was given. It was indicated that if a person dies due to carbon monoxide poisoning and test are not done within 24 hours of the death, there would be no trace of it in his blood. Therefore, although the person would have died due to the poison, since the post mortem was conducted subsequent 24 hours, the report would not indicate the presence of any poison. Taking this example, the learned counsel for the petitioner submitted that the post mortem report in the present case merely said common poison were not found. He submitted that there could be uncommon poison and, secondly, there would be poisons which went undetected in the post-mortem examination. Thus, in view of the Supreme Court decision, the post- mortem report taken in isolation without examination of the other material on record cannot form the basis of an order of discharge under Section 304-B IPC. The learned counsel for the respondents submitted that even if the post-mortem report is not taken into consideration and it is assumed without admitting, of course, that the death was not a natural one, the third ingredient of allegations of cruelty and harassment connected with demands for dowry soon before death was also missing. But, I find that this aspect has not been discussed in the impugned order, which has proceeded merely on the basis of the post-mortem report and the finding with regard to Kavita's death being natural.
(emphasis supplied) SC No. 192/13 Page 12 of 33 State Vs. Ashok and others
18. Though the facts of the said case are not clear from the above said order, yet it appears that in the said case, death was caused due to some poisoning whereas in the instant case, there is no allegation of poisoning.
19. Moreover, there is no dispute over the settled proposition of law that at the time of framing of charge, post-mortem report will not be considered in isolation because there may be other evidence to establish the circumstances under which the death had taken place. But the said alleged other circumstances are to be pointed out by the prosecution to show that the said other circumstances are sufficient to make out a prima- facie case. It is well settled law that accused persons cannot be forced to face ordeal of trial mere on assumption and presumption. Prosecution is duty bound to recite the material facts in the charge-sheet to show that the collected material is sufficient to make out a prima-facie case against the accused persons. Now moot question arises before this Court as to whether the material collected by prosecution is sufficient to make out a prima-facie case or not?
20. Before coming to the facts of case in hand, I prefer to refer the judgement M. Srinivasulu versus State of Andhra Pradesh (supra) wherein Apex Court has highlighted the essential ingredients to proceed with a case under Section 304-B of IPC. The relevant para are 6-10 and same are reproduced as under:
6. " Section 304-B of IPC deals with dowry death which reads as follows :
'304-B. Dowry death - (1) Where the death of a woman is caused by burns or bodily injury or occurs otherwise SC No. 192/13 Page 13 of 33 State Vs. Ashok and others 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."
7. "The provisions has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B of IPC, the essential ingredients are as follows
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstances.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death."
8. "Section 113-B of the Evidence Act is also relevant for SC No. 192/13 Page 14 of 33 State Vs. Ashok and others the case at hand. Both Section 304-B of IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B read as follows :
Section 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 purpose of this Section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
9. "The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its twenty-first Report dated August 10, 1988 on "Dowry Deaths and Law Reforms'. Keeping in view the impediment in the pre-existing law in security evidence to prove dowry related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand for dowry'. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
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 304-B IPC).
SC No. 192/13 Page 15 of 332. The woman was subjected to cruelty or harassment by her husband or his relatives.
3. Such cruelty of harassment was for, or in connection with any demand for dowry.
4. Such cruelty or harassment was soon before her death."
10. "A conjoint reading of Section 1113-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 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 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 expression 'soon before' would normally SC No. 192/13 Page 16 of 33 State Vs. Ashok and others 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 live link between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of cruelty is remote in time and has become state enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
(emphasis supplied)
21. To make out a prima-facie case against the accused persons for the offence punishable under Section 304B IPC, prosecution is duty bound to show that the collected material are sufficient to hold prima-facie:-
(1) That the death of deceased was caused either by burn injury or bodily injury or otherwise than under a normal circumstances.
(2) That the death of deceased had taken place within seven years of her marriage (3) That the deceased must have been subjected to cruelty or harassment by her husband or any of her relative of her husband.
(4) Such cruelty or harassment should be for or in connection with the demand of dowry.
(5) Such cruelty is shown but then meted out to the woman soon before her death.
22. In the instant case, it is undisputed facts that deceased did not die due to any burn injury or any bodily injury. As no external injury was found on her body during post-mortem, it prima-facie shows that the death was not caused otherwise than under a normal circumstances.
23. During investigation, dead body was sent for post-mortem. However, at the time of conducting post-mortem, no opinion was given SC No. 192/13 Page 17 of 33 State Vs. Ashok and others about the cause of death and same was kept pending till the receipt of viscera chemical analysis report. When the viscera report was received, autopsy surgeon gave his opinion as under :
"Death could have been resulted from anaemia and its complication arising out of hypothyroidism, a natural disease".
24. Thus, the autopsy report does not support the prosecution case that the death was caused due to any other than normal circumstances. On the contrary, as per autopsy report, death was caused due to natural disease.
25. During the course of arguments, counsel appearing for the complainant did not hesitate to raise allegations against the doctor, who gave the said opinion but he failed give any convincing reason to discard the said opinion. Needless to say that the opinion was given by an experienced doctor of Government Hospital and there is nothing on record which may show that he had any collusion either with the accused persons or with police or he had any ill-will towards the complainant, thus Court has no reason to disbelieve his opinion. It is pertinent to state that discarding the opinion of the doctor will amount aspersion of his probity, thus before giving any finding adverse to the opinion given by the doctor, counsel for the complainant is supposed to convince the court by furnishing some cogent reasons but he failed to do so.
26. Assuming for the sake of arguments that the opinion is biased, but question arises as to whether there is any other evidence on record to make out a prima-facie case against the accused persons in the SC No. 192/13 Page 18 of 33 State Vs. Ashok and others absence of autopsy report. During the course of arguments, learned Additional Public Prosecutor failed to point out any such other evidence or material, which may prima-facie show that the death was caused otherwise than under a normal circumstances.
27. Counsel appearing for the complainant made an attempt to assail the autopsy report on the ground that deceased was healthy at the time of her death as her weight was 60 kg against her height 163 cm as mentioned in the post-mortem report. It was further contended that her weight suggests that she was a healthy person. It was argued that had deceased been a patient of hypothyroidism or anaemia as alleged by prosecution, her weight would be less than 60 kg but there is no loss of weight which rules out the possibility that she was either a patient of hypothyroidism or anemia.
28. Prima-facie contention appears quite attractive but it is not so as the real question is as to whether loss of weight in anaemia or gain of weight in hypothyroidism is an essential feature in all cases. Since no material was provided either by prosecution or defence, Court has made a search on internet and able to find out the symptoms of hypothyroidism or anaemia. From the website of www.medicinet.com and the same are reproduced as under:
Anemia facts:-
• Anemia is a medical condition in which the red blood cell count or hemoglobin is less than normal.
• For men, anemia is typically defined as hemoglobin level of less than 13.5 gram/100 ml and in women as hemoglobin of less than 12.0 gram/100 ml.SC No. 192/13 Page 19 of 33
State Vs. Ashok and others • Anemia is caused by either a decrease in production of red blood cells or hemoglobin, or an increase in loss or destruction of red blood cells.
• Some patients with anemia have no symptoms. Others may feel tired, easily fatigued, appear pale, a feeling of heart racing, short of breath, and/or worsening of heart problems.
• Anemia can be detected by a simple blood test called a complete blood cell count (CBC).
• The treatment of the anemia varies greatly and very much depends on the particular cause.
Hypothyroidism Symptoms:
• The thyroid gland is a butterfly-shaped organ situated on the front of the neck that secretes two hormones, thyroxine (also known as T4) and triiodothyronine (called T3), that are important in the control of metabolism. Hypothyroidism is a condition in which the thyroid gland does not produce adequate levels of these critical hormones.
Hypothyroidism is very common and is estimated to affect 3% to 5% of the adult population. It is more common in women than in men, and the risk of developing hypothyroidism increases with advancing age.
Hypothyroidism is most commonly a result of an autoimmune condition known as Hashimoto's thyroiditis, in which the body's own immune cells attack and destroy the thyroid gland. Since the activity of the thyroid gland is controlled by other hormones from the pituitary gland and the hypothalamus of the brain, defects in these areas can also cause underactivity of the thyroid gland. Previous surgeries on the thyroid or a history of irradiation to the neck are other causes of hypothyroidism.
Symptoms of hypothyroidism can be mild or severe, but are often very subtle. People with a mild form of the condition may not have any symptoms at all. The SC No. 192/13 Page 20 of 33 State Vs. Ashok and others most serious form of hypothyroidism is called myxedema, which can lead to coma and even death. An underactive thyroid gland affects all organs and functions within the body, leading to both physical and emotional symptoms. Some of the most common symptoms of hypothyroidism in adults are: • Tiredness and weakness; feeling "run down" • Weight gain or difficulty losing weight • Constipation • Depression • Thinning or brittleness of the hair or nails • Cold intolerance • Sleepiness • Memory loss • Decreased libido • Muscle aches and pains Those affected by more advanced cases of hypothyroidism may notice dryness or thickening of the skin; slow speech; abnormal menstrual cycles; puffiness of the face, hands, or feet; and decreased capacity for taste and smell.
29. From the above it becomes clear that even in case of anemia there may not be any symptom in the patient. Similarly, in case of hypothyroidism weight gain is only one of the symptoms. Thus, it cannot be said that since the weight of deceased was found normal, she could not be a patient of hypothyroidism or anaemia. Moreover, during investigation, police had collected several documents which proves beyond doubt that deceased was a chronic patient of anaemia and hypothyroidism since 2001. Since, it is admitted case of prosecution that deceased was a patient of hypothyroidism and anaemia, it was the duty of investigating officer to collect evidence to show that she was not suffering from any such disease at the time of her death. But investigating officer failed to collect any such evidence.
SC No. 192/13 Page 21 of 3330. Though in the charge-sheet investigating officer has mentioned that the accused persons failed to provide the latest medical documents of the deceased, but record reveals that hardly any such opportunity was given to the accused persons as they were arrested at about 2.30 AM on May 14, 2006 whereas the FIR was lodged on May 13, 2006 at about 11.45 PM. This shows that no opportunity was given to accused persons even to provide any such documents. Moreover, it was the duty of investigating officer to make a search of the house to collect such documents but there is no memo showing that any search of the house was taken. Since the FIR was lodged at about 11.45 PM and the accused persons were arrested in the night itself. This shows that investigating officer was in hurry to arrest the accused persons without providing any chance to them to furnish an explanation about the circumstances under which death had taken place. It is pertinent to state that one of the accused was a female despite that she was arrested in the night itself. It is well settled law that no female can be arrested after sunset. But investigating officer appears to be in haste to arrest the accused persons. Perusal of file further reveals that even disclosure statement of the accused persons was not recorded. This further shows that no attempt was made to seek any clarification from the accused persons or to know about their versions. The investigating officer who arrested the accused persons in less than three hours after registration of FIR would probably have not imagined that counsel for complainant would make allegations against him that he was in collusion with the accused persons. Since, there was no injury marks on the dead body, investigating officer should have waited for at least for the autopsy report before arresting the entire family but it appears that he was in haste to arrest the entire family. The conduct of investigating officer rules out the possibility that he was in collusion with SC No. 192/13 Page 22 of 33 State Vs. Ashok and others the accused persons.
31. Now coming to the next question as to whether there was any sign of injury on the body of deceased or not?
32. It is admitted case of prosecution that deceased was taken to the hospital on May 13, 2006 at about 1.30 PM by accused Ashok Kumar. Deceased was examined by doctor vide MLC number 53405 wherein doctor specifically recited that no external injury was found on her body. Similarly, no injury was found in the inquest proceedings. Even during post-mortem no external injury was found on the person of deceased. This further rules out the possibility that deceased was assaulted by any person in any manner.
33. Now coming to the controversy relating to the blood group of the deceased. Learned counsel submitted that the blood group of deceased was AB+ whereas in the FSL report blood group on the clothes of victim was shown as A+. Accordingly, it was argued that the police had manipulated the exhibits.
34. As already stated that no external injury was found on the person of deceased, thus there was no question that the blood found on the clothes seized by the police belonged to the deceased. Probably the blood was of some other person and this proves from the FSL report that the blood found on the cloth was of A group whereas it is admitted case of the complainant that blood group of deceased was AB+. It only proves that the blood found on the seized clothes was not of deceased. Since, no external injury was found on her body, it also indicates that the blood on the clothes SC No. 192/13 Page 23 of 33 State Vs. Ashok and others was not of the deceased. In this regard the letter of Dr. V. K. Goel, Director of FSL is relevant upon which reliance has been placed by counsel for the complainant and same was produced during the course of arguments. The relevant portion of said letter is reproduced as under:-
"The viscera report of this case FSL No. 2006/C-1840 dated 29.01.2007 is very clear i.e. "on chemical examination, metallic poisons, ethyl & methyl alcohol, cyanides, phosphide alkaloids, barbiturates, tranquillizers & insecticides could not be detected in exhibits 1A, 1B & 1( copy attached for ready reference). However, the cause of death is ascertained by the post-mortem doctor after the receipt of viscera report.
It is evidence from the PM report that there is no external injuries on the body of the victim & as such it is not clear how the salwar (exhibit 1b) & Bed sheet (exhibit 1d) were stained with blood (Report FSL No. 2006/B-1858). The blood on these two exhibits were found to be of 'A Group'. The exhibits of parcel No.1 (Exhibits 1a-Lady's shirt, 1b- Salwar, 1C-Underwear, id-Bed sheet) received in the laboratory were sealed with the seal of LNJPN Hospital, New Delhi. The possibility that blood of some other person due to contamination might have been transferred on the clothes of the victim in the Hospital. It is further to submit that no blood sample of the victim was sent to this laboratory by the Police for comparison. PM report of Department of Forensic Medicine & Toxicology Lady Hardinge Medical College & Smt. S. K. Hospital, New Delhi clearly states that the body was highly decomposed & as such the blood sample was not taken".
35. Now coming to the contentions relating to delay in informing the family members of the complainant.
36. It is admitted case of prosecution that accused Ashok Kumar reached the hospital along with the victim at about 1.30 PM. It is also undisputed fact that police came to know about the death of victim at about SC No. 192/13 Page 24 of 33 State Vs. Ashok and others 1.45 PM itself as duty constable posted in the hospital conveyed the death of deceased to the local police at about 1.45 PM vide DD No. 16A. Mere fact that there is some delay in informing the family members of deceased is not sufficient to arrive at any conclusion. Since, the first priory was to provide medical aid to the deceased, thus mere fact that intimation was not given at the time of reaching hospital or just thereafter is not sufficient to reach at any conclusion. Since the police came to know about the death of the victim, it cannot be said that accused persons made an attempt to conceal her death either from police or from any other person. Once death came to the notice of police, it was not possible for any one to conceal the death, thus I do not find any substance in the contention raised by counsel for the complainant.
37. Now coming to the contention that victim was kept on starvation to death. To my mind is said contention is without any substance as during the post-mortem, 100 gm of semi-digested food material was found in her stomach which shows that she had consumed food items few hours prior to her death. Had the accused persons any intention to keep her on starvation to death, it would be highly improbable that they would give food to her just prior to her death. Moreover, this contention is a paradox to his earlier plea wherein counsel submitted that the weight of the deceased was normal in terms of her height. Had she be kept on starvation to death by the accused persons, there must be substantial weight loss but it was not so. This further indicates that the contention is without any substance.
38. Now coming to the contention that accused persons had any dishonest intention when victim was taken to LNJP hospital which was 4 km SC No. 192/13 Page 25 of 33 State Vs. Ashok and others away from their house and she was not taken to LHMC which was located 1 km away from their house. It is admitted case of prosecution that accused Ashok was working in LNJP hospital and from medical treatment documents seized by the IO also show that the she was getting treatment from the said hospital. It is a natural human conduct that a person try to take the patient in a hospital where he/she has some connection to get priority and promptness in the treatment. Since accused Ashok was working there, there is nothing uncommon if he had decided to take the victim to JPN hospital instead of LHMC which was falling on the way. It was highly unbelievable that doctors would manipulate the record just at the asking of one of the employees of the hospital. There is nothing on record which may show that accused Ashok had any special intimacy with the doctors who had examined the deceased or conducted the post-mortem. Moreover, the post-mortem was conducted at LHMC and Smt. Sucheta Kirplani hospital and not at JPN hospital. Admittedly, none of the accused was working in the said hospital. Thus, complainant should have no doubt over the impartially and integrity of the doctor who conducted the post- mortem. Mere fact that the autopsy report is not in favour of the complainant is not sufficient to form any opinion even prima-facie that the report is biased.
39. It is admitted case of complainant that Criminal Misc. No. 946/05 titled Ashok Kumar & others vs. State & another was filed before the High Court of Delhi at New Delhi and in the said petition deceased appeared before the Hon`ble High Court on March 24, 2005 when the proceedings emanated from FIR No. 550/02 under Section 498A/34 IPC PS Uttam Nagar were quashed. The order dated March 24, 2005 is reproduced as under:-
SC No. 192/13 Page 26 of 33State Vs. Ashok and others "This is petition under Section 482 of the Cr.P.C for quashing of the FIR No. 550/2002 registered under Section 498A/34 IPC at P.S Uttam Nagar and the proceedings emanating therefrom.
The complainant/respondent No.2 Smt. Sushma @ Simran is present in person. She is identified by her counsel Sh. Rakesh Chaudhary, who says that Sushma is his newphew's wife. Smt. Sushma says that she has compromised with the petitioners and is living with her husband, petitioner No.3 Mohan Kumar since September, 2004. She says that in view of the reconciliation she does not want to pursue the FIR and the proceedings emanating therefrom and the same may be quashed. Her affidavit to this effect is on record.
In these circumstances, I find that no useful purpose will be served in continuing the prosecution. Accordingly, the FIR No. 550/2002 registered under Section 498A/34 IPC at P.S. Uttam Nagar and the proceedings emanating therefrom are hereby quashed.
Dasti March 24, 2005
40. Bare perusal of said order reveals that deceased Sushma stated before the Hon`ble Court that she had compromised the mater with the petitioner i.e. accused herein and she was living with her husband i.e. accused Mohan Lal since September 2004 and she further stated before the Hon`ble Court that in view of the reconciliation, she did not want to pursue the FIR and requested to quash the same. In view of her submission, Hon`ble Court quashed the proceedings of FIR No. 550 of 2002 and the proceedings emanating therefrom. Thus, if there was any demand on the part of accused persons, the said demand was settled prior to September 2004 when matter was compromised between the parties. It is pertinent to state that there is no allegation of either any demand of dowry or any kind of torture or harassment for dowry during September SC No. 192/13 Page 27 of 33 State Vs. Ashok and others 2004 to March 24, 2005.
41. Now coming to the statement made by complainant before SDM at May 13, 2006. No doubt in his complaint dated May 13, 2006 complainant had made the allegations that when deceased was thrown out from her matrimonial house the demand of ` 2 lac was made and thereafter FIR No. 550/02 under Section 498A/34 IPC was got registered at PS Uttam Nagar. It means that the said demand was made in the year 2002. As already stated that the said FIR was quashed by the Hon`ble High Court on March 24, 2005 wherein deceased made a statement before the Hon`ble High Court that she was living with her husband since September 2004. It means that since September 2004 till March 2005 there was no demand of ` 2 lac as was made in the year 2002. Complainant also alleged that when his son Rocky @ Brij Mohan visited the matrimonial house of his daughter, she told him that she was still tortured by her in-laws. But admittedly there is no allegation that she was being tortured on account of any dowry demand. In other words there is not sufficient allegation in the complaint dated May 13, 2006 that there was any demand of dowry after March 24, 2005 from the in-laws of deceased or just before her death. Had there been any demand or deceased was being tortured or harassed, deceased would not have made any statement before the Hon`ble High Court on March 24, 2005. It is highly improbable that the deceased could have been forced to make such a statement before the Hon'ble High Court. Moreover, if there would have been any demand or she was being tortured she would not be living with her husband in her matrimonial house.
42. Learned counsel appearing for the complainant heavily relied upon the judgment Deen Dayal vs. State of U. P. 2009 (ii) SCC 157. In SC No. 192/13 Page 28 of 33 State Vs. Ashok and others the said case, the deceased was married in June 1997 and died on September 6, 1998 by drowning in a well. In the said case, last demand was made in July 1998. Accordingly, contention was raised on behalf of the accused that since demand for dowry was last made in July 1998 when Appellant No.1 had gone to bring the deceased from her parents house and she died on September 4, 1998, hence the same does not satisfy the requirement of 'soon before her death' which is essential for the offence punishable under Section 304 B IPC. While rejecting the said contention, Hon`ble Court held as under :-
"The words " soon before her death" occurring in Section 304-B of the Penal Code are to be understood in a relative and flexible sense. Those words cannot be construed as laying down a rigid period of time to be mechanically applied in each case. Whether or not the cruelty or harassment meted out to the victim for or in connection with the demand of dowry was soon before here death and the proximate cause of her death, under abnormal circumstances, would depend upon the facts of each case. There can be no fixed period of time in this regard."
(emphasis supplied)
43. The facts of the case in hand are total different from the facts of the above said case. Thus, I am of the view that the said judgment is not helpful to the prosecution in any manner.
44 Similarly, the facts of the case Ajay Kumar @ Lallu, 2011 (4) SCC are totally different from the facts of the case in hand as in the said case, victim had committed suicide within 2 years of her marriage due to the continuous demand of her dowry whereas in the instant case, there is no such allegation. Similarly, the facts of the case Yamin and Others vs. SC No. 192/13 Page 29 of 33 State Vs. Ashok and others State (supra) were also totally different from the case in hand. In the said case also deceased died within three years of her marriage under suspicion circumstances and during post-mortem four ante-mortem injuries were found on her body whereas in the instant case no injury mark was found on her body.
45. Counsel for the complainant and prosecution strongly relied upon the statement of PW Meera Devi wherein she stated that in the first week of this year i.e. 2006 when she went to the house of deceased, her father-in-law went away by abusing while her mother-in-law had told her that they did not want girl without dowry and Ashu had slapped the victim. Admittedly, no date and time of her visit is disclosed by the witness. Her statement is quite vague. She did not state what was the demand of the accused persons. Admittedly, she had made the alleged statement before the police on June 5, 2006 whereas the alleged incident had taken place on May 13, 2006. Admittedly, complainant had not stated anything in his complaint that Meera Devi had made any such visit to the matrimonial house of deceased or any such incident had taken place in her presence. It is admitted case of prosecution that PW Meera Devi was close relative of complainant. Had Meera Devi witnessed any such incident, she would have certainly narrated the incident to the complainant but it is not so. In these circumstances, I am of the view that her statement is not sufficient to raise grave suspicion to make out a prima-facie case even for the offence punishable under Section 498A IPC.
46. To attract the provisions of Section 498A IPC, prosecution is duty bound to show prima-facie that there are sufficient material on record to show that victim was being harassed with a view coercing her to meet SC No. 192/13 Page 30 of 33 State Vs. Ashok and others any unlawful demand for any property or valuable security. But there is no iota of evidence to fulfill the said requirement. The allegations are totally vague.
47. From the aforesaid discussion, following facts emerge:-
(i) that the deceased was married with accused Mohan Lal on January 16, 2007;
(ii) that after marriage, harassment was started on the ground of not bringing sufficient dowry and after one year deceased was kicked out from her matrimonial house stating to come at matrimonial house along with ` 2 lac;
(iii) that when matter did not settle, an FIR No. 550/02 under Section 498A/34 IPC at police station Uttam Nagar was got registered;
(iv) that the said matter was settled. Deceased joined her matrimonial house and started living with her in-laws;
(v) that about one week prior to 4.11.2003 victim was brought to her parents house to join the marriage of her brother Kuldeep but after her marriage, her in-
laws refused to take her back;
(vi) that with the intervention of the court, victim joined her matrimonial house;
(vii) that from the order dated 24.3.2005 passed by Hon`ble High Court , it is clear that she joined the matrimonial house in September 2004 and since then she was residing with her in-laws;
(viii) that FIR No. 550/02 was quashed by the Hon`ble High Court on March SC No. 192/13 Page 31 of 33 State Vs. Ashok and others 24, 2005 and at that time deceased made a statement before the Hon`ble Court that she was residing with her husband since September 2004;
(ix) that there is no material on record to show that there was any demand of dowry during September 2004 to March 24, 2005;
(x) that though Rocky @ Brij Mohan visited the matrimonial house of deceased but no date of his visit is disclosed either in the complaint or in the statement of Brij Mohan;
(xi) that mere allegations against the accused are that deceased told that she was still disturbed and her in-laws were still harassed her. But there is no allegation that she was being harassed for the purpose of dowry;
(xii) that the statement of PW Meera Devi is vague and her statement is not sufficient to raise grave suspicions against the accused persons;
(xiii) that deceased was patient of anaemia and hypothyroidism;
(xiv) that the weight of deceased was normal at the time of her death ;
(xv) that semi-digest food was found in her abdomen;
(xvi) that no external injury was found in her body;
(xvii) that as per autopsy report death was caused due to anaemia and its complications arising out of hypothyroidism- a natural disease;
(xviii) that prosecution failed to produce any other material to show prima-facie that death had taken place other than normal circumstances;
SC No. 192/13 Page 32 of 33State Vs. Ashok and others (xix) that there is no specific allegation of any dowry item between September 2004 to May 13, 2006;
(xx) that prosecution has failed to produce sufficient evidence to show prima- facie that deceased was tortured soon before her death in connection with or for dowry demand.
48. Considering the aforesaid discussion, I am of the considered opinion that prosecution has failed to make out a prima-facie case against the accused persons for the offences punishable under Section 304B/498A/34 IPC, thus, I hereby discharge all the accused persons thereunder.
Announced in the open Court on this 7th day of June, 2014 (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 TIS HAZARI COURTS, DELHI/sv SC No. 192/13 Page 33 of 33