Delhi District Court
State vs 1. Sanjeev Kumar S/O Ganga Ram on 9 May, 2011
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IN THE COURT OF SHRI AJAY KUMAR JAIN: ASJ03, SE,
SAKET COURT COMPLEX: NEW DELHI
Sessions Case No. 72/10
DATE OF INSTITUTION :
29.09.2010 (Old date of
Institution: 08.12.07)
DATE OF RESERVE FOR ORDER: 28.04.2011
DATE OF DECISION : 09.05.2011
State Vs 1. Sanjeev Kumar S/o Ganga Ram
2. Smt. Chandri Devi W/o Ganga Ram
3. Mam Chand S/o Ganga Ram
4. Khushi Ram S/o Ganga Ram
5. Satish kumar S/o Ganga Ram
All r/o 7, Masi Garh, Sukhdev Vihar,
New Friends Colony, New Delhi
and.
6. Manveer Singh S/o Shiv Lal
R/o H.No. 136, Gali No. 3,
Mukesh Nagar, Shahdra, Delhi
FIR No: 237/07
P.S. New Friends Colony
U/s 304 B/406A/498A IPC
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JUDGMENT:
1. Prosecution story in brief is that on receiving DD no. 38 regarding information that one Sushila wife of Sanjiv aged 27 years had admitted in the hospital as she had eaten something. HC Mahender Singh reached in Holy Family hospital but could not find anybody there and had collected the MLC No. 722983 of Sushila showing that patient is not present in the casualty. During investigation of DD no. 38 dt. 10.5.07 it was found that the deceased was admitted on 10.5.07 in Jeewan Nursing home hospital, Sunlight Colony and was found unfit for statement and this fact was communicated to Executive Magistrate L.S. Yadav.
2. On 19.5.07 Executive Magistrate, Defence colony L.S. Yadav had recorded the statement of father of the deceased Sh Tota Ram who stated that he married her daughter Sushila with Sanjiv 3 years back and just after 6 months of marriage, her in laws had started demanding motorcycle and on this, he brought Sushila, his daughter and told her in laws that only if they execute written undertaking then he will send her back to the matrimonial home. But on the assurance of the brother in law of her husband that nothing of this 3 sort will be repeated he sent her back to her in laws house. Thereafter for some time everything was okay, but again his daughter raised complaint about the harassment by in laws. At about 89 months back, accused Sanjeev had told deceased Sushila that to ask from her father Rs. 2,00,000/ to purchase car on installments. But he refused to give the money to Sanjeev. On this, accused Sanjeev and his mother Chandri Devi started beating and harassing his daughter and tortured her to bring Rs. 2,00,000/ from her father. On 12.05.2007, he came to know that Sushila had eaten something and admitted in Jivan Nursing Home and on reaching Jivan Nursing Home, found her condition serious and further came to know that in big quantity she had eaten some poisonous material. He further stated in his complaint that he can say with assurance that her husband Sanjeev, Jeth Mamchand,, Khushi Ram and her mother in law have together given her poison and in this work brother in law of her husband and Jeth Satish had helped them. He further stated that they were always threatened for demand of dowry and requested legal action against the all accused persons. Pursuant to this complaint, FIR was registered against accused persons u/s. 498A/406/34 IPC and investigation was handed over to SI Raj Kumar, who during investigation had inspected the spot and 4 recorded the statement of witnesses and further collected stomach wash from Holy Family Hospital and tried to record statement of deceased Sushila, but she died on 23.05.2007.
3. Thereafter, further investigation was handed over to SI VKP Singh, who got conducted the postmortem of the deceased and as per postmortem report cause of death remain pending till the outcome of viscera report and as per MLC injuries present on body of deceased suggests of torture. Thereafter, accused Sanjeev was arrested and interrogated and when the search of his room conducted, he stated that he had thrown the poisonous bottle because he got frightened, and for the destroying evidence another section 201 is added and later on other accused persons were also arrested. During investigation, Tota Ram, father of deceased further given the lists of articles which he had given in the marriage, but articles as per list could not be recovered. On completion of investigation, chargesheet was filed u/s. 498A/406/304B/328/201/ 34 IPC.
4. During proceedings before court before framing of charge, CW1 Shri Jitender Kumar, Sr. Scientific Assistant, FSL Rohini, was 5 examined who deposed that on chemical and thin layer chromatography examination, organo phosphorus compound was found in the viscera. Further deposed that organo phosphorus compound is a pesticide and poison. Consequently the charges were framed against all the accused persons u/s. 498A/304B/34 IPC and against accused Sanjeev Kumar for an offence u/s. 406 IPC.
5. For substantiating charge, prosecution has examined 15 witnesses. PW1, PW4, PW9 are father Tota Ram, mother Kranti Devi and brother Dharam Singh of the deceased. Other witnesses include Executive Magistrate, police officials, doctors etc. Brief summary of depositions of PWs as follows.
Deposition of PW1 Tota Ram (father), PW4 Kranti Devi (mother), PW9 Dharam Singh (brother) of deceased.
6. PW1 Tota Ram father of the deceased Sushila in his deposition testified that he married her deceased daughter Sushila with accused Sanjiv on 29.4.04 and his daughter remained happy only for 56 months thereafter her in laws started demanding motorcycle and further started quarreling with her, therefore, he took his daughter 6 back to his home where she remained for 45 months. After this, accused Manvir and Sanjiv assured that nothing would happen and on their assurance, he sent back his daughter to matrimonial house where she remained happy for some time. Thereafter, his daughter deceased Sushila told him that accused Sanjiv has asked to take Rs. 2 lakhs for taking car but he refused the same, therefore, Sanjiv and his mother Chandri Devi had beaten his daughter. He further deposed that accused persons namely Chandri Devi, Sanjiv Mam Chand, Khushi Ram , Satish and Manvir Present in court harassed and beaten his daughter for demand of dowry. On receiving the complaint from his daughter, he went to her in laws house and accused persons also abused him and manhandled him. He further deposed that accused Manvir told him that accused Sanjiv had necessity of Rs. 2 lakhs for business purpose to which he refused. He further deposed that on 8.5. 07 accused Sanjiv came to his house alongwith his daughter Sushila and demanded Rs. 2 lakhs for business which he refused, therefore, he became angry and went back to his house on 9.5.07. Thereafter, after about 3 days of the incident accused Mamchand called him on telephone and stated that his daughter had eaten something and admitted in Jeewan Nursing Home and he alongwith his son Dharam Singh and his wife Kranti 7 Devi went to Jeewan Nursing home and found his daughter in critical condition. But she was not in a position to speak and expired on 23.5.07, further deposed that he had suspicion over the accused persons that they might have given some poisonous substance to deceased Sushila due to which she got expired.
7. He further deposed that his statement was recorded by SEM Ex. PW1/A and identified the dead body of her deceased daughter and further supplied the list of articles which were given in marriage of his daughter.
8. In cross examination, he deposed that no family member of the accused Sanjiv was present when he reached the nursing home and after about half an hour of reaching he met his daughter. He further deposed that accused Sanjiv and his daughter had come to his house in the morning on the day of incident and said incident took place in the evening but received the information of the same after 3 days. He further deposed that he used to go to in laws house of his deceased daughter and their house was 4 storey building and denied suggestion that his daughter was living separately from accused Chandri Devi and further denied suggestion that she was having 8 good relations with accused Chandri Devi. He further deposed that it is correct that prior to the said incident his deceased daughter blessed with a child who got expired and denied the suggestion that due to that frustration, she committed suicide. He further denied the suggestion that accused Chandri Devi had not demanded dowry before or after the marriage. He further deposed that there was no letter of harassment written by his daughter though she informed about the same on telephone as well as on meeting personally. He further deposed that he had not made any complaint regarding demand of dowry prior to the incident. He further denied that no articles were entrusted to the accused at the time of marriage.
9. This PW was again recalled for cross examination on application u/s 311 Cr.P.C. In further cross examination, he stated the name of the brother in law of accused Manvir in his statement before Executive Magistrate confronted with Ex. PW1/A and for allegation of demand of dowry and harassment for accused Mamchad, Khushi Ram, Satish was also confronted with Ex. PW1/A. He further deposed that accused Mamchand, Satish and Khushi Ram are residing separately from accused Sanjiv Kumar and Chandri Devi in one house and further deposed that it is correct that the accused 9 Manvir used to reside at Shahdra and was mediator of the marriage. And denied the suggestion that accused Sanjiv had not demanded any money from us. And further deposed that he demanded money of Rs. 2 lakhs for purchase of vehicle/car and to run the same for business. He further deposed that on 12.5.07, one police official met them in hospital and told him that police had also received information on the same day and his statement was recorded by the Executive Magistrate after 1012 days. He further deposed that he cannot tell the date regarding when the demand/purchase of car was made by accused Sanjiv. He further denied the suggestion that he had not given dowry articles in the marriage of his daughter. And further denied the suggestion that accused persons had not demanded any dowry therefore, he had not made any complaints.
10. PW4 Kranti Devi deposed that for about four months her daughter lived happily after marriage. She further deposed that after four months all the accused i.e. Sanjiv, Chandri Devi, Mam Chand and Manvir started harassing her daughter for demand of dowry and used to beat her daughter for demand of dowry. She further deposed that the accused Sanjiv demanded motorcycle and this fact was told to her husband by deceased daughter Sushila and 10 therefore, they had brought their daughter back to their house, but accused Manvir came to their house and promised to send her daughter back and she will not be harassed. On this assurance, they sent their daughter Sushila to her in law. For about 12 months she remained happily and thereafter accused persons started demanding Rs. 2 lacs for four wheeler vehicle and business. The said demand was made by accused Sanjiv and other accused persons. But her husband refused to give that amount to accused persons. She further deposed that their daughter used to tell about demand of Rs. 2 lacs and in the same month incident took place. She alongwith her husband, accused Sanjiv came to their house and told that accused Sanjiv is demanding Rs. 2 lacs to start business. She further deposed that whenever their daughter used to come to their house, she used to complaint about the accused persons regarding the harassment for demand of dowry. She further deposed that accused Chandri Devi used to harass her daughter and demanded dowry/money from her. She further deposed that accused Mam Chand called them on telephone and told them that their daughter has consumed poison and admitted in Jivan Nursing Home and on reaching the nursing home, she found her daughter unconscious. 11
11. In cross examination, deposed that she got information about the incident after three days as accused Mam Chand called his son and further deposed that it is correct that accused Manvir was mediator of the marriage and denied the suggestion that accused Manvir had come to her and told that Sanjiv is not doing well, therefore, requested a loan of Rs. 2 lacs, so that he can start some business, confronted with the statement Ex. PW4/DA. She further denied the suggestion that she is deposing falsely at the instance of her husband and further denied the suggestion that accused had not made any demand of money and deceased was never harassed by them. She further denied the suggestion that her deceased daughter and accused Sanjiv was residing separately from the rest of the family. She further denied suggestion that her daughter had consumed baygon due to some mistake. She further deposed that her husband used to visit the hospital during the admission of her daughter but never stayed over night with her daughter. She further deposed that the medical expenses was borne by in laws of her daughter, but they also contributed to that. She further denied the suggestion that her daughter was residing with them for three months preceding the date of incident and further volunteered that she visited her on the date of incident and come back to her in laws house on the same 12 day. She further denied the suggestion that because of the refusal Rs. 2 lacs by the accused persons, they got the case registered.
12. PW9 Dharam Singh brother of the deceased deposed that her deceased Sushila married with accused Sanjiv on 29.04.2004, and after the marriage for sometime everything was fine. But later all the accused persons started demanding motorcycle and he expressed his inability and they started beating his sister and his sister came back to her parental home. On the assurance of accused Manvir, she was sent back again to matrimonial home. He further deposed that for sometime things went well but later accused started demanding car and in the alternative Rs. 2 lacs and this fact was told by her sister on telephone and also when she came back to their home. However they expressed their inability to fulfill the demand. The accused persons again started beating his sister on account of non fulfillment of the demand.
13. He further deposed that on 08.05.2007, accused Sanjiv had come with his sister at his house and his sister told that accused used to beat her as his demand was not met and on the next day on 09.05.2007, accused Sanjiv and his sister went back to Masihgarh. 13 On 12.05.2007, accused Mamchand informed us on telephone that Sushila had consumed poison and admitted in Jivan Nursing Home. Thereafter, he alongwith his mother and father went to the nursing home and found Sushila unconscious. On 23.05.2007, they got information that Sushila got expired.
14. In cross examination, he deposed that his statement was recorded by the police only once and further denied the suggestion that they received information about the incident on 11.05.2007 and went to the hospital on 11.05.2007 and found Sushila in better condition and talked with her and had not complained about any person. He further denied the suggestion that deceased Sushila consumed baygon spray accidentally. He further denied the suggestion that his deceased sister was living happily after marriage and stated that accused Manvir is residing separately at Shahdara. He further denied the suggestion that accused persons never demanded dowry. He further deposed that he never used to call his sister on telephone. But used to meet her at her matrimonial and 23 times visited hospital to see his sister and it is correct that the accused were asking for Rs. 2 lacs for business and denied the suggestion that they never demanded dowry or maltreated his sister. He further deposed 14 that he does not know at which floor accused Chandri Devi residing and further do not know where accused Chandri Devi was residing in that house.
Deposition of Doctors
15.PW5 Dr. Anjana Kharbanda, CMO Holy Family Hospital deposed that on 10.05.2007, she medically examined Sushila brought by her husband with alleged history of ingestion of baygaon, an insecticide and complaining pain in abdomen and vomiting and prepared MLC Ex. PW5/A and referred the patient to some other hospital because they did not have any bed vacant in the ICU. In cross examination she deposed that it is correct that patient was conscious when brought in the hospital and mentioned the alleged history in the said MLC as per the statement of the patient
16.PW10 Dr. D.N. Bhardwaj deposed on behalf of Dr. Raghevendra, who had left the services of hospital and exhibited the postmortem report Ex. PW10/A, which bears signature of Dr. Raghevendra at point A and Dr. T. Millo at point B. The following injuries were found: 15
1. Marks of violence in the form of multiple linear abrasions and contusions of variable size were present on whole of the back, both buttons and whole of the back portion of the thigh upto its middle 1/3rd. The injuries were of various duration. Some injuries were reddish brown in colour while some were healed. The injuries were in different stages of healing.
2. Denudation of skin over left gluteal region were present in area of 5 X 4 cm (no other injury was present).
17. He further deposed that the history was of consumption of baygon insecticide and as per FSL report no. 2007/C2144 dated 18.12.2007 the report gave positive for organo phosphorus compound and the cause of death in his opinion is organo phosphorus poisoning and baygon is also a organo phosphorus poison.
18. In cross examination he deposed that he had no personal knowledge of this case and the injuries mentioned were of various duration mostly old. And there was no fresh injury mentioned in the postmortem report. He further deposed that it is difficult to distinguish the injuries inflicted during torture or otherwise. He further denied the suggestion that consumption of baygon will 16 produce rashes like injuries as mentioned in Ex. PW10/A.
19.PW11 Dr. Rajesh Sahay have deposed that on 10.05.2007, he was doctor on duty in Jivan Hospital and Nursing home and on that day Smt. Sushila was admitted in the hospital with alleged history of ingestion of baygon spray and she was brought from Holy Family Hospital and developed respiratory failure on 11.05.2007 and put on ventilator. On 22.05.2007, inspite of all emergency she could not be revived and died on 23.05.2007 at 9.30 p.m. and cause of death is organo phosphorus poisoning with respiratory failure and her discharged report is Ex. PW11/A.
20.PW12 Ram Nath, store keeper Jivan Nursing Home and Hospital have deposed that he had brought the treatment record running into 47 pages Ex. PW12/A collectively.
21. PW15 Dr. Millo Tabin associate professor department of Forensic Medicines AIIMS, deposed that on 28.05.2008, he gave subsequent opinion alongwith Dr. Raghvendra in postmortem no. 626/07 pertaining to deceased Sushila and after examining postmortem report, viscera analyses, the cause of death is organo phosphorus 17 poisoning and his detail report is Ex. PW15/A. In cross examination he deposed that he had returned the viscera report and postmortem report to IO after giving subsequent opinion. Deposition of other official and police witnesses
22. PW2 HC Ram Niwas deposed that on 21.05.2007, at about 9.45 p.m. rukka was produced before him by HC Mahender Singh pursuant to which he recorded FIR no. 237/07 vide Ex. PW2/A and endorsement on the rukka is Ex. PW2/B. After registration of the case handed over copy of FIR and rukka to SI Raj Kumar for further investigation of the case.
23.PW3 Inspector Raj Kumar, deposed that on 21.05.2007, after assignment of investigation, he visited Jivan Nursing home and hospital and met HC Mahender Singh in the hospital and made inquiries from Shri Tota Ram and recorded his statement u/s. 161 Cr. P.C. and Sushila found unfit for statement. On 22.05.2007 also doctor declared her unfit for statement. He further deposed that he recorded the statement of HC Mahender and further prepared the site plan on the basis of inquiry and on 23.05.2007 an information 18 was received at police station vide DD no. 10 dated 23.05.2007 that Sushila died and thereafter section 304B IPC was added in FIR and investigation was transferred to inspector VKP Yadav.
24. In cross examination he deposed that first time the information regarding the admission of Sushila was received on 10.05.2007, which was given by HC Mahender. HC Mahender visited holy family hospital but did not find Sushila and thereafter HC Mahinder told him about admission of Sushila in Holy Family Hospital. He further deposed that he did not visit Holy Family hospital. He further deposed that it is correct that in the statement of HC Mahender Ex. PW3/DA there is no reference regarding admission of Sushila in Holy Family hospital. He further deposed that he did not record the statement of Dr. Anjana Kharbanda at Holy family hospital and visited the hospital for the first time in 21.05.2007 and had not recorded the statement of any witness before 21.05.2007.
25. PW6 Mr. L.S. Yadav, Executive Magistrate/Tehsildar, he deposed on 12.05.2007 he received information of admission of Sushila but found her not fit for statement and directed the police official to inform him as and when she got fit for statement and on 19.05.2007, 19 he recorded the statement of Tota Ram father of Sushila Ex. PW1/A and got the information on 23.05.2007 that Sushila died in the hospital and conducted her inquest proceedings Ex. PW6/A dated 24.05.2007 . Further moved an application Ex. PW6/B to conduct postmortem in AIIMS hospital and sent the statement of Tota Ram and Dharam Singh to SHO New friends colony for taking necessary action.
26. In cross examination, he deposed that statement Ex. PW1/A was recorded by his assistant Joginder Ahlawat under his supervision and denied the suggestion that Ahlawat recorded the statement while sitting in his room. He further deposed that he read over the statement of Tota Ram to Dharam Singh, after hearing the statement of Tota Ram, Dharam Singh told him that same was his statement therefore, he obtained his signature and written the name of Dharam Singh on Ex. PW1/A at point B and further denied suggestion that he had not visited the hospital on 12.05.2007 and had not recorded the statement on 19.05.2007. He further denied the suggestion that he had not recorded the statement as per proceedings. 20
27. PW7 Ct. Ashok Kumar stated that on 07.07.2007, he joined investigation with inspector VKP Singh and arrested Mam Chand from his house no. 7, Masihgarh and his arrest memo, disclosure statement and personal search memo were prepared by the IO. In cross examination he deposed that while recording the disclosure statement father and mother of deceased were also present, but did not call any public person. PW8 Lady Ct. Meena deposed that on 13.08.2007, she joined investigation with inspector VKP Singh who arrested accused Chandri Devi from her house.
28.PW13 HC Mahender Singh deposed that on 10.05.2007 at about 2.00 a.m on receiving on DD no. 38 he alongwith Ct. Devender reached holy family hospital but could not found patient sushil and kept pending the DD Ex. PW13/A and on 11.05.2007, Khushi Ram Sanjiv Kumar met them in their house but did not tell anything about Sushila and on 12.05.2007 accused Mamchand told them that Sushila is admitted in Jivan Nursing Home but doctor declared her unfit for statement and he informed all these facts to incharge police post and visited nursing home daily but she remained unfit for statement.
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29. He further deposed that on 19.05.2007, area SDM recorded the statement of Tota Ram. On 21.05.2007 he prepared rukka Ex. PW13/B pursuant to which case was registered. Accused Sanjiv on 21.5.07 told that his wife had consumed the insecticide and they searched the bottle of insecticide in his house but it was not found. On 24.05.2007, Sushila died in the hospital and on 15.06.2007, he took the receipt box to FSL Rohini and deposited that same vide RC no. 54/21.
30. In cross examination, he deposed that he had conducted the inquires before 21.05.2007 and also collected the MLC of Sushila from Holy Family hospital and met the parent of Sushila in Jivan Nursing Home . It is correct that no written complaint was given to him by them with regard to harassment dowry to Sushila and no complaint was made by Sushila to him regarding dowry and harassment. He deposed that he recorded DD no. 11 on 12.05.2007 vide Ex. PW13/D (but actually it is PW13/DA). He further denied the suggestion accused did not tell anything about the insecticide or the bottle was found outside his home. He further deposed on 21.05.2007 IO prepared site plan of the house and it is wrong to suggest that Chandri Devi was living separately from accused Sanjiv 22 Kumar.
31. PW14 Inspector VKP Singh deposed that he was handed over the investigation on 24.05.2007 and called the father of the deceased Tota Ram in police station and further moved an application for conducting postmortem of deceased and after postmortem dead body of deceased was handed over to Tota Ram. He further deposed that Dr. Raghavendra handed over one exhibit viscera and sample of blood gauze of deceased and accused Sanjiv Kumar was arrested vide arrest memo Ex. PW14/B and later on, other accused persons were arrested and also conducted the search of room of accused Sanjiv Kumar and seized a belt of Sanjiv Kumar which was used to beat deceased Sushila but could not got poisonous material despite best efforts. Later on 07.07.2007, arrested accused Mam Chand and on 27.07.2007 Dharam Singh came to police station and handed over marriage card and five photographs of marriage. On 13.08.2007 accused Chandri Devi was arrested. During investigation has collected the FSL report, postmortem and treatment papers from Jivan Nursing home.
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32. In cross examination, he deposed that he visited the house of Chandri Devi 45 times and she was staying at 2nd floor and denied the suggestion that she was staying at the ground floor and denied the suggestion that accused Chandri Devi was residing separately from accused Sanjiv Kumar. He further denied the suggestion that on 11.05.2007 ,deceased was in fit condition to talk to her father Tota Ram and further denied the suggestion that Tota Ram present in the hospital on 11.052007. He he denied suggest that on 11.05.2007, no application was moved for recording the statement of deceased. But again stated that it was moved on 12.05.2007. He further deposed that house no. 7, Masihgarh where accused persons used to reside on different floors alongwith their family having separate kitchens. He further deposed that he had not recorded the statement of Dr. Pramod Kumar Verma and Dr. Anjana Kharbanda of Holy Family hospital. He further denied the suggestion that he had not recorded the statement of Tota Ram and Kranti Devi as they never come to PS for their statement He further deposed that while preparing inquest report the visible injuries were mentioned in the same 24 Material Exhibits
33. Ex. PW1/A statement of Shri Tota Ram father of the deceased recorded by Shri L.S. Yadav, Tehsildar/Executive Magistrate, New friends Colony on 19.05.2007 pursuant to which an FIR u/s 498A/406/34 IPC registered vide Ex. PW2/A.
34. Ex. PW13/A DD no. 38 dated 10.05.2007, regarding information at around 2 O'clock in the night that injured Sushila was admitted in Holy Family Hospital. DD no. 8 dated 10.05.2007 lodged at around 11.35 am by which HC Mahender informed that for investigation of DD no. 38 he went to Holy Family Hospital and have collected MLC of injured Sushila but neither injured nor her relatives were found and it is endorsed on MLC that patient is not present in casualty currently.
35. Ex. PW13/DA, DD no. 11 dated 12.05.2007 it was reported by HC Mahender Singh regarding the inquiry of DD no. 38 dated 10.05.2007 that today he went to the Jivan Nursing Hospital, 25 Sunlight Colony and patient was found admitted in ICR section, 3rd floor and she was found unfit for statement. It is further narrated in the said DD that the father Tota Ram of injured Sushila, and mother also met him, who on investigation told that their daughter was admitted in this nursing home since 11.05.2007 and on 11.05.2007 their daughter Sushila was talking properly therefore, they had not informed the police.
36. Ex. PW6/B is the request made by Shri L.S. Yadav, Executive Magistrate for conducting the post mortem of deceased Sushila by the autopsy surgeon AIIMS. Ex. PW 6/A is death report prepared by Sh L.S. Yadav Tehsildar/Executive Magistrate.
37. Ex. PW5/A, MLC No. 722983 of injured Sushila prepared by Dr. Anjali Kharbanda of Holy Family Hospital on 10.05.2007 at 1.00 am and as per alleged history, ingestion of baygon insecticide about half hour back 'accidentally' as it was kept in cough syrup bottle stated by the patient. Ex. PW10/A is the postmortem report as showing the ante mortem injuries over the body of the deceased and cause of death is awaited till the receival of viscera analysis report. Ex. PW15/A, the subsequent opinion given by Dr. Raghvendra Kumar 26 and Dr. Millo Tabin that on examination of post mortem and viscera analysis report of FSL it is opined that the cause of death in this case is organo phosphorus poisoning. Ex. PW12/A collectively is the treatment papers of deceased Sushila of Jivan Hospital and Nursing home. According to these papers at page 4, she was admitted in this hospital on 10.05.2007 at 1.16.32 am with alleged history of accidental consumption of baygon insecticide kept in a cough syrup bottle and this history given by the patient herself. According to treatment sheet on 10.05.2007, recorded at the time of admission thereafter on 11 am and 10 pm, general condition of the patient was stable, conscious and oriented. She remained conscious and oriented till 6.00pm on 11.05.2007 and her general condition got poor from 10.00 pm onwards on 11.05.2007, remained poor and continuously deteriorated till she died on 23.05.2007.
38. Ex. PW1/D is the list of articles given by father of the deceased Tota Ram in the marriage of his daughter. Ex. PW1/B and Ex. PW14/A are the statements made by Shri Tota Ram and Dharam Singh about the identification of the dead body. Ex. CW1/A is the FSL report no. 2007/C 2144 dated 18.12.2007 found organo phosphorus compound in the analysis of viscera.
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39. Statement of accused persons u/s 313 Cr.P.C was recorded and all the accused persons denied the incriminating circumstances put to them and accused persons raised explanation that they have been falsely implicated because they have not fulfilled the illegal demands of their in laws and have not opted for defence evidence.
40. Ld. Counsel for the accused during arguments submits that the prosecution could not prove the offences against the accused persons and as per the medical evidence the death was accidental in nature and further there was no allegation of dowry levelled by the father and mother of the deceased when she first met the complainant in the hospital on 11.5.07 and consequence complaint on 19.5.07 by the father of the deceased is all after thought and just to implicate the entire family in the false dowry cases. There is nothing on record that PW 1, 4 & 9 had ever made any complaint to any authority regarding demand of dowry.
41. Ld. Addl. PP further submitted that the deceased was harassed for not bringing of dowry and there is enough evidence that the accused persons have demanded motorcycle and further raised a demand of 28 Rs. 2 lakhs for car. And the deceased is definitely died in abnormal circumstances within 7 years of marriage due to consumption of baygon insecticide and the case is duly proved against the accused persons u/s 304 B and 498 A IPC. Further, the list of articles given in the marriage stands proved and accused Sanjiv Kumar is also liable to conviction for offence u/s. 406 IPC
42. Arguments heard. Record perused.
Cause of death:
43. As per first MLC Ex. PW5/A prepared at Holy family hospital just after the incident shows the history of ingestion of baygon insecticide. Further viscera report of FSL Ex.CW1/A shows that the organo phosphorus compound found on the analysis of viscera. PW 15 Dr. Millo Tabin Associate Professor of Department of Forensic Medicine AIIMS testified that he had given a subsequent opinion on the basis of postmortem report Ex. PW10/A and viscera report Ex. CW1/A and on examination of both found cause of death organo phosphorus poisoning. And it is also come in the evidence that baygon insecticide is an organo phosphorus compound, therefore, 29 cause of death appears to be due to the consumption of baygon insecticide.
Whether death was accidental, suicidal or homicidal
44. According to prosecution the alleged incident of consuming of the alleged baygon insecticide by the deceased Sushila was at around 12.30 to 1 am in the night of 9/10.05.07 and immediately as per the medical record Ex. PW12/A (collectively at page4), she was taken to Holy Family hospital and entry shows that she was admitted at around 01.06.32 sec. and examined by PW 5 CMO Dr. Anjanli Kharbanda, who prepared her MLC No. 22983 Ex. PW5/A . PW 5 in her deposition as well as the contents of MLC Ex. PW5/A shows that the deceased had consumed the baygon insecticide half an hour back 'accidentally' as it was kept in a cough syrup bottle and this fact as per the deposition of Dr. Anjali Kharbanda and as per MLC is stated by the deceased herself. It is worth to be noticeable that when deceased was brought to the hospital she was conscious, oriented and as per the deposition of PW5 because of the non 30 availability of the bed accused Sanjiv was advised to take her some other hospital pursuant to which she was immediately taken to Jiwan hospital and Nursing home. As per the record of Jeewan Nursing home, she was brought in the hospital on 10.5.07 at about 3.40 am and when she got admitted in the hospital as per treatment sheets (Ex. PW12/A collectively) her general condition was stable, conscious oriented. She was again examined at 11 am on 10.5.07, her general condition was noted is stable, conscious and oriented. Thereafter, again on 10 pm on 10.5.07 she was conscious and oriented, vital stable and even on 11.5.07 till 6 pm, she was conscious and oriented. And only at 10 pm on 11.5.07 as per treatment sheet of the hospital her general condition found poor. Therefore, from the medical record and from the deposition of the doctor PW5, it is clear that the patient was conscious and oriented since her admission in the night of 9/10.5.07 and remained conscious, oriented till at least 6 pm on 11.5.07 i.e, almost 42 hours. In these 42 hours she has not deposed anything whether she has taken the insecticide as an attempt to suicide or it was forcefully given by the accused persons.
45. As per Ex. PW13/A DD no. 38 dated 10.5.07 the information about 31 this incident received by the police at 2'O clock in the night i.e, almost immediately after admission of the deceased in the Holy Family hospital at around 1.16 am. And reporting of inquiry of this DD was communicated by HC Mahender Singh through DD no. 8 at around 11.45 am in the afternoon. HC Mahender submits through this DD no. 8 that he went to the Holy family hospital and have collected MLC Ex. PW5A of deceased Sushila but had not found patient in the casualty. Further investigation conducted by HC Mahender Singh on DD no. 38 i.e, Ex. PW13/A on 12.5.07 and informed in the PS vide DD no. 11 (Ex.PW13/DA) that he went to the Jivan Nursing hospital on 12.5.07 and found patient admitted in ICU and met the father of the patient Tota Ram and mother Kranti Devi who told him that their daughter was admitted there since 11.5.07 and on 11.5.07 their daughter was 'talking properly' and therefore, they had not informed to the police. The material point to be noticed that as per Ex. PW13/DA i.e, DD no. 11 father and mother of the deceased told to HC Mahender Singh that their daughter was talking properly on 11.5.07. If the injured have committed suicide or she was forced to consume that baygon then she must have told to her father and mother that fact on that day i.e, on 11.5.07 but there is no allegation of Tota Ram and Kranti Devi of 32 the deceased on 12.5.07 regarding suicidal or homicidal consumption of baygon insecticide.
46.Therefore, if the circumstances that deceased herself stated to doctors that she has taken baygon insecticide 'accidentally' and she remained conscious and oriented for about 4045 hours after incident and talked properly to her parents also and had not told during that talk anything untoward, then only conclusion to be inferred that death was accidental and not suicidal or homicidal. Allegations of demand of dowry and harassment and beating by accused persons:
47. Deceased was conscious and talking when admitted in hospital till evening/night of 11.5.07 and thereafter, she remained unconscious till her death on 23.5.07. On 19.5.07, Executive Magistrate PW6 L.S. Yadav have recorded the statement of her father Ex. PW1/A. In his statement PW 1 stated that he married his daughter 3 years back and she remained happy in matrimonial home for about 6 months and thereafter her in laws demanded motorcycle therefore, he brought her back to their house. In his deposition also, he deposed 33 that her in laws started demanding motorcycle after 56 months of the marriage. PW 4 Kranti Devi , mother of the deceased deposed that just after 4 months all the accused i.e, Sanjiv, Chandri Devi, Mam Chand, Manvir started harassing her for demand of dowry and further Sanjiv demanded motorcycle and this fact was told to her by her husband and to her husband by deceased Sushila. PW 9 Dharam Singh brother of the deceased deposed that after marriage for some time everything was fine but later all the accused persons started demanding motorcycle and he expressed his inability and therefore, started beating his sister and she came back to her parental home.
48. PW1 Tota Ram stated that her in laws started demanding motorcycle, PW4 mother Kranti Devi deposed that Sanjiv demanded motorcycle and this fact was told to her husband by deceased, shows she has no personal knowledge of this. PW 9 says that all the accused persons started demanding motorcycle. There is no clear averment who had demanded the motorcycle. This averment of demand is not only vague but almost contradictory. Further, there is no complaint regarding this demand to any authority.
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49. It is further deposed by PW 1 that because of the harassment and beating and demand of dowry they brought her daughter to the parental home and only on the undertaking of accused Manvir who is brother in law of accused Sanjiv sent her back to the matrimonial house. This is also stated by other PW's i.e, PW 4 mother and PW 9 brother of the deceased. Then PW 1 in his statement i.e, PW 1/A stated that about 89 months back accused Sanjiv asked Sushila to bring Rs. 2 lakhs to purchase car on installment but she refused to give money to Sanjiv thereafter, accused Sanjiv and his mother started beating and harassing his daughter. In his deposition, PW 1 testified that accused Sanjiv asked her daughter to bring Rs. 2 lakhs for taking car which he refused therefore, she was beaten by Sanjiv and his mother Chandri Devi. PW 4 deposed that 'accused persons' demanded Rs. 2 lakhs for four vehicle and business. PW 9 in his deposition deposed that accused started demanding car and in the alternative Rs. 2 lakhs and this fact was told by his sister on telephone. PW 1 stated that demand was made by Sanjiv for purchase of car on installment. PW 4 Kranti Devi deposed that demand of Rs. 2 lakhs was made for four wheeler vehicle and business by all accused and PW 9 deposed that the accused demanded car and in the alternative Rs. 2 lakhs. Therefore, even the 35 purpose of demand of Rs. 2 lakhs has come differently in statements of all 3 PWs. PW 1 deposed that on refusal she was beaten by Sanjiv and Chandri Devi but PW 4 had not named specifically Sanjiv and Chandri Devi but stated that all accused persons and again PW 9 stated that all the accused persons started beating. Therefore, none of the PWs are consistent on demand and beating of Rs. 2 lakhs in the manner alleged.
50. PW 1 in his statement as Ex. PW1/A had not stated regarding whether the accused and deceased had come to their house on the day of incident. But in his deposition PW 1 had deposed that on 8.5.07, accused Sanjiv came to his house alongwith his daughter Sushila and demanded Rs. 2 lakhs for business which she refused therefore, he went back on 9.5.07. PW 4 Kranti Devi has also stated that accused Sanjiv and her daughter came to house and demanded Rs. 2 lakhs for start of business. PW 9 further deposed that on 8.5.07 accused Sanjiv came to their house alongwith deceased Sushila and went back on 9.5.07. In cross examination PW 1 had stated that on the day of incident, in the morning Sanjiv and his daughter came to their house and said incident took place in the evening. PW 4 also in cross examination deposed that the deceased 36 visited their home on the day of incident and came back to the in laws house on the same day. There is a specific question asked by the defence in cross examination to PW 9 who replied that " it is correct that the accused were asking Rs. 2 lakhs for business'. All the 3 witnesses have stated that the accused Sanjiv and deceased Sushila visited on the day of incident to their house for the purpose of demand of Rs. 2 lakhs further it is defence of accused by way of suggestion that he demanded Rs. 2 lakhs for business purpose on the day of incident. Therefore, it is clear that the accused Sanjiv had demanded Rs. 2 lakhs for the purpose of business. Despite, the contradictions of PW 1,4 and 9 whether those 2 lakhs were for car or business or at what time these two lakhs were demanded, there is a credible evidence only against accused Sanjeev Kumar that he had demanded Rs. 2 lakhs on the day of incident from in laws for the purpose of business.
51. PW 1 , 4 & 9 had deposed that they came to know about the incident on 12.5.07 after 3 days of the incident. And medical record shows that on 12.5.07 she was unconscious and was not in a position to state anything. PW 1, 4 & 9 had not reported about the demands and harassments to the police from 12.5.07 to 19.5.07. it was 37 suggested in cross examination that they got to know about the incident on 11.5.07 and they visited the hospital on 11.5.07. it is also clear from DD no. 11 Ex. PW13/DA that PW 1 Tota Ram and PW 4 Kranti Devi were present with the deceased in hospital on 11.05.2007 and at that time she was talking properly. And they had not informed about any malafidy to the police at that point of time. Therefore, it can be easily inferred that PW 1 & 4 were present in the hospital on 11.5.07 and talked to the deceased but falsley deposed in the court that they received the information about admission of the deceased on 12.5.07 and found her unconscious. It further point towards the fact that PW 1,4 & 9 deposing against accused person with complete hostility and animosity.
52. It has come in the evidence that accused Manvir Singh is brother in law of the accused Sanjiv and was residing separately and all other accused persons were residing separately in the same house. It is deposed by PW 1 & 4 that accused Chandri Devi was residing with accused Sanjiv but PW 9 brother Dharam Singh has deposed in cross examination that he do not know on which floor accused Chandri Devi resided. He further deposed that he do not know whether the accused Chandri Devi was residing separately of 38 accused Sanjiv in said house. The allegation of dowry and harassment against all accused including Chandri Devi and accused Sanjiv kumar are general and vague in nature.
53. The allegations of demand of motorcycle and demand of Rs. 2 lakhs by all the accused persons as deposed by PW 1,4 & 9 as already discussed are vague without any particulars and general in nature. Further, all the 3 witnesses are contradictory on the point how this demand was made and which accused persons had raised alleged demand. If the nature of deposition of these witnesses over the allegations of dowry and beating is coupled with their deposition before the court that they got the information of the incident on 12.5.07 which is in contradiction to Ex. PW13/DA which shows that they received the information on 11.5.07 and had a talk with her deceased daughter on that day indicates their animosity towards all the accused persons and deposing out of vengeance just to convict all accused persons. Further, all other accused persons are residing separately from accused Sanjiv Kumar and even it has not come on record through convincing evidence that accused Chandri Devi was residing with accused Sanjiv Kumar. Even mere living together is not enough in present facts to fasten 39 any criminal liability on accused Chandri Devi. There is no evidence that Chandri Devi harassed any other daughter in law as she has 34 other daughter in law residing in same premises. Therefore, the allegations of demand of dowry and harassment and beating levelled against all the accused persons in the manner alleged is not reliable and cannot be acted upon.
Effect of injuries present on the body of the deceased and demand of Rs. 2 lakhs by accused Sanjiv on the day of incident for business purpose:
54. Ex. PW 10/A the post mortem report of the deceased Sushila shows following injuries:
i. Marks of violence in the form of multiple linear abrasions and contusions of variable size were present on whole of the back, both buttons and whole of the back portion of the thigh upto its middle 1/3rd. The injuries were of various duration. Some injuries were reddish brown in colour while some were healed. The injuries were in different stages of healing.
2. Denudation of skin over left gluteal region were present in area of 40 5 X 4 cm (no other injury was present).
The above injuries are the mark of violence in the form of multi linear abrasions and contusions present on the back and on both buttocks and thighs, though they were of different durations. Some injuries got healed and some are in the different stages of healing. As per cross examination of PW 10 Dr. D.N. Bhardwaj these are mostly old and no fresh injury. But it indicates deceased was physically abused during marital life. Mere inability of PW 10 to distinguish whether the injuries inflicted during torture otherwise could not in any manner points to inference that these injuries were not inflicted due to torture or that deceased was not beaten. If this circumstance of presence of injuries on the body of the deceased coupled with the circumstance of demand of Rs. 2 lakhs for business purposes on the day of incident is looked then it can lead to inference that deceased was beaten for non fulfillment of demands raised by accused Sanjiv. Despite fact depositions of PW 1, 4 & 9 were disbelieved for the purpose of demand of dowry and beating against all other accused persons being out of vengence and 41 animosity.
55. Now, the next point which require consideration is whether this cruelty of beating and demand of Rs. 2 lakhs for business purpose on the day of incident by Sanjiv Kumar is enough to attract the offence u/s 304 B IPC against accused Sanjiv Kumar.
56. To attract an offence u/s 304 B IPC, the essential ingredients required are as follow:
(i) The death of a woman should have been caused by burns or bodily injury or otherwise than under normal circumstances.
(ii) Such 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 42
(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."
The most essential ingredients to attract offence u/s 304 B is the death caused should be within 7 years of the marriage otherwise, then in normal circumstances. The death in the present case is though caused within 7 years of marriage and also under abnormal circumstances due to consumption of baygon insecticide but as already discussed the death was 'accidental', therefore, even if the cruelty inflicted over the deceased by beating and demand of Rs. 2 lakhs just on the day of incident for the purpose of business is read against the accused Sanjiv, even then the offence of section 304 B IPC is not appeared to have been committed in the present case. To sum up as death is proved to be 'accidental', therefore, offence u/s 304 B IPC not made out.
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57. It is settled law even if the accused acquitted in 304 B IPC, could be convicted u/s 498A. Section 498A envisages that whoever being the husband or relative of the husband subjects the woman with cruelty and cruelty means any willful conduct which is of the nature to cause grave injury or danger to life or limb or health of the woman, then punishable u/s 498A IPC. The physical aspect of the cruelty is apparent from the injuries on the body of the deceased and further the demand of Rs. 2 lakhs on the day of incident by the accused Sanjiv Kumar for business purposes coupled with the general allegations of demand of dowry and harassment and beating then a reasonable inference that the deceased was subjected to cruelty by the accused Sanjiv could be drawn. He had not led any evidence to show the contrary nor anything substantial had come in evidence that he had not beaten the deceased or his relations remained cordial with the deceased before her death. Therefore, prosecution able to prove the charge for commission of offence u/s 498 A IPC against the accused Sanjiv kumar.
58. As far as charge u/s 406 IPC against the accused Sanjiv Kumar is concerned, the prosecution has relied upon a list of articles given by PW 1 in the marriage Ex. PW1/D . this list of article do not 44 appears to be prepared at the time of marriage. Further, there is no proof attached with this list which could show that these articles were purchased at the time of marriage and given in the marriage. Even no recovery of these articles from the accused Sanjiv Kumar is made. And it was specifically suggested in cross examination that this list is false and fabricated. The essential requirement to attract offence u/s 406 IPC is the demand of entrusted articles which is clearly absent in present case. Therefore, prosecution is unable to prove charge of commission of offence u/s 406 IPC against accused Sanjiv Kumar.
59. From overall appreciation of evidence as discussed before, prosecution unable to prove the clear and specific allegations of demand of dowry and consequential beating of the deceased by all other accused persons though the evidence of cruelty has come against accused Sanjiv kumar. Even the death caused is accidental in nature as already discussed. Therefore, no offence of 304 B is made out against all the accused persons. The prosecution though able to prove an offence u/s 498 A IPC but only against the accused Sanjiv Kumar. Therefore, he is convicted for offence u/s 498 A IPC accordingly. Prosecution further unable to prove the charge of 45 commission of offence under section 406 IPC against accused Sanjiv kumar. In view thereof, all the accused acquitted of offence u/s 304 B IPC. All other accused except Sanjiv Kumar are also acquitted of charge u/s 498 A IPC. Accused Sanjiv Kumar also acquitted of charge U/s 406 IPC. Bail bonds of the accused persons if any stands cancelled and surety bonds stands discharged. Accused Chandri Devi be released forthwith from custody if not required in any other case.
60. Accused Sanjiv Kumar be heard on point of sentence for conviction of offence u/s 498 A IPC on 12.05.2011.
Announced in Open court
Dated: 9th May 2011 (Ajay Kumar Jain)
ASJ03, SE, Saket Court Complex
New Delhi