Delhi District Court
State vs . : (1) Vishwajeet Das @ Raja on 30 August, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Sessions Case
CNR No. DLSW010001032010
Registration no. 440926/2016
State Vs. : (1) Vishwajeet Das @ Raja
S/o Late Sh. Sanjeet Kumar,
R/o RZ26P/E22, Gali no. 9,
Indra Park Extension, Palam Colony,
New Delhi.
(2) Chinmayee Das
W/o Late Sh. Sanjeet Kumar
R/o RZ26P/E22, Gali no. 9,
Indra Park Extension, Palam Colony,
New Delhi.
FIR No. : 108/2010
Police Station : Palam Village
Under Section : 498A/304B/34 IPC
Date of Institution : 03.09.2010
Date when arguments were heard : 04.08.2018 & 07.08.2018
Date of Judgment : 30.08.2018
JUDGMENT
1. Adumbrated in brief the case of prosecution is as CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 1 of 48 follows. Shompa (herein after referred as deceased) was married to accused Vishwajeet Das @ Raja on 23.11.2008. After marriage deceased started residing in her matrimonial home at House No. RZ 26P/E22, Gali no. 9, Indra Park Extension, Palam Colony, New Delhi. In the marriage of deceased, her parents spent and gave articles as per their status. From the period of her marriage since 23.11.2008 till 24.05.2010 deceased was subjected to cruelty by her husband Vishwajeet Das @ Raja, mother in law Chinmayee Das; of such a nature which was likely to drive her to commit suicide and deceased was harassed with a view to coerce her and her relatives to meet unlawful demands of dowry. Having met with such cruelty, deceased Shompa died on 24.05.2010, which was within seven years of her marriage. Accused Vishwajeet Das @ Raja was arrested on 29.05.2010 and enlarged on bail on 09.03.2011. Accused Chinmayee Das was arrested on 25.01.2011 and enlarged on bail.
2. On completion of investigation, charge sheet and supplementary charge sheet for offences under Sections 498A/304B/34 IPC were filed.
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3. After completion of requirements of Section 207 Cr.P.C., matter was committed to the court of Sessions.
CHARGE
4. Charge for the offences under sections 498A/34 IPC & 304B/34 IPC was framed against both accused persons. Both accused had pleaded not guilty and claimed trial.
WITNESSES
5. To connect the accused persons with the offences charged, prosecution has examined 21 witnesses.
6. Thereafter, accused were examined under section 313 Cr.P.C. All incriminating material in evidence and on record was put to the accused persons separately. Accused submitted of false implication. Accused in defence examined four witnesses namely DW1 accused Vishwajeet Das himself under section 315 Cr.P.C and DW2 Jitender Kumar Kashyap, DW3 Chavi Dev and DW4 Sanjay Chakarborty.
7. I have heard the arguments of Sh. Pramod Kumar Ld. Addl. P.P. for the State and Sh. Sanjay Kumar Ld. Defence counsel; have perused the record including the documents and evidence and CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 3 of 48 have given my thoughtful consideration to the rival contentions put forth.
8. Ld. Addl. P.P. for the State argued that from the evidence led, the prosecution has been successful in bringing home the guilt of the accused persons beyond reasonable doubt and has prayed for conviction of the accused persons for the charges framed against them.
9. The Ld. Defence counsel prayed for acquittal of the accused persons submitting false implication of accused persons. Also has been argued that not even a single complaint of cruelty or harassment was alleged by either deceased or her parents to any authority prior to her death on 24.05.2010 during the period of subsistence of marriage of deceased with accused Vishwajeet Das.
10. Investigating machinery came into motion on receipt of information at 2.40 AM on 24.05.2010 recorded in DD no. 5A in Ex. PW19/C, regarding accused Vishwajeet Das having brought dead body of his wife Shompa Das in Mata Chanan Devi Hospital. At 3.30 AM on 24.05.2010, information was recorded in DD no. 6A Ex. CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 4 of 48 PW19/D that information has been given to S.D.M. PW7 Sh. Rajeev Shukla on mobile phone regarding DD no. 5 A and dead body of Shompa having been shifted to DDU Hospital on directions and asking family of deceased to come in the morning for statements. On statement of Sanjay Saha, father of deceased recorded by SDM PW7, on direction of SDM PW7, IO Inspector Ashok Kumar PW19 got case FIR Ex. PW21/A registered. DO ASI Virender Kumar PW21 made endorsement Ex. PW21/B over rukka. Autopsy on the body of deceased Shompa Das, age29 years was conducted by Doctor Santosh Kumar, Senior Resident, Department of Forensic Science, DDU Hospital, Hari Nagar, New Delhi. Since said Doctor Santosh Kumar left the services of DDU Hospital. PW13 Doctor Ajay Sharma, Department of Forensic Medicine, DDU Hospital, Hari Nagar, New Delhi, has proved the postmortem report Ex. PW13/A of Doctor Santosh Kumar, Senior Resident, having seen him writing and signing during the course of his duties.
11. As per postmortem, following external injuries were observed (1) One abraded bruise present on the lower lip of size 1.5 CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 5 of 48 cm x 1 cm and reddish brown in colour on section there was presence of dark. Reddish black clotted blood present. (2) Ligature mark present on the upper border of thyroid cartilage in the form of band, base is dry, hard leathery and parchment like reddish brown in colour, placed oblique going towards the posterior part of neck. Total circumference of neck is 33 cm. The ligature mark size is 26 cm x 2.5 cm to 3 cm. The upper border of ligature mark is 7 cm below from base of chin and lower border of ligature mark is 10 cm above the M.sternit. Ligature mark is 5cm below from right mastoid and 8 cm below from left mastoid. Ligature mark does not encircle the whole neck, abscent on the posterior part of neck.
12. As per said postmortem report Ex. PW13/A following internal injuries were observed. On incision and dissection of neck. No extra vassion of blood and clots seen underneath the ligature mark, underlying tissue of neck and muscles. About 23 ml of clotted blood present around the posterior surface of trachea and cricoid cartilage, Hyoid Bone and all cartilage are intact. Skin lying under the ligature mark is dry and glistening. Tracheal lumen congested CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 6 of 48 and contains blood tinged froth.
13. Autopsy surgeon opined that cause of death was (1) Asphyxia from antermortem ligature hanging; (2) all injuries are antemortem and of same duration; (3) blood and viscera preserved in common salt solution for chemical analysis and (4) manner of death will be given after receipt of blood and viscera report. No subsequent opinion of autopsy surgeon was filed nor proved by the prosecution.
14. PW1 Vishal Shah and PW2 Kamal Shah being brother and uncle of deceased respectively had identified the body of deceased vide memo Ex. PW1/A and Ex. PW2/A respectively whereas the body of deceased was handed over to them vide memos Ex. PW1/B and Ex. PW2/B respective after the postmortem.
15. PW5 Constable Dinesh Rana is witness to the seizure of chunni Ex. P5 vide memo Ex. PW5/A from the site which was inspected by Crime Team and photographs Ex. PW9/A1 to Ex. PW9/A9 were taken by PW9 ASI Ajeet Singh. Later to postmortem on dead body of deceased, the Doctor handed over to PW5 three CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 7 of 48 sealed Jars and four sealed envelopes along with sample seal which PW5 handed over to SI Hansraj PW16, which were seized vide seizure memos Ex. PW5/B and Ex. PW5/C respectively.
16. PW6 HC Satyapal testified that on 29.05.2010, he accompanied IO PW19 Inspector Ashok Kumar and PW4 Sh. Sanjay Saha complainant to house no. RZ26P/22E, Gali no. 9, Indra Park, Palam, New Delhi where on pointing out of PW4, accused Vishwajeet Das was apprehended and arrested vide memo Ex. PW6/A and his personal search was conducted vide memo Ex. PW6/B.
17. PW7 Sh. Rajeev Shukla, SDM, Hauz Khas on receipt of call from P.S. Najafgarh had gone on 24.05.2010 to DDU Hospital mortuary and testified that PW3 Libia Sarka, sister of deceased, gave her statement Ex. PW3/A in her own handwriting and PW7 made endorsement on Ex. PW7/A thereon. PW7 deposed that he also recorded statement of PW4 Ex. PW4/A as well as statement of PW17 Savita Saha, mother of deceased, Ex. PW7/B, filled up death report Ex. PW7/C and prepared inquest report Ex. PW7/D. CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 8 of 48
18. PW8 Ct. Naval Singh accompanied ASI Onkar Singh on 24.05.2010 on receipt of copy of DD no. 5A and reached at Mata Chanan Devi hospital, where SI Hans Raj PW16 met them in the hospital. PW8 Ct. Naval Singh found deceased previously expired and then PW8 along with accused Vishwajeet Das and PW20 ASI Omkar Singh took the body to mortuary in hospital where it was preserved.
19. PW9 ASI Ajeet Singh is the photographer in the Crime Tea and had taken photographs Ex. PW9/A1 to Ex. PW9/A9 at the spot when he accompanied the Crime Team on 24.05.2010 and he also brought on record negatives of said photographs Ex. PW9/B1 to Ex. PW9/B9.
20. PW10 ASI Khajan Singh is the Incharge Crime Team, South West District, New Delhi who reached at the place of incident at house no. 26P/22, Gali no. 9, Indira Park, Palam Colony, New Delhi, on receipt of information and found there PW20 ASI Omkar Singh of P.S. Palam Village, New Delhi and inspected the place of incident, prepared his detailed report Ex. PW10/A. CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 9 of 48
21. PW11 HC Rakesh Chand deposed that on 06.08.2010, he joined investigation with IO PW19 Inspector Ashok Kumar and visited house no. M152, Shakurpur Road no. 43, near Britania Chowk, Delhi where they met PW4 Sanjay Saha who produced marriage card of deceased, invitation card of accused Vishwajeet, photographs of marriage, list of istridhan articles to IO PW19 which were seized vide seizure memo Ex. PW4/B.
22. PW14 HC Mahender Singh is the Malkhana Moharar of P.S. Palam Village and he testified that on 24.05.2010 SI Hans Raj PW 16 deposited sealed viscera for which he recorded entry no. 491 Ex. PW14/A in register no. 19. On 28.05.2010, PW16 SI Hans Raj deposited a sealed parcel with seal of DDU Hospital with sample seal which PW14 recorded in entry no. 496 Ex. PW14/B in register no. 19. As per PW14, also PW16 deposited another pullanda on the same day which was recorded in register no. 19 vide entry no. 497 Ex. PW14/C. PW14 further stated that on 23.07.2010, all sealed parcels were sent to FSL through HC Shyamdhari PW15 vide entries Ex. PW14/D and Ex. PW14/E in register no. 19. PW14 received the CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 10 of 48 acknowledgments through HC Shyamdhari PW15, which he recorded in entry Ex. PW14/F and Ex. PW14/G in register no. 19.
23. PW15 HC Shyamdhari on 23.07.2010, took four sealed parcels with two sample seal and FSL form from PW14 MHC(M) and deposited them there in the FSL and obtained the acknowledgments and deposited them back with the MHC(M) PW14.
24. PW16 SI (Retired) Hans Raj testified interalia that at his instance IO PW19 prepared site plan Ex. PW16/A. Also PW16 stated that the clothes Ex. PW16/PX of deceased were seized by him in hospital vide seizure memo Ex. PW5/C.
25. PW18 Doctor Shephali testified that she was acquainted with the writings and signatures of Doctor Javed having seen him writing and signing and she identified the writings and signatures of Doctor Javed on MLC Ex. PW18/A of deceased Shompa Das wherein as per MLC patient was brought dead. As per MLC, ornaments of deceased were handed over to her husband.
26. IO PW19 Inspector Ashok Kumar testified that interalia CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 11 of 48 on 10.09.2010, he arrested accused Chinmai Das vide memo Ex. PW19/A and she was on interim bail at that time and she was subsequently rearrested on 25.01.2015 vide memo Ex. PW19/B after anticipatory bail was granted to him by High Court of Delhi. In the course of deposition of IO PW19 Inspector Ashok Kumar tendered attested copies of FSL reports as Ex. PW19/E to Ex. PW19/G respectively. As per Ex. PW19/E, dupatta Ex.1 having knot was having sufficient strength for hanging a person of medium built and shirt of deceased ExIva had tear marks on its left upper portion. As per Ex. PW19/F, no blood was detected on clothes of deceased. As per Ex. PW19/G, blood gauze of deceased was of group 'B'.
27. Case of the prosecution hinges on the material but interested testimonies of PW3 Libia Sarkar, sister of deceased; PW4 Sanjay Saha, father of deceased; PW12 Rajiv Saha, brother of deeased and PW17 Savita Saha mother of deceased.
28. Section 498A IPC has two limbs. The first limb of Section 498A provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 12 of 48 shall be punished. 'Cruelty' has been defined in clause (a) of the Explanation to the said Section as any willful conduct which is of such a nature as is likely to drive to a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. When there is harassment of the woman for demand of dowry, any property or valuable security or is on account of failure by her or any person related to her to meet such demand then the case comes under clause (b) of the Explanation to Section 498A.
29. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 13 of 48 background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence. Under Section 304B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage. The above position was highlighted in Balwant Singh and Ors. v. State of H.P. [2008(10) JT 589. 2008 AIR SCW 6372].
30. The Courts cannot ignore one of the cardinal principles CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 14 of 48 of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304B. Where other ingredients of Section 304B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304B of the Indian Penal Code.
31. Of course, deemed fiction would introduce a rebuttable CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 15 of 48 presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304B were not satisfied, rebut the same. While referring to raising of presumption under Section 304B of the Code, the Supreme Court, in the case of Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828]: (2003 AIR SCW 4387) stated the following ingredients which should be satisfied :
"4..................
1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC).
2) The woman was subjected to cruelty or harassment by her husband or his relatives.
3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
4) Such cruelty or harassment was soon before her death."
32. In light of the above essential ingredients, for constituting an offence under Section 304B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 16 of 48 death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the 'dowry death' and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence.
33. Admittedly deceased Shompa was married on 23.11.2008 with accused Vishwajeet Das @ Raja and said Shompa had expired on 24.05.2010 i.e. within seven years of her marriage. The deceased died otherwise than under normal circumstances. To prove the death of deceased under the ambit of dowry death as defined in section 304 B of IPC, it was incumbent upon the prosecution to prove that soon before her death, deceased was subjected to cruelty or harassment by her husband or relatives of her husband in connection with any demand of dowry.
34. PW3 Libia Sarkar testified that after the marriage the accused persons started harassing her sister (now deceased) for more dowry as her parents had not given Car and Cash at the time of marriage as dowry. Also PW3 alleged that accused did not allow her CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 17 of 48 deceased sister to visit her parental house or any other place as her parents were unable to fulfill their demand of Car at the time of marriage as dowry; besides that accused Vishwajeet Das @ Raja used to assault and mentally tortured her deceased sister under influence of liquor and for demand of more dowry. Also is the version of PW3 that two sisters of accused Vishwajeet Das @ Raja also used to harass her sister on account of dowry and the accused persons removed their maid servant, her deceased sister was asked to clean whole house which is built up in the area of 200 sq. yds and do all the household chores as they were unable to fulfill their demand of dowry at the time of marriage. As per PW3, her brother Rajiv Saha PW12 several times fulfilled their illegal demands. Also as per PW3, on the date of Raksha Bandhan in the year 2009, her sister was not allowed to visit their house; accused Chinmayee Das, mother in law, of deceased always taunted her sister "teri badi bahan ghar par bheti hai, tero ko bhi ghar bhita doongi, tera divorce kara doongi". As per PW3, her deceased sister were asked to do household chores alone from early in the morning till late night as and when other CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 18 of 48 relatives of other persons visited their house on occasions of holidays and she was not allowed to sleep in her room and she was made to sleep in the store room where no ceiling fan was installed. As per PW3, she was told these facts by her deceased sister and thereafter they had a talk with sisters in law (Nanad) of her deceased sister who also told them that they had not given the car at the time of marriage. As per PW3 on 23.05.2010 at about 11.30 P.M., a telephone call was received from her deceased sister, she was scared and told PW3 that accused Vishwajeet Das @ Raja was drinking liquor with his friends upstairs in the house and told she will be beaten up by him as he was demanding money and she requested them to be taken to parental house but they told that due to late night hours they cannot come for want of conveyance and told her to sleep after bolting the door of her room and they will take her in the morning to parental house. Later in the night at 1.30 A.M., PW3 and her family received a telephone call from accused Vishwajeet Das @ Raja asking them to reach Mata Chanan Devi Hospital as the condition of her deceased sister was serious, upon which PW3 with father and brother reached Mata CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 19 of 48 Chanan Devi Hospital after taking lift from some unknown person where they came to know that Shompa was no more and saw her body and her throat was having a ligature mark which was not possible by herself. As per PW3, SDM PW7 recorded her statement Ex. PW3/A.
35. Version of PW3 as born out in statement Ex. PW3/A given to SDM is not only at variance from her deposition but also inconsistent and in material contradiction with her deposition in the Court. In Ex. PW3/A, PW3 asserted that after marriage, for petty things her sister Shompa was taunted by her mother in law and sisters in law whereas her husband did not do any work, sat at home after leaving his work; mother in law made her sister to do all household chores and gave beatings to her deceased sister saying her husband does not work so you do tuition work at home and teach children and do work of home as well. As per PW3/A, accused Vishwajeet Das @ Raja used to come home after drinking alcohol in the night at 2.2.30 AM and mentally and physically tortured her sister whereas her sister Shompa used to sleep in the night at 2.00 CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 20 of 48 AM but her mother in law made her sister to get up early morning by knocking the door at 5.00 AM and made to do all household work as well as impart tuition; none of the accused used to take her sister to any other place and if she used to go to parental home then also the mother in law along with husband used to quarrel with her and then the husband used to torture the deceased mentally and under that fear she even did not go to parental home. As per Ex. PW3/A, the in laws of her sister used to always complain sometime mother in law said to keep their daughter at home and send only when she gets settled whereas at the time of marriage, husband used to do a good job and earned Rs.30,000/ monthly whereas her sister never opened mouth and used to suffer silently and deceased can never take step to commit suicide and all those must have compelled her or must have killed her by strangulating her. Also is mentioned in Ex. PW3/A that jewellery of her sister Shompa was sold by her husband and money was spent in alcohol and friendship.
36. Nowhere in Ex. PW3/A is any assertion of the facts elicited above in the deposition of PW3 in the court including that of CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 21 of 48 any demand of Car and cash or dowry or removal of maid servants or fulfillment of demands by Rajiv Saha brother of PW3 or deceased being made to sleep in the store room without ceiling fan or deceased being subjected to cruelty by her sisters in law. Even in Ex. PW3/A, there is no whisper of any incident on the night of 23.05.2010 or the receipt of call from deceased Shompa by PW3 or any conversation between PW3 and Shompa. As per PW7 SDM, the statement Ex. PW3/A was given by PW3 in her own handwriting to SDM PW7 on 24.05.2010.
37. PW4 Sanjay Saha is the father of deceased who testified that after marriage the accused persons started harassing/torturing his deceased daughter for more dowry though he had given sufficient dowry as per his status but accused used to harass her in demand of car and sum of Rs.5,00,000/ and even accused husband used to beat Shompa for demand of dowry, Shompoa was not allowed to visit their home as they were unable to fulfill their demand of dowry. Also as per PW4, Reena Dass and Deepa Dass, two sisters of accused Vishwajeet Das @ Raja used to harass their daughter for CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 22 of 48 demand of dowry though PW4 requested both of them with folded hands not to harass her in future for demand of dowry and even then they continued to harass her daughter Shompa and threatened him for getting Shompa divorced. As per PW4, his son Rajiv paid money several times to accused Chinmayee Das whereas PW4 requested accused Chinmayee Das not to harass her daughter for demand of dowry but accused Chinmayee Das told him that he had to fulfill their demand of Car and Cash. PW4 further deposed that on 03.05.2010, accused Vishwajeet Das @ Raja left his daughter Shompa outside his house on road and threatened his daughter that if they fulfill their demand of Car and Cash then she would be brought back and made her daughter to stay with them as she would not be happy in matrimonial home but deceased wanted to live in her matrimonial home. After 45 days, PW4 along with wife, son and Shompa went to her matrimonial home and with folded hands requested accused Vishwajeet Das @ Raja and Chinmayee Das to allow their daughter to stay in matrimonial home and told them, he would fulfill their demand of dowry in future. Also as per PW4, on CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 23 of 48 23.05.2010 at about 11.00 P.M., a telephone call was received from her deceased daughter and she was scared and told them that accused Vishwajeet Das @ Raja with his friends was drinking liquor upstairs in the house and she told them she would be beaten up by him and she requested them to be taken to parental home but he they told that due to late night hours they cannot come for want of conveyance and told her to sleep after bolting the door of her room and they will take her in the morning to parental house. On the same night at about 1.30 A.M., PW4 received call from accused Vishwajeet Das @ Raja who told them to reach Mata Chanan Devi Hospital as the condition of deceased daughter was serious. On receiving said information, they took lift and reached Mata Chanan Devi Hospital where they came to know Shompa was no more and accused Chinmayee Das told them Shompa had committed suicide. SDM recorded statement of PW4 as Ex. PW4/A.
38. In Ex. PW4/A, also the version of PW4 is at variance, inconsistent as well as in material contradiction with the deposition in court because PW4, father of deceased Shompa CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 24 of 48 narrated to SDM PW7 that mother in law i.e. accused Chinmayee Das used to harass Shompa continuously for household work and she wanted that deceased does not take any rest and work continuously. Also as per Ex. PW4/A, accused Chinmayee Das often complained that Shompa does not know how to do household work and wanted that PW4 should help her son i.e. accused Vishwajeet Das @ Raja in setting up his own business. Also is mentioned in Ex. PW4/A that accused was working in Nicholas Peeramal Medicine Company and lost his job six months back whereas accused Chinmayee Das continuously asked for money so that his son started new business. Ex. PW4/A also find mention that daughter of PW4 complained to PW4 that after loss of job the behaviour of husband accused Vishwajeet Das @ Raja was changed and he used to come at night, used to beat her and she (Shompa) was not happy with married life and Shompa also complained that she was abused by her husband in very filthy language. As per Ex. PW4/A, Shompa cannot commit suicide; she cannot do that, she was educated and her in laws had murdered her.
CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 25 of 48
39. PW12 Rajiv Saha deposed that his sister Shompa (deceased) was given in marriage sufficient dowry articles including gold jewellery and he had also gifted a mobile phone to her and in first week of December2008, about one week after the marriage, his sister telephonically informed him that accused Vishwajeet Das @ Raja had demanded Rs.1,00,000/ from them through his sister and his sister Shompa flatly refused him in this regard then accused Vishwajeet Das @ Raja beat her. PW12 deposed that on 09.12.2008 he visited the matrimonial home of Shompa, gave Rs.30,000/ in cash to accused Vishwajeet Das @ Raja. Also PW12 deposed that on 27.12.2008, he visited matrimonial home of Shompa and had given Rs.30,000/ in cash to Shompa. As per PW12 Shompa informed them that accused used to harass her for not bringing Car and Cash and that accused Vishwajeet Das @ Raja was habitual drunkard and remained in company of anti social elements who were his friends and that they (accused) used to consume liquor. PW12 also deposed that Shompa used to tell him that she was beaten by accused Vishwajeet Das @ Raja after consuming liquor by him and CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 26 of 48 that accused Vishwajeet Das @ Raja used to ask Shompa to bring Maruti Swift Car from parental home otherwise he would divorce her and similar demand was raised by accused Chinmayee Das for not bringing Car and used to tell Shompa that as her sister Libia was staying at parental home, in same way she would also be deserted by accused Vishwajeet Das @ Raja. As per PW12, in January2009 his sister telephonically informed him that she was beaten by accused who was demanding Rs.1,00,000/. Thereafter, on 18.01.2009, PW 12 withdrew cash of Rs.70,000/ from bank account and handed it over to his sister at her matrimonial home. As per PW12, on account of Raksha Bandhan, Shompa was not allowed to come to their home by accused persons and when PW12 visited matrimonial home of Shompa, then he was not allowed to meet her by accused Chinmayee Das. After about 12 days, PW12, his mother PW17 were telephonically informed on mobile phone by Shompa that both accused were demanding Car otherwise she will not be allowed to meet them. As per PW12, Shompa telephonically informed him that accused Vishwajeet Das @ Raja was demanding Rs.2,50,000/ from CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 27 of 48 them. On 10.10.2009, PW12 visited matrimonial home of Shompa and alleged to have given Rs.35,000/ to his sister which she handed over to accused Vishwajeet Das @ Raja who demanded remaining amount of Rs.2,15,000/ for which PW12 gave assurance to make the payment within few days. As per PW12, on 01.11.2009 Rs.25,000/, on 19.11.2009 Rs.1,40,000/ and on 26.11.2009 Rs.50,000/ were paid in cash to accused Vishwajeet Das @ Raja as per his demand in the matrimonial home. As per PW12 in the last week of March2010, Shompa informed them on telephone that accused were demanding Rs.30,000/ for purpose of making a gold ring of Neelam and Pukhraj stones for progress of their business. Also PW12 elicited that he fulfilled their demand like payment of electricity bills of Rs.7,390/ through cheque and also through credit card. PW12 also stated that he had also made payment of Rs.7000 8000/ through credit card at a shop namely Star Fabs, Kamla Market, Delhi for gents suits of accused Vishwajeet Das @ Raja on asking of her sister Shompa. As per PW12, on 03.05.2010, his sister Shompa was left by accused on road outside their house and she CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 28 of 48 came to their home and was depressed and told that they were demanding Rs.5,00,000/ and Maruti Swift Car and told her not to come back in failure of the same. After 34 days PW12 with parents and sister went to matrimonial home of Shompa and requested accused with folded hands not to harass and beat her sister and right now they were not in a position to arrange money that time and they will later fulfill their demand of Rs.5,00,000/ and Car.
40. It was elicited by PW12 in his cross examination that he was doing business of hosiery with his father and from said business their family earnings were Rs.34 lacs per annum.
41. Nothing of the sort of allegations as levelled in the deposition of PW12 were so elicited in the version given by sister PW3 in statement Ex.PW3/A to SDM and statement Ex. PW4/A given by father PW4 and statement Ex.PW7/B given by mother PW17 to PW7 SDM. It is admitted case of prosecution that before the SDM PW7 called by police after the death of Shompa PW12, brother of deceased had not given any statement.
42. PW17 Savita Saha, mother of deceased, Shompa CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 29 of 48 testified that after marriage accused persons started harassing Shompa on account of Car and Cash and her daughter Shompa used to telephonically inform her whereas her son PW12 Rajiv Saha had gone to Shompa many times and used to give money on account of demand of accused. After accused Vishwajeet Das @ Raja had left the job, he allegedly started harassing deceased. As per PW17, she gave more than 40 tolas of gold to deceased at the time of marriage, which was taken by accused. Demand of Car and Cash was made by accused and when such demand was not met deceased was physically and mentally tortured on pretext of household work and accused even did not allow deceased to visit parental home saying only if she brings Car and Cash, otherwise not to visit parental home even on festivals. As per PW17, 1520 days prior to incident, accused Vishwajeet Das @ Raja left Shompa in front of their home without intimation to them and her son PW12 brought her inside and Shompa disclosed that accused Vishwajeet Das @ Raja had left her in front of house with direction to bring Rs.5,00,000/ and Car, otherwise she would not be allowed to live in matrimonial home. As CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 30 of 48 per PW17, they tried to make Shompa understand and asker her not to go to matrimonial home then she told that she did not want to disturb her matrimonial life. After 34 days Shompa insisted to go back to matrimonial home, then PW17, PW4 and son accompanied her to matrimonial home and tried to make accused understand and assured that they will gave car as soon as possible and not to harass Shompa.
43. PW17 further deposed that on 23.5.2010 at about 11 11.30 P.M. Shompa made telephone cal to PW17 and she was crying and frightened and told PW17 that accused had beaten her and asked her to make a call for Car and Cash of Rs.5,00,000/. As per PW17, when she asked about accused Vishwajeet Das @ Raja, Shompa told her that he was drinking on the roof of the house and Shompa requested to take her back immediately otherwise accused would beat her. PW17 told Shompa that they were not having any vehicle and it may be difficult to come in the night and assured her to come early in the morning and told her to bolt her room from inside. At about 1.30/2.00 AM on same night, accused Vishwajeet Das @ Raja CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 31 of 48 called on phone of PW17 which was picked up by PW3 Libia and accused Vishwajeet Das @ Raja told that Shompa was in serious condition and asked them to come at Mata Chanan Devi Hospital where they reached immediately and found Shompa expired.
44. The version of PW17 in her statement Ex. PW7/B to SDM is per contra to her deposition wherein the said statement before the SDM Ex. PW7/B, PW17 stated that her daughter Shompa never complained about her husband and she used to tell PW17 about her mother in law that she taunted. As per Ex. PW7/B, Shompa never complained about any demand of dowry but Shompa was not happy with her married lief as she wanted to do some job. Ex. PW7/B also finds mention that mother in law i.e. accused Chinmayee Das often told that she does not want to keep their daughter as his son was not employed. In Ex. PW7/B, there is also mention that on last night, PW17 spoke to Shompa and then Shompa told PW17 she was feeling worried frightened but did not tell why she was worried. As per Ex. PW7/B, Shompa complained to PW17 that her husband comes late and she was bored by this life. During CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 32 of 48 the course of her deposition PW17 deposed in material contradiction with her version contained in Ex. PW7/B and said that one police official took her before a young person, whose designation she was not knowing and then said young person asked about the previous day incident; also had asked him to write down whole incident but she was not literate, so could not write, thereafter that person asked her whether she can sign and when she told she can sign and she told she can sign then said person obtained her signature on Ex. PW7/B but she does not know contents of Ex. PW7/B. PW7 SDM Rajeev Shukla testified that on 24.05.2010, he was posted as SDM Najafgarh, Delhi and on that date, on receipt of call from P.S. Najafgarh, he went to DDU Hospital mortuary, where PW3 gave her statement Ex. PW3/A in her own handwriting, upon which he made endorsement Ex. PW7/A, PW7 further deposed that PW4 gave his statement Ex. PW4/A, statement of PW17 was recorded as Ex.PW7/B and he (PW7) filled up death report Ex. PW7/C, prepared inquest report Ex. PW7/D, wherein he had directed SHO to conduct further inquiry and registered a case. PW7 categorically stated that CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 33 of 48 he explained the contents of the statements to parents of deceased. It is difficult to fathom, imagine and digest of SDM PW7 having simply obtained signature of Ex. PW7/A without recording her version. Accordingly, on this count, I find testimony of PW17 wholly unreliable and devoid of credence.
45. Accused Vishwajeet Das @ Raja entered into the witness box as DW1 under section 315 Cr.P.C. and testified that his marriage was fixed with deceased Shompa Das (now deceased) for 23.11.2008 but when his father expired on 17.09.2008, his family wanted to postpone the marriage for few months but his would be inlaws stated that they had made all arrangements for marriage and by postponing marriage they will forfeit their advance money given for bookings so they had requested to proceed with the marriage as per date fixed. On 23.11.2008, the marriage of DW1 was solemnized with Shompa Das (deceased). As per DW1, marriage was happily done without any dowry. After marriage they went to Udaipur, Rajasthan for Honeymoon and lived happily and at that time he was working with NPIL Health Care as Executive Sales and CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 34 of 48 doing well in his employment. As per DW1, they had told maternal uncle of deceased and father that they had no demand on their asking. As per DW1, after his promotion his job became hectic, he used to leave at 8.30 AM and came at 8.30 or 9.00 PM whereas his mother Chinmayee Das was teaching since more than 28 years so her schedule was to leave house at 7.00 AM and come back at 2,.00 P.M. and then after taking rest and lunch she used to take tuitions of around 4050 students. As per DW1, there house was Lshape, built on 130 sq. yards land having covered area of 100 sq. yards. Also DW1 stated that they had two maids Chawi and Sonia to take care of household work including cooking. DW1 testified that due to job hours, he could hardly give time to deceased and Shompa used to tell that as she had nothing do she gets bored and wanted to pick a job on internet. As per DW1, in October2009, he resigned from his company and joined one Mr. Vishal to promote his company in institution business. In October2009, deceased told DW1 that there was a BSES raid for electricity theft in parental home and they were charged with heavy penalty and she wanted DW1 to help them. Out CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 35 of 48 of his savings, DW1 gave Rs.70,000/ to help her parents but when she called her brother to take money, they demanded Rs.1,50,000/as penalty was very big and they told that they will return it later. DW1 stated that he could help only Rs.70,000/ as he had just left his job but due to that sister of deceased namely Libia started taunting. As per DW1, due to this they hardly called her though they were regularly calling earlier. On Shompa's birthday i.e. on 05.11.2009, DW1 invited his in laws but they refused by giving some excuse. On 14.11.2009, accused Chinmayee Das asked accused DW1 to have a get together with Shompa's family, so they went to Pizza Hut in Netaji Subhash Place and had dinner. On 23.11.2009, on the wedding anniversary DW1 planned a small function but they again gave some excuse and did not come. In that period, due to his work DW1 had to visit out of station for vendor registration in Kolkata Command Hospital, INUS Ashwani Hospital in Mumbai, Banglore Air Force Hospital, Jaipur Military Hospital and Chennai Military Hospital. As per DW1, Shompa again insisted that she wanted to try for job outside; gave few interviews but could not succeed. On tour CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 36 of 48 DW1 went to Kolkata, Mumbai and Chennai in January2010 and after coming back from Chennai in February, he again went to Jaipur and came back on 05.03.2010 and again after 2/3 days went to Kolkata. DW1 stated that deceased was suffering from prolonged illness of lower leg pain, they consulted Doctors in 2009; she used to suffer more often of pain and in the last week of April2010 this pain again troubled her, they went to nearby Doctor and since he had to go outside for travel DW1 suggested deceased if she wanted to visit maternal home so that she will get somebody's company. On 02.05.2010, deceased called her mother and informed that they were coming home in the evening and DW1 took Shompa to her parents home, stayed there for night and came back in the next morning. As per DW1, on 06.05.2010, deceased came back and when he came back from work on that day deceased told that health of her parents was not good, her father was unable to take care of business, their financial condition was not good as brother was not helping her father. DW1 stated that Shompa applied for job of teacher in nearby school and on date of interview on 18.05.2010 DW1 was travelling. CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 37 of 48 Deceased informed DW1 that due to ill health she could not appear for interview as her health was not good and on return DW1 took deceased to Doctor who suggested that she be taken to vascular specialist for which appointment of next week was taken. DW1 stated that on 22.05.2010, Sunday, deceased was suffering from pain in her legs and he had meeting with Mr. Vishal at 2.30 P.M. and that meeting was postponed to 8.00 P.M. In the evening he got late starting from Chandigarh and received call from Vishal to reach at 8.30 P.M. at Hotel Singh in Paharganj, where he reached with Mr. Nirmal at 9.00 P.M. and DW1 left at around 12.00 midnight. Upon reaching home DW1 saw main gate being not locked and drawing room and bed room lights were on and the door connecting bed room with drawing room was closed from inside, DW though deceased might be sleeping so DW1 knocked 23 times on the door; meanwhile DW1 got fresh and found no response. DW1 tried to call on her mobile which was not picked up. DW1 got worried. DW1 again called Shompa 45 times but again she did not respond. There was 2 ½ inches space below the door connecting the drawing room CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 38 of 48 and the bed room. DW1 tried to look from that space and found feet of deceased hanging, so DW1 broke the door and held the legs, tried to bring her down on the bed, shouted to call her mother accused Chinmayee Das, who was sleeping in nearby room. Accused Chinmayee Das came and lost her ground saying that I was trying to rub her feet. DW1 requested his mother accused Chinmayee Das to collect herself and rush to Doctor nearby. In the meantime, DW1 tried to revive Shompa by giving mouth air and chest pump as DW1 was a pharmacist and he know this technique. When Doctor came and checked her nerve and told DW1 to rush her to the hospital. DW1 ran to neighbour, took his car and reached Mata Chanan Devi Hospital with his mother where deceased was declared to be no more. Then DW1 informed at home of Shompa that she was no more so kindly reach at Mata Chanan Devi Hospital as soon as possible. DW1 stated that he had also given mobile phone of his wife and own to IO to check the details and location. As per DW1, he never harassed Shompa for any kind of household work, mentally or physically, never assaulted deceased, never stopped deceased to CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 39 of 48 visit her parents, never asked for Car or Rs.5,00,000/ from in laws, nor his mother or sister ever harassed deceased for demand of dowry, nor deceased had to sleep in store as they never had store in their house. DW1 specifically stated that he never took 40 tola gold or any money from Rajiv Saha as claimed by him.
46. DW2 Jitender Kumar Kashyap is the tenant in the house of accused in the period from January2010 till September2010 and deposed that during his stay he never heard of any quarrel of the accused and deceased whereas two maid servants were employed by the accused. As per DW2, on the date of incident, he did not hear any sort of quarrel between the deceased and the accused and had seen accused going away from the house at 8.00 P.M. on the date of incident.
47. DW3 is Smt. Chavi Dev, who testified that she worked as maid in the house of accused for the last about 15 years till they sold their house and still she worked in their tenanted accommodation. As per DW3, she used to prepare breakfast and lunch and she never heard or witnessed any quarrel between the CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 40 of 48 accused and the deceased since the accused and the deceased used to live happily. As per DW3, one other maid Sonia also used to work in house of accused for dishwashing and cloth washing.
48. DW4 Sanjay Chakarborty, testified that he worked as staff car driver in the Centre Board of Direct Taxes and was knowing both families after the marriage of deceased with accused. As per DW4, he met the family of Shompa before the marriage as they used to come to his house to inquire about accused Vishwajeet Das @ Raja and his family whereas after the incident the family members of deceased came to his house after the incident 810 times and even father of deceased namely Mr. Saha used to tell him that son in law/accused Vishwajeet Das @ Raja has not committed any crime and he does not want to proceed this case but he is being pressurized by his daughter and son
49. In 2008 CRI. L. J. 3061, "Dalbir Singh v. State of Haryana, Apex Court held that:
" Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction can be CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 41 of 48 maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 42 of 48 sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
50. An attempt has been made in terms of felicitous metaphor, to separate grain from the chaff, truth from falsehood.
51. When read as a whole, testimonies of material witnesses PW3, PW4, PW12 and PW17 are found to be suffering from severe CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 43 of 48 infirmities, material contradictions, inherent improbabilities, exaggerations going to the root of the matter to check and shake the basic version and core of the prosecution case and considering them along with their elicited versions given to the SDM PW7 by PW3, PW4 and PW17; it is not possible to separate grain from the chaff, truth from falsehood and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence of PW3, PW4, PW12 and PW17 in toto. Reliance placed upon Zwieolae Areal vs. State of Madhya Pradesh, AIR 1954 SC 15 and Balaka Singh and Others vs The State of Punjab, AIR 1975 SC 1962.
52. Also I find from evidence on record elicited and appreciated hereinabove, that the witnesses PW3, PW4, PW12 and PW17 can be categorized as wholly unreliable witnesses as per categorization of the witnesses classified in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614.
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53. The death of deceased Shompa accordingly in no way can be presumed as dowry death as defined in Section 304B IPC nor there is sufficient material to draw the presumption embodied in Section 113B of Evidence Act and there is no material to prove the commission of the offences under section 304B IPC and 498A IPC. Possibility of presence of bruise on lower lip of deceased due to efforts of accused DW1 for revival of deceased cannot be ruled out.
54. Even sometimes falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface. This appears to be one of those cases.
55. In K. R. Purushothaman v. State of Kerala (2005) 12 SCC 631 : (2005 Cri LJ 4648), the Supreme Court reiterated the necessity of looking at the cumulative effect of proved circumstances for determining the guilt of the accused. It was reiterated that suspicion cannot take the place of legal proof.
56. In Antar Singh v. State of M.P., (1979) 1 SCC 79:
(AIR 1979 SC 1188), it was held that, "This Court has repeatedly held that although in an appeal against acquittal, the powers of the High Court in dealing with the case are as extensive as of the Trial CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 45 of 48 Court, but before reversing the acquittal, the High Court should bear in mind that the initial presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial; and further, the opinion of the Trial Court which had the advantage of observing the demeanor of the witnesses, as to the value of their evidence should not be lightly discarded. Where two views of the evidence are reasonably possible, and the Trial Court has opted for one favouring acquittal, the High Court should not disturb the same merely on the ground that if it were in the position of the Trial Court, it would have taken the alternative view and convicted the accused accordingly."
57. This settled proposition of law has been reiterated by Supreme Court in the case of Chandrappa v. State of Karnataka {2007 (4) SCC 415} : (AIR 2007 SC (Supp) 111: 2007 AIR SCW 1850)}.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
And that, "If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court."
Also was held that, "From the above, it becomes evident that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 46 of 48 not disturb the findings of acquittal. The acquittal re enforces and reaffirms the presumption of innocence of the accused. The High Court, in fact, makes a reference to the judgment of this Court in the case of Kali Ram v. State of H.P., (1973) 2 SCC 808 : (AIR 1973 SC 2773), wherein this Court has observed :
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
58. Relying upon the law laid and elicited in the preceding paragraphs, since the two views are possible on the evidence adduced in this case, one pointing to the guilt of the accused and the other to their innocence, it would be extremely hazardous to convict the accused on the premise of unreliable, untrustworthy testimonies of PW3, PW4, PW12 and PW17. Accordingly since prosecution has failed to prove its case against accused beyond reasonable doubt, the accused persons are held not guilty and are acquitted for offences charged.
59. Bail bonds of accused Vishwajeet Das @ Raja and Chinmayee Das furnished during trial are cancelled and their sureties discharged.
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60. Both accused have already furnished personal bonds and surety bonds under section 437 A Cr.P.C for which they and their sureties are so bound.
61. File be consigned to the record room after digitization of records. Digitally signed by GURVINDER GURVINDER PAL SINGH PAL SINGH Date: 2018.08.30 11:36:06 +0530 Announced in the open court (GURVINDER PAL SINGH) th on 30 August, 2018 ASJ 05/SW/DWARKA COURTS NEW DELHI (pb) CNR No DLSW010001032010 Regd. no. 440926/2016 State Vs Vishwajeet Das @ Raja & Another 48 of 48