Delhi District Court
Gananath Pattnaik vs . State Of Orissa 2002 Scc on 23 February, 2010
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 72/1
Date of institution of the case: 19/05/2000
Arguments heard on: 03/02/10
Date of order reserved: 03/02/10
Date of Decision: 18/02/10
State
Versus
Vinit
S/o Gyanchandra
R/o M-401, Guru Harkishan Nagar
Paschim Vihar and
H. No. 528, Nimri Colony
Ashok Vihar, Delhi
FIR No. 85/2000
PS : Paschim Vihar
U/s. 498A/304B IPC
Judgment
The case of prosecution in brief is that in the night
intervening 06.07/02/2000 at 4.30 a.m., Duty officer Head
Constable Malkiat Singh of PS Paschim Vihar, was informed
through telephone that a lady, who has consumed spray, has
been admitted in Sodhi Nursing Home, No. 455, Bhairon
Enclave, by her husband from GHK Nagar in serious
condition. DD No. 32 was recorded in this regard and it was
handed over to SI Rajender Singh. On the same day at about
4.40 p.m., a telephonic call was received from Dr. Subhash
Sodhi, Sodhi Nursing Home, Bhaira Enclave, that one
lady,namely, Vimmi Wife of Vinit, R/o M-401, GHK Nagar,
who was admitted by her husband in serious condition a little
while ago, has expired and an officer be sent. DD No. 33 was
recorded to this effect. Same was also marked to SI Rajender
Singh.
On receipt of above said DDs, SI Rajender
Kumar alongwith Constable Vedpal reached at Sodhi Nursing
Home, Guru Harkishan Nagar, Paschim Vihar, Delhi, and
collected MLC of deceased, wherein it has been opined that
patient was brought dead. Intimation in this regard was given
to SDM, Punjabi Bagh. In the hospital, husband of the
deceased and her family members were also found present.
On inquiry, Sub Inspector came to know that deceased was
married four years ago. Same was informed to SDM, who
directed to lock the house of deceased and for conducting
postmortem of the deceased.
On 07/02/2000, from the house of the deceased,
baygon spray container and other articles were seized.
Stomach wash of the deceased was also seized and all the
proceedings were conducted in the presence of SDM. SDM
had prepared inquest papers and conducted inquiry U/s. 176
CrPC.
On 08/02/2000, postmortem of the deceased was
got conducted and after the postmortem, dead body was
handed over to its legal heirs. SDM recorded the statements
of family members of the deceased and inspected the spot.
On 09/02/2000, SDM had forwarded the
statements to SHO, PS Paschim Vihar, through a letter, and
directed for registration of the case.
Inspector S.P. Tyagi, SHO, PS Paschim Vihar
made endorsement on the statement of mother of
deceased,namely, Smt. Santosh wife of Ram Kumar Sharma,
R/0 B-169, Ashok Vihar, Delhi, and got registered FIR in this
case through Duty Officer. In that statement, Smt. Santosh
Sharma has stated that she lives at the aforesaid address and
is having three children. Her elder daughter Vimla @ Vimmi
Sharma was married on 09/11/1995 with Vinit Vats son of
G.C. Sharma. They had spent in the marriage beyond their
capacity. She has further stated that till April, 97, her
daughter lived at her matrimonial house and thereafter her
daughter Vimmi and her husband were expelled from the
matrimonial house by her in-laws. They asked Vinit to bring
Rs. 3 lac from his in-laws but he refused to do so.
Thereafter, both Vimmi and her husband came to
live with her and she arranged a rented accommodation at
H.No. G-106, Ashok Vihar, for them, of which rent Rs. 2300/-
and pagdi Rs. 25,000/- were also given by her. Thereafter,
brother of Vinit and others started beating her daughter. She
has further stated that parents of Vinit also alleged that Vimmi
and Vinit had eloped with Rs. 25 lac from their house, which
they i.e. she and her family members should pay, otherwise
they would kill them.
Thereafter, they continued giving the money.
Vinit told that he cannot do his work without car and asked
for arrangement of a car. They had spent Rs. 2 lac and
bought a Maruti Car for Vinit. Thereafter, Vinit sold that car
and got the sale amount converted into a fix deposit. She has
further stated that thereafter in order to save Vinit and Vimmi
from hardships, she arranged another house for them at
Guru Harkishan Nagar, Paschim Vihar, and there also, they
used to bear their daily expenses.
She has further stated on 09/12/1999,her younger
daughter Usha was married and on seeing the amounts spent
by her and her husband in the marriage of Usha, Vinit made a
complaint to her that she had spent lesser amount in his
marriage and she should compensate him by making the
payment of the difference. On 13/12/2000, Vimmi came to
her and she gave Rs. 20,000/- to her and told that they will
give remaining amount later on.
On 06/01/2000 at 10 p.m., she made a telephonic
call to Vimmi on her mobile No. 9810127343 and at that time,
Vimmi told her that they were planning to shift from that
house. On 07/02/2000 at 5.00 a.m., Vinit made a telephonic
call to them and asked them to come and started weeping
and hanged the phone. Thereafter, she and her husband
reached at Sodhi Nursing Home, where police told them
that Vimmi had expired.
She has further stated that when they reached at
the hospital, Vinit told them that they may get him punished
in anyway and that he had killed Vimmi by poisoning her and
he repeated these words in presence of other persons, while
holding the feet of Vimmi by saying " Vimmi please forgive
me, I have killed you". She has further stated therein that
since the time her daughter was expelled from the
matrimonial house, she was tortured and G.C. Sharma ,
father in law of Vimmi, Kamal Kanta, mother in law of Vimmi,
Sunit Vats, Devar of Vimmi, her husband Vinit and sister in
law Satyawati, maternal uncle R.K. Sharma and Purender,
brother of maternal aunt are responsible for the death of her
daughter and they should be punished severely. She has
further stated therein that she had given this statement in her
full conscious and without any pressure. Her daughter had
been killed by her son in law and his other accomplices by
poisoning her.
After registration of the case, investigation was
handed over to SI Suresh Kumar. During investigation, SI
Suresh Kumar recorded statements of witnesses and
searched for the accused persons, but they were not
available at their house.
On 19/02/2000, accused Vinit was arrested. On
27/03/2000, anticipatory bail to accused Kamal Kanta, Gyan Chand and Sunit Vats were granted. On 30/03/2000, anticipatory bail to accused Satyawati, Rajender Kumar and Prender were granted. Accused Gyan Chand, Kamal Kanta and Sunit Vats were formally arrested in this case. On completion of investigation, challan U/s. 498A/304 B of IPC was filed before the court.
After complying with provisions of Section 207 CrPC, case was committed to the Court of Session on 20/10/2000 for 02/11/2000.
Vide order dated 02/12/2000, my learned predecessor court discharged all the accused persons except accused Vinit Vats in this case. Charge U/s. 498A and 304B of IPC was framed only against accused Vinits Vats on 02/12/2000 to which he pleaded not guilty and claimed trial.
In order to prove its case, prosecution has examined in all 16 witnesses.
PW1 Head Constable Dalel Singh has recorded FIR of this case, copy of which is Ex. PW1/A. He has also recorded DD No.17A and proved his endorsement Ex. PW1/B. PW2 Smt. Santosh Sharma and PW3 Ram Kumar Sharma are parents of the deceased.
PW4 Smt. Meenu Sharma is sister in law (Bhabhi) of the deceased.
PW5 Radhey Shyam is brother of the deceased. PW11 Sh. E. Raja Babu is the then SDM, Punjabi Bagh.
PW12 is Dr. K.L. Sharma. He has conducted postmortem on the body of deceased. He has proved postmortem report Ex. PW12/A and cause of death Ex. PW12/B. PW13 is Dr. Subhash Sodhi of Sodhi Nursing Home, where deceased was got admitted. He has proved MLC Ex. PW13 /A. PW6 SI Rajender Singh, PW7 Head Constable Ved Pal Singh, PW8 Constable Sunder Lal, PW9 Constable Raj Singh, PW10 Head Constable Harish Kumar, PW15 Inspector Somendra Pal Tyagi and PW16 Constable Jaipal Singh are witnesses to the investigation.
PW14 Inspector Suresh Kaushik is investigating officer of the case.
On completion of prosecution evidence, statement of accused was recorded. Accused has denied the case of prosecution and has stated that it is a false and concocted case. He has further stated that he has been falsely implicated in this case. On the night of incident, deceased Vimmi was pressurising that him that the house of Guru Har Kishan Nagar was to be changed immediately because Ved Parkash, who had arranged the house for them, was pressuring Vimmi's parents to get the house vacated immediately. He has further stated that Vimmi said that in any case the house have to be changed on the next date. He told her that he had already talked to a property dealer and that arrangement of a house takes some time. He has further stated that Vimmi said that she did not know anything but wanted the new house by next day. He told her that it was not possible to arrange the house by next day. On this, she became annoyed and some altercation took place between them. Out of anger, she put fire in the articles lying in the room, which he had to set aside. She told him that she will prefer to live on the footpath on the next day but not in that house. Accused has further stated that on this, he said that he will just now again go to the property dealer and will come back. At about 10-10.30 p.m., he left the house and came back at about 12 in the night and found that the door of the house was lying opened in the position he had left. His wife was lying on the bed, which was in the Hall of the house. He thought that she was lying or sleeping. He tried to talk to her but he felt smell of Baygon. Accused has further stated that he gave her lemon water but she could not take it. He tried to get her vomited but with no result. She passed stool. He lifted her and laid her down on the bed in another room and changer her clothes. He called neighbours and tried to get key of some vehicle but none responded. Thereafter, he went to three doctors but they did not come and asked him to bring the patient to them. Thereafter, he brought a three wheeler scooter and with the help of three wheeler driver brought Vimmi down from the fourth floor and took her to Sodhi Nursing Home and also immediately informed her parents on phone. Vimmi expired in the Nursing home.
In defence, accused has examined DW1 Ram Singh, DW2 Om Prakash, DW3 Raju Balmiki , DW4 Subhash Nayyar, DW5 Ravinder Kumar Goel, DW6 Mahesh Sood and DW7 Sh. Satish Chander.
I have heard learned Addl. PP and learned defence counsel for the accused and have gone through the evidence and material brought on record.
This case was registered on the statement of Smt. Santosh Sharma, she has been examined by the prosecution as PW2. She has stated that deceased Vimmi was her daughter. She was married with accused Vinit Vats on 09/11/1995. Till April, 1997, her daughter Vimmi resided at her in-laws house. In April,1997, her mother in law and father in law asked Vinit to bring Rs. 3 lac from them. On his refusal, he and his wife were turned out of their house. She arranged a rented house for them at Ashok Vihar bearing No. G-106 at the rate of Rs. 2300/- per month and pagdi of Rs. 25,000/- was also given by them. They also used to pay the rent. Brother in law of Vimmi and other relations continued harassing Vimmi at Ashok Vihar also. They also used to beat her and insisted her to bring money. Brother in law of Vimmi also stabbed and report to that effect was lodged by Vimmi at Ashok Vihar. She, her husband and accused also accompanied Vimmi to PS. They used to receive telephonic calls from father in law and mother in law of Vimmi that Vimmi and Vinit had taken away Rs. 25 lacs from their house and they should pay that amount to them, otherwise they would be killed.
She has further stated that accused Vinit stated to them that he cannot pull without a car and they should arrange a car for him. They gave Rs. 2 lac to Vinit for purchasing a car. A car was purchased by Vinit and shown to them. After 2/3 months, accused Vinit stated that he had sold the car. On inquiry, he told that the amount received in sale of the car was deposited in fixed deposit account. In spite of that, worries of her daughter continued increasing and they thought that it may be due to reason that they were residing near their house. So, they arranged another house for the accused and Vimmi at Guru Harkishan Nagar, Paschim Vihar. They used to pay the expenses for running the house at Guru Harkishan Nagar.
PW2 has further stated that on 09/12/99, her younger daughter Usha was married and they spent more money in marriage then the amount spent in the marriage of Vimmi. Accused Vinit started harassing Vimmi and asked her for bringing the equal amount from them spent more on the marriage of Usha then in the marriage of Vimmi. Vimmi came to her weeping and told her about this demand and she gave Rs. 20,000/-telling that more money would be given afterwards. On 06/06/2000, she made a telephone call on mobile phone of Vimmi at about 10 or 10.15 pm. The mobile phone was given to Vimmi by them. She told her that they were going to change that house.
On 07/02/2000 at about 5.00 a.m., they received a telephone call from accused Vinit and he asked them to come at Sodhi Nursing Home. Address of nursing home was also given by the accused. She alongwith her husband and son Radhey Shyam reached at Sodhi Nursing Home. Police was present in front of the nursing home and they told them that Vimmi was dead. They went inside the nursing home and near the dead body, accused Vinit was sitting there. Accused Vinit stated to her that she can give whatever punishment what she wants for him and that he killed Vimmi by giving her poison. When dead body of Vimmi was being taken out of the nursing home, accused Vinit touched the feet of Vimmi and beg pardon and told that he had killed her by giving poison to her. SDM also came at the spot and she made a statement to him, which is Ex.PW2/A. She signed and put her thumb impression mark at point 'A' and 'B'.
PW3 is Ram Kumar Sharma. He has stated that his daughter Vimmi @ Vimla was married to accused Vinit Vats on 09/11/95. He spent Rs. 6 to 7 lacs in the marriage. On 07/02/2000 at about 5 a.m., accused Vinit Vats made a telephone call at their house and asked them to reach at Sodhi Nursing Home and disconnected the telephone after telling address of the nursing home. He along with his wife and son Radhey Shyam reached at Sodhi Nursing Home. They saw that their daughter Vimmi was covered with chadar and the police present there told them that Vimmi was dead. On hearing this, they started weeping. In the evening of the previous day, they had a talk with Vimmi on her mobile phone. He and his wife had talked with her and Vimmi was alright at that time. Her daughter used to tell him that her in- laws used to harass her and raised demand of dowry and also used to beat her. Father in law, mother in law, husband and younger brother of her husband used to raise demand of dowry and due to that reason, her daughter was killed by them by conspiring with each other against Vimmi. Gyan Chand Sharma and his younger son Sumit @ Kalu used to threaten him on telephone stating that he should meet their demands, otherwise they will kill him and his family. His statement was recorded by SDM, which is Ex. PW3/A, signed by him at point A. PW3 has further stated that he identified the dead body of his daughter during inquest proceedings and made statement, which is Ex. PW3/B signed by him at point A. PW4 is Smt. Meenu Sharma. She has stated that deceased Vimmi was her Nanad. She was married with Radhey Shyam on 12/11/95. Vimmi was married with accused Vinit Vats three days prior to her marriage. After marriage of Vimmi, her in-laws started harassing her on account of dowry. Vimmi was of her age and she used to tell her everything, which happened to her. She told her that her in-laws including father in law, mother in law, Devar started harassing her on account of dowry. She also told her that her in-laws were pressing her to bring Rs. 3 lacs from her parents and upto April, 1996, Vimmi resided at her in-laws house i.e. parental house of Vimmi at Nimri colony and thereafter, she and her husband were turned out of the house as she could not fulfill their demand of Rs. 3 lacs.
PW4 has further stated that a rented house was arranged by her in-laws for Vimmi and her husband at Ashok Vihar. The house was arranged by father of Vimmi. Pagdi of the house and rent was paid by her father in law i.e. father of Vimmi and all household expenses were met by her in-laws as Vinit was not doing any job. Vimmi also told her that even thereafter her in-laws i.e. father in law, mother-in-law, Devar, maternal uncle and maternal aunt- Satyawati of accused Vineet and brother of Satyawati,namely, Purender continued harassing her on account of dowry and they used to torture her mentally and physically.
She has further stated that a complaint was lodged by Vimmi at PS Ashok Vihar in the year 1998 and a case was registered against five persons mentioned above. Devar of Vimmi,namely, Sumit and Purender attacked Vimmi with knife and a case was registered against them at PS Ashok Vihar. As Vinit was not doing any job, he used to come to their house and he used to take money from her in- laws by forcing them. Accused Vinit forced her in-laws for giving a Maruti car. Her in-laws purchased a Maruti car and gave it to Vinit, which was sold by him and he retained the sale proceeds. In November, 1999, again said in February, 1999, Vimmi and Vinit left the house of Ashok Vihar and shifted in a rented house at Guru Harkishan Nagar. Vimmi used to come to their house and used to tell her that her in- laws including her husband Vinit used to assemble at that house alongwith maternal uncle of Vinit and used to harass/threat her and pressurize her to bring Rs. 3 lac and to withdraw both the cases, which were registered at PS Ashok Vihar.
PW4 has further stated that in the last week of November, 1999, Vimmi came to their house and told her that on the previous night, her husband, father in law, mother in law, Devar, maternal uncle of Vineet, his aunt Satyawati and Purender came to their house at Guru Harkishan Nagar and they tortured her and gave beatings to pressurise her to bring Rs. 3 lac and to withdraw both above said cases. They also told her that Vineet was their blood and he will act according to their wishes and if their above said demand is not fulfilled, they will take her and Vinit to their own house. When Vimmi refused to fulfill the above said demands, she was caught by Vinit and Purender from her hair and she was beaten by them and they abused her in filthy language. Whenever Vimmi visited their house, she used to tell them that she was being harassed and tortured by her in-laws.
PW4 has further stated that in December, 1999, her younger Nanad Usha was married and after her marriage, accused Vinit has stated that more amount was spent in the marriage of Usha than the amount spent in the marriage of Vimmi and the difference of amount should be given to him. PW4 has further stated that accused Vinit in the presence of her in-laws asked Vimmi to come to her in-laws house after taking the above said amount. Her in-laws gave Rs. 2 lac to Vimmi and assured that more amount will be given afterwards.
PW4 has further stated that on 02/02/2000, Vimmi came to their house. At that time, her husband and father in law were away on their job and her mother in law had gone to Mandir. She was alone in the house at that time. Eyes of Vimmi were swollen and on her asking, Vimmi told her that on the previous evening, she was taken by accused Vinit to their house at Nimri colony and there, her father-in law, mother in law, Devar, maternal uncle and aunt of Vineet and Purender were present. Vinit and her Devar were under some intoxication. They told Vimmi to bring Rs. 3 lac from her parents and to withdraw above said cases, which was not complied by her and on that account, she was beaten. Her father in law told Vimmi that what she had gained by getting two cases registered against them. She was also told that if she did not fulfill the demand of Rs. 3 lacs and did not withdraw the above said two cases, she has to face the bad consequences for the same and on asking by her in-laws, she was beaten by Pureunder and Sumit and was abused in filthy language. PW4 has further stated that Vimmi also told her that her mother in law said that Vinit was their blood and if their above said demands are not fulfilled, Vinit will turn her out of the house.
PW4 has further stated that on 07/02/2000 in the morning, a phone call was received from Vinit and her father in law, mother in law and husband went to Sodhi Nursing Home. After wards, she came to know that her Nanad Vimmi had died. She has further stated that all the above said persons had conspired to kill Vimmi.
PW5 is Radhey Shyam. He has stated that his sister Vimmi was married to accused Vinit Vats on 09/11/97. At the time of marriage of his sister Vimla @ Vimmi, negotiations between his father and the father of accused Vinit Vats,namely, Gyan Chand, had taken place and it was agreed that Rs. 3 lacs would be spent, but upto the conclusion of the marriage, the expenditure extended to Rs. 7 lacs and they somehow managed the same. After marriage, Vinit and Vimmi resided peacefully for sometime. In the month of April, 1997, Vimmi and Vinit came to their house in the night hours and accused Vinit informed him that they have been expelled from the house by his father.
PW5 has further stated that when they tried to know the reason of their expulsion from the house, accused Vinit told that his parents were demanding Rs. 3 lacs. At that time, they were not having Rs. 3 lacs. They made accused Vinit to understand that he may earn and may reside separately in a rented accommodation. Accused Vinit further told that everything was taken by his father and he has been expelled by his father, who told that not a single penny will be given to him. Accused Vinit expressed his inability to bear household expenses and sought their assistance for the expenditure incurred for separate residence.
PW5 has further stated that seeing the future of his sister, they agreed to do the same. Accordingly, a rented accommodation was arranged by them at G-Block, Phase-I, Ashok Vihar, Delhi. Thereafter, Vimmi and Vinit started residing in that rented accommodation and they used to bear their expenditure. For some period, they remained peacefully.
PW5 has further stated that in March, 1998, his sister Vimmi was attacked by her Devar Kalu and FIR No. 118/98 dated 08/03/98 was lodged in PS Ashok Vihar. He has further stated that in the month of December, 1998, Kalu and his friends had set his house on fire by pouring petrol, but somehow, they extinguished the fire and matter was reported to PP- Wazirpur. Thereafter, Kalu started extending threats to them.
PW5 has further stated that his younger sister Usha was married on 09/12/99. After two days of the marriage of Usha, they had sent Vimmi with her husband and they started residing at their new house at Guru Harkishan Nagar. On 13/12/99, his sister Vimmi came to his house alone and informed his mother weeping that they had spent more money in the marriage of Usha and the equal amount was demanded by Vinit. PW5 has further stated that they were not in position to give the money, but at that time, his mother gave Rs. 20,000/- to Vimmi and assured her to pay more. His mother further instructed vimmi to make Vinit understand. Vimmi went to her house.
After this incident, his sister Vimmi visited their house several times and told that they should arrange money as soon as possible, as desired by Vinit. Once his sister informed them that Vinit had told that sufficient time had already been given and no more time will be given. Beside this demand of money, threats were being extended to them by Kalu and Gyan Chand.
PW5 has further stated that on 07/02/2000 at about 4.00 or 5.00 a.m., they received a phone call of accused Vinit, who informed them while weeping that they should reach at Sodhi Nursing Home and disconnected the phone. When they reached Sodhi Nursing Home at about 5.30 or 5.45 p.m, they saw accused Vinit was sitting there, while concealing his face in bed sheet. He did not reply to their queries and pointed towards the room and told that Vimmi was on that side. When they reached in the said room, he saw that Vimmi was lying dead on the bed in semi nude condition. They inquired from the doctor to which, they had shown a bottle containing stomach wash and told that it was a case of poisoning. When they inquired from Vinit regarding these facts as to how it had happened, Vinit replied that he had killed Vimmi by giving her poison and asked to pardon him. At that time, doctor and two police officials were present. They paid Rs. 1500/- to the hospital authorities in lieu of bill. At that time, accused Vinit repeatedly told by touching the feet of Vimmi that he killed Vimmi by giving her poison and he should be pardoned. Police officials took the dead body of his sister for postmortem. His statement was recorded by SDM Sh. E.Raja Babu, which is Ex. PW5/A and bears his signatures at point 'A, A1, A2, A3 and A4. After the postmortem, the dead body was handed over to them.
From the depositions of PW2, PW3, PW4 and PW5 what has emerged is that:
i) In April, 1997, mother in law and father in law of deceased Vimmi asked her husband i.e. accused Vinit to bring Rs. 3 lac from his in-laws and on his refusal, they were turned out of their house.
ii) Both deceased Vimmi and accused Vinit shifted to Ashok Vihar in a rented house, rent of which was paid by in-laws of accused Vinit and a pagdi of Rs. 25,000/- was also given.
iii) That telephone calls were received from father in law and mother in law of deceased Vimmi that Vimmi and her husband had taken away Rs. 25 lac from their house and they should pay that amount to them, otherwise they would be killed.
iv) A car was purchased by accused Vinit and his in-laws gave Rs. 2 lacs to him to purchase the car.
v) Deceased Vimmi and accused Vinit from Ashok Vihar, shifted to Guru Harkishan Nagar and rent and their household expenses were paid by his in-laws.
vi) After the marriage of younger sister of deceased Vimmi i.e. Usha, accused Vinit demanded the difference of amount spent on the marriage of both Usha and Vimmi through Vimmi from his in-laws and in furtherance of the same, Rs. 20,000/- were paid to Vimmi/Vinit and further assured that more money will be paid.
Learned defence counsel has contended that evidence of the witnesses is not admissible to prove offence U/s. 498A of IPC and in support of the same has relied upon Gananath Pattnaik Vs. State of Orissa 2002 SCC (Criminal) 461 wherein it has been held that:
" Penal Code,1860-Ss. 498-A and 304-B- Offence U/s. 498-A- Evidence regarding-Admissibility - Prosecution witness deposing that prior to death, the deceased woman had stated to the witness that she (the deceased) was not treated well by her husband and in-laws for non-fulfillment of balance dowry amount- The said witness further mentioning certain specific acts of such ill-treatment allegedly stated to her by the deceased- Such evidence although admissible in respect of the offence under S. 304-B by virtue of S. 32(1) of Evidence Act, held, not admissible for the offence under S. 498-A-Evidence Act, 1872, S. 32(1)- Dying declaration is not applicable to offences, like S. 498-A."
Learned defence counsel has further contended that financial position of in-laws of accused Vinit was not so strong to spend so much amount in the marriage, as alleged by them, and also to pay rent and household expenses of deceased Vimmi and accused Vinit of Ashok Vihar house and Guru Harkishan Nagar house since they started residing separately from the in-laws of deceased Vimmi.
Learned defence counsel has further contended that PW2 has stated in the cross examination that they had 10 kilas of land and they themselves were residing in Ashok Vihar in a rented house and they were paying Rs. 1500/- as rent. According to cross examination of PW2, she used to get Rs. 7000-8000/- per month for home expenses, out of which, she used to save Rs. 200-300/- per month only. So, neither so much money was spent on the marriage, as deposed by the witness, nor any amount was given, as deposed by the witness. Once Rs. 2 lacs for purchase of car and an amount of Rs.20,000/- in cash beside the rent and household expenses.
Learned defence counsel has further contended that in fact, accused Vinit never harassed deceased Vimmi for demand of dowry. Rather, deceased Vimmi got registered FIR No. 135/98 at PS Ashok Vihar against family members of accused Vinit, in which Vinit was a prosecution witness. Learned defence counsel has further contended that PW2 has admitted in the cross examination that she has deposed in that case in the court that accused Vinit used to favour her daughter and also stated that accused Vinit often did not harass her daughter. She has also admitted that in that case U/s. 498A/406 of IPC, she has not stated that parents of Vinit had asked him to bring Rs. 3 lac from his in-laws. She has further admitted that she had not stated therein that accused Vinit refused to bring Rs. 3 lac from his in-laws house and on that refusal, deceased Vimmi and Vinit were turned out from his house.
Learned defence counsel has further contended that PW2 has admitted that in that case, she had not stated that Ashok Vihar house was taken on rent for Vinit and Bimla at the rate of Rs. 2300/- p.m. and a pagdi of Rs. 25,000/- was paid for that rented house. Learned defence counsel has further contended that PW2 has stated in the cross examination that telephonic call by Vinit's father was first made about demand of Rs. 25 lac immediately after 20/06, which was heard by her within a week, after leaving their house i.e. Vinit's parents.
Learned defence counsel has further contended that from this, it is clear that accused Vinit has never raised any demand and if father of accused Vinit has raised any demand, then he has already been discharged by the learned Predecessor of this Court.
Learned defence counsel has further contended that PW2 has admitted in the cross examination that in her presence, accused Vinit had not asked deceased Vimmi to give him money equivalent to the marriage of Usha. Learned defence counsel has further contended that PW2 has stated in the cross examination that she has given Rs. 20,000/- to Vimmi on 13/12/99. At that time, there was none else in their house. Learned defence counsel has further contended that again PW2 has been confronted with her previous statement Ex. PW2/DA recorded U/s. 498 of IPC wherein she has not stated that she has given Rs. 20,000/- to Vimmi. PW2 has further admitted that Vimmi had not given Rs. 20,000/- to accused Vinit in her presence. Learned defence counsel has further contended that from the above cross examination, it is clear that all these facts regarding demand of dowry and harassment are improvements made by witnesses in this case because in the earlier case, which deceased Vimmi got registered U/s. 498A/406 of IPC against her in-laws, she has not stated these facts in any manner.
In my opinion the contentions of the Ld defence counsel are not forceful because in the previous case which deceased Vimmy got registered u/s 498A/406 of IPC was against her in laws and it was not against her husband i.e. accused Vineet Vats, rather accused Vineet Vats was a witness in the said case, so there was no occasion for the parents/family members of the deceased Vimmit to depose against Vineet in that case in any manner against him.
Learned defence counsel has further contended that PW3 Ram Kumar Sharma has stated in the cross examination that his salary was Rs. 13,000/- in 1995 and he used to get Rs. 15,500/- in the year 2000. He used to give Rs. 6000-7000/- to his wife for household expenditure. He used to earn Rs. One lac or 1.25 lac per annum from the agricultural land.
Learned defence counsel has further contended that PW3 has stated in the cross examination that the rent of the house, in which Vinit and Vimla @ Vimmi used to reside in Ashok Vihar was Rs. 1300-1500/-. So, he has contradicted PW2, who has stated that rent was Rs. 2300/- per month. Learned defence counsel has further contended that PW3 has admitted in the cross examination that he had not told the SDM in his statement that he had spent Rs. 6-7 lacs in the marriage of deceased Vimmi. PW3 has admitted that deceased Vimmi got registered a case U/s. 498A/406 of IPC against her in-laws wherein accused Vinit was a witness. PW3 has further admitted that his daughter Vimmi had not told him anything with regard to harassment, demand of dowry, beatings etc. by her in-laws. Whatever she has told, she had told to her mother.
Learned defence counsel has further contended that PW4 Meenu Sharma has stated in the cross examination that she cannot tell the details of the expenses incurred by parents in law of accused Vinit. PW4 has further stated that she does not remember the date, time and month when deceased Vimmi told her about such torture at Ashok Vihar house. So, this witness can also not be believed in any manner.
Learned defence counsel has further contended that PW5 Radhey Shyam, brother of deceased Vimmi, has admitted in the cross examination that accused Vinit was turned out of the house with his wife by his parents as they had not agreed with their demand of Rs. 3 lacs raised from Vimmi. Learned defence counsel has further contended that this witness has also admitted that deceased Vimmi had also got lodged FIR at PS Ashok Vihar against her in-laws, wherein accused Vinit was a witness. Learned defence counsel has further contended that PW5 has admitted that on 13/12/99, when his mother gave Rs. 20,000/- to Vimmi, he was not present at his house. So, PW2, PW4 and PW5 have contradicted each other in this respect. It is doubtful whether Rs. 20,000/- were paid to Vimmi or to Vinit.
In my opinion, PW4 Smt. Meenu Sharma has stated in the cross examination that since Vimmi was of her age, she has been telling these facts to her. Vimmi had told her that all the in-laws i.e. parents in law, devar, maternal uncle and maternal aunt Satyawati were asking for dowry. She used to tell her that sometimes, parents in law asked for dowry and once all the persons mentioned above asked for dowry.
She has further stated that accused Vinit was in fact doing a drama in coming to their place with his wife. She has further stated that pagdi of the house of Ashok Vihar was given by her parents in law. The amount was, however, paid in cash. She has further stated that accused Vinit was a witness in the case U/s. 498A/406 of IPC, which deceased Vimmi got lodged against her in-laws, but voluntarily has stated that it was a drama played by Vinit. She has again stated voluntarily that accused Vinit asked for money for a car apart from asking for Rs. 3 lacs and an amount of Rs. Two lac was paid in one go. She has denied the suggestion that her in-laws had not paid Rs. 2 lac to the accused Vinit. She has further stated that her mother in law had given Rs. 20,000/- to the accused in December, 1999 at the time of marriage of Usha. This amount was paid in front of her eyes. She has further stated that deceased Vimmi had told her that all the in-laws had beaten her for demand of dowry. So, the witnesses cannot be disbelieved in any manner. They have corroborated each other regarding the harassment and demand of dowry made by accused himself and through deceased Vimmi from his in-laws.
Ld defence counsel has contended that PW4 Smt Meenu Sharma and PW5 Radhey Shyam were not residing with PW2 Santosh Sharma and PW3 Ram Kumar Sharma in their house. So PW4 and PW5 cannot be believed in any manner because PW5 Radhey Shyam husband of PW4 Smt Meenu Sharma was not residing at the house of PW2 and PW3 i.e. parents of PW5.
Ld defence counsel has further contended that in this respect DW3 Sh Raju Valimki has been examined, who has stated that he has been living in Mangol Puri since 1976. He has contested the election of Member of Legislature Assembly, Delhi in the year 2003. In that connection, he used to visit the people of Mangol Puri from where he contested the election. He has further stated that he knows one Radhey Shyam having medical store by the name of Santosh Medical Store in J-1100/1, Mangol Puri, Delhi. It is 1½ storey building. He saw family of Radhey Shyam living in portion in the aforesaid house in the year 1999-2000.
Ld defence counsel has further contended that from the deposition of DW3 Raju Valimiki, it is clear that neither PW4 Meenu Sharma nor PW5 Radhey Shyam were residing with PW2 and PW3 at any time or before the incident.
In my opinion, first of all let us see, what DW3 has stated. D3W3 has stated that he used to visit the people of Mangol Puri in the year 2003 in relation to the election. So he has not stated as to when he saw the family of the PW3 living in a portion in the said house in the year 1999-2000.
PW2 Santosh Sharma, mother of PW5 Radhey Shyam has denied in the cross examination that her son was residing in Mangol Puri. She has also denied that after intercaste marriage of Radhey Shyam and Meenu, they have difference with the couple and since then they used to reside separately in Mangol Puri house.
PW3 Ram Kumar, father of PW5 has also denied that PW5 used to reside in Mangol Puri with his wife. PW4 Meenu Sharma wife of PW5 Radhey Shyam has also denied that they used to reside in Mangol Puri. She has stated in the cross examination that there was no residential accommodation above the shop in the year 2000. There was a room constructed in the year 2000 behind the shop. So she has also denied that she used to reside in the room behind shop in February 2000.
So all the witnesses have denied the suggestion that PW4 and PW5 were residing at Mangol Puri and in such circumstances, DW3 Raju Valimiki cannot be believed. More so, DW3 has not been able to produce any document to show that he was residing in Mangol Puri since 1976 as deposed by him. He was cross examined by Ld APP for State on this aspect, but even later on, he has not produced his document regarding his residence in Mangol Puri. So he cannot be believed in any manner and prosecution has been able to prove the fact beyond reasonable doubts that PW4 and PW5 were residing with PW2 and PW3 before or at the time of incident.
Learned defence counsel has further contended that statement of father of deceased Vimmi was recorded on 07/02/2000, whereas FIR has been registered on 09/02/2000. Hence, there is a delay in recording of FIR. Hence, there is doubt about the genuineness of the FIR and in support of it has relied upon Rajeevan and another Vs. State of Kerala 2003 Supreme Court Cases (Cri) 751. He has further relied upon Ronald Kiprono Ramkat Vs. State of Haryana 2001 Supreme Court Cases (Cri) 1034. He has further contended that delay in lodging FIR may result in embellishment, which is a creature of afterthought and in support of it, has relied upon Mahmood and another Vs. State of Uttar Pradesh (2009) 1 Supreme Court Cases (Cri) 763.
Learned defence counsel has further contended that no explanation has been given as to why the case has not been registered at the earliest. He has further contended that PW3 in his statement given to SDM Ex. PW3/A has not alleged anything against accused Vinit except mentioning his name. Rather, he has stated therein that his daughter has been killed by her mother in law, father in law and Devar after entering into a criminal conspiracy and thereafter he has stated that legal action be taken against his son in law Vinit Vats also, and in fact, in statement Ex. PW3/A, he has not uttered any role of accused Vinit in the death of his daughter Vimmi. Learned defence counsel has further contended that statement of PW2 Santosh was recorded on 08/02/2000, wherein facts have been improved.
In my view,PW3 has explained sufficiently the delay in lodging the FIR, who made statement Ex. PW3/A before the SDM, Punjabi Bagh. In the cross examination, PW3 has stated that his daughter had not told him anything with regard to harassment, demand of dowry and beatings by her in laws. Whatever she had told she had told to her mother, so naturally case was registered on the statement of the mother of the deceased, which was recorded by the SDM Ex. PW2/A on 09/02/2000. It is not unnatural that in such circumstances daughter always disclosed her sufferings to the female member of the family, may be mother or her sister in law.
Learned defence counsel has further contended that in defence, he has examined DW1 Ran Singh. He is Patwari of Village - Dhoop Khurd, Tehsil Shivani, District Bhiwani. He has brought the record of agricultural land in the name of PW3 Ram Kumar Sharma and has stated that yield of Bajra crop was about 2-2½ quintal per acre depending upon the rain and yield of gram crop was 2-2½ acre quintal per acre. He has not deposed about value of the crop in the year 2000. He has further stated that there was no no tubewell in the land.
Learned defence counsel has further contended that DW2 Om Prakash, who was also Patwari of the same Village, has stated that value of the crop in the said land of the year 1998 to 2000 would have been about Rs. 40,000/- or Rs. 45,000/- per year and not more than that. So, depositions of DW1 and DW2 have falsified the evidence of PW3 Ram Kumar Sharma, who has stated that he used to get Rs. One lac or Rs. 1.25 lac per annum from the land.
Learned defence counsel has further contended that to prove the fact that in fact accused Vinit had transferred some amount and got one FDR in the name of deceased Vimmi, DW4 Sh. Subhash Nayyar, Senior Manager, Oriental Bank of Commerce, Ashok Vihar, Delhi has been examined, who has proved the statement of account of accused Vinit Vats, who withdrew a sum of Rs. 61,000/- from his account on 26/11/98 by issuing a cheque, copy of same is Ex. DW4/A. Accused Vinit had also another saving bank account, statement of account of the same is Ex. DW4/B. From this account, a sum of Rs. 60,000/- was transferred on 12/11/97 as reflected in Ex. DW4/B and from those Rs. 60,000/- an FDR was made in the name of deceased Vimmi @ Vimla Sharma, copy of which is Ex. DW4/C. He has also produced the ledger sheet of the same Ex. DW4/D. Learned defence counsel has further contended that DW5 Ravinder Kumar Goel has been examined to prove the fact that accused Vinit got a separate residential house on rent and he provided the same at the rate of Rs. 2500/- per month in Shakti Nagar, where accused Vinit with his wife resided for one and half months.
In my view, this fact is not relevant in any manner because accused Vinit resided with his wife at Ashok Vihar and Guru Har Kishan Nagar is not in dispute in any manner.
Learned defence counsel has further contended that Mahesh Sood, Junior Manager, Dena Bank, Branch Wazirpur, Delhi, who has been examined as DW6, has proved that vide pay in slip Ex. DW6/A on 26/11/ 98 cash of Rs. 60,000/- was deposited in saving bank account No. 9573 of deceased Vimmi. Deposit slip is Ex. DW6/B. He has also proved original pay in slip dated 04/08/98 vide which a cash of Rs. 5100/- was deposited in the same account of deceased Vimmi, copy of which is Ex. DW6/C and attested copy of the same is EX. DW6/D. Statement of account of deceased Vimmi is Ex. DW6/E. So, it is clear that accused never demanded any dowry nor harassed deceased Vimmi on any account and rather deposited money in the account of deceased Vimmi and also got issued FDR in her name.
Learned defence counsel has further contended that from the evidence of DW7 Satish Chander , it is clear that money of Rs. 2 lac were not paid by the in-laws of accused Vinit to him for purchase of the car as DW7 has stated that as per his record, on 21/07/97, one car was purchased by accused Vinit for a consideration of Rs. One lac to Rs. 1,25,000/- as per receipt Ex. DW7/A. Accused Vinit had given a cheque of Rs. 45,000/- to Rs. 50,000/- approximately and remaining amount was financed through V.K. Mohan Leasing and Finance, Karol Bagh, Delhi.
In my view, yield from the land depends upon rain, weather and irrigation. So, it is not certain whether the yield had a value of Rs. 40 to 45,000/- per year in the year 1998 to 2000. Regarding deposit of cash in the account of deceased Vimmi by accused Vinit, same has no relevancy at all and similarly, if accused got issued one FDR in the name of deceased Vimmi, then it has also no relevancy as after death of Vimmi, accused Vinit has got the amount of the same being nominee of the same, as admitted by the witnesses. In the delivery receipt Ex. DW7/A, nowhere value of the car is mentioned. So, it is not certain whether it was purchased by accused Vinit for a sum of Rs. 1,25,000/- or more. Record of V.K. Mohan Leasing and Finance, Karol Bagh, Delhi, has not been produced, hence, it is also not proved that accused Vinit got financed the remaining amount of the car.
Even it is not mentioned in the delivery receipt that accused Vinit issued a cheque of Rs. 45,000/- to Rs. 50,000/- in the name of DW7, while purchasing the said car. From the receipt Ex. DW7/A, it is clear that Maruti car, which was purchased by the accused was of 1997 model and the date of receipt is 21/07/97. So, it was not an old car or may be 2-4 months old and not more than that. So, it could not have been purchased by accused Vinit for such a lesser amount.
Statement of account by accused Vinit has not been brought on record of 1997 to show that he had issued a cheque of Rs. 45,000/- or Rs. 50,000/- in the name of DW7, while purchasing the said car. So, in absence of such evidence, it is clear that PWs, as discussed above, have deposed truly that Rs. 2 lacs were given to accused Vinit for purchasing a car.
So from the deposition of PW2 Santosh Sharma, PW3 Ram Kumar Sharma, PW4 Meenu Sharma and PW5 Radhey Shyam, prosecution has been able to prove that marriage of deceased Vimmi and accused Vineet took place on 09/11/95; that in April 1997, accused Vineet was asked by his parents to bring Rs. 3 lacs from his in laws and on his refusal he and his wife i.e. deceased Vimmi were turned out from their house; that PW2 and PW3 arranged a rented accommodation for them at Ashok Vihar and later on at Guru Harkishan Nagar. Pagri and rent were paid by PW2 and PW3; that accused Vineet demanded a car and Rs.2 lacs were given to him to purchase a car. This fact has not been disputed by accused Vineet that he purchased a car.
PW2 Santosh Sharma has denied that accused Vineet had paid Rs. 45-50 thousand through cheque from his bank account and remaining amount was financed by Harish Motors. Here DW7 has contradicted with the suggestion, so it is not known whether car was financed or not or whether it was financed by Harish Motors or from V.K. Mohan Leasing and Finance, Karol Bagh, Delhi.
PW2 has denied that accused Vineet sold the car after about 2 months for Rs.50,000/- and after adding Rs.10,000/- in the sum Rs.50,000/-, he got issued a FDR in the name of deceased Vimmi for Rs.60,000/- in November 1997.
PW2 and PW4 both have corroborated each other that Rs.2 lacs were given to accused Vineet for purchasing a car. They have further corroborated that Rs.20,000/- were given to accused Vineet in the December 1999 at the time of marriage of Usha, as deceased Vimmi told that accused Vineet was harassing her and asking her to bring the amount equal to the more money spent in the marriage of Usha then in his marriage; It is also proved that deceased Vimmi before her death, was harassed by accused Vineet and his family members. PW2 Sm Santosh Sharma has stated that brother in law of Vimmi and other relatives continued harassing Vimmi at Ashok Vihar also. They used to beat her and insisted her to bring more money. Brother in law i.e. Devar of Vimmi also stabbed her and report of same was lodged by Vimmi at PS Ashok Vihar. It is also evident from the case, which Vimmi got registered against her in laws u/s 498A/406 of IPC. PW3 has also stated that his daughter used to tell him that her in laws used to harass her and raise demand of dowry and also used to beat her.
PW4 Smt Meenu Sharma has also stated that in laws of deceased Vimmi used to harass her for the demand of dowry and they used to torture her mentally and physically. Complaint was also lodged by Vimmi in PS Ashok Vihar in the year 1998. Devar of Vimmi i.e. Purinder and Sunil attacked Vimmi with knife and report was lodged by Vimmi at PS Ashok Vihar against them. She has further stated that accused Vineet was not doing any job and he used to come to their house and used to take money by her in laws by forcing them and also he forced her in laws for giving Maruti Car.
PW4 has further stated that Vimmi used to come to their house and used to tell that her above said in laws along with Maternal Uncle of Vineet used to come at her house and used to threat/harass her and pressurize her to bring Rs.3 lacs and to withdraw both above said cases which were registered at PS Ashok Vihar. PW4 has specifically stated th at in the November 1999 in the last week, Vimmi came to her house and told that in the previous night her husband took her at his house in Nimri colony and there her father in law, mother in law, Dever and Maternal Uncle and aunt of Puneet and Purinder were present and Vineet and her Devar were under some intoxication and they asked Vimmi to bring Rs.3 lacs from her parents and to withdraw above said two cases. They also told her that if she did not fulfilled t the demand of Rs.3 lacs and did not withdraw the above said two cases, she has to face the bad consequence and on asking by her in laws she was beaten by Purinder and Sunil and she was abused in filthy language. PW4 has further stated Vimmi told that her mother in law stated that Vineet was their blood and if their above said demands were not fulfilled Vineet will turn her out of the house.
Even in the cross examination, PW4 has again stated that since Vimmi was of her age, so she had been telling all these facts to her. PW4 has also stated in the cross examination that in fact accused Vineet was doing a drama in coming to their place with his wife. PW4 has also stated that in respect of all the cases which Vimmi got registered u/s 498A/406 of IPC against her in laws, Vineet played a drama and she specifically stated that accused Vineet asked for money for car apart from asking for Rs.3 lacs.
It is not unnatural that a person always opens his/her hurt to other person of his/her age. So it was not unnatural that Vimmi disclosed all these facts to PW4, who was her brother's wife and it was easy for her to talk about all these sufferings with her bhabhi.
PW4 i.e. Meenu Sharma has not been cross examined by Ld defence counsel regarding the incident of November 1999. It has been held in 2009 (163)DLT 658, titled as Rakesh Kumar Vs State, that " when a witness is not cross examined on any relevant aspect then the correctness of the statement made by the witness cannot be disputed." So PW4 cannot be disbelieved regarding the incident of November 1999 as deposed by her against accused Vineet and her family members.
From the deposition of PW2, PW3,PW4 and PW5, who also inspire confidence and are trustworthy, prosecution has been able to prove beyond reasonable doubts that Vimmi was subjected to cruelty by accused Vineet along with his family members with a view to coerce her to meet their unlawful demand for cash, either to purchase a car or the difference of amount equivalent to the more money, which was spent in the marriage of Usha, sister of deceased Vimmi, who took place in December 99. Witnesses have specifically stated that accused Vineet asked for money for car apart from the demand of Rs. 3 lacs.
The word dowry has been defined by the Hon'ble Supreme court of India in AIR 2007 SC 763, titled as Appa Saheb Vs State of Mahrashtra, wherein it has been held that "as per the definition of dowry as given in 1961 Act, the giving or taking of property or valuable securities must have some connection with the marriage of the parties and co-relation between the giving and taking of property or valuable security with the marriage of the parties is essential. It has been further held that if accused husband and mother in law of deceased demanded some money on account of financial stringency or for meeting urgent domestic expenses, then it is not a demand of dowry.
If we see the deposition of PWs 2,3,4 and 5, then it is clear that marriage of deceased took place in the year 1995 where as she was turned out of the house with accused Vinit in the year 1997 for not fulfilling the demand of dowry with her husband and thereafter family of the deceased managed a house and paid rent and house hold expenses. Even then demand of dowry was raised not only by the family of the accused, but also by the accused himself to purchase a car and also at the time of marriage of Usha, sister of deceased in December 99 just before her death in February 2000.
PW4 has specifically stated that in November 1999, she was told by deceased about the demand of dowry and harassment caused physically and mentally to the deceased by accused and his family members, for demand of dowry. So the evidence of these witnesses cannot be read in a piecemeal and whole of the circumstances are to be looked into since the day of marriage of deceased till her death and it is evident from the deposition of PW2, PW3, PW4 and PW5 that deceased was treated with cruelty and harassed mentally and physical, both by accused himself and by the family members of the accused, even at the rented house, which was provided by in laws of the accused to him at Ashok Vihar.
It is also evident form the cases which deceased got registered against her in laws. The judgments relied upon by the Ld defence counsel is not applicable to the facts and circumstances of the present case and the contentions of Ld defence counsel are not forceful in any manner to disbelieve the testimony of the witnesses, because even accused Vinit himself demanded dowry from his in laws, once for the purchase of the car and secondly at the time of marriage of Usha, sister of deceased, Rs.20,000/- were given to them and they were assured that further money will be given, because accused had asked that difference of equivalent amount which was spent lessor in his marriage in comparison to the amount spent in the marriage of Usha being given to him.
Accordingly prosecution has been able to prove the offence u/s 498A of IPC against accused Vinit beyond reasonable doubts for which he is held guilty and convicted for the same.
To prove offence U/s. 304B of IPC, PW2 has stated that deceased Vimmi was married with accused Vinit on 09/11/95. She has further stated that on 06/06/2000, she made a telephone call on mobile phone of Vimmi at about 10 or 10.15 pm. The mobile phone was given to Vimmi by them. She told her that they were going to change that house. On 07/02/2000 at about 5.00 a.m., they received a telephone call from accused Vinit.. He asked them to come at Sodhi Nursing Home. Address of nursing home was also given by the accused.
PW2 alongwith her husband and son Radhey Shyam reached at Sodhi Nursing Home. Police was present in front of the nursing home and they told them that Vimmi was dead. They went inside the nursing home and near the dead body, accused Vinit was sitting there. Accused Vinit stated to her that she can give whatever punishment she wants for him and that he killed Vimmi by giving her poison. When dead body of Vimmi was being taken out of the nursing home, accused Vinit touched the feet of Vimmi and beg pardoned stating that he had killed her by giving poison.
PW3 Ram Kumar Sharma has stated that his daughter Vimmi was married with accused Vinit on 09/11/95. On 07/02/2000 at about 5 a.m., accused Vinit Vats made a telephone call at their house and asked them to come at Sodhi Nursing Home and disconnected the telephone after telling address of the nursing home. Thereafter, he along with his wife and son Radhey Shyam reached at Sodhi Nursing Home. He saw that his daughter Vimmi was covered with chadar. Police present there told them that Vimmi was dead. On hearing this, they started weeping. In the evening of the previous day, they had a talk with Vimmi on her mobile phone. He and his wife had talked with her and Vimmi was alright at that time.
PW4 Smt. Meenu Sharma has stated that on 07/02/2000 in the morning, a phone call was received from Vinit. Her father in law, mother in law and husband went to Sodhi Nursing Home. After wards, she came to know that her Nanad Vimmi had died. She has further stated that all the above said persons had conspired to kill Vimmi.
PW5 Radhey Shyam has stated that on 07/02/2000 at about 4.00 or 5.00 a.m., they received a phone call of accused Vinit, who informed them while weeping that they should reach at Sodhi Nursing Home and disconnected the phone. When they reached Sodhi Nursing Home at about 5.30 or 5.45 p.m, they saw accused Vinit was sitting there, while concealing his face in bed sheet. He did not reply to their queries and pointed towards the room and told that Vimmi was on that side. When they reached in the said room, he saw, that Vimmi was lying dead on the bed in semi nude condition. They inquired from the doctor to which, they had shown a bottle containing stomach wash and told that it was a case of poisoning. When they inquired from Vinit regarding these facts as to how it had happened, Vinit replied that "
Vimmi ko maine jahar dekar mar diya, mujhe maaf kar do" . At that time, doctor and two police officials were present. They paid Rs. 1500/- to the hospital authorities in lieu of bill. At that time, accused Vinit repeatedly told by touching the feet of Vimmi that "Vimmi maine tujhe maar diya mujhe maaf kar do".
PW6 SI Rajender Singh has stated that on 07/02/2000, he was posted as SI at police post Mianwali, PS Paschim Vihar. On that day at about 4.30 a.m., he received a telephone call from Duty Officer HC Malkiat Singh of PS Paschim Vihar that one lady from H. No. M-401, Bhairon Enclave, Guru Harkishan Nagar, has been admitted in Sodhi Nursing Home in serious condition after eating something. After about 10 minutes, he received another call from the doctor of Sodhi Nursing Home, who informed that the lady, who was admitted in the hospital in serious condition, had expired. He went to Sodhi Nursing Home and the doctor handed over to him MLC dated 07/02/2000 Mark X. PW13 Dr. Subhash Sodhi of Sodhi Nursing Home has stated that he has seen MLC dated 07/02/2000 of a female,namely, Vimmi, wife of Vineet. She was brought in the nursing home at about 4.00 a.m. with the history of poisoning with Baygon Spray, which was taken at about 10.00 p.m. Patient was unconscious at the time of admission and was serious. Patient was unfit for statement. Patient died at 4.30 a.m. Police was informed and gastric contents were preserved for chemical analysis. MLC of deceased Vimmi is Ex. PW13/A. PW6 SI Rajender Singh has further stated that on 07/02/2000, parents of deceased lady met him in Sodhi Nursing Home and from them, he came to know that deceased had married four years back. Then he contacted SDM, Punjabi Bagh on telephone. SDM directed him to prepare the inquest papers. Body of deceased was shifted to Subzi Mandi mortuary, but before that, doctor in the hospital had taken stomach wash and it was kept in a parcel, which was sealed by the doctor with the seal of "SMH". Parcel was seized vide memo Ex. PW6/A. SDM also directed him to lock the premises, where the deceased was residing before she was shifted to Sodhi Nursing Home.
From the mortuary, he had gone to H.No. M-401, Bhairon Enclave. None was found present there. House was lying unlocked. PW 7 HC Ved Pal accompanied him. They went inside the house. There was a cabin like kitchen and one dibba of baygon spray was found lying. In the dibba, he noticed that there was liquid of 1/4th capacity of dibba and over the dibba, baygon spray was written in English. It was sealed with the seal of "RS" and was taken into possession vide memo Ex. PW6/B. Both the parcels i.e. stomach wash and sealed dibba were deposited in the malkhana.
PW6 has further stated that SDM could not come on 07/02/2000 as he informed them that he had many cases. On 08/02/2000, SDM came to mortuary, Subzi Mandi. Family members of the deceased were also present there. He prepared inquest papers, which were signed by the SDM. On the request of SDM, doctor conducted postmortem on the dead body of deceased Vimmi. Clothes of the deceased, viscera and vaginal swab were sealed with the seal of "KLS" alongwith specimen seal and were handed over to him, which he took into possession vide memo Ex. PW6/C and deposited the same in the malkhana on the same day.
PW6 has further stated that on 08/02/200, he went to H.No. M-401, Guru HarKishan Nagar, alongwith SDM, Punjabi Bagh. SDM inspected the place of occurrence and from there, they seized ten articles vide recovery memo Ex. PW6/D. These articles were seized in two pullandas with the seal of "RS" and the same were also deposited in the malkhana on the same day. PW6 has identified the articles before the court i.e. hair pin Ex. P1, pieces of bangles Ex.P2, one spray gun Ex. P3, one half burnt piece of newspaper Ex. P4 as the same, which were recovered and seized from H.No. M-401, Guru Harkishan Nagar, Delhi. He has further identified one saree of blue and red colour with some burnt portion Ex. P5, one Salwar Ex. P6, one jumper Ex. P7, one salwar red colour Ex. P8, one bed sheet Ex. P9 and one mobile phone make Siemens Ex. P10 as the same, which were recovered from the same house. PW6 has further identified the dibba of liquid Baygon Spray as Ex. P11, which was seized from the same house.
PW7 HC Ved Pal Singh has stated that on 07/02/2000, he was posted as Constable at PP Mianwali, PS Paschim Vihar. At about 4.30 a.m., a telephone call was received in the PP. It was recorded as DD No.32 regarding admission of a lady in Sodhi Nursing Room. At about 4.40 a.m., again a telephone call was received from Sodhi Nursing Home regarding the fact that the lady, who was admitted there, had expired. It was recorded as DD No. 33. Copies of both these DD entries were given to SI Rajender Singh and he alongwith SI Rajender Singh went to Sodhi Nursing Home, where MLC of Vimmi was obtained by PW6 SI Rajender Singh. Doctor had declared Vimmi brought dead from the MLC.
Thereafter, PW7 alongwith PW6 SI Rajender Singh reached at H.No. 401, Guru Harkishan Nagar, Delhi. There SI had taken into possession one tin box of Baygon Spray, which was having 1/4th spray in it. It was sealed in a pullanda with the seal of "RS" and was taken into possession vide memo Ex. PW6/B. From there, they reached at Sodhi Nursing Home and PW6 SI Rajender Singh obtained stomach wash of deceased from the hospital, which was sealed with the seal of "SNH". It was taken into possession vide memo Ex. PW6/A. Dead body was removed by them to mortuary of Subzi Mandi. PW7 has also identified the dibba of Baygon spray as Ex. P11.
PW9 Constable Raj Singh has stated that he alongwith SI Rajender Singh and SDM, Punjabi Bagh, reached at the spot i.e. H.No. 401, Guru Har kishan Nagar. SI Rajender Singh took into possession four pieces of bangles, one spray gun, one piece of newspaper burnt from the corner, one saree of blue and red colour, which was burnt at some places, one salwar, one jumper, one more salwar of red colour, one bed sheet and one mobile phone. Investigating officer placed first four items in a polythene and item No. 5 to 10 were placed in a plastic katta. Both were sealed with the seal of "RS". All these articles were then seized vide memo Ex. PW6/D, which he signed at point X. PW9 has identified all these articles i.e. hair clip black colour as Ex. P1, pieces of four broken bangles as Ex. P2, spray gun as Ex. P3, piece of paper with burnt corner Ex. P4, one saree of light blue and red colour with some burnt portion as Ex. P5, one salwar of grey and white colour as Ex. P6, one jumper of white and black colour as Ex. P7, one salwar of red colour as Ex. P8, bed-sheet as Ex. P9 and mobile phone as Ex. P10.
Learned defence counsel has contended that PW14 Inspector Suresh Kaushik has stated in the cross examination that he had seen seizure memo Ex. PW6/D. He did not make any inquiry about the burnt articles mentioned at serial No. 4 and 5 Ex. P4 and Ex. P5 in Ex. PW6/D. PW9 Constable Raj Singh has stated that on 08/02/2000, he was posted as Constable at PP Mianwali, PS Paschim Vihar. He alongwith SI Rajender Singh went to Subzi Mandi mortuary for postmortem on the dead body of deceased Vimmi. SDM Punjabi Bagh also came to Mortuary Subzi mandi. Postmortem of dead body of Vimmi was got conducted at the directions of SDM. After the postmortem, dead body was handed over to relatives of the deceased. Investigating officer prepared a memo which is Ex. PW3/C and bears his signatures at point X. After postmortem, the doctor handed over sealed wooden box containing viscera, one envelope containing blood cloth piece, one small bottle containing vaginal swab of deceased and one polythene containing clothes of deceased. These were seized vide memo Ex. PW6/C, which he signed at point X. PW11 Sh. E. Raja Babu, the then SDM, has stated that on 07/02/2000, he was posted as SDM, Punjabi Bagh. At around 5.00 a.m., he received a call from SI Rajender Singh on that day and he directed SI Rajender Singh to send the dead body to Mortuary Subzi Mandi. Thereafter, he reached at mortuary Subzi Mandi and met there with SI Rajender Singh. Dead body of a female, whose name he came to know as Vimmi was shown to him. SI Rajender Singh also shown to him MLC of Vimmi. He also saw the dead body of Vimmi and did not find any external injuries. Mouth of the dead body was open and eyes were closed. Some foam bubbles were oozing out from the nose. He directed SI Rajender Singh to get conduct the postmortem and then to hand over the dead body to relatives of the deceased. He recorded brief facts Ex. PW11/A. He made a request to Autopsy Surgeon to conduct postmortem on the dead body of Smt. Vimmi @ Bimla vide application Ex. PW11/B and completed the inquest proceedings including death report Ex. PW11/C-1 alongwith form No. 25.31 Ex. PW11/C. PW11 has further stated that he recorded statement of Sh. Ram Kumar Sharma, father of the deceased, which is Ex. PW3/A and signed the same at point X. Ram Kumar Sharma also signed the same at point A. He has further stated that on the next day i.e. on 08/02/2000, when he was present in his office at Nangloi, Smt. Santosh Sharma, mother of deceased Vimmi @ Bimla came to his office and made her statement to him, which was recorded in his presence and the same is Ex. PW2/A running into two pages, which he signed at point X on both the pages. He also wrote the words "the statement is given before me". Smt. Santosh Sharma put her thumb impression at point A in his presence on this statement.
On the same day, Vinit Vats, husband of deceased Vimmi, also came into his office and gave his statement, which is Ex. PW11/D, running into three pages. He signed the same at point X. Vinit Vats also signed the same at at point A in his presence. He also wrote words "the statement is given before me". He has further stated that on 09/02/2000, when he was present in his office, Radhey Shyam Sharma @ Sahil, brother of deceased Vimmi, came to his office and gave his statement, which was recorded as Ex. PW5/A running into five pages and bears his signature at point X on all the pages. He has further stated that on 09/02/2000, vide letter Ex. PW11/E, signed by him at point X, he directed SHO, PS Paschim Vihar, to register a case against seven persons named in the exhibit from point A to G. PW15 Inspector Somendra Pal Tyagi, the then SHO of PS Paschim Vihar has stated that on 09/02/2000, he was posted as SHO, PS Paschim Vihar, he received an order from SDM Punjabi Bagh, Sh. E. Raja Babu for registration of the case on the basis of statement of Smt. Santosh Sharma, mother of deceased. He made endorsement from point X to X, which he signed at point Y on statement Ex. PW2/A of Smt. Santosh Sharma. His endorsement is Ex. PW15/A and bears his signature at point A. He handed over the ruqqa to duty officer, who registered the FIR and investigation was handed over to SI Suresh Kaushik.
PW1 HC Dalel Singh has stated that on 09/02/2000, he was posted at PS - Paschim Vihar and was working as duty officer. He received a ruqqa sent by SHO, PS Paschim Vihar, on the basis of which, he recorded FIR of this case. He brought the original FIR with him, carbon copy of which is Ex. PW1/A. He also recorded DD No.17A and made endorsement on the ruqqa, which is Ex. PW1/B. He has further clarified that date 09/02/99 at point B in his endorsement Ex. PW1/B was inadvertently written as 09/02/99 instead of 09/02/2000. He has further stated that special report was sent through Constable Suresh Kumar to senior police officers and Ilaka Magistrate. PW1 has not been cross examined by learned defence counsel in any manner.
PW12 is Dr. K.L. Sharma. To prove the cause of death, he has stated that on 08/02/2000, he conducted postmortem on the dead body of Vimmi @ Vimla, female, 27 years. It was sent by SDM, Punjabi Bagh and was identified by SI Rajender Singh. The dead body was wearing salwar of brown colour only with white nara, fastened over the waist. No other clothes were on the dead body. One glass bangle over right wrist and two glass bangles over left wrist were found. There was toe ring white metal over second toe of each foot. The height of the body was 155 cms and the weight was 52 kgs. Froth was coming out from nostrils and mouth of the dead body.
He has further stated that stomach contained reddish liquid about 150 ml. with massive sub-mucous haemorrohages over greater curvature. The smell of kerosene oil was present. He has further stated that opinion was kept pending till the receipt of chemical analysis of viscera and all injuries mentioned, were antemortem in nature, consequent to scuffle. Time since death was about 36 hours. He preserved the blood and viscera to rule out common poison specially organ of phosphorous group. His postmortem report is Ex. PW12/A. He has further stated that on 29/04/2008, Inspector Suresh Kaushik produced an application for getting final opinion regarding cause of death and also submitted the chemical analysis of viscera report dated 15/11/2001 of FSL, which revealed presence of insecticides (organ of phosphorous compound. So, according to his opinion, cause of death was due to acute respiratory distress and paralysis of cardiac and chest musculature as a result of conjunction of organ of phosphorus compound poison. His report is Ex. PW12/B. FSL report has been filed later on. Same is admissible U/s. 293 of CrPC according to which, viscera sealed in parcel No. 1 with the seal of "SNH" was containing stomach wash. Parcel No. 2 sealed with the seal of "KLS Subzi Mandi I/C mortuary AAA hospital" was containing stomach and piece of small intestine of deceased. It was given Ex. '2A' and '2B' was containing piece of liver, spleen and kidney. Ex. '2C' was containing dry brown colour material sticking inside bottle and parcel No. 3 i.e. tin of Baygon Spray,were chemically examined and gave positive tests for the presence of Carbanate Insecticide (Propoxur) which corroborates the cause of death, as deposed by PW12 Dr. K.L. Sharma.
Learned defence counsel has contended that the witnesses i.e. PW6, PW7, PW11, PW13 and PW15 have contradicted each other regarding the manner in which investigation was conducted and detail of the exhibits. He has further contended that PW6 has stated in the cross examination that dibba of Baygon Spray was found immediately on entrance of the house and it was not found in the bed room or bathroom, whereas PW7 has stated in the cross examination that dibba Ex. P11 was lying in the bathroom.
Learned defence counsel has further contended that PW6 has stated that seal after use was handed over to Constable Ved Pal on 07/02/2000, whereas PW7 Constable Ved Pal has stated that he returned back the seal to SI Rajender Singh in the evening of 07/02/2000, which creates doubt whether the articles were seized at the spot or not. He has further contended that if the seal after use was not handed over to independent witness and if it remain with the IO, this gave ample opportunity to the police to manipulate the evidence and in support of the same has relied upon Manpreet Singh & Another Vs. State 2004(1) JCC 1 wherein it has been held that the purpose of handing over seal to an independent witness is a safety value so that police official may not manipulate the evidence subsequently.
Learned defence counsel has further contended that PW6 has stated in the cross examination that vomiting was found in the courtyard of the house, but PW7 has stated that he did not notice any vomiting. Learned defence counsel has further contended that remains of vomiting were not seized in this case. He has further contended that PW11 E. Raja Babu, the then SDM, has stated in the cross examination that so far as he recollects, he did not visit H. No. M- 401, Guru Harkishan Nagar, during inquest proceedings conducted by him or thereafter, whereas PW6 has stated in his examination in chief that on 08/02/2000, he went to H.No. M-401, Guru Harkishan Nagar, alongwith SDM Punjabi Bagh. SDM inspected the place of occurrence and from there, they seized ten articles, as mentioned in seizure memo Ex. PW6/D. Learned defence counsel has further contended that PW6 has stated in the cross examination the house was situated on the third floor, but he does not recollect, if there was any floor over the third floor. Learned defence counsel has further contended that PW6 has stated in the cross examination that he put a lock on house No. 401, Guru Harkishan Nagar and kept the key with himself. Lock was lying inside the house, whereas PW7 has stated in the cross examination that SI Rajender Singh arranged a lock from the ground floor and it was put in the gate of H.No. 401 and then, they returned to nursing home. SI kept the key of that lock. Learned defence counsel has further contended that PW7 has stated in the cross examination that during inspection, SI did not find any item etc. which was required to be seized by the police and he was not associated with the investigation of the case on 08/02/2000.
Learned defence counsel has further contended that PW7 has stated that H.No. 401, Guru Harkishan Nagar, was situated on first floor, whereas PW9 has stated that so far as he recollects, house of the deceased was either on the first floor or on the second floor and this shows that they had not gone at the spot and all the proceedings were conducted, while sitting at the police station.
Ld defence counsel has further contended that PW9 has stated in the cross examination that they reached at the house of deceased at about 3.30 p.m. So far he recollects, house of the deceased was either on the first floor or on the second floor. When they reached at the house of the deceased from mortuary, they found that house was locked. Ex.P1 to Ex. P10 were not found lying in one room. Seal was with SI Rajender Singh, who kept the same with him after use.
Learned defence counsel has further contended that PW13 has stated in the cross examination that smell of organo phosphorous differs from smell of kerosene oil and has further stated that at the time of death of the patient, accused Vinit was present there. He has further contended that PW12 has also stated that smell of kerosene oil was present and injuries sustained by the deceased were consequence of scuffle. He has further contended that PW15 Inspector Somender Pal Tyagi has stated in the cross examination that he does not know, if SDM had gone to the mortuary on 07/02/2000. Again he stated that he does not remember. So, from all these contradictions witnesses cannot be believed regarding the seizure of the articles from the house of accused Vinit and the investigation carried out is doubtful.
Ld defence counsel has further contended that PW11 Sh. E. Raja Babu, SDM Punjabi Bagh, has stated that he does not remember whether on 08/02/2000, he inspected the spot i.e. H.No. 401, Guru Harkishan Nagar and on his directions, SI Rajender Singh seized 10 articles from the said house. He has also seen Ex. PW6/D but is not sure whether the same is bearing his signatures at point Z. He also does not remember, if any of the articles mentioned in seizure memo Ex. PW6/D, were seized from H.No. M-401, Guru Harikishan Nagar, on his directions by SI Rajender Singh. Even he has stated that he will not be able to identify the articles, if shown to him.
In respect of the above contentions of Ld defence counsel, SI Rajender Singh has explained that SDM could not come at mortuary on 07/02/2000 as he informed him that he had many cases and would not be in a position to come, so PW6 has also explained as to why articles were seized on 08/02/2000. He has stated that exhibits P1 to P10 were not seized on 07/02/2000 as the photographer was to be called to take the photographs. Photographer came on 08/02/2000 and after taking the snaps, exhibits were seized. In view of the FSL report regarding cause of death, smell of kerosene oil is not material in any manner because presence of smell of kerosene oil was due to the fact that one half burnt newspaper was found at the spot and one saree was also found burnt from some places.
PW11, the then SDM has not stated that he did not visit on 08/02/200 at the house of accused Vinit Vats, but has stated that he does not remember whether he visited the house of accused Vinit on 08/02/2000. So, this cannot be treated as contradiction. About the dibba lying either at the bathroom or at the entrance of the house is not much material to disbelieve the testimonies of the witnesses because witnesses have corroborated each other regarding dibba Ex. P11 from the house. More so, accused himself has admitted that he removed the deceased from bathroom to another room so place of occurrence must have been disturbed.
Regarding other contradictions, as pointed out by learned defence counsel the same are also not material and are minor in nature and on these contradictions, witnesses cannot be disbelieved. Whether house was on first floor, second floor or on third floor is a matter of observation. Sometimes, one person count ground floor as first floor and sometimes, it is counted as ground floor. More so place of occurrence is not disputed by the accused. Regarding the lock, whether was lying in the house itself or whether lock was arranged after inspection is also not material in any manner because there was no possibility of planting any case property/exhibits as till that time, cause of death was not known to anyone and the postmortem on the dead body of deceased was conducted on 08/02/2000 at about 3 p.m., whereas Dibba of Baygon Spray had already been seized vide memo Ex.PW6/B on 07/02/2000 and rest of the articles were seized on 08/02/2000.
PW6 has stated that seal after use was given to Constable Ved Pal on 07/02/2000, whereas PW7 has stated that he returned the seal on the evening of 07/02/2000. So, there is no infirmity or illegality in the same because PW6 has stated that he deposited both the parcels i.e. stomach wash and sealed dibba in the malkhana on the same day and it cannot be presumed that both these articles were deposited after return of the seal, so there was no possibility of tampering the same.
Learned defence counsel has further contended that no public witness has been joined to the proceedings regarding recovery/seizure of articles/case property either on 07/02/2000 or 08/02/2000, hence, witnesses of the prosecution cannot be relied upon. In support of his contention, he has relied upon Satish Kumar V. The State, 1996 CRI.L.J. 265 wherein it has been held that if no effort is made by the IO to join any independent witness at the time of alleged recovery, then evidence of recovery is suspicious.
Learned defence counsel has further contended that to prove offence U/s. 304 B of IPC, prosecution has to prove demand of dowry, which prosecution has not been able to prove and in support of the same has relied upon Appasaheb & Another Vs. State of Maharashtra 2007(1) C.C. Cases (SC) 353 wherein it has been held that since an essential ingredient of Section 304B i.e. demand of dowry is not established, conviction of appellants cannot be sustained.
Learned defence counsel has further contended that mere evidence of cruelty and harassment is not sufficient to prove Section 304B of IPC. In support of the same, he has relied upon Narayanamurthy Vs. State of Karnataka & Another 2008 (2) JCC 1372 wherein it has been held that it is to be established that "soon before death", deceased was subjected to cruelty or harassment by her husband for or "in connection with demand of dowry".
Learned defence counsel has further contended that Constable Suresh Kumar through whom copy of FIR was sent to senior police officers and Ilaka Magistrate has not been examined. He has further contended that PW14 Inspector Suresh Kaushik has stated in the cross examination that copy of FIR according to the endorsement of learned Metropolitan Magistrate was received on 11/02/2000 at 10 a.m. and has further contended that delay in forwarding of copy of FIR to Magistrate is not explained satisfactorily. So, it has adversely affected the case of prosecution. In support of the same, he has relied upon Rajeevan and Another Vs. State of Kerala 2003 Supreme Court Cases (CrI) 751 and has further relied upon Suresh Chaudhary Vs. State of Bihar 2003 Supreme Court Cases (Cri) 801 wherein it has been observed that inordinate delay of 1½ days in sending the report to the Magistrate after the registration of the complainant, in absence of any explanation therefor, held, the said delay contributed to the doubtful circumstances surrounding the prosecution case.
FIR was lodged on 09/02/2000 and special report was sent through Constable Suresh to senior police officers and Ilaka Magistrate. This witness has not been cross examined by learned defence counsel as to when the copy of FIR was delivered to the concerned Metropolitan Magistrate. However, according to cross of PW14 Inspector Suresh Kaushik, it has come in the cross examination that according to endorsement of learned Metropolitan Magistrate appearing on the copy of FIR Ex. PW1/A, it was received on 11/02/2000 at 10 a.m. Then it does not mean that it has created any doubt on the case of the prosecution and in support of the same, I relied upon Bijoy Singh and Another Vs. State of Bihar 2003 Supreme Court Cases (Cri) 1093 wherein it has been held that if there is a delay in sending copy of FIR, then it does not render the entire case of prosecution doubtful, but puts the Court on guard. Delay cannot be reasonably explained. In case of non explanation, Court should be cautious and should minutely examine the prosecution version to ensure that there was no false implication of innocent persons.
It is not a case, where FIR has been recorded on the statement of complainant directly, but the case has been registered on the statement recorded by the SDM. So, there could not have been any probability of FIR anti dated or post dated.
It has not been pointed out by learned defence counsel as to how it has raised doubt on the case of the prosecution, if the copy of FIR was received by learned Metropolitan Magistrate on 11/02/2000 at 10 a.m. Regarding arrest of the accused, PW6 has stated in the cross examination that from the mortuary, they directly had gone to H.No. M- 401, Guru Harkishan nagar. They had called the accused, who accompanied them to the house, when they reached there for the first time. Accused had come to the house directly, whereas they had gone there from mortuary. Accused was called by making a telephone call to him.
PW8 Constable Sunder Lal has stated that on 19/02/2000, he was posted as Constable at PS Paschim Vihar. On that day, he alongwith SI Suresh Kumar and Constable Harish Kumar went to M-401, Guru Harkishan Nagar. They arrested accused Vinit Vats. Arrest memo was prepared and his person search was conducted,which was seized by preparing a memo. PW8 has further stated that accused was arrested when he was discharged from Maharaja Agrasen Hospital.
PW10 HC Harish Kumar has further corroborated PW8 and has stated that on 19/02/2000, he was posted as Constable at PS Paschim Vihar. On that day, he alongwith Constable Sunder Lal and SI Suresh Kumar went to Maharaja Agrasen Hospital to arrest accused as accused was admitted there. When they reached at the gate of the hospital, they saw accused Vinit coming out of the hospital. SI Suresh Kumar already knew accused Vinit Vats as he was earlier interrogated by him. So, he arrested accused Vinit. His personal search was conducted vide memo Ex. PW10/A. PW14 Inspector Suresh Kaushik has stated that he arrested accused Vinit on 19/02/2000 and conducted his personal search vide memo Ex. PW10/A. From the Cross of PW8 Constable Sunder Lal, it has come on record that accused was admitted in the hospital because of a case was registered U/s. 309 of IPC against him. This relates back to the disclosure statement of accused.
In view of the depositions of PW2 Santosh Sharma and PW5 Radhey Shyam, who have corroborated each other, beyond reasonable doubts that when they reached at the Sodi Nursing Home, accused Vinit stated to PW2 Santosh Sharma that she can give whatever punishment she wants to give him as he had killed Vimmy by giving her poison. PW2 has also stated that when the dead body of Vimmi was being taken out of Nursing Home, then accused Vinit touched the feet of Vimmy and beg pardon stating that he had killed her by giving poison.
PW5 has also stated that when they inquired from Vinit regarding the incident as to how it happened, then accused Vinit replied that "Vimmi ko maine jahar de kar maar diya, Mujhe maaf kar do.
PW5 has also stated that at that time accused repeatedly told by touching the feet of Vimmi that "maine tujhe maar diya, mujhe maaf kar do"
Ld APP for State has contended that evidence of PW2 and PW5, to this extent be treated as Extra Judicial Confession of accused Vinit. On the other hand, Ld defence counsel has contended that PW5 has himself has stated that at that time, Doctor and two police officials were present, so it cannot be believed and cannot be treated as Extra Judicial Confession.
In my view, it was made by the accused voluntarily without any pressure from any side and later on accused became conscious to this fact and gave statement to the SDM Ex. PW11/D, narrating the facts in his defence and specifically stated that when he was bringing Vimmi out of Nursing home, then he had told that he had killed Vimmi by giving her poison, but at that time police and family members of Vimmi were present, but he had not given poison to Vimmi.
There was no occasion for accused to give his statement to the SDM and the only purpose to give his statement to the SDM Ex. PW11/D, was to retract from his Extra Judicial Confession.
It has been held in AIR 2008 SC 2819 Kusuma Ankama Rao Vs State of A.P that "An extra judicial confession, if voluntarily and true and made in a fit state of mind can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon th e veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witness who speak to such a confession. Such a confession can be relied upon and conviction can be founded there and if the evidence about the confession comes from the mouth of the witness, who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out it may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of crime and nothing is omitted by the witness which may mitilate against it. After subjecting the evidence of the witness to rigorous test on the touchstone of credibility of extra judicial confession can be accepted and could be basis of a conviction if it passes the test of credibility."
It has been further held that " The law is clear that a confession cannot be used against the accused person unless the court is satisfied that it was voluntarily and at that stage the question whether it is true or false does not arise. In the facts and circumstances surrounding of making of confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in a evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some agency employed by them for the purpose of securing such a confession. The question whether the confession is voluntarily or not is always a question of fact."
I have gone through the cross examination of PW2 Santosh Kumar and PW5 Radhey Shyam, both PWs have not been cross examined by Ld defence counsel on this aspect that no such confessional statement was made by accused Vinit in their presence in Sodi Nursing Home. Even it is not suggested that no such confessional statement was made by accused in their presence.
It is suggested to PW2 Santosh Kumar in her cross examination that in the night of 06/02/2000, Vimmi had asked accused Vinit to vacate the house on the next day, on which accused had stated that he was trying to search a house which may take some time. So Vimmi felt annoyed, became angry and put fire in the room which was extinguished by accused Vinit. On seeing Vimmi in angry mood, Vinit left the house and returned at about 10.00 pm and found Vimmi unconscious as she had drunken the spray. All these suggestions have been denied by PW2. It is also suggested to PW2 that Vimmi had cancer in her uterus and that she always used to remain frustrated and depressed for not conceiving, so out of depression and anger she herself consumed the spray. This suggestion has been denied by PW2.
PW5 has not been cross examined on any aspect of the extra Judicial confession made by accused Vinit in Sodi Nursing home in their presence. PW5 has denied the suggestion that deceased Vimmi had herself consumed baygon spray due to quarrel with her husband on the question of vacation of Guru Harkishan Nagar house and that she had also burnt the material in the room. Even otherwise both the suggestion are contradicted with each other given to PW2 and PW5 in this respect. As PW2 and PW5 have not been cross examined on the aspect of extra Judicial confession, so the same cannot be disbelieved.
In support of the same, I rely upon 2009 (163) DLT, 658 tilted as Rakesh Kumar Vs State, where it has been held that "in absence of cross examination of the witness on any relevant aspect, the correctness of the statement made by witness cannot be disputed."
It cannot be said that accused Vinit did not make extra Judicial confession voluntarily and accused Vinit was not in fit stated of mine. It has been made voluntarily by him and he was not provoked by anyone. It was made by accused in a very natural manner, spontaneously, when the family members of deceased Vimmi made inquiries from him as to what happened. At that time, accused could have also said that Vimmi herself had consumed baygon spray, but the truth came out from him at that juncture and he made extra judicial confession voluntarily without any provocation and pressure from any side. At that time, accused Vinit was not under control of the police in any manner. This fact is also fortified with the conduct of the accused as immediately on the next day, accused made a statement before the SDM Ex. PW11/D to retract from the extra judicial confession which statement at all was not required to be made by the accused to the SDM, but due to his guilty conscious mind, he appeared before the SDM and retracted from the extra judicial confession.
As per deposition of PW6 SI Rajender Singh accompanied by PW7 HC Ved Pal Singh, he reached on the same day i.e. 0702/2000 at the house of accused Vinit and one dabba of baygon spray was seized from the spot by the IO after sealing the same. The contradictions as pointed by Ld defence counsel, which have come in the cross examination of PW6 and PW7 are minor in nature, because it is not disputed by the accused. In his statement recorded u/s 313 Cr.PC, accused has stated that he left his house at about 10/10/30 pm and came back at about 12 in the night and found that the door of the house was lying opened in the position he had left. His wife was lying on the bed which was in the Hall of the house. He thought that she was lying or sleeping. He tried to talk to her but he felt smell of Baygon spray. He gave her lemon water but she could not take it. He tried to get her vomited but with no result. She passed stool. He lifter her and laid her down on the bed in another room and changed her clothes. So if the place of seizure of baygon spray is different in the statements of both PW6 and PW7, then it does not mean that same was not seized from the spot or was not seized on 07/02/2000 by the police, which was lying there.
On 08/02/2000, PW6 again reached at the spot with PW9 Ct Raj Singh and seized 10 articles from there i.e. hair clip Ex. P1, the pieces of broken bangles as Ex.P2, one spray gun Ex.P3, one piece of newspaper half burnt Ex.P4, one saree of blue and red colour with some portion of its burnt Ex.P5, one salwar ExP6, one jumper Ex.p7, one salwar red colour Ex.P8, one bed sheet Ex.P9 and one mobile phone Ex.P10.
In this respect accused Vinit has stated in his statement recorded u/s 313 of Crpc that on the night of incident, Vimmi was pressurizing him that the house of Guru Hari Kishan Nagar was to be changed immediately because Ved Parkash who had arranged the house for them was pressuring Vimmi's parents to get the house vacated immediately. She said that in any case the house have to be changed on the next date. He told her that he had already talked to a property dealer and that arrangement of a house takes some time. She said that she did not know anything but wanted the new house by next day. He told her that it was not possible to arrange the house by next day. On this she became annoyed and some altercation took place between them. Out of anger, she put fire in the articles lying in the room which he had set aside. She told that she will prefer to live on the footpath on the next day but not in that house. On this, he had stated that he had just now again go to the property dealer and will come back. So at about 10/10.30 pm, he left the house and came back at about 12 in the night.
There is no supporting evidence to the fact that accused Vinit left the house at about 10/10.30 pm and came back at 12.00 noon in the night. The fact of putting fire is corroborated with the articles seized from the spot on 08/02/2000, i.e. half burnt newspapers and one saree burnt from some places.
The contention of Ld defence counsel that SDM has not corroborated this fact that on 08/02/2000, these articles were taken into possession from the spot is not tenable because PW11 E. Raja Babu, the then SDM, PS Punjabi Bagh has stated that he does not remember, whether he had gone to house of accused and these articles were seized in his presence. PW11 has not denied that he had not gone to the house of accused on 08/02/2000 and articles were not seized in his presence. So it cannot be stated that PW11 has not supported the case of prosecution in this respect and seizure of these articles from the spot Ex.P1 to Ex.P10 was not made from the spot by IO along with Ct on 08/02/2000.
According to the deposition of PW13, Dr. Subhash Sodi, the patient was brought in his nursing home at about 4.00 am with the history of poison with baygon spray taken at 10.00 pm. He prepared the MLC of deceased Ex P13/A. He has further stated in the cross examination that Vimmi was brought dead to his nursing home.
Postmortem report has been proved by PW12 Dr. K.L. Sharma. According to him, he observed multiple abrasion were on the both side of cheeks, both nostrils and both angles of mouth, these were circular and reddish in colour. Two abrasions over outer angle of left eye-lid, red coloured. He has further observed that lips were bruised and abraided at muco-cutaneous junction. Smell of kerosene oil was present. According to his opinion, injuries were ante-mortem in nature, consequent to scuffle. Time since death was 36 hours.
Postmortem was conducted on 08/02/2000 at about 3.00 pm. So time of death comes to 3.00 am in the intervening night of 06/07.02.2000, which corroborated with PW3 Dr.13 Dr. Subhash Sodhi, who has stated that Vimmi was brought dead in his nursing home at about 4.00 am. So when accused Vinit removed Vimmi to Nursing home at about 4.00 am, she had already died at about 3.00 pm according to postmortem report.
Now let us see, how Vimmi has sustained injuries. The external injuries as observed by PW12 Dr. K.L. Sharma are multiple abrasions on both sides of cheeks, both nostrils and both angles of mouth, these were circular and reddish in colour. If one person consumed poison himself/herself, then such injuries cannot be sustained by that person on his/her face in any manner. These injuries can be sustained by a person only when that person has been administered poison forcibly by some other person, while holding the face of that person forcibly and on resistance after blocking the nostrils, a person can be forced to consume the poison. So from these injuries which are unexplained shows that baygon spray was administered to Vimmi forcibly by accused Vineet, which corroborated with his extra judicial confession.
According to PW12 DR. K.L. Sharma, cause of death as per Ex. PW12/B, after going through the FSL report has been given as acute respiratory distress and paralysis of cardiac and chest musculature as a result of conjunction of organ of phosphorous compound poison.
According to FSL report, which is per se admissible u/s 293 Cr.PC Ex.1,Ex.2A,Ex.2B,Ex.2C, Ex.3 i.e. stomach wash of the deceased, stomach and piece of small intestine with contains kept in a scaled jar, pieces of liver, spleen and kidney, dry brown colour material sticking inside bottle, one tin container labeled by manufacturer as baygon spray sealed with the seal of RS and KLS were examined.
On chemical examination exhibits 1, 2A, 2B, 2C and 3 gave positive tests for the presence of carbanate insecticide propoxur.
So the prosecution has been able to prove that the tin of baygon spray was sealed with the seal of 'RS' at the spot by PW6 SI Rajinder Singh and was sent to FSL intact, which was examined by the FSL and was found containing colourless liquid stated to be Baygon spray and other exhibits which were sealed with the seal of KLS, intact containing stomach wash, stomach and piece of small intestine, dry brown material, etc. These were examined by FSL and as per exhibits i.e. Ex.1,2A,2B,2C and 3, gave positive tests for the presence of carbana-p[[te insecticide propoxur.
According to the explanation given by and, in his statement u/s 313 Cr.PC, on the cause of vacating the house, Vimmi got annoyed and a scuffle took place between them. Out of anger, Vimmi put fire in the articles lying in the room, which he had to set aside and thereafter he himself left the house at about 10/10.30 pm and came back at 12.00 night and found that the door of the house was lying opened. Vimmi was lying on the bed in the hall of the house. He tried to talk to Vimmi, but he felt smell of baygon. He gave her lemon water, but she could not take it. He tried to get her vomited but with no result. She passed stool. He lifted her and laid her down on the bed in another room and changed her clothes. He called neighbours and tried to get key of some vehicle but none responded. Thereafter, he went to three doctors, but they did not come. So he brought a three wheeler scooter and took Vimmi to sodhi Nursing Home.
It has been held in AIR 2007 SC 848 titled as Bhishnu Prasad Sinha Vs state of Assam that "it is well settled that statement u/s 313 Cr.PC cannot form the sole basis of conviction but the effect thereof may be considered in the light of other evidence brought on record."
In view of the same, explanation given by the accused while recording his statement u/s 313 CrPC can also be considered with evidence brought on record by prosecution.
Firstly there is no evidence brought by accused that he was no present in his house between 10/10.30 pm to 12.00 am night. Secondly, according to the case of prosecution, one mobile phone was also recovered from the house then why he did not inform anyone either in the family of Vimmi or in his family about the position of the Vimmi. Even at 12.00 night, assuming so that he came to his house at 12.00 noon and waited till 4.00 pm and about 4.00 pm, he removed Vimmi to Sodhi Nursing Home, who was declared brought dead by PW13. According to the postmortem report Ex. PW12/A, Vimmi had died at about 3.00 am night, so accused Vineet removed Vimmi to the Nursing home, only after her death, which was of no use and in between 12 pm to 4 am, he did not make any efforts to provide medical aid to Vimmi knowing well that she was serious.
Some broken bangles were also found at the spot, which also shows that either these were broken in the scuffle which took place between deceased Vimmi and accused Vinit, which is not disputed by accused Vinit or at the time of administering poison to Vimmi by accused Vinit during her resistance.
Ld defence counsel has contended that conduct of the accused, itself shows that he is innocent because he himself took deceased to Nursing home and informed his in laws. In support of same, Ld defence counsel has relied upon:-
1) 1977 CRI, L.J. 955 titled as Ram Das Vs State of Maharashtra,
2) Cr.L.J, on CD ROM 1965-2006 titled as Vijay Kumar Yadav and ors. Vs State of Bihar and
3) 2006 II AD (Cr.)M.P.161 titled as Sarman Vs State of Madhya Pradesh.
It has been suggested to PW2 Santosh Sharma that Vimmi felt annoyed on the cause of vacating of house and she become angry and put fire in the room, which was extinguished by accused Vinit. It has been denied by PW2. It has also been suggested that on seeing Vimmi in angry mood, Vinit left the house and returned at about 10.00 pm and found Vimmi unconscious as she had drunken the spray. This suggestion is not in consonance with the explanation given by the accused himself recorded u/s 313 Cr.PC, wherein he has stated that he came back to his house at about 12.00 in the night. Accused Vinit has no where stated in his explanation given in his statement recorded u/s 313 Cr.PC that Vimmi committed suicide by consuming baygon spray because she was suffering from cancer in her uterus and she used to remain depress for not being able to conceive.
Contradictory suggestions have been given to PW5 Radhey Shyam that Vimmi had herself consumed baygon spray due to quarrel on the question of vacating the house of Guru Harikishan Nagar house and that she had also burnt the material in the room. This suggestion has also been denied by PW5. So the suggestion given to PW2 and PW5 regarding the defence/explanation of the accused are in contradictions with each other and also in contradiction with the explanation of accused given by him u/s 313 of Cr.PC. It has not been proved by accused in any manner that Vimmi was suffering from uterus cancer and was under stress and depression for not conceiving child.
In support of this, I rely upon AIR 2007 SC 2647 Arvind Kumar Vs State of Madhya Pradesh, wherein it has been held in that "the extent of burn injuries found on the body of deceased would go to show that no efforts whatsoever were made by the accused to save his wife from committing suicide though he was present in the house, when such incident took place. He has not even bothered to call the doctor and it was his elder brother who came from other house and immediately contacted doctor and informed him about the precarious condition of Sadhna. On the scrutiny of the entire evidence on record, we are of the view that conduct of the accused husband was pathetic which is an additional circumstances in the link of ocular version of PW5, PW9 and PW10, who have supported the prosecution case in its entirety."
In the present case also assuming that accused Vineet came back at his house at 12.00 in the night and saw Vimmi lying there. He removed her in another room and tried to cause vomiting to Vimmi, but did not inform anyone about the serious condition of the Vimmi nor he took Vimmi to hospital/nursing home and from 10.00 pm to 4.00 am in the night, Vimmi remained lying in her house unattended, knowing well by the accused that she was serious. What it shows that he wanted to get rid of Vimmi in all circumstances and intentionally did not provide any medical aid to Vimmi and when she died, he took her to Sodhi Nursing home and informed his in laws.
So the contention of Ld defence counsel regarding the conduct of accused is not tenable in any manner. The conduct of the accused was rather to gain time so there would not be any possibility of survival of Vimmi to disclose true facts before anyone and he removed Vimmi to nursing home when she had already died.
The contentions of Ld defence counsel regarding smell of kerosene oil, which was found and case of prosecution is also doubtful about the cause of death of the deceased. In my opinion the same is not forceful in any manner because according to the postmortem report, cause of death was due to acute respiratory distress and paralysis of cardiac and chest musculature as a result of conjunction of organ of phosphorous compound poison.
It has also been held in AIR 200 SC 673 titled as Tayyab Kahn Vs State of Bihar that "mere absence of viscera report showing that where death caused on account of consumption of poison does not make any difference to the fate of the case and facts remain that it is a case of unnatural death.' It has also been held in AIR 2005 SC 785 titled as Kamesh Panjiyar Vs State of Bihar that "if no evidence showing that death of deceased was due to abnormal circumstances nor any material to explained his injuries on the neck of the deceased has not proved that death was normal. Then the plea of the accused that possible cause of death was not ascertainable is not tenable."
It has also been held in AIR 2005 SC 3546 titled as Satbir Singh Vs State of Haryana that "If there is evidence showing deceased was harassed for not bringing more dowry then ingredients of section 304B was established by prosecution and onus lies on accused to revert the presumption u/s 113B of Evidence Act."
In view of the above discussion, the contentions of Ld defence counsel are not forceful and are not tenable in any manner. The judgments relied upon by the Ld defence counsel are not applicable to the facts and circumstances of the present case.
Accordingly prosecution has been able to prove beyond reasonable doubts that:-
1) Death of Vimmi was caused by administering her poison i.e. baygon spray by accused Vinit corroborated with extra judicial confession and injuries sustained by the deceased and it was otherwise then under normal circumstances.
2) That Vimmi died within 7 years of her marriage.
3) That deceased Vimmi was subjected to cruelty and harassment by her husband and her in laws before her death.
4) That deceased Vimmi was treated with cruelty and was harassed physically and mentally on account of the demand of dowry.
5) That such cruelty and harassment was caused mentally and physically to deceased Vimmi soon before her death in November 199 and December 1999.
So the prosecution has been able to prove the offence u/s 304B of IPC against the accused beyond reasonable doubts for which accused is held guilty and convicted for the same.
Announced in Open Court on 18/02/10 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi 2,4,6,8,10,12,14,16,18,20,22,24,26,28,30,32,34,36,38,40, 42,44,46,48,50,52,54,56,58,60,62,64,66,68,70,72,74,76,78, 80,82,84, 1,3,5,7,9,11,13,15,17,19,21,23,25,27,29,31,33,35,37,39,41,4 3,45,47,49,51,53,55,57,59,61,63,65,67,69,71,73,75,77,79,81, 83,85 IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 72/1 Date of Decision: 18/02/10 Date of order on sentence: 23/02/10 State Versus Vinit S/o Gyanchandra R/o M-401, Guru Harkishan Nagar Paschim Vihar and H. No. 528, Nimri Colony Ashok Vihar, Delhi FIR No. 85/2000 PS : Paschim Vihar U/s. 498A/304B IPC ORDER ON SENTENCE 23/02/10 Ld APP for State assisted by Sh. S.C. Bhuttan counsel for complainant.
Convict Vineet Vats with counsel Sh. N.K. Sharma I have heard Ld defence counsel and Ld APP for state on the point of sentence.
Ld defence counsel submits that convict Vineet :-2-:
Vats is aged about 38 years and and has faced trial since 2000. Ld defence counsel further submits that convict has his wife and two children to support. He is working as Direct Selling Agents for private banks. He is sole bread earner of his family. His both children are aged about 5 and 7 years and both are school going. His wife is not earning and is a house wife. Ld defence counsel further submits that considering the above facts and circumstances, minimum sentence be awarded.
Ld APP for State submits that convict has committed a heinous crime and after committing the offence as proved, he has again remarried himself within three years of the death of his previous wife. Ld APP for State further submits that the conduct of the convict be also considered at the time of death of deceased Vimmi and maximum sentence be awarded.
Section 498A of IPC is punishable with imprisonment which may extend to three years and shall also be liable to fine, Section 304B is punishable with imprisonment, which shall not be less than seven years, but which may :-3-:
extend to imprisonment for life Considering the above facts and circumstances and gravity of the nature of offence as proved against the convict, sentence of three years SI is imposed with fine of Rs.25000/- for the offence punishable u/s 498A of IPC. In default of payment of fine, convict shall also undergo SI for 9 months.
Sentence of 10 years SI is imposed for offence punishable u/s 304B of IPC.
Both the substantive sentences of imprisonment, shall run concurrently. Convict remained in custody in this case for about three months and 28 days. Benefit of section 428 CrPC be given to convict.
Ld counsel for the complainant has submitted that compensation be awarded to the parents of the deceased Vimmi, out of the fine. Accordingly, Rs.20,000/- be given as compensation to the parents of deceased Vimmi, out of the fine, if deposited and after expiry of the period of appeal, if no appeal is preferred.
Fine not deposited.
Convict is remanded to serve the sentence. File be consigned to Record Room.
Announced in Open Court on dated 23/02/2010 (Virender Kr. Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi