Delhi District Court
State vs . 1) Ram Avtar on 4 February, 2016
IN THE COURT OF ASJ/FTC (eCOURT)/WEST, TIS HAZARI COURTS : DELHI
SESSIONS CASE No. :44/13
ID No. 02401R0153442013
FIR No. : 10/2013
U/s : 498A/304B IPC
P.S. : Tilak Nagar
State Vs. 1) Ram Avtar
S/o Sh. Ghanshyam Khinchi
2) Phoola Devi
W/o Sh. Ghanshyam Khinchi
3) Krishan Kumar
S/o Sh. Ghanshyam Khinchi
4) Ghanshyam Khinchi
S/o Sh. Ram Pal Kinchi
All resident of:
A-171, Laxmi Naryan Puri,
Durbal Nath Bagchi, Mandi
Khatikan, Jaipur, Rajasthan.
Offence complained of : 304-B/498-A IPC
SC No:44/13
FIR No:10/13
PS:Tilak Nagar State Vs. Ram Avtar etc. Page 1 of 49
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 11.04.2013
Date of Judgment : 04.02.2016
J U D G M E N T:
1 Smt. Savitri was married with Sh. Ram Avtar on 17.05.2011. In the marriage the dowry was given as per the demand and the status of the family of the girl. Five FDR's of Rs.50,000/- each were also given which were in the joint names of Savitri and Ram Avtar. After 2-3 days of marriage when Savitri visited her parental home she told that her inlaws i.e. Ram Avtar, brother-in-law, mother-in-law and father-in-law had taunted her that in the marriage they expected a big car and huge cash. They also started harassing her. After the marriage Ram Avtar got one FDR encashed on the pretext of taking motorcycle which he has never taken. He also demanded the entire salary from Savitri from the date she joined the service upto marriage. He also demanded the bank passbooks, FDR's and ATM cards which she had not given but in December 2012 Ram Avtar again asked for the bank Passbooks, FDR's and ATM cards on the pretext that he has to SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 2 of 49 purchase a car and also the house. Thereafter, Savitri handed over these documents to him but when Savitri realized the intention of Ram Avtar that he wanted to spend all this money on the marriage of his brother Kishan and the car to be sent to Jaipur on that Savitri handed over all those documents to her parents. In February 2012 Ram Avtar took Rs.50,000/- for giving earnest money for purchase of a house. On 28.12.2012 there was Katha in the parental house of Savitri but she did not join. She told that Ram Avtar had come to know that she had sent all her passbooks, FDR's and ATM Cards to her parental house and he had asked her to bring all those documents and when Savitri refused he also harassed her. In February 2012 Savitri was admitted for pre-mature delivery at Kukreja Hospital, regarding payment of that also both had quarreled with each other. After the delivery Savitri went to her parental home at that time also the mother-in-law of Savitri asked for the purchase of house and on refusal Ram Avtar misbehaved with his mother-in-law Smt. Dhanni Devi. In August 2012 Ram Avtar took insurance policy of Rs.80,00,000/- (Eighty Lacs) and those documents are in possession and custody of Ram Avtar.
2. On 02.01.2013 Dalip Kumar received a call from his brother Manoj Kumar to reach police station Tilak Nagar. At 8:30 SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 3 of 49 pm he reached there and came to know that Savitri had died. He informed police that he had suspicion that Savitri had been murdered by Ram Avtar, his mother Phoola and father Ghanshyam and brother Kishan and may be other relatives. One suicide note was also found on the spot which reads as under.
मे सािवतरी आतमहतया कर रही हूँ इस के िलए मै सवंय िजममेदार हूँ कयोिक मै इस दुिनया के लायक नही हूँ मै न तो एक अचछी बेटी, न एक अचछी बहन, न अचछी पती, न अचछी बहूँ और न ही एक अचछी मा बन पाई इसिलए मै अपने आप को खतम कर रही हूँ In the post-mortem report doctor opined the manner of death is suicide and cause of death is Asphyxia caused by ante mortem ligature hanging. After completion of investigation charge sheet was filed. As the relatives were not arrested at that time therefore, supplementary charge-sheet against against Kishan Kumar, Ghanshyam and lateron against Phoola was filed. Ld. MM after complying with provisions of Section 207 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 304B is exclusively triable by the Sessions Court. All the accused were charged for the offences punishable u/s 498A and 304B IPC to which they pleaded not guilty and claimed trial.
3. Thereafter, the case was fixed for prosecution evidence.
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 4 of 49
4. Relatives of Deceased 4.1 Prosecution examined Vijay Rajora as PW-1. He is the brother of the deceased. He fully supported the case and deposed that Savitri was his sister married with Ram Avtar on 17.05.2011 according to Hindu customs and rites in the marriage gift and dowry articles were given according to the status. On 28.12.2012 there was a Katha of Lord Satyanarain in their house and accordingly they invited Savitri and her husband and as well as her mother-in-law but they did not join. On 29.12.2012 he visited the matrimonial house of Savitri at A-116, Ganesh Nagar, Tilak Nagar and met Savitri. She was sad at that time. Mother-in- law was in the bathroom. On inquiry she told him that her inlaws are very greedy and they make demands daily. They harassed her mentally and physically for their demand of dowry and had also beaten her. They are demanding her salary amount from the date she joined the service till the marriage. She also stated that her father-in-law and brother-in-law are about to come to take the money of her salary. Thereafter, he left her home and told the entire facts to his brother and other family members. They decided to sort out the issue socially and take the issue to the known persons. On 02.01.2013 Savitri was killed by the accused Ram Avtar, Kishan, Ghanshyam, Phoola Devi and other relatives by SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 5 of 49 making conspiracy. This witness along with his brother visited the police station and lodged the complaint. SDM also recorded the statements. He also identified the dead body of his sister in DDU hospital.
During cross-examination he stated that he is an Advocate by profession. He alone reached the police station at about 7:00 or 7:15 pm in the evening on 02.01.2013. He called his brothers lateron in the police station. Ram Avtar informed him on telephone asking him to reach his house immediately on inquiry also he did not tell anything. He stated that he does not remember as to whether he entered into a rent agreement with his sister before marriage in respect of her residing in the house and was also issuing rent receipt in name of her sister before her marriage. He denied the suggestion that he had not answered this question deliberately despite knowledge. He also denied the suggestion that he refused to give statement to the SDM on 03.01.2013 when SDM asked him to give the statement. He volunteered that they requested the SDM to take their statement after cremation and thereafter the SDM gave the date of 07.01.2013. The complaint of 02.01.2013 was only verbal and was not written. He denied the suggestion that neither he nor any of his family members had ever taken any money from Savitri or accused Ram Avtar. Phoola Devi SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 6 of 49 came to Delhi from Jaipur while his sister was admitted in Action Balaji hospital for delivery. He came to know about insurance police of Rs.80,00,000/- (Rupees Eighty lacs) after the death of his sister. He does not know if Ram Avtar also got himself insured. He is also not knowing the amount of premium, also does not know when Kishan and Ghanshyam last time visited Delhi before the death. He does not know if the sister was having bank account in Dena Bank where brother Dalip was working or if she was having four accounts. Dalip told him that Savitri had come to take Rs.50,000/- for purchase of motorcycle on the asking of Ram Avtar which he gave to Savitri and cheque in the name of Rs.50,000/- was given to Dalip in lieu of that payment. He stated that he did not tell about this fact to the IO but the statement of account was handed over to the police. He stated that his sister never told him that his son was ill and was down with fever from 25.12.2012 to 30.12.2012. He did not make any complaint to the police about demand of dowry. He did not visit the house of his sister on 01.01.2013. He stated that he visited the house of accused on 05.01.2013 along with family members. He and his family members were present at the house of accused Ram Avtar when he called the police because the accused persons wanted to run away. He denied the suggestion that he and his family members SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 7 of 49 have taken a huge amount from deceased Savitri after encashing the FDR's. He denied the suggestion that Savitri never told them about any fact as alleged in the statement in respect of bank passbook, FDR's and ATM cards or that Ram Avtar harassed her to bring back the passbook, FDR's and ATM cards. He denied the suggestion that she died because of their negligence. 4.2 Dr. Om Parkash Rajora was examined as PW-2. He also deposed on the lines of PW-1. During cross-examination he deposed that he had also given the list of dowry articles to the IO of the case along with their receipt. During investigation which was seized by the IO. After 2-3 days of marriage Savitri visited their house and told them that her husband Ram Avtar, father-in-law Ghnashyam, brother-in-law Kishan and mother-in-law Phoola Devi had taunted her saying, "हमने तो बडी कार और काफी नगद धन राशी की उममीद की थी" and thereafter they all started harassing her for illegal demand of dowry. After 1/ 1 ½ month of her marriage her husband Ram Avtar got encashed one FDR of rupees fifty thousand on the pretext of purchasing motorcycle but he did not purchase the same. The above said FDR was in the joint name of deceased sister and Ram Avtar. After 3 months of the marriage Ram Avtar demanded entire salary of her sister prior to her marriage till that day. But Savitri did not hand over all her bank passbook, FDR's SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 8 of 49 and ATM cards. In February 2012 Ram Avtar took Rs.50,000/- from elder brother Dalip Singh to give the earnest money against purchase of plot. Savitri gave birth to a pre-mature child. Ram Avtar asked him to make payment in hospital. In December 2012 accused again demanded the whole salary, FDR's, ATM cards as he wanted to purchase i10 car and a house on which she handed over the entire documents to Ram Avtar but after Savitri came to know that Ram Avtar wanted to send the car to Jaipur and wanted to spend the rest of the money in the marriage of his brother Kishan Kumar, he handed over all those documents to them without the knowledge of the accused. During cross-examination he denied the suggestion that after the post mortem the body was handed over to Ram Avtar. He deposed that sister sent the passbook, FDR's and ATM cards through younger brother Manoj in the month of December 2012. Regarding the list of articles he stated that in the list out of articles mentioned in the list some articles were given and some FDR's were given and some cash was given. Refrigerator of 180 liter mentioned in the list Ex.P-3 was not given in lieu thereof cash amount was paid. He admitted that in the list it is not mentioned that refrigerator was not given instead cash was given. On 28.12.2012 Manoj made a call to Savitri to inquire as to why she is not coming to attend the Puja.
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 9 of 49 He does not remember whether he told the SDM about this fact. He stated that SDM told them to give short statement, again said that it was Tehsildar who said them so. He admitted that after delivery of child Savitri went to stay with her parents in-law at Jaipur and before that for 8 to 10 days she has also stayed in her parental home and during that time Ram Avtar used to visit their house daily and also used to call four times a day. He does not remember for how many days or months Savitri resided at Jaipur with her in-laws. He did not visit Jaipur during the period Savitri and her child resided there. He deposed that his other family members visited Jaipur. His wife and wife of Dalip visited Jaipur during this period. He deposed that he did not tell the SDM that her husband used to withdraw her entire salary by using ATM card. He denied the suggestion that Dalip and other family member demanded Rs.50,000/-. He denied the suggestion that Dalip had taken Rs.50,000/- after encashment of FDR No.74366028524 from Savitri on 06.02.2011 through bank. He admitted that on 02.01.2013 they told the SDM that today they cannot give any statement. He denied the suggestion that their sister did not send FDR, ATM Card and Passbook through Manoj to them on 28.12.2012. he denied the other suggestion that when the deceased requested them to refund the amount which they SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 10 of 49 had taken from her they refused and due to that she committed suicide.
4.3 Dalip Singh was examined as PW-15. He also deposed on the same lines as deposed by PW-1 and PW-2. Besides that he also deposed that inlaws of her deceased sister Savitri had withdrawn Rs.10,000/- from the bank account of his sister through ATM card after her death. He also deposed that the landlord and the land lady had deposed falsely.
During cross-examination he deposed that his sister sent the FDR's ATM card, bank passbook to him in the month of December 2012 through brother Manoj and he also told this fact to SDM in his statement. But did not disclose the name of Manoj. He deposed that Phoola the mother-in-law of Savitri used to reside with Ram Avtar after his marriage. Father-in-law and brother-in-law also used to visit occasionally. He denied the suggestion that Phoola came to Delhi to live with Ram Avtar and his family only in December 2012. He admitted that all family members were knowing that in December 2012 Savitri sent all the FDR's, ATM Cards and Passbook to him without the knowledge of her husband Ram Avtar. The list of dowry articles was prepared on 17.05.2011 i.e. on the date of marriage and was signed by him, but he does not remember the date on which it was handed over to the IO. He SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 11 of 49 also stated that the Maruti 800 car mentioned in the list of dowry articles Ex.P-3 at Sl.No.1 was not given instead money was given for purchase of car. He did not tell the SDM that the car was not handed over to Ram Avtar in the marriage and only money was given. He deposed that Ram Avtar demanded Rs.50,000/- from him for giving earnest money for purchase of house which he gave to him. He also paid the bill of Kukreja hospital where his sister was admitted for one day before delivery on the asking of Ram Avtar. But he did not tell this fact to the SDM in his statement. He paid Rs.5 to 6 thousand in Kukreja Hospital at the time of discharge. He denied the suggestion that he did not make any payment at Kukreja hospital. He admitted that his sister had gone to stay at Jaipur with parents-in-law after delivery but he is not certain for how much period she stayed there. He admitted that Kishan personally did not make any demand from them. He vol. that his father made demand on behalf of Kishan in the presence of Kishan. He admitted that deceased was living at second floor at Janak Puri on rented accommodation at the time of delivery. He also admitted that he was posted at Dena Bank Branch Hari Nagar. In the first week of June 2011 Savitri told her that Ram Avtar wanted to purchase a motorcycle, after encashment of FDR given by them on this witness gave the cash of Rs.50,000/- to SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 12 of 49 Savitri and thereafter she gave him a cheque of Rs.50,000/- in lieu of FDR. He did not disclose this fact to SDM in his statement. He did not hand over original FDR's, passbook, ATM Cards to the IO during investigation. He does not remember if his sister informed him that child was under observation of the doctor from 25.12.2012 to 27.12.2012. He admitted that he went to the house of accused Ram Avtar on 05.01.2013 along with his family members. His sister remained with them for about a week after delivery, she did not inform him in respect of any harassment for demand of dowry during her stay in their house after delivery for one week.
4.4 Statement of Manoj Kumar Rajora was recorded as PW-22. He also deposed on the lines of his brothers and corroborated their testimonies.
4.5 Sh. Ved Singh was examined as PW-4. He was the neighbour of accused and deceased. He deposed that the mother- in-law of Ram Avtar met him on 02.01.2013 and told that her daughter-in-law got electrocution in the bathroom, the door is locked from inside. He tried to open the door but failed. Thereafter, he brought an iron rod from the basement of his shop and broke open only piece of the door from the hole so created he saw that wife of Ram Avtar was hanging with the window with the help of SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 13 of 49 cloth. Mother-in-law asked him to cut down the cloth but he refused on which she brought knife from the kitchen and cut the chunni.
4.6 Sh. Harbhajan Singh was examined as PW-5. He is the landlord of the house where Ram Avtar along with family members was residing. During cross-examination he stated that from the date of tenancy only the brother of Ram Avtar had come once or twice and the mother-in-law and father-in-law had never come. Mother-in-law came only 1½ month prior to the incident. He deposed that he had never heard any voice of quarreling between Ram Avtar and his late wife. They were residing in a very peaceful manner. Nobody from locality ever told about quarrel between Ram Avtar and his late wife. On 05.01.2013 the brothers of deceased Savitri along with other relatives came to their house and tried to take away the minor child forcibly. Police was called. Firstly, the gypsy came and lateron local police arrived there. He admitted that the local residents including him pacified the brothers of deceased and the relatives and also Ram Avtar and thereafter the matter was compromised. He never heard any exchange of hot words between the mother-in-law and the deceased. Only one brother of the deceased who is Advocate used to come to the house of deceased and has not seen any other brother or relative SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 14 of 49 visiting her. On 01.01.2013 the brother of deceased who is Advocate came to the house of deceased Savitri and his wife told him that they were talking i.e. the advocate brother and the deceased for one and half hour.
4.7 Babu Lal Bagri was examined as PW-6. He was the mediator in the marriage. He deposed that he also attended the marriage function, there was no demand of dowry at the time of marriage. On 02.01.2013 Ram Avtar informed him on telephone that his wife has met with an accident and requested him to come to Tagore Garden. He immediately reached there. Police had already arrived there and his statement was recorded. During cross-examination he deposed that he was never informed by the parental family of deceased Savitri in respect of any demand of dowry by Ram Avtar or his family members. He was in touch of both the families being mediator and relative but they never informed him about any harassment, cruelty, torture mental as well as physical for any purpose including demand of dowry. He stated that he never visited the house of respective parties after marriage but was in touch on telephone. He was present on 05.01.2013 when brother of deceased along with relatives came to the house of deceased Savitri. Police was called there on the issue of minor child. He pacified the parties and on his intervention both the SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 15 of 49 parties compromised.
4.8 Smt. Paramjit Kaur wife of the landlord was examined as PW-7. She deposed that Ram Avtar along with his family was tenant on the ground floor. Mother of accused Ram Avtar had come to reside with her son about one and a half month prior to the incident. At about 4:30 or 4:40 pm mother of accused told her that her daughter-in-law is not opening the door of bathroom. She also told that she does not know what has happened on this witness called the boy from chaudhary properties who broke the door of the bathroom and saw that Savitri was hanging.
During cross-examination she stated that she never heard any voice of exchange of hot words between Savitri and Ram Avtar, both were living in a peaceful manner, she admitted that on 01.01.2013 brother of deceased Savitri who is an Advocate came to meet her. He remained there for about one and half hour. She also admitted that on 03.01.2013 before cremation brothers of the deceased Savitri along with the relatives came to the house of Ram Avtar. Mother-in-law of Ram Avtar slapped Ram Avtar. They took the search of entire house but she does not know what they had taken away. On 05.01.2013 there was exchange of hot words between the relatives of the deceased and Ram Avtar on the issue SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 16 of 49 of child and thereafter police was called but the matter was compromised. She never heard any voice of exchange of hot words between mother-in-law Phoola Devi and deceased. She also deposed that in the summer vacations Savitri went to her inlaws house at Jaipur thereafter she again went to her inlaws house for 3-4 days.
4.9 Savita Sagar wife of Brijesh was examined as PW-
23. She was colleague officer with the deceased. She deposed that in the year 2008 she was working in Govt. Senior Secondary School, Mohan Garden, Uttam Nagar, morning shift where Savitri was also working. They both came in contact in the year 1999 when they met at Kashmiri gate at the time of verification of documents. Thereafter, they met in the Mohan Garden School. They became good friends. On 17.05.2011 Savitri was married with Ram Avtar. After 3 months of marriage Savitri told her that her in-laws had taken Rs.2.5 lacs to Rs.3 lacs as loan for marriage expenses and that her inlaws are demanding her salary prior to her marriage to repay the loan. She also told her that her husband used to tell her that he loves money and not to her he also said, "तेरे से शादी कर के मै घाटे मे रहा तेरे से अचछे िरशते आ रहे थे". During that period she conceived. She also stated that she wanted to take divorce on this she made her understand to try to adjust in the house and SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 17 of 49 after the delivery of the child there will be normal life. While she was 3 months pregnant she was beaten by her husband and some tension arouse in her family on financial issues. She also wanted to make complaint to the police but again she made her understand not to make the complaint. In the month of October 2011 her father had under gone an open heart surgery and after surgery she went to her parental house to meet her father and at that time she talked with her father on the said issue who told that he will talk to her in-laws. The father expired in November 2011. Her mother also fell ill. Her brother also had undergone a surgery. Due to this tension she gave birth to a pre-mature child. In the month of December there was a puja in the parental house of Savitri but her in-laws did not allow her to attend that Puja. She told this witness that her husband had asked her that if she goes to attend the Puja she had to bring back FDR's, Passbooks, and ATM Cards. Her husband also used to doubt upon her.
During cross-examination she stated that she never had any talk with the family members of the Savitri. After the death she got the telephone number of Manoj and she talked with Manoj on telephone. Her statement was recorded by the police. She was transferred from Govt. Sr. Sec. School Mohan Garden and thereafter she joined at Dwarka either on 14/15 of June 2012. She SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 18 of 49 does not know for how much time Savitri after deliver stayed at Jaipur but she stated that she knew this fact. She did not visit Savitri after the delivery.
5. Scientific Evidence 5.1 Dr. B.N. Mishra was examined as PW-14. He conducted the post mortem report and proved the same as Ex.PW14/A. He also gave the subsequent opinion which is Ex.PW14/B.
6. Recovery Witness 6.1 Smt. Pushpa Bhai Principle of Govt. Girls Senior Secondary School, Uttam Nagar was examined as PW-8. On 10.01.2013 on the request of the police she got open the locker of Savitri who was working as TGT social science. One register was recovered from there which was in her handwriting. The same was seized by the IO in the presence of Dalip Singh Rajora the brother of deceased vide memo Ex.PW8/A and the register is identified as Ex.PW8/A-1.
7. Witness of Investigation 7.1 Ct. Laxman was examined as PW-16. On 16.01.2013 he along with ASI Dharam Pal went to house No.A-116 and from there they arrested Ram Avtar vide memo Ex.PW16/A his personal search was conducted vide memo Ex.PW16/B. He was SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 19 of 49 got medically examined. Ram Avtar made disclosure statement Ex.PW16/C and he also pointed out the place of occurrence vide memo Ex.PW16/D. 7.2 Ct. Ravinder was examined as PW-17. He joined the investigation on 17.01.2013 and during investigation accused handed over the insurance policy of the amount of rupees Seventy Five lakh of his wife which was seized vide memo Ex.PW17/A the policy is Ex.PW17/B. 7.3 Ct. Jitender Kumar was examined as PW-21. On 03.01.2013 he was with the IO and after the post mortem dead body was handed over to the brother and husband of the deceased. He proved the receipt as Ex.PW1/B. During cross- examination he admitted that as per the document Ex.PW1/B dead body was handed over to Ram Avtar against receipt and Dalip Kumar and Vijay Kumar signed only as witness. 7.4 Ct. Anil Kumar was examined as PW-24. On receipt of DD No.25A he along with ASI Dharampal reached the place of incident i.e. A-116, Ganesh Nagar. They found the dead body half piece of chunni hanging with the window. Suicide note was also found. Parents were also informed. SDM was called. The chunni was seized vide memo Ex.PW25/A. Suicide note was seized vide memo Ex.PW25/B and the pen was seized vide memo SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 20 of 49 Ex.PW24/B. One mobile phone make samsung was seized vide memo Ex.PW24/C. He also identified all the articles. 7.5 ASI Dharam Pal the initial IO was examined as PW-
25. And he proved the investigation carried out by him. 7.8 Inspector Rajesh to whom the investigation was handed over after registration of FIR was examined as PW-26. And he proved the investigation carried out by him.
8. Link Witnesses 8.1 HC Janak Raj was examined as PW-3. He produced the register No.19 regarding deposit of exhibits in the malkhana and proved the entries in the same as Ex.PW3/A. He also proved the RC i.e. the copy of register No.21 as Ex.PW3/B. 8.2 Ct. Mukesh Kumar was examined as PW-9. On receipt of information from mobile No.9811060689 he filled the form and also flashed the message. The form is proved as Ex.PW9/A. After sometime he received the message from PCR incharge which was also entered in the form. He received the message at about 16:57:38 hours from the above said number. 8.3 ASI Baljeet Singh was examined as PW-10. On 02.01.2013 he was working as duty officer. On receiving message from wireless operator he recorded DD No.25A copy of which is proved as Ex.PW10/A. Again on 07.01.2013 he was working as SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 21 of 49 duty officer he received the rukka from SHO PS: Tilak Nagar Ex.PW10/B it was prepared on the statement of Dalip Singh. He made his endorsement on the rukka and got the FIR Ex.PW10/C recorded through computer operator. During cross-examination he also proved the DD No:34A as Ex.PW10/DA and DD No.32A Ex.PW10/DB.
8.4 Inspector Mahesh Kumar was examined as PW-11. He is the draftsman working in crime branch PHQ and proved the scaled site plan as Ex.PW11/A. 8.5 Ct. Rajbir Singh was examined as PW-12. On 15.01.2013 on the directions of the IO he took one register and suicide note from malkhana vide RC No.4/21/13 and got the same deposited at FSL, Rohini.
8.6 HC Naresh Kumar was examined as PW-13. He deposed that on the directions of the IO on 06.02.2013 he took one sealed parcel from malkhana vide RC No:29/21/13 along with FSL form and deposited the same at FSL Rohini. On 15.03.2013 he took one sealed pullanda along with copy of FIR and post mortem report from MHC(M) and went to DDU hospital mortuary for obtaining the subsequent opinion. He handed over the same to autopsy surgeon. The doctor opened the pullanda and after examination he gave the subsequent opinion. The chunni was SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 22 of 49 again sealed in the pullanda with the seal of DFMTDDU and returned to him. He returned to the police station and deposited the same in the malkhana. On 06.04.2013 he went to Tis Hazari Courts along with SI Aditi Kumar where Phoola Devi surrendered before Ld.MM. She was formally arrested. On 30.05.2013 he went to FSL Rohini and collected the result which he handed over to the IO. On 08.06.2013 Kishan Kumar was formally arrested and on 24.08.2013 Ghanshyam was formally arrested. 8.7 ASI Ajeet Singh from crime team was examined as PW-18. He reached the scene of crime on 02.01.2013. He gave his report, he also found one suicide note in the bathroom written in the Devnagri script. His report is proved as Ex.PW18/A. 8.8 Ct. Satpal was examined as PW-20. He was the photographer along with the mobile crime team. He proved the photographs as Ex.PW20/A-1 to A-11 and the negatives thereof as Ex.PW20/B-1 to B-11.
9. Witness of Executive Magistrate 9.1 Sh. P.C Sahu the Executive Magistrate was examined as PW-19. He recorded the statements of the witnesses on 07.01.2013. During cross-examination he deposed that he recorded the word to word statement which was stated to him by Dalip Singh and Om Parkash Rajora. He never gave any SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 23 of 49 instruction to Sh. Dalip Singh and Om Parkash Rajora as to which type of statement be recorded in the present case. He never refused to record any of the facts narrated by Dalip Singh and O.P. Rajora. He admitted that apart from the facts stated in statements Ex.PW15/A and Ex.PW2/A nothing has been stated by the witnesses Dalip and O.P. Rajora.
10. Thereafter, prosecution evidence was closed. Statements of accused persons were recorded u/s 313 Cr.PC wherein though the factum of marriage and birth of child was admitted but all other evidence was denied. They wished to lead evidence in defence. Thereafter, the case was fixed for defence evidence.
11. They examined Smt. Guddi as DW-1. She proved the salary record of Smt. Savitri with effect from May 2010 to December 2012 which is Ex.DW1/A running into 7 pages. The salary was directly deposited in the bank account of diseased Savitri.
11.1 Balram Snehi was examined as DW-2. He brought the certificate issued by sh. A.K. Dass under secretary Ministry of Home Affairs to Sh. Ram Avtar. The certificate is Ex.DW2/A. According to certificate Ram Avtar attended the office on 01 and 02 January 2013. during cross-examination he stated that Sh. A.K. SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 24 of 49 Dass under secretary is posted in the Ministry of Home Affairs but he does not know his exact place of posting and has no personal knowledge of the attendance of Ram Avtar.
11.2 Dr. Surender Verma was examined as DW-3. He is Deputy Director Homeopathy wing, Directorate of Ayush. He deposed that Ram Avtar joined their directorate and availed the medical reimbursement, the detail of which had been provided vide letter dt. 20.08.2015. The same is Ex.DW3/A. He availed the medical reimbursement on 6 occasions for which competent authority has sanctioned as per the medical rules. The record has been proved as Ex.DW3/B. 11.3 Sh. Sandeep Puri from Dena Bank was examined as DW-4. He brought the statement of account of deceased of account number 074310025062 from the period 01.09.2012 to 07.01.2013. The attested copy of the same is EX DW4/A running into two pages. The entry reflected at point A shows the withdrawal of Rs.10,000/- by way of the ATM card of the account holder. 11.4 Sh. Krishan Kant Tiwari was examined as DW-5. He brought the record of Kukreja Hospital. The total amount was deposited in advance by the patient i.e. Rs.6,200/- vide receipt dt.10.02.2012. The hospital deducted Rs.2400/- on account of Room rent and Rs.2796/- on account of consultation charges lab SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 25 of 49 test and ultra sound. The remaining amount of Rs.1004/- was returned back to the patient on 22.02.2012 by way of cheque No.895017 dt. 22.02.2012 in favour of Smt. Savitri Devi. 11.5 Dr. Vikas was examined as DW-6. He stated that baby Rutra was brought to him on 25.12.2012. He medically examined the patient and prescribed certain medicines. The prescription slip of 25.12.2012, 27.12.2012, 30.12.2012 and 04.01.2013 are exhibit DW-6/A. The baby was 10 months of age at that time and was suffering from chest infection and loose motion. 11.6 Sh. S.N. Jha, Manager Karvy computer was examined as DW-7. He brought the account statement of folio No:
501269733171 in the name of Ram Avtar and as per record Savitri is the nominee of Ram Avtar same is Ex.DW7/A. 11.7 Sh. Mahinder Pal, TGT Punjabi, Govt. Co-Ed School, Dwarka was examined as DW-8. He brought the joining order according to which Savita Sagar was relieved from Mohan Garden on 13.06.2012 and she joined Dwarka on 14.06.2012 and since then working at Dwarka same is Ex.DW8/A. 11.8 Smt. Pushpinder Kaur was examined as DW-9. She also used to go along with Savitri in the same cab. According to her Savitri join that cab in July 2012. She told that she is having a small child and now planning to purchase their own house at SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 26 of 49 Uttam Nagar of 35 sq yard which would cost them Rs.14 to 15 lacs. In November or December 2012 she started keeping quiet.
On inquiry she stated that she is having tension of Baby. She also told that she had already given bayana for purchase of house but now her brother whom she has lent some money is not returning the same money on the one pretext or the other and if that amount is not returned the Bayana/earnest amount will be forfeitted. We assured her that everything will be okay. Thereafter, there was winter break and on 03.01.2013 cab driver informed about death of Savitri. During course of examination nothing material came on record to discredit the witness.
11.9 Smt. Radha was examined as DW-10. She was deputed to take care of child. She joined her duty on 01.07.2012 on a monthly salary of Rs.5,000/-. Her duty hours were from 8 am to 8 pm. Before reaching her duty Savitri used to leave and Ram Avtar used to be taking care of child. Ram Avtar used to leave at 9:00 am after handing over the child to this witness. At about 2:00 / 2:30 pm Savitri used to return and during this period she used to take care of child and do some kitchen work and after coming from the office Savitri used to take care of child and take rest. Ram Avtar used to return at 7:00/7:30 pm. In December 2012 child fell ill and due to that reason Savitri called her mother-in-law to take SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 27 of 49 care of child. On 30.12.2012 she was relieved from her duty as mother-in-law of Savitri was taking good care of child. Nobody used to visit their house from the house of inlaws of Ram Avtar and inlaws of Savitri. They used to live peacefully.
12. Thereafter, defence evidence was closed. Case was fixed for arguments.
13. I have heard Ld. APP for the State, brother of complainant who is an Advocate and defence counsel and also gone through the record.
14. Ld. APP for the State submitted that in this case prosecution has examined 26 witnesses out of 28 witnesses. Mother of deceased Smt. Dhanni Devi was dropped as she was suffering from old age illness. PW-1, PW-2, PW-15 and PW-22 are the brothers of the deceased. PW-6 is the fufa/ uncle of accused Ram Avtar and was mediator. PW-5 is the landlord, PW- 7 is the landlady, PW-4 is the neighbour and PW-23 is the colleague of the deceased. Ld. APP submitted that it has to be seen and considered that she died leaving her 11 months old child i.e. master Shivam @ Rudra. At the time of marriage the family members of the deceased had given dowry articles as per their own status including five FDR's in the joint name of Ram Avtar and deceased, besides some cash, jewellery and other domestic items SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 28 of 49 and gifts. List of dowry articles is Ex.PW15/D. The copies of FDR are Ex.PW15/F, and the bills of the articles are Ex.PW15/E. ld. APP submitted that the deceased was TGT in social studies and was drawing a salary of Rs.33,000/- approximately per month after all the deductions. PW-1, PW-2, PW-15, PW-22 and PW-23 not only reiterated and reaffirmed the facts and circumstances mentioned in the complaint in their examination in chief regarding the demand of dowry and torture given to the deceased by the accused persons but they have also stood through the test of cross-examination and were consistent. PW-15 is the author of FIR and has duly proved not only complaint but also proved the instances of demand of dowry and cruelty. Accused Ram Avtar induced the deceased to withdraw Rs.50,000/- by encashing FDR on the pretext of purchasing motorcycle and then taking Rs.50,000/- on the false pretext of purchasing property. PW-2 also deposed that after the birth of child accused Ram Avtar and Phoola Devi demanded house from the mother of deceased which fact is corroborated by PW-22 who referred to the comments passed by Ram Avtar who said "अगर मकान नही दे सकते तो बेटी पैदा करने की जररत कया थी". It has also come on record that on 28.12.2012 there was Katha in the parental home of the deceased but despite invitation neither deceased nor any of the accused visited the SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 29 of 49 house. On telephone it was revealed that accused was again demanding FDR, ATM cards and passbook etc and her previous salary and harassing her. The prime witness PW-23 who was colleague and friend of deceased also corroborated entire story of cruelty and harassment given by the accused to the deceased on the pretext of demand of dowry. It has also come on record that she was so much stressed due to cruelties and harassment given by the accused persons that she wanted to take divorce and also willing to make complaint. Her testimony is also consistent with the testimony of brothers of deceased. Smt. Phoola Devi was also present at the time of alleged incident as deposed by PW-5 and PW-7. Ld. APP submitted that all these facts clearly establish that accused used to harass and torture deceased in order to get his demand of dowry fulfilled due to which she died unnatural death by committing suicide on 02.01.2013. On that day itself a complainant was made to the SHO regarding harassment and cruelty and SHO was also requested to recover the dowry articles from the house where accused used to reside. However on 03.01.2013 they requested to SDM to record their statement after cremation and accordingly, their statements were recorded on 07.01.2013. Ld. APP submitted that as they were under shock and were worried about minor child therefore they were not capable of SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 30 of 49 making deposition immediately. Under the circumstances there is no delay in lodging the FIR. Ld.APP in support of his arguments relied on the Judgments cited as Gurunath Donkappa v State of Karnatka, (2010) 1 SCC (Crl) 943 and State of Punjab Vs. Atma Singh, 2009 (2) CRIMES 447.
15 Ld. APP further submitted that in this case there is no denial about the factum of existence of FDR's and ATM cards, bank passbook and hence there was no need to prove the same as fact admitted need not be proved as held by Hon'ble Supreme Court in case cited as Naseem Bano Vs. State AIR 1993 SC 2592 and Mahender Vs. Sushila AIR 1965 SC365. 16 Ld. APP further submitted that so far as issue of cruelty soon before death; the statue does not give any time framed regarding 'soon before'. It is a relative term and would depend upon facts and circumstances of each case. No straight jacket formule can be laid down as to what would constitute a period of 'soon before death'. However, there must be existence to proximate and live link between the effect of cruelty based on dowry demand and death. In the present case the marriage was solemnized on 17.05.2011 and the death caused on 02.01.2013 i.e. within 18 months of marriage. The death was occurred within a short span, coupled with the fact that there was 8 month old child SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 31 of 49 also. APP submitted that under the circumstance it can be said that she was treated with cruelty soon before her death. Ld. APP in support of his arguments relied upon the judgment cited as Hira Lal Vs. State AIR 2003 SC 2865 and Kunchi Abdul Vs. State of Kearala AIR 2004 SC 1731.
17 Ld. Addl. PP submitted that as the prosecution has fully discharged its onus and fully established the guilt of accused persons they be held guilty and convicted for the offence punishable u/s 498A & 304B IPC.
18 Ld. Counsel for the complainant also submitted that the suicide note cannot be treated as dying declaration. The dying declaration is the statement of the person as to the cause of her death or as to any of the circumstance resulting in his /her death. It is given to another person or to a competent authority. It is always corroborated. Only on the basis of dying declaration court cannot take its decision. The dying declaration is like any other evidence and has to be decided on touch stone of credibility. The suicide note can be planted and may be written in the same hand writing. The hand writing can be copied and also the signature. It is argued that most of the husband and wives can copy the signatures of each other. Moreover, in the present case the door was already broken before the police arrived at the spot. Under the SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 32 of 49 circumstances the possibility of tampering cannot be ruled out. In the present case PW-23 has narrated story of harassment and credibility which deceased directly shared with PW-23 regularly, whereas the suicide note is in contradiction of testimony of PW-23. The reason for writing such contradictory suicide note may be to save the future of her own 11 months old child. In the present case suicide note cannot be treated as dying declaration. Ld. Counsel in support of his argument relied upon Judgment cited as Narain Singh Vs. State of Haryana AIR 2004 SC 161.
19 Ld. Defence counsel submitted that in this case prosecution has miserably failed to prove this case. Ld. Counsel submitted that for making out a case u/s 304B/498A the law is very clear that the court can raise the presumption u/s 113B of the evidence Act but such presumption can be raised only when all the ingredients of dowry death are established or available on record. The ingredients are as under:
I) The death of woman should be caused by burns or bodily injury or otherwise than under normal circumstances. II) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. III) Such cruelty or harassment should be for or in connection, demand for dowry and SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 33 of 49 IV) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
20. Ld. Counsel relied upon the Judgment cited as Gurdeep Singh Vs. State of Punjab & others wherein it was held that:
"indisputably, in order to attract section 304B, it is imperative on the part of the prosecution to establish that the cruelty or harassment has been meted out to the deceased 'soon before her death'. There can not be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case." It is further held "this court in Suresh Kumar Singh's case supra has held that even if one of the ingredients is not made out, the presumption under section 304B of the evidence Act would not be available to the prosecution and the onus would not shift to the defence."
21. Ld. Counsel submitted that the allegation against the accused persons is that the deceased had sent her passbook, FDR's and ATM cards to the house of her parents i.e. the brother in the month of December 2013. The accused Ram Avtar on SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 34 of 49 coming to know about the same started insisting upon her to bring back the same. On her refusal the accused Ram Avtar had asked her and only due to that reason she did not attend the 'Puja' and also told her brothers with respect to the same. Ld. Counsel submitted that the said allegations are totally false and concocted. As per the evidence which has been brought on record and as also mentioned in the complaint one of the FDR had already been got encashed by the deceased Ram Avtar on account of purchase of motorcycle. However, the said FDR was got encashed as one of the brother of deceased namely Dalip Rajora was in dire need of money and requested deceased to give the same and she handed over a cheque of Rs.50,000/- to him. But Dalip Rajora had concealed this fact however, he came up with concocted story that he gave cash of Rs.50,000/- for purchase of motorcycle and thereafter Savitri the deceased gave a cheque of Rs.50,000/- to him. So far as the remaining four FDR's are concerned the allegations are that those were given in the month of December 2012. However, the record shows that all these four FDR's were got encashed by deceased and Ram Avtar on 16.05.2012 if those FDR's were already got encashed then there was no reason of the accused demanding those FDR's from Savitri as those were of no use. So far as ATM cards are concerned those remained with the SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 35 of 49 brothers of deceased and there was no reason again to demand the same rather the brothers of deceased misused those ATM's card and withdrew Rs.10,000/- on 07.01.2013 after about five days of death of deceased.
22. Ld. Counsel submitted that in the month of October - November 2012 the deceased and the accused Ram Avtar planned to purchase their own house and had given the earnest money to Kamalkant for the purchase of house at Uttam Nagar. The deceased requested her brothers to return the amount but they refused the same. This fact is also deposed by the defence witness DW-9 Smt. Pushpinder Kaur. Due to this reason she was under depression being sensitive in nature and committed suicide. Ld. Counsel submitted that accused came to know about this fact only after the death of deceased through DW-9. So far as the factum of purchasing house in the month of December is concerned that is also admitted by the brothers of deceased. Ld. Counsel further submitted that the witnesses have also made improvement in their statements. PW-1 stated that he visited the PS along with his brothers and made complaint to the police but infact there is no complaint on record and there is no such evidence brought on record by any police official that they gave the oral complaint on that date or any written complaint.
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 36 of 49
23. PW-2 also deposed that on coming to know about death of Savitri he went to police station and met his brother who was also present there. Infact IO /ASI Dharampal PW-25 clearly stated that the brother of deceased who is an advocate reached the spot and while they were removing the dead body to the mortuary of hospital, other 2-3 brother also reached there.
24. PW-1 no where stated about any telephonic conversation between Manoj and deceased on 28.12.2012 whereas the other witnesses have come up with this story to fill up the lacunae.
25. PW-2 stated that on refusal to fulfill the demand of the house accused Ram Avtar had misbehaved with brother but PW-15 and PW-22 have deposed that accused Ram Avtar misbehaved with their mother, but PW-1 has not deposed anything in this regard. It is also important to note that mother was a very important witness in this regard but she has not been examined in the present case.
26. PW-15 stated that he sent his younger brother to the house of deceased but the other witnesses i.e. landlord and landlady PW-5 and PW-7 examined by the prosecution states that infact it was Advocate brother of deceased who visited her house and remained there for 1 ½ hour. On the other hand PW-15 in his SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 37 of 49 examination in chief stated that nobody from their family visited the house of deceased from 29.12.2012 to 01.01.2013.
27. In order to established these facts they had even gone to say that the accused refused to make payment of the medical expenses at Kukreja Hospital and they paid Rs.5,000/- to Rs.6,000/- as deposed by PW-15 in Kukreja Hospital at the time of discharge of the deceased. But the accused summoned the witness from Kukreja Hospital examined as DW-5 who deposed that the total amount was deposited in advance by the patient i.e. Rs.6200/- vide receipt dt.10.02.2012. The hospital deducted Rs.2400/- on account of room rent and Rs.2796/- on account of consultation charges, lab test and ultrasound and the remaining amount of Rs.1004/- was returned back to the patient on 22.02.2012 by way of cheque No.895017 dt.22.02.2012. ld. Counsel submitted that in this regard it is also important to note that accused also got the reimbursement of the medical bills from his own office in this regard.
28. Ld. Counsel submitted that the landlord and land lady who were the independent witness have not stated anything that there was any dispute between the husband and the wife rather they stated that they have never heard any conversation in loud noise between the two.
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 38 of 49
29. Ld. Counsel further submitted that in this case the mediator was also examined and he also stated that he was not informed by any of the party of any dispute between the children i.e. the deceased and the accused, which clearly shows that there was no such dispute rather the deceased was not happy with the conduct of his own brothers as they were not returning the amount. They had also not visited her after the birth of the child as is evident from the testimony of all the brothers. They even do not know if she stayed at Jaipur for months together in order to take care of her child. ld. Counsel submitted that the falsity of witnesses is also evident from the fact that according to the accused persons and as per the list placed on record a Maruti 800 car and a refrigerator was given to the accused persons. But when they appeared in the witness box it was mentioned that these articles were not given infact in place of car and fridge the cash amount was given but at the end of list there is a cash amount also mentioned i.e. Rs.7952/- and there is no mention of the cash amount of the car. Ld. Counsel further submitted that according to these witnesses the cash amount for the purchase of car was given but on the other side they are saying that Savitri came to take Rs.50,000/- for purchase of motorcycle. But at the same time the brother of the deceased is also getting a cheque of Rs.50,000/-
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 39 of 49 from her own sister.
30. Ld. Counsel further submitted that so far as Savita is concerned she has made improved in her testimony and is therefore not reliable. Ld. Counsel submitted that there was no dispute till 05.01.2013 i.e. after the 3 days of the death of deceased. But when PW-1, PW-2, PW-15 and PW-22 had taken the valuable articles of deceased without the consent of accused Ram Avtar and they also wanted to take away the minor, Ram Avtar called the police by dialing at 100 number. Police arrived there. The witnesses examined also said that a dispute arouse on the issue of the minor and the police was called by Ram Avtar and matter was compromised. Thereafter, the brothers of deceased left the house of Ram Avtar. If there was any dispute and they had any complaint on 05.01.2013 itself, when police was called, they would have made a complaint to the police at that time instead of compromising the matter. It was only an after thought that on 07.01.2013 they gave statement to the police and got the accused persons falsely implicated in the present case.
31. Ld. Counsel submitted that even otherwise there is a dying declaration on the record in the form of suicide note. In that suicide note she has not implicated any of the accused rather exonerated the accused persons and therefore the allegations as SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 40 of 49 leveled is not true. ld. Counsel submitted that under the circumstances as the prosecution has failed to discharge its onus and prove and establish that there was any demand by the prosecution regarding dowry no case is made out. Even otherwise so far as Ghanshyam and Kishan are concerned there is no allegations against them. Even against Phoola Devi there is allegations that she ever made any demand or treated the deceased with cruelty. Ld. Counsel submitted that when she committed suicide she wrote that "I Savitri committed suicide and I myself responsible for the same because I am not as per the world, I have neither became a good daughter nor good sister, nor good wife, nor good daughter-in-law, nor a good mother so I finished myself."
32. This itself is sufficient to find out the reason of committing suicide. If she would have committed suicide for the reason of harassment on dowry demand she would have expressed it in this note. She was rather perturbed due to the conduct of his own brothers i.e. why she had mentioned that she could not become a good daughter nor become good sister. Ld. Counsel submitted that keeping in view all these facts the benefit be given to the accused and they be acquitted.
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 41 of 49
33. After hearing the arguments and going through the record I found that in this case so far as the brothers are concerned their main allegations is that the accused Ram Avtar was pressurizing her to hand over her all salary which she had received from the date of joining till that date. He had shown intention that he will purchase i10 car and wanted this money for the marriage of his brother. But when Savitri came to know that he will send the car to Jaipur and the money would also be sent to Jaipur for the marriage of brother Kishan she sent all her passbooks, FDR's and ATM cards to his brother. On the record there are five FDR's and record shows that out of those five FDR's one FDR was got encashed at very early stage and the other four were also already encashed. If those FDR's were already encashed by the accused and deceased themselves then there was no reason for the accused to demand for those FDR's. So far as passbooks are concerned merely having passbook does not serve the purpose. ATM Cards according to brothers of the deceased were already with them but the record also shows that though they claim that it was the accused, who was withdrawing the amount and wanted to take the money after the death of deceased on 07.01.2013 there was withdrawal of Rs.10,000/- from her account by using the ATM card. The reasons best known to the SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 42 of 49 brothers of deceased as to how this amount was withdrawn when according to them all the ATM card of deceased were with them. In this case it is also important to note here that there is also ambiguity in the list of dowry articles. In the list it is mentioned that there is a Maruti car 800 standard and refrigerator were also given besides other articles. But the brothers of deceased admitted during the cross-examination that neither the car nor fridge was given instead cash was given. Which clearly shows that this dowry list is not proper. It is also important to note that in that dowry list itself there is a last item that cash of Rs.7952/- was given. If that is the position then it shows that the cash amount given was only Rs.7952/- and not as alleged by the witnesses. It is also important to note if cash for purchase of car and the fridge was given then there was no need for Ram Avtar to ask for Rs.50,000/- for purchase of motorcycle when they were already having cash to purchase the car. Infact brothers of the deceased were in dire need of money and that is why Savitri gave a cheque of Rs.50,000/- to his brother. Dalip Rajora on 11.06.2011 after encashment of one of the FDR which fact has already come on record and is also admitted but he deposed falsely that he gave cash for the purchase of motorcycle and in lieu thereof the cheque was given by Savitri. So far as purchase of motorcycle is SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 43 of 49 concerned in the complaint itself it is mentioned that accused got encashed one of the FDR of Rs.50,000/- for purchasing the motorcycle then there was no reason to take another amount of cash because beside that he was already having the amount given in cash, as deposed by the witnesses though not admitted, that cash amount for purchase of car was given. Ld. Counsel submitted that infact they have improved their version and also told a lie that the accused did not make payment even of the bills of the Kukreja hospital and that bill was paid by them. Witness has stated that they have paid Rs.5,000/- to Rs.6,000/- in the Kukreja Hospital but the record speaks otherwise witness from Kukreja Hospital was examined who deposed that total amount was deposited in advance i.e. Rs.6200/- and the hospital after deducting its charges also refunded an amount of Rs.1004/- through cheque to the patient i.e. the deceased. Ld. Counsel submitted that if that is the position then to whom the PW-15 has paid Rs.5,000/- to Rs.6,000/- as alleged by him. From this it is clear that they are coming up with a new story with intent to strengthen but infact there is no substance in the same. There is also no averment against the other three accused i.e. Kishan and Ghanshyam because none of the witness stated that they ever demanded anything from the deceased except that accused Ghanshyam SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 44 of 49 used to ask for money on behalf of Kishan but there is no specific averment in this regard as to what was the demand. It has also come in the testimony of PW-15 that nobody from their side visited the house of the deceased from 29.12.2012 to 01.01.2013 then how they came to know that why she did not attend the 'Puja'. Infact there is nothing on record that any such Puja was held or that there were any other FDR's besides these FDR's or any other passbook or any other ATM cards which were not with the brothers of the deceased which were lateron given by deceased to her brother. Though the brothers alleged that such FDR's were given to them but those had not seen the light of the day till date. These were not given to the police or even produced before the court. If there would have been any such FDR's or passbook or the ATM cards as alleged those would have been produced before the court by the brothers of the deceased as one of them is an Advocate and knowing very well the evidentiary value of such documents. Here it is also important to note that the landlord and the landlady where the deceased was living along with her husband have stated that they were having very cordial relations and they have never heard of any exchange of hot words between the two and also between the mother-in-law and the deceased. In this case the mediator had also been examined as PW-6. He has also deposed SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 45 of 49 that he had not heard of any harassment, ill treatment or torture given to the deceased by the accused persons. He was in touch with both the families and there is no denial from this fact by the prosecution. There is also no reason for the mediator to tell a lie as he is neutral to both and he was instrumental in the marriage of deceased with Ram Avtar. He has no axe to grind either for the complainant or the accused persons therefore, his testimony carries more weight. Testimony of this witness coupled with testimony of PW-5 and PW-7 corroborated by the testimony of DW-9 Pushpinder Kaur clearly show that she (deceased) was happy in her family with her child and the husband. None of them had stated that she was tortured or harassed by the accused. On the other hand the record shows that the brothers of the deceased tried to make improvement in their testimony and also reached to the stage of falicity and therefore cannot be relied. It is also admitted by the witnesses that is the brothers of the deceased that accused was planning to purchase a house which is also deposed by DW-9 that she was also planning to purchase a house. According to DW-9 the deceased had already given the earnest money for purchase of house but now her brothers whom she had lended money were not returning money on one pretext or the other due to which she was under pressure/ depression as the SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 46 of 49 earnest amount would be forfeited if the total purchase amount is not given.
34. Keeping in view all these facts coupled with the dying declaration, though the prosecution particularly the counsel for the complainant alleged that it cannot be treated as a dying declaration but if we go through this document it is clear that she is referring to the circumstances under which she is ending her life and hence it will fall in the category of dying declaration.
35. It will fall within the ambit of section 32 of the Evidence Act. Keeping in view the Judgments cited as Pakala Narayana Swami v Emperor, (1939) 41 BOMLR 428 wherein Bombay HighCourt dealing with Section 32(1) of Evidence Act, 1872 has held that:
"The first question with which their Lordships propose to deal is whether the statement of the widow, that on March 20 the deceased had told her that he was going to Berhampur as the accused's wife had written and told him to go and receive payment of his dues, was admissible under section 32(1) of the Indian Evidence Act, 1872. That section provides:
Statements, written or verbal, of relevant facts made by a person who is dead....are themselves relevant facts in the following cases:
1. When the statement is made by a person as to the cause of his death,or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 47 of 49 Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.
A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, and that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction:
general expressions indicating fear and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction"
is a phrase, no doubt, that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant; facts. It is on the other hand narrower than "res gest".
Circumstances must have some proximate relation to the actual occurrence: though as for instance in a case of prolonged poisoning they may be related to dates as a considerable distance from the date of actual fatal dose. SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 48 of 49 It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition for the admissibility of the evidence is that "the cause of [the declarant's death comes into question]". In the present case the cause of the deceased's death comes into question. The transaction is one in which the deceased was murdered on March 21, or March 22, and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on March 20 or 21 that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived in the accused's house appears clearly to be a statement as to some of the circumstances of the transactions which resulted in his death. The statement was rightly admitted."
36. It is important to note that in the dying declaration she had not stated anything against the accused persons.
37. Keeping in view dying declaration coupled with the fact that the independent witnesses are not saying anything about any dowry demand and harassment meted out to the deceased at the hands of the accused persons benefit of doubt is given to accused persons and they are acquitted of the charge.
File be consigned to record room.
Announced in the open court today on 04.02.2016 (VIRENDER KUMAR BANSAL) ASJ/ FTC (WEST) TIS HAZARI, DELHI SC No:44/13 FIR No:10/13 PS:Tilak Nagar State Vs. Ram Avtar etc. Page 49 of 49