Delhi District Court
State vs . : 1. Dharmender Kumar on 29 July, 2011
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 21/2011
Unique ID No. 02403R0187082007
State Vs. : 1. Dharmender Kumar
S/o Late Sh Ganga Ram
R/o RZF772/1, Raj Nagar,
Palam Colony, New Delhi
2.Sh Ganga Ram(now deceased)
S/o Sh Khedu Singh
R/o D84A,
Shri Radha Krishan Mandir,
Jaitpur Extension, New Delhi
3. Smt Sona Devi
W/o Sh Ganga Ram
R/o D84A,
Shri Radha Krishan Mandir,
Jaitpur Extension, New Delhi
4. Vijay Kumar
S/o Late Sh Ganga Ram
R/o D84A,
SC No. 21/2011 1/37
Shri Radha Krishan Mandir,
Jaitpur Extension, New Delhi
5. Om Parkash
S/o Late Sh Pyarey Lal,
R/o H. No. 7,
Vashisht Nagar, PO Baghiyal,
P.S Mahesh Nagar,
Ambala Chawni,
(Haryana)
FIR No. 314/2004
P.S. Kotla Mubarak Pur
U/s 307/328/406/498A/34 IPC
Date of Institution : 29/03/2007
Date when arguments
were heard : 19/07/2011
Date of Judgment : 29/07/2011
JUDGMENT
BRIEF FACTS :
Factual matrix of the prosecution case is as follows: SC No. 21/2011 2/37
On 05/03/2003, Smt Santosh (herein after called complainant/victim) was married with Dharmender (accused) as per Hindu Rites and Ceremonies and out of the wed lock a daughter was born in June, 2004. Accused Dharmender was employed as IBN Operator in Rajya Sabha. Complainant was taunted and harassed for bringing insufficient dowry since after the marriage by her husband Dharmender; mother in law Sona Devi, father in law Ganga Ram (now deceased); brothers in law Om Parkash and Vijay. In October, 2003 Vijay, brother in law of complainant gave her beatings and she lodged a report at police station Kotla Mubarak Pur, also complained in Women Cell, South at Amar Colony. In March, 2004, accused Dharmender had told complainant in women cell that hence forth the complainant would be properly kept in her matrimonial home and since then the complainant resided in her matrimonial home at F81, Rajya Sabha Awas, INA, Kotla Mubarakpur. Accused Dharmender continued beating complainant and upon the asking of his aforesaid relatives, used to harass her. Keeping in mind the respect of her parents, complainant kept quite, thinking that all will become right by passage of time.
SC No. 21/2011 3/37
On 12/07/2004, at 8.30 pm accused Dharmender reached at his house, prepared khichdi and gave to complainant/victim after putting ghee in it which he himself brought. Complainant/victim ate some of the khichdi and when she saw shining articles in the khichdi, she enquired from accused Dharmender who told her that it was nothing else but desi ghee. After eating some of the khichdi, complainant/victim slept. In the morning complainant felt dizziness and Dharmender went away after telling her that he has to get the box of Nova ghee exchanged. On 13/07/2004, at 9.30 am mother of complainant/victim came there and the complainant/victim told her all the facts and thereafter officials of PCR brought the complainant/victim to the hospital. There complainant/victim gave statement Ex PW1/A to the SDM who got it recorded through SI Parveen who had arrived from police station Kotla Mubarak Pur. Upon that case FIR No. 314/04, under Sections 498A/307/34 IPC was registered. Matter was investigated. On completion of the investigation, the accused were chargesheeted for offences under Sections 498A/406/307/328/34 IPC.
SC No. 21/2011 4/37
2. On completing the requirement of Section 207 IPC, the case was committed to the Court of Sessions.
3. Since accused Ganga Ram had expired, proceedings against him were abated vide order dated 25/04/2008. CHARGE:
4. In terms of the order dated 21/05/2008 of my Ld. Predecessor, charge for the offences under Sections 498A/34 IPC and 406/34 IPC was framed against all accused persons and separate charge for offence under Section 307/328 IPC was framed against accused Dharmender to which accused persons pleaded not guilty and claimed trial.
WITNESSES:
5. To connect the accused with the offences charged, the prosecution has examined in all 14 witnesses namely PW1 Smt Santosh; PW2 Smt Phoolwati; PW3 Ct Kishan Dutt; PW4 Dr. CH. Gyan Singh; PW5 ASI Gurcharan Singh; PW6 Sh Bajrang Lal; PW7 SC No. 21/2011 5/37 Sh Amarpal Singh; PW8 Sh Bhagwan Dass; PW9 Ct Baljeet; PW10 Dr. R.K Ramchandani; PW11 SI Mukesh Kumar; PW12 ASI Mukhtiyar Singh; PW13 Retired ASI Rajbir Singh and PW14 SI Praveen Vats.
STATEMENTS OF ACCUSED:
6. All incriminating material in evidence was put to the accused persons in their statements recorded under Section 313 Cr.P.C. where they pleaded innocence and false implication. However, accused admitted of marriage of complainant with Dharmender on 05/03/2003.
6A(i) Accused Dharmender stated that all the allegations were incorrect and it was infact his in laws who used to beat him and he also made complaints against them on 13/12/2003 to the SHO P.S Kotla Mubarakpur and on 17/12/2003 to the Under Secretary (P) Rajya Sabha. Accused Dharmender further stated that his in laws used to demand money from him and he made one more complaint on 14/09/2004 to SHO P.S Kotla Mubarakpur. Accused Dharmender SC No. 21/2011 6/37 further stated that complainant used to blackmail him that she would implicate him in a false case. Accused Dharmender further stated that his wife alongwith her mother and father used to pressurize him to give money to them and to stay as Ghar Jamai and in case he did not agree to their terms and conditions, they will falsely implicate him in a false case. He further stated that his mother in law procured the mercury and his wife voluntarily might have consumed the same to falsely implicate him in this case.
6A(ii) Accused Om Parkash, Vijay Kumar and Sona Devi stated that the complainant was frequently pressurizing Dharmender to help her parents economically as she was having a very big family at her parental home. They further stated that complainant was also forcing Dharmender to stay as ghar jamai alongwith her parents; complainant was threatening Dharmender, themselves and other family members to falsely implicate them in some criminal case and get them dismissed from the service as Dharmender was not agreeing to her terms and conditions and they had been falsely implicated in the present case being the relative of Dharmender. SC No. 21/2011 7/37 DEFENCE EVIDENCE:
6B Sh Ujjwal Kumar was examined as DW1 by accused Dharmender who had brought the original record from the Personnel Section of the Office of the Rajya Sabha Secretariat which was summoned i.e RS/18(VI)/2004 Prl. pertaining to the disciplinary proceedings against Dharmender Kumar, IBM Operator. DW1 further stated that these proceedings were initiated after his arrest in the present case. DW1 Sh Ujjwal Kumar stated that he had seen the certified copy of the letter dated 17/12/2003 Ex DW1/A by Dharmender Kumar to the Under Secretary, Rajya Sabha Secretary and the same was the true copy of the original record brought by him. ARGUMENTS
7. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
7(i) Ld. Addl. PP argued that after the marriage SC No. 21/2011 8/37 complainant/victim was subjected to cruelty by her husband Dharmender and the relatives of the husband, co accused persons as complainant/victim of this case was given beatings, demanded articles of dowry, harassed for bringing insufficient dowry; Istri Dhan articles of the complainant/victim brought/given to her in her marriage were misappropriated by the accused persons, not returned to her. Also was argued by Ld. Addl. PP that even accused Dharmender on the fateful night mixed mercury with khichdi and served upon the complainant lady and the said overt act of the accused when seen in the attending circumstances clearly embodied of intention of the accused Dharmender to kill her. Ld. Addl. PP further argued that from the evidence led on record, the prosecution has been able to prove its case against the accused persons.
7(ii) Ld. Defence Counsel vehemently argued for the acquittal of the accused persons submitting that pursuant to the marriage of the complainant with accused Dharmender, complainant as well as her parents were pressurizing accused Dharmender to help the parents of complainant economically as they were having a very big family and accused Dharmender was also forcing to stay as ghar jamai with SC No. 21/2011 9/37 the parents of complainant and on his refusal to comply the said condition, the complainant even threatened accused Dharmender and his family to falsely implicate them in a criminal case and the mother of the complainant conspired with the complainant, upon which complainant herself consumed some mercury in khichdi after which false accusations were levelled against the accused persons who have been falsely implicated in this case which is vivid and clear from the contradictions, infirmities borne out from the testimonies of the material witnesses, going to the root of the matter making the version of the material witnesses unreliable, untrustworthy, which cannot be made the basis for conviction of the accused persons. Also was argued by Ld. Defence Counsel that though not admitted, even for the sake of arguments, if it is presumed that the alleged mercury was administered in khichdi to the complainant, yet metallic mercury was not poisonous substance, sufficient to cause death of complainant, for which reason the case of prosecution stands not proved and the accused deserve acquittal.
APPRECIATION OF EVIDENCE:
SC No. 21/2011 10/37
8. In Ex PW1/A, the statement of PW1 recorded by PW14 SI Parveen Vats, purportedly at dictation of the then SDM PW6 Sh Bajrang Lal on 13/07/2004 in AIIMS, PW1 had inter alia alleged that pursuant to her marriage on 05/03/2003 with accused Dharminder she was taunted by the arrayed accused and accused Ganga Ram (now deceased) and she was harassed for bringing dowry as well; In October, 2003 accused Vijay gave her beatings for which she gave complaint at police station Kotla Mubarak Pur. Therein PW1 also alleged that she had also complained in Women Cell, South, at Amar Colony upon which in March, 2004 her husband Dharmender there had said that he would keep PW1 properly and since then PW1 was residing with accused Dharmender in the matrimonial home but yet accused Dharmender did not stop beating her and on the asking of the other arrayed accused, his relatives, harassed her. Yet keeping in mind the respect of parents, PW1 kept quiet thinking that by passage of time everything will be all right.
9. When examined in court, PW1 made considerable improvements and variations in her version, regarding which she was SC No. 21/2011 11/37 confronted with her previous statement Ex PW1/A and contradicted on these counts. These are as follows:
PW1 testified that on 3rd day of the marriage, accused Dharmender quarreled with her, it was Saturday on that day and Mata had come on him; her Nandoi Om Parkash, her mother in law Sona Devi and father in law Late Ganga Ram also quarreled with her upon which PW1 told them as to why they had not told this fact to her prior to the marriage upon which they started beating her and telephoned at her house to take PW1 from their house; parents of PW1 came to the house of accused persons on receiving telephone; accused persons assured parents of PW1 that Mata will not further come on accused; thereafter her parents left her with the accused persons; accused demanded motor cycle to bring vegetables; accused demanded Rs 1 lakh as they had spent Rs 34 lakhs in treatment of Sharda, sister in law of PW1, who had expired 23 years before her marriage; Om Parkash, brother in law (Nandoi) of PW1 was also residing with husband of PW1 with his four children, used to torture PW1 for bringing dowry and he demanded big fridge at the place of small fridge; after coming from parents house, PW1 having been SC No. 21/2011 12/37 told by accused Om Parkash and Dharmender for not bringing sufficient clothes for them; one day parents of PW1 telephoned enquiring her well being, accused persons did not permit PW1 to talk with her parents and informed that she was sleeping; parents of PW1 came to her in laws house in September/October 2004, accused persons did not permit her parents to enter in their house on which her parents went to police station Kotla Mubarakpur and from there lady police official telephoned and the phone was picked up by Vijay, brother in law of PW1, who told that PW1 was not residing with them and he was a neighborer and later disconnected the phone; later accused Vijay gave beatings to her on the ground that police calls in their house due to her; that PW1 was medically examined for her injuries; her parents came with the police and ultimately her parents took her with them to the police station upon which accused went to police station and gave assurance to the police that they will keep PW1 well and on their assurance PW1 went back with them; yet accused Om Parkash did not change his behavior and used to quarrel with her; police again came to the matrimonial home of PW1 and told PW1 to go to her parents house for a month and after accused Om Parkash will SC No. 21/2011 13/37 start residing separately from accused Dharmender; police had adviced PW1 to come back; accused Om Parkash in the meantime changed the residence and took a house on rent at some distance from the home of PW1; when PW1 came back to the house of her husband, accused Om Parkash had taken with him all belongings of PW1 except her furniture; Accused Dharmender used to come to the house in late night and left early in the morning; PW1 came to know that accused Dharmender used to reside with accused Om Parkash at his rented house; PW1 made telephone call to the women cell also but from there also the accused persons compromised , brought her back; accused Dharmender was not supplying food to her which was supplied by her parents; after 22/6/04 when PW1 was blessed with a female child and her parents did not send any Chuchak despite 4/5 days of birth of her child, accused Dharmender gave beatings to PW1 and told that why Chuchak has not come; whenever PW1 used to go outside the house to purchase articles, accused Om Parkash threatened her to leave the house of accused Dharmender and he had to join his brother; when the daughter of PW1 was 10/15 days old, accused Dharmender alongwith accused Om Parkash and her in laws SC No. 21/2011 14/37 came to her house and told that they will live peacefully and accused Dharmender told that he will prepare the food for PW1. About all these facts PW1 had been silent when she gave her statement Ex PW1/A, aforesaid, as there is no mention of these facts there.
10. PW2 Smt Phoolwati, mother of PW1, inter alia testified that at the time of marriage of PW1 all household articles were given according to her capacity; after marriage PW1 told PW2 that her in laws used to torture her for insufficient dowry; that accused used to raise demand to bring motor cycle and Rs 1 lakh in cash.
11. PW8 Sh Bhagwan Dass, father of PW1, testified that he performed the marriage of PW1 as per best of his capacity and the dowry articles were given but after 24 months PW1 informed that her husband and other in laws were harassing her to fulfill the demand of Rs 1 Lakh and motor cycle and they were giving beatings to PW1 to fulfill the demands; accused did not allow them to enter in their house and quarreled and gave beatings to PW1 for this and one complaint was lodged in police station Kotla Mubarakpur which SC No. 21/2011 15/37 matter was later on compromised.
12. In Ex PW1/A, PW1 inter alia alleged that on 12/07/2004 at about 8.30 pm her husband accused Dharmender came home, gave her khichdi after preparing it and put ghee in it which he himself brought. PW1 ate some khichdi and saw some shining substance and asked accused Dharmender as to what it was, on which accused Dharmender said it was nothing was desi ghee and after eating some khichdi, PW1 slept; in the morning PW1 felt dizziness and accused Dharmender went away after telling her that he has to get the nova box of ghee exchanged. PW1 further stated in Ex PW1/A that at about 9.30 am on 13/07/2004 her mother came to her and she told all facts to her mother who took her to hospital in PCR vehicle. PW1 also therein alleged that her husband Dharmender had mixed mercury in khichdi and gave it to her to eat.
13. PW1 testified that her husband Dharmender had prepared khichdi and gave it to her; when PW1 consumed 1 or 2 spoons of it, she felt that something was mixed in it and when she SC No. 21/2011 16/37 asked from accused Dharmender as to what it was, then he told her that he had brought desi ghee from canteen and it was ghee which was shining; PW1 consumed some of the khichdi and kept the same nearby bed. PW1 also testified that accused Dharmender washed the utensils and threw the remaining khichdi; thereafter all the accused left the house except accused Dharmender; PW1 started feeling giddiness and accused Dharmender told her that because of delivery it may be so; PW1 vomited and thereafter slept; woke up at 4.30 am , heard some noise and saw accused Dharmender leaving with the plastic box of nova ghee and told that he has to change it. PW1 stated that she had developed swelling on her cheek and PW1 was not in a position to stand up and so lied down on the bed; at around 9.30 am PW2, mother of PW1 came and asked her about the swelling on the face; PW1 stated that she showed the remaining khichdi to her mother; in the meantime, her neighbor Neelam came and discussed with her mother PW2, upon which said Neelam told that the contents of the khichdi were para and advised to make call to police and take PW1 to hospital. PW2 made call at number 100, PCR van came and removed her to AIIMS, where statement of PW1 SC No. 21/2011 17/37 was recorded by police as Ex PW1/A and the doctors got her vomited saying she had consumed mercury and grinded glass.
14. PW2 testified that when she had gone to house of her daughter on 13/07/2004 in between 89 am she found PW1 in unconscious condition inside the room and the door was locked, PW2 touched her daughter and asked her about her condition, then PW1 told PW2 that her condition was not well. PW2 further stated that she called neighbor of her daughter whose name she did not remember who told her that while substance in the khichdi lying in the plate was para (mercury). PW2 also told that her daughter PW1 told her that she had taken khichdi in the night and after taking khichdi she had vomited and vomit was lying in the room. As per PW2 many people collected there on whose advice PW2 informed police on 100 number, police Gypsy came there. PW2 stated that police official lifted khichdi from plate and kept in a plastic bottle. PW2 also stated that the police official also lifted the khichdi from the ground also and kept in a steel glass; police official took PW1 to AIIMS while khichdi lifted from the spot was sealed and seized vide memo Ex SC No. 21/2011 18/37 PW2/A. PW2 stated that nothing else was seized from spot. Upon question of Ld. Addl. PP, PW2 admitted that plastic bottle containing mercury was also lifted by the police from the spot which was sealed in a pullanda and seized vide memo Ex PW2/B.
15. PW8 testified that on 13/07/2004 he was informed by PW2 that her daughter PW1 was in AIIMS.
16. Regarding the sequence of occurrence on the night of 12/07/2004 and later of 13/07/2004, the testimonies of material witnesses PW1 and PW2 are embodying several material contradictions and severe infirmities going to the root of the matter to check and shake the basic version and core of the prosecution case.
17. In Ex PW1/A, statement given by PW1 in the course of investigation, there is no mention that PW1 vomited after consuming khichdi in the night of 12/07/2004 or even so vomited in the morning or the vomit was lying in the room. Vomit by PW1 after consumption of khichdi and it lying in the room, were the facts which were deposed SC No. 21/2011 19/37 by PW1 for the first time in court and for which PW2 testified that her daughter PW1 told her so. Neither in statement Ex PW1/A nor in her testimony in court as PW1, complainant had stated of the fact that when her mother PW2 reached in the morning of 13/7/2004 at her house then PW1 was unconscious. PW2 says PW1 was unconscious when she reached there.
18. PW1 testified that on the fateful evening accused Dharmender prepared khichdi, gave to her and out of it she consumed one or two spoons but felt that something was mixed in it. PW1 further testified that when she asked from accused Dharmender as to what was it then he told that it was desi ghee brought by him from canteen which was shining. PW1 deposed that she consumed some of the khichdi and kept the same near her bed; accused washed utensils and threw the remaining khichdi. Further PW1 stated that she vomited and then slept and woke up at 4.30 am, heard the noise and saw accused Dharmender leaving with plastic box of Nova ghee. As per PW1, she developed swelling on her cheek and she was not in a position to stand up, so lied down on the bed. She also stated that SC No. 21/2011 20/37 when her mother came at 9.30 am in the morning, she showed the remaining khichdi to her mother and when the neighbor Neelam came, her mother discussed with the neighbor who then told that it was mercury in the khichdi.
19. PW1 is blowing hot and cold in the same breath. PW1 stated that after she consumed some of the khichdi and kept the remaining near her bed, accused had washed the utensils and threw the remaining khichdi. Within moments she further says that upon arrival of her mother at 9.30 am, she had showed the remaining khichdi to her mother, PW2 and later to Neelam, the neighborer. If the remaining khichdi was thrown, utensils were washed by accused then there was no occasion for PW1 to show any remaining khichdi to PW2 or later to neighbor Neelam. Also there was no occasion for seizure of the remaining khichdi by any police official. Even said neighbor Neelam has neither been cited nor examined as the prosecution witness in court to corroborate the version of either PW1 or PW2.
SC No. 21/2011 21/37
20. There are different versions emanating from the prosecution evidence on record in respect of what all articles were lifted from the spot by the police, when they were lifted, who retained them and how they were seized.
21. PW1 is silent as to any article having been lifted by the police from the spot or seized by the police. PW2 testified that on 13/07/2004 in the morning she had informed the police on 100 number, police gypsy came there, police official lifted khichdi from plate and kept in a plastic bottle. PW2 also stated that police official also lifted khichdi from ground, kept it in a steel glass. PW2 further elicited that khichdi lifted from the spot was sealed and taken into possession vide memo Ex PW2/A. Initially PW2 stated that nothing else was seized from the spot but after permission of my Ld. Predecessor, Ld. Addl PP put leading question and PW2 stated that one plastic bottle containing mercury was also lifted by the police from the spot and it was sealed in a pullanda, seized vide memo Ex PW2/B. SC No. 21/2011 22/37
22. PW13 Retired ASI Rajbir Singh testified that he was posted on PCR vehicle on 13/07/2004 and on receiving message he went to Rajya Sabha Colony where one injured was found and they had admitted said injured at AIIMS. PW13 did not whisper a word of lifting of any article from the spot by himself or by any other official nor having seized it or retained it.
23. In terms of the presented case of prosecution and as per PW14, plate Ex P2 and glass Ex P3 were seized on 15/7/2004 at the instance of PW2 vide memo Ex PW2/A. Ex PW2/A finds mention of seizure of said articles Exts P2 and P3 from the table of House No. F81, Rajya Sabha Awas, INA, Vikas Sadan, Delhi which was the house of accused Dharmender, on 15/07/2004.
24. PW9 also speaks of such seizure of Ex P2 and Ex P3 vide memo Ex PW2/A on 15/07/2004 at the said house of accused Dharmender pursuant to his arrest from there vide memo Ex PW9/A and where personal search of accused was conducted vide memo Ex PW9/B. SC No. 21/2011 23/37
25. PW9/A finds mention of the place of arrest of accused Dharmender as 9/133, Prem Nagar, Kotla Mubarakpur, New Delhi and the permanent address of the arrestee being F81, Rajya Sabha Awas, INA, Vikas Sadan, New Delhi. PW9 in his testimony was categorical that the recovery of articles Exts P2 and P3 were effected from the place of arrest of accused. Accordingly, material contradictions about place of arrest and place of seizure of Exts P2 and P3 as well as the date of their seizure emerge from the testimonies of PWs 2,9,13 and 14. If articles Exts P2 and P3 were lying at place of occurrence on 13/7/04 itself it is beyond my comprehension as to why they were not seized that day itself by the officers of investigating agency who came to know of occurrence that day and were so duty bound. So, the facts of the matter project every possibility existing of planting of articles Exts P2 and P3 to strengthen the case of prosecution.
26. PW14 testified that he had also seized a bottle of gastric lavage of PW1 through Ct Krishan Kumar, PW3 at AIIMS vide memo SC No. 21/2011 24/37 Ex PW3/A. PW3 testified that one employee of the hospital gave him a bottle on 13/7/04 which was sealed in a pullanda in the presence of one doctor and PW3 was told that it contains vomit of PW1. PW3 admitted that said gastric lavage of PW1 was not put in the bottle in his presence. PW3 also admitted that he had not seen any seal on said bottle at that time. No employee of the hospital who handed over the bottle of gastric lavage to PW3 has been cited nor examined. PW1 in her testimony stated that doctors in the hospital got her vomited. PW1 never says in the course of her examination that her gastric lavage was taken. The MLC Ex PW4/A of PW1 finds mention of the advice of gastric lavage and not PW1 made to vomit.
27. PW2 testified that mercury was lifted from the house of accused Dharmender with the help of paper and plate by the police, kept in the plastic bottle lying in the house, seized by the police who arrived there on call at number 100. PW2 categorically denied of having handed over the plastic bottle containing mercury to the police in the hospital. PW3 testified that in his presence in the emergency in the hospital on 13/7/04, PW2 gave a bottle containing mercury to SC No. 21/2011 25/37 PW14, which PW2 had brought alongwith her and the IO sealed the same in a white cloth in emergency itself with the seal of PVS. PW14 also testified that the plastic bottle was produced by PW2, mother of injured on 13/7/2004 in the hospital and it was seized by him vide memo Ex PW2/B. As per the presented case of prosecution, no article was seized from the place of occurrence on 13/7/2004 and 14/7/2004 while seizure memo Ex PW2/A depicts and PW14 has testified of seizure of the articles Exts P2 and P3 on 15/7/2004.
28. PW6 the then SDM testified that at about 8 pm on 13/7/2004 statement Ex PW1/A of PW1 was recorded on his dictation but he did not remember as to whom he had given the dictation. PW14 testified that he had recorded the statement Ex PW1/A on the dictation of PW 6.
29. PW8, father of PW1 testified that he gave bills to police for the expenses incurred by him in the marriage of PW1. Alongwith the charge sheet only list of Istridhan articles Ex PW1/E, not signed by any one, is annexed but no bills of any expenses incurred in SC No. 21/2011 26/37 marriage of PW1 have been filed alongwith the charge sheet nor proved.
30. PW12 speaks of having reached the house of accused persons on 11/2/2007 and seized Istridhan articles from there vide memo Ex PW1/D in the presence of complainant. Ex PW1/D finds mention of alleged recovery of articles from Sl. No. 1 to Sl. No. 66 including clothes and utensils from House No. 7, Vashisht Nagar, PO Baghiyal, P.S Mahesh Nagar, Ambala Chawni, (Haryana) owned by Om Parkash in the presence of PW1, PW2 and said Om Parkash, the accused. In the entire course of their testimonies PWs 1 and 2 do not whisper of having gone to Ambala Cant for such recovery of Istridhan articles and such seizure in their presence from the house of accused Om Parkash. PW1 in the course of her testimony simplicitor stated Ex PW1/D to be list of items which she received.
31. PW3 claimed that he was sent by one SI Karamveer with rukka to police station Kotla Mubarakpur which he gave to duty officer and got FIR no. 314/04 registered. PW14 speaks of having SC No. 21/2011 27/37 got FIR registered through PW3 Ct Kishan Dutt. PW5, the duty officer, scribe of Ex PW5/A, FIR No. 314/04, testified that PW14 SI Parveen Kumar came to police station with rukka which he gave to PW5 and after PW5 registered the FIR, he had given the original rukka and copy of FIR to PW14.
32. The results of the examination as to the substances viz, gastric lavage of PW1; mercury in plastic container; particles of khichdi on steel plate and silver coloured round shaped balls inside steel glass, opined to have been tested positive for the presence of mercury, in terms of FSL report Ex PW7/A pale into insignificance on account of contradictory versions emanating from the testimonies of prosecution witnesses in respect of what was found present at the spot on 13/7/2004 and on 15/7/2004, what was lifted from there, by whom it was so lifted, who retained it, who seized it and at whose instance, as elicited herein above, bringing such recoveries and seizure under cloud of doubt and reasonable possibility of planting of articles Exts P2 and P3 to strengthen the case of prosecution.
SC No. 21/2011 28/37
33. In Ex PW1/A, the time of consumption of some khichdi by PW1 on 12/7/2004 is given sometime after 8.30 pm, later to which PW1 slept and she complained dizziness only next morning.
34. Ld. Counsel for the accused argued that in case mercury poison had been given to PW1, then for the entire intervening night of 12/7/2004 and 13/7/2004 she would not have been able to sleep instead of only complaining of dizziness in the next morning but would have had the symptoms of the first phase of mercuric poisoning as mentioned in the book namely 'The Essentials of Forensic Medicine and Toxicology' by Dr. K.S Narayan Reddy, M.D, D.C.P, F.A.M.S, 1990, 12th Edition which are .....
"Burning pain, sense of constriction, and ashen discolouration of the mucosa in mouth and pharynx occurs immediately. Within a few minutes severe abdominal pain and continuous vomiting occur. Diarrhoea with bloody stool and tenesmus follows."
Also is mentioned there that in respect of the second phase of mercury poisoning...
"if the person survives, second phase begins in 1 to 3 days. Glossitis and ulcerative gingivitis appear within 24 to 36 SC No. 21/2011 29/37 hours. Severe infection, loosening of teeth and necrosis of the jaw may occur. In 2 to 3 days, renal tubules show necroses and produce transient polyuria, albuminuria, cylindruria, uraemia and acidosis. Recovery may occur within 10 to 14 days. After many days membranous colitis develops and produces dysentery, tenesmus, ulceration of colonic mucosa and haemorrhage."
35. I have gone through the said text of the referred book where it was also provided that Mercury is stated to be liquid metal, bright silvery appearance and is volatile at room temperature. It forms two series of compounds: (1) mercuric, which are soluble and intensely poisonous, and (2) mercurous, which are much less soluble and therefore less active. The metallic mercury was not poisonous if swallowed, for it is not absorbed. Ld. Counsel for the accused also argued that as the complainant, PW1, did not develop any symptoms either of first phase or of the second phase of mercuric poisoning as per the MLC, treatment of record, placed on record, nor did she develop any ailment after eating khichdi but as reported in Ex PW1/A felt giddiness in the morning, said facts itself showed that PW1 had not consumed any poisonous compound of mercury. SC No. 21/2011 30/37
36. True, that it has not been proved on record that any symptoms of first phase or second phase of mercuric poisoning, as elicited herein above, were complained in Ex PW1/A or ever noticed in the MLC Ex PW4/A or treatment record of PW1, Ex PW1/B1 to B4. So there was every possibility that the complainant had not consumed nor was administered any poisonous compound of mercury.
37. In the lodged report Ex PW1/A as well as in the testimonies of material witnesses PWs 1,2 and 8, there is no whisper at all of what all articles were entrusted, on what date/day and to which accused were so entrusted and on which day any demand was made for return of the articles or any of the accused refused to comply with the said demand of such Istridhan articles of PW1. PW1 also testified that she did not have any opportunity to ask for her Istridhan articles directly from the accused persons and also that after demand of her Istridhan she stayed alongwith her accused husband in the same house as husband and wife for about 6/7 months and even after that she never had any opportunity to demand her Istridhan from accused SC No. 21/2011 31/37 perons.
38. Bald allegations, devoid of essential details, of accused Dharmender giving beatings, arrayed accused taunting PW1 for bringing insufficient dowry and harassing her for bringing more dowry have been levelled in Ex PW1/A. PW1 testified that she was even got medically examined after accused Vijay gave her beatings. No document regarding such medical examination has been placed on record nor proved in the course of prosecution evidence. In the course of her testimony, PW1 made considerable improvements and stated all together new facts, not borne out of her previous statement Ex PW1/A, herein before elicited in detail in para 9.
39. Vide Ex DW1/A, dated 17/12/2003 accused Dharmender even informed his superior, the Under Secretary, Rajya Sabha Secretariat at Parliament Annexe alleging sufferings at the hands of his wife claiming PW1 abuses him, levels untolerable allegations and even intends to kill him by pouring some poisonous substance in the food claiming on one such occasion when PW1 served the food SC No. 21/2011 32/37 upon which he vomited detecting some foul play.
40. It is the version of defence that PW8, father of PW1 had large family consisting of six daughters, one son and wife, PW2 for whom he was the sole bread earner, engaged in the private employment as driver and parents of PW1 were adamant to make accused Dharmender their Ghar Jamai, wanting financial assistance from him to meet both ends.
41. PW2 claimed that her husband PW8 was a government driver, posted in Gurgaon denying him to be working in private firm but PW2 could not tell where PW8 was working or whether he was employed in a Private Limited Company. PW2 even feigned ignorance about the salary of PW8. Would a wife not know the earnings of her husband, the sole bread earner in the family? PW8 in the course of his testimony stated of working as driver in public undertaking, drawing salary of Rs 12,000/ per month at the time of marriage of PW1 and Rs 30,000/ per month as on 31/3/2010, the date of his deposition.
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42. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 oral testimonies have been classified into three categories, namely :
(1)Wholly reliable.
(2)Wholly unreliable.
(3)Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.
43. In the case of Sambhaji Hindurao Deshmukh & Ors. vs. State of Maharashtra, 2008 (1) JCC 542 it was held that " If two views are reasonably possible from evidence on SC No. 21/2011 34/37 record, one which favours the accused and the other against the accused, then the view favouring the accused is to be preferred and adopted while very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt." CONCLUSION:
44. Cumulative effect of the entire above discussions is that the interested material witnesses PWs 1, 2 and 8 have made considerable improvements in their testimonies, which when seen in the light of the other evidence and material on record embedded with the severe infirmities and contradictions, elicited above, put credibility and reliability of these material witnesses under cloud of doubt, bringing them under category of neither wholly reliable nor wholly unreliable witnesses as categorized in case of V. Thevar (supra).
45. The embellishments in evidence on record elucidate every likelihood of false implication of the accused persons, on account of matrimonial acrimony interse spouses and their families, introduction SC No. 21/2011 35/37 of the mercury substance by PW1 and PW2, jointly and severely. Bald allegations of cruelty without any details/particulars were levelled against the accused in Ex PW1/A. Exaggerated and new version of alleged incidents of cruelty were testified by PW1 for the first time in court, not substantiated nor corroborated in material particulars from any other evidence on record. Accusations against the accused are devoid of entrustment of Istridhan articles to any of accused persons, their misappropriation by the accused, demand(s) of return of Istridhan articles or the consequent refusal by accused for return of such articles. When read as a whole, the evidence on record brings into existence a reasonable possible view in favour of the accused, of their false implication on account of matrimonial acrimony and not succumbing to the pressure and demands of PW1 and her parents for financial assistance from accused Dharmender asked also to live with them, separately from his parental side. The view favouring the accused is being preferred and adopted in view of law laid in the case of Sambhaji (Supra) in the backdrop of the shaken version of PWs 1 and 2 which is also embedded with severe infirmities and contradictions. The prosecution has failed to prove its case against the SC No. 21/2011 36/37 accused beyond reasonable doubt. Accused are accordingly held not guilty and are acquitted for the offences charged. Their bails bonds are cancelled. Sureties are discharged. File be consigned to record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 29.07.2011 ASJ (FTC)/SD/ NEW DELHI.
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