Delhi District Court
State vs 1. Vijender Dhawan on 27 March, 2010
I.D.No.02402R0162932005
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-1
EAST:KARKARDOOMA:DELHI
SC NO. 49/10
FIR NO. 750/04
PS Preet Vihar
U/s 498-A/302/34 IPC
Instituted on 04/07/05
Argued on 27/3/2010
Decided on 27/3/2010
State versus 1. Vijender Dhawan
s/o Kashmiri Lal Dhawan
r/o H.No.A-89, Gali No.7
Jagat Puri, Delhi.
2. Raj Kumar
s/o Kashmiri Lal Dhawan
r/o H.No.B-19, Gali No.2
Jagat Puri, Delhi.
3.Kashmiri Lal Dhawan
s/o Late Lekhraj
r/o H.No.A-89, Gali No.7
Jagat Puri, Delhi.
4.Smt.Kanta
w/o Kashmiri Lal
r/o H.No.A-89, Gali No.7
Jagat Puri, Delhi.
JUDGMENT
Accused in this case have been tried for commission of offence u/s 498-A/302/34 IPC.
Facts 1 The factual matrix of case, briefly stated is that deceased Sonia and Vijender were married on 5.12.04. On 25.12.04 Sonia received burn injuries and she was admitted in RML Hospital and expired on 29.12.04 in the hospital. It is further the case of prosecution that on receipt of DD No.11A IO/SI Maha Singh along with ct.Veer Pal reached A- 89, Gali No.2, Jagatpuri. SHO also reached at spot. In the statement of 1 I.D.No.02402R0162932005 deceased Sonia, recorded by SDM, it was stated that in the morning about 8am her husband, jeth, mother in law and father in law were present at H.No. 89A, Gali No.7, Jagatpuri and a quarrel took place last night and police was called but a compromise took place between the parties. She stated that in the morning the accused started harassing her. They were demanding washing machine and were stating that less dowry was given. Her husband poured kerosene oil in the glass and poured over her and her jeth Rajkumar brought a match stick. Her husband lighted a match stick and put over her. When she made noise, all the persons ran away. It is further stated that she was about to go to bathroom when her husband poured kerosene oil. After being burnt, she started running downstairs but the gate of ground floor was found locked. On hearing her noise, neighbours came who put quilt and water over her and took her to hospital. She further stated that yesterday it was told to her that if she called the police, tomorrow morning they will tell her what they could do. She stated that since marriage, her in laws were harassing her. On second day of marriage, her husband had slapped her and for a mobile phone, a quarrel took place yesterday. Her parents came and a compromise was entered into. Postmortem was got conducted and exhibits were sent to CFSL. Accused were arrested. On completion of investigation charge sheet was filed in the court on 24.3.05.
Charge 2 Case was committed to the court of sessions by the Learned Metropolitan Magistrate on 2.6.05. Charge for the offences 498-A/34 IPC was framed against all the accused and charge u/s 302/34 IPC was framed against Vijender Dhawan and Raj Kumar on 9.8.05. Accused pleaded not guilty and claimed trial.
3 In order to establish its case prosecution examined twenty eight witnesses in all.
2I.D.No.02402R0162932005 4 I have heard the submissions advanced by ld. Additional PP and ld. defence counsel and have carefully perused the record. Prosecution evidence 5 At the outset, it is important to peruse, what the prosecution witnesses have deposed.
6 Pw1 Om Prakash, father of deceased stated that his daughter Sonia was married to accused Vijender and after her marriage, she was residing at her matrimonial home with the accused persons. After ten days of her marriage, he visited her house and told them that accused persons used to torture her for not bringing sufficient dowry. She was harassed by accused persons who used to demand washing machine. He further stated that on 24.12.04 he went to the matrimonial home alone and his daughter was not in good mood (ruthi hui thee) . He enquired from the accused persons as to why she was not in a good mood on which accused persons stated that she was not taking her meals properly for last about 2-3 days. He made her understand that this was not a good thing. He was asked to sit but his daughter told him to go away as the accused persons could not be expected to behave properly, so he came back. On the same day, he along with his wife again went to matrimonial house of his daughter Sonia. Accused Kashmiri Lal, the father in law of his daughter misbehaved with his wife . On hearing this, his daughter came down from upstairs and made a telephone call to police at 100 number. Police reached at the spot. Accused persons told them that the matter would be resolved by the police. Both the parties went to Police Station Preet Vihar. Due to intervention by police and relatives matter was patched up. Thereafter, he along with his wife came back to his house and his daughter went away to her matrimonial home with the accused persons. PW-1 deposed that he told accused persons that next day in the morning at about 8 am, he would call back his daughter Sonia to his house. On 25.12.04, his brother in law 3 I.D.No.02402R0162932005 Ashok Kumar informed him that Sonia was set on fire by her in laws. He along with Kashmiri Lal Chopra went to the house of accused persons. By that time, Sonia had been shifted to RML hospital. They went to PS Preet Vihar to lodge FIR where he was told that the case had already been registered at the instance of his daughter Sonia. He along with his wife went to hospital and met his daughter. PW-1 further stated that at that time, she was not in the proper state to tell anything. In the meanwhile, SDM came and recorded her statement. His daughter Sonia told that Kashmiri Lal, mother in law ,Raju(jeth) and her husband set her on fire after pouring kerosene oil. When she tried to run away she was not allowed to escape and she was given fist blow on her face. Her statement (Ex.Pw1/A) was recorded by SDM. All the accused along with nanad, whose name he could not recollect, used to harass his daughter as told to him by his daughter. His daughter expired on 29.12.04 due to injuries. He identified dead body of his daughter vide his statement Ex.Pw1/B. In the cross examination,Pw1 admitted that accused did not demand any dowry before or at the time of marriage. He stated that Sonia was doing private service prior to her marriage and accused persons had told that they were not interested in private service. PW-1 admitted that Raj Kumar was having separate residence from other accused persons and had been residing separately at B-19, Jagatpuri. PW-1 deposed that accused persons never demanded any washing machine or any dowry from him or from his wife and did not harass his daughter on that account till her death. PW-1 categorically stated that Sonia never complained to him or to his wife about demand of any washing machine or dowry or harassment by the accused persons. He did not disclose to the SDM about any demand of washing machine or dowry or harassment by the accused persons. PW-1 stated that his statement before SDM was got recorded by relatives and he only signed it. He further stated that neither his statement was read over 4 I.D.No.02402R0162932005 to him nor he had gone through the same. PW-1 stated that earlier in his examination in chief he stated about demand of washing machine, dowry and harassment by the accused on the asking of his relatives. He further deposed that his daughter Sonia since childhood was of hot temperament and was of obstinate nature. Before her marriage in her parents house, sometime out of anger, she used to throw utensil .
7 Pw2 Smt. Krishna is mother of deceased. Pw3 Sh.V.P.Singh is SDM Preet Vihar, Delhi. Pw4 Pradeep Kapoor is neighbour. Pw6 Manohar Lal, uncle of deceased identified the dead body. Pw7 Ashok, maternal uncle of deceased.Pw8 ASI Gurmeet Singh member of mobile crime team. Pw11 Harbans Lal is phoopha of deceased. Pw12 Harbhajan Lal, Pw13 Sh.Bihari Lal and Pw14 Prakash Kapoor are neighbours. The testimony of these witnesses is dealt with in later part of the judgment.
8 Pw5 Dr.K.Goel, CMO Babu Jagjivan Ram Hospital, Jahangirpuri, Delhi conducted post mortem vide Ex.Pw5/A. Pw19 Dr.Kalyani, CMO, RML Hospital, Delhi deposed that on 25.12.04 injured Sonia, wife of Bijender was brought in the hospital with alleged history of burn. Patient was conscious with history of no external injury. She was having burns over her face, neck , anterior chest and abdomen. She was having 50 % burns approximately and referred to emergency surgery and burn ward. Ornaments found on the body were removed in her presence by the medical staff and handed over to police. Pw19 prepared MLC Ex.Pw19/A. In the cross examination, PW-19 could not comment about the nature of injury being accidental or otherwise in this case. PW-19 admitted that there was no smell of kerosene oil emanating from the dead body. Pw22 Dr.Lalit Makhija Head of Department of Burns and Plastic Surgery, RML Hospital, Delhi deposed that death report Ex.Pw22/A was in the writing of Dr.Momin Khan which bears signature of Biswajeet 5 I.D.No.02402R0162932005 Mishra . He deposed that both the doctors were not working in the RML hospital. He was conversant with their handwriting as they had worked with him during course of his duties. Death summary Ex.Pw22/B was in the handwriting of Dr.Biswajeet Mishra.
9 Pw9 ASI Satpal Singh of PCR reached at premises no.A- 89,Street No.7, Jagat Puri, Delhi on 25.12.04 on receipt of information from control room. Pw10 HC Mahesh Chand duty officer registered FIR No.750/04 Ex.Pw10/A and made endorsement on original rukka Ex.Pw10/B.Pw15 ASI Ram Singh, duty officer at PS Preet Vihar at around 7.50 am on 29.12.2004 received telephonic information through ct.Subhash Chand from RML hospital regarding death of Sonia, who was admitted in the hospital on 25.12.04. Pw15 recorded this information in DD NO.7A and copy of this was given to SI Maha Singh. True copy of DD No.7A is Ex.Pw15/A.Pw16 HC Mahender Singh on 25.12.04 was posted at PS Preet Vihar as duty officer. At around 8.58 am, wireless operator in the PS came in the room and informed him that at premises no.A- 89,Street No.2, Jagat Puri , Delhi a lady had set herself on fire. Pw16 recorded this information in daily diary no.B at serial 11 through ct.Surender. Its copy was sent to SI Maha Singh who proceeded for the spot along with ct.Veer Pal. SHO of PS also proceeded for the spot. True copy of DD No.11B is Ex.Pw16/A. Pw17 HC Subhash was on duty at RML Hospital on 29.12.04. He deposed that deceased who was admitted on 25.12.04 died in the hospital on 29.12.04. He informed PS Preet Vihar in this regard around 7.50pm. Pw18 SI Pati Raj posted at PS Preet Vihar on 24.12.04 stated that on receipt of PCR call regarding quarrel at A-89, Jagat Puri, Street No.6, Delhi he reached there and found that a quarrel had taken place between Sonia and accused over use of mobile phone. He brought Sonia and Vijender to PS and parents of deceased Om Parkash and Krishna and parents of Vijender namely Kashmiri Lal and 6 I.D.No.02402R0162932005 Kanta along with other relatives from both sides had visited the PS. PW- 18 stated that matter was pacified and both the parties entered into a compromise which was reduced into writing and was witnessed by the relatives and parents of both the parties. Photocopy of which is Ex.Pw7/DA. In the cross examination, he deposed that at that time, no complaint regarding dowry demand or harassment was made by Sonia and her parents. Contents of Ex.Pw7/DA were recorded by Sonia herself who stated that quarrel was on account of use of mobile phone and she will not take any wrong step in future. Pw20 ct.Sonu Kaushik prepared scaled site plan Ex.Pw20/A. Pw21 ct.Surender Kumar DD writer on 25.12.04 received a call through wireless operator of the PS that a lady had set herself on fire at A-89,Street No.2, Jagatpuri. He recorded this information in daily diary register no.B at serial No.11. True copy of DD No.11B is Ex.Pw16/A. Pw21A ct.Ramesh photographer deposed that at the instance of IO/SI Maha Singh , he took nine photographs of scene of crime which are Ex.Pw21/A1 to A8 and negatives of same are Ex.Pw21/B1 to B8. Pw23 ct.Beerpal joined the investigation with IO. Pw24 Inspector Jagdish Prasad SHO PS Shastri Park, Metro Station Delhi arrested accused Kanta vide arrest memo Ex.Pw24/A and got conducted her personal search vide memo Ex.Pw24/B, got scaled site plan prepared, sent exhibits to FSL and filed the charge sheet against the accused persons. Pw25 SI Maha Singh, First IO investigated the case initially. He placed on record seizure memo Ex.Pw25/A, site plan of spot Ex.Pw25/B, arrest memo of accused Vijender Kumar , Kashmiri Lal and Raj Kumar Ex.Pw25/C , Ex.Pw25/D, Ex.Pw25/E and their personal search memos Ex.Pw25/C1,Ex.Pw25/D1 and Ex.Pw25/E1. He recorded brief facts of the case (Ex.Pw25/F). Pw26 Inspector Ravinder Kumar took over the investigation from SI Maha Singh . He recorded his endorsement on the statement of deceased recorded by SDM Ex.Pw26/A. He deposed that 7 I.D.No.02402R0162932005 investigation was handed over to inspector Jagdish. Pw27 HC Dharamvir received information concerning burning at H.No. A-89,Jagat Puri on telephone no.100 at about 8.55am. He filled up requisite form and sent the same to the concerned net.
Statement of accused 10 On conclusion of prosecution evidence statement of accused persons u/s 313 Cr.P.C. was recorded. Accused pleaded innocence and false implication. Accused Vijender Dhawan stated that he and his family members never harassed Sonia and no dowry was demanded by them from her. Sonia, deceased was of hot temperament and was obstinate. She used to over use the mobile phone. She was advised by him not to do so so as it might affect her health but she did not stop over using mobile phone. Accused stated that on 24.12.04 a petty quarrel on the overuse of mobile phone took place. The matter went to Police Station Preet Vihar where Sonia had undertaken not to overuse the mobile phone. She also undertook not to raise any quarrel. She threw away the mobile phone in the Police Station and swallowed the chip of the mobile. Next morning, he had gone to Vinod Nagar at the house of his cousin Sunder Lal where marriage of Gaurav was to take place. Accused came back about 11am and came to know that Sonia had got burnt. He was arrested by the police from his house. Kishan Lal had accompanied him to Vinod Nagar early in the morning and had come back with him around 11am. Accused stated that he had been falsely implicated in this case and statement of Sonia had been prepared at the instance of her family members. Accused Raj Kumar stated that he resided at a separate place and had no concern with the matrimonial life of his younger brother Vijender Dhawan and deceased Sonia and he was falsely implicated in this case being jeth (brother in law) of deceased. Accused Kashmiri Lal stated that on the day of incident, he had gone to Mandir and when returned back to his home 8 I.D.No.02402R0162932005 around 9am he saw Sonia in burnt condition. Smt.Kanta had gone to the house of elder son Raj Kumar @ Raju as his son was ill. She stated that at the time when Sonia got burnt, she was not present at home. She had been falsely implicated in this case at the instance of parents of Sonia. Submissions advanced 11 Ld.Additional PP referred Khujji alias Surendra Tiwari v State of Madhya Pradesh 1991 CRI.L.J.2653in support of his submission that witness who supports in the examination in chief but turns hostile and does not support in the cross examination, in that case statement made in the cross examination should not be discarded. There is no dispute about this preposition of law but the court has to consider the testimony of witnesses and the material on record as a whole to see whether prosecution has succeeded in proving the guilt of accused beyond doubt or not. On the other hand, Sh. P.L. Behl, Ld. defence counsel submits that the prosecution case is full of glaring inconsistencies, contradiction and suffers from serious infirmities. He submits that the prosecution evidence on record shows that the deceased was of hot temperament and obstinate lady and .there is ample evidence on record that deceased used to over use mobile phone and when her husband requested her not to overuse the mobile phone, deceased used to get angry. As per prosecution case, on 24.12.2004 an altercation between deceased and accused Vijender took place on account of over use of mobile phone and on arrival of P.C.R and Pw-18 SI Pati Raj, Sonia and Vijender Dhawan were brought to police station where parents of both the parties along with other relatives and visited police station and matter was pacified and compromised. Compromise deed PW -7\DA has been proved by PW-18 S.I . Pati Raj. On next morning, deceased got burn injuries and subsequently alleged to have made a dying deceleration before PW-3 and the facts of this case were twisted and version of the of the over use of 9 I.D.No.02402R0162932005 mobile phone was tried to be suppressed and false dowry demand colour was given by the prosecution witnesses which throws grave doubt on the prosecution case. He submits that the parents of the deceased namely PW1 Om Prakash and PW-2 Smt. Krishna mother of deceased have not supported the prosecution case and completely denied prosecution case, in cross-examination the testimonies of rest of the prosecution witnesses rather supports the defense version. There are glaring inconsistencies in the alleged dying declaration allegedly of the deceased i. e EX.PW-3B. There is grave doubt of deceased making any such statement and the dying declaration is totally un-reliable. While as per dying declaration, the husband Vijender poured kerosene oil upon the deceased while jeth Raj Kumar @ Raju brought a match box and husband alighted the match stick and he burned her. He submits that this version of the deceased in dying declaration stands totally discredited and falsified by the C.F.S.L. Report.
12 In Jitender Kumar v/s State of N.C.T. 2009 VOL . I JCC 491, the dying declaration was disbelieved by our own high court . It was ob- served that no kerosene oil dropping on the floor was there. Doctor had not record that he noted smell of kerosene from the person of the deceased and it was doubtful whether mother-in- law was at all in the house. In the present case no kerosene or its residues were found on scalp hairs, match box as well as the glass apart from the burnt clothes. Ld. Defence counsel submits that suffice would it be to state that a dying declaration is the piece of evidence and has to be considered along with other relevant and admissible evidence which is brought on record where evidence on record castes doubt on the factual expects disclosed in a dying declaration, unless explained satisfactorily, the same would be fatal to a dying declaration, is settled law .Ld. Defence counsel submits that it is pertinent to mention here that while granting bail to accused Vijender Dhawan vide bail order dated 03-11-2008 it was observed by the honorable high court that CFSL 10 I.D.No.02402R0162932005 shows absence of any kerosene oil in the aforesaid abject.Admittedly, no kerosene oil smell was found coming from the body of injured Sonia when she was admitted in RMI hospital on that very day which further create doubt in the dying declaration. No kerosene oil smell was found coming from the body of the deceased as per postmortem report EX. PW-5\A and doctor K. Goyal who conducted the postmortem. He submits that the doc- tor who allegedly made endorsement " fit for statement" on the MLC re- port of the deceased has not been produced by the prosecution at all and the endorsement has not been proved by calling any witness . it it incum- bent upon the prosecution to summon the said doctor . in absence of prov- ing " fit for statement" endorsement on MLC EX PW-3\A tho prosecution had utterly failed to prove that the victim was mentally and physically fit for the statement. In support ld.counsel referred Smt. Laxmi vs. Om Prakash 2001 VOL.III RCR 358, Hon'able supreme court disbelieved the dying declaration and one of the main ground of acquittal was that it was not proved that deceased was mentally and physically fit for the state- ment.In State of Karnataka vs. Sharif Ahmed 2004 VOL III RCR 104, the Hon'ble High Court held in a case u/s 302 IPC where accused allegedly poured kerosene oil on his wife and set her on fire. No evidence except dy- ing declaration was there. Doctor was not present all through the record- ing. No indication was given by the doctor that the victim was in mentally and the physically fit condition to understand questions. In the present case as per PW-3 SDM, face of Sonia was burnt along with her neck, then how she could have made statement at all. As per inquest papers and ad- mitted by pw-3 sh VP Singh . In EX.PW-3\PH he mentioned that body of the deceased was bandaged. In cross- examination, PW-3 admitted that except face the entire body of Sonia was bandaged . As per SI Maha Singh the entire body of victim was bandaged except her face. under such cir- cumstances how the thumb impression allegedly of sonia could be taken 11 I.D.No.02402R0162932005 on EX.PW-3\B. Ld. Defence counsel submits that as such there is grave doubt that the alleged thumb impression was ever put by the deceased on EX .PW-3\B . It shall not be out of refrence to mention here that deceased was graduate as per her and statement EX PW-3\B was not got signed from her as per the endorsement of pw-3 below the RTI .allegedly of sonia by mentioning "unable to sign" . He submits that this would mean that so- nia was unable to sign because her hand got bandaged , then how she could put her thumb impression on EX.PW-3B In this regard testimony of PW-1 om prakash, father of the deceased was very important who stated neither sonia signed any statement nor put her signature. PW-2 Smt Kishna stated that "when she saw sonia in hospital her whole body includ- ing her both hand were bandaged".
13 Next, ld. defence counsel submits that as per PW-25 SI Maha Singh there was no sign of struggle at the spot. While as per dying declar- ation the accused person had locked the gate but on the other hand she had herself stated the neighbourer came on her alarm and put quilt and water on her. Both these versions are self contradictory. He submits that it is very important to mention her that number of prosecution witnesses who happened to be neighbourer of accused have stated that the deceased was alone in the house at that time and they had extinguished her fire . Had gate been locked how neighbourer could have come and extinguished the fire. None of the neighbourer alleged locking of the gate which it self shows that the dying declaration is not only false but highly unnatural. it would not be out of reference to mention in the house when deceased got burnt which also shows the innosent of the accused persons.Ld. defence counsel submits that no time has been mentioned in EX PW-3\B by the SDM regarding time of recording of dying declaration or concluding it. Ld. defence counsel submits that deceased never made any dying declaration and it was got recorded by the relative of the deceased and deceased not 12 I.D.No.02402R0162932005 made any such statement . PW-1 father of the deceased admitted that on 25\12\2004 , when SDM reached hospital whatever his relatives told SDM to write , SDM wrote the same and statement was not made by So- nia. As per Om Prakash, deceased never signed any such statement and she was not conscious at that time and was not able to speak. PW-2 Smt. krishna admitted that on arrival of the SDM, his relatives discussed the matter with the SDM and whatever his relatives were asking, the SDM was writing the same and in her presence sonia did not sign any state- ments nor put any thumb impression as she was not conscious to do so. He submits that Pw-1 Om Prakash has categorically stated that his daughter Sonia was of hot temperament since her childhood and had ob- stinate nature and sometimes she out of anger she used to throw utensils before her marriage in her parental home. It has also came in the testi- mony of pw-1 that on 24-12-2004 her daughter was not in a good mood.
14 In Ram Kalan vs. State 2009{4} JCC 2504 our high court has held that once there is doubt in the mind in respect of the possibility of the deceased having made a dying declaration to teach the applicant a lesson, which is corroborated by the testimony of her kins - it would not be appro- priate to convict the applicant solely on the basis of dying declaration" In the present case deceased is proved to be of hot temperament abstinate and was not in a good mood on 24-12-2004 . Her relatives were getting re- cording dying declaration . As such the dying declaration is not worthy of credence. There are glaring inconsistencies and contradictions between EX.PW-2\B and the oral dying declaration made by the deceased before PW-4 pradeep Kumar,pw-13 Sh. Bihari Lal and PW-14 Sh. Prakash Ka- poor .PW-4 Pradeep Kumar, PW-14 Sh. Prakash Kapoor are immediate neighborer of the accused person who immediately reached at the spot. As per them deceased told them that she had got burned while cooking food in the kitchen . This oral dying declaration of the deceased coupled with 13 I.D.No.02402R0162932005 complete absence of any kerosene oil or its residues as per CFSL report in the scalp hair and clothes of the deceased falsifies the version given in EX.PW-3/E and oral dying declaration of the deceased as stated by PW- 4,PW-13,PW-14 has gone unchallenged or cross examine these witness . Both the written and oral dying declaration are totally in confliction and are inconsistent and contradictory . He submits that it has been held in various judgments of courts contradictory dying declaration cannot be ac- cepted and have to be rejected. He submits that in view of the above said facts and circumstances , there is grave doubt about the genuineness of the dying declaration allegedly made by the deceased and deserve to be re- jected. As such the prosecution has miserably failed to prove the charge U/s 302/34 IPC, against accused Vijender Dhawan and Raj Kumar @ Raju. He submits that the prosecution evidence with regard to charge u\s 489A/34 IPC regarding demand of dowry and cruelty is totally inconsistent and falsified by several prosecution witnesses.Although pw-1 om prakash, father of the deceased, Pw-2 Smt. Krishna,mother of the deceased stated the prosecution case in examination -in-chef but during cross examination they did not allege anything incriminating against the accused persons. as such testimony of PW-1 and PW-2 highly contradictory in itself and these witnesses were declared hostile by the prosecution, the testimony of PW-1 and PW-2 deserve to be rejected.While in examination-in-chief Om Prakash made vague and general allegation regarding harassment and de- mand of washing machine but in cross examination he admitted that mar- riage between the parties had taken place in a cordial atmosphere and ac- cused person did not demand any dowry before or at the time of marriage . He admitted that Sonia was doing private service prior to her marriage and accused persons told that they were not interested in private service.Pw1 admitted that accused persons never demanded any washing machine or any dowry from him or from his wife and did not harass her 14 I.D.No.02402R0162932005 daughter in that account till her death and deceased never made any com- plaint to his parents regarding any demand or harassment. He has futher admitted that he had not disclosed the S.D.M about the demand of wash- ing machine or dowry or harassment by the accused person and his state- ment before the S.D.M was got recorded by his relatives and had simply signed it without going to its contents. He admitted making allegations re- garding demand of washing machine or dowry on the instigation of his rel- atives. PW-2 Smt. Krishna had also admitted in her cross examination that Sonia never informed about her informed about demand of any wash- ing machine or dowry or any harassment . She further admitted that hav- ing deposed in examination -in-chief with regard to harassment and cruelty to her daughter at instance of her relative.
15 There was no history of any demand of dowry or harassment on that account or other wise which stands proved from that the fact that PW-1 Om Prakash admitted that on 24-12-2004 on reaching matrimonial home of Sonia accused Vijender and Kashmiri Lal told him that Sonia was over using the mobile phone and they had requested not to over use the the mobile phone or otherwise she could fall ill and this fact ill and this fact was confirmed by his daughter. He admitted that in the police sta- tion on 24-12-2004 , Sonia had assured that she would not overuse the mo- bile phone in future and would behave properly and also proved the com- promise as EX.PW-2/DA-1as per PW-1 the pretty quarrel which took place on 24-12-2004 was only on account of overuse of the mobile phone was not due to any other reason. PW-2 Smt. Krishna admitted that altercation took place on 24-12-2004 on account of over use of mobile phone which would harm her health. As per PW-2 in police station Sonia apologised be- fore them that she had been over using the mobile phone and her husband requested them not to overuse the same and sonia admitted that she was at fault and would not take any such step in future. She proved signing of 15 I.D.No.02402R0162932005 compromise document Pw-2/DA-1 .PW-7 Ashok Kumar (materal uncle also deceased) admitted in cross examination that on 24-12-2004 in police sta- tion he came to know that the alteration took place between Sonia and Vijender since Sonia and Vijender since Sonia was using mobile phone for long talk and and that and that too frequently. PW-11 Sh. Harbans Lal, Phupha of the deceased stated in examination-in-chief that in the police station Sonia gave her mobile phone to her maternal uncle and declared that she would not keep mobile phone and assured the accused persons not to give them any chance of complaint in future . Similarly , PW-13 Bi- hari Lal has stated about alteration on keeping of mobile phone. Ld. de- fence counsel submits that PW-14 Prakash Kapoor stated in examination- in-chief that mobile phone was taken from Sonia by her materal uncle was destroyed by him but its chip was chewed by Sonia in the presence of all in the police station and Sonia assured not to use mobile phone in future. The documents EX.PW-2\DA-1 {PW-7\DA} also shows the same .This makes it abundantly clear that it is not a case of dowry demand or any harassment or cruelty committed upon the deceased by her in-laws. The above said admitted facts by all the relatives as well as neighbourer of ac- cused show that the background was only on account of over use of mobile phone .This shows that the accused person were concerned with the wel- fare of the deceased and there is no trustworthy evidence on record against any of the accused person U\S 489A I.P.C. He submits that there was a gas cylinder and cooking gas stove was lying in the kitchen at relev- ant date and time . The deceased made oral dying declaration before PW- 13 and PW14 to save her as she had got burnt while cooking food, the ab- sence of Kerosene oil or its residues on the clothes scalp hairs and other objects lying nearby shows that deceased might have got burnt while cook- ing food on gas stove. The investigation agency being over jealous planted one stove allegedly shown to have been seized from the bathroom, NO in-
16I.D.No.02402R0162932005 dependent neighbourer or respectable person of the locality were associ- ated at time of seizure of the object from the spot . This fact of non-joining independent public witness stands admitted by PW-25 S.I Maha Singh and PW-26 Inspector Ravinder Kumar part I.O of the case.
12 Ld. defence counsel submits that no attempt was made to lift the chance print from glass, stove and match box which is fatal to the pro- secution case. PW-8 A.S.I Gurmeet Singh of crime branch admitted this fact. The explanation for not taking finger prints is funny that he could not lift chance prints from these objects due to kerosene oil on these art- icles. He admitted that he has not mentioned this fact in this statement before the I.O PW-25 Maha Singh and PW-26 Inspector Ravinder also stated making any attempt to lift the chance print were deliberately not lifted because the police officials concerned with the investigation knew that it did not contain finger prints of accused persons. PW-11 Harbans Lal (mama of the deceased) admitted that the marriage was solemnized in cordial atmosphere and whenever after marriage he met Sonia, she never complained. She never complained against the accused persons. As per him, there was no issue between her and her in-law over the overuse of mobile phone and it was fault of Sonia.
16 Lastly, ld. defence counsel submits that deceased Sonia was alone in the house when she got burnt and this fact is admitted by several PWs and clear from their testimony PW-4 Pradeep Kumar (neighbourer of accused) who firstly reached the spot and tried to extinguished fire of So- nia has admitted in cross examination that Sonia has admitted in cross examination that Sonia was alone at that time in the house, when she was inflamed . PW13 Bihari lal and PW14 Prakash Kapoor immediate neigh- bourer of accused person who had reached the spot have stated that de- ceased was present in the house in burnt condition . none of these PW-3 17 I.D.No.02402R0162932005 have alleged presence of any of the accused person. Similarly , PW-12 Har- bhajan Lal who reached the spot , extinguished fire of Sonia by putting quilt upon her has not alleged any presence of any of the accused person at the spot . In cross examination he has admitted that the main gate of the house of accused person was lying open and door leading to 1st floor premises was also open and "Sonia was also alone in the house at that time".Similarly PW-7 mama of the deceased has started reaching the spot and removal of Sonia by hospital by police and has no where alleged pres- ence of any of the accused persons PW-9 Satpal A.S.I , who was posted in P.C.R . unit and had reached the spot at 8:50 A.M also did not speak pres- ence of any of the accused person at the spot.Admittedly accused Raj Ku- mar @ Raju(jeth) has been residing separately at B-19 , Gali no 2, Jagat- puri, Delhi, with his family from other accused persons and he was present at his house at the time of alleged incident . Accused Vijender Dhawn had gone to Vinod Nagar,to the house of his cousin Sunder Lal to discuss about the marriage agreement of Gaurav s\o Sunder Lal. Accused smt kanta had gone to home of co-accused Raj Kumar @ Raju as the son was ill. non-presence of accused person at the spot at the time of alleged incident points out towards the innocence of the accused person. since sev- eral prosecution witnesses have admitted the factum of deceased alone in the house at the time of alleged incident . This itself is a sole circum- stance pointing out not only innocence of accused person but also showing their false implication in the case.
Legal position 17 In a criminal trial, however intriguing may be the facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirements of proof cannot 18 I.D.No.02402R0162932005 lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 304-B, 498-A IPC and Section 113-A, 113-B of the Indian Evidence Act.To appreciate the submissions made at bar and before discussion of prosecution evidence , it is useful at this stage to summarise the legal position.
18 In Raman Kumar Vs. State of Punjab 2009 Cri. L.J. 3034 Hon'ble Supreme Court summarized the position of Law in this regard as :
"In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv)Such cruelty or harassment should be for or in connection with demand of dowry.
(v)Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
19 As per the definition of "dowry death" in Section 304-B IPC and Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry". The legal position is well settled that joint reading of Section 113-B of the Evidence Act and Section 304-B IPC reveals that there must be cogent material to show that `soon before her death' the victim was subjected to cruelty or harassment, and that too in connection with any demand for dowry. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than 19 I.D.No.02402R0162932005 in normal circumstances". The expression "soon before" is very relevant where presumption u/s 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption would operate. Evidence in this regard has to be led in by the prosecution and established beyond doubt. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
20 " In Hazarilal v. State of M.P. 2007 (8) SCALE 555 it was inter-alia observed :
"There being no other material to show as to how the deceased was being harassed or subjected to cruelty, the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and indefensible. There was no material to substantiate this conclusion. Merely on surmises and conjectures the conviction could not have recorded. There is a vast difference between "could have been", "must have been" and "has been". In the absence of any material, the case falls in the first category. In such a case conviction is impermissible."
21 It is well settled that before a presumption is raised under Section 113-B Evidence Act, the foundation thereof must exist. Unless and until the preliminary facts are established beyond reasonable doubt by the Prosecution, it is not open to draw a presumption against the accused to invoke this Section. The provisions of Section 498-A IPC and Section 113- A of Evidence Act have been interpreted in a recent judgment in the case of Gopal Vs. State of Rajasthan. ((2009) 3 SCC (Cri) 1343):
"The ingredients of Section 498-A are as follows:
"498A: Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or 20 I.D.No.02402R0162932005 the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section 'cruelty' means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
"......Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanation to Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence."21
I.D.No.02402R0162932005 22 In Satvir Singh vs. State of Punjab, (2001) 8 SCC 633, Hon'ble Supreme Court considered the definition of "dowry" as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C. and held that :
"it should be any property or valuable security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of "dowry".
"There are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties".
This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."
23 In Appasaheb and another vs. State of Maharashtra, 2007 (1) Crimes 110, their lordships of the Hon'ble Supreme Court observed that :
"In view of the definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. A demand for money on account of some financial stringency or for meeting some urgent domestic 22 I.D.No.02402R0162932005 expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood."
24 In Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed :
"In case of an offence under section 304-B Indian Penal Code an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution."
Conclusions 25 The case of the prosecution is that the deceased Sonia was declared fit by the doctor and SDM (PW-3) deposed that he recorded statement of Sonia after ascertaining the condition of the patient from the doctor that the patient was `fit for statement' vide endorsement of doctor on MLC Ex.PW3/A. MLC is prepared by Dr. Kalyani (PW-19). Evidence on record shows that in her deposition, doctor (PW19) has not stated that she declared the patient `fit for statement'. It is not established which doctor declared her fit for statement. The said doctor has not appeared in the witness box. Sh. V.P. Singh, SDM (PW-3) also could not tell the name of the doctor who declared deceased as `fit for statement'. PW3 stated that he asked attending doctor to declare the patient fit for statement and just 23 I.D.No.02402R0162932005 before reaching in the room, the patient was declared fit for statement on the MLC whereas IO/SI Maha Singh (PW-25) testified that he had not asked about the fitness of the deceased from the doctor at his own level. The father of deceased (PW-1) deposed that when he along with his wife reached the hospital, at that time deceased was not in proper state to tell him anything and in the meanwhile SDM came. PW-4 also stated Sonia was `unconscious' when was being removed to hospital. He deposed that Sonia had not regained consciousness till he remained in the hospital. Evidence on record led by prosecution fails to establish satisfactorily that patient was in a physical and mental fit state of mind to make statement. It has also come on record that the entire body of the deceased was bandaged then how she put her thumb impression. Admittedly, deceased was an educated lady and if she was in her senses and conscious as the prosecution wishes the court to believe, there is no reason why she did not put her signature on her statement. The parents of deceased have deposed that the statement of the deceased was recorded by the SDM at the instance of relatives. The testimony of the neighbours Pradeep Kapoor (PW-4), Harbhajan Lal (PW-12), Bihari Lal (PW-13) and Prakash Kapoor (PW-14) shows that deceased Sonia was alone in the house and these witnesses had gone to save her. PW-13 stated that deceased was uttering "uncle ji mujhe bacha lo". The neighbours deposed that the main gate of the house was lying open whereas in the statement Ex.PW3/A, it was mentioned that the main gate was lying locked. If the main gate was in fact locked, it is not clear how the neighbours i.e. prosecution witnesses - PW4, PW11, PW13 and PW14 came inside the house. PW-4 deposed that on 25.12.2004 at about 8.00 or 8.30 am, he was going to fetch milk, he heard cries of Sonia "save save". He went on the first floor of the house of accused Vijender Dhawan. Sonia was in flames. He made efforts to extinguish fire by putting a quilt over her. PW-4 testified that Harbhajan 24 I.D.No.02402R0162932005 Lal (PW12) also reached there. PW-4 clearly deposed Sonia was caught in flames while cooking in the kitchen. These prosecution witnesses who are neighbours are material witnesses and have categorically stated that deceased was alone in the house and burned herself while cooking food. They further stated that on 24.12.2004 a quarrel had taken place regarding mobile phone of the deceased Sonia who had undertaken that she will not keep the mobile phone with her and she had taken out the chip of mobile phone. PW-11 testified that he had come to know that it was the fault of Sonia. All these witnesses admitted that accused Raj Kumar was living separately from Vijender Dhawan and his parents. It is important to note that the parents of the deceased i.e. PW-1 Om Prakash and PW-2 Smt. Krishna have not supported the case of the prosecution in the cross-examination. Both the witnesses were cross-examined by the Ld. Addl. PP for State. In the cross-examination, both the witnesses deposed that there was no demand of dowry at any stage from the side of the accused after the marriage. PW1, father admitted that accused Raj Kumar was having separate residence from other accused persons and had been residing separately at B-19, Jagatpuri. PW-1 categorically stated that the accused persons never demanded any washing machine or any dowry from him or from his wife and did not harass his daughter on that account till her death. PW-1 stated that he did not disclose the SDM about any demand of washing machine or dowry or harassment by the accused persons. Moreover, CFSL report shows that kerosene or its residues could not be detected in exhibits 2,3,4 and 5. Ex.2 is burnt material, Ex.3 is one empty metallic glass, Ex.4 is unburnt match sticks and Ex.5 are black hairs. The totality of aforesaid circumstances on record, shows that the dying declaration suffers from infirmities and on the other hand defence version stated by accused in their statement not only seems probable but is corroborated by prosecution witnesses themselves. In view 25 I.D.No.02402R0162932005 of aforesaid inadequacies in evidence on record, accused cannot be convicted. Consequently, all the accused namely Vijender Dhawan, Raj Kumar, Kashmiri Lal Dhawan and Smt. Kanta are hereby acquitted. Their bail bonds cancelled, sureties discharged. File be consigned to record room.
Announced in the open court (Vinay Kumar Khanna)
on 27.3.2010. Additional Sessions Judge-I
East: Karkardooma Delhi
26