Delhi District Court
State vs . Ajay Kumar Mishra Etc. 1 Of 21 on 26 May, 2015
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS
JUDGE-03 (NE), KARKARDOOMA COURTS, DELHI.
SC No. 11/14
Unique case ID no. 02402R0102542014
FIR No. 04/14
PS : Sonia Vihar
U/s 302/304B/498A/406/34 IPC
State
Versus
1. Ajay Kumar Mishra
S/o Late Sh. Mahadev Prashad Mishra
R/o B-877, Gali no. 13, 1st Pusta,
Sonia Vihar, Delhi
2. Asha Devi
W/o Late Sh. Madhav Prashad Mishra
R/o B-877, Gali no. 13, 1st Pusta,
Sonia Vihar, Delhi
Date of committal : 17.04.2014
Date of arguments : 18.05.2015
Date of judgment/final arguments : 26.05.2015
FIR No. 04/14 (Parveen Singh)
State Vs. Ajay Kumar Mishra etc. 1 of 21
JUDGMENT :
Brief statement of the reason for decision :
1. As per the allegations of the prosecution, one Shiv Parsad Pandey got recorded his statement on 01.04.2014 before Ld. SDM, Karawal Nagar that he got solemnized the marriage of his daughter Smt. Suman with accused Ajay Kumar Mishra on 21.05.2013 according to Hindu Rites and Customs and accused demanded a dowry of Rs 20,000/- alongwith ring and watch etc. which was duly given. It is further alleged that initially the relationship of deceased with the family members of accused was cordial, but on 10.12.2013, she visited her parental home and it was revealed that her relationship with family members was not so cordial and family members used to demand dowry. It is further alleged that on the date of death of deceased, deceased Suman made a call to her parents and informed that accused persons had been harassing her on the pretext of bringing insufficient dowry and demanding more dowry and causing harassment to the deceased. Thereafter, accused allegedly caused the death of the deceased Suman by setting her on fire and she was subjected for dowry demand soon before her death. On the basis of statement of the complainant, concerned PS lodged an FIR under Section 304B/406/498A/34 IPC and case was investigated and chargesheet was filed before the court of Ld. MM.
2. This chargesheet committed to this court after compliance of Section 207 Cr.PC.
FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 2 of 21
3. This court framed charges under Section 498A/304B/302/34 IPC against the accused persons and accused persons pleaded not guilty.
4. To prove the allegations, prosecution has examined PW1 Sh.
Shiv Prasad Pandey, PW2 Smt. Rajeshwari, PW3 Sh. Rakesh Sharma, Ld. SDM, PW4 Smt. Vipin Devi, PW5 Smt. Baby, PW6 Sh. Bhaskar Pandey, PW7 SI Mohd. Ismail, PW8 Inspector Rohtash Kumar and PW9 Inspector Ramesh Chand and closed PE.
5. After PE, entire incriminating evidence was explained to the accused persons and the statements of accused under Section 313 Cr. PC were recorded and they pleaded innocence. Accused have not led any DE.
6. I have heard the arguments and perused the record. To substantiate the allegations, the testimonies of PWs are material.
6. (i) PW1 Sh. Shiv Parsad Pandey has deposed that he had eight kids and deceased Suman was his daughter who got married to Ajay Kumar. It is further deposed that the marriage took place on 21.05.2013 and match was arranged through son-in-law of his brother but he did not recall his name. It is further deposed that in the marriage of his daughter he had gifted the groom side Rs. 20,000/- in cash, one watch and cycle besides a gold necklace, a pair of gold ear ring, a pair of silver anklets and few silver rings for fingers / feet to her daughter. It is further deposed that soon after marriage, her daughter resided with her in laws in village Devari, but after 4-5 months, she alongwith her son-in-law i.e. accused Ajay came to reside FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 3 of 21 at Sonia Vihar, Delhi. It is further deposed that she used to reside with her mother-in-law, sister-in-law, brother-in-law and husband. It is further deposed that on the day when his daughter died, at about 8.00 am, she made a telephonic call and told him that she was being beaten for bringing more dowry, but he consoled her that it was a period of kharmas and after that period, after Makarskaranti, he would visit her and take her back to parental house, but after two hours he received a telephonic call from accused Ajay Kumar that her daughter had expired, however one Daroga took the phone from Ajay and told him that her daughter was in injured condition but was not expired and he asked him to come Delhi soon. It is further deposed that he alongwith his son and wife came to Delhi and reached the house of accused at Sonia Vihar, but thereafter they were taken to the office of Ld. SDM at Karawal Nagar where he got his statement recorded which is Ex. PW1/1 and bears his signature at point A. It is further deposed that on the next day, he went to GTB Hospital where he identified the dead body of his daughter and his statement was recorded. The identification statement is Ex.PW1/2. Dead body was handed over to him after postmortem and receipt is Ex.PW1/3. He handed over marriage card of her daughter to IO and seizure memo to seize the marriage card is Ex.PW1/4 and marriage card is Ex. PW1/5.
6. (ii) During cross examination by Ld. APP, PW1 has denied that Rs. 20,000/- and other dowry articles were given by him to accused and his family on demand. Vol. He deposed that accused did not raise any demand. It is further deposed that he had given these articles out of his free will. Further, during cross examination by Ld. APP, he admitted that initially his FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 4 of 21 daughter was happy with her married life, but on 10.12.2014, they realized that her relation was not cordial. It is admitted that his daughter died at about 10.00 am and she made a call and stated that her mother-in-law was harassing her for bringing insufficient dowry, but her mother consoled her not to say anything to her mother-in-law being an elder and her father would visit her after kharmas.
6. (iii) During cross examination by accused, PW1 has admitted that on that day when her daughter died, he did not have any telephonic conversation with her and call was attended by her wife and all the conversations took place between them.
7. PW2 has deposed that her daughter Suman got married on 21.05.2013 with accused Ajay Kumar and after her marriage, initially she stayed with him in his native village and about 25 days prior to her death, she shifted to Delhi. It is further deposed that in the village her daughter was happy. It is further deposed that on the day when her daughter died, at around 10.30 am, she made a call on her mobile and informed that her mother-in-law was harassing her for bringing less dowry and was taunting that she belonged to a very poor family. It is further deposed that she informed her that her life was in danger and she was also crying. It is further deposed that she advised her daughter not to say anything to mother-in-law being an elder and she would ask her father to visit Delhi and to bring her back to her parental home after the period of Kharmas. It is further deposed that after some time she made a call to her son-in-law i.e. accused and asked him to give phone call to her daughter but he told that he was going FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 5 of 21 to his job. Around one hour thereafter accused Ajay called her back and informed that her daughter had expired. It is further deposed that on hearing this, she alongwith her husband came to Delhi and went straight to Karwal Nagar and gave her statement to the Ld. SDM. After two days, they received dead body of their daughter after postmortem.
7.(i) During cross examination by Ld. Addl. PP, it is admitted that after coming to Delhi, her daughter used to call her and used to cry always. It is further admitted that at the time of her marriage, Rs. 20,000/- and a ring was given in dowry on the demand raised by in- laws. It is further admitted that in laws of the deceased used to harass her for bringing insufficient dowry. It is further admitted that on day of incident, her daughter was talking on phone and she said, till then her father would come after Kharmas they would not find her alive. It is admitted that the telephone call was made firstly by police man and thereafter by her son-in-law / accused.
7. (ii). During cross examination, she has deposed that she met the police personnel immediately after alighting from the bus at Karawal Nagar and two policemen met there. It is further deposed that statement of her husband was recorded by a Daroga who was wearing uniform. The same Daroga had recorded her statement which was read over to her. It is admitted that till the date of death of her daughter, she did not make any complaint to police or any other authority regarding harassment to her by her in-laws. Vol. She did not get time or opportunity to do so. It is further admitted that there were a lot of people and relatives who were residing at Delhi and one of them belonging to her village and used to stay near the house of the accused but he was not related to her, however her family had FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 6 of 21 good relations with him. It is further deposed that her son used to visit her daughter at Delhi and even he was accompanied her at the time of her shifting from village to Delhi and stayed with her for three days. Vol. Her son Bhaskar used to work at Delhi and also stay here. It is further deposed that she told this fact to police but it was not recorded in her statement Ex. PW2/D1. It is further deposed that on the day of her death, when her daughter made a call to her, she also talked to her father i.e. PW1 for around 20-25 minutes. It is further deposed that she informed the IO about the mobile number from which her daughter made a call but it was not recorded in her statement under Section 161 Cr.PC. It is further deposed that her daughter had a mobile connection in her name but she did not remember its number. PW2 has denied the suggestion that she has falsely implicated the accused persons.
8. PW3 Sh. Rakesh Sharma, SDM has deposed that on 03.01.2014, he received an information from SHO PS Sonia Vihar regarding unnatural death of a girl within seven years of her marriage. It is further deposed that he was informed that her dead body had been removed to mortuary of GTB hospital. He telephonically directed the police to call the parents of the deceased to his office. On 04.01.2014, at about 1.30 pm, parents of deceased visited his office and he recorded the statement of PW1 which is Ex.PW1/1 and bears his signature. It is further deposed that he directed the SHO concerned to take an action. On 06.01.2014, he proceeded to Mortuary and prepared inquest papers Ex.PW3/1. He also filed the formal request for postmortem and request is Ex. PW3/2. He recorded the FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 7 of 21 statement of identification of dead body Ex.PW1/2 and statement of Sh. Bhaskar Pandey was also recorded which is Ex.PW3/3.
8.(i) During cross examination, he has deposed that the parents of deceased reached his office at about 1.00 pm. It is further deposed that he recorded the statement of PW1 through his reader in his handwriting and all the police men and other family members were outside of his office. It is further deposed that he did not visit the place of incident.
9. PW4 Smt. Vipin Devi has deposed that she is neighbour of the accused. On 03.01.2014, at about 12.00 Noon, she was at her house and washing clothes when she heard a noise and saw that the peoples had been rushing towards of the house of accused. She also rushed and saw a great amount of smoke was coming out of a room and the deceased was lying in the room, but she could not see anything properly due to smoke. It is further deposed that the people tried to extinguish fire, but fire brigade was called which extinguished fire. It is further deposed that around 15-20 days prior to incident, deceased came to reside in that house with her brother. It is further deposed that she used to go to the house of deceased and when ever she talked to deceased, she realized that she was upset because her parents had solemnized her marriage at Delhi whereas she wanted to get married in a village and wanted to stay there. She did not know how the fire break out.
10. PW5 has deposed that on the day of incident she was outside of her house and accused Asha Devi was sitting on a platform outside her FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 8 of 21 house. It is further deposed that she saw a lot of smoke in the house and accused Asha Devi was shouting, then she rushed to her house and saw a lot of smoke was emanating from a room and due to smoke and smell of oil the environment was suffocated. Accused Asha Devi shouted for help of her daughter-in-law but there was no male member in the house so she went outside and called some people. It is further deposed that after sometime police and fire brigade arrived and extinguished the fire. The dead body of deceased was taken out.
10.(i) During cross examination by Ld. PP, PW5 has denied that she usually heard that the people of house used to have quarrel. It is denied that deceased was not happy and used to be sad.
11. PW6 Sh. Bhaskar Pandey has deposed that her sister got married with accused Ajay Mishra on 21.05.2013 and after marriage she was taken to native place at village Devri in Distt. Gorakhpur. It is further deposed that in the village the family resided for about one month and thereafter both accused shifted to Delhi. It is further deposed that his sister continued to reside at native village alongwith the uncle of accused, but after six months accused asked him to bring his sister to Delhi. It is further deposed that he brought her sister to Delhi and stayed with her for 1-2 days. It is further deposed that her mother told him that she had received a call from Police Station that her sister was in serious condition and they had been called to Delhi. It is further deposed that he alongwith her parents, brother-in-law and one cousin came to Delhi and reached at Sonia Vihar. Police did not tell them immediately about her sister and took them to GTB FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 9 of 21 Hospital where they came to know that her sister had expired. It is further deposed that on 06.01.2014, they received dead body of his sister and his statement was recorded and dead body was received vide statement Ex. PW1/3.
11(i). During cross examination by Ld. Addl. PP, PW6 has deposed that he was not aware whether accused demanded any dowry in the marriage as he was very young at that time but he stated to police that accused used to demand dowry after the marriage of her sister. He has deposed that he did not tell the police that accused used to pressurize the deceased for dowry demand. He was confronted with his statement Mark PW6/A where it was recorded.
11 (ii) During cross examination, he has deposed that he alongwith his family members reached straight to PS Sonia Vihar. Vol. On the way they met the police who took them to GTB Hospital and then to the Office of Ld. SDM. It is admitted that he did not make any complaint to the police prior to the death of her sister regarding harassment by her in-law for dowry demands. It further admitted that during her stay in the matrimonial home of her sister at Delhi, he did not witness any quarrel with in family. It is denied that he used to regularly visit her sister at Delhi. PW6 was not aware as to whether vital details of the accused and his family were gathered by his family through mediator before marriage, or her sister used to call regularly to her parents and used to ask them to take her back to native place. It is admitted that prior to his death her sister never made any complaint to her family against her in-laws.
FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 10 of 21
12. PW7 has deposed that on 03.01.2014, on receipt of DD no. 10A, he visited the place of incident after incident alongwith ATO Inspector Ramesh Chand. It is further deposed that at the place of incident he found that the injured had already been removed to GTB Hospital by HC Babinder. It is further deposed that he stayed at the place of incident for preservation of scene of crime and thereafter crime team arrived at the spot. It is further deposed that the crime team inspected the scene of crime and took the photographs. Thereafter, HC Babinder came back from hospital and handed over the MLC of deceased Suman on which doctor opined 'brought dead'. He prepared the site plan. From the crime scene he picked up burnt clothes, placed them in a polythene and converted the same into cloth parcel and sealed it with the seal of 'MIK', and seized vide memo Ex.C11. He also seized a plastic cane containing kerosene oil vide memo Ex. C10 and also lifted mixture of kerosene oil and water from the floor and sealed it and seized vide memo Ex. C9. He also informed the Ld. SDM and parents of the deceased.
13. PW8 Inspector Rohtash Kumar has deposed that on 25.02.2014, he joined the investigation. Ct. Chehak produced three parcels containing visera, scalp air and clothes of deceased which were seized vide memo Ex. C8. On 03.03.2014, parcels were sent to FSL for analysis through Ct. Rahul. During his custody parcels were not tempered with.
14. PW9 investigated the matter being SHO. He visited the place of incident and directed SI Mohd. Ismail to reach the spot / scene of crime.
FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 11 of 21
During inspection of spot, he received information that deceased had expired and dead body had been removed to mortuary. On 04.01.2014, SI Mohd. Ismail handed over statement Ex.PW1/1 alongwith direction of SDM on which he made endorsement Ex.PW/9/1 and got registered FIR. He investigated the matter and arrested the accused vide Ex.C6 and personal search of accused was conducted vide memo Ex. PW9/2. On 20.03.2014, accused Asha Devi was arrested vide memo Ex. C7 and her personal search was conducted by W/Lady Ct. Reena and her personal search is Ex. PW9/7. He recorded the statement of witnesses and filed chargesheet. During cross examination, he has deposed that he made enquiry from the parents of the deceased regarding mobile number by which she made last call but it was not provided. It is further deposed that he did not interrogate the sister and brother-in-law of deceased who used to reside with her.
15. I have heard the arguments and perused the record. During the course of arguments, Ld. Addl. PP for State has argued that prosecution witnesses have duly proved that the accused persons had been regularly demanding the dowry from the family members of the deceased, and she was subjected to cruelty for bringing insufficient dowry soon before her death. It is further argued that PW1 and PW2 have duly proved it. It is emphasized that presumption of Section 113 B of Indian Evidence Act is in favour of prosecution and it was to be rebutted by the accused persons that the deceased Suman was not subject to cruelty to meet out the dowry demands or it was not a dowry death, but accused have failed to rebut this FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 12 of 21 presumption.
15.(i) On the other hand, Ld. Counsel for accused has argued that PWs have failed to prove that the deceased was ever subjected to cruelty for dowry demands. It is further argued that even it could not be proved by the prosecution that she was subjected to cruelty or torture soon before her death which was the material requirement of Section 113B of Evidence Act and prosecution has failed to prove that accused are liable. It is further emphasized that accused have already rebutted the presumption of Section 113 B of Evidence Act by cross examination of PWs and accused are entitled for acquittal.
15.(ii) It is not disputed that a legal presumption of Section 113 B of Indian Evidence Act with regard to the offence under Section 304 B IPC is against the accused persons and in favour of prosecution which is to be rebutted by the accused only. Further, it is not a disputed proposition that an accused is not required to lead his defence by the way of examination of defence witnesses only. A presumption can be rebutted during cross examination of prosecution witnesses and the testimonies of PWs can be looked into to rebut this presumption.
15.(iii) Even otherwise, the legal presumption in favour of prosecution cannot be a sole criteria to convict an accused. Presumption in favour of prosecution should be accompanied with material evidence of PWs to support the case of the prosecution. In normal cases, prosecution has burdened to prove a case beyond reasonable doubt and this burden cannot be discharged by the prosecution merely with the assistance of legal FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 13 of 21 presumption. Supporting evidence in support of legal presumption is required to be proved by the prosecution, only then, legal presumption of section 113 B of Indian Evidence Act is material.
16. Before consideration of factual aspects of the case, it is necessary to consider the legal proposition with regard to the presumption of dowry death and consideration of legal phrases used in Section 304B IPC. It has been held by Hon'ble Supreme Court of India in Satbir Singh Vs. Punjab, AIR 2001 SC 2828 that the prosecution under Section 304B IPC cannot escape from the burden of proof that the harassment of cruelty was related to the demand for dowry and such was caused "Soon before her death". It is further held in Bansi Lal Vs. State of Haryana, AIR 2011 SC 691 that the court has to analysis the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. It is further held in Prema S Rao Vs. Yabla Srinivasa Rao, AIR 2003 SC 11 that to attract the provision of Section 304B one of the main ingredients of the the offence which is required to be established is that "Soon before her death" she was subjected to cruelty and harassment "in connection with demand of dowry". The expression "Soon before her death" used in the substantiative section 304B IPC and Section 113 of Indian Evidence Act is present with the idea of proximity test and it depends upon facts and circumstances of each case. The Hon'ble Supreme Court of India has dealt with the presumption of dowry death in Kalia Perumal Vs. State of Tamilnadu, AIR 2003 SC 3828 and has laid down following FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 14 of 21 ingredients:
(i) the question before the court must be whether the accused has committed the dowry death of a women.
(ii) The women was subjected to cruelty or harassment by her husband or his relatives.
(iii)Such cruelty or harassment was for, or in connection with, any demand for dowry.
(iv) Such cruelty or harassment was soon before her death.
In view of the abovesaid case law laid down by the Hon'ble Apex Court, it is clear that the presumption under Section 113B of Evidence Act is applicable with the idea of proximity test "Soon before her death" as used under Section 304B IPC.
17. I have gone through the testimonies of PWs in this case. As per the allegations of the prosecution, on 21.05.2013, accused persons harassed the deceased Smt. Suman for not brining sufficient dowry and harassed her with a view to coerce her or her parents to meet out unlawful demands of dowry and on 03.01.2015, she died of burn injuries on account of abovesaid cruelty and harassment. As such, she died with unnatural death within seven years of her marriage and both the accused allegedly committed this offence of murder of the deceased in furtherance of common intention by setting her on fire and have committed the offence.
17.(i) To prove the allegations, PW1 is the material witness of the prosecution who launched the prosecution in this case. PW1 gave a FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 15 of 21 statement to PW3 that his daughter was subjected to cruelty for fulfilling the dowry demand by the accused persons and on account of the same she was set on fire by the accused persons, whereas PW1 has retracted from his statement during cross examination by Ld. Addl. PP. During cross examination, he flatly refused that accused persons ever made any dowry demand of Rs. 20,000/-, watch and cycle or any jewellery items in the marriage between accused and deceased. Rather, he deposed voluntarily that the accused did not raise any demand. Further, PW1 retracted from his earlier statement that deceased Suman made a telephonic call to him soon before her death and told that she was being beaten up for bringing more dowry, but during cross examination, he denied to receive / attend any call or talk with deceased. He has deposed that the entire conversation had taken place between the deceased and PW2.
17.(ii) Contrary to it, PW2 has deposed that on the day of incident at about 10.00 am, deceased Suman called her and said that her mother-in- law was harassing her for bringing insufficient dowry and taunting her that she belonged to a poor family. Deceased Suman also informed her that her life was in danger and she was crying. PW2 consoled the deceased that her father would visit her after kharmas and would bring her back to her parental home. Further, she has deposed that after some time she made call to accused Ajay and asked him to give the phone call to the deceased but he stated that he was to going to his duty. Thereafter, accused Ajay called her back and told that her daughter had expired. Again this testimony is contradictory to the statement of PW1 who deposed that he received a call from accused Ajay who stated that her daughter had expired but the FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 16 of 21 police man took over phone and informed that her daughter was in critical condition and was not expired, and he was called to Delhi. In fact, it is a material contradiction between the testimonies of PW1 and PW2.
18. Further, PW2 failed to provide the phone number of the deceased Suman to PW9 to ascertain as to whether that any such call was ever made by deceased to PW1 and PW2 or not soon before her death. In the absence of any such call details of deceased and PW2, this fact could not be proved that deceased ever made any call soon before her death and talked to them.
19. Besides it, the testimony of PW6 Bhaskar Pandey is also material. PW6 visited the deceased and even stayed with her at her matrimonial home, but he did not notice any cruelty towards the deceased by hands of the accused persons. Rather, he has deposed about the dowry demand that he did not know being a very young at the time of marriage of her sister. He could not admit or deny as to whether accused had been regularly demanding dowry from her sister. Contrary to it, PW1 has deposed that the accused person never demanded any dowry in the marriage and whatever was gifted it was voluntarily. Besides it, the conduct of the complainant and family members towards complainants regarding dowry demands and cruelty towards the deceased is not upto mark. PW6 has denied to make any such complaint with the authorities as there was nothing wrong against deceased and PW2 has given a very strange reply to it that she did not get time or opportunity to make any such complaint FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 17 of 21 against accused. It is a matter of common sense that if the deceased was subjected to harassment and cruelty by the accused persons for bring insufficient dowry and this fact came into the notice of the parents, then they were supposed to make a complaint with the authorities or to make enquires from some relatives, but it was not done. Even as per testimony of PW2, many relatives of the complainant were residing at Delhi including PW6, but they never tried to raise this issues with accused through them or to make any enquiry about their deceased daughter despite repeated complaints to her that she was subjected to cruelty by accused persons for brining insufficient dowry. As such, this conduct of the PWs reflects that their testimonies are not trustworthy.
20. Besides it, the testimonies of PW1, PW2 and PW6 have material contradictions about their visit to Delhi after the incident. PW1 has deposed that he alongwith his son and wife came to Delhi and reached the house of accused at Sonia Vihar and thereafter they were taken to the office of PW3 and PW3 recorded his statement Ex.PW1/1, but PW2 has deposed that she alongwith her husband and son came to Delhi and straight went to Karawal Nagar to give the statement to Ld. SDM. On the other hand, PW6 has deposed that he alongwith his parents, brother-in-law and one cousin came to Delhi and reached PS Sonia Vihar from where they were taken to GTB Hospital. Three persons visited Delhi on the same day and time and travelled together but their testimonies are altogether different which is material contradiction to the case of prosecution. PW3 has deposed that the parents were called through SHO concerned and on FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 18 of 21 04.01.2014, at about 1.30 pm, they came to his office and statement of PW1 which is Ex.PW1/1 was recorded by him. The contradictions in the testimonies of all abovesaid PWs is also harmful to the case of prosecution.
21. Further, the testimony of PW4 Smt. Vipin Devi has given a different dimension to the case of the prosecution. PW4 has deposed that she used to go to the house of deceased and accused and whenever she talked to deceased Suman, she found her upset because her parents had solemnized her marriage at Delhi whereas she wanted to get married in village and wanted to stay there. She was not aware about the cause of fire. PW5 has also failed to prove the reason of quarrel within the family and was not aware as to whether any quarrel had ever taken within the family of the deceased for dowry demand. These PWs have deposed against the entire case of the prosecution and have created a doubt about the story of the prosecution. Besides it, PW4 has supported the version of the PW2 that accused Ajay Kumar Mishra was not present at home at the time of incident and accused Asha Devi was also outside the house. As such, it could not be proved that the accused person set the deceased on fire after pouring kerosene oil on her for bringing insufficient dowry. Even none of the public witness has proved that deceased was subjected to any cruelty or harassment by her husband or his relatives in connection with any demand for dowry soon before her death. In fact, no PW has deposed that accused persons ever demanded any dowry from the deceased or her parents who have been examined as PW1 and PW2. In fact, prosecution has failed to establish the proximity test of harassment for dowry demand soon before FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 19 of 21 her death.
22. PW-7, PW-8 and PW-9 are police officials. They have just proved the investigation proceedings. PW7 has proved that he visited the place of incident alongwith PW8 on receipt of DD no. 10A and prepared the seizure memo and seized the articles received from spot vide Ex.C9 to Ex.C11 and deposited with malkhana. PW8 prepared document Ex.C8. PW9 carried out the investigation and lodged the FIR on the basis of endorsement of the PW3 on the statement Ex. PW1/A and has proved the endorsement Ex. PW9/A on which basis the FIR was lodged. PW9 arrested both accused persons and conducted their personal search vide documents Ex.C6, Ex. C7, Ex. PW9/2 and Ex. PW9/3. As such, testimonies of PW7 to PW9 also could not connect the accused to the offence.
23. So far scientific investigation carried out in this case is concerned, the prosecution collected the viscera, clothes and skull hairs of the deceased vide Ex.C8. The other samples / parcels were containing plastic bottle, water and kerosene mixture seized vide Ex. C9, plastic cane containing kerosene vide Ex. C10 and burnt clothes of deceased vide Ex. C11. The postmortem report is Ex. C12 and MLC is Ex. C13 which were conducted on the deceased. Crime scene report is Ex.C14 and photographs Ex. C15 were taken from the place of incident. All the exhibits were duly examined by FSL vide report Ex. C16, but this scientific investigation has also failed to corroborate the testimonies of PW1, PW2 and PW6 besides other PWs. As such, this scientific investigation also FIR No. 04/14 (Parveen Singh) State Vs. Ajay Kumar Mishra etc. 20 of 21 could not connect the accused persons to the offence.
24. As such, in view of the testimonies of PWs and material proved by the prosecution on record, I am of considered opinion that prosecution has failed to prove the charges accused persons beyond reasonable doubt and accused are entitled for benefit of doubt. I hereby acquit both accused persons of the charges framed against them. Bail bonds cancelled and surety discharged. File be consigned to record room after due compliance.
Announced in open court (Devender Kumar)
today on 26.05.2015 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 04/14 (Parveen Singh)
State Vs. Ajay Kumar Mishra etc. 21 of 21