Delhi District Court
State vs Hariom And Ors on 28 November, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-015077-2016
SC No.29007/2016
FIR No. 284/2016
U/s 498A/304B/34 IPC
P. S. Prashad Nagar
STATE VERSUS HARIOM AND ORS.
(i) SC No. of the case : 29007/2016
(ii) Date of commission of offence : 27.05.2016
(iii) Name, parentage and address : (1) Hariom
S/o Sita Ram
R/o 16/769, Gali No.9,
Military Road, Bapa
Nagar, Karol Bagh,
Delhi
Also at: Vill Chak
Salampur, Tehsil
Jaswant Nagar, Distt
Etava, UP.
(2) Chander Shekhar
S/o Sita Ram
R/o Vill Chak
Salampur, Tehsil
Jaswant Nagar, Distt
Etava, UP.
(3) Hem Lata
D/o Sita Ram
R/o Vill Chak
Page 1 of 50
SC No.29007/2016
FIR No. 284/2016
P. S. Prashad Nagar
State vs. Hariom and Ors.
Salampur, Tehsil
Jaswant Nagar, Distt
Etava, UP.
(4) Harihar Singh
S/o Sh. Sita Ram
R/o Vill Chak
Salampur, Tehsil
Jaswant Nagar, Distt
Etava, UP.
(5) Maharani Devi (abated)
W/o Sh. Sita Ram
R/o Vill Chak
Salampur, Tehsil
Jaswant Nagar, Distt
Etava, UP.
(iv) Offences complained of : 498A/304B/34 IPC
(v) Plea of the accused : Not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 28.11.2024
Date of Institution : 27.10.2016
Date of Judgment reserved on : 16.11.2024
Date of Judgment : 28.11.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
Page 2 of 50 SC No.29007/2016 FIR No. 284/2016P. S. Prashad Nagar State vs. Hariom and Ors.
1. The present case was registered on the complaint of Sh.
Ram Niwas S/o Sh. Gajraj vide FIR Ex.PW5/A. Vide DD No.25A dated 27.05.2016 at PS Prashad Nagar which was received around 4:12 PM. The information was received that a lady had committed suicide at H. No.769, Gali No.9, Bapa Nagar, Delhi. Woman Ct. Arti had intimated through PCR call and intimation is Ex.PW5/D. The area SDM had received information about the incident who had visited the site. SI Brijpal Singh was present at the site. The deceased had committed suicide by hanging over shower of the bathroom. No mark of external injury was found. The post-mortem was conducted at MAMC Delhi on 28.05.2016. SDM had given opinion in his report Ex.PW6/A that prima facie the case is pertaining to suicide. The close relatives i.e. father namely Ram Niwas and brother Ram Kishore of the deceased had made allegations against the husband and relatives of the deceased. The husband of the deceased is Sh. Hariom. The SDM had directed the SHO to register a case and investigate the same after recording the statement of father Sh. Ram Niwas Ex.PW4/A and brother Sh. Ram Kishore Ex.PW6/B. Rukka was sent vide Ex.PW5/B and FIR was registered under Section 498A/304B/34 IPC. The certificate under Section 65B of Evidence Act of registration of FIR is Ex.PW5/C. The IO/Inpst.
Page 3 of 50 SC No.29007/2016 FIR No. 284/2016P. S. Prashad Nagar State vs. Hariom and Ors.
Pushplata had prepared site plan Ex.PW17/A where the suicide was committed at H. No.16/769-H, Gali No.9, Military Road, Bapa Nagar, Delhi. The suicide was committed in the bathroom at point A by hanging over the shower and at point B was lying a plastic bucket with the help of which the deceased had committed suicide. The seizure memo of dupatta is Ex.PW10/A and the seizure memo of plastic bucket is Ex.PW10/B. The husband Hariom was arrested vide arrest memo Ex.PW14/A. The disclosure statement of the accused Hariom is Ex.PW14/C. The report of Mobile Crime Team is Ex.PW16/A which had lifted the dupatta from the spot. The body of the deceased was handed over to her father vide Ex.PW3/A. After investigation the IO had filed chargesheet against five accused. Accused Maharani Devi who is mother of accused No.5 had expired during pendency of proceedings on 03.02.2018 and the case against her stood abated vide order dated 03.02.2018. Hence four accused have faced the trial.
2. Charge was given to all the remaining four accused on 11.01.2017 under Section 498A/34 IPC and under Section 304B/34 IPC. The accused had pleaded not guilty and claimed trial one of which has since expired namely accused Maharani Devi. Prosecution has examined PW-1 to PW-18 as entire Page 4 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
prosecution evidence against all the accused. Statement under Section 313 Cr. P. of accused Hariom was recorded on 26.04.2024, of accused Chander Shekhar was recorded on 26.04.2024, of accused Harihar Singh was recorded on 26.04.2024 and of accused Hemlata was recorded on 06.06.2024. All the accused have preferred not to lead evidence in defence.
3. Final arguments are heard from both the parties and record perused.
4. Learned Counsel for all the accused has relied on the following citations:
(i) Biswajit Halder vs. State of West Bengal (2008) 1 SCC 202 (relied on para No.10, 12, 13 and 14) wherein it is laid down that the presumption is mandatory when cruelty or harassment is proved for demand of dowry under Section 113B Evidence Act, 1872 read with Section 304B IPC.
(ii) Mahesh Kumar vs. State of Haryana (2009) 8 SCC 128 (relied on para No.7, 11, 16 and 22) wherein it is laid down that it is hazardous to indicate any fixed period in regard to proximity test of cruelty for demand Page 5 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
of dowry. The expression soon before her death under Section 304B IPC and Section 113B of Evidence Act, 1872 can be read in reference to expression soon before used in Section 114 Illustration (a) of the Evidence Act, 1872. The expression soon before is left to be determined by the Court depending on the facts and circumstances of each case. There must be existence of a proximate and live link. If the incident is remote in time and has become stale enough not to disturb mental equilibrium then it would be of no consequence.
(iii) Keshab Chandra Panda vs. State 1995 LJ 174 wherein it is laid down that the Section 304B and 498A of IPC are not mutually exclusive which relate to two distinct offences and cruelty is a common essential to both the sections.
(iv) Sher Singh @ Partapa vs. State of Haryana AIR 2015 SC 980 (relied on para No.8, 9, 13, 14 and 18) wherein it is laid down that the concept of deeming fiction is hardly applicable to criminal jurisprudence. If the harassment and cruelty even if conclusively proved which had no causal connection with the cruel behaviour on a dowry demand then Section 304B IPC is not attracted. The Parliament in Section 304B "deemed" the Page 6 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
guilt of husband and the members of his family. However there is distinction between persuasive / legal burden and evidential burden/ burden of going forward of adducing evidence. It is duty of the prosecution to prove a case by establishing both the actus reus of the crime and the mens rea. The prosecution must first satisfy the evidential burden to show that the allegations have something to support them. Thereafter the prosecution must continue to satisfy the persuasive version by proving its case beyond reasonable doubt. In some case the persuasive burden is statutorily expressly placed on the accused when such accused carry an offensive weapon in public unless the accused prove his lawful authority or reasonable excuse to carry it. It was held that there are rebuttable as well as irrebuttable presumptions. The prosecution has first to prove that a dowry death has occurred in terms of parameter laid down in para 14 of the said judgment. The prosecution may prove it by preponderance of possibilities then the initial presumption of innocence is replaced by an assumption of guilt of the accused thereupon transferring heavy burden of proof upon him. This is to counter the problem commonly encountered which is lack or Page 7 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
absence of evidence in the case of suicide or death of a women within 7 years of her marriage.
(v) Banshi Lal vs. State of Haryana AIR 2011 SC 691 (relied on para No.8, 15 and 16) wherein it is laid down that prosecution has to prove the close proximity of cruelty to the time of death and it should be continuous. Such continuous harassment, physical or mental, by the accused should make the life of the deceased miserable which may force her to commit suicide. In that case the conduct of accused to force the deceased to leave her matrimonial home just after one year of her marriage and to stay with her parents continuously for 14 months. On the assurance given by the Panchayat in not to humiliate or subject deceased with cruelty she rejoined her matrimonial home. In that case a few days before death there was demand of scooter. It was held that the use of word "shall" under Section 113B IPC makes mandatory on the part of the Court to presume that the death was committed by the person who had subjected her to cruelty or harassment in connection with or demand of dowry. Under Section 113A discretion has been conferred upon the Court but such discretion is not available under Section 113B of Evidence Act, 1872.
Page 8 of 50 SC No.29007/2016 FIR No. 284/2016P. S. Prashad Nagar State vs. Hariom and Ors.
Onus lies on the accused to rebut the presumption as the onus has shifted on the accused exclusively and heavily.
5. PW-4 Ramniwas is father of the deceased. He has deposed that he is illiterate and he can sign in Hindi language only. Accused Hariom informed son of PW-4 namely Ram Kishore /PW-7 about the death of his daughter Laxmi. When he came to Delhi then he came to know about death which had occurred due to hanging. The deceased had married to accused on 20.04.2015 as per Hindu Rites and Customs. The deceased was residing with her husband in Delhi. He had given his statement to SDM concerned/ PW-6 vide Ex.PW4/A where he had stated that after marriage the mother-in-law and sister-in- law had started troubling the deceased. The brother-in-law was not eating food cooked by the deceased as a matter of protest. However PW-4 had turned hostile to his such statement and it is denied that the accused had demanded motorcycle a day before the Lagan Ceremony. It is denied during cross examination by learned Addl. PP for the State that the accused had demanded chain and ring. The other statement of PW-4 are based on hearsay evidence. PW-4 in his statement Ex.PW4/A had stated that those persons were troubling his daughter on which he had called his daughter at home. When the accused had assured that Page 9 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
he would not give beatings and he would not drink liquor then the deceased was sent back with her husband to matrimonial home. However PW-4 has turned hostile to his statement. It is admitted as correct that he had given Rs.40,000/- to the accused during occasion of marriage ceremony of his daughter Laxmi. It is admitted as correct that after 4-5 months of marriage the accused and Laxmi had shifted residence to Bapa Nagar, Karol Bagh, Delhi. The statement under Section 161 Cr. P. C. of PW-4 is Ex.PW4/X and he has turned hostile to his all statement. It is admitted that the body of deceased Laxmi was handed over to them vide memo Ex.PW3/A.
6. PW-7 has deposed that he is illiterate and he is elder brother of deceased Laxmi. He has also turned hostile to the case of the prosecution. Any harassment for dowry is denied. It is denied that he accused had demanded motorcycle. It is denied that the accused had demanded chain and gold ring from their mother. It is denied that he had stated to the police that after one month from the marriage he brought Laxmi back home or that Laxmi had communicated to him regarding harassment and dowry by her in-laws and accused. PW-7 has denied all his statement. It is deposed during examination dated 04.06.2019 by PW-7 that at the time of her death the deceased was staying Page 10 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
with her husband/ accused Hariom on rented premises and hence it is argued for the accused that at the time of death the accused was staying alone in the rented premises where deceased was staying with him. It is admitted as correct that on 27.05.2016 at about 4:00 PM the accused had informed telephonically to him that Laxmi/ his wife had committed suicide.
7. PW-8 has deposed that she is illiterate and the deceased was her younger sister who was married to accused on 20.04.2016. After 3-4 months of their marriage the deceased Laxmi started staying with her husband Hariom at Bapa Nagar, Delhi. After one month the deceased/ Laxmi went to their parents house at Agra who was brought back by the accused. In May, 2016 the accused Hariom asked PW-8 on mobile phone to take back Laxmi on which PW-8 went to the house of the accused and brought his sister Laxmi back to his rented house in Nangloi Delhi. Thereafter the deceased stayed with PW-8 for a week and then she had went back to the house of her husband. After that his brother Ram Kishore and sister in law Ms. Anita visited at the house of PW-8 on which Laxmi had also visited there to meet them in the month of May, 2016. On 27.05.2016 accused asked deceased Laxmi on mobile phone of PW-8 to Page 11 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
reach at Nangloi Metro Station immediately on which Laxmi left the house of PW-8. On the same day at 6:00 PM he had received an information of death of his sister Laxmi. On 28.05.2016 his father Ram Niwas came to Delhi and they had gone to mortuary. The body of Laxmi was taken to Agra for cremation. He was called by SDM Karol Bagh and he gave his statement to police after 15 days. He is not aware about the circumstances of death of Ms. Laxmi. It is admitted as correct that accused No.2 is brother in law (Jeth), accused No.3 is sister in law (Nanad), accused No.4 is brother in law (Dewar) of deceased Laxmi. One of the accused No.5 Ms. Maharani Devi who was mother in law had expired during pendency of this case and the case against her stood abated on 03.02.2018. He is not aware of any demand of motorcycle. Later during cross examination dated 08.06.2022 and 17.09.2019 PW-8 has turned hostile from her deposition.
8. PW-11 is the mother of the deceased and she has deposed that her daughter Laxmi had committed suicide on 27.05.2016. She was living happily with her husband and in laws. She is not aware about how deceased had committed suicide. In her deposition PW-11 has turned totally hostile to the case of the prosecution despite confronted severally with her statement Page 12 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
Ex.PW11/A under Section 161 Cr. P. C.
9. PW-12 is Ms. Anita Devi/ sister in law / Bhabhi of the deceased. She has also turned hostile to her statement under Section 161 Cr. P. C. Ex.PW12/PX-1. However it is admitted as correct that on 22.04.2016 Laxmi came to Delhi alongwith accused and she used to have a talk with the deceased on phone. It is admitted as correct that in the month of August, 2015 Laxmi came back to the house of her father on the occasion of Rakashbhandhan. When her father in law came there then they took Laxmi back to her matrimonial home.
10. From the evidence of above witnesses it has come on record that the deceased Laxmi had died within 7 years of her marriage. The marriage had occurred on 20.04.2015 and she had expired on 27.05.2016. Hence presumption under Section 113B of Indian Evidence Act is yet to be raised against the accused and it has to be seen that whether this presumption was satisfied in the present case. The relevant citation in this regard is Subhasish Singha v. State of West Bengal, 2005 SCC OnLine Cal 380: (2006) 3 CHN 260.
11. The prosecution has to prove the necessary ingredients Page 13 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
under Section 304B IPC. Section 113B of Indian Evidence Act creates a presumption of dowry death. It has to be proved by evidence that soon before her death such woman had been subjected to such cruelty or harassment by a person in connection with demand for dowry. This has to be proved by cogent evidence. Only after proof of such fact the presumption is raised. Normally direct evidence is not available as the offence is committed within four corners of the house. It is required to be examined that who translated it into action as motive for it is not individual but of family. All the prosecution public witness have turned hostile. The relevant para of the citation Subhasish Singha v. State of West Bengal, 2005 SCC OnLine Cal 380: (2006) 3 CHN 260 is reproduced hereasunder:
13. Mr. Basu next assailed the charge to be defective contending that addition of the words "in cash" in the charge under section 498A/34 IPC though there is no material in this regard and absence of the words "soon before her death" which is one of the main ingredients of the offence under section 304B have made the charge invalid and has caused failure of justice. The basic requirement is that the charge must be so framed as to give the accused a fairly reasonable idea of the case he is to face. Sections 215 & 464 Cr. P.C. cure every conceivable type of error and irregularity in charge that can possibly arise. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges the accused cannot succeed by merely showing that the charges framed were defective, as was held in the case of Kahan Singh v. State of Haryana, reported in AIR 1971 SC 983. In judging the question of prejudice, as of guilt, the Court must act with a broad vision and Page 14 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
look to the substance and not to the technicalities and Subhasish Singha v. State of West Bengal, 2005 SCC OnLine Cal 380:
(2006) 3 CHN 260
13. Mr. Basu next assailed the charge to be defective contending that addition of the words "in cash" in the charge under section 498A/34 IPC though there is no material in this regard and absence of the words "soon before her death" which is one of the main ingredients of the offence under section 304B have made the charge invalid and has caused failure of justice. The basic requirement is that the charge must be so framed as to give the accused a fairly reasonable idea of the case he is to face. Sections 215 & 464 Cr. P.C. cure every conceivable type of error and irregularity in charge that can possibly arise. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges the accused cannot succeed by merely showing that the charges framed were defective, as was held in the case of Kahan Singh v. State of Haryana, reported in AIR 1971 SC 983. In judging the question of prejudice, as of guilt, the Court their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself, as was observed in Slaney case (supra). To say prejudice has been caused is not enough and it must also be shown in details how and why the prejudice has been caused, as was observed in the case of Sukha v. State of Rajasthan, reported in AIR 1956 SC 513. Where accused knew everything that was being urged and refuted the facts, he cannot be prejudiced. Even where the charge was not correctly framed but it was clear from the answer accused gave under section 313 Cr. P.C. that he understood exactly the case against him he was not prejudiced in any way. So, addition of the words "in cash" in the charge under section 498A/34 IPC and absence of the words "soon before her death" in the charge under section 304B/34 IPC cannot be said to have caused any prejudice to the accused persons nor it can be any ground for holding the charge defective.
14. To sustain a charge under section 304B IPC, four ingredients Page 15 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
necessary to be established are:
(i) Death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances,
(ii) such death must have occurred within seven years of her marriage,
(iii) the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband in connection with demand for dowry,
(iv) such cruelty or harassment is shown to have been meted out to the woman soon before her death, while two ingredients in respect of an offence under section 498A IPC are (1) the married woman must be subjected to cruelty or harassment and (2) such cruelty or harassment must have been shown either by husband of the woman or by the relatives of her husband.
15. "Cruelty" within the Explanation to the said section 498A means any willful conduct which is of such a nature as is likely to drive a woman to commit suicide, or such willful conduct which is likely to cause grave injury or danger to life, limb or health whether mental or physical of the woman, or harassment to the woman whether such harassment is with a view to coercing her for any property or valuable security. In other words, the expression "cruelty" postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. The provisions of sections 304B and 498A IPC deal with two distinct offences. Though "cruelty" is a common essential to both the sections, the meaning of "cruelty" has been enumerated in the Explanation to section 498A, whereas there is no such Explanation to section 304B. Having regard to the common background to those offences, the meaning of "cruelty or harassment" in section 304B will be the same as is found in the Explanation to section 498A. In this connection, reference may be made to the case of Shanti v. State of Haryana, reported in AIR 1991 SC 1226. Section 113B of the Evidence Act creates a Page 16 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
presumption of dowry death, when the question before the Court is whether the person has caused dowry death of a woman and it is proved by evidence that 'soon before her death' such woman had been subjected to by such person to cruelty or harassment in connection with the demand for dowry. Only when the prosecution proves by cogent evidence that 'soon before her death', the woman was subjected to cruelty or harassment for or in connection with any demand for dowry there can be a presumption that the death is a dowry death. Ordinarily, offence against a married woman is committed within the four corners of a house and normally direct evidence regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available, and so while deciding as to whether the woman was harassed or ill-treated by her husband, or his relatives, various factors and some circumstances can be considered by the Court, e.g. dying declaration of the woman, if any extrajudicial confession by the accused, motive, place, time, demand, if any, physical and mental cruelty shown towards wife, conduct of the husband as also of relatives of the husbands etc.
18. Mr. Safiullah on referring the case of Ashok Kumar v. State of Rajasthan, reported in 1991 (1) SCC 166, contended that in dowry death motive is inherent and what is required by the Courts is to examine as to who translated it into action as motive for it is not individual but of family. Referring to the evidence of P.Ws. 10 and 23 (first I.O.) and Exts. 4, 9 & 20 he further contended that after reaching Burdwan from Banaras on the following date of incident, P.W. 10 went to Pandua P.S. for getting information whether any case was started over the incident of his sister, but O.C., Pandua P.S. threatened him intimating that a registered letter was received by the P.S. against them and thereafter on 26.07.1990 O.C. reluctantly accepted the written complaint. Though a copy of letter addressed by P.W. 10 to S.D.O., Burdwan Sadar requesting for permission to shift the victim from Burdwan to BHU Hospital, Varanasi for better treatment, indicating thereby presence of P.W. 10 at Burdwan, was received by the P.S. on 06.10.1990, P.W. 23 intentionally dropped the letter dated 13.09.1990 (Ext. 9) requesting P.W. 10 for production of documents on 06.10.1990 itself to cause unnecessary delay. The said letter, however, was replied vide Ext. 10. Within a span of Page 17 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
about three months excepting arrest of the parents-in-law and grandmother-in-law and recording statements of P.W. 10, P.W. 20 and some unimportant witnesses P.W. 23 did nothing nor he took any step for getting the dying declaration of the victim who was at Burdwan Hospital for about one month 12 days, recorded, for which the investigation was made over to Detective Department and P.W. 23 was declared hostile by the prosecution due to his above conduct demonstrating hostile attitude. As regards P.W. 24, Mr. Safiullah submitted, after taking up investigation on 27.12.1990 he first visited the house of the accused to examine accused Subhasish the reason for which is obscure and examined a number of important witnesses after lapse of a considerable period without any explanation for such delayed examination indicating thereby his conduct as suspicious, and as such much importance should not be given upon the omissions in recording the statements of witnesses faithfully, in support of which he relied upon the cases of Ashok Kumar (supra), Amrik Singh v. State of Punjab, reported in 1999 Cr. L.J. 463 (SC), and Alamgir v. State (Delhi), reported in 2003 SCC (Cri) 165. Amrik Singh case (supra) is distinguishable where it was observed that merely because witnesses have not specifically stated in their statements recorded by police under section 161 Cr. P.C. as to which blow was given by which accused, their evidence cannot be discarded. Alamgir case (supra) is also distinguishable as there a relevant fact was not mentioned in the statement under section 161 but stated before Court by a witness and it was held that omission on the part of the police officials would not take away nature and character of the evidence and it would not be a ground for rejecting the evidence of P.W. on that aspect if his evidence is otherwise creditworthy and acceptable.
19. Indubitably, defective investigation is not fatal to prosecution where ocular testimony is found credible and cogent. At the same time, it is also well-settled that benefit of a defective investigation cannot go to the prosecution, as was held in the case of Chandrakant Laxman v. State of Maharashtra, reported in AIR 1974 SC 220. Statements to police are meant to be brief and omission amounts to contradiction when it is in respect of a vital point, but omission to minor details cannot be utilized as contradiction. Merely because P.W. 24 after taking up Page 18 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
investigation first visited the house of the accused which is the P.O. and examined some witnesses at a delayed stage it will not justify to make a provision abortive. So, even if the above contention of Mr. Safiullah is considered in part and some lenient view is taken in respect of P.Ws. 10 & 20 only as they were examined by the first I.O. (P.W. 23) who was declared hostile, it hardly makes any difference since according to the evidence of P.W. 10, the first dispute arose over the demand of winter garments for his sister and her husband, second one is dissatisfaction over the issue of diamond ring on account of the diamond being of small size, third one is also dissatisfaction due to birth of a female child, as deposed by P.W. 13, and fourth dispute is over the demand of a gold button fitted with diamond, none of which has been reflected in the FIR. Regarding first dispute there is no corroborative evidence. As regards second dispute though it is not a demand but a matter of dissatisfaction, the evidence is contradictory to each other, as discussed in paragraph 17 above. Regarding third dispute, it is a case of dissatisfaction, in respect of which P.Ws. 11, 12 & 14 are silent. As regards fourth dispute which arose after birth of the female child i.e. two years back from the time of death of the victim as the said child, as revealed from the bed-head ticket, was aged about two years, at the time of her death, it has been negated in the said paragraph 17. That apart, in the absence of any earlier statement under section 161 Cr. P.C. on the part of P.Ws. 11 to 14, as disclosed from the evidence of P.W. 24, their evidence to that extent, as pointed out in paragraph 17 being contradiction due to omission on vital points may be excluded from consideration.
21. Mr. Basu, on referring to the evidence of P.W. 24 contended that though he took up further investigation of the case on 27.12.1990, he examined and recorded statements of P.Ws. 11 to 16 on different dates at a belated stage ranging from 43 days to 5½ months after and so no reliance should be placed upon their evidence. The belated examination of witnesses by police is not fatal if explanation offered is cogent, but if no explanation is given, the evidence of those witnesses become unreliable, as was held in the case of Balakrushna v. State of Orissa, reported in AIR 1971 SC 804. Similar is the decision in Awadhesh v. State of M.P., reported in 1989 C Cr. LR (SC) 100, where it was held that Page 19 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
examination of witnesses by the police long after the occurrence should be discarded. Here, no explanation for belated examination of those witnesses having been offered by the prosecution, it creates a situation warranting the Court not to place much reliance upon the testimony of those witnesses.
25. Mr. Safiullah on citing the case of Jogendra Nahak v. State of Orissa, reported in 1999 Cr. L.J. 3976 (SC) which stands for the proposition that section 164 Cr. P.C. does not empower a Magistrate to record statement of witness on his request even though not asked for by investigating agency, in his usual fairness submitted that since the said Ext. 13 is the dying declaration, the above decision has no application here but under whose direction or at whose instance the said recording of dying declaration of the victim was done by the ld. Magistrate is obscure, and as such the same may be excluded from consideration. Mr. Basu, on the other hand, contended that though the said Magistrate was a charge sheet witness summons could not be served upon him due to non- availability of his address, for which the defence prayed for issuing summons on him under section 311 Cr. P.C. and on 13.12.2000 the above document which was forwarded by SDO., Burdwan vide letter dated 18.7.1990 to Inspector-in-charge, Burdwan PS, was marked exhibit on consent of the parties, and as such the question of excluding the above important document from consideration does not arise, and there appears to be enough force in such contention. The substance of the above document appears to be consistent with the evidence of P.Ws. 10, 14, 15 & 16 barring the portion of P.Ws. 15 & 16 as pointed out in the preceding paragraph. P.W. 10 also deposed about recording of statement of his sister by a Magistrate. If a dying declaration is found true,voluntary, conscious made with normal understanding and the maker was in fit physical condition and if it is free from any embellishment or distortion it can be acted upon. Accordingly, the aforesaid Ext. 13 which was recorded by the ld. Executive Magistrate and is corroborated in substance by the testimony of independent witnesses the same may be accepted. This is another important piece of evidence which strengthens the above finding relating to absence of cogent evidence regarding demand of dowry and cruelty or harassment upon the victim by the accused persons.
Page 20 of 50 SC No.29007/2016 FIR No. 284/2016P. S. Prashad Nagar State vs. Hariom and Ors.
12. One fact has been proved by the prosecution on record is that on 27.05.2016 the deceased Laxmi was alive in the morning and this has come in the deposition of PW-8. It is deposed by PW-8 that on 27.05.2016 in the morning accused Hariom had a talk with Laxmi on mobile phone of PW-8. Accused Hariom asked deceased Laxmi to reach at Nangloi Metro Station immediately and thereafter deceased Laxmi had left the house of PW-8. On 27.05.2016 at about 6:00 PM PW-8 had received information of death of her sister Laxmi. Hence something has happened before 6:00 PM on 27.05.2016 so that death of Laxmi had occurred. PW-18 Dr. Rishi Solanki from the Department of Forensic Medicine has deposed that she had conducted post-mortem on deceased Laxmi on 28.05.2016. It is deposed that probable time since death about 20 hours and on external examination a brownish coloured pressure abrasion. Parchmentised dry present in the front and both sides of neck above and around thyroid cartilage. In the front, ligature mark is 2 cm wide in midline, placed 5 cm below chin and 6 cm above sternal notch, then going obliquely upwards on right side, where it is placed 5 cm below right angle of mandible where it is 2 cm wide then going upwards in the right side of neck where width is 1.2 cm, placed 80 cm below right mastoid then further going Page 21 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
into posterior hairline. On the left side it is 1.4 cm wide place 3 cm below left angle of mandible, further it is 2 cm below the left mastoid process where it is 0.8 cm wide. It was opined that the cause of death is asphyxia consequent upon antemorten hanging via ligature material. His detailed postmortem report is Ex.PW18/A bearing his signature at point A.
13. Hon'ble High court of Uttrakhand in case titled Madhvanand and Others vs State Of Uttarakhand on 24 May, 2022 in Criminal Appeal No. 266 of 2004 has held that the expression soon before her death does not mean immediately before the death. The concept of reasonable time would be applicabel which depend upon the facts and circumstances of the case and conduct of the parties. The impact of cruelty and harassment inflicted upon the deceased in relation to demand of dowry has to be seen in reference to cause of unnatural death of deceased. Before raising presumption under Section 113B of Evidence Act, 1872 the prosecution has to prove that soon before her death such woman was subjected by the accused to cruelty or harassment in connection with the demand for dowry. When such cruelty and harassment is proved then the presumption has to be mandatorily raised. To attract the provision of Section 304B IPC it is not necessary for the Page 22 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
prosecution to prove that the husband or relative had killed the deceased but it has to be seen that the death has occurred other then under normal circumstances which will therefore be called a dowry death and the husband / relative/ accused shall be deemed to have caused her death unless proved otherwise. Distinction is also laid down between hanging and strangulation. The present case does not seem to be the case of strangulation as the ligature mark is not proved horizontal or traves continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. Abrasion and ecchymosis round above the edges of ligature marks are also not proved. It is not proved that saliva was not dribbling from the mouth of the deceased. Hence it is not the case of the prosecution that the deceased was strangulated and the hanging may be suicidal which prosecution has to prove by relevant evidence. The relevant para of the citation is reproduced hereasunder:
27. The expression "soon before her death" does not mean "immediately before the death". These words should be given reasonable and practical interpretation. In the case of Uday Chakraborty and others v. State of West Bengal, (2010) 7 SCC 518, the Hon'ble Supreme Court observed "The expression "soon before her death" has to be given its due meaning as the legislature has not specified any time which would be the period prior to Page 23 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
death, that would attract the provisions of Section 304-B IPC. The concept of reasonable time would be applicable, which would primarily depend upon the facts of a given case, the conduct of the parties and the impact of cruelty and harassment inflicted upon the deceased in relation to demand of dowry to the cause of unnatural death of the deceased. In our considered view, the marriage itself has not survived even for a period of two years, the entire period would be a relevant factor in determining such an issue."
28. The menace of dowry, in fact, has crippled the society. The relations had gone down to the extent that, in fact, 304B was inserted in IPC in the year 1986. Such death, which occurs in the house of in-laws is very hard to be proved by the prosecution. Therefore, some special provisions were also made in the Indian Evidence Act, 1872 ("the Evidence Act"). Section 113B of the Evidence Act permits the court to presume about death dowry. It reads as hereunder:-
"113B. Presumption as to dowry death. --- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation. -- For the purposes of this section, "dowry death"
shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."
29. In order to attract the provisions of Section 304B IPC, it is not necessarily to be proved by the prosecution that the husband or his relative had killed the deceased. What has to be seen is that the death occurred other than under normal circumstances.
30. In the case of Satbir Singh and another v. State of Haryana, 2021 SCC OnLine 404, the Hon'ble Supreme Court considered the suicidal or homicidal aspect of death and observed that, in fact, Page 24 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
death other than normal circumstances includes homicidal or suicidal or accidental death. In paras 24 and 25, the Hon'ble Supreme Court observed as hereunder:-
"24. The second contentious part relating to Section 304-B IPC is that it does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental, as was done earlier. The reason for such non-categorisation is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental. However, Section 304-B IPC endeavours to also address those situations wherein murders or suicide are masqueraded as accidents.
25. Therefore, if all the other ingredients of Section 304-B IPC are fulfilled, any death whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a "dowry death" and the woman's husband or his relative "shall be deemed to have caused her death"
unless proved otherwise. The section clearly specifies what constitutes the offence of dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death [refer Maya Devi v. State of Haryana [Maya Devi v. State of Haryana, (2015) 17 SCC 405 :
(2018) 1 SCC (Cri) 768] , Shanti v. State of Haryana [Shanti v.
State of Haryana, (1991) 1 SCC 371 : 1991 SCC (Cri) 191]". xxxxxxxxxxxxx
36. Learned Senior Counsel for the appellants would submit that the deceased committed suicide because she was mentally unstable. In support of her contention, learned Senior Counsel has referred to the postmortem report to argue that, in fact, it does not reveal much. Reference has been made to the Modi Jurisprudence (Modi's Medical Jurisprudence & Toxicology, Twenty-second Edition, page 270), where the symptoms of hanging and strangulation have been detailed. It is as hereunder:-
Page 25 of 50 SC No.29007/2016 FIR No. 284/2016P. S. Prashad Nagar State vs. Hariom and Ors.
Hanging Strangulati
on
1 Most suicidal Mostly
homicidal
2 Face - Usually pale Face -
and petechiae Congested,
livid and
marked
with
petechiae.
3 Saliva - Dribbling Saliva- No
out of the mouth such
down on the chin dribbling.
and chest.
4 Neck- Stretched Neck -Not
and elongated in so.
fresh bodies.
5 External signs of External
asphyxia, usually signs of
not well marked asphyxia,
very well
marked
(minimal if
death due
to vasovaga
and caroti
sinus
effect).
6 Bleeding from the Bleeding
nose, mouth and from
ears very rare the nose,
mouth and
ears may be
found.
7 Ligature mark - Ligature
Oblique, non- mark-
continuous placed Horizontal
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high up in the neck or
between the chin transverse
and the larynx, the continuous,
base of the groove round the
or furrow being neck, low
hard, yellow and down in the
parchment-like. neck below
the thyroid,
the base of
the groove
or furrow
being soft
and
reddish.
8 Abrasions and Abrasions
ecchymoses round and
about the edges of ecchymose
the ligature mark, round about
rare. the edges
of the
ligature
mark,
common
9 Subcutaneous Subcutaneo
tissues under the us tissues
mark- White, hard under the
and glistening. mark-
Ecchymose
d.
10 Injury to the Injury to
muscle of the neck the muscles
- Rare of the neck
- Common
11 Carotid arteries, Carotid
internal coats arteries,
ruptured in violent internal
cases of a long coats
drop ordinarily
ruptured.
12 Fracture of the Fracture of
larynx and trachea - the larynx
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Very rare and that and trachea
too in judicial -Often
hanging found also
hyoid bone.
13 Fracture- Fracture-
dislocation of dislocation
the cervical of the
vertebrae-Common cervical
in judicial hanging vertebrae-
Rare
14 Scratches, Scratches,
abrasions and abrasions
bruises on the face, fingernail
neck and other marks and
parts of the body- bruishes on
Usually not present the face
neck and
other parts
of the
body-
Usually
present.
15 No evidence of Sometimes
sexual assault evidence
of sexual
assault.
16 Emphysematous bullae Emphysem
on the surface of the atous bullae
lungs - Not present on the
surface of
the lungs-
may be
present.
37. It is true that each and every factor, which could have distinguished between 'hanging' and 'strangulation' has not been noted in the postmortem report. But, merely because of it also, it cannot be said that the postmortem report does not prove strangulation. PW 7 Dr. Yashwant Singh Rawat has been cross-Page 28 of 50 SC No.29007/2016 FIR No. 284/2016
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examined in detail. He has stated that the ligature mark was round the neck, except two inches below the knot. He denied the suggestion that such ligature mark could come due to hanging.
38. A few facts may be noted. PW 7 Dr. Yashwant Singh Rawat, in his cross-examination, has stated that the nose and mouth of the deceased were not bleeding. It may be noted that in the case of hanging, the saliva dribbles out of the mouth down on the chin and chest, as noted by Modi. The reason for it has been stated at page 255 of the Modi's Jurisprudence as above, when it records "Saliva is often found dribbling out of an angle of the mouth down on the chin and chest. This is a sure sign of hanging having taken place during life, as the secretion of saliva being a vital function cannot occur after death".
39. The inquest report does not indicate dribbling of saliva from the mouth. The mouth was closed.
40. The postmortem report records the sign of asphyxia. But, PW 7 Dr. Yashwant Singh Rawat has not been put to cross-examination so as to shake his opinion. According to PW 7 Dr. Yashwant Singh Rawat, the death was due to strangulation.
xxxxxxxxxxxx
43. At the time of inquest, certain photographs have been taken, which have been proved by PW 8 Chaman Singh, IO. The negatives of these photographs have not been proved, but reference has been made by the learned Senior Counsel of these photographs at the time of argument to argue that the knees as placed in these photographs may not have placed in case of strangulation. As stated the dead body was seated on the ground. The height of tree was about five feet. It was not full suspension. It has also emerged in the evidence that the deceased had her socks, Chappals on her body and her shawl was wrapped properly. As stated, in the inquest it is recorded that there were pieces of broken bangles on the way from the house of the deceased to the place of incident. The inquest Page 29 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
records that in one of the hands of the deceased, there were only two bangles, whereas on another hand there were four bangles. This Court does not intend to discuss this aspect in greater detail. It would be academic only.
44. The fact remains that the deceased was a young girl of 21 years of age, who died on 20.01.2001 other than under normal circumstances. The fact remains that, according to PW 7 Dr. Yashwant Singh Rawat, the deceased died as a result of asphyxia due to strangulation. The fact remains that there were signs of asphyxia. The deceased died other than under normal circumstances.
45. The prosecution has been able to prove that the deceased was subjected to cruelty and harassment for or in connection with demand of dowry. It was a continuous process. On 08.05.1999 the deceased married with the appellant Madhvanand. There was a Panchayat in between. It has been proved by the witnesses. On 20.01.2001, the deceased was dead. Her death was other than under normal circumstances.
46. In view of the foregoing discussions, this Court is of a view that the prosecution has been able to prove the charge under Sections 304B, 201 IPC and Section 3/4 of the Act against the appellants beyond reasonable doubts. There is no reason to make any interference and the appeal deserves to be dismissed.
14. Hence the prosecution has to prove the necessary ingredients laid down under Section 304B IPC read with Section 113B of Indian Evidence Act, 1972. It is proved in the evidence of PW-18 that the death of deceased Laxmi had been caused due to hanging which is not under the normal Page 30 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
circumstances. Hence the first ingredient under Section 304B IPC is satisfied. Cross examination of PW-18 is nil after giving of opportunity. The prosecution has successfully proved that the death of the deceased had occurred within 7 years of her marriage since the marriage had occurred on 20.04.2015 as per Hindu Rites and Customs and this has come in evidence of PW-4, PW-8, PW-11 and the same fact has remained unrebutted in the entire evidence. It has also been proved in evidence that death has occurred on 27.05.2016 at the matrimonial house of deceased Laxmi at House No.16/769H, Second Floor, Gali No.9, Military Road, Bapa Nagar, Karol Bagh, Delhi which is proved in the evidence of PW-6, PW-7, PW-8 read with evidence of PW-18. Hence the second ingredient of Section 304B IPC is proved conclusively by the prosecution on the record.
15. Now the prosecution has to prove that the deceased Laxmi was subjected to cruelty by the accused person in connection with demand for dowry and such cruelty or harassment was meted out to the deceased soon before her death. The site plan Ex.PW17/A proves that the suicide was committed in the bathroom of the house. At mark-A is fountain of water and at mark-B is plastic bucket in the bathroom with Page 31 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
the help of which the deceased had committed suicide. The dupatta with which the suicide was committed is seized vide memo Ex.PW10/A which was about 2 feet in length and has blue colour. The plastic bucket of white colour was seized vide memo Ex.PW10/B. The photograph of marriage and marriage card on record are Ex.PW1/B and Ex.PW1/C. The MLC is Ex.PW2/A and it record that the patient was conscious. However it further records at the bottom that the patient was declared brought dead at the time of arrival. Hence the patient was brought dead at the time of arrival. The FSL Report Ex.PW18/A found mention that the deceased was found hanging in the bathroom at about 4:12 PM on 27.05.2016 and when the victim/ deceased was brought to the hospital it was 7:49 PM and the same was also recorded in the MLC. Hence there is a gap of about 3 and ½ hour in bringing the deceased to the Hospital from the time she was found hanging in the bathroom. The Death Report is Ex.PW6/B.
16. Mark-A is statement of Sh. Ram Kishore /PW-7 who is elder brother of deceased Laxmi and in his statement Mark-A it is stated that the accused husband / Hariom used to demand motor-bike. Accused used to come in drunken condition at home and beat the deceased Laxmi. The accused Hariom has Page 32 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
called Laxmi from the house of her sister by threatening to commit suicide whereas when the deceased Laxmi returned back to her home she herself had committed suicide. Mark-B is the statement of PW-4 who is Sh. Ramnivas father of deceased. He has stated in his statement Mark-B that the mother in law, sister in law and father in law were troubling the deceased Laxmi. The brother in law was not eating chapati cooked by deceased Laxmi. Before marriage, one day before Lagan the accused Hariom had demanded motorcycle. PW-4 could not give motorcycle as he was a poor man on which the elder brother of the accused Hariom had thrown the clothes of Lagan. The accused Hariom had also asked for one chain and one ring from the wife of PW-4 and mother of deceased Laxmi who has deposed as PW-11. He has also stated that the accused used to beat deceased Laxmi. The deceased Laxmi was sent back with the accused Hariom on the assurance that he will not beat the deceased Laxmi and he will also not drink liquor. Around evening at about 4:00 PM Ram Kishore had told to PW-4 that Laxmi had expired.
17. However all the public prosecution witness has turned hostile to the case of the prosecution. It was held in case titled Rameshbhai Mohanbhai Koli & Ors vs State Of Gujarat on 20 Page 33 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
October, 2010 Equivalent citations: 2011 AIR SCW 378, (2011) 97 ALLINDCAS 156 (SC), AIR 2011 SC (CRIMINAL) 120, AIR 2011 SC (SUPP) 577 that merely because the witness has turned hostile his evidence cannot be rejected in toto. The same can be accepted to the extent that their version is found to be defendable on a careful scrutiny thereof. The relevant part can be used both by the prosecution and the defence. Some omissions or improvements, contradictions and discrepancies may be there in respect of which care and caution has to be exercised by sifting the evidence to separate untruth, exaggeration and improvements and to see whether residuary evidence is sufficient to convict the accused. Human being cannot be expected to observe all the details of the case and minor discrepancies are bound to occur in the statement of witnesses. The relevant paras are reproduced hereinunder:
Hostile witness
8) It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).
9) In State of U.P. v. Ramesh Prasad Misra and Anr., AIR 1996 Page 34 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of U.P., AIR 2006 SC 951; Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462.
10) In C. Muniappan & Ors. vs. State of Tamil Nadu, JT 2010 (9) SC 95, this Court, after considering all the earlier decisions on this point, summarized the law applicable to the case of hostile witnesses as under:
"70.1 The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. 70.2 In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. 70.3 Some omissions, improvements in the evidence of the PWs have been pointed out by the learned Counsel for the appellants, but we find them to be very trivial in nature.
71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (vide Sohrab and Anr. v. The State of M.P., AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48;Page 35 of 50 SC No.29007/2016 FIR No. 284/2016
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Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v. Om Prakash, AIR 2007 SC 2257; Prithu @ Prithi Chand and Anr. v. State of Himachal Pradesh, (2009) 11 SCC 588; State of U.P. v. Santosh Kumar and Ors., (2009) 9 SCC 626 and State v. Saravanan and Anr, AIR 2009 SC
151)"
xxxxxxxxxxxxxxxxxxxxxxx
14) Another important piece of evidence in the form of panchnama of the scene of offence is Exh.384. The prosecution has relied upon the oral testimony of Vijaybhai Bhagvanjibhai Zariya, PW-35 Exh.383 and Babubhai Chakubhai Vania, PW-68 Exh.519. It is true that both the panchas have turned hostile and not supported the case of the prosecution, however, panchnama has been exhibited in the cross-examination of PW-35. As requested by the State counsel, we verified the said panchnama which is available in the paper-book (vide page No. 2081) which is an application form bearing No. 001351 of A1 Rameshbhai Mohanbhai Vaghani with his residential address was found wherein he applied for a loan of Rs.60,000/- for the purpose of purchasing rickshaw and on the said form also blood stains were found. In view of the same, the said form was recovered while preparing panchnama of scene of offence. This document is one of the circumstances against A1 about his presence at the time of occurrence at the place of incident. This evidence can be relied upon to show that A1 was present at the place of offence at the relevant time.
xxxxxxxxxxxxx
17) In Mehbub Samsuddin Malek and Others vs. State of Gujarat, (1996) 10 SCC 480, this Court held that recovery of gupti at the instance of the accused from a dilapidated building concealed below a heap of earth which found stained with human blood group of `B'. Clothes of the deceased also stained with the same blood group, to lead evidence regarding discovery of blood cannot be disbelieved merely because the house is in a dilapidated condition and it cannot be said that the gupti was found from an open place accessible to all.
18) The recovery of respective weapons of offence at the instance Page 36 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
of the appellants in the instant case speaks volume. The evidence in the present case convincingly establishes that the respective places from where the recoveries were effected were exclusively within the knowledge of the appellants and the same could not have been effected by the investigating agency in the absence of the disclosure statements made by the appellants. xxxxxxxxxxxxxxxxxx
21) The appellants herein have denied the factum of recoveries at their instance is a false plea inasmuch as the recoveries have been duly proved by the prosecution by leading cogent and reliable evidence which has not been shaken by the defence. A false plea taken by an accused in a case of circumstantial evidence is an additional link in the chain of circumstances. [Vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 and Mehbub Samsuddin Malek & Ors. vs. State of Gujarat (1996) 10 SCC 480].
22) We have already observed that the prosecution has established that FSL report has clearly certified that the blood found on the knife was of human origin. This question fell for consideration in State of Rajasthan vs. Teja Ram & Ors., (1999) 3 SCC 507 and this Court held that it would be an incriminating circumstance if the blood on the weapon was found to be of human origin. The same view has been reiterated in Molai and Another vs. State of M.P., (1999) 9 SCC 581.
18. It is deposed by PW-4 in examination in chief that his daughter Laxmi was residing with the accused in Delhi alongwith her husband/accused Hariom. In statement to the SDM Ex.PW4/A portion "B to B" the PW-4 was confronted with by learned APP that the accused has demanded motorcycle just a day before Lagan Ceremony and further demanded chain and ring from the wife of PW-4. However, after that the Page 37 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
marriage ceremony has been celebrated between the parties and the deceased was staying with the accused and it has to be proved by the prosecution that such demand was continuous. The elder sister Pushpa gone to the house of in law's of deceased on the complaint of the deceased about giving of beatings by accused person but it is not deposed that this beating was given in relation to demand of dowry. The son of PW-4 Sh. Ram Kishore and his wife went to bring deceased Laxmi then the accused Hariom had reached Metro Station. On the request of accused to Laxmi to not to go to her parental house the deceased Laxmi returned to her home. In Ex.PW4/X the statement to the police it is stated that deceased Laxmi had visited the house of Pushpa complaining that accused Hariom started consuming liquor and used to throw cooked food and used to beat her. However again it is not stated that it was in relation to demand of dowry. PW-6 has deposed that he did not see any external mark injuries on the body of the deceased when he had seen the deceased Laxmi hanging under the shower of the bathroom. PW-7 Sh. Ram Kishore elder brother of the deceased had denied in cross examination by learned APP for the State that after one month of marriage they brought Laxmi back at their house where deceased had told PW-7 that the accused person/ in laws taunted her for dowry and deceased Page 38 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
Laxmi had remained with them for about 4 or 5 months after accused brought the deceased back to Delhi. However PW-8 has deposed that after 3-4 months of her marriage Laxmi alongwith her husband/accused Hariom had shifted to Bapa Nagar, Delhi and the in laws were not staying with them. Hence it cannot be said that when the deceased was staying alone with her husband at Bapa Nagar Delhi then in laws were harassing the deceased for dowry. It is not the case of the prosecution that the in laws of the deceased who are accused No.2 to 5 used to stay at Bapa Nagar Delhi with the deceased and the accused. Nor there specific date as to visit by accused No.2 to 5 and such harassment is not brought in evidence. Therefore there is absence of proximate link of cruelty committed if any by the accused No.2 to 5 against the deceased Laxmi. Another fact to be noted is that there is total absence of specific facts and evidence as to the date, month and year when the alleged cruelty or harassment was caused upon the deceased by accused No.2 to 5. The brother in law was not taking food cooked by deceased Laxmi as per Ex.PW4/X. However this is not a sufficient incriminating circumstance to be attributed as cruelty in reference to demand for dowry when no such specific facts are brought on record when such demand for dowry was made.
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19. PW-8 has deposed that deceased was her younger sister.
After 3-4 months of her marriage Laxmi came with accused No.1 to Bapa Nagar, Delhi where she lived for one month and then she went to her parents' house at Agra. After 1 or 2 omnths accused No.1 Hariom had visited their parents house and brought Laxmi back with him. That means Laxmi went back to the house of her husband at Bapa Nagar Delhi near about in the month of December, 2015. The deceased Laxmi had stayed about for a month at Bapa Nagar, Delhi in about August, 2015. However all such stay and leaving of deceased Laxmi are matter of conjectures and there is no specific deposition in this regard on record nor there is specific investigation in this regard by IO. The evidence of prosecution witness shows that accused was drinking liquor and he was also beating deceased Laxmi but there is absence of evidence that such beating and drinking of liquor was in reference to the demand for dowy. It is deposed by PW-11 Ms. Ganga Devi that accused came to Delhi alongwith deceased Laxmi for doing some job. PW-12 Ms. Anita Devi wife of Sh. Ram Kishore has deposed that deceased Laxmi never told them anything against her in laws.
20. One fact to be noted is that after cross examination of the prosecution witness by learned APP for the State in reference to Page 40 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
their statement given under Section 161 Cr. P. C. the same are not put to the IO by the prosecution. In this regard the relevant citation titled [2024] 6 S.C.R. 20 : 2024 INSC 376 Alauddin & Ors. v. The State of Assam & Anr. (Criminal Appeal No. 1637 of 2021) 03 May 2024 wherein it is laid down that how contradictions and omissions are to be dealt with. The relevant para No.6, 7, 8, 9 and 10 are reproduced hereasunder:
CONTRADICTIONS AND OMISSIONS
6. Under Section 161 of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), the police have the power to record statements of the witnesses during the investigation. Section 162 of CrPC deals with the use of such statements in evidence. Section 162 reads thus:
"162. Statements to police not to be signed: Use of statements in evidence.--(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.Page 41 of 50 SC No.29007/2016 FIR No. 284/2016
P. S. Prashad Nagar State vs. Hariom and Ors.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
The basic principle incorporated in sub-Section (1) of Section 162 is that any statement made by a person to a police officer in the course of investigation, which is reduced in writing, cannot be used for any purpose except as provided in Section 162. The first exception incorporated in sub-Section (2) is of the statements covered by clause (1) of Section 32 of the Indian Evidence Act, 1872 (for short, 'Evidence Act'). Thus, what is provided in sub- Section (1) of Section 162 does not apply to a dying declaration. The second exception to the general rule provided in sub-Section (1) of Section 162 is that the accused can use the statement to contradict the witness in the manner provided by Section 145 of the Evidence Act. Even the prosecution can use the statement to contradict a witness in the manner provided in Section 145 of the Evidence Act with the prior permission of the Court. The prosecution normally takes recourse to this provision when its witness does not support the prosecution case. There is one important condition for using the prior statement for contradiction. The condition is that the part of the statement used for contradiction must be duly proved.
7. When the two statements cannot stand together, they become contradictory statements. When a witness makes a statement in his evidence before the Court which is inconsistent with what he has stated in his statement recorded by the Police, there is a contradiction. When a prosecution witness whose statement under Section 161 (1) or Section 164 of CrPC has been recorded states factual aspects before the Court which he has not stated in his prior statement recorded under Section 161 (1) or Section 164 of Page 42 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
CrPC, it is said that there is an omission. There will be an omission if the witness has omitted to state a fact in his statement recorded by the Police, which he states before the Court in his evidence. The explanation to Section 162 CrPC indicates that an omission may amount to a contradiction when it is significant and relevant. Thus, every omission is not a contradiction. It becomes a contradiction provided it satisfies the test laid down in the explanation under Section 162. Therefore, when an omission becomes a contradiction, the procedure provided in the proviso to sub-Section (1) of Section 162 must be followed for contradicting witnesses in the cross examination.
8. As stated in the proviso to sub-Section (1) of section 162, the witness has to be contradicted in the manner provided under Section 145 of the Evidence Act. Section 145 reads thus:
"145. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
The Section operates in two parts. The first part provides that a witness can be cross-examined as to his previous statements made in writing without such writing being shown to him. Thus, for example, a witness can be cross-examined by asking whether his prior statement exists. The second part is regarding contradicting a witness. While confronting the witness with his prior statement to prove contradictions, the witness must be shown his prior statement. If there is a contradiction between the statement made by the witness before the Court and what is recorded in the statement recorded by the police, the witness's attention must be drawn to specific parts of his prior statement, which are to be used to contradict him. Section 145 provides that the relevant part can be put to the witness without the writing being proved. However, the previous statement used to contradict witnesses must be proved subsequently. Only if the contradictory part of his previous statement is proved the contradictions can be said to be proved.
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The usual practice is to mark the portion or part shown to the witness of his prior statement produced on record. Marking is done differently in different States. In some States, practice is to mark the beginning of the portion shown to the witness with an alphabet and the end by marking with the same alphabet. While recording the cross-examination, the Trial Court must record that a particular portion marked, for example, as AA was shown to the witness. Which part of the prior statement is shown to the witness for contradicting him has to be recorded in the cross-examination. If the witness admits to having made such a prior statement, that portion can be treated as proved. If the witness does not admit the portion of his prior statement with which he is confronted, it can be proved through the Investigating Officer by asking whether the witness made a statement that was shown to the witness. Therefore, if the witness is intended to be confronted with his prior statement reduced into writing, that particular part of the statement, even before it is proved, must be specifically shown to the witness. After that, the part of the prior statement used to contradict the witness has to be proved. As indicated earlier, it can be treated as proved if the witness admits to having made such a statement, or it can be proved in the cross-examination of the concerned police officer. The object of this requirement in Section 145 of the Evidence Act of confronting the witness by showing him the relevant part of his prior statement is to give the witness a chance to explain the contradiction. Therefore, this is a rule of fairness.
9. If a former statement of the witness is inconsistent with any part of his evidence given before the Court, it can be used to impeach the credit of the witness in accordance with clause (3) of Section 155 of the Evidence Act, which reads thus:
"155. Impeaching credit of witness.--The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him--
(1) .............................................. (2) ............................................. (3) by proof of former statements inconsistent with any part Page 44 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
of his evidence which is liable to be contradicted." It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each individual case.
10. We are tempted to quote what is held in a landmark decision of this Court in the case of Tahsildar Singh & Anr. v. State of U.P.1 Paragraph 13 of the said decision reads thus:
"13. The learned counsel's first argument is based upon the words "in the manner provided by Section 145 of the Indian Evidence Act, 1872" found in Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act, it is said, empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to contradict him. In support of this contention reliance is placed upon the judgment of this Court in Bhagwan Singh v. State of Punjab [(1952) 1 SCC 514 : (1952) SCR 812]. Bose, J. describes the procedure to be followed to contradict a witness under Section 145 of the Evidence Act thus at p. 819:
Resort to Section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, then Section 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made."
It is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under Section Page 45 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
145 of the Indian Evidence Act, for the said decision of this Court and similar decisions were not considering the procedure in a case where the statement in writing was intended to be used for contradiction under Section 162 of the Code of Criminal Procedure. Section 145 of the Evidence Act is in two parts : the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing without such writing being shown to him; the second part deals with a situation where the cross-examination assumes the shape of contradiction : in other words, both parts deal with cross examination; the first part with cross-examination other than by way of contradiction, and the second with cross- examination by way of contradiction only. The procedure prescribed is that, if it is intended to contradict a witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to Section 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by Section 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of Section 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of Section 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of Section 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate :
A says in the witness box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, the procedure suggested by the learned counsel may be illustrated thus : If the witness is asked "did you say before Page 46 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
the police officer that you saw a gas light?" and he answers "yes", then the statement which does not contain such recital is put to him as contradiction. This procedure involves two fallacies : one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could not be used for any purpose, whereas if a police officer recorded a few sentences, by this process of cross-examination, the witness's oral statement could be brought on record. This procedure, therefore, contravenes the express provision of Section 162 of the Code. The second fallacy is that by the illustration given by the learned counsel for the appellants there is no self-contradiction of the primary statement made in the witness box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all : only questions to contradict can be put and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement. This argument of the learned counsel based upon Section 145 of the Evidence Act is, therefore, not of any relevance in considering the express provisions of Section 162 of the Code of Criminal Procedure."
(emphasis added) This decision is a locus classicus, which will continue to guide our Trial Courts. In the facts of the case, the learned Trial Judge has not marked those parts of the witnesses' prior statements based on which they were sought to be contradicted in the cross- examination.
21. It is laid down that if the witness is intended to be confronted with his prior statement reduced into writing then Page 47 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
that particular part of the statement even before it is proved must be speficially shown to the witness. After that, the part of the statement used to contradict the witness has to be proved. If the witness denies that he made the formal statement in that event it is necessary to prove that he did. If the witness does not admit the portion of his prior statement with which he is confronted it can be put to the Investigating Officer by asking whether the witness had made statement that was shown to the witness. This is not done by the State in the present case. Hence the statement made by the prosecution witness before the police had remained unproved on the record.
22. Hence the evidence of prosecution remained unproved and uncorroborated on the record. There is no sufficient material on record to prove that the accused had ever demanded dowry from the deceased and pursuant thereto had committed cruelty or harassment on the deceased. Even if cruelty was made upon the deceased not in pursuance of dowry demand then no conviction can be given to the accused under the provisions the accused is charged with. Specific date, month and year of cruelty done if any are absent and no reliance can be placed on the statement made to the police under Section 161 Cr. P.C. nor on the statements made to the SDM of the area Page 48 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.
concerned. No independent witness is joined by the prosecution. The accused was staying on tenancy at Bapa Nagar and no inquiry was made even from the landlord of the accused. The co-accused No.2 to 5 were not staying with accused No.1 and the deceased and there is absence of proximity with the said accused to the offenc alleged against the accused. In these circumstances of the case it is held that the prosecution has failed to prove its case under Section 498A/304B/34 IPC against all the accused.
23. In view of the discussion held above it is held that the prosecution has failed to prove that the accused have committed offence under Section 498A/304B/34 IPC. Hence accused persons namely Hariom, Chander Shekhar, Hemlata and Harihar Singh are acquitted of the offence charged against them and it is held that prosecution has failed to prove the charge under Section 498A/304B/34 IPC levelled against the accused persons namely Hariom, Chander Shekhar, Hemlata and Harihar Singh. Accordingly, accused persons namely Hariom, Chander Shekhar, Hemlata and Harihar Singh stand acquitted. Their earlier personal bonds are cancelled and sureties are discharged and documents, if any, be returned to the sureties and endorsement on security documents is allowed to be de-
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endorsed. In terms of Section 437A Cr. PC, accused persons have furnished their bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally JOGINDER signed by Announced in the open court PRAKASH PRAKASH NAHAR Date: 2024.11.28 on dated 28.11.24 NAHAR 15:03:15 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/28.11.24 Page 50 of 50 SC No.29007/2016 FIR No. 284/2016 P. S. Prashad Nagar State vs. Hariom and Ors.