Delhi District Court
State vs . Harish Gupta And Ors. - Sc No.40 Of 2011 ... on 26 March, 2013
ID No. 02406R0240182011
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE - 04 & SPECIAL JUDGE (NDPS)
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 40/2011
ID No. 02406R0240182011
FIR No. 230/2011
U/s 498-A,304-B,302 IPC
read with Section 34 IPC
PS : Sangam Vihar
State
Versus
Harish Gupta,
S/o Sh. Om Prakash Gupta,
R/o K-643/7/19, Ratia Marg,
Sangam Vihar,
New Delhi. ..........Accused No. 1
Om Prakash Gupta,
S/o Late Sh. Kishan Lal Gupta,
R/o K-643/7/19, Ratia Marg,
Sangam Vihar,
New Delhi. ..........Accused No. 2
Kamlesh Gupta ,
W/o Sh. Om Prakash Gupta,
R/o K-643/7/19, Ratia Marg,
Sangam Vihar,
New Delhi. ..........Accused No. 3
Lakhan Gupta,
s/o Sh. Om Prakash Gupta,
R/o K-643/7/19, Ratia Marg,
Sangam Vihar,
New Delhi. ..........Accused no. 4
Instituted on : 02nd November, 2011
Argued on : 22nd March,2013
Decided on : 26th March,2013
JUDGMENT
Brief facts
1. Smt. Khushboo (deceased) was married with Harish Gupta (A-1) on 17th November 2009. On the intervening night of 23th/24th June 2011, Khushboo sustained 100 % burn injuries in her matrimonial home at K-806/19, Sangam Vihar, New Delhi. She was shifted to Safdarjung Hospital by her husband and mother-in-
State Vs. Harish Gupta and ors. - SC No.40 of 2011 1/33
ID No. 02406R0240182011
law. Inspector Subhash Malik alongwith ASI Rajender Singh reached at the place of occurrence on receipt of information recorded vide daily diary (DD No. 44-A). Some burnt clothes and smell of kerosene oil was found at the first floor. SHO informed SDM who reached at Safdarjung hospital where Khushboo was found admitted. At 12 O'clock mid night, Doctor declared her "fit to make statement". SDM recorded her statement. In her dying declaration it was stated that "her mother-in-law and father-in-law jointly had set her on fire and killed her. Her husband also participated in the said act. Her father had given enough dowry but despite that, they committed this act . She was married about one year ago and would complete two years in November. She was having a daughter. In this offence, Shruti, her sister-in-law and Golu, her brother-in-law had also participated. All of them burnt her after pouring kerosene oil. They used to demand a vehicle in the dowry. She stated that she had nothing else to say." Her left foot thumb impression was obtained on her statement. Khushboo expired in the hospital at about 02:00am. SDM made an endorsement on the statement of Khushboo (deceased) and directed SHO Sangam Vihar to register a case punishable under section 498-A, 304-B and 34 IPC against the accused mentioned in the statement. FIR no. 230/11 under section 498-A,304-B and 34 IPC was registered at 12:10am on 24.06.2011.
2. Investigation was carried on by Inspector Tarkeshwar Singh. He inspected the spot and obtained photographs of scene of occurrence. He prepared unscaled site plan. IO seized articles found at the spot on 24.06.2011. SDM also recorded statement of Subhash Gupta father of deceased and Savitri Gupta mother of deceased. Postmortem on the dead body was conducted and thereafter, dead body of deceased was handed over to th parents of deceased. IO arrested State Vs. Harish Gupta and ors. - SC No.40 of 2011 2/33 ID No. 02406R0240182011 accused Harish Gupta, Om Prakash Gupta and Kamlesh Gupta on 24.06.2011. During investigation, IO/Inspector Tarkeshwar Singh recorded statements of Smt. Lalita Devi, Dinesh and Dilip Gupta, the neighbours. Smt. Lalita Devi stated that she was residing in front of Khushboo Gupta (deceased) house across the road at first floor and from there, the first floor of Khushboo (deceased) house was clearly visible. She stated that on 23.06.2011 at about 09:30pm, she was preparing tea and saw that Khushboo was burning in standing position and she was not shouting for any kind of help, Lalita Devi shouted that Khushboo was burning. Harish Gupta- her husband and Om Prakash Gupta father-in-law, rushed to first floor and tried to extinguish the fire by throwing water and old clothes over her. They took Khusboo to hospital.
3. As per postmortem report cause of death was opined as "shock due to ante mortem burn injuries caused by flame" and time since death was opined as approximately 12 hours. As per the charge sheet, during investigation, it was revealed that santro car no. DL 2FDY 0224 was bought by Harish Gupta through Sh. Ravinder Singh owner of Jasmit Motor at 1074/43, DDA Flat, Kalkaji, New Delhi, on 08.03.2011 and Harish Gupta had paid Rs. 86,000/- cash and rest of money was financed from M/s R. K. Finance through Jasmit Motor. On conclusion of investigation, charge sheet was filed against Harish Gupta-husband (A-1), Om Prakash Gupta-father-in-law (A-2), Smt. Kamlesh Gupta-mother-in-law (A-3) and Lakhan-brother-in-law (A-4).
4. Charges under sections 498-A r/w 34 IPC , 304-B r/w 34 IPC and in alternative under section 302 read with section 34 IPC were framed and served to the accused persons by this Court on 08.12.2011, to which they pleaded not guilty and claimed trial.
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ID No. 02406R0240182011
5. Points which emerge for determination in this case are :
(i) Whether during the period between 17.11.2009 to the intervening night of 23/24.06.2011 Smt. Khushboo (deceased) was subjected to cruelty by accused (her husband and parents-in law) in her matrimonial home at 806, K Block, Gali no. 19, Sangam Vihar, New Delhi ?
(ii) Whether on the intervening night of 23/24.06.2011 or before, accused persons in furtherance of their common intention committed cruelty upon Smt.Khushboo (deceased) soon before her death?
(iii) Whether accused persons in furtherance of their common intention committed murder of Smt. Khushboo (deceased) ?
Prosecution Evidence
6. To establish accusations against the accused, prosecution examined thirty witnesses in all. Gist of the testimony of the prosecution witnesses and the documents placed on record are as under:
7. Lalita (PW-2) neighbour of deceased was a witness to the scene of occurrence. Dinesh Gupta (PW-5) is also a neighbour, who was residing adjacent to the house of Smt. Lalita (PW-2). Subhsh Chand Gupta (PW-11) father of Khushboo (deceased), placed on record copy of written complaint dated 03.09.2010 (Ex.PW11/A), complaint (Ex.PW11/B) lodged by Khushboo (deceased), his statement (Ex.PW11/D) recorded by SDM, handing over of dead body vide receipt (Ex.PW11/D-1), list of istridhan articles (Ex.PW11/E), receipt of Shri Shyam Jewellers in the name of his brother (Ex.PW11/F), copy of receipt of jewellery items (Ex.PW11/F-1 to Ex.PW11/F-7) seized vide seizure memo (Ex.PW11/G). Smt. Savitri (PW-18) mother of Khushboo (deceased). She placed on record her statement (Ex. PW12/D) recorded by SDM.
8. Santosh Gupta (PW-17) attended the marriage of her 'natin' Khushboo (deceased). He gave one gold chain weighing about 11 grams in marriage. In cross examination, he deposed that he had no documentary proof of State Vs. Harish Gupta and ors. - SC No.40 of 2011 4/33 ID No. 02406R0240182011 giving the said gold chain to Subhash Gupta.
9. Dinesh Gupta (PW-3) halwai charged Rs. 17,000/- for preparation of eating material in the marriage from accused Om Prakash Gupta. Parvez Aggarwal (PW-4) was running a tent house who received Rs. 18,000/- cash for tent charges from Om Prakash Gupta (A-2). Ravinder Singh (PW-6) car-dealer from whom Harish Gupta (A-1) purchased a santro car. PW-6 advanced a loan of Rs. 1,20,000/- to Harish Gupta for purchase of Santro car no. DL 2FDY 0024. He placed on record copy of delivery receipt (Ex. PW6/A) and cash receipt (Ex. PW6/B). Bhagat Singh (PW-9) had a jewelery shop at Ratia Marg, Sangam Vihar. An the end of October, 2009, one Mukesh S/o Kali Charan, who resided in his locality came to his shop and purchased four gold bangles and one gold collar (necklace), weighing 68 grams for Rs.1,08,000/-. PW-9 deposed that Mukesh had told him that he purchased the same for the purpose of marriage of his niece. Mukesh Gupta (PW-10) stated that he purchased four gold bangles and one gold collar from Shri Shayam Jewelers , G-8A/117, Ratia Marg, Sangam Vihar for the marriage of Khushboo (deceased). After postmortem, he received the dead body vide receipt (Ex.PW10/A).
10. Vijay Gupta (PW-20) having a jewellery shop at Naglabich, who was cousin of Sh. Subhash Gupta father of deceased, stated that Sh. Raj Bhadur Gupta, Gulab Chand Gupta and Santosh Gupta purchased jewellery items from his shop and they had given the same by way of gift to Kushbu, daughter of Shubhash Gupta in her marriage. Yogesh Kumar Soni (PW-21) prepared one 'Ranihar' (neckless) of gold weighing about 80/85 gms and one silver payal weight about 57/58 grams at the instance of Subhash Gupta and received the cash against the jewelry items and issued a 'kachi receipt'. Raj Bahadur Gupta (PW-23) State Vs. Harish Gupta and ors. - SC No.40 of 2011 5/33 ID No. 02406R0240182011 attended the marriage of daughter of Subhash Gupta in November 2009. He had gifted gold earring and a ring from M/s Vijay Jewellers from his village to the daughter of Subhash Chand Gupta at the time of marriage. Narender Kumar Modi (PW-27) deposed that in the year 2009, Subhash Chand purchaed one 'tagri' weighing about 122 grams of gold for the purpose of marriage of his daughter. He issued a 'kachi receipt' to Subhash Chand Gupta for the payment of about Rs. 2-2.25 lacs. Dr. Vishnu Kumar (PW-19) deposed that he participated in the marriage of Harish Gupta with Khushboo. According to him, Subhash Gupta spent about Rs. two lacs in the marriage and the remaining expenses in the marriage was borne by accused-Om Prakash Gupta (A-2).
11. Kuldeep Singh (PW12) SDM reached at the spot on receipt of information from SHO. He placed on record an application (Ex. PW12/A) to the CMO for recording the statement of Khushboo. He recorded statement of deceased (Ex. PW11/C) at 00:10 hours on 24.06.2010. PW-12 placed on record death report (Ex. PW12/B). PW-12 recorded the statement of Subhash Gupta (Ex. PW11/D) and of Smt. Savitri (Ex. PW12/D).
12. Dr. Sanjay Kumar (PW-28) deposed that Khushboo (deceased) was admitted in Safdarjang hospital with alleged history of 'suicidal burns' as told by her husband Harish Gupta. Smell of kerosene oil was present. On examination, general condition of patient was found very critical. She was unconscious and her pulse not palpable, respiration rate was 30 per minute, chest/ CVS-NAD. On local examination 100% thermal burn with severe facial burn were found . Diagnosis was 100% thermal burn. Police was present at the time of admission of injured Khushboo in the hospital. Patient was referred to the 'burn ICU'. According to him, at the time of admission, patient was in a 'critical and unconscious condition'. Dr. State Vs. Harish Gupta and ors. - SC No.40 of 2011 6/33 ID No. 02406R0240182011 G. A. Sunil Kumar (PW-29) conducted postmortem. He found rigor mortis all over the body, postmortem staining was not appreciable due to burn injuries. No changes of decomposition were present. Singeing of scalp hair and Kerosene smell was present over scalp hair. Deep burn injuries were found all over the body except small parts of soles. Approximate percentage of burn injuries were 100%. Internal organs like brain, lungs, liver, spleen, kidneys were congested. He opined the cause of death in this case was "shock due to ante-mortem burn injuries caused by flame". Time since death was about 12 hours. Postmortem report is (Ex.PW29/A).
13. Dr. Geetika (PW30) posted in Safdarjung hospital as Senior Resident since August 2010. On 23.06.2011, Khushboo (deceased) was attended in casualty at about 10:45pm, thereafter, she was sent to burn ICU, Bed No. D-2, where she had examined the patient. PW-30 prepared death summary (Ex. PW30/A). PW-30 gave fitness certificate to record statement of Khushboo (deceased) vide endorsement on the application (Ex. PW12/A) encircled at point A. PW-30 declared patient fit for statement on 24.06.2011 at 00:01 am (midnight of 23/24.06.2011).
14. ASI Laxman Prasad (PW-1) duty officer recorded FIR (Ex.PW1/A) and made endorsement (Ex.PW1/B) on the rukka. HC Mahesh Chand (PW-7) of CAW Cell, Sri Niwas Puri , deposed that on 10.09.2010, Khushboo Gutpa gave a complaint against Harish Gupta and his family members. An Inquiry was conducted and statement of both parties were recorded. Parties arrived at a compromise and thereafter, complaint was filed. In cross examination, PW-7 deposed that after being satisfied, Khushboo was sent to her matrimonial house with accused Harish Gupta and at that time parties had no grievance of any kind against each other. SI State Vs. Harish Gupta and ors. - SC No.40 of 2011 7/33 ID No. 02406R0240182011 Naresh Kumar (PW-8) Incharge Crime Team alongwith Ct. Tanishk, photographer reached at House No. K-806, Gali No. 19, Sangam Vihar as one lady had burnt herself. PW-8 inspected the spot and prepared Scene of Crime report (Ex.PW8/A). He saw some burnt clothes and water at the spot. Door of the room was having burn stains. He found smell of kerosene at the spot and photographs were taken.
15. W/Constable Chanchal (PW-13) is witness to the arrest memo (Ex.PW13/A) of accused Kamlesh Gupta and her personal search memo (Ex.PW13/B). Constable Rakesh Yadav (PW-14) took sealed pullandas from malkhana and deposited the same to FSL, Rohini vide RC no. 166/21. SI Mahesh Kumar (PW-15) prepared scaled site plan (Ex.PW15/A) at the instance of IO/Inspector Tarkeshwar Singh. Constable Vikas Kumar (PW-16) joined the investigation with IO/Inspector Tarkeshwar Singh. He is witness of seizure memo of objects lying in the room i.e. match box, kerosene container , burn clothes and plaster of wall vide seizure memo (Ex.PW16/A). He is witness to arrest memos of Harish Gupta (Ex.PW16/B) and of Kamlesh Gupta (Ex.PW13/B) and disclosure statements of accused persons (Ex.PW16/F to Ex.PW16/H). HC Rakesh (PW-22) was deputed by the SHO to go to Village Nanglabich, PS Narki, District Firozabad, Uttar Pradesh to verify the facts regarding jewellery gifts given by the relatives of the complainant and residents of Village Nanglabich. He examined Santosh Gupta, who stated that he had given one gold chain in gift to Khushboo (deceased) in her marriage.
16. Inspector Subhash Malik (PW-24) initially investigated the case and ASI Rajinder Singh (PW-26) accompanied Inspector Subhash Malik to the place of occurrence. PW-24 placed on record DD no. 44-A (Ex.PW24/A). He deposed that State Vs. Harish Gupta and ors. - SC No.40 of 2011 8/33 ID No. 02406R0240182011 on the application moved by SDM, doctor present in the hospital, declared injured 'fit for statement', although, she had sustained 100% burnt injuries. SDM himself recorded statement of injured. After recording the statement of complainant/injured, Sh. Kuldeep Singh SDM gave direction to register the case u/s 498-A and 304 -B IPC r/w 34 IPC against the accused persons named in the complaint. PW-24 made endorsement (Ex.PW24/B) on the statement of deceased. In the morning of 24.06.2011, PW-24 received information vide DD no. 64-A, (Ex.PW24/C) that the complainant/injured Khushboo succumbed to injuries. After registration of FIR, further investigation was entrusted to Inspector Tarkeshwar. Inspector Tarkeshwar Singh (PW-25) further investigated the case. Statement of accused persons
17. On conclusion of prosecution evidence, Statement of accused persons was recorded under section 313 Cr.PC. Accused persons pleaded innocence and false implication. Harish Gupta (A-1) stated that on the day of incident, he was washing his 'gramin sewa' vehicle. On hearing noise from his neighbour-Lalita that 'khushboo jal rahi hai upar', he ran upstairs, thereafter his parents also went upstairs. He tried to pour water to extinguish the fire. Lalita asked him not to pour the water, thereafter, he tried to extinguish the fire by putting a sheet (chaddar) on the body of Khushoo. Fire was extinguished and Khushboo fell down on the floor. He alongwith his mother took her to the hospital in a car. Lateron, he came to know in the hospital that she expired .
18. He stated that he had not committed any offence as alleged by the prosecution and Khushboo committed suicide of her own as she was not happy in her matrimonial home due to burden of domestic affairs. There was no dispute between Khusboo and him. He sated that Khushboo had lodged a false complaint State Vs. Harish Gupta and ors. - SC No.40 of 2011 9/33 ID No. 02406R0240182011 in CAW cell at the instance of her father and family members but the said complaint was filed, after compromise. He took Khushboo at her matrimonial home and there was no quarrel between us and his family members for demand of dowry and harassment . All the allegations leveled by prosecution witnesses were false and after thought. Khushboo was unconscious when he admitted her in the hospital. She was not in a position to give any statement and she had not made any statement before SDM. IO in connivance with family members obtained fabricated statement of Khushboo and in fact, she had not made any statement before SDM at all.
19. Accused Om Prakash (A-2) and Kamlesh (A-3) stated that they were siting on a cot at the ground floor in front of their house. At about 09:00/09:30pm, their neighbourer Lalita shouted that 'khushboo jal rahi hai upar.' (Khushboo was burning upstairs). After hearing noise, they went upstairs. Their son Harish was washing 'gramin sewa' vehicle in front of their house on the road. All of them went upstairs and found Khushboo in a burning condition and fire was extinguished by them and Khushboo was shifted to the hospital in a car by their son Harish Gupta and Smt. Kamlesh. It is stated that there was no demand of dowry to Khushboo either from their side or from their son Harish Gupta. She used to remain unhappy due to burden of domestic work. All the misunderstanding came to an end before CAW Cell and after compromise, she was living happily in the matrimonial home I do not know as to why she committed suicide probably , due to overburden of domestic work. Accused Om Prakash Gupta stated that parents of Khushboo had given Rs. two lacs in cash for marriage expenses and all the expenses including tent, dinner and other expenses were borne by him and he had not given any jewellery in the marriage. Father of Khushboo had introduced false witnesses State Vs. Harish Gupta and ors. - SC No.40 of 2011 10/33 ID No. 02406R0240182011 regarding presentation of jewellery to Khushboo at the time of her marriage. All the other witnesses, who had leveled allegations against him and his family members were false and interested witnesses. They had already purchased the santro car before the incident, after giving some money in cash and some money by finance to the seller, so the question of demanding car or anything else do not arise. Accused Kamlesh Stated that there was no demand of dowry to Khushboo either from their side or from Harish Gupta. She used to remain unhappy due to burden of domestic work. All the misunderstanding came to an end before CAW Cell and after compromise, she was living happily in the matrimonial home. Accused Lakhan Singh (A-4) stated that on the day of incident, he was not present at the house. He had no knowledge about the case. His name has been mentioned in the FIR falsely at the instance of family members of deceased Khushboo. He had not committed any offence. His wife Khushboo used to remain unhappy due to burden of domestic work and she never subjected to cruelty and harassment on account of dowry, as alleged.
20. Accused persons produced Sh. Dlilip Gupta (DW-1) in their defence. He was residing in the neighbourhood of the matrimonial house of accused persons. His testimony is on the lines of Smt. Lalita (PW-2) and Sh. Dinesh Gupta (PW-5).
21. I have heard arguments advanced by Sh. Wasi Ur Rahman Learned Addl. PP for the State, V. K. Gutpa Ld. counsel for complainant and Sh. Jitender Tyagi Learned defence counsel and have considered material on record carefully. Submissions advanced
22. Ld. Addl. PP argued that Khushboo (deceased) was married with accused Harish Gupta on 17.11.2009 and that she suffered an unnatural death State Vs. Harish Gupta and ors. - SC No.40 of 2011 11/33 ID No. 02406R0240182011 within seven years of her marriage. Dying declaration (Ex. PW11/C) of the deceased recorded by the SDM (PW-12) is sufficient to convict the accused. He submits that statement of PW-11 & PW-12 parents of deceased, corroborates the dying declaration of the deceased. In her statement made to the SDM, the deceased had stated that her mother-in-law and father-in-law both had set her on fire together and thereafter, she stated that her husband had also participated in the act. She also stated that in the offence her sister-in-law Shruti and brother-in- law Golu also participated. Thus, all of them collectively poured kerosene oil and had set her on fire. She stated that demand of vehicle was made by them.
23. Learned Addl. PP submitted that SDM (PW-12) in his examination in chief stated that he moved an application (Ex.PW12/A) and doctor declared deceased "conscious and fit" for recording her statement at 12:01am (mid night) about two hours prior to her death. It is contended that injured made the said statement in conscious condition. Then, in the morning hours of 24.06.2011, SDM was informed by the Addl. SHO Inspector Subhash Malik that Smt. Khushboo had expired in the Hospital. Dying declaration (Ex.PW11/C) was recorded by the SDM and he had written the same, verbatim as told by deceased injured Khushboo. It is submitted that Autopsy Surgeon (PW-29) opined the cause of death as shock due to antemortem burn injuries caused by flame and Smt. Khushboo (deceased) had died at about 02:00am, on the intervening night of 23/24.06.2011.
24. Learned Addl. PP contended that Smt. Lalita (PW-2), the neighbour who was residing in front of the matrimonial house of the deceased, deposed that there was a Chajja in front of her room and in front of there house (accused) and from her house she could easily see what happened in the house of deceased. On the day of incident, it was Thursday therefore, Thursday market on the pavement State Vs. Harish Gupta and ors. - SC No.40 of 2011 12/33 ID No. 02406R0240182011 was installed in the gali. According to Learned Addl. PP, statement of Smt. Lalita (PW-2) and Sh. Dinesh (PW-3) corroborates the testimony of parents of deceased regarding at least burning of deceased. It is submitted that accused Harish Gupta had taken the deceased to the Hospital and got her admitted.
25. Learned Counsel for the complainant submits that there are discrepancies in the statement of Smt. Lalita (PW-2). At one point of time, she deposed that she was standing at Chajja and at other point, she stated that she was making tea. Learned Counsel for the complainant pointed out that in the previous complaint filed by the deceased in CAW Cell, allegations of demand of dowry were mentioned, although parties had settled and sorted out the matter. Learned Counsel for the complainant further submits that the parents in their statements have stated that deceased was not given food by the accused persons. In support of his submissions that no certificate of doctor was required to be appended as to the fitness and capability of the victim for making dying declaration, Learned counsel for complainant placed reliance upon "Subir Das @ Bapi Das and Sova Das vs State of West Bengal" reported as 2006 (4) CHN 231 and reliance was also placed on a case "Yashwant Kumar vs State" (Crl. Appeal No. 270/2001) decided on 4th February 2011, Hon'ble Delhi High Court. In support of the submission that if an offence is committed inside a house , the burden would be on the inmates to give a cogent explanation as to how the crime was committed and that onus would shift on the accused persons .
26. On the other hand, Learned Defence Counsel argued that the deceased was not fit to make statement. He submits that as per MLC of deceased (Ex.PW28/A) prepared by Doctor Sanjay (PW-28) time of arrival of deceased in the hospital was 10:45 am and in the MLC Doctor Sanjay (PW-28) noted that the State Vs. Harish Gupta and ors. - SC No.40 of 2011 13/33 ID No. 02406R0240182011 general condition of Khushboo (deceased) was 'very critical', she was unconscious and her pulse not palpable and on local examination 100% thermal burn with severe facial burn were found. Learned Counsel drew attention of the Court towards, 'death summary', prepared by Doctor Geetika (PW-30), who gave certificate of fitness that patient had "100% thermal and facial burn" and she did not responded to any measure and succumbed to her injuries at 02:00am on 24.06.2011.
27. Learned Defence Counsel contended that as per the case of prosecution, dying declaration was recorded at 12:01 am (midnight) by the SDM and concluded at 12:10 am. At that time admittedly, he had not given any direction to the SHO to register any case u/s 307 IPC. There is not explanation as to why SDM had not given any direction at the night itself, if there were allegations of pouring kerosene oil and burning her by the accused and why IO had not recored any FIR, despite the fact that the statement of deceased was recorded. He further submits that as per the record, DD No. 64-A was recorded on the basis of the information received from the Hospital that Khushboo had expired. This information was noted at 07:15 am, whereas deceased had expired at 02:00 am. He argued that as per the endorsement made on the rukka (Ex.PW24/B), DD No. 6-A was recorded at 08:20 am at which time, FIR u/s 498-A IPC was registered. So it appears that on receipt of information by the the police, of the fact that SDM had directed SHO to register a case was vide DD No. 64-A recorded at 07:15 am, it indicates that there was no dying declaration or the statement of the deceased recorded at 12:00 am by the SDM. Otherwise, FIR under the relevant provisions of law would have been registered against the accused persons. Learned Counsel submits that even in the morning hours, no FIR u/s 302 IPC was registered.
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ID No. 02406R0240182011
28. It is contended by Sh. Tyagi, Learned defence counsel that PW-18 mother of deceased deposed that she had met deceased at 10:00/10:30 pm and then she had narrated her about the incident that all the accused persons had set her on fire, whereas according to Doctor Sanjay (PW-28), who prepared MLC (Ex.PW28/A), deceased was unconscious at 10:45 pm, therefore there was no occasion for her to narrate any incident to her mother at 10:00/10:30 pm. PW-11 in his statement to the SDM, stated that the deceased had told her that kerosene oil was poured over her but admittedly, he was not able to recall the name of the person who poured kerosene oil over her. In support, Learned defence counsel relied upon "Surinder Kumar vs State of Haryana" 2012 Cri. L. J. 1043. In "State of Rajasthan vs Yusuf" AIR 2009 SC 2674, it was observed that it is the duty of the Court to scrutinise the dying declaration carefully and to ensure that the declaration was not the result of tutoring , prompting or imagination. Where a dying declaration was suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it has to be rejected. Legal position
29. As per the definition of "dowry death" in Section 304-B IPC and the wording of Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been subjected to cruelty or harassment "soon before her death" and that too "for or in connection with the demand for dowry". The legal position is well settled that on a joint reading of Section 113-B of the Evidence Act and Section 304-B IPC it would reveal that there must be cogent material to show that soon before her death the victim was subjected to cruelty or harassment, and that too in connection State Vs. Harish Gupta and ors. - SC No.40 of 2011 15/33 ID No. 02406R0240182011 with any demand for dowry. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment; and only thereafter, the presumption would operate. Evidence in this regard has to be led in by the prosecution and established beyond doubt. "Soon before" is a relative term and it would depend upon the circumstances of each case. The expression "soon before her death" used in the substantive section 304-B IPC and section 113-B of the Evidence Act is present with the idea of proximity test. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. Thus, it is well settled that before a presumption is raised under Section 113-B Evidence Act, the foundation thereof must exist. Unless and until the preliminary facts are established beyond reasonable doubt by the Prosecution, it is not open to draw a presumption against the accused to invoke this Section.
30. In Sunil Bajaj vs. State of M.P. 2001 CrLJ (SC) 4700, Hon'ble Supreme Court observed that "In case of an offence under section 304-B Indian Penal Code an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution."
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31. Legal position is well settled that dying declaration can form the sole basis of conviction even if it is not corroborated, but it should inspire full confidence of the Court regarding its correctness. Court has to be on guard that statement of deceased was not a result of either tutoring or prompting or product of imagination. Court must be further satisfied that the deceased was in a fit state of mind. Once Court is satisfied that declaration was true and voluntarily, it can base conviction of accused without any further corroboration but when a dying declaration is suspicious, it cannot be acted without corroborative evidence. If it is found that when the deceased was unconscious and could never make any dying declaration, evidence with regard to it is to be rejected.
Discussion of Evidence
32. There is no dispute that Khushoo (deceased) was married with Harish Gupta (accused no. 1) on 17.11.2009 and she died due to burn injuries on intervening night of 23/24.06.2011 and thus had an unnatural death within seven years of her marriage.
33. On the touchstone of tests noticed above, now, the acceptability of the alleged dying declaration (Ex. PW11/C), has to be considered. Statement (Ex.PW11/C) reads as under :
"My mother-in-law and father-in-law have collectively set me on fire. Both of them had beaten them. My husband also participated in this act. My father gave too much dowry despite that they did this. I was married one year ago and would complete two years in November State Vs. Harish Gupta and ors. - SC No.40 of 2011 17/33 ID No. 02406R0240182011 2010. I was having a daughter. In this crime, my brother-in-law and sister-in-law also participated and all of them burnt me after pouring kerosene oil and set me on fire. They used to demand a vehicle in the dowry. I have nothing else to say."
34. Now, the question to be addressed is whether this statement allegedly made by the deceased inspires confidence. There is no dispute that if dying declaration is made by a person who was conscious and the same was made and recorded, after due certification by the doctor, it cannot be ignored. Doctor Geetika (PW-30) who declared deceased fit to make statement, deposed that she was a student. Since August 2010 and was doing MCH Course in Plastic surgery. A consultant was available in the burns ward on duty under whom she worked. She did not sought any opinion of the said consultant while giving fitness certificate of the patient in this case. Her attention was drawn towards the finding noted by Doctor Sanjay Kumar (PW-28) at 10:45pm as "critical and unconscious"
on MLC (Ex. PW28/A). She admitted that it was a matter of record that she had mentioned in death summary (Ex. PW30/A) that "the patient did not respond to any measure and succumbed to injuries on 24.06.2011 at 02:00am." She admitted that 100 percent burns meant complete body burns including feet and hands. She admitted that as per death summary (Ex.PW30/A) patient was having 100 percent deep thermal and facial and respiratory burn injuries. She admitted that the patient was given injective pain killer and it was a matter of record that the immediate cause of death in this case was burns shock . SDM had not recorded the statement of patient in this case in her presence. She admitted that nobody had disallowed her to remain present in the cabin where Khushboo was present. She did not know how long the SDM remained in the burn ICU or at what time he left.
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PW-30 admitted that SDM had not informed her when he left the hospital. According to her, she checked patient at 01:30am and at that time, she was in very critical condition and was about to die. She admitted that at 12:00 mid night , she was in a 'very critical condition' and that is the time when she was declared fit to make statement. Doctor Geetika (PW-30) deposed that toe impression of Khushboo were not taken in her presence.
35. Evidence on record shows that deceased was unconscious at 10:45pm, when she was admitted in the hospital. Her general condition was very critical and she was having 100 % thermal burn. She expired at 02:00am on 24.06.2011 and that "patient did not respond to any measure and succumbed to her injuries". On considering the entirety of circumstances obtaining on record 'orientation and fitness' of the deceased to make statement declared by Doctor Geetika seems doubtful. Court has to be on guards that statement made by deceased was not as a result of either tutoring, or prompting or a product of imagination . Inspector Subhash Malik (PW-24) in his deposition stated that he had obtained left foot thumb impression of deceased on her statement . Doctor Geetika (PW-30) stated that her toe impression was not taken in her presence. According to SDM (PW-12), mother of deceased was already present in the ICU room where her statement was recorded and at the time of recording statement only Smt. Savitri (PW-18) her mother was present but her signatures are not obtained on (Ex.PW11/C). Whereas, according to PW-24, he as well as ASI Rajender, Doctor and nursing staff were present in the ICU ward, when SDM recorded her statement. Admittedly, SDM had not obtained signature of any doctor or nurse on her statement (Ex.PW11/C) or any endorsement of doctor (PW-30) regarding fitness and orientation of deceased, on the statement (Ex.PW11/C) at State Vs. Harish Gupta and ors. - SC No.40 of 2011 19/33 ID No. 02406R0240182011 the time of recording or lateron. SDM deposed that he was not having much experience of recording such statements. Doctor Geetika (PW-30) admitted that she did not know how long SDM remained in "burn ICU" where she was posted or when he left. Doctor Geetika (PW-30) admitted that even at that time her condition was 'very critical'. FIR was recorded in the morning hours at 08:20am vide DD no.-6A. On considering totality of facts and circumstances noticed above, it appears that deceased was unconscious and could never make any declaration and therefore, dying declaration does not inspire full confidence of the Court.
36. To find out, whether dying declaration is corroborated by any independent evidence or whether any crulety, 'soon before' her death was committed by accused or cruelty as defined in Section 498-A IPC was meted out the deceased by accused persons, now, I shall advert to the relevant portion of statements of material witnesses in this regard. Sh. Subhash Gupta (PW-11) deposed that he could not tell the time as to when, he made eqnuiry from her daughter. PW-11 admitted that in her statement to the SDM he had stated "I am not able to recollect the name of the persons who poured kerosene oil" Statement of PW-11 was recorded by SDM soon after the incident on 24.06.2011, if names of person who poured kerosene oil over her were disclosed to him, it would not have been difficult for father to recollect their names. PW-11 deposed that he made a call at 100 number at around 09:40pm from his mobile number and reached at Safdarjung hospital at around 10:30pm, whereas, his wife reached in the hospital about half an hour earlier than him. PW-11 could not tell the time as to when, he made inquiries from his deceased daughter. He deposed that the doctor had told him that she was having 90 % burn injuries on her body and she would not sustain and his daughter was in a 'very critical condition', who expired around State Vs. Harish Gupta and ors. - SC No.40 of 2011 20/33 ID No. 02406R0240182011 01:00/01:30am (mid night). PW-11 admitted that he mentioned in his statement dated 24.06.2010 before the SDM that "he was not able to recollect the name of the persons, who poured kerosene oil." PW-11 admitted that he had not asked the police to register an FIR regarding this incident prior to death of deceased at night time after recording statement Ex. PW11/C. PW-11 in his deposition stated that at the time of recoding statement of her daughter by SDM, he remained present inside the ward but at a distance from her. He could not hear the statement narrated by her daughter to SDM. His daughter had put her thumb impression of her left leg on her statement. The upper portion of body of his daughter was burnt and bandaged. He met accused persons in the hospital and there was no sign which showed that they had rescued his daughter as there were no signs of burning in their hands.
37. Smt. Savitri (PW-18) testified that initially they were not allowed to go inside the room where Khushboo was admitted. When they were allowed to meet Khushboo, it was about 12 O' Clock. They were allowed to go after SDM had recorded statement of Khushboo. Police officials were also present in the same room when SDM had recorded statement of Khushboo. There were few police officials but she could not tell how many police officials were there. According to PW-18, Oxygen mask was fixed on the mouth of the Khushboo and at the time of recording of her statement, oxygen mask was removed. PW-18 did not know whether any doctor had come inside the room where Khushboo was present before SDM recorded her statement. After SDM and the police officials had come out of the room, thereafter she alongwith her son namely Sunil and her Dever Mukesh and two neighbours namely Rekha and Kanta had gone inside the room to see Khushboo. Khushboo narrated them about the incident in the presence of all State Vs. Harish Gupta and ors. - SC No.40 of 2011 21/33 ID No. 02406R0240182011 these persons. There was one nurse only in the room besides them. Oxygen mask was there her mouth, when they entered and also other instruments and drip. Nurse removed oxygen mask to allow her to talk to them. No doctor visited the said room in their presence. She was having nervousness 'ghabrahat'. PW-18 admitted that the chajja of matrimonial house of Khushboo (deceased) was visible from the chajja of opposite house.
38. On asking from SDM (PW-12) to clarify that Khushboo had stated that his father in law and mother in law had ablaze her and thereafter she stated that her husband had also participated and then in the later portion she stated that her Nanad and Dewar also participated and lastly she stated that all of them collectively poured kerosene oil and ablazed her, did he put any query to her to clarify, PW-11 stated that , at the time of making statement, Khushboo (deceased) was in severe pain and he had not clarified from her about this 'incoherence'. He had not put any query in this regard. He had inquired who were the person, who actually poured kerosene oil or burnt her and in reply, she gave no specific answer to this query. She stated that all of them participated and thereafter she stated that she had nothing to say. According to SDM, only her mother was present besides him in the ICU room, when he recorded her statement and her mother was earlier present with Khusbu (deceased) when he reached in the ICU, the place, where, he recorded the her statement. PW-12 stated that he inspected the place of occurrence but had not made any inquiry from the neighbours about the incident to verify the authenticity of statement, made by Khushboo (deceased).
39. Inspector Subhash Malik (PW-24) who initially investigated the case deposed that it was 09:00pm to 10:00pm on the intervening night of State Vs. Harish Gupta and ors. - SC No.40 of 2011 22/33 ID No. 02406R0240182011 23/24.06.2011, when application was moved by SDM before CMO. He and SDM almost simultaneously reached at Safdarjung hospital at about 09:00/09:30pm. At that time, mother in law of deceased namely Kamlesh as well as Harish Gupta husband of injured were present . He had not seen parents of the deceased in the hospital at that time. PW-24 admitted that Section 302 IPC was never recommended and that it was a matter of record that DD no. 44-A notes the information that "one lady has set herself on fire". When he reached at the hospital, Khushboo was found admitted in the ICU of burn wards. She was having 100 % burn injuries. He admitted that "he obtained thumb impression of the foot of Khushboo (deceased) on the statement (Ex. PW11/C) recorded by SDM". PW-24 deposed that her face appeared to be blackish on which medicine had been applied. On her face, bandaged was applied and her entire body was bandaged and she was crying with pain.
40. Significantly, dying declaration is totally in conflict with the version of two witnesses namely, Smt. Laita (PW-2) and Sh. Dinesh Gutpa (PW-5), who are neighbours and are independent and produced by the prosecution.
41. Smt. Lalita (PW-2) was residing at K-19/845, gali no. 10, Sangam Vihar, in a house which was situated opposite to the house where place of occurrence took place. She deposed that she could easily see what was happening in the house of Khushboo and Harish Gupta. On 23rd June, 2011, at about 09:00/09:30 pm , on 23rd June, 2011, she was present at her residence at the first floor and was making tea and when she was standing on her chajja to see the bazaar, then at that time, she noticed that Khushboo was burning in front of the room/gallery adjoining chajja at the first floor. She saw that on the ground floor, State Vs. Harish Gupta and ors. - SC No.40 of 2011 23/33 ID No. 02406R0240182011 Harish Gupta was washing his 'Gramin Sewa Vehicle' and Om Prakash Gupta as well as his wife Kamlesh Gupta were sitting at the ground floor on a cot. On seeing Khushboo burning, she raised alarm that 'Khushboo jal rahi hai uppar'. PW-2 in her deposition stated that on hearing this, Harish Gupta ran upstairs and thereafter, Om Prakash also went upstairs and then Kamlesh Gupta went upstairs. Harish Gupta tried to pour the water to extinguish the fire. PW-2 told him not to pour water. Om Prakash Gupta tried to extinguish fire by putting cloth sheet on Khushboo. Fire was extinguished and Khushboo fell down on the floor. Then, Khushboo was taken by Harish Gupta and Kamlesh Gupta to the hospital. In cross examination, PW-2 deposed that relationship between Khushboo (deceased) and her in-laws and husband appeared to be cordial. Khushboo used to often talk to her while standing on the chajja as there was a washing machine on her chajja and used to wash clothes over there. She deposed that Khushboo had never made any complaint to her against her husband or any other family members of in-laws as regards an beating given to her or any demand of dowry. She never noticed any quarrel between Khushboo and her family members and never noticed any beating being given to her. This Court finds no discrepancies in her statement. She was a prosecution witness and stood by her previous version given to police. She was not declared hostile. There is no reason to disbelieve her independent version.
42. Sh. Dinesh Gupta (PW-5) the other neighbour has corroborated the version of Lalita (PW-2). He deposed that house of Lalita was situated adjacent to his house and the house of accused persons was just in front of house of Lalita. On 23.06.2011, he was present at his house and at about 09:30pm, he heard shrieks of Lalita, who was shouting as 'aag lag gai, aag lag gai'. He came out in his balcony and noticed that smoke was coming out from the house of Om Prakash State Vs. Harish Gupta and ors. - SC No.40 of 2011 24/33 ID No. 02406R0240182011 . He came down and saw Om Prakash Gupta (father of Harish Gupta) as well as his wife (mother of Harish Gupta) were standing on the road in front of the Khushboo ir house and Harish Gupta was also washing his car at the road . He deposed that many people were standing at the ground floor were shouting as 'aag lag gai, aag lag gai'. Then, Harish went upstairs and brought his wife Khushboo Gupta downstairs. She was in a burnt condition. In cross examination, PW-5 stated that he had told to the police that he saw Om Prakash Gupta (father of Harish Gupta) as well as his wife (mother of Harish Gupta) were standing on the road in front of their house and Harish Gupta was also washing his car at the road. PW-5 admitted that there was a crowd due to Veer Bazaar. There was too much noise and commotion and therefore, voices were not audible.
43. Sh. Dilip Gupta (DW-1) in his deposition stated that on 23.06.2011, at about 09:30pm, he heard noise from the house of Lalita. He left his shop and rushed towards the house of Om Prakash Gupta. After reaching there, he saw that Om Prakash Gupta and his wife were sitting on a cot in front of their house and Harish Gupta was washing gramin sewa vehicle in front of his house. PW-1 deposed that after hearing noise of Lalita, Harish Gupta went upstairs on the first floor of the house, then he followed him and thereafter, Om Prakash and Kamlesh came upstairs. He saw that Khushboo was burning in the gallery. She was not asking for any help from anyone. DW-1 testified that Harish Gupta (A-1) poured water upon her. Old clothes were also put upon her in order to extinguish the fire. Thereafter, Khushboo was taken to the hospital with Harish Gupta and Kamlesh Gupta . On the next day, he came to know that Khushboo had expired in the hospital. His statement (Ex. DW1/A) was recorded by the police under section 161 Cr. P. C. Originally this witness was listed as a prosecution witness but was State Vs. Harish Gupta and ors. - SC No.40 of 2011 25/33 ID No. 02406R0240182011 dropped by the prosecution and has been produced by the accused persons in defence. Testimony of this witness corroborates the deposition of Lalita (PW-2) and Dinesh Gupta (PW-5).
44. IO/PW-25 has also confirmed the fact that the house of witness Lalita was situated just in front of the house of accused Harish Gupta on the opposite side of the road and that she was residing at the first floor, thus, she was in a position to see the occurrence clearly. PW-25 had inspected the site and saw first floor of the house of accused Harish Gupta. PW-25 deposed that the deceased Kushuboo burnt herself on the first floor of the house of accused Harish Gupta at the end point of staircase of first floor and in front of room at the first floor and the place where Kushboo had burnt was visible from the house of Lalita. He stated that Dinesh Gupta (PW-5) was also resident of the same gali and the house of witness Dinesh Gupta was situated adjacent to the house of Lalita. PW-25 admitted that he had verified from the persons residing in the neighbourhood that Harish Gupta was washing his car in the gali and accused Om Prakash and Kamlesh were sitting in the gali on the cot in front of their house. PW-25 admitted that accused Om Prakash had told him during the investigation, that in the process of extinguishing the fire his foot and hand got partly burnt. Testimony of PW-2, PW-5 and PW-25 as well as DW-1 falsify the version of prosecution that accused persons set Khushboo (deceased) on fire. In view of over-whelming evidence on record against the prosecution, this Court finds no merit in the contentions of Learned Counsel for the complainant and the cases referred by Learned Counsel for complainant i.e. Subir Dass and Yashwant Kumar's Case (Supra) are not applicable to the factual matrix of the instant case. This Court finds that no case u/s 302 r/w 34 IPC is made out against the accused persons.
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45. Now, I shall advert to the evidence of material witnesses regarding demand of dowry and alleged cruelty meted out to the deceased. In this regard, Sh. Subhash Chand Gupta (PW-11), father of Khushboo (deceased) deposed that after about two months of marriage, on the pretext that the boy had to start a business, a demand of Rs. Five lacs was made. He collected Rs. Five lacs after taking it from his friends, relatives and personal sources and gave it to accused Harish Gupta and his father Om Prakash Gupta on 15.03.1010 by way of cash. Sh. Subhash Chand Gupta has failed to produce any record and admitted that he had not produced before IO or during investigation , any relative or friends from whom he allegedly collected Rs. Five lacs for giving the same to the accused persons. She was beaten on patty issues. Her daughter told him that at the instance of his mother, Harish Gupta used to beat her. PW-11 deposed that on 23.08.2010, Khushboo told them that she was beaten and kerosene oil was poured over her. PW-11 did not take any legal action on that day and waited for some days, thinking that the matter would be sorted out. On 28.08.2010, Harish made a telephonic call and abused in filthy language and threatened to kill him his sons Rahul and Sunil. On 03.09.2010, he went to PS Sangam Vihar and made a complaint (Ex.PW11/A). On that day, Khushboo (deceased) also lodged a complaint (Ex.PW11/B). Pursuant of the complaint, CAW cell called him, Khushboo his daughter and the accused persons three four times and ultimately, the matter was pacified. He stated that accused persons admitted their mistake and promised not to repeat any such act in future. On 22.06.2011, Om Prakash, Harish and Deepu son in law of Om Prakash came at his shop at K-12, Raita marg, Sangam Vihar, and demanded a santro car. He showed his inability to purchase the santro car and provide the same to them because he had three more daughter to marry.
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On 23.06.2011, at around 06:40pm, Om Prakash made a telephonic call on his mobile number 9250630975 and demanded Rupees Two lacs cash for purchasing Santro car. He stated that they themselves would arrange rest of the money and threatened him that if he would not fulfill their demand of Rs. Two lacs and stated then "aapki beti ke saath jo harsh hoga woh dekh lena". On 23.06.2011 , at about 09:30pm, accused Om Prakash informed him telephonically that his daughter set herself on fire. After hearing this, he immediately called the police at 100 number and reached at the matrimonial home of his daughter.
46. Consideration of material on record shows that the financial condition of the accused persons was sound and allegations of demand of dowry or Santro Car are unfounded. PW-11 admitted that at the time of marriage, accused was engaged in a business of tubewell water supply and whole sale merchant of grossery items. Whole sale merchant work of grossery was being done by accused Harish Gupta where as the water supply work through bore well was being looked after by father of Harish Gupta. He stated that besides this, father of Harish Gupta used to lend money to the needy persons on interests also.
47. PW-11 deposed that he had told to SDM in his statement that on 28.08.2010 Harish made a telephonic call and abused him in a filthy language and threatened to kill him, my sons namely Rahul and Sunil. PW-11 was confronted with statement (Ex.PW11/D), where it was not recorded. PW-11 deposed that Khushboo (deceased daughter) and accused Harish Gupta had settled the matter and she was sent to her matrimonial home on 03.10.2010 and that she appeared before the CAW Cell and gave her statement that she was living happily with her husband and she did want any further action against the accused persons. PW-11 State Vs. Harish Gupta and ors. - SC No.40 of 2011 28/33 ID No. 02406R0240182011 stated that Khushboo (deceased) gave her statement in view of her compromise with the accused persons and thereafter, they again started harassing and humiliating but he admitted that Khushboo (deceased) had not filed any complaint with any authority against the accused during the period from 03.10.2010. (i.e. when she reconciled with her husband) till 23.06.2011 (i.e. the date of her demise). PW-11 stated that he had mistakenly stated the date as 28.08.2010 to SDM regarding turning out of his daughter from matrimonial house by the accused persons. He deposed that on 28.08.2010, only an incident of abusing took place.
48. Sh. Subhash Gupta, father of deceased admitted that he had not leveled any allegations against the accused persons in his statement recorded by the SDM dated 24.06.2011 during the period w.e.f 03.10.2010 to 23.06.2011. Then, he stated that on 22.06.2011, accused OM Prakash and his son-in-law Deepu and Harish came to his shop and demanded Santro Car. Sh.Ravinder Singh (PW-6) has deposed that he had advanced a loan of Rs. 1,20,000/- to Harish Gupta (A-1) for purchase of santro car and PW-11 has admitted this fact in his cross-examination that accused persons had purchased an old Car bearing No. DL-2F-DY-0024 through one Ravinder Singh (PW-6) a commission agent having his office at Kalkaji by paying Rs. 86,000/- in cash including Rs.6,000/- commission and from him took a loan of Rs. 1,20,000/- for purchasing the said Car. PW-11 admitted that he had not stated fact of showing of sword to his daughter in his complaint dated 03.09.2010 and the complaint lodged with the CAW Cell by his daughter. Thus, evidence on record indicates that accused persons had purchased an old car after getting it financed from Ravinder Singh (PW-6) and after obtaining loan and thus, the allegations regarding demand of santro car are not proved.
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ID No. 02406R0240182011
49. PW-18 admitted that complaint lodged before CAW cell and matter was compromised there with the understanding that Khushboo and Harish Gupta will live happily in future. Smt. Savitri (PW-18) stated that some times disputes between them had arisen on the ground of non working of accused Harish Gupta. PW-18 did not tell to the SDM in her statement (Ex.PW12/D) that after about 15 days of Khushboo's marriage, Om Prakash Gupta father in law of her daughter telephonically informed them to take away Khushboo. She had told to the SDM that her husband Sh. Subhash Chand Gupta had gone to the matrimonial house of Khusboo, where he came to know that a quarrel took place between Khushboo and her husband Harish Gupta and his father on the ground that Harish Gupta was not earning. PW-18 was confronted with statement (Ex. PW12/D) where these facts were not recorded. PW-18 did not remember whether she told to the SDM that Harish Gupta had requested her husband not to take away Khushboo whereupon , her husband returned back. According to PW-18, she had stated to the SDM that his daughter Khushboo told her that Harish had told her "apne baap se dukaan khulwa de". PW-18 was confronted with statement (Ex.PW12/D) where the above said fact was not so recorded.
50. IO/PW-25, who investigated the case has deposed that he had come to know that accused Harish Gupta purchased a second hand Santro car of 2004 model through car dealer Ravinder Singh about two months prior to the incident. Sh. Ravinder Singh produced the delivery receipt and cash receipt of Santro car which PW-25 took into possession vide seizure memo (Ex. PW25/C). PW-25 admitted that there was a finding of CAW Cell in respect of the issue over which the complaint was made. As per the finding of the CAW cell there was some dispute over day to day domestic work and there was no complaint in respect of State Vs. Harish Gupta and ors. - SC No.40 of 2011 30/33 ID No. 02406R0240182011 demand of dowry. PW-25 admitted that the mediator of the marriage had not disclosed any kind of demand of dowry on the part of accused persons or complaint thereof on the part of complainant. PW-25 admitted that during investigation it was revealed that the payment in respect of tent and caterers were made by the accused Om Prakash. PW-25 admitted that accused Harish Gupta had purchased a second hand Santro car much prior to the incident. PW-25 admitted that except the parents of deceased any other witness had alleged regarding the demand of dowry or anything on the part of accused persons. ASI Rajinder Singh (PW-26) admitted that on enquiry at the spot, it was revealed that the injured had been taken to hospital by her husband and mother-in-law. It is pertinent to note that IO/Inspector Tarkeshwar Singh (PW-25) stated that accused Om Prakash sustained burnt injuries on his right hand. Admittedly, after the alleged incident, accused persons had taken the deceased to the hospital.
51. As regards previous complaint dated 10.09.2010 filed by Khushboo (deceased) against the accused persons, material on record shows that an inquiry had been conducted by HC Mahesh Chand (PW-7) of CAW Cell who, deposed that statements of both parties were recorded. In his final report dated 24.11.2010, HC Mahesh Chand (PW-7) reported that on inquiry it was revealed that the quarrel used to take place on the ground of domestic work and that Khushboo (deceased) was not able to perform the entire domestic work due to which her in-laws used to raise quarrel with her. Her husband used to drink liquor and raise quarrel. After counseling of the parties, they arrived at compromise. Khushboo (deceased) was sent to her matrimonial house with Harish Gupta (A-1) and no grievance was left against each other. In cross - examination, PW-18 (Smt. Savitri), mother of deceased has at one point deposed that quarrel over 'domestic work' used to take State Vs. Harish Gupta and ors. - SC No.40 of 2011 31/33 ID No. 02406R0240182011 place between them. This, evidence on record belies the story of any previous demand of dowry by the accused persons.
Conclusion
52. To conclude, there is no reason why testimony of Smt. Laita (PW-2) and Sh. Dinesh Gutpa (PW-5) should be disbelieved. Even otherwise, when two views are possible on the evidence adduced by prosecution , the view which is favourable to accused, has to be adopted . In the instant case, not only the circumstances of recording of dying declaration are highly suspicious, but circumstances noticed above clearly point out that the incident as has been sought to be made out by prosecution did not take place in the manner. It is, therefore, not safe to place reliance upon the dying declaration recorded by the SDM and conviction thereon cannot be based. Admittedly, no complaint was lodged by the parents of Khushboo (deceased) during the period between 03.10.2010, when Khushboo started cohabiting with Harish Gupta in her matrimonial house till 23.06.2010 when the alleged incident of burning took place. Material on record fails to prove that any dowry was demanded by the accused persons for the purchase of santro car or other wise. Scrutiny of the statements of Sh. Subhash Chand Gupta and Smt. Savitri Devi also shows that no case under sections 498-A or 304-B IPC is made out. It appears that only after the unfortunate death of Khushboo, family members and relatives of Khushboo introduced story of demand of car or Rs. Five lacs or payment of Rs. Two lacs belatedly to make it a case of dowry death.
53. Considering the facts and circumstances noticed above as a whole, it cannot be concluded that the accused are guilty of the offence with which they are State Vs. Harish Gupta and ors. - SC No.40 of 2011 32/33 ID No. 02406R0240182011 charged. Crucial and necessary ingredient that the Khushboo (deceased) was set on fire on the intervening night of 23rd and 24th June, 2011 by the accused persons or was subjected to cruelty or harassment by him 'soon before her death' or was subjected to cruelty in connection with demand of dowry at any point of time during the period between 17th November, 2009 till 23/24th June, 2011 has not been established beyond reasonable doubt by the prosecution. Prosecution having failed to discharge its burden, all the accused persons, namely Harish Gupta, Om Prakash Gupta, Kamlesh Gupta, Lakhan Gupta are hereby acquitted from the charges under Section 302 r/w 34, 304-B r/w 34 and 498-A r/w 34 IPC. Accused persons shall furnish requisite bonds under section 437-A Cr.P.C. File be consigned to record room.
announced in the open court on 26th March 2012 (Vinay Kumar Khanna) Additional Sessions Judge-04 & Special Judge (NDPS) South-East, Saket Court/New Delhi State Vs. Harish Gupta and ors. - SC No.40 of 2011 33/33