Delhi District Court
State vs . L.H.V.Prasad & Ors. Reported In (2000) ... on 6 June, 2023
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE -04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET01-000082-2005
SC No. 1228/2016
FIR No. 251/2005
U/s. 498A/304B/302/34 IPC
P.S Krishna Nagar
In the matter of :
State
versus
1) Banarsi Dass,
s/o Late Sh. Sant Ram,
r/o H.No. 3811, Gali No. 11,
Shanti Mohalla, Gandhi Nagar,
Delhi.
2) Urmila
w/o Banarsi Dass,
r/o H.No. 3811, Gali No. 11,
Shanti Mohalla, Gandhi Nagar,
Delhi.
3) Harish,
s/o Banarsi Dass,
r/o H.No. 3811, Gali No. 11,
Shanti Mohalla, Gandhi Nagar,
Delhi.
4) Ajay Kumar,
s/o Rameshwar Lal,
r/o H.No. 582, Sector-37,
Noida, UP.
5) Mamta Kapoor @ Daizy,
w/o Ajay Kumar,
r/o H.No. 582, Sector-37,
SC No. 1228/2016 Page 1 of 79 ASJ-04/East Distt./KKD Court
Noida, UP.
6) Rajni,
w/o Sanjay Kapoor,
r/o H.No. 1713, Gali No. 17,
Rajgarh Colony, Delhi.
Date of Institution : 15.10.2005
Date of reserving Judgment : 25.05.2023
Date of pronouncement : 06.06.2023
Appearances
For the State : Sh. Ajit Kumar Srivastava,
Additional Public
Prosecutor.
For the complainant : Sh. P.L.Behl, advocate.
For accused persons : Sh. R.K.Kochar,advocate,
counsel for accused
Banarsi Dass and Urmila.
Sh. S.K.Ahluwalia,
advocate, counsel for
accused Harish.
Sh. C.S.Tyagi, advocate,
counsel for accused
Ajay Kapoor and Mamta
Kapoor @ Daizy.
Sh. Vijay Kumar Rana,
advocate, counsel for
accused Rajni.
JUDGMENT
1) Briefly stated the facts of the case are that on 15.06.2005 an information was received vide PCR call, which was recorded at PS Krishna Nagar at 08.15 am that near H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, one SC No. 1228/2016 Page 2 of 79 ASJ-04/East Distt./KKD Court woman had committed suicide by hanging. The said DD no. 9 Ex. PW5/A was assigned to ASI Narender Singh, who alongwith Const. Dharmavir went to the spot i.e. H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, where a lady was lying dead on a bed in a room on the ground floor. Father-in-law of the deceased was present there and informed that the deceased had hanged herself. Father-in-law of the deceased namely Banarsi Dass was interrogated by ASI Narender Singh. Banarsi Dass produced a chunni in two pieces and a scissor and informed that it was the ligature material with which the deceased had hanged herself. ASI Nagender Singh informed the SDM of the area and other senior police officers, who reached the spot. Crime Team was called. Photographs of the spot were taken. SDM inspected the spot. The dead body of the deceased Jyoti was taken to Subzi Mandi Mortuary where the postmortem of the dead body of Jyoti was conducted. After the postmortem, the dead body was released to the parental relatives of the deceased. The chunni and scissors were seized vide seizure memo Ex. PW4/A. Exhibits of the deceased were taken into possession vide seizure memo Ex. PW4/C. Since death of Jyoti occurred within seven years of marriage, SDM was informed.
2) The SDM recorded the statement of Amar Nath, father of the deceased, vide Ex. PW1/A, wherein he stated that his daughter Jyoti, who was called Hemlata prior to her marriage, died at her matrimonial house bearing H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi. He stated that they were informed telephonically about the same on that morning at about 08.30 am by their known person. He stated that Jyoti @ Hemlata SC No. 1228/2016 Page 3 of 79 ASJ-04/East Distt./KKD Court was got married on 15.05.2002 with Harish s/o Banarsi Dass, r/o H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi. His son-in-law Harish used to do business of selling clothes. His daughter gave birth to a son on 23.01.2003. She was 12th class passed. His daughter Jyoti used to be disturbed in her matrimonial life by her husband, Harish, parents-in-law and sisters-in-law Daizy and Rajni, who used to trouble her. Her husband Harish, parents-in-law used to torture her mentally and physically. The sisters-in-law Daizy and Rajni were married but they used to frequently come to their parental house and used to support their parents and brother Harish in quarreling with Jyoti and beating her. They used to suspect character of his daughter Jyoti and used to say that Jyoti had illicit relations with husband of Daizy. Due to that reason they used to quarrel with Jyoti and beat her. After the marriage they used to behave badly with Jyoti due to bringing less dowry and used to quarrel with her, beat her and taunt her etc. on that issue. A few days back Harish and his mother demanded rupees two lakhs from them and thereafter they were troubling Jyoti for the same and also used to beat her. His daughter Jyoti was troubled due to all these reasons and therefore in May 2005 she came to their house and told him i.e. Amar Nath that she did not want to go back to her matrimonial house because of the ill-treatment meted out to her by her husband, parents-in-law and sisters-in-law. On 01.06.2005 after intervention of some known persons, she went to her matrimonial house but her in-laws continued to beat her and ill-treat her. On 04.06.2005 her husband Harish, parents-in-law, got her aborted without her consent. The abortion was got conducted at Jain Charitable Hospital, Gandhi Nagar. Husband of Jyoti namely SC No. 1228/2016 Page 4 of 79 ASJ-04/East Distt./KKD Court Harish, his parents, sisters of Harish namely Daizy and Rajni used to beat Jyoti for bringing less dowry and maligning her character and Jyoti used to inform him about the same.
3) Upon hearing the news of demise of Jyoti, they reached matrimonial house of Jyoti in the morning at 09.00 am when they were informed that she has committed suicide by hanging. Her body was lying on the bed. There was no ligature material on her neck. There was no stool etc. in the room. They were told that she had committed suicide by hanging with the ceiling fan but the ceiling fan was at a height of 7 feet above the bed, however, there was no stool etc. lying there. The neighbours informed that Daizy and Rajni were also present there in the night and had left from there at about 08.30 am in the morning. Amar Nath was sure that his daughter had not committed suicide but she had been murdered. He also stated that he would tell some things later because at that time he was mentally upset. The said statement of Amar Nath was recorded on 15.06.2005 by the SDM is Ex. PW1/A. The SDM forwarded the said statement to the SHO PS Krishna Nagar for taking action as per law Ex. PW15/A. The SHO Krishna Nagar directed the Duty Officer to register the case u/s 498A/304B/34 IPC and he handed over the investigation to Insp. Rakesh Kumar, vide Ex. PW18/A.
4) Further investigation was conducted and the husband and parents-in-law of deceased i.e. accused Harish, Banarsi Dass and Urmila were arrested. Photographs of marriage of deceased were seized by the police and statements of witnesses u/s 161 Cr.P.C. were recorded. The viscera and other SC No. 1228/2016 Page 5 of 79 ASJ-04/East Distt./KKD Court exhibits of deceased were deposited with FSL, Rohini for chemical analysis. The site plan of the scene of crime was prepared. The postmortem report was collected and after receiving FSL report, subsequent opinion regarding cause of death of Jyoti was opined on which doctor opined that cause of death in the present case was asphyxia as a result of ligature strangulation, which is sufficient to cause death in the originally course of nature. All the injuries were antemortem and fresh in duration. Accused Mamta was formally arrested in this case and released. There was a direction from the court for not arresting accused Rajni. After further investigation, charge sheet was filed against accused Harish, Banarsi Dass, Urmila, Rajni, Mamta Kapoor @ Daizy and Ajay Kumar u/s 498A/304B/34 IPC.
5) On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section 498A/304B/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 06.10.2005 committed the case to the Court of Session for 15.10.2005.
Charge
6) After hearing the learned Additional Public Prosecutor for the State and the counsel for the accused persons, charge was framed against all the accused persons namely Banarsi Dass, Urmila, Harish, Ajay Kumar, Mamta Kapoor @ Daizy and Rajni for commission of offences punishable under Section 498A/304B/34 IPC. Charge for the offence u/s 302/34 IPC was also framed against the accused Banarsi Dass, Urmila SC No. 1228/2016 Page 6 of 79 ASJ-04/East Distt./KKD Court and Harish. The charges so framed were read over and explained to all the accused persons to which they did not plead guilty and claimed trial.
Prosecution Evidence :
7) Prosecution examined following witnesses.
i) PW1 Amar Nath - father of the deceased. ii) PW2 Jitender Kumar, brother of the deceased. iii) PW3 HC Sushil - MHC(M). iv) PW4 HC Dharamvir Singh, who accompanied
IO/ASI Narender Singh and reached the spot i.e. H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, upon receipt of DD No. 9. He saw that a lady was lying dead on bed in a room on the ground floor of that house. Ceiling fan of the room was in movement. No ligature material etc. was lying there.
Father-in-law of the deceased namely accused Banarsi Dass informed them that she had hanged herself. He was interrogated by ASI Narender Singh. Accused Banarsi Dass produced a chunni in two pieces and a scissor and put the same on bed of the deceased. He informed that it was the ligature material by which the deceased had hanged herself. ASI Narender Singh telephonically informed SDM of the area and senior officers of the police. The SDM of the area and SHO visited the spot. Crime team officials were also called. They took photographs of the spot. SDM also inspected the spot. Dead body of Jyoti was removed to Subzi Mandi Mortuary. PW4 deposed that SDM also SC No. 1228/2016 Page 7 of 79 ASJ-04/East Distt./KKD Court reached mortuary. Postmortem was conducted on the dead body of deceased Jyoti. Thereafter the dead body was released to uncle and brother of the deceased. Pieces of chunni and scissor were seized vide seizure memo Ex. PW4/A. Viscera of the deceased was preserved by the doctor alongwith some clothes, which were taken into possession vide seizure memo. Ex. PW4/C.
v) PW5 ASI Narender Singh, initial IO of the case. He deposed that on 15.06.2005 DD No. 9 Ex. PW5/A was assigned to him at around 8.15 am. He alongwith Ct. Dharamvir-PW4 reached at the spot i.e. H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, and he saw that the dead body of a lady was lying in a room build on the ground floor of the house. Ceiling fan of the room was in movement. Father-in-law of the deceased Banarsi Dass was present at the spot. Inquiries were made from him and he told that deceased had hanged herself. Pink colour chunni was there in two pieces. One scissor was also there at the spot. Banarsi Dass told that the deceased had hanged herself with the help of chunni. He told that he had cut chunni of the deceased in two pieces with which she had hanged herself. PW5 informed about the facts of the case to senior offers including SDM. Crime Team was called at the spot. Crime team reached at the spot. Photographs of the spot were taken by Crime Team. Chunni and scissor were seized vide seizure memo Ex. PW4/A. In pursuance to the directions of the SDM, the dead body was sent to Subzi Mandi Mortuary for postmortem. SDM prepared the documents and got the postmortem conducted at the mortuary. After postmortem viscera, clothes and blood sample SC No. 1228/2016 Page 8 of 79 ASJ-04/East Distt./KKD Court were seized vide seizure memo Ex. PW4/C. PW5 also deposed that the chunni and scissor were given by accused Banarsi Dass. PW5 identified the chunni Ex. P-2 and pair of scissors Ex. P-1.
vi) PW6 W/HC Maya - part of investigation. She was involved in the arrest of the accused Urmila from H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi. She also deposed that accused Banarsi Dass and Harish were also arrested by the IO from the said house.
vii) PW7 Ct. Sonu Kaushik prepared scaled site plan of the spot Ex. PW7/A.
viii) PW8 ASI Ram Kishan - Duty Officer at PS Krishna Nagar, who registered FIR No. 251/2005, u/s 498A/304B/34 IPC Ex. PW8/A and handed over the original rukka and copy of FIR to Insp. Rakesh Kumar, who was assigned investigation of the case.
ix) PW9 Const. Ompal - photographer with mobile Crime Team, who reached the spot and found and lady lying dead on the bed. He took 13 photographs of the dead body at the instance of Crime Team Incharge from different angles. The photographs are Ex. PW9/A-1 to A-13 and negatives are Ex. PW9/B-1 to B-13.
x) PW10 SI Ajit Kumar, Incharge Mobile Crime Team, who reached the spot on 15.06.2005. He found dead body of a lady lying on the bed on the ground floor of the spot. Finger SC No. 1228/2016 Page 9 of 79 ASJ-04/East Distt./KKD Court print expert tried to lift chance prints from the spot but same could not be found. He deposed that no report was furnished by him in this regard to the IO.
xi) PW11 Const. Ajaybir, who took the viscera in sealed condition in the present case from the MHC(M) for depositing the same with FSL on 21.07.2005 vide R.C. No. 23/21. After depositing the same in FSL, he came back to the police station and handed over RC to the MHC(M). He deposed that the exhibits remained intact in his possession and were not tampered with.
xii) PW12 Dr. Ritu Gupta of Jain Charitable Hospital, Raghubarpura, Gandhi Nagar, Delhi. She deposed that on 04.06.2005 patient Jyoti w/o Harish, r/o H.No. 3811, Street No. 8, Shanti Mohalla, Krishna Nagar, Delhi, was brought before her in the hospital. She came to OPD accompanied by her sister-in- law Dolly. The patient complained of bleeding PV (per vagina). Her sonography was conducted. On the examination of report, it was revealed that no heart activity of fetus, it was suggestive of missed abortion and it required dilation and curettage (D&C) for removal of products of conception to stop continuous bleeding. Ultrasound report was given to the patient. The original report was given to the patient and no duplicate copy was to be kept in the record of the hospital. She proved the report Ex. PW12/A on the basis of treatment record. She deposed that the relevant papers showing, who had given the consent before undergoing the abortion might be available in the record of the hospital. She prepared the copy of day care admit card Ex. PW12/B and back SC No. 1228/2016 Page 10 of 79 ASJ-04/East Distt./KKD Court side of the same as Ex. PW12/B1. Photocopy of the receipt of payment is Ex. PW12/C. She affirmed that the name of the persons, who had given consent for treatment of Jyoti, was her sister-in-law Dolly and it also bore her signatures. The patient was conscious and oriented when she came to the hospital with Dolly.
xiii) PW13 Insp. Anil Sharma. He took the postmortem report from the Mortuary Subzi Mandi to obtain subsequent opinion of the doctor. He gave an application to CMO, Subzi Mandi Mortuary, in that regard Ex. PW13/A on the back of which doctor gave his opinion. He obtained the postmortem report. He took into possession the sealed pullanda, which were handed over to him by doctor Rajiv Sharma and thereafter he came back to police station and handed over the sealed pullanda alongwith opinion of the doctor and postmortem report to the IO.
xiv) PW14 Anju Kapoor - neighbour of the father of the deceased. She deposed that Sh. Amar Nath - PW1 was her neighbour. His daughter Jyoti had married in the year 2002. Amar Nath had performed a decent marriage and had given considerable dowry articles. Jyoti had met her several times whenever she used to come to her parental house and she had told her several times that her parents-in-law (Saas - Sasur), sisters-in-law and her husband used to harass and torture her on account of less dowry and used to give her beatings. Whenever Jyoti met her, she used to look depressed and sad. She informed the police all the said facts after death of Jyoti.
SC No. 1228/2016 Page 11 of 79 ASJ-04/East Distt./KKD Court xv) PW15 C.P.Sharma, SDM. He deposed that on
15.06.2005 he was posted as SDM Gandhi Nagar. Upon receipt of information from police station Krishna Nagar regarding death of Jyoti @ Hemlata within four years of her marriage, she reached the given address i.e. H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, at about 12.05 pm. Local police and relatives of lady were also present there. The dead body of the deceased was lying on double bed. The father-in-law of the deceased stated that she had committed suicide by hanging herself with the ceiling fan. However, neither any cloth was tied to her neck nor to the ceiling fan. The ceiling fan was in normal working condition. Blades of the fan were not tilted / twisted. The mouth of the deceased was closed. Local police and father of the deceased i.e. Amar Nath stated that the body was lying in the same condition even when they reached there. Father of the deceased had stated that the deceased had been murdered by her in-laws. The statement of Amar Nath, father of the deceased, was recorded by him vide Ex. PW1/A. He had alleged that she was being tortured and harassed physically as well as mentally soon after her marriage to Harish. PW15 also noticed blue spots on the left hand of the deceased. He deposed that after recording statement of Amar Nath, he filled up form 25/35(1). No suicide note was recovered by him from the spot. No stool/table or any other article, which could have been used by the deceased to reach the fan to tie knot of the cloth purported to have been used to hang herself to the ceiling fan, was noticed in the room. The height of the deceased was 5 feet and the distance between the fan and double bed was 7 feet. By any stretch of imagination it was not possible for the deceased to reach the fan herself without SC No. 1228/2016 Page 12 of 79 ASJ-04/East Distt./KKD Court using the stool/table or any other article. He forwarded the statement of Amar Nath to SHO PS Krishna Nagar for necessary action vide his forwarding note Ex. PW15/A. He proved the request letter Ex. PW15/B vide which the dead body of the deceased Joyti was sent to Subzi Mandi Mortuary to conduct an autopsy. The inquest papers are collectively Ex.PW15/C. Dead body identification statement of Jitender is Ex. PW15/D. He deposed that the body of deceased Jyoti was handed over to her parental relatives by the IO on his direction after the autopsy was over.
xvi) PW16 Insp. Rakesh Kumar - IO of the case. He deposed that on 15.06.2005 he was posted at PS Krishna Nagar as Additional SHO. On that day at abut 05.00 pm, the duty officer handed over him copy of the FIR and original rukka as investigation of the case was assigned to him. PW16 alongwith complainant and police officials had reached the spot i.e. H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi. He prepared the site plan at the instance of the complainant Ex. PW16/A. He recorded the statement of members of Crime Team and supplementary statement of the complainant. He interrogated the accused Banarsi Dass, Urmila and Harish. They gave different versions. There was no stool in the room and the ceiling fan was in proper working condition. He arrested the accused persons and recorded the statement of accused Harish. Accused persons were got medically examined. ASI Narender produced the exhibits of the deceased, which were taken by him into possession from the hospital after postmortem, and PW16 deposited the same in malkhana. PW16 searched for the SC No. 1228/2016 Page 13 of 79 ASJ-04/East Distt./KKD Court remaining accused persons. On 05.07.2005 he sent SI Anil Kumar to obtain subsequent opinion alongwith pullanda of chunni and SI Anil Kumar produced the same after returning from the hospital alongwith postmortem report. After obtaining permission through his application Ex. PW16/C, PW16 got the spot inspected through Draftsman Insp. Sonu Kaushik, who prepared scaled site plan of the spot. He also deposited pieces of chunni in malkhana. On 21.07.2005 the sealed pullanda and viscera and other exhibits were sent to FSL from malkhana for opinion through Ct. Ajaybir. During investigation PW16 also took police custody remand of accused Harish to trace out co- accused persons but they were not found on 16.06.2005. On 23.07.2005 PW16 was transferred and he handed over the case file to Insp. B.S.Dhaiya, the then SHO of PS Krishna Nagar.
xvii) PW17 Dr. Akash Jhanjee. He deposed that postmortem on the dead body of deceased Jyoti was conducted on 15.06.2005 vide postmortem report no. 815/2005 at 02.35 pm by Dr. Rajiv Sharma. , who was posted as Sr. Resident in Subzi Mandi Mortuary. He had worked with him and he identified handwriting and signatures of Dr. Rajiv Sharma, whose whereabouts could not be ascertained. PW17 deposed that the cause of death given in the present case was asphyxia as a result of ligature strangulation, which was sufficient to cause death in ordinary course of nature. All the injuries were antemortem and fresh in duration. The blood sample was preserved at the time of autopsy. He proved the postmortem report Ex. PW17/A. He further deposed that Dr. Rajiv Sharma gave subsequent opinion about the ligature material i.e. a recovered chunni. He deposed SC No. 1228/2016 Page 14 of 79 ASJ-04/East Distt./KKD Court that Dr. Rajiv Sharma has opined that considering dimensions and material of chunni and dimension of ligature mark on the neck of deceased, the possibility of alleged chunni being used as ligature material for the alleged ligature strangulation cannot be ruled out. He proved the subsequent opinion given by Dr. Rajiv Sharma as Ex. PW17/B. xviii) PW18 ACP B.S.Dhaiya. He deposed that on 15.06.2005 he was posted as SHO of PS Krishna Nagar. On that day, he had made an endorsement on the statement of Amar Nath, which was forwarded by SDM Gandhi Nagar to him, for registration of the FIR to the Duty Officer. PW18 had instructed to hand over the investigation to Insp. Rakesh Kumar, Addl.SHO of PS Krishna Nagar vide his endorsement Ex. PW18/A. On 24.07.2015 upon transfer of Insp. Rakesh Kumar, investigation of the case was taken over by him. During investigation he searched for remaining accused persons and obtained NBW of accused Rajni and Daizy. He recorded statements of neighbours of the complainant and also visited house of the complainant on 30.07.2005. The complainant Amar Nath produced four marriage photographs Ex. PW18/B-1 to B-4. After completing the necessary investigation, he prepared a charge sheet and filed the same before the court.
xix) PW19 SI J.K.Singh, CAW Cell. He deposed that in the year 2005 he was posted at PS Krishna Nagar. During hearing of the bail application of accused Harish in the present case on 14.09.2005 one note Ex. PW2/DA was produced by the counsel of the accused persons before the court. The note was taken into SC No. 1228/2016 Page 15 of 79 ASJ-04/East Distt./KKD Court police possession vide Ex. PW19/A by Sh. Anil Sharma on the instructions of the court. The said note was handed over to PW19 for obtaining experts opinion regarding the handwriting. PW19 collected one proposal form of LIC from the office of LIC and seized the same vide seizure memo Ex. PW19/B. the proposal form is Ex. PW19/C. He also made efforts to collect some other documents having admitted handwriting of deceased Jyoti but the same could not be found. Copy of the letters written for collecting specimen writing are Ex. PW19/D. Thereafter he sent the note alongwith admitted signatures of Jyoti to FSL through forwarding note Ex. PW19/E but the same were returned back unexamined with the remarks "more admitted signatures of deceased Jyoti may be produced and sent for examination". He stated that no handwritten documents could be collected despite efforts and he submitted his report Ex. PW19/F in this regard before the court.
xx) PW20 Darshan Singh, retired ACP. He deposed that in the year 2006 he was posted as SHO of PS Krishna Nagar. On 12.07.2006 accused Mamta was formally arrested and released by him in the present case. There was a direction from the court for not arresting accused Rajni. He prepared supplementary charge sheet qua accused Mamta and Rajni and filed the same before the court.
8) On 07.08.2012 an application was moved by ld. Counsel for the complainant duly forwarded by the Ld. Additional Public Prosecutor seeking dropping of prosecution witness Smt. Darshana on the ground that she was in collusion SC No. 1228/2016 Page 16 of 79 ASJ-04/East Distt./KKD Court with the accused persons and will not support the prosecution case. Accordingly, at request, said application was allowed and PW Smt. Darshana was dropped from the list of witnesses.
Statement of accused persons :
9) After conclusion of prosecution evidence, statements of all the accused person were recorded under Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in this case by the police at the instance of complainant Amar Nath.
10) It was further stated by accused Harish that mother of Jyoti had also committed suicide and PW1 Amar Nath was prosecuted. It was further stated that admitted signatures of Jyoti were available in judicial file and this fact was informed to the IO but even then IO deliberately did not send those admitted handwritings to the expert. Jyoti committed suicide and suicide note produced in the court is in her own handwriting and she was disclosed the reason for committing suicide. Her admitted handwriting has been produced in the court. He had never ill- treated Jyoti nor demanded any dowry from her or her parents and Amar Nath for the reasons best known to him wants to save the actual culprit, who has been named in the suicide note. He was not responsible for the death of Jyoti.
11) It was further stated by accused Banarsi Dass and Urmila that police did not conduct proper and fair investigation SC No. 1228/2016 Page 17 of 79 ASJ-04/East Distt./KKD Court in the present case. Admitted signatures of deceased were available but those were not taken. Amar Nath intentionally concealed many documents written by deceased for comparison of the handwriting and signatures with suicide note.
12) It was further stated by accused Rajni that she and her husband Sanjay Kapoor have been residing in Rajgarh Colony, Krishna Nagar, Delhi, since her marriage in February 2002. She rarely visited her parents house and she has no concern with their family affairs. Besides this her children were small and they were busy in their care and her husband was in service as such she could not visit her parental house.
13) It was further stated by accused Ajay Kumar and Mamta Kapoor @ Daizy that they were residing in Noida since their marriage in the year 1997. They rarely visited matrimonial house of accused Mamta and they had no concern with their family affairs. Father of accused Ajay was seriously ill and was on bed for two years from 2002 till November 2004 and as such they had no occasion to visit house of Jyoti. Their children were small and as such they were busy in their care and they could not visit parental house of accused Mamta.
14) All accused persons except accused Rajni opted to lead evidence in their defence.
15) Accused Ajay Kumar moved an application/s 315 Cr.P.C., which was allowed and he examined himself as DW1.
SC No. 1228/2016 Page 18 of 79 ASJ-04/East Distt./KKD Court Accused persons also examined the neighbours Ravi Saxena as DW2 and Deepak as DW3.
Arguments :
16) It is contended by Ld. Counsel for the accused Bansarsi Dass and Urmila that accused Ajay had settled the matter with the complainant and therefore questions that have been asked during cross-examination of accused Ajay have been asked in order to support the complainant's version and cannot be read in evidence against accused Bansarsi Dass, Urmila, Harish and Rajni. It is further stated that deceased had left behind the suicide note in which she categorically made allegations against accused Ajay and there were no allegations against the remaining accused persons. It is stated that the prosecution has deliberately not brought the said suicide note on record as the said suicide note brings out the true facts on record. No effort was made to produce the admitted signatures of the deceased on record, which could be compared with the writing on the suicide note. Perusal of the suicide note indicates that the accused persons, except accused Ajay, did not have any role in the suicide of deceased Jyoti. It is urged that the photographs on record show that deceased Jyoti was happy with the family of the accused persons and they had visited many places together including Swaran Mandir and Chintpurni, where Mundan ceremony of Pratham, son of deceased Jyoti and accused Harish, was conducted. Even the complainant and other family members had participated in all festivals and functions at the house of the accused persons. It is stated that the relations between the family members of the accused persons and the complainant were cordial. It is argued SC No. 1228/2016 Page 19 of 79 ASJ-04/East Distt./KKD Court that the mother of deceased Jyoti had committed suicide and the complainant, father of deceased Jyoti, was an accused in said case and therefore he was well versed with legal procedures. It is urged that deceased Jyoti had suicidal tendency as her mother had also committed suicide. Moreover, Jyoti was also depressed because she was asthmatic and was also receiving treatment at Ashoka Nursing Home. It is further stated that there are material improvements and contradictions in the initial complaint Ex.
PW1/A and the testimony of the complainant recorded before the court and baseless allegations bereft of details have been made against accused persons. It is further urged that the statement of PW2 was not recorded by the SDM. There are many improvements and contradictions in the testimony of PW1 and PW2 regarding the allegations regarding demands made by the accused persons in their testimony recorded before court and their statements recorded at the stage of investigation.
17) As regards charge u/s 302 IPC, it is argued that the charge-sheet was filed only u/s 304B/498A/34 IPC and not u/s 302 IPC and therefore there is no evidence on record regarding homicidal death of deceased Jyoti. It is stated that even before the police arrived, many public persons had visited the house of accused persons and the place of incident was accessed by public and therefore the fact that no stool was found at the spot cannot be of much significance as the place of incident had not been sealed by the police before the public persons breached the place of incident. Additionally, when the deceased was taken to the mortuary, the complainant was present alongwith the police officials and therefore, he has manipulated the postmortem SC No. 1228/2016 Page 20 of 79 ASJ-04/East Distt./KKD Court report. It is also argued that there are contradictions regarding the vehicle in which the deceased was taken to the mortuary. It is stated that the doctor, who conducted the postmortem, has not been examined and instead another doctor has proved the postmortem report. It is argued that accused Banarsi Dass and Urmila were present at the spot when the police arrived and had they committed the offence, they would have fled from the spot. It is stated that the postmortem was conducted on 15.06.2005, whereas the report was collected by the IO after 20 days , hence, leaving room for fabrication.
18) It is argued that the postmortem was a fabricated report and mentions the cause of death to be ligature strangulation. It is stated that as per the postmortem report B/L thyroid horns cartilage were broken. It is stated that the thyroid horns cartilage would break only in case of suicide and not in case of strangulation. It is stated that the details under the head 'discharge from orifices' mentioned in postmortem report Ex. PW17/A were added later indicating manipulation. It is accordingly argued that the postmortem report is not conclusive of the finding of strangulation and points to suicide by hanging.
19) It is further argued that accused Harish was not present at the spot at the time of incident and he has relied upon testimony of DW2 and DW3 in support of his contention. It is urged that accused Rajni, Mamta were sisters-in-aw of deceased Jyoti and they used to reside separately at their matrimonial homes and no evidence has come on record against them.
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20) On the other hand, it is argued on behalf of ld. Addl.P.P. for the State and ld. Counsel for the complainant that the present case is not a case of suicide but strangulation of the deceased by accused Banarsi Dass, Urmila and Harish, who have been charged for offence u/s 302/34 IPC. It is stated that for the first time in their statements recorded u/s 313 Cr.P.C. the above accused persons have taken the defence regarding 'murha' being removed from the spot. It is further stated that even as per the postmortem report, the death of deceased Jyoti was caused by strangulation in as much as the ligature material was completely encircling the neck of deceased Jyoti as in the case of strangulation.
21) It is further urged that none of the accused persons have in their defence stated as to who had taken down the body from the fan, which indicates that they were hiding something and therefore no explanation in that regard was forthcoming, which fact may also be read against the accused persons in terms of Section 106 of the Evidence Act. It is stated that even the scene of crime did not indicate any suicide by the deceased as is revealed in the testimony of PW15 i.e. SDM, PW4 and PW5, who were the first police officials to reach at the spot. It is stated that bald allegations have been made that the complainant has influenced the SDM PW15 and the doctor who prepared the postmortem report. It is stated that the said allegations are not supported by any evidence. It is stated that many efforts were made by the prosecution to summon Dr. Rajeev Sharma, who had conducted the postmortem and Dr. Akash Jhanjhee was examined as PW17 only after making efforts to summon Dr. Rajeev SC No. 1228/2016 Page 22 of 79 ASJ-04/East Distt./KKD Court Sharma were taken. It is urged that the accused persons have stated that the deceased had committed suicide in her room, however, there was no door in that room and her husband Harish was also in the same room and therefore she could not have committed suicide without his knowledge. Moreover, no alarm was raised by the accused persons till the morning even though the death occurred between 2.35 am to 4.35 am in the morning of 15.06.2015. It is argued that in the event deceased Jyoti had committed suicide by hanging, the blades of the fan would have twisted, however, the fan was working in perfect condition when the police officials and the SDM reached the spot. It is further urged that there are contradictions in the testimony of DW2 and DW3. It is argued that the suicide note placed on record by the accused persons has no evidentiary value and the controversy in that regard has already been decided by the superior courts. It is stated that none of the witnesses or the accused persons have stated that they had seen the body of the deceased in hanging position and no explanation has been forthcoming from the accused persons regarding the same.
22) It is further argued that though the victim is stated to have committed suicide due to suicidal tendency on account of the fact that her mother had also committed suicide, however, the mother of deceased Jyoti had committed suicide in the year 1996 and Jyoti died in the year 2005 after a gap of nine years. It is stated that on one hand the accused persons have argued that deceased Jyoti was in a depressed state of mind and had suicidal tendencies, on the other hand they have also placed photographs of Mundan ceremony and other travel journeys to show that she SC No. 1228/2016 Page 23 of 79 ASJ-04/East Distt./KKD Court was a happily married woman. Hence, the accused persons are making contradictory arguments in that regard.
23) It is further urged that the events prior to the death of Jyoti from 06.05.2005 till the day of her death indicate demands for dowry of Rs. 2 Lakhs and her harassment soon before her death, thereby fulfilling the ingredients of Section 304B IPC. It is also urged that from the postmortem report and the conduct of the accused Banarsi Dass, Harish and Urmila, it is also manifest that deceased Jyoti was murdered by them. In these circumstances, the accused persons are liable to be held guilty for the offences they are charged with and convicted for the same.
24) I have heard ld. Counsel for the parties and perused the record.
25) All the accused persons have been charged for offences under section 304B/34 IPC and Section 498A/34 IPC. The offence of Dowry Death has been dealt with in section 304B IPC and it provides as under:
304B. Dowry death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation- for the purpose of this sub-section, 'dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
SC No. 1228/2016 Page 24 of 79 ASJ-04/East Distt./KKD Court (2) whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
26) Thus in order to prove an offence under Section 304B IPC, the following ingredients must be proved : -
(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) and soon before her death, woman must have been subjected to cruelty or harassment by her husband or any relative of her husband
(iv) such cruelty or harassment must be for or in connection with the demand of dowry.
27) Deceased Jyoti was married to accused Harish on 15.05.2002 and she passed away on 15.06.2005. Hence, deceased Jyoti passed away after about three years and one month of her marriage with accused Harish and thus within seven years of her marriage and thereby fulfilling one of the conditions of section 304B IPC as mentioned above.
28) As regards the death of deceased Jyoti, PW1 Amar Nath has deposed that on 15.06.2005 at about 08.30 am he was SC No. 1228/2016 Page 25 of 79 ASJ-04/East Distt./KKD Court informed by someone telephonically that Jyoti was ill. At about 9.00 am he alongwith his son PW2 Jitender Kumar reached the matrimonial house of Jyoti. When they reached there, they noticed that people had gathered there and police officials were also present. The dead body of Jyoti was lying on the double bed in that room. PW1 and PW2 also deposed regarding the manner, the body of deceased Jyoti was found lying. Crime Team also reached at the spot. The SDM also reached there and he inspected the scene of crime. The dead body of deceased Jyoti was taken to the mortuary. The postmortem was conducted on the dead body of deceased Jyoti vide Ex. PW17/A. As per the postmortem report Ex. PW17/A, cause of death was asphyxia as a result of ligature strangulation, which is sufficient to cause death in ordinary course of nature. Hence, as per the postmortem report the death of deceased Jyoti was caused by strangulation. It is contended by ld. Counsel for the accused persons that deceased Jyoti had committed suicide. Whether it was suicide by hanging or strangulation will be discussed in detail herein below. Be that as it may, whether the death of deceased Jyoti was caused by strangulation or by suicide, the cause of her death would fall in the category of "otherwise than under normal circumstances"
thereby fulfilling another condition of section 304B IPC.
29) In order to prove that deceased Jyoti was subjected to cruelty or harassment by the accused persons, the prosecution has examined PW1, father of deceased Jyoti, Amar Nath, who deposed that after marriage of his daughter, all the accused persons started harassing his daughter for not bringing sufficient SC No. 1228/2016 Page 26 of 79 ASJ-04/East Distt./KKD Court dowry. Accused persons used to beat her and torture her mentally and physically by asking her to bring gold jewellery and cash from him. When his daughter refused to demand the above articles from him, the accused persons used to beat her.
Whenever his daughter used to come to her house, she used to complain against the accused persons and tell him that the accused persons used to harass her to meet their demand of gold and cash. He stated that both the sisters-in-law were married but generally used to visit their parental house. She used to tell him that her married Nand namely Daizy @ Mamta and Rajni used to visit at the house of her in-laws frequently and used to harass and torture her for demand of dowry with the help of their parents and brother. In 2003 and 2004, PW1 had fulfilled the demand of accused persons including some gold and cash for a happy married life of his daughter Jyoti. Inspite of fulfilling their demands, the accused persons were not satisfied and his daughter was continuously harassed by her in-laws. Jyoti also told him that accused persons falsely suspected her character that she was having illicit relations with accused Ajay, husband of accused Daizy @ Mamta.
30) PW1 further deposed that on 06.05.2005 his daughter Jyoti came to his house alongwith her son Pratham, aged about 2 and 1/4 years and she was weeping. She told him that the accused persons i.e. her father-in-law, mother-in-law, husband, sisters-in-law Mamta and Rajni were demanding Rs. 2 Lakhs for some time. They used to beat her when she refused to raise a demand of Rs. 2 Lakhs from them. She further told him SC No. 1228/2016 Page 27 of 79 ASJ-04/East Distt./KKD Court that on that day accused persons gave beatings to her mercilessly for non-fulfilment of their demand and that she would not go back to the house of her in-laws as she feared danger to her life. She also told that she had saved her life by bolting the house of her in-laws from outside. Thereafter PW1 kept his daughter at his house. After some days her father-in-law, mother-in-law and her husband came to his house and assured him that they would not torture his daughter but he did not send her with them. He discussed the matter in his family and with the well-wishers and thereafter on 01.06.2005 he took his daughter to her in-laws house for the sake of future of his daughter and his grandson due to the assurance given by accused persons. But the accused persons continuously used to harass his daughter for meeting the demand of Rs. 2 Lakhs. Accused Banarsi Dass, Urmila and Harish used to beat her for their demand.
31) On 04.06.2005 the foetus of his daughter was forcibly got aborted at Jain Charitable Hospital, Gandhi Nagar. Between 04.06.2005 and 14.06.2005 his daughter informed him on telephone two three times that accused persons used to beat her and torture her. On 14.06.2005 he sent his son Jitender to the house of her in-laws for bringing her to their house but her father-in-law, mother-in-law, husband and her sisters-in-law (Nand) Rajni and Daizy refused to send his daughter with Jitender unless Rs. 2 Lakhs were given to the in-laws. In the night of 14.06.2005 his son Jitender told him this fact and he decided to bring his daughter on the next day.
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32) As regards the allegations of cruelty an harassment, PW2 Jitender, brother of deceased Jyoti, has deposed that deceased Jyoti was his elder sister, who got married with accused Harish on 15.05.2002 as per Hindu rites and customs. The matrimonial home of Jyoti was at H.No. 3811, Gali No. 11, Shanti Mohalla and she used to reside there alongwith her husband Harish and parents-in-law i.e. accused Banarsi Dass (father-in-law) and Urmila (mother-in-law). Accused Rajni (Nand) was residing in Krishna Nagar, while accused Daizy (Nand) and her husband i.e. accused Ajay (Nandoi) were living in Noida. After the marriage, his sister was ill-treated at her matrimonial home on account of gold jewellery and cash demand by her husband, her parents-in-law and both sisters-in-law (Nand). Jyoti was given beatings to coerce her to bring gold jewelry and cash and in case she did not bring the same from her parental home, she was beaten by them. Whenever his sister Jyoti used to come to his home, she used to disclose to them that her in-laws and both the sisters-in-law (Nand) used to harass her and gave her beatings on account of dowry. His father had met few small demands of the accused persons but they were not satisfied (mere pita ne inki choti-moti mango ko pura kiya magar unki santusti nahi mili) and his sister was given beatings even after fulfilling those demands. Although Rajni and Daizy were married but quite often, they used to come to their mother's house i.e. matrimonial home of his sister. Whenever they both used to come to matrimonial home of Jyoti they alongwith Harish and their parents used to give beatings to his sister Jyoti.
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33) On 06.05.2005 his sister Jyoti came to their home weeping and told them that they were demanding Rs. 2 Lacs for last few days and on her refusal to bring the same, they used to give beatings to her. She was distressed and was not inclined to go back to her matrimonial home. This demand of Rs. 2 Lacs was stated to have been raised by accused Harish, Urmila, Banarsi Dass, Daizy and Rajni. After few days, accused Harish, Urmila, Banarsi Dass came to their home and expressed that they wanted to take Jyoti back to matrimonial home and they also assured that they would not harass Jyoti there but his father did not send Jyoti with them. His father had then told them that he would send Jyoti back only after consulting with the elders.
34) On 01.06.2005 his father dropped Jyoti at her matrimonial home after having consultation with elders. On 04.06.2005 Jyoti was got forcibly aborted against her wishes at Jain Charitable Hospital, where his father had also gone. After 04.06.2005 several phone calls were received from Jyoti at their home that her in-laws were still demanding Rs. 2 Lacs and were coercing her by giving her beatings to meet the demand. This demand was attributed to Harish, Urmila, Banarsi Dass, Daizy and Rajni by Jyoti. Phone calls of Jyoti were received by his father several times that she was being harassed to meet the demand of Rs. 2 Lacs by the accused persons.
35) On 14.06.2005 his father asked him ie PW2 to bring Jyoti back to their home from her in-laws house. He was about to go to her in-laws house when a phone call was received by him, which was her last phone call made and she stated to him SC No. 1228/2016 Page 30 of 79 ASJ-04/East Distt./KKD Court over the phone "Bhai Mujhe Yaha Se Le Ja, Varna Inhe 2 Lakh Rupye De Ja" i.e. to take her from there or give them Rs. 2 Lakhs. On the same day, the moment he reached the in-laws house at Jyoti, all the accused persons namely Harish, Urmila, Banarsi Dass, Daizy and Rajni were found present there. Jyoti was appearing to be very distressed and sad and she told him to either give Rs. 2 Lacs to the accused persons or to take he back to her parental home. PW2 requested and pleaded with the accused persons to send Jyoti with him to their home but they did not send her with him and said that first Rs. 2 Lakhs should be brought and given to them then only Jyoti would be sent. His sister Jyoti wanted to come with him but Harish alongwith Rajni gave her beatings as a result Jyoti started weeping. Rajni while giving her beatings took her upstairs. Harish pushed him and asked him to leave. On his return in the night at home, he told his father all the above facts. That night his father told him that on next day, they would bring Jyoti to their home.
36) On 15.06.2005 they were ready for bringing Jyoti to their home when a phone call was received at about 08.30 am by his father from her matrimonial home that Jyoti was unwell. At about 9.00 am he and his father reached at the matrimonial home of Jyoti. There was a crowd noticed from the corner of the gali at her matrimonial home and police was also found present at the spot. The moment they reached inside the house, accused Harish, Urmila and Banarsi Dass were found present inside whereas Daizy and Rajni had already fled from the house. When they reached inside the room of Jyoti, the dead body of Jyoti was SC No. 1228/2016 Page 31 of 79 ASJ-04/East Distt./KKD Court found lying on the double bed towards the wall side in the corner of the room.
37) It is contended by ld. Counsel for accused persons that there is no medical document to show that any beatings were given to deceased Jyoti by the accused persons. Though she remained married to accused Harish for about three years, however, no complaint was made before any authority regarding any beatings. It is stated that the allegations regarding demand of dowry are bald allegations and no details of any demand have been placed on record. It is stated that in his testimony recorded before the court, the complainant made allegations of forcible abortion of deceased Jyoti on 04.06.2005, however, no complaint regarding the same was made. It is further stated that there are contradictions in testimonies of PW1 and PW2 in as much as though PW1 has deposed regarding demand of Rs. 2 Lakhs on 14.06.2005 to send Jyoti to her parental house, however, PW2 has not deposed in that regard and if the complainant knew that Jyoti was being ill-treated on 14.06.2005, why did they not get her with them on the same night. It is further argued that there are improvements in the testimony of PW1 viz a viz his initial statement given to the SDM vide Ex. PW1/A and hence, his testimony cannot be taken into consideration to hold the accused persons guilty for committing cruelty upon deceased Jyoti.
38) Both PW1 and PW2 have deposed that on 04.06.2005 the accused persons got Jyoti aborted without her consent. The abortion was got conducted at Jain Charitable Hospital, Gandhi Nagar. In this regard PW12 Dr. Ritu Gupta SC No. 1228/2016 Page 32 of 79 ASJ-04/East Distt./KKD Court deposed that Jyoti was brought to her in OPD on 04.06.2005 and was accompanied by Dolly, her sister-in-law. The patient was complaining of bleeding per vagina. Sonography of Jyoti was conducted on 04.06.2005 and upon the examination of her report, it was revealed that there was no heart activity of foetus, which was suggestive of missed abortion and it required dilation and curettage (D&C) for removal of products of conception to stop continuous bleeding. Accordingly, from the testimony of PW12 it is manifest that when Jyoti was taken to the hospital, she was already complaining of bleeding per vagina and sonography revealed that the foetus did not have any heart activity and it was a case of missed abortion for which D&C was conducted. Accordingly, in view of the medical evidence it is manifest that it was not a case of forcible abortion and the abortion was got conducted in view of the fact that no heart activity of the foetus was found.
39) Perusal of the statement of the complainant record by SDM Ex. PW1/A reveals that he had stated that deceased Jyoti was being tortured mentally and physically by her husband, Harish, parents-in-law and sisters-in-law Daizy and Rajni. PW1 also stated that the sisters-in-law Daizy and Rajni were married but used to frequently visit their parental house and used to support their parents and brother Harish in quarreling with Jyoti and in beating her. PW1 Amar Nath mentioned in Ex. PW1/A that a few days back Harish and his mother ie accused Urmila demanded rupees two lakhs from them and thereafter they were troubling Jyoti for the same and used to beat her. His daughter Jyoti was troubled due to all these reasons and therefore in May SC No. 1228/2016 Page 33 of 79 ASJ-04/East Distt./KKD Court 2005 she came to their house and told him i.e. Amar Nath that she did not want to go back to her matrimonial house because of her ill-treatment meted out to her by her husband, parents-in-law and sisters-in-law. On 01.06.2005 after intervention of some known persons, she went to her matrimonial house but her in- laws continued to beat her and ill-treat her.
40) Accordingly, PW1 in his statement Ex. PW1/A has mentioned about harassment and ill-treatment of Jyoti and further about the demand of Rs. 2 Lakhs from Jyoti by accused Harish and Urmila. Jyoti came back to her parental house in May 2005 and thereafter she was sent back to her matrimonial house on 01.06.2005. PW1 had also stated in Ex. PW1/A that he would tell some things later as he was mentally disturbed on that day. It is to be noted that Ex. PW1/A was recorded on 15.06.2005 itself on the date when his daughter passed away .
41) During recording of their testimony, both PW1 and PW2 have deposed that deceased Jyoti was harassed by her in- laws on account of dowry. Both have stated that Jyoti came to their house on 06.05.2005 and was weeping. She told them that accused Harish, Urmila, Banarsi Dass, Daizy and Rajni were demanding Rs. 2 Lakhs for last few days and when she refused, they used to give her beatings for the same. Both PW1 and PW2 also deposed that after some days accused Harish, Urmila and Banarsi Dass came to their house to take back Jyoti with them and also gave assurance that they would not harass Jyoti but PW1 did not send Jyoti with them. After consulting the matter in the SC No. 1228/2016 Page 34 of 79 ASJ-04/East Distt./KKD Court family, PW1 took Jyoti to her matrimonial house. On 04.06.2005 Jyoti was got forcibly aborted.
42) Both PW1 and PW2 have deposed that after 04.06.2005 several phone calls were received from Jyoti that she was being beaten and tortured. Though PW2 mentioned that the beatings were given in relation to demand of Rs. 2 Lakhs, however, PW1 did not mention the reason for beatings between 04.06.2005 and 14.06.2005. PW1 and PW2 also deposed that on 14.06.2005, PW1 sent PW2 to the house of Jyoti to bring her back, however, her parents-in-law, husband and sisters-in-law refused to send Jyoti with PW2 unless Rs. 2 Lacs were given to them. PW2 also deposed that when he was about to go to the matrimonial house of Jyoti on 14.06.2005 he also received a phone call from Jyoti and she told him over the phone "Bhai Mujhe Yaha Se Le Ja, Varna Inhe Do Lakh Rupey De Ja". Both PW1 and PW2 deposed that the accused persons did not send Jyoti with PW2 unless Rs. 2 Lacs were given to them. Subsequently, Jyoti passed away on 15.06.2005.
43) It is noteworthy that in his initial statement given to the SDM Ex. PW1/A, PW1 had alleged that the demand of Rs. 2 Lakhs was made by accused Harish and his mother. There was no specific allegation against the remaining accused persons as regards the demand of Rs. 2 Lakhs. PW1 was also confronted to that extent with his statement recorded before the ld. SDM Ex PW1/A. Additionally, though PW2 has also deposed that all the accused persons had raised a demand of Rs. 2 Lakhs, however, in his statement recorded u/s 161 Cr.P.C. Ex. PW2/DAX he alleged SC No. 1228/2016 Page 35 of 79 ASJ-04/East Distt./KKD Court that accused Harish had raised the said demand for his business. Moreover, there were no allegations against accused Mamta in Ex. PW2/DAX whereas in his deposition recorded before court PW2 has made allegations of demand against accused Mamta also. PW2 was also confronted with his statement Ex. PW2/DAX made to the police u/s 161 Cr.P.C. Both PW1 and PW2 have thus deposed before court regarding allegations of demand of Rs. 2 Lakhs by all accused persons, however, their testimony recorded before the court is not in consonance with their statements recorded during the stage of investigation and there are material improvements and contradictions as regards the demand of Rs. 2 Lakhs.
44) Additionally, in his testimony recorded before the court, PW1 had deposed regarding the fact that his daughter made phone calls to him between 04.06.2005 till 14.06.2005 in which she informed him that accused persons used to beat her and torture her. In his examination-in-chief PW2 deposed that these phone calls of Jyoti were received by his father. In his cross-examination he stated that he did not see Jyoti between 04.06.2005 to 13.06.2005 and he had conversation with her over telephone. It is relevant to note no specific person has been named as who made the demand of Rs. 2 Lakhs even in those phone calls.
45) PW1 also deposed regarding the incident of 14.06.2005 when he had sent his son to the matrimonial house of Jyoti but her in-laws refused to send her with him unless Rs. 2 Lakhs were given to them. These facts are not mentioned in the SC No. 1228/2016 Page 36 of 79 ASJ-04/East Distt./KKD Court statement given by the complainant to the SDM vide Ex. PW1/A. It is noteworthy that another statement of PW1 was recorded subsequently u/s 161 Cr.P.C. Ex. PW1/I in which these details are mentioned. PW1 deposed that the said subsequent statement was recorded on 17.06.2005 in the evening. Pertinently, the said statement recorded u/s 161 Cr.P.C. Ex. PW1/I, for the first-time allegations were made by PW1 against accused Ajay also and the demand of Rs. 2 Lakhs was stated to have been made by all the accused persons. During his testimony recorded before the court, PW1 did not support any allegations against accused Ajay despite his cross-examination by ld. Addl.P.P. for the State on that account. Moreover, there are no allegations against accused Ajay in the statement given by PW2 to the police u/s161 Cr.P.C. and the said allegations are only mentioned in the subsequent statement of PW1 Ex. PW1/I. PW1 did not support any allegations against the accused Ajay in his testimony recorded before court. PW2 also did not make any allegations against the accused Ajay in his testimony recorded before court. Hence, in absence of any material available on record against accused Ajay, he is liable to be acquitted of the offences he is charged with.
46) From the aforesaid it is manifest that there are contradictions regarding the person/persons by whom Rs. 2 Lakhs were demanded. Though Both PW1 and PW2 have deposed before court that all the accused persons had demanded Rs. 2 Lakhs, however, in his statement given to SDM Ex. PW1/A, PW1 Amar Nath had mentioned about the demand having been raised by accused Urmila and Harish whereas in his statement given to the police, PW2 Jitender had stated about the SC No. 1228/2016 Page 37 of 79 ASJ-04/East Distt./KKD Court demand being made by accused Harish for his business and PW2 was also confronted with the said statement. Both PW1 and PW2 were confronted with their earlier statements.
47) As regards the said incident of 14.06.2005, PW2 deposed that he received a phone call from Jyoti when she told him "Bhai Mujhe Yaha Se Le Ja, Varna Inhe 2 Lakh Rupye De Ja" i.e. take her from there or give them Rs. 2 Lakhs. On the same day, the moment he reached the in-laws house at Jyoti, all the accused persons namely Harish, Urmila, Banarsi Dass, Daizy and Rajni were found present there. Jyoti was appearing to be very distressed and sad and she told him to either give Rs. 2 Lakhs to the accused persons or to take her back to her parental home. PW2 requested and pleaded with the accused persons to send Jyoti with him to their home but they did not send her with him and said that first Rs. 2 Lakhs should be brought and given to them then only Jyoti would be sent. His sister Jyoti wanted to come with him but Harish alongwith Rajni gave her beatings as a result Jyoti started weeping. Rajni while giving her beatings took her upstairs. Harish pushed him and asked him to leave. On his return in the night at home, he told his father all the above facts. That night his father told him that on next day, they would bring Jyoti to their home.
48) In Geeta Mehrotra v State of UP, (2012) 10 SCC 741 the Hon'ble Supreme Court made the following observations:
"19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except SC No. 1228/2016 Page 38 of 79 ASJ-04/East Distt./KKD Court casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V.Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes."
49) In K Subba Rao v State of Telangana, (2018) 14 SCC 452, the Hon'ble Supreme court made the following observations:
"The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their SC No. 1228/2016 Page 39 of 79 ASJ-04/East Distt./KKD Court involvement in the crime are made out. See Kans Raj v. State of Punjab & Ors. (2000) 5 SCC 207 and Kailash Chandra Agrawal and Anr. v. State of Uttar Pradesh & Ors. (2014) 16 SCC"
50) In Kahkashan Kausar @ Sonam V State of Bihar, Crl A 6545/2020 date of decision 08.02.2022, the Hon'ble Supreme Court while quashing the FIR against the relatives of the husband observed as follows:
"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.
19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution."
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51) The facts of the present case have to be viewed in light of law discussed hereinabove. Though PW2 deposed that when he went to the matrimonial house of Jyoti on 14.06.2005 Harish and Rajni gave her beatings. In his statement recorded u/s 161 Cr.P.C. PW2 Jitender stated that accused Harish pushed him and told him "Sale tu kaun hota hai" and he slapped his sister and his sister started crying. In this regard PW1 Amar Nath deposed that Rajni slapped Jyoti and asked Jitender to leave the place and she took Jyoti upstairs while giving beatings. Hence, there are contradictions regarding what transpired on 14.06.2005 when PW2 reached the matrimonial house of deceased Jyoti and as to who slapped Jyoti. There is no mention,which, if any, of the accused person had demanded Rs. 2 Lakhs from PW2 Jitender. It is also to be noted that omnibus allegations against all the accused persons have been made by the complainant PW1 and PW2 without specifying as to which accused persons had made a demand of Rs. 2 Lakhs on 14.06.2005.
52) It is noteworthy that in the initial statement given to the SDM, PW1 has not stated anything regarding the incident of 14.06.2005 even though it was such an important fact and had occurred one day prior to the death of Jyoti and the statement of PW1 was recorded by SDM on 15.06.2005 itself and hence, there was no occasion for PW1 to have forgotten about it. In fact if the version of PW1 and PW2 is believed, then that was the penultimate incident itself which lead to the death of Jyoti. The said statement Ex. PW1/A is completely silent about such a relevant and pertinent fact.
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53) Hence, from the testimonies of PW1 and PW2 and their statements recorded during investigation, it is revealed that though allegations of harassment and beating have been made against all the accused persons, however, such allegations are vague and unspecific bereft of details of time and dates of such harassment and beatings, the only allegation of a demand of Rs. 2 Lakhs has been consistently made against accused Harish, husband of deceased Jyoti, and even against him no details of any specific demand of Rs. 2 Lakhs have been averred. Admittedly, both accused Rajni and Mamta were married before the marriage of deceased Jyoti. The allegations of demand of Rs. 2 Lakhs is deposed to have been made by all accused person. PW2 was confronted with his statement Ex PW2/DAX where he had stated that accused Harish had demanded Rs. 2 Lakhs for his business and all accused persons used to harass the deceased to get the amount from PW1. There is no reason as to why married sisters would harass and expend their energy to extract Rs. 2 Lakhs for the business of their brother. Even as regards the incident of 14.06.2005 there are allegations that accused persons had demanded Rs. 2 Lakhs to allow Jyoti to go back to her parental house, however, the specific demand of Rs. 2 Lakhs has not been attributed to any specific accused person/persons. There are no details regarding specific role / demand of 2 Lakhs made by any accused person. Though a bald assertion has been made that the accused persons suspected her character and that she was having illicit relation with accused Ajay, husband of accused Daizy @ Mamta, however, the said allegation is shorn of details and is a bald allegation. PW1 and PW2 have used the name of all SC No. 1228/2016 Page 42 of 79 ASJ-04/East Distt./KKD Court the accused persons for all the allegations made against them, without specifying the role of each of the accused persons. The allegations against the accused persons are thus non-specific and omnibus.
54) Moreover, in the subsequent statement of PW1 i.e. Ex. PW1/I, allegations were made against accused Ajay whereas no allegations were made against him in the initial complaint as well as at the time of recording of testimony of PW1 before the court. Additionally no allegations were made against accused Mamta by PW2 in his statement recorded at the stage of investigation whereas PW2 deposed against her before court. Thus, the testimony of PW1 and PW2 will have to be seen in the light of the fact that there is a tendency to rope in the family members of the husband with the intention to involve the entire family after the death of the deceased.
55) Hence, in view of the aforesaid discussion, it is not proved on record that accused Banarsi Dass, Urmila, Rajni, Harish and Mamta treated Jyoti with cruelty, or harassment for or in connection with demand for dowry hence charge under section 304B does not stand proved on record against the said accused persons beyond reasonable doubt. Accused Banarsi Dass, Urmila, Harish, Mamta and Rajni, are thus given benefit of doubt and are acquitted of the offence under section 304B/34 IPC.
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56) The accused persons have also been charged for the offence u/s 498A/34 IPC. Section 498A IPC is reproduced as under for ready reference :
498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation- For the purpose of this section, "Cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
57) In the present case, it is evident from record that the cruelty as provided under Clause (b) of section 498A IPC has not been proved on record as discussed hereinabove against the accused persons. The allegations against the accused persons being vague and unspecific, charge under section 498A IPC is not proved against them. Hence, cruelty as defined in Clause (b) of explanation of Section 498A IPC does not stand proved on record against the accused persons namely accused Banarsi Dass, Urmila, Harish, Mamta Kapoor and Rajni, beyond reasonable doubt are they are thus given benefit of doubt. The accused persons Banarsi Dass, Urmila, Harish, Mamta Kapoor @ Daizy and Rajni, are hence acquitted of the offence under section 498A/34 IPC.
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58) Charge has also been framed against accused Banarsi Dass, Urmila and Harish u/s 302/34 IPC. As regards charge u/s 302 IPC, it is argued that the charge-sheet was filed only u/s 304B/498A/34 IPC and not u/s 302 IPC and therefore there is no evidence on record regarding homicidal death of deceased Jyoti.
59) It is urged that deceased Jyoti had left behind a detailed suicide note from which it is manifest that she had committed suicide as accused Ajay had an evil eye on her and she was disturbed on that account and there were no allegations against the remaining accused persons. It is stated that the prosecution has deliberately not brought the said suicide note on record as the said suicide note brings out the true facts. No effort was made to produce the admitted signatures of the deceased on record, which could be compared with the writing on the suicide note and that the said suicide note indicates that only accused Ajay was the reason why the deceased committed suicide.
60) Perusal of the record reveals that one suicide note was produced by the accused persons for the first time on 14.09.2005 at the time of arguments on bail application of accused Harish after about three months of the demise of Jyoti.
Ld. Counsel for the accused persons has cross-examined the witnesses regarding the availability of the admitted handwriting of deceased Jyoti. Father of deceased Jyoti PW1 deposed that the suicide note put to him Mark PW1/DX during his cross- examination by counsel for accused Harish was not in the handwriting of deceased Jyoti. He also deposed that another SC No. 1228/2016 Page 45 of 79 ASJ-04/East Distt./KKD Court handwriting put to him Mark PW1/DY was not in the handwriting of Jyoti. He also denied suggestions to the contrary and that he had deliberately not given papers containing handwriting of Jyoti to the police. He denied the suggestion that the suicide note Mark PW1/DX was in the handwriting of deceased Jyoti. He further denied that he had deposed falsely to save accused Ajay and has falsely implicated the accused persons.
61) In this regard, PW2 deposed that they did not have notebooks containing handwriting of Jyoti in their house. He stated that he could identify the handwriting of Jyoti. Jyoti used to sign in Hindi. He had seen Ex. PW2/DA which was not in the handwriting of Jyoti and it seemed to be in 2 to 3 different handwritings.
62) It is also noteworthy that vide order dated 07.11.2009 an application was filed by accused Harish for sending the documents to FSL for comparison with the handwriting on the suicide note was dismissed by the Ld. Predecessor.
63) Subsequently, another application was filed by accused Harish seeking permission to take photographs of the suicide note and admitted handwriting of the deceased, which were filed alongwith the application for seeking opinion of the handwriting expert. The said application was dismissed by the Ld. Predecessor on 16.05.2013. The said order was assailed by accused Harish before the Hon'ble Delhi High court in Crl. M.C. SC No. 1228/2016 Page 46 of 79 ASJ-04/East Distt./KKD Court 2372/2013 in a petition u/s 482 Cr.P.C., which was dismissed by the Hon'ble Delhi High Court vide order dated 15.05.2014.
64) The order dated 16.05.2013 was assailed by accused Harish before the Hon'ble Delhi High Court in Crl. M.C. 3781/2014 and the petition u/s 482 Cr.P.C. was dismissed vide order dated 10.05.2016. An SLP No. 7003/2016 was filed assailing the above order of the Hon'ble Delhi High Court passed in Crl. M.C. No. 3781/2014 and the same was dismissed by the Hon'ble Supreme court vide order dated 16.09.2016.
65) Accordingly, the contention of ld. Counsel for the accused persons that despite there being a suicide note, the admitted handwritings of the deceased Jyoti were not taken into consideration due to which the same could not be examined by the FSL, has already attained finality. The application of accused Harish in this regard was dismissed by ld. Trial Court and subsequently the superior courts also dismissed his petitions assailing the said order.
66) In these circumstances it is not proved on record that the suicide note produced by the accused persons at the time of hearing of bail application of accused Harish after three months of the demise of Jyoti, was in the handwriting of deceased Jyoti. The said suicide note is accordingly not proved on record and the same cannot be relied upon by the accused persons.
67) The initial information regarding the incident was received on 15.06.2005 vide a PCR call, which was recorded at SC No. 1228/2016 Page 47 of 79 ASJ-04/East Distt./KKD Court PS Krishna Nagar at 08.15 am that near H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, one woman had committed suicide by hanging. The said DD no. 9 Ex. PW5/A was assigned to ASI Narender Singh, who alongwith Const. Dharmavir went to the spot i.e. H.No. 3811, Street No. 11, Shanti Mohalla, Krishna Nagar, Delhi, where a lady was lying dead on a bed in a room on the ground floor. Father-in-law of the deceased was present there and informed that the deceased had hanged herself. The father PW1 and brother PW2 of the deceased also reached at the spot.
68) In this regard PW1 deposed that on 15.06.2005 at about 08.30 am someone informed him telephonically that Jyoti was ill. At about 09.00 am he and his son Jitender reached at the house of in-laws of Jyoti. They found that public was gathered there and police officials were also present there. They entered inside the house at the ground floor in the bedroom of accused Harish. Floor of the room was about 1½ feet lower than the main door/road and there was no entrance door affixed in that room but only a door frame was affixed. The dead body of his daughter Jyoti was lying on the double bed in that room towards North side. Her head was present on East side and her feet towards West side. The ceiling fan of the room was on with full speed. There were no creases on the bed sheet of that bed, where the dead body was lying nor was there any pillow on that bed. There was no stool lying in that room. PW1 observed bluish marks on both the arms and palms of his daughter. There was a circular mark around the neck below the thyroid position on front SC No. 1228/2016 Page 48 of 79 ASJ-04/East Distt./KKD Court side and there was double mark on the back of the neck. There was no fanda i.e. ligature material on the neck of his daughter nor was there any chunni hanging from the ceiling fan or lying on the bed. No neighbours saw the dead body of his daughter in hanging position from the ceiling fan. The police officials of PCR or the local police or PW1 nor the Crime Team saw the body in hanging position from the ceiling fan. At about 12/12.30 pm the area SDM reached there and he inspected the site. He took measurement of the dead body. Total length of the dead body was 60 inches/150 cm. The distance between blade of ceiling fan was about 87 inch. It appeared that his daughter had been murdered. The dead body of his daughter was removed to mortuary.
69) In this regard PW2 deposed that on 15.06.2005 they were ready for bringing Jyoti to their home when a phone call was received at about 08.30 am by his father from her matrimonial home that Jyoti was unwell. At about 9.00 am he and his father reached at the matrimonial home of Jyoti. There was a crowd noticeable from the corner of the gali at matrimonial home and police was also found present at the spot. The moment they reached inside the house, accused Harish, Urmila and Banarsi Dass were found present inside whereas Daizy and Rajni had already fled from the house. The moment they reached inside the room of Jyoti, the dead body of Jyoti was found lying on the double bed towards the wall side in the corner of the room. On both the hands there were bluish mark from the elbow till the wrist and there were round marks on the neck, eyes and SC No. 1228/2016 Page 49 of 79 ASJ-04/East Distt./KKD Court mouth were found closed. There was no creeze noticed on the bed sheet lying on the double bed. The fan was running at full speed. No stool was noticed in that room. There was no fansi ka fanda either on the fan or in the room or on the neck of Jyoti. All these things in the room indicated that Jyoti was killed by the accused persons.
70) It is also relevant to note that the SDM PW15 reached the spot at about 12.05 pm. He deposed regarding the scene of crime where the dead body was present and deposed that the dead body of the deceased was lying on double bed. Accused Banarsi Dass told that she had committed suicide by hanging herself with the ceiling fan. PW15 deposed that neither any cloth was tied to her neck nor to the ceiling fan. The ceiling fan was in normal working condition. Blades of the fan were not tilted / twisted. The mouth of the deceased was closed. Local police and father of the deceased i.e. Amar Nath told him that the body was lying in the same condition even when they reached there. PW15 also noticed blue spots on the left hand of the deceased. No suicide note was recovered by him from the spot. No stool/table or any other article, which could have been used by the deceased to reach the fan to tie knot of the cloth purported to have been used to hang herself to the ceiling fan, was noticed in the room. The height of the deceased was 5 feet and the distance between the fan and double bed was 7 feet. He deposed that by any stretch of imagination it was not possible for the deceased to reach the fan herself without using the stool/table or any other article.
SC No. 1228/2016 Page 50 of 79 ASJ-04/East Distt./KKD Court 71) PW5 SI Narender to whom DD No. 9 Ex. PW5/A
was assigned reached the spot and deposed that he alongwith Ct. Dharamvir-PW4 reached at the spot and saw that the dead body of a lady was lying in a room build on the ground floor of the house. Ceiling fan of the room was in movement. Father-in-law of the deceased Banarsi Dass was present at the spot. Inquiries were made from him and he told that deceased had hanged herself. Pink colour chunni was lying there in two pieces. One scissor was also there at the spot. Banarsi Dass told that the deceased had hanged herself with the help of chunni. He told that he had cut chunni of the deceased in two pieces with which she had hanged herself. Chunni and scissor were seized vide seizure memo Ex. PW4/A. PW5 identified two pieces of chunni as Ex. P-2 and pair of scissors as Ex. P-1.
72) In this regard, PW4 HC Dharmvir Singh deposed that he accompanied PW5 IO/ASI Narender Singh to the spot and he saw that a lady was lying dead on bed in a room on the ground floor of that house. Ceiling fan of the room was in movement. No ligature material etc. was lying there. Father-in- law of the deceased namely accused Banarsi Dass informed them that she had hanged herself. He was interrogated by ASI Narender Singh. Accused Banarsi Dass produced a chunni in two pieces and a scissor and put the same on bed of the deceased. He informed that it was the ligature material by which the deceased had hanged herself. Dead body of Jyoti @ Hema was removed to Subzi Mandi Mortuary. Pieces of chunni and scissor were seized vide seizure memo Ex. PW4/A. SC No. 1228/2016 Page 51 of 79 ASJ-04/East Distt./KKD Court
73) It is contended by Ld. Counsel for accused Urmila, Banarsi Dass and Harish that nothing turns on the fact that the fan was in working condition and its blades were not twisted or that there were no creases on the bed. It is urged that a murha was present at the spot but it was removed by numerous public persons who had come to the spot and the spot was not sealed before the public arrived. On the other hand it is contended by Ld. Addl. P.P. and Ld. Counsel for the complainant that the circumstances in which the body of the deceased was found clearly points to the culpability of the accused persons as it is not possible that the blades of the fan would not have twisted or the fan would have remained in working condition if the deceased had committed suicide by hanging from it. It is also urged that none of the witnesses saw a table or a murha lying at the spot so it was not possible for the deceased to hang herself from the fan when her height was only 5 ft and the distance between the fan and the bed was about 7 ft.
74) It is worthwhile to note that no suggestion regarding the presence of murha have been given to either PW4, PW5 or PW15 by the counsel for the accused persons. It is for the first time in their statements recorded u/s 313 Cr.P.C. that the accused persons namely Banarsi Dass and Urmila have raised the defence that there was a murha found present at the spot. In their statements recorded u/s 313 Cr.P.C. they also stated that the blades of the fan were twisted/tilted, however, no suggestion in that regard was given to either PW4, PW5 or PW15 and PW1 Amar Nath or his son PW2 Jitender, who had categorically SC No. 1228/2016 Page 52 of 79 ASJ-04/East Distt./KKD Court deposed that the fan was in normal working working condition and its blades were not twisted. No suggestion was given to the said witnesses that the murha had been removed by the public persons present on the spot as has been argued by ld. Counsel for the accused persons. Hence, the said contention of accused Banarsi Dass and Urmila that a murha was found present at the spot or that the blades of the fan were twisted is an after thought and hence, not proved on record.
75) It is also relevant to note that PW15 deposed that neither any cloth was tied to her neck nor to the ceiling fan. Two pieces of chunni were produced by accused Banarsi Dass and no piece of chunni was found tied to the ceiling fan. Accused Banarsi Dass also claimed that the deceased had committed suicide by hanging. It is indeed intriguing as to why a person would besides cutting the chunni into two to bring down the dead body would also remove the portion of chunni tied to the fan.
76) It is argued that the Postmortem Report was a fabricated report and mentions the cause of death to be strangulation. It is stated that as per the postmortem report B/L thyroid horns cartilage were broken. It is stated that the thyroid horns cartilage would break only in case of suicide by hanging and not in case of strangulation. It is stated that the details under the head 'discharge from orifices' mentioned in postmortem report Ex. PW17/A were added later indicating manipulation. It is accordingly argued that the postmortem report is not conclusive of the finding of strangulation and points to suicide by hanging.
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77) The postmortem report of deceased Jyoti was conducted on 15.06.2005 at 02.35 pm. It is contended that when the deceased was taken to the mortuary, the complainant was present alongwith the police officials and therefore, he has manipulated the postmortem report. It is also argued that there are contradictions regarding the vehicle in which the deceased was taken to the mortuary. It is stated that the doctor, who conducted the postmortem, has not been examined and instead another doctor has proved the postmortem report.
78) The postmortem report was proved by Dr. Akash Jhanjee, who deposed that the postmortem of deceased Jyoti was conducted by Dr. Rajiv Sharma vide PM report no. 815/2005 vide Ex. PW17/A. PW17 identified the handwriting and signatures of Dr. Rajiv Sharma and stated that the whereabouts of Dr. Rajiv Sharma could not be ascertained. A bald suggestion was given to PW17 that Dr. Rajiv Sharma had prepared a false postmortem report under the influence of the complainant. No reason has been mentioned as to why Dr. Rajiv Sharma would have got influenced by the complainant and thus the contention of the accused persons in that regard is misconceived. The contradiction in the testimonies of prosecution witnesses regarding the vehicle in which the deceased was taken is only a minor contradiction which does not go to the root of the case.
79) As per the postmortem report Ex PW17/A, the eyes of the deceased were properly closed. Sub conjunctival hemorrhage (hmg) was present. Under the head "Any Discharge SC No. 1228/2016 Page 54 of 79 ASJ-04/East Distt./KKD Court From Natural Orifices" it is noted that "dried blood deposits at both nostrils and mouth opening. No dried salivary mark over either angle of mouth and chin." No ligature material was present in situ around the neck. The height of the body was five feet; built - average; complexion - wheatish.
Following external injuries were noted on the dead body:
i) Ligature mark - a transverse continuous, completely encircling the neck at the level of thyroid cartilage, dark brown, hard and parchment like ligature mark present. 32 cm long and 1 cm wide over front of the neck and .8 cm wide over both the sides of neck and the back of neck. Petechial hmg (hemorrhage) present about the edges of ligature mark. It is about 7 cm below the chin in midline, 7.1 cm below the right angle of the mandible, 7.2 cm below the left angle of mandible over front of the neck and 2 cm below the posterior hairline over back of neck.
Circumference of neck is 32 cm. No other external injury was found present.
On internal examination of neck the following observations were made :
i) B/L superior horns of thyroid cartilage are fractured end bruise adjacent tissues massively bruised.
ii) Underlying neck muscle and subcutaneus tissues are massively bruised hmg (hemorrhage) was present under the mucosa of larynx and epiglottis. Trachea and bronchi were congested and bruised.
80) The cause of death was opined to be asphyxia as a result of ligature strangulation. Ligature strangulation was SC No. 1228/2016 Page 55 of 79 ASJ-04/East Distt./KKD Court sufficient to cause death in ordinary course of nature. All injuries are ante-mortem in nature and fresh in duration. Time since death was about 10-12 hours.
81) The viscera of the deceased was sent for FSL examination. As per the FSL result no unwholesome substance was found in the viscera of the deceased. PW17 deposed that Dr. Rajiv Sharma also gave subsequent opinion in the case regarding ligature material i.e. chunni (Ex. P-2). It was opined that considering the dimensions and material of chunni and dimensions of ligature mark on the neck of the deceased, the possibility of alleged chunni being used as ligature material for the alleged ligature strangulation could not be ruled out. The subsequent opinion of Dr. Rajeev Sharma is Ex. PW17/B. PW17 further deposed that strangulation is usually homicidal unless contrary is proved.
82) PW17 was cross-examined by accused Banarsi Dass and Urmila and subsequently he was recalled for cross-
examination upon an application filed by accused Harish u/s 311 Cr.P.C. No suggestion was put to PW17 by the accused persons that the cause of death was not ligature strangulation or that the deceased had committed suicide by hanging or that the postmortem report Ex. PW17/A was incorrect.
83) The postmortem report has been negated by counsel for the accused persons on the ground that the postmortem report mentions that bilateral horns of thyroid cartilage were found fractured and bruised, which occurs in a case of suicide by SC No. 1228/2016 Page 56 of 79 ASJ-04/East Distt./KKD Court hanging and not in a case of strangulation. It is urged that the opinion expressed in the postmortem report regarding the cause of death is not reliable. It is further argued that the charge u/s 302 IPC is not supported by medical evidence and the opinion regarding the cause of death has been obtained at the instance of the complainant, who had also accompanied the body of the deceased for postmortem. It is further stated that besides the ligature mark, no other injury has been found on the body of the deceased, thereby raising a question mark over the testimony of PW1 and PW2 that deceased was given beatings on the night of 14.06.2005 when PW2 had gone to the matrimonial house of deceased Jyoti.
84) It is also argued that since the charge sheet was not filed u/s 302 IPC, therefore, no investigation has been conducted as regards homicidal death of deceased Jyoti. However, the said argument is misconceived for the reason that the fact that investigation is not specifically done for section 302 IPC does not mean that the accused is absolved of the said offence. That apart, the investigation conducted in the matter and the evidence lead can be taken into consideration by the court .
85) In Vijay Pal Singh & Ors. v. State of Uttrakhan, 2014 15 SCC 163, the Hon'ble Supreme Court held as follows :
"Since the victim in case is a married woman and the death being within seven years of marriage, apparently the court has gone only on one tangent, to treat the same as a dowry death. No doubt, the death is in unnatural circumstances but if there are definite indications of death being homicide, the first approach of the prosecution and the court should be to find out as to who caused that murder. Section 304B of IPC is not a substitute for Section 302 IPC."
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86) With regard to strangulation and hanging the Hon'ble Supreme Court in Javed Abdul Rajjaq Shaikh v. State of Maharashtra, (2019) 10 SCC 778 has made the following observations:
"28. The differences between hanging and strangulation have been highlighted by Modi on Medical Jurisprudence and Toxicology, 25th Edn., as follows:
Hanging Strangulation
1. Mostly suicidal. 1. Mostly homicidal.
2. Face--Usual pale and 2. Face--Congested, livid and
petechiae rare. marked with petechiae.
3. Saliva--Dribbling out of 3. Saliva--No such dribbling.
mouth down on the chin and chest.
4. Neck--Stretched and 4. Neck--Not so.
elongated in fresh bodies.
5. External signs of asphyxia 5. External signs of asphyxia, usually not well marked. very well marked (minimal if death due to vasovagal and carotid sinus effect).
6. Ligature mark--Oblique, non- 6. Ligature mark--Horizontal continuous placed high up in or transverse continuous, the neck between the chin and round the neck, low down in the larynx, the base of the the neck below the thyroid, groove or furrow being hard, the base of the groove or yellow and parchment-like. furrow being soft and reddish.
7. Abrasions and ecchymoses 7. Abrasions and ecchymoses round about the edges of the round about the edges of the ligature mark, rare. ligature mark, common.
8. Subcutaneous tissues Under 8. Subcutaneous tissues under the mark--White, hard and the mark--Ecchymosed. glistening.
9. Injury to the muscles of neck 9. Injury to the muscles of the
--Rare. neck--Common.
10. Carotid arteries, internal 10. Carotid arteries, internal coats ruptured in coats ordinarily ruptured.
11. Fracture of the larynx and 11. Fracture of the larynx, trachea--Very rare and may trachea and hyoid bone. be found that too in judicial hanging.
12. Fracture--dislocation of the 12. Fracture--dislocation of the cervical vertebrae--Common the cervical vertebrae--
in judicial hanging. Rare.
13. Scratches, abrasions and 13. Scratches, abrasions
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bruises on the face, neck and fingernail marks and bruises
other parts of the body-- on the face, neck and other
Usually not present. parts of the body--Usually
present.
14. No evidence of sexual assault. 14. No evidence of sexual assault.
15. Emphysematous bullae on 15. Emphysematous bullae on surface of the lungs--Not the surface of the lungs --
present. May be present.
29. As to what is the distinction between strangulation andthrottling is also dealt within the selfsame work:
"Definition.--Strangulation is defined as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation.
Ligature strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body.
When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold).
A form of strangulation, known as bansdola, is sometimes practised in northern India. In this form, a strong bamboo or lathi (wooden club) is placed across the throat and another across the back of the neck. These are strongly fastened at one end. A rope is passed round the other end, which is bound together, and the unfortunate victim is squeezed to death. The throat is also pressed by placing a lathi or bamboo across the front of the neck and standing with a foot on each end of lathi or bamboo.
Garrotting is another method that was used by thugs around 1862 in India. ... A rope or a loincloth is suddenly thrown over the head and quickly tightened around the neck. Due to sudden loss of consciousness, there is no struggle. The assailant is then able to tie the ligature."
30. It is necessary in this case to look at the post-mortem and also the evidence of the medical officer, PW 1. In the light of the differences between hanging and strangulation, in a case of hanging, saliva will dribble down the mouth down on the chin and the chest whereas in a case of strangulation, there will be no such dribbling. PW 1 Medical Officer was specifically asked with respect to saliva. He has stated that while doing post- mortem he has not noticed saliva. In cross-examination also he states that it is not true to say that saliva was coming out of the mouth of the deceased and relatives were cleaning it. In the case of hanging, the neck will be stretched, elongated in fresh bodies while it is not so in the case of strangulation. PW 1 has stated that he has not noticed that the neck was stretched and elongated in the case of the deceased.
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33. Injury to the muscles of the neck is stated to be common in case of strangulation whereas in a case of hanging injury to the muscles of the neck is rare. In this connection it is to be noticed that in para 20 of the post-mortem, it is stated that both sternomastoid muscle crushed and severe haemorrhage present beneath it. In this connection, it is relevant to understand what is sternomastoid muscle and where it is located. The sternocleidomastoid muscle is also known as sternomastoid muscle. It is one of the largest and most superficial cervical muscle located in the superficial layer on the side of the neck. It has its origin from the middle portion of the clavicle and the manubrium sternix. Manubrium sternix is uppermost portion of the sternum bone. The post-mortem finding in this case is to the effect that sternomastoid muscle is crushed and there is severe haemorrhage present beneath it. This feature is compatible with the case being one of strangulation as injury to the muscle of the neck is rare in hanging. Fracture--dislocation of the cervical vertebrae--is common in judicial hanging whereas it is rare in the case of strangulation. The post-mortem result does not show that there is fracture or dislocation of cervical vertebrae. The cervical vertebrae are the vertebrae of the neck immediately below the skull. Neither in the post-mortem nor in the deposition of PW 1 is anything brought out to show that there is either fracture or dislocation of the cervical vertebrae. The absence of the same also probabilises clearly the case of prosecution that this is a case of strangulation or rather throttling.
34. It is no doubt true that in the case of hanging, fracture of the larynx and trachea is very rare and that too it may be found in judicial hanging. On the other hand, fracture on the larynx, trachea and hyoid bone indicates strangulation. PW 1 doctor states in cross-examination thus say that it is true that the deceased had not faced fracture to the larynx, trachea or hyoid bone. PW 1 in the re-examination explains the absence of fracture to larynx, trachea and hyoid bone in the following terms:
In case of strangulation by hand fracture of that larynx and trachea is not necessary to be occurred and the distinction between hanging and strangulation and the general tendencies of hanging and strangulation are given.
35. He further states that according to him, in the case of throttling by hand, fracture of the larynx and trachea cannot occur. It occurs in strangulation. He deposed that by using hand and blunt object like stone and stick, if strangulation is caused, in that case fracture of the larynx, trachea and hyoid bone has been found also. We have noticed that throttling is constriction produced by pressure of fingers and palm upon throat. In ligature strangulation it can be either by leg or by any other means. Mugging is when strangulation is brought about with the foot, knee, bend of elbow or some other solid substances. The deposition of the medical officer is not inconsistent with the SC No. 1228/2016 Page 60 of 79 ASJ-04/East Distt./KKD Court distinction between throttling and strangulation. In this case the choice is between finding death by hanging or by throttling. We have noticed that among the injuries, Injury 3 in para 20 is thyroid cartilage crushed laterally on both sides on left side. The further injury which is noted is cricoid cartilage and it is also crushed on both sides. PW 1 doctor has deposed that Injuries 2 and 3 in para 20, namely, both sternomastoid muscle being crushed and severe haemorrhage being present beneath it and Injury 3 thyroid cartilage being crushed literally on both sides on left side are only noticed in the case of homicidal death. He has further deposed that these are marks of violence and they cannot be noticed in the case of hanging and suicidal death. We have already noticed that injury to the muscle of the neck, is only rarely found in the case of hanging whereas injury to the muscle of the neck is common in strangulation and that the sternomastoid muscle is indeed a muscle of the neck."
87) With reference to the postmortem report Ex. PW17/A of the deceased, seen in the light of the abovesaid literature contained in Modi's Medical Jurispurdence (Supra) which are also discussed in the above judgement of the Hon'ble Supreme Court, following characteristics of death due to strangulation are mentioned in the postmortem report Ex. PW17/A and point towards the fact that the cause of death in the present case was ligature strangulation:
There was no saliva dribbling out of the mouth; No dried salivary mark over either angle of mouth and chin;
dried blood deposits at both nostrils and mouth opening; ligature mark was transverse, continuous completely encircling the neck at the level of thyroid cartilage; underlying neck muscles and subcutaneous tissues were found excessively bruised;
horns of thyroid cartilage were found fractured. It is relevant to note that the ligature mark was present at the SC No. 1228/2016 Page 61 of 79 ASJ-04/East Distt./KKD Court level of thyroid hence fracture in the thyroid cartilage. In similar context the Hon'ble Supreme Court made the following observations in Gargi v. State of Haryana, (2019) 9 SCC 738:
"23.1. We have closely examined the testimony of PW 1 Dr Usha Bansal, who was one of the members of the board that had conducted post-mortem. We have also taken into account the features noticeable from the site plan, the inquest report and the photographs placed on record. Having examined the relevant material, we find nothing of infirmity in the findings of the trial court and the High Court that it had been a case of strangulation, as could be seen from the post-mortem report that the dead body carried "well-defined depressed ligature mark measuring 3 cm wide seen encircling the neck around thyroid cartilage with a knot present on left side of neck and this ligature mark was ante-mortem in nature". The other ligature mark was on the left side of the neck measuring 1.5 cm wide and that was post-mortem in nature. The board had undoubtedly been of the opinion that the cause of death was "asphyxia due to strangulation". With such categorical medical opinion coupled with all the relevant features surrounding the suspended dead body in the room in question, it is difficult to say that it had been a case of suicide merely because hyoid bone was not broken or because the marks of resistance like abrasions/scratches were not reported. ........"
88) In the Gargi case (supra) ligature mark was encircling the neck around thyroid cartilage and this ligature mark was ante-mortem in nature. However the Hon'ble Apex Court observed that it is difficult to say that it had been a case of suicide merely because hyoid bone was not broken which is a characteristic of strangulation. In the present case, the horns of the thyroid cartilage which is situated below the hyoid bone were found fractured. Hence, it cannot be contended that the horns are located high up in the neck and therefore it is a case of suicide by hanging and the said contention of Ld. Counsel for accused persons is devoid of merit. Hence, in view of the aforesaid SC No. 1228/2016 Page 62 of 79 ASJ-04/East Distt./KKD Court discussion, it is proved on record that deceased Jyoti died a homicidal death due to ligature strangulation.
89) A crucial factor to be considered would be the time of death. He deposed that postmortem on the dead body of deceased Jyoti was conducted on 15.06.2005 vide postmortem report no. 815/2005 at 02.35 pm by Dr. Rajiv Sharma. As per the report, the time since death was 10 to 12 hrs hours meaning thereby the death of Jyoti had taken place around 2:35 AM to 4:35 AM in the intervening night of 14th-15th June, 2005.
90) Admittedly when police reached at the spot, the body of deceased Jyoti was found lying in a bed room on the ground floor of the house. PW1 has deposed that it was the bedroom of Harish on the ground floor where the dead body was found lying on the bed. PW1 was not cross examined on this aspect. PW2 also deposed that it was the bedroom of her sister Jyoti.
91) PW2 deposed that when they reached the spot accused Banarsi Dass, Harish and Urmila were present at the spot. No suggestion to the contrary was given to PW2 regarding their presence in the morning.
92) Moreover, in their statement recorded u/s 313 Cr.P.C. accused Banarsi Dass, and Urmila admitted that they had informed the police officials that deceased Jyoti had hanged herself. They further admitted that accused Bansarsi Dass had produced a Chunni in two pieces and a pair of scissors and SC No. 1228/2016 Page 63 of 79 ASJ-04/East Distt./KKD Court informed the police officials that it was the ligature material (chunni) with which deceased had hanged herself and that he had cut the chunni in two pieces. They also affirmed that PW5 seized the pair of scissors and both pieces of chunni vide scissor memo Ex. PW4/A.
93) In his statement recorded u/s 313 Cr.P.C. accused Harish also admitted that PW5 saw a dead body of a lady lying in the bed room on the ground floor of the house. He also affirmed that his father accused Banarsi Dass had informed the police officials that deceased Jyoti had hanged herself. He also admitted that his father accused Bansarsi Dass had produced a Chunni in two pieces and a pair of scissors and informed the police officials that it was the ligature material (chunni) Ex. P-2 with which deceased had hanged herself and that he had cut the chunni in two pieces.
94) Accused Harish in his statement recorded u/s 313 Cr.P.C. has not taken the defence that he was not present in the house at the time when deceased passed away. However, it is only at the stage of Defence Evidence that DW2, Ravi Saxena, neighbour of accused persons was examined and he stated that he rushed to the house of the accused persons in the morning after hearing cries from their house and when he reached there accused Urmila was crying while his father was removing the dead body from where it was hanging and when he entered the house he saw accused Harish entering the house. Hence a faint plea of alibi has sought to be raised at the stage of Defence Evidence, however considering the fact that this plea was never SC No. 1228/2016 Page 64 of 79 ASJ-04/East Distt./KKD Court raised at an earlier stage, no witness was cross-examined on that aspect and no suggestion to the contrary was put to any witness regarding the presence of accused Harish and as stated above, no such defence was even taken at the stage of recording of his statement u/s 313 Cr.P.C., hence the said defence remains a bald defence.
95) It is the case of the accused Banarsi Dass, Urmila and Harish that deceased Jyoti had hanged herself. They further admitted that accused Bansarsi Dass had produced a Chunni in two pieces and a pair of scissors and informed the police officials that it was the ligature material (chunni) with which deceased had hanged herself and that he had cut the chunni in two pieces. However, none of the Prosecution witnesses have deposed that they saw the body of deceased in hanging position. It is also relevant to note that DW2 has in his examination in chief stated that when he reached there, accused Urmila was crying while his father was removing the dead body from where it was hanging, whereas, in his cross examination he stated that when he reached there he saw the dead body lying on the bed. Even DW3, Deepak, neighbour of the accused persons stated that when he reached there accused Urmila was crying that deceased had committed suicide by hanging and deceased was found lying on the bed. Hence, none of the Defence Witnesses also saw the dead body in hanging position. Pertinently, in their statements recorded u/s 313 Cr.P.C. none of the accused persons have stated that they saw the body of the deceased in hanging position and hence have evaded giving reply to the said question.
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96) Hence, none of the Prosecution Witnesses nor any Defence Witness saw the body of deceased in hanging position. No ligature material found around the neck of deceased Jyoti. Accused Banarsi Dass told the police that deceased Jyoti had committed suicide by hanging. He also produced two pieces of chunni and a pair of scissors and informed the police officials that it was the ligature material with which the deceased had hanged herself which were seized by the IO vide seizure memo Ex. PW4/A.
97) In the present case there is no direct evidence of any eye witness regarding the death of deceased Jyoti and the present case is one of the circumstantial evidence as there is no witness to the commission of crime. In this regard, the decision of the Hon'ble Supreme Court in Sanatan Naskar and Anr. v. State of West Bengal, (2010) 8 SCC 249, may be referred to where the Hon'ble Supreme Court held as follows:-
"27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard."
28. A three-Judge Bench of Hon‟ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116 held as under:-
SC No. 1228/2016 Page 66 of 79 ASJ-04/East Distt./KKD Court "152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Govind Nargundkar v. State of M.P. AIR 1952 SC 343. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail v. State of U.P 1969 (3) SCC 198 and Ram Gopal v. State of Maharashtra 1972 (4) SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case(supra):
"10.... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, where the observations were made:-
"19.... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.(emphasis in SC No. 1228/2016 Page 67 of 79 ASJ-04/East Distt./KKD Court original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. "
98) In view of the aforesaid principles governing a case of circumstantial evidence, the facts of the present case are to be examined. In the present case it is proved on record that deceased Jyoti died due to strangulation. There is no eye witness of ligature strangulation of deceased Jyoti. In the night of 14/15.06.2005, deceased Jyoti and accused Urmila, Banarsi Dass and Harish were present at the house at 3811, Gali No.11, Shanti Mohalla, Krishna Nagar, Delhi, and the next morning Jyoti was found dead lying on the bed in the bedroom of accused Harish on the ground floor. As discussed above, accused Urmila, Banarsi Dass and Harish were present in the house when Jyoti died. Next morning when the police reached the spot, accused Banarsi Dass produced two pieces of chunni Ex. P-2 and a pair of scissors Ex. P-1 and told that deceased Jyoti had committed suicide by hanging.
99) It is however also noteworthy that death of Jyoti had taken place around 2:35 AM to 4:35 AM in the intervening night of 14th -15th June, 2005. The body deceased Jyoti was found lying on the double bed in the bedroom of deceased Jyoti and accused Harish, her husband, on the ground floor. The death of Jyoti SC No. 1228/2016 Page 68 of 79 ASJ-04/East Distt./KKD Court occurred in the middle of night in her bedroom when the other members of the family ordinarily are not be present. In this regard, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, in which the Hon'ble Supreme Court made the following observations:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [Stirland v. Director of Public Prosecutions, 1944 AC 315 (HL)] -- quoted with approval by Arijit Pasayat, J. In State of Punjab v. Karnail Singh [State of Punjab v. Karnail Singh, (2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
'(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.'
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character.
In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to SC No. 1228/2016 Page 69 of 79 ASJ-04/East Distt./KKD Court give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. ***
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
100) In Kalu v. State of Madhya Pradesh, 2019 10 SCC 211, the Hon'ble Supreme Court held as follows :
"16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered rele- vant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 CrPC with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased."
(emphasis supplied)
101) Accordingly, it has been held by the Apex Court in a catena of decisions that Section 106 of Indian Evidence Act is not intended to relieve the prosecution of its duty that the burden of proof is upon the prosecution to prove its case beyond reasonable doubt. However, it is designed to meet exceptional cases where it would be impossible or difficult for the prosecution to establish the facts which are especially within the knowledge of the accused and which he could prove without difficulty or SC No. 1228/2016 Page 70 of 79 ASJ-04/East Distt./KKD Court inconvenience. As discussed above in Kallu v. State (Supra), the Hon'ble Supreme Court observed that where an offence like murder is committed in the secrecy of a house, the initial burden to establish the case would be upon the prosecution, however, the burden would be of a comparatively of lighter character and not of the same degree as in other cases of circumstantial evidence. In view of Section 106 of Indian Evidence Act there is a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. They cannot get away by simply keeping quiet and offering no explanation on the ground that it is for the prosecution to prove the case beyond doubt and there is no duty cast upon the accused.
102) In the present case the prosecution has established prima facie case that deceased Jyoti passed away in the intervening night of 14/15.06.2005 in the confines of the house no. 3811, Gali No. 11, Shanti Mohalla, Gandhi Nagar, Delhi. Accused Urmila, Banarsi Dass and Harish were present in the house on that night. Jyoti passed away due to strangulation and therefore her death was homicidal. No explanation has been forthcoming from accused Urmila, Banarsi Dass and Harish as to the circumstances in which deceased Jyoti passed away.
103) In Rajender v. State of NCT of Delhi, 2019 10 SCC 623, the Hon'ble Supreme Court observed that in cases resting upon circumstantial evidence if the accused fails to offer reasonable explanation in discharge of the burden placed on him under section 106 Indian Evidence Act, such failure by itself can provide an additional link in the chain of circumstances proved SC No. 1228/2016 Page 71 of 79 ASJ-04/East Distt./KKD Court against him. When the accused does not throw any light upon the facts which are especially within his / her knowledge, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.
104) In State of Rajasthan v Thakur Singh, (2014) 12 SCC 2011, the Hon'ble Supreme Court discussed the law regarding section 106 Indian Evidence Act and burden of proof upon the prosecution and the accused and made the following observations:
"16. Way back in Shambhu Nath Mehra v. State of Ajmer[2] this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:
"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."
17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra[3] this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: "Where an accused is alleged to have committed the murder of his SC No. 1228/2016 Page 72 of 79 ASJ-04/East Distt./KKD Court wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra[4] in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra[5] this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.
20. In Jagdish v. State of Madhya Pradesh[6] this Court observed as follows:
"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
21. More recently, in Gian Chand v. State of Haryana[7] a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of West Bengal v. Mir Mohammad Omar[8] which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words: "During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the SC No. 1228/2016 Page 73 of 79 ASJ-04/East Distt./KKD Court boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."
22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."
105) Applying this principle to the facts of the case, since deceased Jyoti died an unnatural death in the room occupied by her and her husband accused Harish, the cause of the unnatural death was known to accused Harish. As per the scaled site plan, Ex. PW7/A, there was only one bedroom on the Ground floor of the matrimonial house of deceased Jyoti, which belonged to accused Harish and deceased Jyoti. In the normal course of events accused Harish and deceased would be present in their bedroom on the ground floor at night. Accused Harish has not taken the defence that he was not present in his room while the incident occurred nor did he set up any defence that some other person entered the room and caused the unnatural death of his wife. The first onus was upon him to give an explanation leading to the death of his wife. The facts relevant to the cause of Jyoti's death being known only to accused Harish, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong link that deceased Jyoti was murdered by accused Harish.
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106) It is also relevant to note that, no explanation was forthcoming from accused Urmila and Banarsi Dass regarding the circumstances in which deceased Jyoti died by strangulation in the intervening night of 14/15.06.2005 when they were also present in their house and infact they claimed that she committed suicide. However, as discussed deceased Jyoti was found lying dead in her bedroom on the ground floor as deposed by PW1, father of the deceased, and PW2, brother of deceased. There was only one bedroom on the ground floor as per the site plan Ex PW7/A and there was a staircase going to upper floors of the house. It is not the case of the prosecution that all the accused persons were residing in one room on the ground floor. The death took place in the middle of the night between 2:35 Am to 4:35 AM when normally the husband and wife are alone, therefore it is likely that they were not aware about the incident when it took place. Hence, their involvement in homicide of Jyoti is not proved beyond reasonable doubt. Therefore accused Urmila and Banarsi Dass are not liable to be held guilty of the offence under section 302 IPC and section 106 Indian Evidence Act cannot be stretched to this extent, in absence of any positive material to show their presence in the room at the time of incident.
107) Though, when the police and public persons reached the spot, accused Banarsi Dass also handed over two pieces of chunni and stated that it was the ligature material with which Jyoti committed suicide and hence, the version given by accused Banarsi Dass is inconsistent with the factum of strangulation SC No. 1228/2016 Page 75 of 79 ASJ-04/East Distt./KKD Court proved on record and thus, was a false statement. However, considering that accused Harish is his son, the said story could have be cooked up by him to save his son Harish or might have been told to them by accused Harish to save himself. Either which way, that by itself would not be sufficient to hold accused Banarsi Dass and Urmila guilty for the murder of deceased Jyoti.
108) As regards the weight to be attached to the motive in deciding as to whether the prosecution has proved the case beyond reasonable doubt against an accused, the Hon‟ble Supreme Court in the case of Suresh Chandra Bahri v. State of Bihar,1995 Supp (1) SCC 80 held as under:
"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive, it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime."
109) In Amitava Banerjee vs. State of W.B., (2011) 12 SCC 554, it was observed as under:
"41. Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to SC No. 1228/2016 Page 76 of 79 ASJ-04/East Distt./KKD Court ensure that suspicion does not take the place of proof while finding the accused guilty.
42. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence.
43. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime. And yet experience about human nature, human conduct and the frailties of human mind has shown that inducements to crime have veered around to what Wills has in his book "Circumstantial Evidence" said:
"The common inducements to crime are the desires of revenging some real or fancied wrong; of getting rid of rival or an obnoxious connection; of escaping from the pressure of pecuniary or other obligation or burden of obtaining plunder or other coveted object; or preserving reputation, either that of general character or the conventional reputation or profession or sex; or gratifying some other selfish or malignant passion."
In Tarsem Kumar Vs. Delhi Administration, 1995 Cri.L.J.470, Supreme Court had repeatedly pointed out that where the case of prosecution has been proved beyond reasonable doubt on the basis of material produced before the Court, motive losses its importance but in a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. It was further emphasised that if each of the circumstances proved on behalf of prosecution is accepted by the Court for the purpose of recording a finding that it was the accused who committed the crime in question even in absence of any proof of a motive for commission of such crime, the accused can be convicted."
110) As regards the importance to be assigned to proof of motive in a case based on circumstantial evidence, the Hon'ble Supreme Court in case titled as Mulakh Raj Etc vs Satish Kumar And Others, 1992 AIR 1175, observed as under :
"Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is SC No. 1228/2016 Page 77 of 79 ASJ-04/East Distt./KKD Court difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its nonexistence. The failure to prove motive is not fatal as a mater of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case."
111) In light of law discussed above, though in a case of circumstantial evidence motive assumes importance, however, failure to prove motive does not signify its nonexistence.
112) However, in the present case as per the prosecution, the family of the deceased could not fulfil the demands of Rs.2 lakhs and that furnished the motive for committing the crime. Accused Harish has been acquitted of the offence under section 498-A/304-B/34 IPC as the prosecution was not able to prove the guilt of accused Harish for the said offences beyond reasonable doubt and he was given benefit of doubt. In these circumstances failure on the part of the prosecution to prove motive is not fatal in view of the evidence coming on record against accused Harish.
113) In view of the aforesaid discussion, accused Banarsi Dass, Urmila, Harish, Rajni, Mamta and Ajay are acquitted for the offences punishable u/s 498A/304B/34 IPC. Accused Banarsi Dass and Urmila are also acquitted for the offence u/s 302/34 IPC. However, it is proved on record that accused Harish committed murder of deceased Jyoti by ligature strangulation and SC No. 1228/2016 Page 78 of 79 ASJ-04/East Distt./KKD Court accordingly he is held guilty and convicted for the offence under section 302 IPC. order DEEPALI Digitally signed by DEEPALI SHARMA Announced in the open Court SHARMA Date: 2023.06.07 17:04:40 +0530 on this 6th day of June, 2023 (Deepali Sharma) Additional Sessions Judge04 East District/KKD Courts/Delhi.
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