Delhi District Court
State vs Rajiv Lochan Pani Etc on 30 June, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.161/09
FIR No.903/05
U/s 498A/304B/34 IPC
PS Malviya Nagar
State
Vs.
1. Rajiv Lochan Pani S/o Madan Mohan
2. Ashok Pani S/o Madan Mohan.
........ Accused
Challan filed on : 13.12.2005
Received by Fast Track Court on:10.12.2009
Reserved for Order on : 25.05.2011
Date of Pronouncement : 30.05.2011
JUDGMENT
Briefly stated the facts of the prosecution case are that in the intervening night of 12/13.10.05 Incharge of PCR Eagle79 received information from Eagle1 that one lady is lying naked in a gali near H.No. 485 near Chaupal of Chirag Delhi. PCR officials reached there and found one lady lying in naked condition. DD no.23 was got recorded and HC Jalbir Singh reached at House no. 485, Chirag Delhi State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 1 of 57 where he came to know that the said lady was residing at H.no.502 which is opposite house no. 485. The said lady was removed to hospital. HC Jalbir Singh reached in Safdarjung Hospital and found Smt. Binny w/o Rajiv admitted in burn ward. He collected the MLC Ex.PW16/A. Rajiv, husband of that lady was in the hospital who informed that his marriage had been solemnized about one and half year back with the said lady. HC Jalbir Singh moved an application Ex.PW13/B before the doctor to record the statement of the victim. Burnt clothes of the lady as well as burnt match stick were seized vide memo Ex.PW12/A. It is further the case of the prosecution that SDM was called but he was not available and then SI Sunil Kumar recorded the statement of the injured which is Ex.PW14/A. By the time SDM reached in the hospital, the injured had expired. It is further the case of the prosecution that the parents of the deceased lady Suchitra were called and produced before the SDM who recorded the statement of Ramakant Panda, father of deceased Ex.PW2/A in which he had alleged that he got the marriage of his daughter solemnized with Rajiv Lochan Pani on 13.5.2004 accordingly to Hindu Rites and Customs. After about one or one and half month of marriage, Rajiv took his daughter to Delhi. His daughter told him a number of times that her in laws used to harass her for dowry. In Dec.2004 his daughter was State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 2 of 57 pregnant and he took her to Orissa. She gave birth to a son. He has been named Sriram. On 8.9.05 Suchitra came back to Delhi to stay with her husband. On 13.10.05 at about 8 p.m SI Sunil Kumar from PS Malviya Nagar informed that his daughter is burnt and she has been admitted in Safdarjung Hospital. After a while his relative Manas has given information that Suchitra has expired. On 15.10.05 they reached Delhi at the house of his brother. He suspects that Suchitra has been killed because of non fulfillment of demand of dowry. Legal action be taken against the inlaws of Suchitra. On this statement Ex.PW2/A,SDM directed the SHO to lodge FIR. FIR no.903/05 was lodged. Thereafter investigation was conducted and accused persons were arrested. After completion of the investigation, challan u/s 498A/304B/34 IPC has been filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 16.01.06.
3. The charge against accused Rajiv Lochan Pani and Ashok Pani has been framed u/s 498A/304B IPC on 22.03.06 by State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 3 of 57 Sh.V.K.Bansal, the then Ld. ASJ to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 26 witnesses.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. In defence the accused persons have examined three witnesses. DW1 Sanjay Sarkar, DW2 Gorang Shukla and DW3 Rajeev Lochan Pani (accused himself). Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and Ld.counsel on behalf of the accused persons, I have perused the testimonies of all the PWS.
State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 4 of 57
8. PW1 Rameshwari has deposed that in the year June 2005 Ashok and Rajiv Pani were residing as tenant at First Floor and from June to Aug 2005 wife of Ashok with his two kids were residing. On 13.10.05 there was jagran in front of their house and at about 4 a.m police awakened them and stated that one lady is lying in the gali who is wife of Rajiv. Her husband went upstairs where Rajiv with his son was sleeping. On enquiry Rajiv told that his wife is in the bathroom. Thereafter he alongwith them came in the gali and saw his wife in burnt condition. He had not heard any quarrel between Rajiv and his wife. She has been declared hostile on some material point and cross examined by the Ld. APP for the State wherein she denied the suggestion that on the day of incident there was quarrel in between Rajiv and his wife.
9. PW2 Rama Kant Panda is the complainant and he has stated SDM recorded his statement which is Ex.PW2/A.
10. PW3 HC Suresh has deposed that he recorded FIR no. 903/05 copy of which is Ex.PW3/A. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 5 of 57
11. PW4 Manorma has deposed that being member of ward no. 4, police took her to the house of accused and seized some dowry articles vide seizure memo Ex.PW4/A.
12. PW5 Babaji Charan Behra is the witness from Orissa and he has deposed that he accompanied Rama Kanta Panda to Delhi when information about death of Suchitra was received.
13. PW6 Pratap Kumar Panda is the cousin brother of deceased Suchitra. He also came to Delhi alongwith PW2 when information regarding death of Suchitra was received.
14. PW7 Sarathi Panda is the mother of deceased.
15. PW8 HC Shyam Singh has deposed that on 13.10.05 he deposited the exhibits in CFSL. The entry in this respect is Ex.PW8/A.
16. PW9 Dr. Chanderkant has conducted the post mortem on the dead body of Suchitra. The post mortem report is Ex.Pw9/A.
17. PW10 Ct.Dinesh has deposed that he visited the spot on State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 6 of 57 13.10.05 and took 6 photographs which are Ex.PW10/B1 to B6 and negatives are Ex.PW10/A1 to A6.
18. PW11 HC Jitender Singh has deposed that he accompanied SI Dharam Pal to Orissa at the house of Suchitra and from their they went to the house of accused where they seized 43 articles of dowry including gold necklace and handed over the same to Rama Kant Panda. The list is Ex.PW4/A.
19. PW12 Ct.Inder Lal has deposed that on 13.10.05 on receipt of message regarding lying of one lady in House no. 485 he reached there and found HC Jalbir there. When he reached in the gali, he found that the lady was already removed to the hospital. Crime team came at the spot. Pieces of burnt clothes were lying and one jute tat was also lying there. HC Jalbir seized the clothes and jute tat vide seizure memo Ex.PW12/A. He identified the pieces of clothes and jute tat Ex.P2.
20. PW13 HC Jalbir Singh has reached at the spot on receipt of DD no.23 copy of which is Ex.PW13/A. He came to know that a female residing as tenant in the house of Mahender Singh bearing no. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 7 of 57 502 has been removed to hospital by PCR and her husband in burnt condition. He found a female Smt. Binny w/o Rajiv admitted in burn ward. Accused Rajiv Lochan was present there. Since the marriage had taken place about one and half year back, he tried to inform the SDM but his mobile was not connectable. He moved an application before the doctor for recording the statement and victim was declared fit for statement. Application is Ex.PW13/B. SI Sunil Kumar tried to contact SDM but he could not be contacted and then special messenger was sent. He seized the match sticks and pieces of burnt clothes. He identified the match sticks and pieces of burnt clothes.
21. PW14 SI Sunil Kumar has deposed that in the intervening night of 12/13.10.05 HC Jalbir gave him information from Safdarjung Hospital that one lady is admitted in the hospital in serious condition. He reached in the hospital and collected the MLC of Binny w/o Rajiv whose name he came to know later on as Suchitra. He tried to contact SDM but of no avail. He himself recorded the statement of injured in the presence of HC Jalveer and her husband. He produced the said statement from the police file, the same is Ex.PW14/A. He sent special messenger to SDM and gave information to the parents of Suchitra and produced them before SDM when they came. Crime team State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 8 of 57 inspected the spot and burnt match sticks, pieces of clothes were seized. Information received from hospital was recorded in DD no.12 which is Ex.PW14/B. He has further deposed that SDM gave him direction to take action as per law after recording the statement of Rama Kant Panda which is Ex.PW7/A. Further investigation was handed over to Insp. Om Kumar. The dowry articles were seized vide memo Ex.PW14/C. After post mortem the dead body was handed over to the relatives. He collected the PM report. He has further stated that accused Ashok was arrested vide memo Ex.PW14/F and his personal search was conducted vide memo Ex.PW14/G. He has further deposed that on the first visit to the hospital after incident, when he had recorded the statement of that injured and while he was going out from there, she told him further that she wants to say something but will tell the same only after arrival of her parents as she was appearing perplexed and was looking towards her husband.
22. PW15 Sh Manish Garg is the then SDM who recorded the statement of Rama Kant Pandey Ex.PW2/F and issued direction to SHO to take appropriate legal action. The direction is Ex.PW15/A. He filled up form no. 25.35 Ex.PW15/B and made an application for autopsy Ex.PW15/C. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 9 of 57
23. PW16 Dr. Arita Ghosh had deposed that on 13.10.05 Binni w/o Rajeev was admitted in the casualty with alleged history of sustained thermal burn exact mode of burn not known to the husband, patient was drowsy not responding to verbal command. Her MLC was prepared by Dr. Shirol which is Ex.PW16/A. She prepared the death summary which is Ex.PW16/B.
24. PW17 HC BD Shrinivasan has deposed that he guarded the dead body as per direction of SI Sunil in mortuary and after post mortem the dead body was handed over to the father of deceased girl.
25. PW18 Ct. Jagat Nagar has deposed that on 15.10.05 he alongwith HC Jalbir Singh and Insp. Onkar went to Chirag Delhi and arrested accused Rajiv Lochan vide arrest memo Ex.PW18/A and his personal search was conducted vide memo Ex.PW18/B.
26. PW19 Dr. Deepak Nanda has appeared for Dr. Shirol who had prepared the MLC of Binni Ex.PW16/A.
27. PW20 Ct. Ram Pal has deposed that on 28.11.05 he took State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 10 of 57 two sealed parcels from Malkhana and deposited the same in CFSL, Hyderabad.
28. PW21 retired SI Dharampal has deposed that on 26.10.05 he went to Jajpur, Orissa alognwith Ct. Jitender and reached in the house of deceased girl Suchitra where her father met them. From there they went to PS and SI Akar Kumar accompanied them to the house of accused where mother in law of Suchitra met and on her own she took out some articles mentioned in Ex.PW4/A and handed over to the father of deceased girl.
29. PW22 SI Naveen Kumar has deposed that on 13.10.05 he alongwith his crime team members reached at the spot and inspected the scene of crime and directed the photographer to take the photographs of the place of incident. He prepared his report which is Ex.PW22/A.
30. PW23 ASI Suraj Bhan has deposed that he received information about lying of one lady in naked condition near H.No.485. He reached there and found a lady in burnt condition and on enquiry her name was revealed as Suchitra W/o Rajeev. He called Rajeev who State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 11 of 57 disclosed that after taking dinner in the night he slept with his wife at about 2.30 a.m and he does not know as to how his wife has been burnt and he is having one female issued. With the help of Rajeev they lifted the said lady and took her to Safdarjung Hospital The copy of call register is Ex.PW23/A. Order of DCP for destroying the original register is Ex.PW23/B.
31. PW24 Ct. Devi Raj Sharma has deposed that he was sent to the residence of SDM Sh Manish Garg in Mayur Vihar. He went there and informed him about the incident.
32. PW25 ASI Aadhar Kumar Nayak has deposed that he accompanied SI Dharamapal to Orissa where 43 dowry articles were returned by the inlaws of Suchitra to her parents.
33. PW26 ACP Om Kumar has deposed that he inspected the site and prepared the site plan Ex.PW26/A. He arrested accused Rajeev Lochan Pani vide memo Ex.PW18/A and conducted his personal search vide memo Ex.PW18/b. He further deposed that on 18.10.05 accused Ashok Pani was arrested vide memo Ex.14/F and his personal search was conducted vide memo Ex.PW14/G.He has further State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 12 of 57 deposed that on 26.10.05 SI Dharampal and one Ct. went to Orissa and recovered the dowry articles and handed over the same to the parents of deceased Suchitra. He sent exhibits to CFSL. He collected the post mortem report which is Ex.PW9/A. He collected CFSL result which is Ex.PW26/B. He has stated that summons of witness Sabhi Dutt were handed over to him but he could not serve him and he cannot produce him in the court.
34. I have also perused the defence evidence led by accused persons. DW1 Sanjay Sarkar has deposed that he has been working with the accused since last about 10 years. This witness has not appeared thereafter.
35. DW2 Gorang Shukla has deposed that both the accused are known to him. The marriage of Rajeev was attended by him and there was no demand for dowry in the marriage. Rajeev came to Delhi after 15 days of marriage with his wife. She became pregnant and thereafter Rajiv left her in her parents house. They were bless with one male child and function was organised by Rajiv which was attended by the parents of Suchitra. Rajiv brought back Suchitra to Delhi. After 1013 days he came to know that wife of Rajiv has expired due to her State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 13 of 57 own mistake. The father of deceased is a poor person and doing the job of tailor. Rajiv had purchased a sewing machine and gave the same to his father inlaw to earn his livelihood.
36. DW3 Rajeev Lochan Pani has examined himself as DW3. He has deposed that his marriage was solemnized in the year 2004. there was no demand for dowry in the marriage. Only 20 people went to the brides house. He organized reception at his house. After 14 days he shifted to Delhi. He used to given gift to his inlaws. The cousin of his wife used to meet her sister at his residence twice or thrice a month. After 5 or 6months of marriage his wife felt pain in her abdomen and he took her to Dr. Ravina Tandon, Hauz Khas. He came to know that his wife is pregnant. He took his wife to native village. He came back to Delhi and used to make calls to his wife. In the year 2004 his father in law demanded some money for the admission of his sister in law and also demanding sewing machine. He sent Rs.1500/. He received information that he has been bless with a son. He went to his house and did pooja of Narayan Bhagwan. After four months he brought back his wife to Delhi. On 12.5.05 he went for job and came back at 10 p.m. After taking dinner he slept. Thereafter he does not know what happened. In the night at about 3.30 a.m he was called by State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 14 of 57 the landlady. He woke up and found that the light was switched on of his room and door was open. His landlady disclosed him that his wife is lying in the street in burnt condition. After hearing this he became hopeless and went to the street and found his wife lying there. With the help of police he removed his wife to the hospital. He called his brother Ashok who made call to his in laws house. In the hospital HC Jalbir and SI Sunil came and recorded the statement of his wife in the presence of doctor and nurse and he was asked to go out of the ward. After two and half hour his wife had expired and thereafter he was detained by the police and when his inlaws came to Delhi he alongwith his brother was arrested. His father in law demanded the entire money spent by him on his daughter from her birth till death. He did not make any demand for dowry.
37. In the overall analysis of the testimonies of all the PWS it is revealed that PW2 Ramakant Panda is the complainant and father of deceased, PW5 Babaji accompanied PW2 to Delhi from Orissa, PW6 Pratap Kumar Panda is the cousin brother of Suchitra and PW7 Sarthi Panda is the mother of deceased. These witnesses including PW15 Manish Garg, the then SDM are the main star witnesses of the prosecution. PW2,5,6 & 7 are the near relatives of deceased Suchitra. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 15 of 57 Before discussing their deposition made in the court and to bring the guilt of the accused persons u/s 498A/304B IPC it is necessary to discuss the relevant provisions. Section 304B relates to dowry death. The same was introduced in the Indian Penal Code and it reads as under: Sec.304 B (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 demands for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. For the purpose of this sub section dowry shall have the same meaning as in section 2 of the dowry prohibition Act 1961. 'Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life'.
And if the ingredients of section 304B have been completed then the presumption u/s 113 B in the Indian Evidence Act is required. Section 113 B Presumption as to dowry death when the question whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 16 of 57 demand for dowry, the court shall presume that such person had caused the dowry death.
In a case of dowry death cruelty on part of husband towards his wife by prosecution has to be proved beyond reasonable doubt and section 113 B of Evidence Act does not alter this requirement of stick proof.
Section 498 A IPC reads as under: 'Husband or relatives of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband or a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine'.
There is 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.
38. From the conjoint reading of section 304B of the IPC and Sec. 113B of the Indian Evidence Act it is apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Sec.304B of IPC. The ingredients of the aforementioned provisions are :
1. That the death of the woman caused by any burns or bodily injury or in State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 17 of 57 some circumstances which is not normal;
2. Such death occurs within 7 years from the date of her marriage
3. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband
4. Such cruelty or harassment should be for or in connection with demand of dowry and
5. Such cruelty and harassment was made soon before her death.
39. In the normal circumstances though cruelty at any time after marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged in section 304B is to be seen before the death of a woman and it is the duty of the court to scrutinize the evidence carefully because cases are not rare in which occasionally there is demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of the husband within the short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined within the four walls of the house. However, the courts are to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and her in laws are strained for any reason whatsoever it might be. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 18 of 57
40. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person committing suicide may think that the life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person. Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life.
41. Reverting back to the testimonies of witnesses, firstly I would consider the testimonies of the witnesses adduced by the prosecution who are related to deceased Suchitra@Binny. PW2 Rama Kant Panda is the complainant & father of deceased and he has stated in his testimony that Suchitra Panda was his daughter. She was married to Rajiv Lochan on 13,.05.2004. After one and a half month of marriage his daughter was brought to Delhi. He had talked with his daughter and she told him that her inlaws harass her for dowry. In Dec. 2004 his daughter was pregnant and he came to Delhi and took her to Orissa with him. She delivered a male child at his house. On 8.9.05 his daughter along with his son was brought to Delhi by her Jeth Ashok Pani. Thereafter his daughter informed him on telephone State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 19 of 57 that Ashok Pani and Rajiv Pani are torturing her for dowry. On 13.10.05 police informed him about burn injuries sustained by his daughter. His cousin brother Manas informed him that Suchitra has died. He alongwith Babaji reached Delhi on 15.10.2005. Police met him and took him to SDM who recorded the statement Ex.PW2/A. Thereafter post mortem was conducted and dead body was handed over to him. He identified the dead body of his daughter vide statement Ex.PW2/B and he received the dead body vide receipt Ex.PW2/C. In cross examination he has stated that the marriage between Rajiv and Suchitra was arranged marriage. The distance between his village and village of Rajiv is about one and half km. He cannot recall the name of the mediator who helped in arranging the marriage. He is having a tailoring shop. He earn approx Rs.45 thousand at the time of marriage of his daughter and presently earning Rs.56 thousand p.m. He has four daughters. Apart from Suchitra he has not married any other daughter. His daughter was never seriously ill before marriage. He was spending about Rs.56 thousand p.a. On the study of his daughter Suchitra and for the studies of remaining children he was spending around Rs.200/ p.m per child. He used to save Rs.2000/ p.m.He has Rs.80,000/ in cash and other articles in State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 20 of 57 dowry at the time of marriage of his daughter. He spent Rs.10,000/ on the food of baraties. He cannot tell after how many days of marriage of Suchitra he went to her matrimonial home but he had gone to meet her. He stayed at the matrimonial home of Suchitra for about one or one and a half hour. No demand was made by the father of Rajiv Lochan at the time of his visit. He used to talk to Suchitra on the mobile of Rajiv. Jethani of Suchitra was also living with her. Suchitra told him that her inlaws want money. Suchitra has not specified any amount demanded by the accused. He never asked Suchitra as to how much money the accused persons want. He has never made complaint to the police about demand of money. His daughter told him that her in laws residing in Delhi demanded money but she has not given the names particularly. He never thought to make complaint or to talk with the father of accused. He gave necklace, ear rings, bangles and ring in dowry to his daughter at the time of marriage. Suchitra called him to take her back to save her and that is why he took her back. He refused to send Suchitra with her jeth but she came of her own. He denied the suggestion that he demanded money through Babaji from the family members of accused Rajiv. His daughter was having good health when he took her to his village from Delhi. He remained in Delhi for 25 days when he came to take Suchitra. He never talked with State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 21 of 57 any of the accused regarding ill treatment given to Suchitra. Suchitra had not told him any particular incident of beating.
42. PW6 Pratap Kumar Panda is the cousin brother of deceased Suchitra and he has deposed that his uncle had given dowry to accused as per his ability. After one and half month of marriage Rajiv brought Suchitra to Delhi. Suchitra informed them that she was being harassed by the accused and his family. His uncle came to Delhi in Dec. 2004 and took back Suchitra. When his sister came to village she informed that she was being harassed and tortured by her husband and jeth Ashok for not bringing sufficient dowry. She gave birth to a boy in the village and after about one and half month after birth she came back to Delhi with her husband. After coming to Delhi she telephoned that she was being harassed by her husband and jeth for not bringing more dowry. On 13.10.05 his uncle informed him that he has received call that his sister had burnt. He came to Delhi with his uncle and went to the hospital. He is confident that accused Rajiv Lochan Pani and Ashok Pani are responsible for the death of his sister. In cross examination he has stated that his uncle Rama Kant is having a tailoring shop. He has four daughters. There are 6 rooms in the house State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 22 of 57 where they are living. All the daughters of Rama Kant are studying. His sister used to make calls in neighbouring house at telephone no. 06728230369 as there was no telephone at their home. He denied that mother of deceased also accompanied his uncle to Delhi in Dec. 2004. He never made a call to Suchitra. He had never seen Rama Kant Panda making call to Suchitra but he heard Rama Kant Panda talking with Suchitra many times. He has not seen any other family member of Rama Kant Panda making call to Suchitra. He has heard the conversation when he used to be present there sometimes in the house of neighbour. There was no fixed time of call received by Rama Kant. Accused demanded money but he does not know the amount demanded by accused. He never made complaint to police in this respect. Rama Kant returned back to village with Suchitra in Dec. 2004. Suchitra remained in the village for about 3 months. He was not present in the function organized at their house after 21 days of birth of child. He does not know whether powdered milk was given to child while Suchitra was living with them in the village. He does not know whether Rama Kant Panda had shown a safari suit, wrist watch and clothes for other family members and told his family members that it was gifted by Rajiv Lochan Pani. He had no knowledge that Rajiv Lochan Pani had sent a money order of Rs.1500/ for all the sisters of State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 23 of 57 Suchitra.
43. PW3 Sarathi Panda is the mother of deceased and she has stated that she had given Rs.80,000/ in cash and household articles in the marriage. One gold chain and two gold rings were given to accused Rajiv at the time of marriage. One chain, one necklace, two rings, two earrings and a bajuband was given to Suchitra. After marriage accused took Suchitra to Delhi. Before the delivery of child Suchitra made telephone call to her father who came to Delhi and took her to village. After the delivery Ashok Pani came to their house and took Suchitra and her son to Delhi. After coming to Delhi in the month after Durga Puja on 9th and 10th Suchitra made a telephone call and she asked to come to Delhi soon and take her back to village and she was weeping while making the telephone call. When her husband enquired from Suchitra what is the matter, she told him that first take her back as she is not feeling comfortable. Her husband told that he after arranging money he will come within 15 days and take her back. After two days thereof they were informed that she has been murdered. She has been declared hostile and in the cross examination conducted by the Ld. APP she has stated that she told the police that after marriage accused person started demanding washing machine, money and other articles and harassed her. Accused also gave her beatings to compel State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 24 of 57 her to bring more articles. In cross examination she has stated that she had told police that Rs.80,000/ and other household articles were given to his daughter at the time of marriage. She has been confronted with her statement Ex.PW7/DA in this respect. She has also been confronted regarding other articles mentioned in her statement. She has also made improvement that on 9th and 10th of the month Suchitra made telephone call and asked her father to come to Delhi and take her back to village. Rs.80,000/ was taken as loan for giving in the marriage. Jewellery articles were purchased from the market. Loan was taken for purchasing the jewellery. No function or ceremony was performed before the marriage. She cannot say how many persons attended the marriage. Suchitra stayed at their house for 1012 days and left for Delhi.At the time of first visit his daughter did not complaint about the demand of dowry by the accused persons and his family members. Mother in law of deceased also accompanied her husband to Delhi. She admitted that while returning from Delhi Suchitra first went to her matrimonial home i.e. village of Rajiv and then came to their village. She admitted that Narayan Pooja was performed in the house of Rajiv Lochan after 21 days of birth of child. She admitted that Rajiv gifted a wrist watch to her second daughter and cloths for other daughters. She admitted that Rajiv sent Rs.1500/ State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 25 of 57 to her daughters on the occasion of Rakhi. Mother in law of Suchitra asked her husband to bring the girl to village as the delivery is to take place in the village. The telephone was received at the house of her Nanad. Her husband attended that call. She does not know whether her husband is having a bank account. She admitted that powdered milk used to be given to the child after 2/4 months.
44. PW5 Babaji Charan Behra has deposed that Ramakant Panda fulfilled all the deamds of accused and given Rs.80,000/, ornaments, furniture, utensils etc. After marriage Ramakant told him that his son in law Rajiv has taken his daughter to Delhi and he had demanded some more dowry and tortured Suchitra. Rama Kant came to Delhi and matter was amicably settled. Ramakant took his daughter to village. Thereafter his son in law came to village and brought Suchitra and his son to Delhi.Accused again tortured her and demanded dowry. On 13.10.05 they were informed about the death of Suchitra. He accompanied Rama Kant Panda to Delhi. In cross examination he has denied that his eldest son had illicit relations with Suchitra and that was the reason he did not participate in the marriage of Suchitra. He was present at the time of handing over the dowry amount of Rs. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 26 of 57 80,000/. There were so many persons when money was handed over. He has never informed regarding the ill treatment being given to Suchitra. Rama Kant Panda visited her daughter Suchitra after 23 months of marriage. Rama Kant Panda is having a very sound financial position. Suchitra was afraid when she came to village. Suchitra had not given any particular amount demanded by the accused persons. He has not discussed the issued of demand of dowry with any person of the village. Rama Kant stayed two or three days when he came to Delhi. Ramakant Panda could not fulfill the further demands of accused as his financial position was not good. Suchitra used to tell her father on telephone that she is being ill treated prior to Dec. 2004.
45. Pw15 Sh Manish Garg, Dy. Commissioner Trade and Taxes, the then SDM, Hauz Khas had recorded the statement of complainant PW2 Rama Kant Panda which is Ex.PW2/A and issued directions to SHO Ex.PW15/A to take action on the basis of which the present case was registered. I have also perused the said statement Ex.PW2/F of complainant Rama Kant Panda and it is necessary to reproduce the same.
State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 27 of 57 Statement of Sh. Ramakant Panda s/o Late Sh. Rajkishore Panda r/o village Belpal Kalyanpur PS Binjharpur, District Zajpur, Orissa.
'Vyan kiya ki maine apni ladki Suchitra Panda ki shadi dinak 13.5.2004 ko Sh Rajiv Lochan Pani s/o Sh. Madan Mohan Pani r/o Godisai PS Binjharpur, District Zajpur, Orissa ke sath Hindu Riti Riwaz ke anusar ki thi. Shadi ke ek dedh mahine baad mera damad meri ladki ko Delhi le aya tha. Shadi ke baad meri ladki ne kai baar mujhe bataya ki uski sasuraj wale use dahez ke liye pareshan karte hai. December 2004 ko meri ladki garbh se thi. Jise mai apne saath Orissa le gaya, uski delivery bhi wahi par hui thi. Usne ek puter ko janam diya jiska naam Sriram rakha gaya. Dinak 8.9.05 ko meri beti (suchitra) wapas apne pati ke paas Delhi aa gayi. Dinak 13.10.2005 ko karib 8.00 baje Police dwara (Sh Sunil Kumar SI) thana Malviya nagar hame suchna mili ki meri beti jal gaye jise safdarjung Hospital me bharti kraya gaya hai. Uske kuch der baag hamare rishtedar (Manas) ne hame suchna di ko meri beti (Suchitra) ki maut ho gaye hai. Dinak 15.10.05 ko subha hum log Suchitra ki maut ki khabar sunkar Delhi apne bhai ke yahan pahunche. Hum logon ko pura shak hai ki Suchitra ko uske sasural walo ne dahez ki maang puri na hone ke karan jala kar maar diya hai. Atah hamari aapse haath jodkar binti hai ki Suchitra ke sasural walon ke virudh sakht se sakht karyawahi karke hume nyay dilaya jaye.
sd/ Rama Kant Panda
46. Taking into consideration the deposition made in the court and above statement of PW2 Rama Kant Panda, it is revealed that PW2 has made allegations that accused persons used to harass his daughter State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 28 of 57 for demand of more dowry. But he has not stated as to what the accused persons were demanding. No specific date has been mentioned by him in his statement for alleged demand. No article or amount of money has been mentioned by him in his statement recorded before the court. Even in the statement recorded by the SDM he has not alleged any specific demand made by the accused persons. No complaint has been lodged or exhibited on record regarding demand of more dowry by the accused persons. It has come in the evidence of PW2 that he brought his daughter to his house in Orissa from Delhi when she was pregnant. When PW2 was experiencing such a treatment in the hands of accused persons for demand of more dowry, he should have allowed his daughter to go only after the intervention of respectables of the family and friends. But no such evidence has been adduced. PW2 has even not stated as to what dowry he has given in the marriage. He has not stated as to when Suchitra informed him about the maltreatment after she came back to Delhi from his house. Pw5 Babaji Charan Behra has stated that Rama Kant Panda has fulfilled all the demands of accused and given Rs.80,000/, furniture, utensils, boxes etc. in the marriage. The above cash and items alleged by PW5 cannot be treated as demand since given at the time of marriage by PW2 with his own free will. Further in cross State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 29 of 57 examination PW5 first has stated that the financial position of Ramakant Panda was good and thereafter stated that the financial position of Rama Kant Panda was not good. So, he has given different version regarding the financial position of PW2. Further PW7 Sarthi Panda who is the mother of deceased has stated that Rs.80,000/ as well as other articles were given in dowry after taking loan. It has come in evidence that marriage was solemnized within 24 days after engagement. Nothing has been deposed by PW2 Rama Kant Panda regarding taking loan for giving dowry articles. No witness has been examined by the prosecution from where the loan has been taken by PW2. So, this version of PW5 create doubt in the case of the prosecution. PW5 has further stated that Rama Kant told him that his son Rajiv is demanding some more dowry and torture his daughter. This version of PW5 is hearsay since it was not told by deceased Suchitra to her father in his presence. He has stated whatever PW2 has stated to him. PW5 has further stated that Ramakant Panda came to Delhi and the matter was amicably settled. PW2 Ramakant has not corroborated this version of PW5 that he ever came to Delhi for amicable settlement of the matter. PW6 Pratap Kumar Panda who is the cousin brother of deceased Suchitra has stated that his uncle has given the dowry articles as per his ability. He has not corroborated the State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 30 of 57 version of PW5 regarding giving of Rs.80,000/ or other articles while he is the near relative of deceased and PW5 is the villagers. PW6 has further stated that Suchitra informed them that she was being harassed by the accused persons for not bringing sufficient dowry. He has never mentioned that deceased Suchitra has ever told him about the harassment and torture alleged by him in his statement. PW6 has also not specified any article demanded by the accused persons. He has further stated that after birth of child his sister came to Delhi with her husband. As per the testimony of PW2, he has alleged that Suchitra came to Delhi with her brother in law/Jeth Ashok Pani. He accompanied his uncle PW2 to Delhi after the information about death of Suchitra was received. PW7 Sarathi Panda is the mother of deceased Suchitra and she has made allegation that she had given Rs. 80,000/ in cash and other household articles and jewellery articles in marriage. This version of PW7 has been improved by her in her statement. However, it was given at the time of marriage by their own free will. This cannot be deemed to be as demand for dowry. She has further stated Suchitra telephoned her father to take her to village. Ashok took her daughter to Delhi. After coming to Delhi on 9th and 10th Suchitra made telephone call and asked to come to Delhi soon and take her back to village and she was weeping while making telephone State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 31 of 57 call and her husband inquired from Suchitra what is the matter, she told to first take her back as she is not feeling comfortable. First of all this statement made by her, has been improved by her. Secondly, no reason for bringing her back to Orissa has been explained by PW7. It has come in the evidence that she was not feeling comfortable. It cannot be treated as demand for dowry. Thirdly, PW2 who had allegedly received such call has not corroborated the version of PW7. So, this version of PW7 seems to be false. PW7 has been declared hostile by the prosecution and cross examined by the Ld. APP for the state wherein she has stated that she made statement before the police. She told the police that after marriage accused persons started demanding washing machine, money and other articles and harassed her. Accused persons also gave her beating to compel her to bring more articles. PW7 has made these allegation after she was declared hostile. Further these allegations has not been corroborated by PW2 Rama Kant Panda who is the father of deceased as well as PW6 Pratap Panda who is the cousin brother. The date for such demands has also not been mentioned by PW7. I have also perused the cross examination of these witnesses carefully. It has come in cross examination that PW2 Rama Kant was having tailor shop and as per his own admission he used to earn Rs.4,000/ to Rs.5000/ p.m. He has State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 32 of 57 four other school going younger daughters. PW2 in cross examination has admitted that when he visited at the house of Suchitra no demand of dowry was made. So, if such demand exits, it would have been told to him at the time of his visit. PW2 usually talked to his daughter in this case. He has further stated that Suchitra used to talk to him from the mobile phone of Rajiv and told that her in laws want money. He has not specified how many was demanded. He even never asked how much money accused want. He has further stated that when Ashok came to take his daughter back after birth of child, he refused to send her but she came to Delhi on her own. So, Suchitra had come back to Delhi despite refusal of PW2. From this statement it is crystal clear that despite refusal of PW2 who is her father, deceased Suchitra had come to Delhi at the place where she was residing with her husband. This further makes clear that she was living happily with her husband as she had come to Delhi despite refusal of her father. If any demand or maltreatment meted out to her, she would not have come to Delhi. This makes emphatically clear that there was no demand of dowry from the side of accused persons. PW1 has admitted that he remained Delhi for 25 days before he came back to Orissa with his daughter while PW5 Babaji Charan has stated that he came back after 23 days. He never talked with anyone regarding maltreatment. PW6 Pratap has State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 33 of 57 stated that his sister used to make call at the house of their neighbourer. It has been admitted that there was no phone installed at the house of PW2. The telephone on which the telephone calls were made has been disclosed as 06728230369. As per evidence the phone calls were made from the mobile of accused Rajiv Lochan Pani. But no call records have been proved on record. Further the neighbourer at whose house the said telephone was installed has not been examined by the prosecution to establish that this telephone connection was installed there and PW2 and PW7 used to received call at this number. The said neighbourer would have been the best witness to prove that deceased used to make calls at his/her telephone number. PW6 has further stated that he never made call to Suchitra. It is not understandable as to how he came to know about harassment if he had not made any call. He never disclosed that Suchitra (deceased) had ever disclosed to him about harassment. He has further stated that he had not seen any other member of the family making call to Suchitra. He has further stated that Ramakant returned back to village in the year Dec.2004 while Pw2 has stated that he returned in Jan.2005. On perusal of the cross examination of PW7 Sarathi Panda it is revealed that most of her statement has come under improvement. She has stated that Rs.80,000/ as well as jewellery were given after taking State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 34 of 57 loan. The prosecution has not led any evidence to prove as to from where the said loan has been taken. The income of PW2 as per his own admission is Rs.4000/ to Rs.5000/ and he could save Rs.2000/ p.m. So, even given Rs.80,000/ and other articles seems to be doubtful. PW7 has further stated in cross examination that mother in law of deceased also accompanied her husband to Delhi Brother in law of Suchitra also accompanied her to their village. She admitted that while returning from Delhi Suchitra first went to her matrimonial home i.e. village of Rajiv Lochan and then came to their house. She admitted that Narayan Pooja was performed in the house of Rajiv Lochan after 21 days of birth of child. Her husband, jeth and son of her jeth attended the pooja. However, PW2 and PW5 have not admitted this version of PW7. PW7 has also admitted that Rajiv Lochan has gifted writs watch to his second daughter and clothes to other family and also sent Rs.1500/ to his daughters. So, in view of the discussion of above deposition made by the near relatives of deceased, PW5 has deposed on hearsay basis. His testimony is not reliable. PW2 &6 have not deposed as to what articles or how much cash was demanded by the accused persons. So, their testimonies also do not reveal any demand for dowry of particular articles. Pw7 Sarathi Panda who is the mother of deceased has improved her entire State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 35 of 57 statement and allegations made by her have come under improvement. Further her testimony regarding allegations has not been corroborated by her husband PW2 and PW6 Pratap. So, her testimony is also not reliable and trustworthy. PW7 has made glaring improvements in her testimony. They have not levelled any allegations for beating etc. by the accused persons. All the PWS have made contradictory statements which create doubt in the case of the prosecution. In view of the deposition of star witnesses of the prosecution, I have also considered some case law and would like to mention the same for just decision of the case. In case law Sunil Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note: 'Section 304B It is pleaded that last letter of deceased did not mention any allegation of dowry demand - The letter of deceased does not speak of any demand of dowry and there is totally absence of demand of dowry and so sec.498A of IPC is not at all attracted - Thus the necessary ingredients of the offence of sec.304B of IPC is absent and so the conviction and sentence of the appellant cannot sustain and so the appellant is acquitted of the conviction u/s 304B IPC. It is further stated that : Both the courts below concurrently committed the appellant - But out of so many witnesses of the neighbour none could say that there was a dowry death and the deceased was soon before her death was subjected to demand of dowry which was necessary ingredient of the offence u/s 498A of IPC committed by the husband or by any of the family members or near relatives'.
State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 36 of 57 In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC 627 it is stated in headnote that :
'Evidence Act. 1872 - Sec.113B Presumption Dowry death - Against accused persons to be drawn provided the prosecution establishes that soon before her death if the woman was subjected to cruelty or harassment within 7 years of marriage'.
'Dowry death - Onus of proof Preliminary facts - Proof of - Onus lies upon the prosecution - High Court erroneously shifted the burden upon the accused - About the date of marriage - Prosecution is required to prove that death occurred within 7 days of marriage - PW4 father of the deceased was not creditworthy - So were other related PW5 - Prosecution failed to discharge its initial onus of proof - PW5/ the mother stated that the deceased was depressed - This indicated that woman committed suicide in a state of depression - Hence conviction is set aside and appeal is allowed'.
In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC 1840 it is stated in head note that :
'Sec. 304B - Evidence Act, 1872 - Sec. 113B - Dowry Death - No incidence of demand of dowry or cruelty or harassment 'soon before death' - Letter relied on shows demand of articles by her parents by her own and not on the behalf of appellant - Improvements in the statements of prosecution witnesses - Prosecution squarely failed to establish accusations against appellant - Appeal allowed - Conviction set aside'.
In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is stated in head note that :
'Sec. 304B - Dowry death - soon before the death, deceased was subjected to cruelty or harassment by her husband for or in State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 37 of 57 connection with demand of dowry - Once this is established, a legal fiction is created under section 304B IPC whereby such death would be called dowry death - On facts held, ingredients of Sec.304B IPC r/ sec. 113 B Evidnce Act not satisfied'.
In case law Appasaheb & Anr Vs. State of Maharashtra, 2008(1) Crimes 110(SC) it is stated in head note that :
'Sec.304B - Dowry death appellant convict under - Deceased died as a result of insecticide poisoning - Evidence of mother and father of deceased that when deceased visited her parents she used to narrate all treatment and beating for bringing money from her parents - Conviction by Trial court and upheld in appeal by High Court - Appeal - Both witnesses deposed that deceased was receiving ill treatment as a result of "domestic cause" as regards domestic cause they explained that there was a demand for money to meet expenses for mature and other domestic expenses - Evidence did not show that any demand for dowry was made - Essential ingredient of dowry death i.e. demand for dowry was not established - Conviction could not be sustained.
One Important point has been stated that :
'A demand for money on account of some financial stringency or for meeting some urgent domestic expenses cannot be termed as demand for dowry and conviction for dowry death on such demand could not be sustained'.
In case law Bhaskar Ramappa Madar & ors. Vs. State of Karnataka, 2009 (3) JCC 1622 it is stated in head note that :
'Sec.498A Demand of dowry - The facts that husband of deceased owned a truck which need heavy repairs - The amount given for the purpose does not amount to demand of State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 38 of 57 dowry'.
In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is stated in head note that: 'One of the essential ingredients amongst others, is that the woman must have been 'soon before her death' subjected to cruelty or harassment for, or in connection with the demand for dowry - Nothing on record to show that any demand of dowry was made soon before her death The cause of action appears to be an ego problem on the part of the appellant, namely the deceased had not been coming to her matrimonial home - Conviction u/s 304B not proved'.
'Cruelty or harassment - When the name of the appellant/husband and his parents were material in the FIR - It is clear that all of them had been ill treating deceased for non bringing of sufficient dowry and not bearing a child Not correct to contend that FIR does not contain any statement of cruelty or harassment of the deceased especially when death occurred within 7 years of marriage and dead body was found in matrimonial home'.
It is stated in case Arvind Singh Vs. State of Bihar, 2001(1) JCC (SC 341 that: 'Sec.302, 304B and 498A - deceased wife died of burn injuries
- No independent and reliable witness - prosecution case based on evidence of interest witnesses and members of the family of deceased and also on the basis of dying declaration made to the mother of deceased. Deceased remained at the house and could not be admitted to hospital - parents of deceased informed - Oral dying declaration made at home and not in presence of any doctor or any other independent witness - Courts below acquitting other family members of the appellant/husband -
State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 39 of 57 Dying declaration not tained on basis of such dying declaration
- No clearcut evidence of dowry demand on record no doctor's evidence - Benefit of doubt extended to appellant'.
It is stated in case Sabar Bhatti & Ors. Vs. State, 2009(v) AD (Cr) (DHC) 209 that : 'Improvements of material nature in depositions of parents of M - No Particulars of dates when dowry demands made and amounts paid, given - Conviction of Z, Mother in law, and S u/s 498A, set aside'.
In case law Jai Ram Vs. State of Rajasthan, 1995(1) Crimes 611 it is stated in head note:
'Sec.304B & 498A - Deceased, Wife of appellant, was married to appellant two and half year prior to incident - cause of death as per post mortem was asphyxia due to organo phosphorus poisoning - Evidence of father of deceased that deceased used to complain that her in laws maltreated and harassed her and taunted for insufficient dowry - Significant omission in FIR and statement before police regarding demand of motor cycle by appellant - Evidence regarding cruelty and maltreatment, quite vague, inconsistent and untrustworthy - Independent two witnesses, neighbours not produced - Coaccused acquitted by trial court on same evidence - Conviction of appellant is unsustainable'.
In case Law Kalyan & Ors. Vs. State of UP, 2001(2) JCC (SC) 203 it is stated in head note that :
'Appreciation of evidence Incident stated in FIR, being the first version of the occurrence has to be given due weightage - The case of the prosecution, as sought to be proved at the trial, appears to be different than the one as narrated in the FIR -
State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 40 of 57 view taken by trial court in acquitting the appellants herein is justified'.
'Prosecution setting out a new case in evidence, which is in contradiction to the version stated in FIR - Witnesses are partisan witnesses and also inimical towards one accused - Conflict in oral evidence as against medical evidence Was High Court right in disturbing the order of acquittal - Held (NO)'.
In case law Babita Vs. State, 2009(2) JCC 1247 it is stated in head note that :
'Sec.304B and 498A no specific demand have been made except the demand of Rs.1,50,000/ which according to the father of deceased was made at the time of marriage - Cannot make out a case of harassment soon before the death - No dying declaration of deceased was recorded - Not a single instance of harassment by petitioner who is sister in law of deceased soon before her death - No basis to frame charge against petition'.
In case law titled Basavaraja and Ors. Vs. State of Karnataka, (2008) 9 Supreme Court Cases 329 it is stated in headnote that :
Criminal Trial - Charge - Appellant charged for causing death by setting deceased on fire after pouring kerosene oil on her - Such charge framed despite medical evidence that death was due to smothering and burns on deceased's persons were post mortem - while examining accused persons u/s 313 Cr.PC, two questions put to them which supported their defence rather requiring them to explain circumstances appearing in evidence against them - such casual approach in framing State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 41 of 57 charge and questioning the accused u/s 313, deprecated - conviction set aside.
In case Law Durga Prasad & Anr Vs. State of M.P, 2010 (3) JCC 1852 it is stated in head note that: 'Sec.304B, 498A - Evidence Act, 1872 - Sec. 113B Dowry Death - Except for certain bold statements, there is no evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death - Appellant entitled to benefit of doubt'.
'Sec. 304B - Dowry death In order to hold an accused guilty of an offence of dowry death - it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of marriage - It has also to be shown that soon before her death she was subjected to cruelty and harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry'.
'Sec. 304B - In order to bring home a conviction u/s 304B, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim - But that such treatment was in connection with the demand for dowry'.
47. Ld. APP for the state has relied upon case law titled Teyab Khan & Ors. Vs. State of Bihar, 2006 Crl. L.J. 544 (SC) it is stated in head note that : State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 42 of 57 'mere absence of viscera report showing as to whether death occurred on account of consumption of poison - does not make any difference to fate the case - Fact remains that it is a case of unnatural death - evidence of witnesses showing that deceased was being constantly harassed for demands on account of dowry - Conviction of appellant accused and co accused u/s 304B proper'.
In case law Kamesh Panjiyar Vs. State of Bihar, 2005 CRI. L.J. 1418 in which it is stated that : 'No evidence showing that death of deceased was due to normal circumstances - Nor any material shown to explain injuries on neck of deceased in order to prove that death was normal - Plea of accused that possible cause of death was not ascertainable as per opinion of doctor - Not tenable - Evidence of witnesses established demand of dowry and ill treatment of deceased shortly before date of occurrence - Offence of dowry death made out - conviction of accused u/s 304B, proper'.
In case law titled Satbir Singh & Ors. Vs. State of Haryana 2005 CRI L.J. 4137 it is stated that :
'Evidence showing deceased was harassed for not bringing more dowry - Ingredient of sec. 304B established by prosecution - Onus lies on accused to rebut presumption u/s 113B of Evidence Act - Defence plea that deceased died of heart attack - not tenable in absence of any evidence showing that deceased was suffering from heart ailment - Conviction of accused persons, proper'.
State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 43 of 57 In case titled Ram Narain & Ors. Vs. State of Rajasthan, 2010 (CRI L.J (NOC) 517 (RAJ) it is stated that : 'Dowry death and cruelty - Proof - Allegations that accused husband and in laws harassed deceased for demand of dowry and she was done to death as the lust was not satisfied - deceased died in suspicious condition at her in laws house - No cogent explanation by accused husband as to how the crime was committed in view of sec. 106 of Evidence Act - Accused husband held guilty for offence u/s 304 B and 498A and sec.4 of Dowry Prohibition Act - Other accused persons are given benefit of doubt for charge of Sec. 304B'.
48. Considering the above discussion & case laws, to prove the case u/s 304B IPC these ingredients have to be proved (i) unnatural death (ii) within 7 years of marriage and (iii) soon before death she was subjected to cruelty or harassment by her husband or relative of her husband (iv) such cruelty must be in connection with demand of dowry (v) such cruelty is shown to have been meted to the woman soon before her death. In this case the death occurred due to burn injuries. The MLC is Ex.PW16/A showing 90% deep thermal burns. The death of deceased Suchitra took place within 7 years of marriage and it was unnatural death. So, two ingredients has been proved by the prosecution. Now it is necessary to find out as to whether the deceased was being harassed soon before her death by subjecting her to cruelty State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 44 of 57 and demand of dowry. In this case PW2 Ramakant Panda, PW5 Babaji Charan and PW6 Pratap are silent on this aspect. They have not deposed that they had receive any call from Suchitra soon before her death alleging demand for dowry. PW7 Sarathi Panda who is the mother of deceased has stated that on 9th or 10th Suchitra made a telephone call and she asked to come to Delhi soon and take her back to village and she was weeping while making the telephone call. When her husband inquired from Suchitra what is the matter, she told him that first take her back as she is not feeling comfortable. So, even by this statement made by PW7, no allegation for harassment on account of demand of dowry has been alleged. PW2 has also improved her statement in this respect. Further PW2 who is the father and allegedly attended the said call as well as PW6 Pratap have not corroborated this version of PW7. PW1 Rameshwari who is the owner of tenanted premises of accused Rajiv has stated that she had never heard any quarrel between Rajiv and his wife. She had not heard any quarrel on that day. Considering the statement recorded by the SDM there is also no such allegation made by PW2 before the SDM. So, the version of PW7 seems to be false. So, there is no evidence for harassment on account of demand of dowry soon before death in this case. In my view there is no evidence available on file in this case that deceased State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 45 of 57 Suchitra was subjected to cruelty or harassment on account of demand of dowry soon before her death. There is no indication that there was any cruelty or harassment meted out soon before the death of Suchitra. The proximate and live link between the demand and harassment on the one side and the death on the other, is not, made out.
49. I have also perused the testimonies of other official witnesses. PW11 HC Jitender Singh, PW21 SI Dharampal and PW25 Adhar Kumar Nayak had gone to Zajpur, Orissa where the dowry articles were handed over to the parents of deceased from the house of accused Rajiv Lochan Pani. PW4 Smt.Manorama has witnessed regarding handing over of dowry articles. PW24 Ct. Dev Raj is the special messenger who was sent to the house of SDM. PW23 ASI Suraj Bhan removed deceased Suchitra to hospital. PW18 Ct. Jagat Nagar is the witness of arrest of accused Rajiv Lochan Pani, PW17 HC BD Srinivasan guarded the dead body in the hospital, PW3 HC Suresh is the FIR recorder and these are the formal witnesses in this case. PW10 Ct.Dinesh is the witness from crime team who took the photographs and PW22 SI Naveen Kumar has inspected the scene of crime and prepared report which is Ex.PW22/A. State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 46 of 57
50. PW13 HC Jalbir Singh reached at the spot first time after receipt of DD no.23 where he came to know burnt lady has been removed to hospital. He went to hospital. PW14 SI Sunil also reached there. PW12 Ct. Inder Lal has also reached there at the spot. PW13 has stated that he moved an application to doctor attending upon victim in this case. His request is Ex.PW13/B. PW13 & 14 have stated that they made effort to contact the SDM, but he was not connectable. So, special messenger was sent. PW14 SI Sunil Kumar has stated that he himself recorded the statement of injured which is Ex.PW14/A. I have also perused the said statement recorded by PW14 SI Sunil Kumar. The same is reproduced hereunder:
Statement of Suchitra @ Bini w/o Rajiv Lochan r/o 502 Chirag Delhi, Ist floor, New Delhi age 21 years.
'Vyan kiya ki mai pata uprokt par apne pati va uske bhai Ashok ke saath rehti hu. Meri Shadi karib dedh saal pehle hui thi va mera ek saal ka bacha bhi hai. Mai yahan chiraj Delhi mai apne pati ke saath pichle karib ek mahine se reh rahi hu. Mai apni sasural me sukh chain se reh rahi thi va mujhe kisi prakar ki koi takliph nahin thi. Aaj raat ko mera bacha rone laga toh mai usko pani pilane ke liye uthi aur kitchen mai gai. Main kitchen mai jakar machis dhundkar tilli jalai jo achanak tilli mere haath se chhutkar niche gir gai va us tilli se meri pehni hui sadi ne aag pakad li aur mai phir ghar se bahar ki taraf niche bhagi lekin wahan niche meri madad ke liye koi nahi tha. Mai chillai bhi thi. Uske baad police bhi aa gai. Mujhe hospital lekher aa gayi thi. Mai State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 47 of 57 mere dwara jalai gai tilli se niche girne ke karan meri pehni hui saadi me aag lagne se jalkar ghayal hui hu. Isme kisi ka koi dosh nahi hai. Mai kisi ke khilaph koi kanuni karyawahi nahi chahati hu. Vyan sun liya theek hai.
RTI(Suchitra)
51. This statement was recorded by PW14 SI Sunil in presence of PW13 HC Jaldhari. This statement was made by deceased Suchitra in the hospital. As per this statement she has stated that she sustained burn injuries only because of her mistake and it should not be attributed to anyone. Suchitra died after making this statement. In case Law Laxman Vs. State of Maharasthra, SC/0707/2002 it was observed that : 'There is no requirement of law that dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specific statutory form for such recording. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.'
52. In this case, the IO had moved an application before the doctor for recording the statement. The application is Ex.PW13/B. Suchitra was declared fit for statement by the Dr. S.S.Mirol, SR(B&P) on 13.10.05 at 5.30 a.m. So, this present statement Ex.PW14/A recorded by SI Sunil can be treated as her dying declaration. On her dying declaration even the thumb impression (RTI) of deceased has State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 48 of 57 also been affixed. This is clear from the cross examination of PW9 Dr. Chanderkant who conducted the post mortem as he has stated that there was ink impression on the pulp of right thumb at the time of post mortem. PW14 SI Sunil has stated that while he was going out from the room she (deceased) told him further that she wants to say something but she will tell the same only after arrival of her parents as she was appearing perplexed and was looking towards her husband. After that Suchitra expired. It has not been revealed to anyone as to what she wanted to say except the statement recorded by SI Sunil. It is well settled law that the person on the death bed does not speak lie. Considering the dying declaration of deceased Suchitra, she has not made any allegation against the accused persons or her inlaws. So, the statement of deceased itself falsify the case of the prosecution.
53. It has come in the cross examination of PW13 HC Jalbir Singh that statement Ex.Pw14/A remained in the custody of SI Sunil so, he did not inform anyone. He told SDM regarding the statement but SDM told that he will enquire on his own. Insp. Om Kumar did not ask him regarding the statement of burnt lady. When he reached in the kitchen he found some burnt match sticks lying under the gas stove. He did not seize those match sticks. Due to burn injuries lady was State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 49 of 57 perplexed and SI Sunil recorded whatever she had disclosed. PW14 has stated that doctor was busy in treatment of patients. When SDM reached, Suchitra had already expired. SDM had gone through the statement recorded by him. PW26 ACP Om Kumar, the then Addl.SHO Posted in PS Malviya Nagar has stated that HC Jalbir did not disclose him anything about this case. HC Jalbir did not disclose him that deceased has already given her statement before she had died. HC Jalbir disclosed him regarding the fact of DX1 on Ex.PW26/A. I have also perused the said point DX1. It has been mentioned at point (4) that 'Point D is the place where the kitchen is situated in the house and where the the lighted match stick had fallen and the saree of deceased caught fire.' HC Jalbir might have come to know about this fact from the locality and then he must have mentioned the same to ACP Om Kumar. Further PW26 has stated in cross examination that he did not receive the entire file from SI Sunil till 26.10.05 and same was received by him after 16.11.05. As per record and even as per admission of PW26 the further investigation was entrusted to him on 15.10.05. If the file was handed over to him after 16.11.05, it is not understandable as to how he conducted the investigation between 15.10.05 to 16.11.05. This version of PW26 create doubt in the case of the prosecution because PW26 had filed the challan on 29.11.05 State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 50 of 57 while he has stated that the file was handed over to him after 16.11.05. It seems that he had only filed the challan in this case. Pw26 has further stated after going through the file that no such statement is available on file nor he has mentioned the same in his case diary. He has further stated after going through the file that it has been mentioned in the charge sheet that HC Jalbir had moved an application for recording the statement of the deceased and the said application is available one file which is Ex.PW13/B. Further he has stated that no statement was ever given to him by the deceased and he does not know whether deceased has given her statement to SI Sunil or not. He has further stated that the statement of deceased Suchitra is Ex.PW14/A on file. He might have come to know regarding this statement when he received the post mortem report because he has not checked the entire documents received by him with the post mortem report. He did not file these documents with the charge sheet i.e. Ex.PW13/B and Ex.Pw14/A. These documents could not be filed by him with the charge sheet due to inadvertently but same were in his knowledge after receiving the post mortem report. From the above version of PW26 ACP Om Kumar it is crystal clear that he was well aware about the statement of deceased and he had tried to hide the truth by not filing the same with the charge sheet. He even admitted State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 51 of 57 that Ex.PW14/B and Ex.PW14/A were in the knowledge of SHO.
54. PW9 Dr. Chanderkant has conducted the post mortem on the dead body of Suchitra @ Binni. The post mortem report is Ex.PW9/A. As per post mortem report no smell of kerosene oil from the body was detected. 90% superficial and deep, antemortem burns covering the whole body except head, face, mouth both hand fingers, both feet. There was charring of skin, anterior aspect of left thigh upper part and left inguinal regions. Skin was peeled off at places. He opined the cause of death shock as a result of 90% superficial and deep antemortem burns caused by flames. PW9 has been cross examined by the Ld. Defence counsel at too length. He has stated that the face of the deceased was not disfigured. There were not even slightest burn marks on the fingers of the hands, face, mouth and scalp of the deceased. He admitted that if a person catches fire, the fire flames goes upwards. He did not find any mark/finger prints of any other person on the body of deceased except that of deceased herself.
55. PW20 Ct. Rampal and PW8 HC Shyam Singh have stated that they had deposited the exhibits in CFSL. The CFSL result is Ex.PW26/B signed by Director, CFSL. I have also perused the said State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 52 of 57 result. It has been mentioned in the result that: 'The exhibits were analyzed by Gas chromatography. The result thus obtained have been analyzed as below: Kerosene or its residues could not be detected on Ex.1 i.e. Burnt material kept in polythene cover and Ex.2 i.e. match box with match sticks with one partially burnt match stick kept in polythene cover'.
56. The CFSL result further made it clear that no kerosene oil residue were found on the burnt pieces of clothes which the deceased were wearing at the time of incident. This inturn clears that her saree might have caught fire when lighted match stick fell on the floor as explained by her in her statement Ex.PW14/A. Allegedly she was found fallen in the gali. It has come in the evidence that there was round iron stair case in the house to go to first floor. It might be that after she caught fire she tried to come out of the house to save herself and her family and while getting down from said staircase, she might have fallen and therefore found fallen in the gali. Jagran was going on in the night on that day. It is therefore clear that her scream was not heard by anyone. I have also considered the defence evidence.
57. DW1 Sanjay Sarkar has stated that accused persons was working since last about 10 years in Olympia Fitness Pvt. Ltd. DW2 State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 53 of 57 Gorang Shukla is the witness from District Jazpur, Orissa and he has stated that the marriage between Rajiv and Suchitra was simple. There was no demand for dowry in the marriage. Rajiv left his wife in the village when she became pregnant. After birth of child function of God Satyanarayan Pooja was organized at the house of Rajiv. Even PW7 Sarathi Panda has also admitted about this function and that it was attended by her husband. DW3 Rajeev Lochan Pani has stated that the marriage was simple and only 20 people went to the brides house with him. He has also stated that he left his wife in village when she became pregnant. She gave birth to a male child and thereafter pooja was organised at their house. He has further stated that he gave certain gifts to the family of his inlaws and even sent Rs.1500/. PW7 who is mother of deceased has also admitted about gifts and Rs.1500/ given by accused Rajiv. He brought his wife to Delhi again. He has also stated that on 12.5.05 he slept after taking dinner. Thereafter he does not know what happened. In the night at about 3.30 a.m he was called by landlady. He woke up and found that electric switch was already on and gate of the room was open. His landlady disclosed him that his wife is lying in the street in a burnt condition. He become hopeless and perplexed and went downstairs and took his wife to the State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 54 of 57 hospital. He never demanded any dowry from his inlaws. In case Law 2002 (1) JCC 385 State of Haryana Vs. Ram Singh with Rai Sahab & Anr Vs. State of Haryana it is stated in head note that : 'Defence Witnesses - Appreciation of evidence of - Held: that the evidence tendered by defence witnesses cannot always be termed to be a tainted one, and the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution - Held: further that the issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution
- Since the High Court rejected the evidence of defence witnesses quite casually - Practice deprecated - Appellant acquitted'.
58. In view of the above overall analysis of the testimonies of the witnesses and in brief whatever allegations have been levelled by PW2,5,6&7 regarding demand of dowry does not inspire confidence. PW7 who is the mother of deceased has made glaring improvements in her testimony. The important ingredient of 'soon before death' is missing. The statement of deceased Ex.PW14/A itself falsified the case of the prosecution. The circumstances also does not connect the accused persons with the present case incident. So, in this case ingredients of section 304B IPC are absent and there is no allegation for soon before death of harassing deceased Suchitra for demand of dowry because whatever allegations have been made in the statements State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 55 of 57 recorded before the court and recorded by the SDM does not inspire confidence. So, I am of the opinion that Suchitra was not maltreated soon before her death or even at any time after marriage by the accused persons.
59. In view of my above discussions and considering the case laws discussed above, this case does not fall under the category of section 304B IPC and no presumption can be taken against the accused persons u/s 113 B of Indian Evidence Act. The case laws relied by the Ld. APP for the State, with due respect are not applicable to the present facts and circumstances of the case since deceased herself has not made any allegation against the accused persons in her dying declaration. The prosecution has failed to bring home the guilt of the accused u/s 498A/304B/34 IPC.
60. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 56 of 57 is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
61. In over all analysis of the testimonies of the witnesses, this case does not fall under the category of 304B IPC and I also did not find any evidence against the accused persons for the commission of offence punishable u/s 498A IPC. So, I am of the considered view that the prosecution has failed to prove its case against the accused persons. In such circumstances, the accused persons are entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to accused persons and I therefore, hereby acquit accused Rajiv Lochan Pani and Ashok Pani from the charges framed against them u/s 304B/498A/34 IPC. Both the accused persons are on bail. Their bail bond are cancelled and sureties are discharged. File be consigned to record room.
Announced in the open Court on 30.05.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 57 of 57 State Vs.Rajiv Lochan Pani etc FIR no.903/05 Page No. 58 of 57