Delhi District Court
State vs . Anil Etc. Fir 823/14 (56488/2016) on 5 April, 2017
State Vs. Anil etc. FIR 823/14 (56488/2016)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56488/16
FIR No. 823/14
PS Khyala
U/s 498A/304B/34 IPC
STATE
VERSUS
(1) ANIL
S/O SH.RATTAN SINGH
R/O RZ C11, GALI NO.3,
VISHNU GARDEN,
KHYALA, NEW DELHI.
(2) RATTAN SINGH
S/O SH.KASHI RAM
R/O RZ C11, GALI NO.3,
VISHNU GARDEN,
KHYALA, NEW DELHI.
(3) PREMWATI
W/O SH.RATTAN SINGH
R/O RZ C11, GALI NO.3,
Result: Convicted Page 1 of 59
State Vs. Anil etc. FIR 823/14 (56488/2016)
VISHNU GARDEN,
KHYALA, NEW DELHI.
Date of Institution : 23.02.2015
Date of Reserving Judgment : 14.03.2017
Date of Judgment : 29.03.2017
JUDGMENT
1.In brief, the case of the prosecution is that on 31.10.2014, on receipt DD no.19A by ASI Khushi Ram, IO/Insp.Pradeep Kumar alognwith Ct.Pal Soren reached at the spot i.e.RZ C11, Gali No.3, Vishnu Garden, Delhi, where in one room, which was bolted from inside, one lady was found lying hanging with fan with the help of " दपु टा". Crime team and photographer were called at the spot. The room was got photographed after breaking the lock of the door of the said room. The spot was inspected by the Crime Team.
1.1 From inquiry, it is revealed that the name of deceased was Sadhna who was married with accused Anil in May, 2014. Executive Result: Convicted Page 2 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Magistrate, Patel Nagar was informed. Ornaments, which were worn by the deceased and One plastic Chair were taken into possession. Parents of the deceased was informed and the deadbody was sent to DDU hospital, Mortuary.
1.2. On 01.11.2014, statements of Sh.Gian Chand and Smt.Sheetla Devi, parents of the deceased, have been recorded before the Executive Magistrate, wherein Sh.Gian Chand has stated that he had solemnized the marriage of his deceased daughter Sadhna with accused Anil on 02.05.2014. He has further stated that at the time of marriage of Sadhna, there was no demand of dowry from her inlaws and he had incurred the expenses in her marriage as per his own wishes. After the marriage, Sadhna started residing with her in laws at Delhi. Thereafter, his deceased daughter Sadhna informed him by telephone that accused Anil used to beat her. She also informed him that accused Anil and his parents used to taunt her that her father did not give gold chain and ring in the marriage. This demand had also been made by the accused and his parents from him. Sadhna also informed her father on telephone that accused Anil almost used to beat her daily. After the marriage, accused Anil had also demanded Motorcycle. Due to demand of dowry, his daughter Sadhna remained Result: Convicted Page 3 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) disturbed. For demand of dowry, accused persons used to harass her daughter Sadhna mentally and physically.
1.3.He has further stated that in the month of October, 2014, on the day of Karvachauth, they came to Delhi to meet their daughter and their daughter Sadhna informed them about the harassment made by the accused persons to her. Accused Anil and his parents used to restrain Sadhna for making telephonic call to them. This witness has further stated that he made the accused persons understand that after the Paddycrop, he will give the gold chain and ring to them and upon which, they gave assurance that they would keep Sadhna properly. But thereafter too, all the accused persons used to harass his daughter Sadhna.
1.4. He has further stated that on 31.10.2014, at about 04:00 PM, accused Rattan Singh had informed him telephonically that his daughter Sadhna had hanged herself and died. Thereafter, on 01.11.2014, he alongwith his wife came to Delhi and went to DDU Mortuary, where the deadbody of Sadhna was lying.
2. On the statement of the complainant, FIR no. 823/14 PS Khyala U/s 498A/304B/34 IPC has been registered and investigation was carried out. During investigation, on the directions of Executive Result: Convicted Page 4 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Magistrate, postmortem on the deadbody of deceased was conducted and after the postmortem, the deadbody was handedover to her parents. Viscera and blood sample of the deceased was taken. Statements of parents of deceased have been recorded U/s 161 Cr.P.C. by the Executive Magistrate. At the instance of father of deceased, all the three accused persons were arrested. Their disclosure statements were recorded.
2.1 During investigation, Crime Team report and photographs were taken into possession. Viscera and Blood sample of the deceased were sent to FSL, Rohini. Scaled site plan was prepared. On 19.01.2015, subsequent opinion from Autopsy Surgeon was collected. After completion of investigation, chargesheet U/s 498A/304B/34 IPC against all the accused persons was filed before the Court.
3. Thereafter, the case was committed to the Court of Sessions. Charge U/s 498A/304B/34 IPC was framed against all the accused persons on 13.03.2015, to which they pleaded not guilty and claimed trial.
4.To prove its case, the prosecution in total has examined 15 Result: Convicted Page 5 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) witnesses i.e. PW1 Smt.Sheetla Devi, PW2 Gyan Chand, PW3 Ct.Naveen, PW4 HC Harkesh, PW5 ASI Ajit Singh, PW6 Sh.C.L.Meena, PW7 Ct.Rinki, PW8 Ct.Anil, PW9 ASI Om Prakash, PW10 Ct.Sultan Singh, PW11 Ct.Sushila, PW12 ASI Khushi Ram, PW13 Dr.B.N.Mishra, PW14 ASI Nawal Singh and PW15 Insp.Pradeep Kumar.
5.PW1 Smt.Sheetla Devi has deposed that deceased Sadhna was her daughter and she was married with accused Anil on 02.05.2014 and they had performed the marriage of Sadhna as per their sweet Will and capacity. She has further deposed that at the time of marriage, no dowry was demanded by the accused persons. She has further deposed that her daughter Sadhna was harassed by all the accused persons in Delhi, as they were demanding gold ring, gold chain and motorcycle. She has further deposed her daughter Sadhna was not being allowed to converse with them on telephone.
5.1 This witness has further deposed that on the occasion of Karvachauth of year 2014, she alongwith her husband had visited the matrimonial house of their daughter Sadhna, where she had informed that she was being beaten by all the accused persons for Result: Convicted Page 6 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) gold chain, gold ring and motorcycle. They assured the accused persons to give the gold ring after harvesting the Paddy crop (धान).
5.2 This witness has further deposed that on 31 day of 2014, in the month of Diwali, at about 04:00 PM, they received a call from the police, who informed that her daughter Sadhna was no more. On the next day of 2014, they reached Delhi and saw the deadbody of Sadhna at Mortuary. This witness has identified her signatures at point A on her statement Ex.PW1/A, given before the SDM. She has also identified her signatures at point A on the statement Ex.PW 1/B regarding the identification of deadbody of deceased Sadhna.
5.3 This witness was crossexamined by the Ld.Prosecutor as she has not deposed the complete facts, wherein she has admitted that when they returned from the matrimonial home of Sadhna to their home, then her daughter had telephonically contacted her and told that accused Anil was beating her and she was very perplexed. In the crossexamination, done by the Ld.Prosecutor, she has also admitted the fact that on 27.10.2014, her daughter telephonically informed her that she was very perplexed there and she requested her to take her back. She has also admitted that on 27.10.2014, during Result: Convicted Page 7 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) evening time, when her husband tried to contact her daughter on phone then the phone was found switched off. She has also admitted that the facts mentioned in her statement Ex.PW1/A are correct.
6.PW2 Sh.Gyan Chand has deposed that deceased Sadhna was his daughter and she was married with accused Anil on 02.05.2014 and there was no demand from the side of Anil and his family members. He has further deposed that on the occasion of Raksha Bandhan of that year, deceased Sadhna had come to his home as they had brought her to his house and she remained at her parental home for about one week and thereafter, accused Anil and Rattan Singh had come to his house and deceased Sadhna was taken by them. This witness has further deposed that Sadhna was quite well and there was no complaint. He has further deposed that Sadhna was of obstinate nature and she often used to stop taking food on the small issues. His daughter remained alive for about 6 months after her marriage. This witness has proved his statement Ex.PW2/B and receipt Ex.PW 2/A, qua the taking of deadbody of Sadhna.
6.1. This witness was declared hostile and crossexamined by the Ld.Addl.P.P.for the State wherein he has deposed that he had not Result: Convicted Page 8 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) given any statement before the SDM. He has denied the suggestion that he had given his statement before the SDM on 01.11.2014 and had signed the same. However, he has admitted his signatures at point A and thumb impression at point B on document Ex.PW2/C. 6.2. He had denied the suggestion put to him by the ld.Addl.P.P.for the State that soon after the marriage, Sadhna informed him telephonically from her matrimonial home that accused Anil used to beat her or that she also informed that accused Anil and his parents used to taunt her saying that her father (the witness) had not given gold chain and ring or that accused Anil used to beat her daily or that accused Anil demanded motorcycle after the marriage or that she was being harassed mentally and physically for demand of dowry. The witness had also denied the suggestion that all the accused persons had demanded gold ring and chain from him too.
6.3. This witness had also denied the suggestion of Ld.Addl.P.P.for the State that on the occasion of Karvadhauth of year 2014, when they had reached the house of Sadhna, she complained him that accused Anil and his parents were harassing her a lot and accused Anil used to beat her and all the accused persons Result: Convicted Page 9 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) used to prevent her to have a talk on phone with him. He has also denied the suggestion that thereafter, he assured the accused persons that after the Paddycrop, gold chain and ring will be given to them. He has also denied the suggestion that thereafter too, all the accused persons again started harassing Sadhna. This witness has also denied the suggestion of Ld.Addl.P.P.for the State that accused Anil was not giving money to Sadhna for household expenses.
6.4. This witness has further denied the suggestion put to him by the Ld.Addl.P.P.for the State that on 27.10.2014, his daughter Sadhna telephonically conveyed him that she was severely beaten by Anil and requested them to take her from her matrimonial home and when he tried to connect her again telephonically, then found her phone "Switched Off". He has denied the suggestion of Ld.Addl.P.P.for the State that his daughter Sadhna ended her life due to atrocities of Anil and his parents for dowry and they are responsible for her death.
7.PW3 Ct.Naveen has proved the photographs Ex.PW3/A.1 to Ex. PW3/A.11 and negatives Ex.PW3/B.1 to Ex.PW3/B.11, which were taken by him from the spot i.e. RZ11C, Gali No.3, Vishnu Result: Convicted Page 10 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Garden, Delhi, on 31.10.2014, on the directions of IO of this case.
8.PW4 HC Harkesh has proved the computerized copy of FIR as Ex.PW4/B and his endorsement on the rukka as Ex.PW4/A.
9.PW5 ASI Ajit Singh has proved the Crime Team Report as Ex. PW5/A, which was prepared by him on 31.10.2014 at the spot i.e.RZ11C, Gali No.3, Ground Floor, Vishnu Garden, Khyala, Delhi and also identified his signatures at point A on it.
10.PW6. Sh.C.L.Meena, Office Supdt., SC, ST, OBC, Welfare Department has deposed that on 31.10.2014, he was working as Executive Magistrate, Sub Division, Patel Nagar, Delhi. He visited the spot of occurrence on 31.08.2014. He has further deposed that on 01.11.2014, upon arrival of parents of deceased, he had visited DDU hospital and recorded statements of Sh.Gyan Chand and Smt.Sheetla Devi, parents of the deceased, which are proved as Ex.PW2/C and Ex.PW1/A respectively. This witness has also proved the statements of abovesaid witnesses regarding identification of deadbody of deceased Sadhna as Ex.PW1/B and Ex.PW2/B. He has also proved the Request for Postmortem as Ex.PW6/A, Brief Facts as Ex.PW6/B and Death Report as Ex.PW6/C and Receipt qua Result: Convicted Page 11 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) handing over the deadbody to her parents as Ex.PW2/A.
11.PW7 Ct.Rinki has proved the Arrest Memo and Personal Search Memo of accused Prem Wati as Ex.PW7/A and Ex.PW7/B respectively.
12.PW8 Ct.Anil has proved the copy of RC no. 194/21/14 as Mark PW8/A.
13.PW9 ASI Om Prakash has proved the scaled Site Plan Ex.PW 9/A of the spot, which was prepared by him on 10.12.2014 at the instance of ASI Khushi Ram.
14.PW10 Ct.Sultan Singh has deposed that on 08.11.2014, he had collected one sealed pullanda, bearing seal of Dr.B.N.Mishra of DDU hospital, stated to be contained "चुन ी " and one plastic Panni stated to contain Viscera of deceased alongwith two sample seals and blood sample in one sealed 'dibbi' (box). He had deposited the said exhibits in Malkhana, after seizing by the IO vide Memos Ex.PW 10/A and Ex.PW10/B.
15.PW11 Ct.Sushila has proved the PCR Form as Ex.PW11/A regarding the receipt of information from Phone number 9654745702 on Channel No.157 at 03:13 PM on 31.10.2014 to the effect that a Result: Convicted Page 12 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) lady had committed suicide by hanging in Khyala at H.No. RZP11, Gali No.3, Vishnu Garden, Delhi.
16.PW12 ASI Khushi Ram, Ist IO of the case, has deposed all the proceedings conducted by him. He has proved the Seizure Memo of ornaments of deceased as Ex.PW12/A, Seizure Memo of Plastic Chair as Ex.PW12/B, Statements of parents of deceased regarding identification of deadbody of deceased as Ex.PW1/B and Ex.PW 2/B, his application for conducting postmortem on the body of deceased as Ex.PW6/A, Brief Facts as Ex.PW6/B and Death report as Ex.PW6/C. This witness has also proved the statements of parents of deceased as Ex.PW1/A & Ex.PW2/C, endorsement of Sh.C.L.Meena, SEM as Ex.PW12/C and Print Out of present FIR as Ex.PW4/A.
17.PW13 Dr.B.N.Mishra has proved the Postmortem report bearing no.1439/14 of the deceased Sadhna as Ex.PW13/A, which was prepared by him on 01.11.2014 and also identified his signatures at point A on Ex.PW13/A. This witness has also proved his opinion as Ex.PW13/B. Result: Convicted Page 13 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016)
18.PW14 ASI Nawal Singh has proved the entry no.1596 in Register no.19 as Ex.PW14/A regarding deposition of one sealed pullanda, stated to be containing "Dupatta" and two sealed Jars, stated to be contained viscera of deceased & one small bottle, stated to be containing blood sample, by Insp.Pradeep Kumar on 08.11.2014. He has further deposed that on 18.12.2014, Viscera alongwith blood sample bottle, deposited on 08.11.2014, were handedover to Ct.Anil for depositing the same in FSL, Rohini vide RC no. 194/21/14 and he made an entry to this effect at portion encircled X on Ex.PW14/A, copy of RC is proved as Ex.PW14/B and copy of acknowledgement from FSL is proved as Ex.PW14/C. 18.1. He has further deposed that on 19.01.2015, Pullanda containing "Dupatta" was handedover to Insp.Pradeep Kumar for seeking subsequent opinion from Medicine Forensic, DDU hospital vide RC no. 3/21/15 and he had made entry to this effect at portion Y and Z on Ex.PW14/A. He has further deposed that on 20.05.2015, result from FSL regarding Viscera was received alongwith two sealed containers and the same was handedover to the IO on 27.05.2015 and he made an entry to this effect at portion P on Ex.PW14/A. Result: Convicted Page 14 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) 18.2. He has also proved the entry at Srl.no. 1577 in register no.19 as Ex.PW14/D, regarding deposition of one plastic Chair and one sealed pullanda, stated to contain Jewellery items of the deceased by ASI Khushi Ram on 31.10.2014.
19. PW15 Insp.Pradeep Kumar, 2nd IO of the case, has deposed that on 01.11.2014, investigation of this case was handedover to him and ASI Khushi Ram handedover to him Print out of FIR Ex.PW4/B alongwith Seizure Memo of Jewellery of deceased Ex.PW12/A, Seizure Memo of Chair Ex.PW12/B and original Tehrir Ex.PW 12/C alongwith attached statement Ex.PW2/C. He has further deposed that thereafter, on 01.11.2014, he had prepared Site Plan Ex.PW12/B, at the instance of ASI Khushi Ram. This witness has proved the Arrest memos of all the accused persons as Ex.PW15/A, Ex.PW15/B and Ex.PW7/A and also personal search of accused Premwati as Ex.PW7/B. He has also proved the Seizure Memo of Marriage Card of deceased with Anil, Mark MC, as Ex.PW15/C. He has also proved the Seizure memos of Viscera, Blood Sample and Dupatta as Ex.PW10/A and Ex.PW10/B. 19.1. He has also proved the Seizure Memo of photographs Result: Convicted Page 15 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) of marriage of deceased with accused Mark MP as Ex.PW15/D. He has also proved the photographs as Ex.PW3/A1 to Ex.PW3/A11, Crime team report as Ex.PW5/A and Postmortem Report as Ex.PW 13/A. He has also proved the subsequent Opinion about the ligature material from Medicine Forensic as Ex.PW13/B, Scaled Site Plan as Ex.PW9/A and statement of witness Sheetla Devi as Ex.PW1/DA.
20.Thereafter, statement of accused persons U/s 313 Cr.P.C. have been recorded wherein they have stated that they are innocent and have been falsely implicated in this case. They never harassed and gave beatings to the deceased for dowry at any point of time. Deceased had committed suicide. The marriage was so simple. We have never demanded any dowry from the deceased as well as from her parents. However, they did not examine any witness in their defence.
21.I have heard Sh.Kaptan Singh, ld. Counsel for all accused persons and Sh.B.B.Bhasin, Ld.Addl.P.P.for the State and have perused the record carefully.
22.Mr.Bhasin, Ld.Prosecutor urges that the prosecution has, without any reasonable doubt, proven the case against all the accused persons Result: Convicted Page 16 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) on all counts. He argues that there is no dispute and otherwise there is evidence also, to the effect that the husband/accused Anil had married Ms.Sadhna (now deceased) on 02.05.2014. It is also said to be not in dispute that the deceased had stayed for a considerable period of time at her matrimonial house in Khyala, New Delhi, alongwith all the three accused persons. It is said to be proven from statement of PW1 Smt.Sheetla Devi that the accused persons were committing Acts of Cruelty against the deceased for dowry and that they also made dowry demands specifically for a Gold Chain and Gold Ring on the day of "Karvachauth" festival in October, 2014 and that PW1 Smt.Sheetla Devi had , with her husband, assured the accused persons to fulfill the same after their PaddyCrop. In the meantime, they had requested the accused persons to not to ill treat their daughter.
23. It is urged that the prosecution has proved that just before three days of death of deceased, she had made telephone call to PW1 Smt.Sheetla Devi which affirms facts of cruelty related to dowry demands and which fact is sufficient in itself to attract Presumption U/s 113B of the Indian Evidence Act, 1872. It is urged that "Soon before her death", deceased Smt.Sadhna was subjected by the three Result: Convicted Page 17 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) accused persons to cruelty/harassment in connection with demand for dowry. It is contended that the factum of death of the deceased is not in dispute. This stands proven by medical evidence that she had died an unnatural death by hanging with the help of her own "Chunni" which ligature material was duly examined in the medical evidence and connected with cause of death by hanging. It is urged to be proven that though Viscera report was not received, however, as per Dr.B.N.Mishra (PW13), the manner of death shall remain suicidal despite of a possibility of consumption of any poisonous substance.
24.The ld.Prosecutor urges that the death has occurred in less than six months of the marriage which is duly proved.
25.The Ld.Prosecutor also urges the Court to not to discard the testimony of PW1 Smt.Sheetla Devi as she was never declared hostile to the prosecution. She was merely crossexamined by the prosecution to bring forth all facts and in the same, the witness did bring forth the facts that she could not depose in her examination in chief. It is also urged that the witness did not support the prosecution in her crossexamination and not only resiled from her statement made before the Ld.SEM/PW6, but also, resiled from the statement Result: Convicted Page 18 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) given in the Court. The prosecution strongly urges that on date of this crossexamination i.e. 16.10.2015, husband of PW1 namely Sh.Gyan Chand was also examined as PW2. PW2 Sh.Gyan Chand turned hostile to the prosecution and had to be examined on all material aspects of this case as he even resiled from the factum of making his statement Ex.PW2/C before the Ld.SEM. It is submitted that both these witnesses have been, in all eventuality, either won over or were made to resile under threats of the accused persons/their relatives.
26.It is further urged that merely because a witness turns hostile, his entire testimony cannot be effaced from the record. He places reliance on the Judgment titled as "Khujji @ Surendra Tiwari Vs. State of M.P., AIR 1991 SC 1853".
27.Same Judgment is also relied on another important aspect which is the PW1 Smt.Sheetla Devi not supporting the prosecution while under crossexamination. In the cited case above, one of the material witness of the prosecution supported its case in Chief Examination but in his Crossexamination, he expressed some doubt regarding identity of a particular accused on the premise that he had seen their backs only. The trial Court was of the view that the witness was Result: Convicted Page 19 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) chance witness and his presence at scene of occurrence was extremely doubtful at that peculiar point of time in view of the peculiar facts involved. In Appeal of the accused in the Hon'ble High Court against this Conviction, the Hon'ble High Court relied on the evidence of this witness while recording the conclusion that his evidence clearly established the presence of the appellant as one of the assailants notwithstanding his effort in crossexamination to wriggle out of his statement in examination in chief in regard to the identity of the appellant. As a matter of fact, there was a gap of one month between the Chief and the Crossexamination and it therefore, seemed that the witness was won over or it succumbed to threat. This inference was drawn on the basis of this witness's statement that he was severely beaten on the night previous to his appearance in the Court as a witness. Thus, his testimony was relied upon. Appeal was dismissed. He came up in the Hon'ble Supreme Court in the SLP. Even that SLP was dismissed.
28.Further, on hostile witnesses, the Prosecutor also placed reliance on Judgment of the Hon'ble Delhi High Court dated 12.08.2013 passed in Sandeep @ Dhillu Vs. The State NCT of Delhi.
As an alternative argument, the Ld.Prosecutor further argued Result: Convicted Page 20 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) that if for some reason, the Court is of the view that the prosecution could not make out justifying invocation of Presumption u/s 113 B of the Indian Evidence Act qua the phrase "Soon before her death"
then, the Court can maintain conviction U/s 498A IPC for which also there is sufficient evidence. Reliance is placed on Common Judgments in cases titled as Sham Lal Vs. State of Haryana WITH Bhagwan Dass Vs. Sham Lal and others (1997 9 SCC 759).
29.The Ld.Prosecutor even went to the extent of urging that these accused can, on the same facts and evidence, be also convicted U/s 306 of the IPC as besides ingredients of framing the Charge for commission of offence punishable U/s 304B IPC and in the alternative Section 498A IPC, ingredients for framing Charge u/s 306 IPC also exits in this case. Mere omission on part of trial Judge to mention Section 306 IPC with Section 498A IPC does not preclude the Court in convicting the accused for the said offence when found proved.
30.On the aspect of interpretation of the term "Soon before her death", the Ld.Prosecutor placed reliance on Judgment in Kans Raj Vs. State of Punjab and others, AIR 2000 SC 2324, submitting that Result: Convicted Page 21 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) mere lapse of time by itself would not provide the accused the defence that Cruelty or Harassment was not "Soon before her death".
31.Ld.Prosecutor also placed reliance upon the Judgment titled as K.Prema S.Rao & Another Vs. Yadla Srinivasa Rao & others WITH State of A.P. Vs. Yadla Ranga Rao & Anorther (2003) 1 SCC 217 on Section 306 IPC.
32.Thus, the main argument of the Prosecution when summarized is that it is successful in proving its case against all the accused person for both the offences for which they are charged and in the alternative U/s 498A IPC or even Section 306 IPC.
33.Sh.Kaptan Singh, Ld.defence counsel for the accused persons has refuted all the contentions of the prosecution submitting that admittedly there were no demands of dowry at the time marriage. Moreover, by any stretch of application of Law, the Court cannot look into the Chief examination of PW1 Smt.Sheetla Devi as under
Crossexamination, she denies to have made statement before the ld.SEM and the police that all the three accused persons used to beat her daughter. She did not remember whether she stated before the Result: Convicted Page 22 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) SEM/Police that accused Anil and his parents were demanding Motorcycle. She asserts that her daughter did telephone her but only to inform about her well being. She denies that the telephone calls were regarding the alleged harassment. So much so is said to be the level of hostility of PW1 Smt.Sheetla Devi, that she even acceded to the correctness of the suggestion of defence that none of the accused raised any demand from her daughter or her parents including PW1 and also the suggestion that neither the Ld.SEM nor the police recorded her statement. She even volunteered that she was crying and the above officials obtained her signatures. It is therefore, urged that the Judgments cited on this issue by the Prosecution do not support the prosecution.
34.It is urged that there is nothing in testimony of PW2 Sh.Gyan Chand that supports the case of the prosecution. Rather, it establishes that deceased was quite well in her matrimonial house and she had no complaint. According to PW2 Sh.Gyan Chand, his daughter Smt.Sadhna was of obstinate nature and she often stopped taking food on small issues. He also denied to have made the statement Ex.PW 2/C to the Ld.SEM although he admitted his signatures on it at point A and thumb impression at point B. In his crossexamination, PW2 Result: Convicted Page 23 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Sh.Gyan Chand admitted to the correctness of the suggestion of defence that his statement was never recorded by either ld.SEM/Police.
35.On the strength of the above aspects, the defence maintains that they have been falsely implicated in this case even though they never harassed or gave beatings to the deceased for dowry at any point of time. The deceased, as per them, had committed suicide.
36.The defence further contends that even PW1 Smt.Sheetla Devi has made improvements in her Chief Examination. There is no reference in her statement Ex.PW1/A recorded by Ld.SEM or her statement U/s 161 Cr.P.C. Ex.PW1/DA that after the marriage, deceased Smt.Sadhna had remained in her matrimonial home at Kirari Khera for 10 to 15 days prior to her stay with her Inlaws in Delhi. It is further submitted that Ex.PW1/A is silent about the joint stay of the deceased with all the three accused persons in Delhi and so is the statement Ex.PW1/DA. It is submitted that in her above statements, she had not stated that her Inlaws also used to beat the deceased however, in her Chief examination, she made a statement that all the three accused persons were harassing and beating her daughter.
Result: Convicted Page 24 of 59State Vs. Anil etc. FIR 823/14 (56488/2016)
37.This fact coupled with her subsequent crossexamination dated 16.10.2015 is said to be sufficient to ignore the entire testimony of PW1 Smt.Sheetla Devi who is otherwise called as "interested witness".
38.This Court has gone through the entire judicial file and scrutinized the entire material before it in the light of facts and documents emanating from the date of marriage and ending after filing the Chargesheet. The Court has also gone through the evidence produced to prove these facts and has also considered subsequent developments, if any.
39.To begin with, I must point out that the Ld.Prosecutor has rightly placed reliance on the ratio of Judgment in the case of Khujji (Supra), to the extent it lays down that merely because a witness is declared hostile, his entire evidence cannot be treated as effaced from the record as his testimony, to the extent found reliable, can be acted upon. There is no quarrel with the settled legal proposition that evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The analysis of Judgment so far as it applies to the Result: Convicted Page 25 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) common factum of the witness (PW1 in both the cases) resiling in the crossexamination has to be however, decided only on the basis of facts peculiar to this case and not as a general view. In Khujji's case, one of the element before the Courts was beatings given to PW1 a day prior to his examination in Court.
40.The interpretation of the term "Soon before her death", is however, dependent on facts and circumstances of each case. All that follows from ratio of Judgment in the cases of Sham Lal and Bhagwan Dass (Supra) and of Kans Raj (Supra) is that the term above has to be given its relative interpretation having regard to the proximity with last such dowry harassment/cruelty to attract presumption u/s 113B of the Indan Evidence Act.
41.Any discussion by the Court on alternative argument placed by the Ld.Prosecutor and the Judgments cited i.e.Sham Lal (Supra) and K.Prema S.Rao (Supra), will arise only if the Court concludes non applicability of the above presumption in Law to this case.
42.I will begin with PW2 Sh.Gyan Chand. He is father of deceased and it is upon his statement Ex.PW2/C that the Ld.SEM/PW6, while conducting Inquest Proceedings, directed legal action on the Result: Convicted Page 26 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) said complaint and which, ultimately after the Endorsement Ex.PW 12/C, led to registration of FIR in this case. This gives the PW2 Sh.Gyan Chand the status of complainant within the meaning of Section 154 of Cr.P.C. It is he, who was declared hostile by the Prosecution. Analysis of his evidence shows that his daughter was indeed married to accused Anil, who was identified in the Court correctly, on 02.05.2014. It also establishes that the other two accused persons who were also identified in the Court are parents of accused Anil. It also establishes that PW2 Sh.Gyan Chand, as father, had given customary items to his daughter as per his sweet Will which fact establishes that there were no demands of dowry at the time of marriage. This fact is otherwise affirmed in statement of PW 1 Smt.Sheetla Devi also.
43.PW2 Sh.Gyan Chand's testimony also establishes that after marriage, she (deceased) attended her matrimonial home at Khyala, Delhi. Reference here is made to this house as a 'matrimonial house' and defence recorded No objections to that effect in the limited crossexamination offered to PW2 Sh.Gyan Chand establishing that atleast Anil and daughter of PW2 attended her Result: Convicted Page 27 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) matrimonial home at Khyala, Delhi. The above limited facts are supporting the case of prosecution on the aspect of marriage. It is for this reason also that the Prosecution had given up Sh.Ram Nath Singh and Sh.Asha Ram as its witnesses in the prosecutors' statement dated 14.01.2016. As a matter of fact, the prosecution also gave up its witnesses Ct.Paul Sauran as his testimony was similar on facts with already examined PW12.
44.The Court also finds that this witness denies giving statement to Ld.SEM on 01.11.2014 but he affirms that it was signed and thumb marked by him as Ex.PW2/C. As per him, the police obtained his thumb impression on plain paper and he was also directed to sign on his statement. He denies having made any statement before any authority. The Court is mindful of the fact that the same SEM / PW 6 also claims to have recorded the statement of this witness as well as cocomplainant PW1 at the time of obtaining identification of deadbody of deceased from PW1 and PW2 and also at the time of handing over the deadbody to PW2. The above three documents have been proved by PW1 and PW2. While PW1 asserts to correctness of deadbody identification statement Ex.PW1/B as duly Result: Convicted Page 28 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) recorded by the Ld.SEM and signed by her at point A, her husband PW2 also asserts to correctness of his similar statement Ex.PW2/B that was recorded by the same Ld.SEM/PW6 and signed by PW2 at point A. PW2 also asserts to the correctness of the deadbody handing over memo Ex.PW2/A. It was signed by him at point A. It was also prepared, as proved, by PW6. These documents were prepared on the same date i.e. 01.11.2014 which is the date when the SEM/PW6 also recorded Ex.PW1/A and Ex.PW2/C. PW2 Sh.Gyan Chand has clearly said, before being declared hostile, that he had taken the deadbody of his daughter after postmortem as per Ex.PW2/A after identifying her as per his own statement Ex.PW2/B. He voluntarily identifies his signatures on these two documents.
45.PW6 Sh.C.L.Meena has not been assigned any motive for obtaining thumb impression of the witness on blank papers in his crossexamination by the defence. He is a public Servant and the Court is also mindful of the fact that as proven by PW12 ASI Khushi Ram; PW6 was called on the spot when deadbody was discovered after receipt of the information vide FormI of Delhi Police Control Room Ex. PW11/A wherein the informant is no Result: Convicted Page 29 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) other than the accused Rattan Singh (father in law of the deceased).
46.PW12 ASI Khushi Ram, in his crossexamination, has not been suggested that PW6 Sh.C.L.Meena had not reached the place of incident on 31.10.2014. Although PW14 ASI Nawal Singh himself had been suggested that he had not reached the incident spot on 31.10.2014, however, that suggestion is only a name sake as the testimony of PW14 not only instills confidence but is not found to be contrary with the version of PW6/SEM and the members of the crime team i.e. ASI Ajeet Singh (PW5) and crime team photographer Ct.Naveen (PW3). Thus, absence of not suggesting PW14 that Sh.C.L.Meena/ PW6 did not inspect the spot on 31.10.2014 goes against the accused persons. So far as PW6 himself is concerned, I have already said that he is a Public Servant, who reached the spot of incident and found the deadbody of a lady suspended from ceiling fan at H.No. RZ C11, Gali no.3, Vishnu Garden, Delhi (house of accused persons). From there, he left with directions to produce Parents of deceased before him on their arrival. It is in his testimony that on 01.11.2014, he had visited the DDU hospital and it is at that place, he conducted the remaining proceedings. Thus, the fact that Result: Convicted Page 30 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) PW1 and PW2 both were in DDU hospital on 01.11.2014 and that the SEM atleast completed recording of statements of PW1 and PW2 qua deadbody identification and preparing Deadbody Handing over Memo stands proven beyond reasonable doubt.
47.The complainant/PW2 Sh.Gyan Chand has however, disowned the other facts which pertained to recording of his statement Ex.PW 2/C by PW6. He denies to have been won over. But the Court can read/rely his testimony to the limited extent that :
(1) Accused Anil was married without any dowry demands with Sadhna on 02.05.2014;
(2) That other two accused persons are the Father in law and Mother in law of his deceased daughter;
(3) That she was residing, after her marriage, in her matrimonial home;
(4) That his daughter was found dead under unnatural circumstances;
(5) That he was present in DDU hospital on 01.11.2014; (6) That in the hospital, he signed on Ex.PW2/A and Ex.
PW2/B willingly;
Result: Convicted Page 31 of 59State Vs. Anil etc. FIR 823/14 (56488/2016) (7) That his statement Ex.PW2/C (from which he resiled in totality) not only bears his signatures but also his thumb impression and ;
(8) That he alongwith his wife (PW1) had visited the matrimonial home of Sadhna at Khyala, Delhi on "Karvachauth" festival of the year 2014.
48.The remaining part of his testimony cannot be relied upon for the above reasons which include the fact that he was declared hostile witness by the prosecution and that there is a mere general suggestion of him having been won over by the accused persons. Otherwise also, he does not incriminate accused persons.
49.In these circumstances, I find it unsafe to rely on the testimony of PW2 except on the above points as enumerated above in the previous paragraph.
50.This now brings me to the testimony of PW1. She is mother of the deceased Sadhna. She is the person who, as any other normal witness would, come forward in support of the prosecution to the extent possible on 20.08.2015 and like any other natural witness, found to be also improving in her chief examination qua Result: Convicted Page 32 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) confrontations recorded in the crossexamination as pointed out above. On said date, her further crossexamination was deferred. It is carried out on the very next date i.e. 16.10.2015. It is the same date, when PW2 Sh.Gyan Chand was also examined and crossexamined.
51.The Court finds that in earlier statement to the SEM/PW6 and her ditto statement recorded by the police U/s 161 Cr.P.C. Ex.PW1/DA, the witness did not say that after marriage, the couple stayed in Kirari Khera for 10 to 15 days. It is also observed that both the said statements do not say specifically that Sadhna was residing in Delhi with her husband and both in laws/accused persons. It is also found that the said two statements do not state that besides Anil, the other two accused persons also used to beat the deceased Sadhna. It is also observed that the witness was crossexamined by State on following facts, which she affirmed ;
(a) That the deceased had telephonically contacted her after return of PW1 and PW2 from matrimonial house of their daughter, informing her that Anil was beating her and she was very perplexed;
(b) That on 27.10.2014 also, Sadhna telephonically informed Result: Convicted Page 33 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) her to be very perplexed and also requested that she be taken back to her parental house;
(c) That in the evening of 27.10.2014, her husband (PW2) tried to contact Sadhna on phone but it was found "Switched Off";
(d) That she could not depose about the above limited contents on her own as she had forgotten and;
(e) That contents of her statement Ex. PW1/A are correct.
52. She was then offered for Crossexamination.
53.The defence has claimed that she is a related witness. Her testimony cannot be read as she has resiled from all her statement including the statement on Oath. No doubt, she will be an interested witness being related. Thus, her testimony will have to be read after minute examination of the same and after obviating possibility of false implication.
54.The question arises is whether her testimony be relied by this Court as she took a U turn in her crossexamination?
55.The answer to the same is not difficult to be found in peculiar facts and circumstances of this case. But for the above three lapses, she has Result: Convicted Page 34 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) supported her entire statement Ex.PW1/A in her chief Examination and the limited cross by the Prosecution.
56.In her first crossexamination dated 20.08.2015, the tenor of its recording clearly show that the witness is confident in responding to the questions of defence.
57.Her subsequent cross dated 16.10.2015 is short and visibly on the premise that the witness has already resiled from her previous statement. However, this court is ordained to minutely scrutinise it.
58.In the short crossexamination dated 16.10.2015, PW1 Smt.Sheetla Devi categorically remembers that she had not stated in her statement to SEM and police that all the three accused persons used to beat her daughter. Surprisingly, on the very next question, she failed to remember if she also stated before the SEM/Police that accused Anil and his parents used to demand Motorcycle. The witness could have very well denied the same also. Further, she does not deny about the telephone call of her daughter but clarifies that it was for informing well being. Even further, the witness does not deny that she and her husband visited the matrimonial home. In the same breath she denies of having received calls of her daughter of being harassed by the accused persons. Soon thereafter, she immediately Result: Convicted Page 35 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) succumbed to the suggestion of defence and admits its correctness that the accused never made any demand from them or their daughter.
59.To this extent, the tenor of the crossexamination vis a vis narrations of the witness indicate to her mixed state of mind which prompts her to admit some, deny some and also offer some explanation. She has volunteered at as many as three places in the said short crossexamination. While making voluntary assertions, she seems to be not recollecting facts as not being in her conscious mind of state due to death of her daughter.
60.Interestingly, she has been given a peculiar suggestion which I feel should be quoted and which I quote :
" I do not name of the place where I had given the statement before the SDM. It is correct that SDM had not recorded my statement".
The first part of the above crossexamination shows that the defence asked the witness about name of the place where she gave statement to the SDM. This question could have been avoided as it gives the impression that the statement was recorded but witness was unable to name the place where it was so recorded. The second suggestion is that the SEM never recorded her statement. This Result: Convicted Page 36 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) suggestion is immediately accepted by the witness. Same is the fate of similar suggestion regarding statement to the police. Again follows a voluntary statement of the witness that she was crying and they obtained her signatures. This does not stand to reason as the statement is not only signed but also thumb marked. As per the statement of PW6, the thumb marks are ought to be of PW1 only.
61.Thus, the over all confused mental status of the witness is visible from the crossexamination. What is must important to note is that when questioned for the first time, she feigned ignorance to the suggestion whether she stated to the SEM and police that accused persons used to demand Motorcycle. When questioned for the second time, she admits the suggestion that there was no demand from any of the accused. However, when questioned for the last time, and it seems that the defence has over looked this vital aspect, the witness gave answer which is straight and is recorded as under :
"It is wrong to suggest that no demand was made by accused Anil from the side of his In laws and the deceased was never beaten by the accused ............".
62.The above analysis of the evidence reveals that the initial version of the witness in her chief examination and the most probable correct Result: Convicted Page 37 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) answer in her examination on the issue is that though the witness intended to absolve the accused persons yet she was conscious of the fact that there was a demand of dowry and that the deceased was beaten. This also proves that accused persons shared common intention amongst them to inflict cruelty and cause harassment to victim.
63.The above analysis will in itself remain incomplete, if I do not advert to another important aspect to this case, which I am addressing in the paragraphs below.
64.PW1 Smt.Sheetla Devi was examined for the first time on 20.08.2015. Prior to this date, accused Rattan Singh had sought regular bail and his application was considered on 02.06.2015. Regular bail was not granted to him, however Ld.Predecessor was pleased to enlarge him on Interim bail for a period of two months w.e.f.05.06.2015 to 05.08.2015. He sought for extension of interim bail and on 06.08.2015, the interim bail was extended for a further period of three months. Thus, on 20.08.2015, accused Rattan Singh was the only accused, who was out on interim bail. On that date, PW 1 Smt.Sheetla Devi had supported the prosecution in her Chief Result: Convicted Page 38 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) examination. On the next date of hearing i.e. 16.10.2015 also accused Rattan Singh was out on interim bail. On this date, PW1 Smt.Sheetla Devi preferred to resile from her previous statement in her cross examination and PW2 Sh.Gyan Chand did not support the prosecution on material aspects of its case. The fact of accused Rattan Singh remaining on Interim bail between the above noted period, can offer a justification as to why both material witnesses of the prosecution resiled from their previous statements. The fact that victim's mother supported the prosecution thoroughly on one date of hearing and chose to withdraw that support on another date of hearing cannot be therefore ignored or brushed aside as a mere chance development. It therefore, offers some strength to the Prosecutor's concern that the witness had been either won over or deposing under pressure of defence. This factor is therefore, quite identical if not conclusive to the reason that prompted the Hon'ble Courts to act upon the testimony of PW1 Ct.Komal Singh in Khujji's Case (Supra) wherein the witness was beaten up a day prior to his deposition in the Court. Therefore, it stands to reason that while PW 1's mental state appeared to be confused in denying her previous statements, PW2's conduct appear to be supporting the defence in as Result: Convicted Page 39 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) much as he called his daughter as "Obstinate" without there being any such case set up by the prosecution. Nevertheless, none offers any explanation for the reasons for suicide of deceased Sadhna by hanging. Even the accused persons have offered no explanation in their statements U/s 313 Cr.P.C. when this incriminating evidence was put to them. It is as if the defence had concluded that the entire liability was of Prosecution only to prove their guilt and that it was not incumbent upon them to offer any explanation as to why a family member residing in their house would commit suicide. Section 106 of the Indian Evidence Act 1872 casts burden of proving fact especially within the knowledge of any person upon him/her only.
65.In the case titled State of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988, Interpretation of Section 106 of the Indian Evidence Act has been provided. It has been held that :
"31.The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it Result: Convicted Page 40 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
Para 32 ...............
Para 33 ...............
Para 34 ..............
Para 35 ..............
Para 36 ..............
37. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to case where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer Result: Convicted Page 41 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) any explanation which might drive the court to draw a different inference".
66.Further, in case titled as Mukesh Vs. State reported in 2010(2) JCC 1563, the Hon'ble Delhi High court has provided IV Categories of case on the point of death of a wife in her matrimonial house. This case falls most probably under the IVth Category which is as under :
"IV. In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their job and there was either no proof of motive or very week motive being proved as in the decision reported as Khatri Hemraj Amulakh Vs. State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri. 1211.
67.What follows is that as per Ex.PW11/A, first information was received in PCR regarding the incident through Rattan Singh on 31.10.2014 at 15:13:38 hours.
Result: Convicted Page 42 of 59State Vs. Anil etc. FIR 823/14 (56488/2016)
68.As per the Postmortem Examination Report Ex.PW13/A, the time since death was approximately one day prior to Postmortem Examination. The examination started on 01.11.2014 at 02:45 PM. As per Inquest Papers the victim died in the forenoon hours between 01:30 PM to 02:0 PM on 31.10.2014. Hence, it was day time on 31.10.2014 when the incident occurred. There is ample evidence to show that the room where the incident occurred was locked from inside. This in itself proves that none from the matrimonial house was present at the spot of incident when the incident occurred. The defence has although tried to show that PW1 had not stated in her statement Ex.PW1/A and also Ex.PW1/DA that the Inlaws were also residing with the accused/husband and the deceased wife. However, no witness is suggested that the parents of accused Anil were not residing with him in the said house alongwith the deceased. There is no explanation otherwise by the accused Rattan Singh as to why he was present outside the spot of incident as evident from Ex. PW11/A. These factors point out that all the accused persons and victim were residing together in RZC11, Gali No.3, Ground Floor, Vishnu Garden, New Delhi.
Result: Convicted Page 43 of 59State Vs. Anil etc. FIR 823/14 (56488/2016)
69.Since this factor is confirmed it was incumbent upon the accused persons to offer some explanation as to why the victim would commit suicide if not for the reasons of beating and harassment qua dowry demands. These facts ought to be in the personal knowledge of all the three accused persons and yet they failed to offer any explanation and therefore, did not discharge the burden that lay upon them as per Section 106 of the Indian Evidence Act.
70.This brings me back therefore, to the discussion upon the weightage that this court could give to the testimony of PW1. In the light of above discussion and Law on the subject, I am of the considered view that it is absolutely safe to rely on the testimony of PW1 that has been recorded on 20.08.2015 while also placing reliance on her testimony dated 16.10.2015 to the extent which shows her mind set while deposing on that day and more particularly her denial to suggestion of the defence that no demand was made by accused Anil from the side of his In laws or that the deceased was never beaten by the accused Anil.
71.Thus, this testimony is now to be dealt with in accordance of the ingredients of the offence Punishable U/s 498A IPC & also U/s 304B Result: Convicted Page 44 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) IPC r/w Section 113B of the Indian Evidence Act.
72.Section 498A IPC reads as under :
"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 purposes 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 demand.
73. Section 304B IPC reads as under : "Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is Result: Convicted Page 45 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) 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 purposes of this subsection, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
74. The Hon'ble Supreme Court in Sunil Bajaj Vs. State of MP (2001) 9 SCC 417 after noticing the provisions of Section 304B IPC had opined that in order to establish an offence U/s 304B IPC, following ingredients must be established before any death can be termed as dowry death :
(1)The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of her marriage.
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. (4) Such cruelty or harassment must be for or in connection with demand of dowry.Result: Convicted Page 46 of 59
State Vs. Anil etc. FIR 823/14 (56488/2016) In this Judgment, it is also held that :
"This Section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or inlaws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or inlaws even though they did not in fact cause the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine.
Normally, in a criminal case accused can be punished for an offence or establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having Result: Convicted Page 47 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution".
75.Section 113B of the Evidence Act is also relevant for the case in hand. Both Section 304B and Section 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act, 1872 reads as under : "113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation : For the purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)".
76.As per the definition of "dowry death" in Section 304B Indian Result: Convicted Page 48 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment "for or in connection with the demand for dowry". While considering these provisions, Hon'ble Supreme Court in M.Srinivasulu Vs. State of A.P. (2007) 12 SCC 443 has observed thus :
"8.4... The presumption shall be raised only on proof of the following essentials :
(1) The question before the court must be whether the accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B Indian Penal Code).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death".
77.A perusal of Section 113B of the Evidence Act and Section 304B Result: Convicted Page 49 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Indian Penal Code shows that there must be material to show that "soon before her death" the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.
78. Statement of PW1 Smt.Sheetla Devi before the Ld.SEM Ex. PW1/A clearly establishes that after marriage, accused Anil and his parents started harassing the victim for dowry. Accused Anil was also beating deceased Sadhna. He used to say to her that her father had not gifted a gold Chain and Ring and Motorcycle in the marriage. His parents used to say that their son Anil was not given a Gold Chain and Ring in the marriage. It establishes that deceased was harassed as she was never given any money for her expenses by accused Anil. All the three accused persons were preventing the victim from speaking to her parents on phone. On the "Karvachauth" festival, the deceased told PW1 that accused Anil Result: Convicted Page 50 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) regularly beats the victim and he with his parents harassed her for dowry. As per PW1, she and her husband even assured the accused persons that they will meet their demand of gold chain and ring after harvesting their PaddyCrop. This statement also establishes that when PW1 returned to her native place, the victim made telephonic call to them stating that accused Anil is still beats her and that she is disturbed. This statement also establishes that the victim made a telephone call on 27.10.2014 wherein, she specifically stated that ु परेशान हूँ मुझे घर ले जाओ" . It is apparent that this "मममी मै बहत conversation was made with PW1 as reference in it is made to PW1 only. This statement also establishes that victim's parents tried to approach her on phone in the evening of 27.10.2014 but the phone was Switched Off. The victim died on 31.10.2014.
79. All most same statement is maintained in the examination in Chief by PW1. The minor improvements have been pointed out above in this Judgment. They are so minor that they do not put the veracity of the statement of PW1 under serious question mark. It is held in (1) State of UP Vs. Naresh (2011) 4 SCC 324 that :
"Discrepancies are bound to occur in the deposition of witness due to normal error of observation, error of Result: Convicted Page 51 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) memory, due to lapse of time or due to mental condition such as shock and horror at the time of occurrence".
(2) In 1983 Crl.L.J.1096 (SC), it is held that :
"Much importance should not be given to minor discrepancies. They can overlooked unless discrepancies go to the root of the matter to impeach basic version".
(3) In 1980 Crl.L.J. 958, it is held that :
"Improvement of the story at the trial in one material particular. Entire evidence cannot be rejected".
Reliance can also be placed in this regard in the Judgment titled as (4) Inder Singh Vs. State (1978) 4 SCC 161, wherein it is held that :
"Proof beyond reasonable doubt is a guideline and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes".
80. What is of paramount importance is that accused Anil is definitely shown to be beating the victim. The aspect that the other coaccused Result: Convicted Page 52 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) persons also gave beatings to the deceased can be over looked as not mentioned so in previous statements of PW1. However, harassment and cruelty for dowry is clearly borne out against all the three accused persons from combined reading of statement Ex.PW1/A, Ex.PW1/DA and the Chief Examination of PW1.
81. The term "Cruelty" has been explained in the explanation appended to Section 498A IPC. It includes harassment of the woman if it 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 demand. This ingredient of Section 498A IPC stands proved beyond reasonable doubt by the prosecution.
82. Section 304B IPC also postulates cruelty or harassment. For the purposes of these ingredients also, the combined effect of Ex.PW1/A, Ex.PW1/DA and Chief Examination of PW1 is more than sufficient as it categorically proves beyond all reasonable doubts not only cruelty but also harassment of the victim by all the three accused persons in connection with their demand for dowry of Gold Chain, Gold Ring and Motorcycle.
83. The question that remains to be decided is whether such cruelty in this Result: Convicted Page 53 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) case has been "Soon before her death".
84.The expression "Soon before her death" used in the substantive Section 304B IPC and Section 113B of the Indian Evidence Act is with an idea of proximity text. No definite period has been indicated and the expression "Soon before her death" is not defined. The determination of the period which can come within the above terms is left to be determined by the Courts, depending upon facts and circumstances of each case. It has been time and again observed by Superior Courts that the expression above would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. Their must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the women concerned, it would be of no consequences. Reference in this respect may be made to AIR 2003 SC 3828 and (2004) 3 SCC 98.
85. Further in dowry death case, direct evidence is hardly available and such cases are usually proved by circumstantial evidence. It is obligatory for prosecution to show that death occurred within 7 years of marriage.
Result: Convicted Page 54 of 59State Vs. Anil etc. FIR 823/14 (56488/2016) Reliance may be had to AIR 2004 SC 1708.
86.In such cases, an unnatural death could be either suicidal or homicidal. In a suicidal death, the circumstances in this case make it a death occurring in unnatural circumstance and even in such a cases, Section 304B IPC is attracted. Reliance can be had to AIR 1991 SC 1226.
87. In the instant case, the last act of Cruelty proven by the Prosecution is of 27.10.2014. As per the statement of PW1, same had been continuous soon after the marriage.
88. In case titled Deen Dayal & others Vs. State of U.P. in Crl.Appeal no. 67 of 2006, it is held that there was demand of dowry. The death of bride two months after demand and it is found to be cruelty "soon before death". It is also held that meaning of expression "soon before death" are to be understood in a relative and flexible sense. There can be no fixed period in this regard and it would depend upon fact of each case.
89. Reliance can also be placed in this regard on the Judgment State Vs. Jaggu Ram (2008) 12 SCC 51, wherein it is held that :
"Section 113B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death Result: Convicted Page 55 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) then the court shall presume that such person has caused the dowry death. The presumption under Section 113B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein it becomes the duty of the Court to raise a presumption that the accused caused the dowry death".
In this Judgment, it is also held that :
"In each case the court has to analyse the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death".
90. Reliance can also be placed upon the Judgment titled as Trimukh Vs. State (2006) 10 SCC 681,wherein it is held that:
"When an incriminating circumstances is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete".
In this Judgment, it is also held that :
"When 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 Result: Convicted Page 56 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) 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 corresponding burden on the inmates of the house to 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 burn to establish the charge lies entirely upon the prosecution and there is no duty at all on an account to offer any explanation".
91. Applying the above analysis as set out in the evidence led in conjunction with the above discussed Law on the subject, what is proved is that the PW1 proves atleast two instance that occurred in the month of October, 2014 itself that are the instances of cruelty and harassment. The victim died in the same month on 31.10.2014. The first instance is of the day of the "Karvachauth" Festival in October, 2014 and the second instance is dated 27.10.2014. Evidence on both the above instances has been discussed above and already accepted by this Court. This Court does not imply that the other instances of cruelty and harassment for dowry regarding which Result: Convicted Page 57 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) no specific dates are provided by PW1 are to be overlooked. Rather, they are to be looked into in totality and their cumulative effect is the guiding factor. Needless to say the instances that occurred in October, 2014 are undoubtedly in close proximity of death and prove therefore that the victim was subjected to cruelty and harassment by all the three accused persons "Soon before her death".
92. Once the Court holds so, it will have to raise Presumption U/s 113B of the Indian Evidence Act. Result is that the accused persons caused dowry death within the meaning of Section 304B IPC.
93. As a consequences to the above findings to the Court, there is no requirement to address the arguments of the prosecution that were raised as an alternative arguments and described above in the Judgment.
94. In view of the above discussion, all the three accused persons namely Anil, Rattan Singh and Premwati are hereby held guilty and convicted for the offence Punishable U/s 498A/304B/34 IPC.
They be heard separately on the Point of Sentence.
Result: Convicted Page 58 of 59State Vs. Anil etc. FIR 823/14 (56488/2016) Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
File be consigned to record room.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI)
COURT ON: 29.03.2017 ASJ05 (West), THC, Delhi.
Result: Convicted Page 59 of 59
State Vs. Anil etc. FIR 823/14 (56488/2016)
IN THE COURT OF SH. MANISH YADUVANSHI, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF Case No. 56488/16 FIR No. 823/14 PS Khyala U/s 498A/304B/34 IPC STATE VERSUS (1) ANIL S/O SH.RATTAN SINGH R/O RZ C11, GALI NO.3, VISHNU GARDEN, KHYALA, NEW DELHI.
(2) RATTAN SINGH S/O SH.KASHI RAM R/O RZ C11, GALI NO.3, VISHNU GARDEN, KHYALA, NEW DELHI.
(3) PREMWATI
W/O SH.RATTAN SINGH
R/O RZ C11, GALI NO.3,
Result: Convicted Page 60 of 59
State Vs. Anil etc. FIR 823/14 (56488/2016)
VISHNU GARDEN,
KHYALA, NEW DELHI.
ORDER ON SENTENCE :
05.04.2017 :
Present : Sh.B.B.Bhasin, Ld. Addl.P.P.for the State.
Convict Anil is produced from J.C.
Convict Rattan Singh and Premwati are on bail.
Sh.Kaptan Singh, ld. Counsel for all the convicts.
Arguments on the point of Sentence have been advanced. Record perused.
Sh.B.B.Bhasin, Ld.Prosecutor urges that all the three convicts be awarded Maximum sentence prescribed for the offences of which they have been convicted by the Judgment of the Court dated 29.03.2017. He further urges that since conviction U/s 304B IPC is in the light of raising the Presumption U/s 113B of the Indian Evidence Act, the question of inflicting lighter punishment does not arise as the aspect of reformation of convicts will not be a consideration before this Court in as much as such offences are not Result: Convicted Page 61 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) only against an individual but also against the Society at large.
Conversely, it is urged by Sh.Kaptan Singh, Ld. Defence counsel that (a) Convict Rattan Singh is a Senior Citizen aged 75 years who is a known Patient of Diabetes Mellitus; (b) that Convict Prem Wati is also a Senior Citizen aged about 63 years who is a known patient of High Blood Pressure and (c) that Convict Anil is also a known patient of Epilepsy and therefore leniency in sentencing may be granted.
On the strength of the above arguments, the ld.defence counsel for the convicts has prayed for inflicting only Minimum Penalty prescribed under Law.
The Court has weighed the Aggravating and Mitigating circumstances that are borne out on record of this case.
It will not be out of place to mention that external physical injuries were not found present on the body of the victim as per the Postmortem Report. This is a proven fact in the Judgment of this Court that the Convict Anil was habitually giving beating to his deceased wife. However, this fact has not come on record against the other two convicts.
Absence of physical injuries on the person of the Result: Convicted Page 62 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) deceased/victim will not, "Ipso Facto" imply that there were no beatings caused upon her. However, it does not imply that "Soon before her death", the Victim was not subjected to beatings. The fact that remains is that the role of Convict Anil is therefore different to be kept at a higher pedestal than that of the role of the other two Convicts.
Record shows that Convict Rattan Singh has already spent a period of 7 months and 4 days in J.C. Convict Premwati has spent a period of 2 years, 2 months and 22 days in J.C. Convict Anil has spent a period of 2 years, 3 months and 19 days in J.C. Judicial file reveals that Convict Rattan Singh is known case of not only Diabetes but also Hypertension. His advanced age is also a mitigating factor. He has been regularly appearing in the trial even when out on bail. He did not mis use the liberty of interim bail in as much as it pertains to regular appearance in the Court and regardless of the Court's observation that he was on interim bail on the date of examination of PW1 and PW2 in the Court and during evidence of the above prosecution witnesses.
Similarly, the judicial record and reports of Medical Result: Convicted Page 63 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Officer Incharge, Central Jail No.6 Dispensary Tihar shows that Convict Premwati has history of Periarthrtis left shoulder Joint and Anemia. Her old age is also a mitigating factor. Her appearance during trial has been regular. Though her conduct during examination in chief and subsequent crossexamination is questionable.
So far as Convict Anil is concerned, he is also a known case of Seizure disorder with Phyenytoin Toxicity. He is also under regular follow up of Jail Visiting Psychiatry Specialist. He does not have any apparent behavioral disorder. The Court has already pointed out the particular aggravating circumstance against him that differentiates his role from the other Convicts. Moreover, Convict Anil was the husband of the deceased and it was he in whom the deceased ought to have invested her entire trust after the trust reposed by her in her own parents post her marriage with this Convict.
Reformation of Convicts is the essential Hall Mark of the Criminal Justice System. It is for the prosecution to prove that there is no scope of Reformation of a convict. The sentencing approach is to make a balance between the element of deterrence and desistance to such repeated crimes in the conscience of Society and also scope of Reformation of persons convicted of such offences. Merely because Result: Convicted Page 64 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) Presumption U/s 113B of the Indian Evidence Act is attracted to a dowry death, it cannot be said that there is no scope of Reformation left for the Convicts.
After having weighed the above Mitigating and Aggravating circumstances attending to this case, I am of the considered view that all the three Convicts deserve leniency in Punishment. Therefore, I sentence the Convicts in the following order viz :
(1) Convict Rattan Singh is sentenced to undergo Rigorous imprisonment for a period of seven years and fine of Rs.5,000/ and in default of payment of fine, to further undergo SI for two months for the offence U/s 304B/34 IPC.
Convict Rattan Singh is further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.2,000/ and in default of payment of fine, to further undergo SI for 30 days for the offence U/s 498A/34 IPC.
(2) Convict Premwati is sentenced to undergo Rigorous imprisonment for a period of seven years and fine of Rs.5,000/ and in default of payment of fine, to further undergo SI Result: Convicted Page 65 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016) for two months for the offence U/s 304B/34 IPC.
Convict Premwati is further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.2,000/ and in default of payment of fine, to further undergo SI for 30 days for the offence U/s 498A/34 IPC.
(3) In regard to the Convict Anil, I am of the conscientious view that he deserves non Parity with the other Convicts. It was his primary duty to have accorded proper protection to the Victim. Thus, I deem it proper to Sentence him to Rigorous Imprisonment for a period of 10 years and fine of Rs.10,000/ and in default of payment of fine, to further undergo SI for two months for the offence U/s 304B/34 IPC.
Convict Anil is further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.2,000/ and in default of payment of fine, to further undergo SI for 30 days for the offence U/s 498A/34 IPC.
No Compensation is hereby ordered having regard to the conduct of of PW1 and PW2 regarding which the Court desists to initiate any action for an attempted Perjury.
Result: Convicted Page 66 of 59 State Vs. Anil etc. FIR 823/14 (56488/2016)
Fine not paid.
All the Sentences awarded to all the Convicts shall run concurrently.
Benefit of Section 428 Cr.P.C. be given to all the convicts.
Copy of the Judgment and Order on Sentence be given to all the convicts free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) COURT ON:05.04.2017. ASJ05 (West), THC, Delhi.
Result: Convicted Page 67 of 59State Vs. Anil etc. FIR 823/14 (56488/2016) Result: Convicted Page 68 of 59