Delhi District Court
State vs . 1. Aashish Tiwari, on 31 March, 2011
: 1 :
IN THE COURT OF SH. N. K. KAUSHIK
ADDL. SESSIONS JUDGE - 02 : DISTRICT COURTS DWARKA
NEW DELHI
S. C. No. 183/08
Date of Institution: 26.03.2008
Date on which Judgment Pronounced: 31.03.2011
Decision: Acquittal
FIR No. 1156/06
P.S. Dwarka
U/s. 498A/406/ 304B read with Section 34 IPC
In the matter of:
STATE Vs. 1. Aashish Tiwari,
S/o Mohan Chander Tiwari.
2. Mohan Chander Tiwari,
S/o Late Sh. Bachi Ram.
3. Gauri Devi,
W/o Mohan Chander Tiwari.
All residents of:
Flat no. 22, Pocket 1&2,
Sector3, Dwarka,
New Delhi.
..... Accused
FIR No.1156/06
State Vs. Aashish Tiwari & Ors. page 1 of 38 pages
: 2 :
JUDGMENT
1. The present case was registered on the statement of Kashi Ram Pujari, the father of the deceased, Deepa Tiwari.
2. Further investigation followed, which culminated into final report, under section 173 Cr.P.C. The challan was filed before the Illaqa Magistrate.
3. The case, being exclusively triable by the court of Session, was committed to the court of Sessions. It eventually came before this court for trial.
4. The case of the prosecution, in brief, is that, accused Aashish Tiwari, being the husband, accused Mohan Chander Tiwari, being father in law and Smt. Gauri Devi, being mother in law of deceased Deepa Tiwari, wife of accused Aashish Tiwari, in furtherance of their common intention, FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 2 of 38 pages : 3 : soon after her marriage, were raising demand of dowry and were harassing her on account of insufficient dowry. Accused persons, thus, allegedly committed an offence punishable under section 498A read with section 34 IPC.
5. Further, all the accused persons, during the above said period, in furtherance of their common intention, misappropriated the 'Streedhan' of deceased Deepa Tiwari. Accused persons, thus, allegedly committed an offence punishable under section 406 read with section 34 IPC.
6. Further, all the accused persons, in furtherance of their common intention, on 17.12.06, caused 'dowry death' of the deceased Deepa Tiwari as she died (within seven years of marriage) due to poisoning of the substance Zinc Phosphide, having been found in her viscera, after the postmortem report. Accused persons, thus, allegedly committed an offence punishable under section 304B read with section FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 3 of 38 pages : 4 : 34 IPC.
7. Primafacie, offences under section 498A, 406 and 304B read with section 34 IPC were made out against all the accused persons.
8. Charge, accordingly, was framed against all the accused persons, to which, they pleaded not guilty and claimed trial.
9. The prosecution, in order to substantiate its claim and contentions, examined twenty two witnesses, in all.
10. Thereafter, the accused persons were examined under section 313 Cr.P.C. Defence has also chosen to produce and examine three witnesses, in support of their defence.
11. I have carefully gone through the entire relevant material appearing on record and have given considered thoughts to FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 4 of 38 pages : 5 : the arguments that have been advanced, at the bar. My findings are as under:
12. PW1, Sh. Kashi Ram Pujari is the father of the deceased.
He has deposed that his daughter, Deepa was married to accused Aashish Tiwari and that in her marriage, 16 tollas of gold along with cash and other articles were given to accused Mohan Chander Tiwari. That he also gave Rs.2,00,000/ cash for the purpose of booking an Alto Car. That after marriage, the deceased came to their house and told them that the behaviour of accused persons was not cordial.
13. PW1 has further deposed that the deceased while weeping told them that they had married her in the family of animals but he pacified her and sent her to her matrimonial home. That the deceased phoned him number of times, reporting about the behaviour of her in laws, indicating that the same was not good.
FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 5 of 38 pages : 6 :
14. This witness has further deposed that in the month of May, 2006, he visited the matrimonial home of his daughter and gave Rs.1,00,000/ to her father in law. That in the month of June, he sold ornaments and gave Rs. 1,00,000/, but again, the accused persons started harassing the deceased.
15. PW1 has further deposed that on 05.09.2006, he sent his wife to Delhi, where she came to know that the accused persons were blaming the deceased as insane person and wanted to marry their son again, where from they would get a dowry of Rs.15,00,000/. That they came to know that accused Aashish Tiwari was having an extra marital affair.
16. PW1 has further deposed that the deceased was beaten up and on 24/25.10.06, she made a complaint to the police and after that she left for the house of Mohan Chander Pujari, his cousin. That he came next day to Delhi, when he was FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 6 of 38 pages : 7 : assured that such instances would not be repeated. That the deceased, thereafter, was taken back to her in laws' house. That thereafter, the deceased again started reporting to them that the accused persons were beating her and were not providing her food.
17. This witness has further deposed that on 16.12.06, he received a call that his daughter was in the hospital and that on 17.12.06, he was informed by one of the relative that she was no more.
18. This witness has further deposed that on 18.12.06, he reached Delhi. His statement, Ex.PW1/A was recorded by the Tehsildar. After postmortem, he received the body of deceased, vide memo, Ex.PW1/B. It also obtains from the deposition that letters, Ex.PW1/C and Ex.PW1/D were seized by the police, vide memo, Ex.PW1/B. The photograph of marriage of deceased, was seized vide memo, Ex.PW1/E. FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 7 of 38 pages : 8 :
19. In cross examination, this witness admitted that he is an income tax payee and each and every penny spent by him, is reflected in his income tax account. However, he has not placed any such thing on record to substantiate this.
20. This witness in cross examination further admitted that he never made any complaint to the mediators namely, Yugal Chand Pandey and Bhairon Dutt, regarding any harassment or demand of dowry nor any of his family members ever made any complaint against the accused persons. He was unable to give any proof that a sum of Rs.2,00,000/ was ever withdrawn from his bank account and also, either during the investigation or during the trial.
21. This witness has further admitted that the accused Aashish Tiwari visited their house in the month of April, 2006 and stayed there for 23 days and that during that period, he FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 8 of 38 pages : 9 : raised no dowry demands and that the entire stay was cordial. He further admitted that he did not mention in his statement to the SDM or to the police that he gave a sum of Rs.1,00,000/ in the month of May, 2006, when he visited allegedly, the matrimonial house of his deceased daughter.
22. Similarly, PW1 admitted that he did not mention in his earlier statement, regarding giving of 16 tollas of gold and a sum of Rs.62,000/ and other articles, as are asserted, in his examination in chief. He was confronted with statement, Ex.PW1/A, where he had alleged that he visited the matrimonial home of his deceased daughter in the month of May, 2006 and demand of Rs.1,00,000/, by the accused persons, was not mentioned.
23. Similarly, the statement, Ex.PW1/A did not contain that the deceased was subjected to harassment soon after marriage nor any telephonic calls were mentioned in the said FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 9 of 38 pages : 10 : statement. It was also not mentioned that a sum of Rs. 1,00,000/ was given by PW1 to the father in law of the deceased.
24. Similarly, PW1 was confronted with his statement, Ex.PW1/A on the deposition of selling of ornaments and giving of a sum of Rs.1,00,000/ to the accused persons or harassment caused to the deceased or regarding sending of his wife to Delhi, on 05.09.06 or that accused persons were expecting huge cash or that accused Aashish Tiwari was having an extra marital affair. All these allegations were not contained in Ex.PW1/A, admittedly. All this indicate, that this witness after the occurrence, as a matter of emotional disturbance or frustration has made bogus assertions, subsequently, to implicate the accused persons, falsely, in this case.
25. PW1 has further admitted in his cross examination that he did not state before SDM that all the accused persons had FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 10 of 38 pages : 11 : beaten her daughter and that this was complained to him or his family members by the deceased.
26. The deposition of this witness upon confrontation of his previous statement, clearly indicates that he had cooked up several false allegations, subsequently, just to create seriousness in the allegations. Had there been actual dowry demands and harassment consequent, to the non fulfillment of these demands, this witness would not have been silent, while making statement to the SDM.
27. In any case, in view of his cross examination, on specific aspects by the defence, it is indicated that definite exaggeration and improvements were made by this witness, when he deposed in the court. This shows that whatever, he has deposed, he has deposed on cooked up allegations as an afterthought. The deposition of this witness, therefore, does not inspire confidence, in as much as, allegations against FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 11 of 38 pages : 12 : the accused persons in this case, are concerned.
28. PW2, Sh. Bhuvan Chandra Pujari is the brother of the deceased. He has proved his statement, Ex.PW2/A, having been made before the SDM. Interestingly, in his cross examination, he admitted that he did not know the date, month or year of the engagement of his sister and as to where the same took place. He clearly, admitted that during the subsistence of marriage of the deceased with accused Aashish Tiwari, he never met the deceased. All this indicate how much unconcerned he was with the deceased and her life.
29. In his statement, Ex.PW2/A, admittedly, PW2 has not given any specific instance of cruelty, harassment or demand of dowry against the accused persons. This he has admitted in his cross examination also. He has admitted that he did not state in any of his statement that his sister used to tell him FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 12 of 38 pages : 13 : on telephone that the accused persons were harassing her on account of dowry demand and when she became pregnant, he used to enquire every day about her welfare or that the deceased never complained that the accused persons would kill her.
30. It, therefore, clearly obtains on record that whatever, he has deposed in his deposition before the court, was merely an afterthought and a cooked up story. His testimony does not inspire any confidence, therefore, in as much as, allegations against the accused persons are concerned.
31. PW3, Smt. Leela Devi is the mother of the deceased. She has come up with altogether a new story when she deposed before the court. She has deposed that deceased came to meet them after one month of the marriage and revealed that her in laws were not giving food to her in time and were also giving beatings.
FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 13 of 38 pages : 14 :
32. PW3 has further deposed that in the month of September, she was called to Delhi, when deceased was beaten up and was not given food in her presence and that accused Aashish asked her to take away her daughter as he wanted to marry again. That 15 days before her death, deceased phoned her and asked her to send a sum of Rs.2,00,000/, as per demand of accused persons, otherwise, they would kill the deceased.
33. In cross examination, she deposed that she made statement before SDM and before the police on 19.12.06 and that she went back to Ranikhet on that day itself and that she never returned to Delhi during investigation of this case. That her statement was never recorded by any police official at her native place after 19.12.06. This contradicts the material available on record by the police/prosecution, in as much as, her statement, under section 161 Cr.P.C, was allegedly, FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 14 of 38 pages : 15 : recorded on 20.12.06.
34. This witness was confronted with statement mark PW3/DA where not providing of food to the deceased was never stated by her.
35. Similarly, there was no mention, regarding alleged beatings of the deceased in the said statement and that accused Aashish Tiwari asked her to take her daughter and his wish to marry again. All this indicate that this witness was all out to make improvements as an afterthought, at the instance of other prosecution witnesses or the police.
36. PW3 was confronted with the statement mark PW3/DA, regarding sending of sum of Rs.2,00,000/ and that 15 days before her death, the deceased had given a phone call to her. This was also not contained, as deposed by her in court, in her previous statement made to the police. The perusal of FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 15 of 38 pages : 16 : the statement of this witness, therefore, clearly indicates that no confidence can be reposed in her testimony.
37. PW4 , Sh. Mohan Chand has almost damaged the whole of the case of the prosecution. He has clearly deposed that the deceased Deepa came to his house in October, 2006 and she told him that there was some mis understanding between her & her husband and her in laws on account of domestic affairs. That she being pregnant was asked to perform her household duties.
38. PW4 admitted that the deceased visited him on 24.10.06 and stayed there for 45 days. That on the last day of her stay in his house, Kashi Ram Pujari, the father of the deceased also visited Delhi and that all of them went to the house of accused persons during lunch. That they had long conversation and that there was no complaint from the side of Kashi Ram Pujari and that deceased Deepa Tiwari assured FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 16 of 38 pages : 17 : them that she will remain as a good Hindu wife in her matrimonial home, without giving any cause of complaint and that thereafter, they returned.
39. PW4 has specifically deposed that he left Kashi Ram Pujari at the house of accused persons and both of them took tea in a cordial atmosphere.
40. This witness has admitted that the complaint made by deceased Deepa Tiwari in Police Station Kotla Mubarakpur, was regarding mis understanding with her husband on account of some temperamental differences. Thus, there were no allegations, which were being made after the demise of the deceased. This, therefore, clearly shows that the other witnesses have concocted the story later on.
41. PW4 is the close relative of the deceased. There is no reason to discard his testimony. The prosecution has relied upon FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 17 of 38 pages : 18 : him. He has completely wiped out the false assertions made by PW1 to PW3, regarding alleged harassment to the deceased on account of dowry demand and or otherwise, as asserted by the other PWs. The case of the prosecution, therefore, gets demolished altogether in the wake of deposition of this witness.
42. PW5, Smt. Khusbu deposed that the deceased was very close to her. That in October, 2006, she met her and she started weeping and that she told the deceased to write a letter to her father. That after writing letter, she started sobbing and thereafter, this witness completed the letter on her dictation and that she added something from her side. That the said letter has been proved as Ex. PW1/D.
43. A perusal of the said document, however, does not inspire any confidence as the handwriting on the said letter has been proved by the prosecution itself to be not that of FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 18 of 38 pages : 19 : Khusbu. The deposition of this witness, therefore, gets demolished by the expert's opinion collected by the prosecution, itself.
44. PW6, Sh. Jitender Kumar is an expert, who came from FSL.
He has proved his report, Ex.PW6/A. However, he has admitted in his cross examination that he did not mention in his report as to with what seals, the jar containing Ex.1A to Ex.1D, were sealed.
45. PW6 further admitted that as per his office record, it was not mentioned as to whether Ex.1A to Ex.1D were sealed with the same seal, with which the box containing them, was sealed.
46. Similarly, PW6 did not record in the proceedings that he unsealed the sealed samples and after examination, he again sealed the same, specifically. All these admissions by FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 19 of 38 pages : 20 : this witness makes the samples referred to him doubtful to the extent that no effort was done by the prosecution to ensure that the samples were not tampered with. A serious doubt, therefore, in this regard, can very well be entertained.
47. PW7, Sh. Surender Singh is the Special Executive Magistrate. He deposed that he recorded the statement, Ex.PW2/A. He prepared the death report, Ex.PW7/A. He recorded the statement of PW1, vide Ex.PW1/A. He made endorsement on the same, which is Ex.PW7/B. That he made request for conduct of postmortem on the body of deceased, vide Ex.PW7/C. Brief facts prepared by him have been proved as Ex.PW7/D. The request for postmortem which was made by him has been proved by this witness, as Ex.PW7/E.
48. In cross examination, PW7 admitted that he made no enquiries from the neighbours. That the IO never intimated FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 20 of 38 pages : 21 : him that the family members of the deceased wanted to make any additional statement.
49. PW7 has further admitted that since the deceased died under normal circumstances, in the hospital, he recommended registration of FIR, under relevant sections of law (not including section 304 IPC).
50. PW7 has further admitted that he stated in the requisition letter for postmortem that the apparent cause of death of the deceased was that she died in the hospital during treatment.
51. It, therefore, obtains from his testimony on record that Special Executive Magistrate apparently, did not find any foul play as the deceased died in the hospital, while she was being treated for abnormalities during the stage of pregnancy.
FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 21 of 38 pages : 22 :
52. PW8, Inspector R.K. Meena deposed that he arrested accused Aashish Tiwari and Mohan Chander Tiwari on 18.12.06. He recorded their disclosure statements, Ex.PW8/A and Ex.PW8/B, respectively.
53. During investigation, PW8 seized articles, vide memo, Ex.PW8/C. He collected viscera from Lady Harding Hospital, vide seizure memo, Ex.PW8/D. The copy of receipt book and six photographs given to him by Kashi Ram Pujari, were seized, vide seizure memo, Ex.PW1/E. The admitted handwriting of deceased Deepa was collected by him, vide memo, Ex.PW8/E. One inland letter, which was handed over to him by PW Kashi Ram Pujari, was seized by him on 20.12.06, vide memo, Ex.PW8/F. Another inland letter dated 24.10.06 and a copy of DD entry no. 12A, dated 25.10.06 of Police Station Kotla Mubarakpur, were seized by this witness, vide memo, Ex.PW1/B. FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 22 of 38 pages : 23 :
54. PW9, HC Bhagwan Singh deposed that on 05.02.07, he took viscera to FSL Rohini, vide RC no. 107/21. That the viscera was sealed but he failed to recollect the seal on the day, when he deposed in the court.
55. In cross examination, PW9 deposed that his statement was not recorded in this case. He also expressed his ignorance as to whether entry was made in register no. 19, when he collected viscera sample.
56. PW10, ASI Balwan Singh deposed that on 17.12.06, after receiving DD entry no. 17, he went to Lady Harding Hospital, where he found that the deceased was lying dead. The information was given to SDM Najafgarh, who reached the hospital. In the hospital, brother of the deceased namely, Bhagat Tiwari, was already present.
FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 23 of 38 pages : 24 :
57. This witness further deposed that on 18.12.06, statement of the father of the deceased, was recorded by the Executive Magistrate. That inquest papers were prepared by the SDM and body of the deceased was sent for postmortem. That after postmortem, the body of the deceased was handed over to her relatives. The Executive Magistrate handed over rukka to him for registration of the case. That after registration of the case, the copy of FIR and original rukka were given by him to SI R.K. Meena.
58. PW11, HC Raghubir Singh deposed that he joined the investigation, on 18.12.06 and accused Mohan Chandra Tiwari and Aashish Tiwari, were arrested, vide memos, Ex.PW11/A and Ex.PW11/B and their personal search was conducted, vide memos, Ex.PW11/C and Ex.PW11/D, respectively.
59. PW12, Sh. Prakash Roy Duseja is the manager from HDFC FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 24 of 38 pages : 25 : Bank, who handed over account opening form and bank statement of Deepa Tiwari to the police. The same were seized, vide memo, Ex.PW12/A. The account opening form is Ex.PW12/B and statement of accused is Ex.PW12/C. This witness has also deposed that his statement was not recorded by the police.
60. PW13, Constable Sarla is a formal witness and has proved DD entry no. 17, copy of which is Ex.PW13/A.
61. PW14, ASI Suraj Bhan is a Duty Officer, who has proved the FIR, copy of which is Ex.PW14/B. He has proved his endorsement on rukka, which is Ex.PW14/A.
62. PW15, Constable Bijender Singh is another formal witness, who has proved DD entry no. 30, copy of which is Ex.PW15/A. FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 25 of 38 pages : 26 :
63. PW16, Dr. Rajiv Sharma proved the postmortem report, which is Ex.PW16/A. He has also proved his subsequent opinions, which are Ex.PW16/B and Ex.PW16/C, respectively. The cause of death, opined by him is death due to consumption of Zinc Phosphide, in this case.
64. This witness, however, admitted in his cross examination that the deceased was admitted in the hospital with the history of High Blood Pressure and that she was treated for the same as per MLC, Ex.PW16/D. That no treatment for poisoning by Zinc Phosphide was given as per said MLC. The deceased, admittedly, was admitted in the hospital, having High Blood Pressure. He has further admitted that as per Modi Medical Judis Prudence, in the event of consumption of Zinc Phosphide, the death occurs between 46 hours, which is not the case, in this case.
65. PW16 has further deposed that the symptoms of FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 26 of 38 pages : 27 : consumption of said poison, appears within an hour. Had it been the case of consumption of Zinc Phosphide, the symptoms would have been indicated during her treatment in the hospital, as the deceased was in the hospital for quite long. But this is not the case here.
66. This witness has further opined that at the time of postmortem, he did not observe or sense any such ordour of Zinc Phosphide. He further admitted that intake of Zinc Phosphide is generally suicidal or accidental and that poisoning by Zinc Phosphide by others is rare as per medical literature.
67. This doctor has further admitted that in the case of consumption of Zinc Phosphide, the colour of blood becomes Cherry Red and there is an onset of diarrhea and vomiting. These things were, admittedly, missing in the case of the deceased even in the hospital and till her death. FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 27 of 38 pages : 28 :
68. A severe blow has been inflicted by this witness to the entire case of the prosecution, when he deposed that viscera was handed over by him to the Executive Magistrate in Mortuary and which was duly acknowledged by him in his register. That the copy of that register was not given to the IO.
69. The case of the prosecution, on the other hand, is totally, opposite to this. It is, therefore, highly doubtful as to whose viscera was sent to FSL upon which, consumption of Zinc Phosphide report, has come. If the viscera of the deceased was not sent, then entire follow up actions and reports are to be taken as not correct. A very serious doubt, therefore, has been created by the deposition of this witness in the story, enacted by the prosecution.
70. PW17, HC Amar Kumar is a formal witness, who has proved the record in which, entries were transacted when FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 28 of 38 pages : 29 : the samples were deposited in maalkhana and were taken to FSL. The same have been proved as Ex.PW17/A to Ex.PW17/C.
71. PW18, HC Ved Singh has proved the arrest memos of the accused persons, which were prepared on 07.12.07. The same are Ex.PW18/A to Ex.PW18/C. That their disclosure statements were recorded, which are Ex.PW18/D to Ex.PW18/F.
72. PW19, ASI Gulab Chand is another formal witness, who has proved DD entry no. 12A, copy of which is Ex.PW19/A.
73. PW20, Dr. Shilpa Dhingra from Lady Harding Hospital has deposed that MLC, Ex.PW20/A, dated 16.12.2006 was prepared by Dr. Shivani Singh. She admitted in her cross examination that as per record, deceased Deepa Tiwari was admitted in the hospital when the deceased complained of FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 29 of 38 pages : 30 : High Blood Pressure and that during her stay in the hospital, she was treated for High Blood Pressure.
74. PW20 has further admitted it to be correct that the deceased was brought by her husband to the hospital for admission and that the patient was conscious and oriented and that the history of the deceased was given by the patient. It, therefore, further rules out any manipulations at the hands of the accused persons. If the deceased was conscious and oriented and was in the immediacy of the doctor, she would have definately revealed about the consumption of Zinc Phosphide. It, therefore, further damages the case of the prosecution.
75. PW21 SI Sunil Kumar has deposed that on 28.02.07, investigation of this case was entrusted to him. That he arrested accused Gauri Tiwari, vide arrest memo, Ex.PW21/A. This witness has also damaged the case of the FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 30 of 38 pages : 31 : prosecution, when he deposed that he had met the complainant frequently when the investigation was pending with him. That none of the family members of the complainant offered to tender their statements, while investigation remained with him. This indicates that the relatives of the deceased, whatever they have deposed, subsequently, was merely an after thought.
76. PW22 SI Surender Singh Dalal deposed that on 22.10.07, further investigation of this case was handed over to him. That on 25.10.07, he moved an application in Lady Harding Medical College for taking opinion. He obtained subsequent opinion on 31.10.07. That thereafter, he recorded statement of PW Bhuvan Chand Pujari and interrogated Dr. Rajiv and Dr. Shivani. He thereafter, added section 304B and 316 IPC.
77. That he arrested the accused persons, vide memo, Ex.PW18/A, Ex.PW18/B and Ex.PW18/C, respectively. These FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 31 of 38 pages : 32 : memos have already been proved by PW18. That the documents handed over to him by the father of the deceased, were seized vide memo, Ex.PW22/C. That the admitted writing of the deceased was seized, vide memo, Ex.PW22/C. That during trial, he received FSL result, which is Ex.PW22/D, which was tendered.
78. He has also proved DD entry no. 2, dated 18.12.2010 and DD entry no. 12A, dt. 25.10.06, copies of the same are Ex.PW22/E and Ex.PW22/F, respectively.
79. The apex court has held in the case laws reported as 2003 (1) RCR (Criminal) 104 S.C.; 1993 (3) SCT 422; Kanti Lal Vs. State of Rajasthan 2009 (3) RAJ 438 SC and Prem Kumar Vs. State of Rajasthan 2009 (1) RAJ 424 SC, that to prove the offence under section 304B IPC, following ingredients are necessarily required to be proved by the prosecution:
(i) That the death of a woman is caused by any burns or FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 32 of 38 pages : 33 : bodily injury; or
(ii) that the death occurs otherwise than under normal circumstances; and
(iii) that the aforesaid two facts spring within seven years of girl's marriage; and
(iv) 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.
80. From the above discussion and the evidence, led by the prosecution witnesses, it is clear that the prosecution has miserably failed in establishing any live link between the death of deceased and the alleged demand of dowry. The prosecution has also failed to prove that there was any harassment to the deceased on account of the demand of FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 33 of 38 pages : 34 : dowry.
81. Further, the prosecution witnesses have created a very serious doubt and have nowhere explained as to in whose possession, the viscera remained up to 18.12.06. That it has been shown to have been seized by Inspector R.K. Meena PW18, vide seizure memo, Ex.PW18/D.
82. PW16, Dr. Rajiv Sharma, however, in this regard has given altogether a different picture as according to him, the viscera was handed over to PW7 Sh. Surender Singh. As per the story of the prosecution, on the other hand, it has not reached PW16 through PW7. It is also doubtful as to whether the viscera was sent in duly sealed condition. The statements of PW6 Sh. Jitender Kumar and PW9 HC Bhagwan Singh clearly, demonstrate this.
83. The death by poisoning of the deceased, under the FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 34 of 38 pages : 35 : circumstances, can be ruled out, in view of the treatment given to the deceased of High Blood Pressure in two hospitals, the later being a government hospital, where the deceased was treated for a considerable time.
84. PW4 Sh. Mohan Chander has completely wiped out the allegations raised by the prosecution, regarding two letters, relied upon by the prosecution, as discussed above.
85. It has appeared on record that the accused persons had been caring for the deceased during the stage of pregnancy, as is evident from the fact that on the complaint of High Blood Pressure, the accused persons themselves took the deceased to the hospital, where she was admitted for complaints of high blood pressure during her pregnancy and later on, on the advice of that Hospital, she was shifted to the Lady Harding Medical College, where she was admitted and treated also.
FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 35 of 38 pages : 36 :
86. At the time of admission in the hospital, the deceased, admittedly, was conscious and fully oriented and did not report, anything regarding either consumption of Zinc Phosphide or of any other poison or of any harassment, having been caused to her by any of the accused persons.
87. The MLCs Ex.PW20/A and Ex.PW16/D do not contain even an iota of whisper, indicating, anything that the deceased had consumed or was administered Zinc Phosphide. There is no investigation available on record, having been carried out by the police that the poison was consumed by the deceased for suicide or accidentally or that it was forced into the system of the deceased.
88. The totality of the circumstances available on record, therefore, clearly indicate that the case was registered on mental disturbance/frustration of the relatives of the FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 36 of 38 pages : 37 : deceased, once, the deceased was no more and that it was based only upon the afterthought allegations.
89. Since the prosecution witnesses have not been able to prove the prosecution case, there is no need to discuss the defence evidence.
90. In any case, the prosecution has not only failed but has failed miserably by not connecting the accused persons with the alleged offences under section 498A, 406 or 304B IPC read with section 34 IPC. That being so, I have no option but to acquit the accused persons.
91. The accused persons are, accordingly, acquitted.
92. Their bails bonds are discharged.
FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 37 of 38 pages : 38 :
93. File be consigned to record room.
ANNOUNCED IN OPEN COURT ON 31.03.2011 (N. K. KAUSHIK) ADDL. SESSIONS JUDGE - 02 DWARKA DISTRICT COURTS, DELHI/ 31.03.2011 FIR No.1156/06 State Vs. Aashish Tiwari & Ors. page 38 of 38 pages