Delhi District Court
State vs 1 Ravi Kumar (A-1) on 7 April, 2017
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Sessions Case No. 51585/2016
CNR No. DLNW01-000013-2013
FIR No. 106/2012
PS Aman Vihar
U/s 498-A/304-B/34 IPC
State Versus 1 Ravi Kumar (A-1)
Son of Sh. Rajender Kumar,
Resident of C-41A, Sangam Park
R.P. Bagh, Delhi.
2 Sudesh Devi (A-2)
Wife of Sh. Rajender Kumar,
Resident of C-41A, Sangam Park
R.P. Bagh, Delhi.
3 Rajender Kumar (A-3)
Son of late Sh. Raghubir Singh,
Resident of C-41A, Sangam Park
R.P. Bagh, Delhi.
Date of institution in Sessions Court: 16.02.2013
Date of conclusion of arguments : 24.03.2017
Date of pronouncement of judgment: 07.04.2017
Memo of Appearance:
Sh. A.B. Asthana, learned Addl. P.P. for State
Ms. Niharika Karanjawala, learned counsel for complainant
Sh. Sudesh Kr. Goyal & Anand Bhardwaj, learned defence counsels for
accused(s)
JUDGMENT
PROSECUTION STORY 1.0 Shivani (daughter of PW6 Kamal Kishore and PW13 Nanda Devi) got married to accused Ravi (A-1) on 11.12.2010. After marriage, she started residing FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 1 of 35 at her matrimonial home situated at C-41A, Sangam Park, R.P. Bagh, Delhi.
1.1 On 08.05.2012 at 6.45 PM, information was received from Sunder Lal Jain Hospital that Shivani had been brought dead by her husband Ravi. Police swung into action and investigation was carried out. Crime Team was requisitioned and spot was inspected and photographed. It was learnt that Shivani had committed suicide by hanging and the ligature material i.e. chunni was also seized from the spot. Concerned Executive Magistrate was informed about the incident and he also carried out inquest proceedings and recorded statements of parents of Shivani.
1.2 Kamal Kishore (PW6) divulged before the Executive Magistrate that whenever he used to talk to Shivani on phone, she used to tell him that Ravi (A-1) used to beat her up after consuming liquor and that his mother-in-law also used to beat her up and her father-in-law (A-3) used to demand car in dowry. He also revealed that on 07.05.2012 Shivani had come with her parents-in-law to their house and told him that she did not want to return as she apprehended that she would be killed. However, Shivani was convinced and was sent back and next day, they learnt that she had committed suicide. Accordingly, he prayed action against all the three accused.
1.3 Viscera report was collected from FSL and according to the final opinion of autopsy surgeon, death of Shivani was due to antemortem hanging.
1.4 Investigating agency concluded that sufficient incriminating evidence had surfaced against all the accused persons and accordingly they all were charge- sheeted for commission of offences under Sections 498A/304-B/34 IPC.
COGNIZANCE & CHARGE 2.0 Charge-sheet was submitted before the concerned Magisterial Court on 22.01.2013. Since offence under Section 304B IPC was triable exclusively by the Court of Sessions, case was committed.
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 2 of 352.1 Case was received on allocation by this Court on 16.02.2013.
2.2 Arguments on charge were heard and all the three accused were ordered to be charged under Sections 498A/304-B/302/34 IPC. Alternate charge under Section 306/34 IPC was also directed to be framed against them. They all pleaded not guilty and claimed trial.
PROSECUTION WITNESSES 3.0 Prosecution was directed to adduce evidence and has examined seventeen witnesses. Witnesses can be categorized as under:-
Public witnesses
(i) PW6 Kamal Kishore, father of deceased Shivani (to prove element of cruelty)
(ii) PW13 Nanda Devi, mother of deceased Shivani (to prove element of cruelty)
(iii) PW14 Manish, brother of deceased Shivani (to prove element of cruelty) Witnesses related to investigation
(i) PW2 HC Jai Singh (duty officer)
(ii) PW3 M.P. Kushwaha (Executive Magistrate)
(iii) PW5 HC Mehfooz (MHCM)
(iv) PW8 HC Sukhbir Singh (DD Writer)
(v) PW9 Ct. Virender (police official who deposited the pullanda with FSL)
(vi) PW10 SI (retd) Satpal (Incharge Crime Team)
(vii) PW11 W/Ct. Santosh (for proving arrest of A-2 and related investigation)
(viii) PW12 Ct. Parminder (Photographer Crime Team)
(ix) PW15 Insp. Dinesh Kumar (Third investigating officer)
(x) PW16 ASI Lekh Raj (First investigating officer)
(xi) PW17 Insp. Dharmendra Kumar (Second investigating officer) Doctors & Experts
(i) PW1 Dr. Bhim Singh (autopsy surgeon)
(ii) PW7 Dr. Lalit (doctor who examined Shivani at Sunder Lal Jain Hospital)
(iii) PW4 Santosh Tripathi (FSL Expert who gave viscera report) FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 3 of 35 STANCE OF ACCUSED
4.0 All the accused, in their respective statements recorded under Section 313 Cr.P.C., pleaded innocence and claimed that they had been falsely implicated.
4.1 Accused Ravi admitted the factum of marriage but denied any cruelty on his part or on the part of his parents.
4.2 When asked whether he wanted to say anything else, he answered as under in response to Q. No. 70:-
"I am innocent. I have been falsely implicated. Pooja wife of my elder brother Vicky is the cousin (daughter of bua of Shivani) of Shivani. My match was fixed with Shivani as the families were known to each other and on visiting terms.
Shivani was otherwise happy in our house and she used to remain disturbed due illicit relationship with her mother and one Amit. She was also short tampered. She also wanted to live independently at separate place like my brother Vicky. She used to remain upset as financial help was being given to Vicky by me and my parents as he was not having regular source of income. We were taking good care of Shivani. We were providing medical assistance as and when required. We had also got her insured with LIC. We also paid installments for committee, being run by her mother. Shivani used to cast doubt on my character as I was coming late to my house due to my service commitments. There was no dowry demand. No dowry was asked and no dowry was given before or after the marriage. We are financially better than the parental family of Shivani. I do not consume alcohol and we never tortured or beaten Shivani."
4.3 Accused desired to lead evidence in defence and examined following ten witnesses:-
S. No. Name of defence witness For proving
1 DW1 Prem Lal Sharma, AAO, LIC LIC Policy Bearing No. 126070420 in
the name of deceased Shivani
2 DW2 Mukesh Kumar, LDC, ESIC Health Insurance cover for Ravi &
Dispensary Shivani
3 DW3 Mahesh Kumar, Medical Treatment of Shivani when she was
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 4 of 35
Record Clerk, Girdhari Lal in family way
Maternity Hospital
4 DW4 Santosh Kumar Upadhayay OPD Card of Sunder Lal Jain
Hospital
5 DW5 Arvind Kumar, Ahlmad, Family Judicial Record pertaining to
Court GP12/14 pending in the Court of Sh.
Narotam Kaushal, learned Principal
Judge (N-W), Rohini.
6 DW6 Satish Singh, Record Keeper, Ultrasound reports of Shivani
Super Shakti Diagnostic Centre
7 DW7 K.V. Singh, Medical Record Medical Record of Shivani
Clerk, Hindu Rao Hospital, Delhi
8 DW8 Dr. Kamlesh Singh, Maternity Ante-Natal visit card of Shivani
Home, R.P. Bagh
9 DW9 Shyam Lal, Neigbour of To disprove cruelty
accused
10 DW10 Pooja, Jethani of Shivani To disprove cruelty
RIVAL CONTENTIONS
5.0 Learned Addl. P.P. has contended that prosecution has been able to
prove its case to the hilt. He has stated that all the material public witnesses i.e. parents and brother of Shivani have supported the case of prosecution in toto and have revealed the facts which clearly go on to show that Shivani was maltreated and tortured on account of dowry. He is also ably assisted by Ms. Niharika Karanjawala. According to her, besides proving the fact that it was a case of dowry death, it also stands amply proved that accused (s) had, in fact, killed Shivani and attempted to project as if it was a case of suicide. In this regard, she has heavily relied on various forensic angles, medical jurisprudence, crime scene report as well as the statements of witnesses including defence witnesses.
5.1 All such contentions have been refuted. According to defence, it is a false and fabricated case.
5.2 Defence contentions can be summarized as under:
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 5 of 35(I) None of the relative of parental side of deceased had revealed anything substantial during the investigation - either to the police or to the SDM which may indicate any demand of dowry or cruelty related thereto.
(ii) There are material improvements in the
statements made by parents & brother of Shivani.
(iii) Even if these improvements are scrutinized, there
is no specific date or time regarding alleged demand or cruelty.
(iv) Testimony of defence witnesses go on to indicate
the hollowness in the case of prosecution.
(v) DW Pooja (jethani of deceased Shivani) is cousin
of deceased Shivani as well who had been living in the same house. She has clearly revealed that there was no cruelty or demand of dowry and police, with some ulterior motive, did not try to examine her during the investigation.
(vi) Statements of prosecution witness and defence witness are required to be treated at par and equal weightage is required to be given to the statements of defence witnesses particularly to that of Ms. Pooja.
(vii) There is nothing on record which may indicate any foul play or that a murder has been projected as suicide.
5.3 Both the sides have also filed written synopsis and relied upon following judgments.
Judgments cited by complainant
(i) Sher Singh Vs. State of Haryana (2015) 3 SCC 724
(ii) Balwant Singh Vs. State of Punjab (2004) 7 SCC 724
(iii) Bansi Lal Vs. State of Haryana (2011) 11 SCC 359
(iv) Pawan Kumar & Ors. Vs. State of Haryana (1998) 3 SCC 309
(v) State Vs. Saravanan (2008) 17 SCC 587
(vi) State of UP Vs. M.K. Anthony (1985) 1 SCC 505
(vii) Sohrab s/o Beli Nayata & Anr. Vs. State of Madhya Pradesh (1972) 3
SCC 751
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 6 of 35
(viii) Jayaram Shiva Tagore & Ors. Vs. State of Maharashtra 1991 Supp (2)
SCC 677
(ix) Sunil Kumar Vs. State Govt. of NCT of Delhi (2003) 11 SCC 367
(x) Satya Pal Vs. State of Haryana (2014) 13 SCC 397
(xi) Rajbir @ Raju & Anr. Vs. State of Haryana (2010) 15 SCC 116
(xii) Rajesh Kr. Jain Vs. State 2017 SCC Online Del 7179
(xiii) Baldev Krishnan Vs. State of Punjab (1997) 4 SCC 486
(xiv) G.V. Siddarmesh Vs. State of Karnataka (2010) 3SCC359
Judgments cited by defence
(i) Baijnath & Ors. Vs. State of MP (2017) 1 SCC 101
(ii) Dinesh Kumar & Ors. Vs. State of NCT of Delhi (DHC) Crl. A. No.
210/2013 decided on 14.08.2014
(iii) Ramesh Chander & Ors. Vs. State of Delhi (DHC) Crl. A. No. 526/2002
decided on 21.12.2016
(iv) Shakuntala & Anr. Vs. State (DHC) Crl. A. No. 633/2004 decided on
27.01.2010
(v) Narender Singh Arora Vs. State (Govt. NCT of Delhi) (DHC) 173 (2010)
DLT 244
EVALUATION OF EVIDENCE
6.0 Accused persons are facing trial for commission of offences under
Sections 498-A/304-B/302/34 IPC besides alternate charge u/s 306/34 IPC.
6.1 I need not remind myself that the cruelty defined under Section 498-A IPC can be of varied nature and may not be restricted to dowry alone. As per explanation attached with Section 498-A IPC, any willful conduct which compels any married woman to commit suicide also falls within the definition of cruelty. As regards Section 306 IPC as well, abetment can be of any kind and may not be limited to dowry. However, as far as Section 304-B IPC is concerned, cruelty has to FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 7 of 35 be in reference to dowry and dowry alone. Sections 498-A IPC & 304-B IPC cannot be held to be mutually exclusive. These are two distinctive offences. Though element of "cruelty" is common to both penal sections but the definition of cruelty is much wider under Section 498-A IPC.
6.2 Charge under Section 302 IPC had been framed in view of the directions contained in case of Rajbir @ Raju & Anr Vs. State of Haryana AIR 2011 SC 568 though in one subsequent judgment of Apex Court cited as Jaswinder Singh & Ors. Vs. State (Govt of NCT of Delhi) (2013) 7 SCC 256, it was cautioned that such charge under Section 302 IPC was not required to be framed mechanically unless upon a prima facie appraisal of the evidence adduced before it, there was any room for doing so.
6.3 If prosecution succeeds in discharging the initial burden of proving all crucial ingredients of sec 304-B IPC, then Section 113-B of Indian Evidence Act can be effortlessly pressed into service for drawing requisite presumption against the accused for dowry death. However, before such invocation, prosecution is duty bound to establish all the ingredients of sec 304-B IPC. Sh. Goyal has also drawn my attention to one recent judgment of Supreme Court given in the case of Baijnath (supra) wherein it has been held that proof of cruelty or harassment is sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof and if prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof. Presumption is pressed because such type of offence is committed in privacy within four walls of the house and not under public gauze. Of course, presumption is rebuttable. Similarly, sec 113-A of Indian Evidence Act comes into play in context of sec 306 IPC. However, as regards Section 302 IPC, prosecution cannot dig out any advantage from the presumption clauses given under Indian Evidence Act and offence of culpable homicide is required to be proved by cogent and unimpeachable evidence. It can either be ocular or circumstantial or both.
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 8 of 356.4 For proving Section 304-B IPC, prosecution is required to show existence of following ingredients:-
(i) Death of woman should be within seven years of marriage.
(ii) Such death should be otherwise than under
normal circumstances.
(iii) Such woman must have been subjected to
cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in
connection with demand of dowry.
(v) Such cruelty or harassment shown to have
been meted out to her soon before her death.
6.5 There is no dispute about first two ingredients. Marriage in question had
taken place on 11.12.2010 and Shivani died on 08.05.2012. Thus, death is evidently within seven years of marriage. Neither suicidal nor homicidal death can be termed as normal and, therefore, death is under circumstances other than normal.
Endeavour is naturally to find out the existence of rest of the three ingredients.
6.6 Term "soon before" is elastic and there is no strait-jacket formula which may prove handy to say with certainty either way. Suffice it to say that the expression "soon before" would normally imply that the interval should not be much between the cruelty and the death in question. There must be live link between the two. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasize the idea that her death should, in all probabilities, have been direct consequence of such cruelty or harassment. In other words, there should be a discernible nexus between her death and the dowry related harassment or cruelty inflicted on her. Hiatus elapsed between the infliction of such harassment or cruelty and her death should not be wide and court is to decide on the facts and circumstances of each case, whether the interval in that FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 9 of 35 given case is sufficient to snuff its cord from the concept "soon before her death." Ms. Karanjawala has rightly relied on Sher Singh (supra), Balwant Singh (supra), Bansi Lal (supra) and Pawan Kumar (supra) in this regard.
6.7 Before starting assessing evidence, I would like to lay emphasis on the aspect of contradiction, omission and improvement. While prosecution would always assert that all it's all witnesses are credible, truthful and believable, defence would impeach their credit by asserting to the contrary. Defence would label them as unre- liable, interested, tutored, false and what not. To impeach the creditworthiness of any such witness, defence would, on most of the occasions, attempt to highlight the contradictions and significant omissions. On improvements, defence would contend that prosecution witness has deposed something new and unusual for the first time in court which was never revealed by him during the investigation.
6.8 As per sub section (3) of S. 155 of Indian Evidence Act, the credit of a witness may be impeached by the adverse party or with the consent of the court by the party who calls him, by contradicting former statement which is inconsistent or any part of his evidence which is liable to be contradicted. As per the restrictions laid down in S 162 of Cr. P .C. the previous statement i.e. the statement of the witness recorded during course of investigation u/s 161 of Cr. P .C. cannot be straightway used before the court in order to point out the omissions and contradictions and therefore, it is necessary to prove the omissions and contradictions as per procedure laid down in S. 145 and S. 137 of Indian Evidence Act.
6.9 'Contradiction', as the very word suggests, means to offer the contrary or opposite. If a witness has deposed in examination-in-chief a thing which he omitted to state before the police in his statement it is called omission. If the said omission is on minor issue, it is not required to be called as 'contradiction' and court should shrug off these omissions. However, omission on a material point is also construed as contradiction.
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 10 of 356.10 If the statement before the police, and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other, that both of them cannot co-exist, then it may be said that one contradicts the other. Further explanation to Section 162 of Code of Criminal Procedure, clarifies that an omission to state a fact or circumstance, may also amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in, which such omission occurs.
6.11 It is aptly observed in Tahsildar Singh Vs. State, AIR 1959, SC 1012 that ' relevant & material omissions amount to vital contradictions which can be established by cross- examination and confronting the witness with previous statement. Fact remains that every omission is not contradiction. Whether any omission tantamounts to contradiction in the particular context or not shall always be a question of fact.
6.12 Of course, statements made by the prosecution witnesses before the investigating officer, being the earliest in time, has its own importance and significance though there is no universal rule that these would always be unblemished and unadulterated. Nonetheless, introduction of new fact, amounting to contradiction, is certain to raise eye-brows.
6.13 There is no thumb rule or straight jacket formula for appreciation of contradictions and omissions. It will be worthwhile to refer to observations of Apex Court in Ganesh K. Gulve etc. v/s. State of Maharashtra AIR 2002 SC 3068 which read as under:-
"In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 11 of 35 state of affairs. It is for the courts to separate the grain from the chaff....."
6.14 Exaggeration and elaboration of crucial facts finding mention for the first time in witness box may not amount to contradiction always but in a serious-most category of offences when these come from any interested witness, these cannot be given a go by uncaringly more so when the burden of proof is onerous and is to be proved beyond doubt. Legal awareness has increased manifold. It should be. However, it brings with it an element of deliberate padding up to somehow ensure and secure conviction. I may not be understood of making any specific remark in the context of the present case. I only want to indicate that there is a room for such possibility and court has to make a very serious endeavour to find out whether improvements are deliberate with any ill-objective to prejudice the defence or not.
6.15 At the same time, Ms. Karanjawala is perfectly justified in placing reliance upon several authorities to buttress argument that minor details, which are elaborated later on during trial, trivial contradictions and insignificant omissions should not be given any dominance. I have considered the observations appearing in Sarvanan (supra), M.K.Anthony (supra), Beli Nayata (supra), Jayam Tagore (supra) and Sunil Kumar (supra) in this regard and I have no hesitation in accepting the fact that minor infirmities and discrepancies should not be given any importance. I would rather hasten to add that there would rarely be a fool-proof case or a case without any deviation. Nonetheless, crucial omissions and omissions need to be evaluated very minutely and in a circumspect manner. Improvement becomes relevant only when material and significant even as per Satyapal (supra) relied upon by her.
6.16 Keeping in mind the aforesaid basic propositions of law and components of aforesaid sections, I would be evaluating the present case under following heads:
(i) Death- suicidal or homicidal
(ii) Cruelty and its proximity
(iii) Investigational aspects
(iv) Conclusion
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 12 of 35
DEATH-SUICIDAL OR HOMICIDAL
7.0 Both the sides have emphasized on said issue in a vehement manner.
7.1 According to Ms. Karanjawala, it was never a case of suicide and rather,
Shivani was first killed by strangulation and then a story was fabricated in order to project as if she had committed suicide by hanging. It has been contended that on one hand, as per the telephonic call made by them, they did not want to break-open the door unless her parental-side relatives had come there and on the other hand, they, later on themselves, took Shivani to hospital without even waiting for such relatives. Learned Addl.PP has also stated that there are certain unexplained issues which make the death much more mysterious suggesting foul play.
7.2 Ms. Niharika Karanjawala, in particular, has highlighted several issues, which according to her, go on to demonstrate that it was definitely not a case of suicide. These are as under:-
i) As per postmortem report, the death had taken place between 12.30 PM and 2.30 PM on 08/05/2012 and, therefore, accused Ravi had no occasion to make call at 5.00 p.m. telling about quarrel between him and Shivani.
ii) Shivani, herself, had made a call to her parents at 1.30 p.m. and she was sounding in panic and had told her mother that she feared threat to her life.
iii) In case of hanging, the neck would be stretched and elongated, which features are missing in the present case. As per postmortem report, the postmortem straining/lividity was present along the back of the deceased and there was no such discolouration on the other dependent parts of the body in defiance of law of gravitation which also excludes the hypothesis of hanging.
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 13 of 35iv) The ligature size and pattern does not seem to be in synchronization with the theory of hanging.
v) The ligature material was never cut and was rather found lying on a bed with no knot which also indicates something amiss.
vi) Photographs of the crime scene also are not suggestive of hanging. Emphasis has been laid towards the photograph of ceiling fan as well as of the door showing broken-latch.
vii) Defence witnesses have claimed that the door was broken with the help of kicks whereas, it was impossible because the door could have been only pulled open and not pushed open.
7.3 All such contentions have been refuted by defence. According to Sh. Sudesh Goyal, after thorough investigation and inspection of the crime scene, investigating agency came to a specific conclusion of suicide by hanging and there is no fact and circumstance which may even remotely indicate that it was a case of homicide. He has come-up with following contentions on this score:-
i) Postmortem report is very clear and as per the report of autopsy surgeon, the death was due to ante-mortem hanging.
ii) There is no feature which may indicate it to be a case of homicide instead of suicide. The door of the room where Shivani had hanged herself was broken from outside by using force. Such application of force can be in both ways i.e. by pushing and pulling and the court should not take hyper-technical approach when the witnesses have claimed before the Court that force was used while opening the door. The photographs also do not depict any foul play.FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 14 of 35
iii) Once, after taking lunch, Shivani locked herself in her room, it was not possible for others to fathom as to what she was doing inside.
7.4 Defence has also relied upon judgment of Dinesh Kumar (supra) of our own High Court.
7.5 I have carefully considered the aforesaid contentions in the light of material available on record and evidence led by the parties.
7.6 As per Modi's book of Medical Jurisprudence and Toxicology, following are the key differences between hanging and strangulation:-
S. No. Hanging Strangulation
1 Mostly suicidal. Mostly homicidal.
2 Face-Usually pale and Face-Congested, livid and marked with
petechiae rare. petechiae.
3 Saliva-Dribbling out of the Saliva-No such dribbling.
mouth, down on the chin and
chest.
4 Neck-Stretched and Neck-Not so.
elongated in fresh bodies.
5 External signs of asphyxia, External signs of asphyxia, very well
usually not well marked. marked (minimal if death due to
vasovagal and carotid sinus effect).
6 Bleeding from the nose, Bleeding from the nose, mouth and ears
mouth and ears very rare. may be found.
7 Ligature mark-Oblique, non- Ligature mark-Horizontal or transverse
continuous placed high up in continuous, round the neck, low down in
the neck between the chin the neck below the thyroid, the base of
and the larynx, the base of the groove or furrow being soft and
the groove or furrow being reddish.
hard, yellow and parchment-
like.
8 Abrasions and ecchymoses Abrasions and ecchymoses round about
round about the edges of the the edges of the ligature mark, common. ligature mark, rare.
9 Subcutaneous tissues under Subcutaneous tissues under the mark-
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 15 of 35the mark-White, hard and Ecchymosed.
glistening.
10 Injury to the muscles of the Injury to the muscles of the neck-
neck-Rare. Common.
11 Carotid arteries, internal Carotid arteries, internal coats ordinarily
coats ruptured in violent ruptured.
cases of a long drop.
12 Fracture of the larynx and Fracture of the larynx and trachea-Often
trachea- Very rare and that found also hyoid bone.
too in judicial hanging.
13 Fracture-dislocation of the Fracture-dislocation of the cervical
cervical vertebrae-Common vertebrae-Rare.
in judicial hanging.
14 Scratches, abrasions and Scratches, abrasions fingernail marks and
bruises on the face, neck and bruises on the face, neck and other parts other parts of the body- of the body-Usually present.
Usually not present.
15 No evidence of sexual assault Sometimes evidence of sexual assault.
16 Emphysematous bullae on Emphysematous bullae on the surface of the surface of the lungs-Not the lungs-May be present.
present.
7.7 I have carefully perused the entire material available on record in the backdrop of the aforesaid contentions while keeping said key features of hanging vis-a-vis strangulation in mind and I have no hesitation in holding that it is a case of antemortem hanging.
7.8 Let me first refer to the postmortem report.
7.9 PW1 Dr. Bhim Singh has graced the witness box and he, in no uncertain words, deposed that the death was due to antemortem hanging. He was also shown the ligature material. Such ligature material i.e. chunni was examined by him and has been exhibited as Ex. P1 and he opined that the cause of death was due to such ligature.
7.10 On examination, he found following external and internal injuries:-
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 16 of 35External Examination: Incomplete ligature mark obliquely placed around the neck, reddish brown in colour, width varied from 2.5 cm to 3 cm, situated 5 cm below chin front, 6 cm wide at right ear lobule, on back side merging with hairs and absent on left side of neck. Total circumference of neck was 32 cm.
Internal Examination: All the visceral organs were found congested, stomach was full of semi digested food about 500 ml. Uterus was in menstrual phase.
7.11 Postmortem report has been proved by him as Ex. PW1/A and in such postmortem report, he also observed regarding neck: soft tissues as under:-
"No effusion of blood in neck structures, underlying area below ligature mark is glistening white."
7.12 In his subsequent opinion Ex.PW1/B, he categorically opined that the ligature mark present on the neck was possible by said chunni and the ligature mark was antemortem and as per his final opinion Ex. PW1/C, the death was due to antemortem hanging due to ligature.
7.13 Dr. Bhim Singh is a very important prosecution witness. His postmortem report clearly suggests that the death was suicidal. He seems sure and certain every inch and according to him, the death was due to antemortem hanging. Prosecution, for the reasons best known to it, did not ask any question elucidating any fact which may even remotely indicate that it was a case of homicide. Moreover, the salient features regarding 'no effusion of blood' and 'the underlying area below ligature mark glistening white' are clearly suggestive of suicide. Reference in this regard be also made to judgment of Dinesh Kumar (supra) relied upon by the defence wherein, study conducted by department of forensic medicine, P.D.U. Medical College and Hospital, Rajkot was extracted as under:-
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 17 of 35"In all cases of hanging underlying soft tissues of neck were pale, white and glistening, ligature mark was incompletely encircling the neck in 72 cases (80%) and obliquely present around the neck all 90 cases (100%) of hanging. In all cases of ligature strangulation underlying soft tissues showed extravasation of blood."
7.14 There is no injury mark over the body. If at all, there was any attempt of assault and if at all, the accused had strangulated Shivani, she must have also tried to defend herself and during such resistance, she would have received injury, bruise or abrasion. However, as per postmortem report, there was no injury over her body except the aforesaid ligature mark. I have also seen the MLC of Sunder Lal Jain Hospital which has been proved as Ex. PW7/A. As per MLC Ex. PW7/A of Shivani, as prepared by Sunder Lal Jain Hospital, she was brought to casualty in unconscious condition and she was declared dead. On local examination, "V" shaped ligature mark was found present on neck and angle of mandible. No other injury mark was seen.
7.15 I have carefully seen the crime scene report as well as the photographs and though the crime team officials and concerned photographer took the things little casually, fortunately, it has caused no prejudice either to the prosecution or to the defence. At the time of taking photographs, the photographs should have been taken from all the possible angles. The concerned photographer had though attempted to take one photograph of the ceiling fan but such photograph is only from one angle and the third blade is not very visible. According to learned counsel for complainant, there is dust over the blades on the top portion which suggests that no ligature was put across such fan. Though the argument looks fanciful but unless and until, the Court has a complete panoramic view of the fan from all the angles, it will not be possible to come to any definite conclusion in this regard. I also feel that investigating agency should have tried to re-construct the scene by placing a chair over the bed and then to see the height from such chair to the ceiling fan. Nothing of that sort has been done. In such type of sensitive and serious matters, ideally, the spot should be videographed and the dimensions of any such room should be FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 18 of 35 carefully taken including the height of the ceiling and distance between any such platform and any such fan. The photographs of the door were also not taken from closer angle. Undoubtedly, the photograph suggests that the door could have been 'pulled open' and not 'pushed open' and, therefore, it would not be right on the part of the defence witnesses to claim that the door was opened by kicking. However, fact remains that force was applied - be it inward or outward. I need not fall into jugglery of words particularly in view of the categoric report of Dr. Bhim Singh.
7.16 When Shivani was brought to Sunder Lal Jain Hospital, it was noticed that she was wearing number of ornaments. If at all, she had been assaulted and had been taken by surprise, there was no question of her being wearing so many ornaments. Though, it can be expected that while committing suicide, she must have thought of decorating herself fully with all such ornaments for her last journey.
7.17 Much has been contended on behalf of prosecution with respect to the time since death. Undoubtedly, according to postmortem report, time since death was 22-24 hours and since the postmortem examination was conducted on 09/05/2012 at 12.30 p.m., the death must have taken place between 12.30 noon and 2.30 p.m. According to Ms. Niharika, such fact, in itself, exposes the falsity in the defence as if at all, Shivani had died by 2.30 p.m., there was no question of her picking-up any quarrel with her husband at 5.00 p.m. However, such estimation of time is on tentative basis. Such opinion is based on various factors including rigor mortis, livor mortis (lividity), algor mortis (temperature loss in corpse), rate of decomposition etc. I also cannot be unmindful of the fact that semi-digested food was found in the stomach which has also potential to show that Shivani must have died around two hours after taking lunch. Unfortunately, we do not know as to when she had actually taken lunch and when she had retired to her room and locked herself in. Accused were expected to speak-up in this regard but they have chosen to keep mum. Since there was already a discord between the accused(s) and Shivani, quite possibly, they did not bother much when Shivani locked herself in. It was only when she did not open the door in the evening, they became frightened. Be that as it may, in view of the unimpeachable postmortem report of Dr. Bhim FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 19 of 35 Singh, I have no hesitation in excluding angle of any homicide.
7.18 Before parting with respect to conclusion on said issue, I would only expect that investigating agency keeps certain basic things in mind while visiting the scene of crime and inspects the scene very minutely and thoroughly and videograph the same and take requisite dimensions and also re-constructs the scene just to re- assure itself that it is proceeding in right direction. Mobile crime team has a very onerous task and should not take the things casually. If any young advocate can think such laymanish things, then why not grown-up and experienced policemen too.
CRUELTY AND ITS PROXIMITY 8.0 Shivani had not left behind any written note as such and, therefore, cruelty needs to be decoded from the testimony of her close relatives.
8.1 Her parents and brother have graced the witness box from the side of prosecution and her cousin sister from the side of defence.
8.2 PW6 Kamal Kishore happens to be father of Shivani. Before I weigh up his testimony it would be appropriate to recall as to what he had stated before the SDM. Before Sh. M.P. Kushwaha, Executive Magistrate, Kamal Kishore had claimed that Shivani used to tell him on phone that Ravi, after consuming alcohol, and her mother-in-law used to beat her up and her father-in-law used to demand car in dowry. In supplementary statement made by Kamal Kishore on 09.05.2012, he elaborated little further and claimed that Shivani had told that her father-in-law had lamented that Pulsar motorcycle had been given in dowry and if Eeco car had been given then the same would have enhanced their status in the society. Such statements also contain reference to her visit dated 07.05.2012.
8.3 Let me now see what PW6 Kamal Kishore has to offer in witness box. He deposed that at the time of marriage, he had given Pulsar motorcycle along with FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 20 of 35 other dowry articles. He used to have telephonic talks with Shivani and she used to complain that her husband Ravi used to beat her up after consuming liquor and her mother-in-law also used to beat her. He deposed that her father-in-law used to demand car and used to beat her after consuming liquor. According to him, Shivani visited their house on 07.05.2012 along with her parents-in-law and Shivani told him that she did not want to go to her matrimonial house as she would be killed by her in-laws. However, she was pacified and returned to her matrimonial home with her parents-in-law. Next day, phone call was received at about 10.30 AM and Shivani informed her mother that everything was alright. However, at about 1.30 PM, another call was received from Shivani. It was attended by Nanda Devi (wife of Kamal Kishore) and Shivani told her mother that she was being beaten up by her in- laws. Nanda Devi told Shivani that she would come in the evening. At about 6.30 PM, pursuant to another call, they reached Sunder Lal Jain Hospital where doctor informed that Shivani had died two hours before. He deposed that he suspected that accused persons had killed Shivani for demand of dowry. He supplemented that he was sure and certain in this regard. In his further examination-in-chief recorded on 20.04.2015, Kamal Kishore deposed that all the three accused used to torture his daughter for demand of dowry and used to demand Eeco car.
8.4 PW6 Kamal Kishore, in his cross-examination, claimed that he was working as parking guard in Hindustan Building and his son Manish was as liftman in same building. He was earning Rs. 8,000/- per month and Rs. 3,000-4000/- per month as overtime. According to him, his wife was doing the work of match-making but she was not getting any commission. According to him, he came in contact of family of accused only when Shivani got married to accused. When asked as to where Pooja (daughter of his sister Shakuntala) was married, he pleaded ignorance. He was shown photographs in this regard but he persisted in his stand and claimed that he did not know whether Pooja got married to Vicky, elder brother of Ravi. He did admit that Ravi was residing in bigger house than theirs. He did not know as to what Ravi was doing at the time of his marriage claiming that his wife could tell. He created mystification by claiming that he had not made any statement to SDM. According to him, he made the statement to SDM only when he had received the FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 21 of 35 dead body of Shivani at the hospital. According to him, he had told IO that in-laws of Shivani were harassing her for dowry demand. He also claimed that police did not record his statement properly as one of the accused was in Railway police. According to him, dowry demand started 5-6 months after the marriage of Shivani. He claimed that accused Rajender used to come in drunken condition and used to make demand while standing outside their house. He claimed that when Shivani had come to their house on 07.05.2012, she was not having any injury on her person though she was crying. He claimed that after sometime, accused Ravi made a call to his father Rajender and told him that he was sitting on a railway track and would end his life if Shivani did not return and thereafter Shivani left her house though unwillingly. According to him, no panchayat or reconciliation meeting was conducted to sort out the differences supplementing that they did not want to cause any further turmoil in their matrimonial life. He failed to give mobile number of Shivani, Ravi, his son Manish or his wife. According to him, he had given money, number of times to his wife on her demand whenever she went to visit Shivani at the hospital. He denied that all such expenses were borne by Ravi and his family. However, when asked to show any receipt in this regard, he claimed that he did not possess any such receipt. He deposed that he never made any complaint against police for not conducting the proper investigation and did not engage any counsel. He denied that he had made improvements in his examination-in-chief deliberately. He denied that proper care was taken by Ravi and his family and they never gave Shivani any occasion to make complaint. Few more suggestions were put to him which I would advert to later.
8.5 PW13 Nanda Devi has deposed that they had given sufficient dowry in the marriage besides a Pulsar motorcycle. After few days of marriage of Shivani, all the accused started maltreating and harassing her on account of insufficient dowry. Shivani used to tell her that Ravi and his father used to beat her up after consuming alcohol and even Sudesh Devi used to beat her. According to her, demand was of cash and Eeco car. She also claimed that accused knew that she was having some committees and she had given them money after getting such committees encashed. She deposed that on 07.05.2012 at about 8.00 PM, Shivani had come to FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 22 of 35 their house barefoot and was crying and was having bruise marks over her body. Within 5-10 minutes, her parents-in-law also followed her and Shivani told in their presence that she was tortured on account of dowry by all of them. She also showed her bruises and told Nanda Devi that they had beaten her up claiming that she would be beaten up in future also in case she did not bring them money. According to Nanda Devi, Shivani had claimed that she did not want to go back to her matrimonial home as she had escaped from there with great difficulty. According to her, accused Ravi also made a call to Shivani and asked her to return and not to say anything to her parents else he would die before a running train. She also overheard such conversation as she took the phone from the hands of her daughter. However, matter was got pacified and she was asked to go to her matrimonial home. In her further deposition, she claimed that on 08.05.2012, she received call from Shivani who told her that everything was alright and then another call was received at 1.30 PM when Shivani revealed that all the accused were beating her on account of dowry. She told Shivani that she would come in the evening along with elders and younger who had earlier got the matter pacified. At 5.00 PM, same day, Manish received a call from accused Ravi who had asked him to come immediately as Shivani had locked herself in a room. She and her son Manish started from their house and en route, they received a call from Sudesh Devi to reach Sunder Lal Jain Hospital as Shivani had hanged herself. When they reached hospital, accused Ravi and his mother were there and they learnt from the doctor that Shivani had died two hours back. She deposed that SDM had also recorded her statement but as at that time she was under complete shock, she could not depose all the facts properly. She, however, claimed that when police had recorded her statement three days later, she had told everything to police but police did not do anything.
8.6 It will be important to mention that in her statement recorded by Executive Magistrate, Nanda Devi had not mentioned anything substantial except that when Shivani had visited them on 07.05.2012, she was feeling scared and apprehended threat from her in-laws. In her statement under Section 161 Cr.P.C. she did reveal that Shivani had called her up on various occasions and told her that FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 23 of 35 her father-in-law used to claim that if Eeco car instead of Pulsar motorcycle had been given then the same would have enhanced their status in the society. No further assertion was made by her suggestive of any dowry or dowry-related harassment.
8.7 PW13 Nanda Devi claimed in her cross-examination that her husband was earning Rs. 15,000/- per month as guard and her son Manish Rs. 12,000/-pm. She admitted that she was doing the work of match-making and also admitted that she arranged match for Vicky and suggested name of his niece Pooja for him. She failed to give mobile number of her daughter Shivani or for that matter Ravi or her son Manish or her own mobile number. She claimed that accused had given them a list of articles which they wanted. She told such fact to the SDM and police. However, when confronted, she admitted that no such fact was recorded in those statements. On several other aspects also, she was confronted with her previous statement. It will be also important to mention that accused Ravi dared to record telephonic conversation which he had with Nanda Devi and during cross- examination, a CD was produced and the conversation was played. Fact, however, remains that as per Nanda Devi, such conversion was not audible and, therefore, she could not identify any voice. According to her, she had told about the dowry demand to SDM. However, when confronted, she did admit that no such fact was mentioned there. She claimed that they had not taken Shivani to hospital when she had come to their house on 07.05.2012 and had shown her bruises. She deposed that accused Sudesh and Rajender had also demanded dowry from them and she had revealed such fact to SDM as well as police. However, no such fact was found recorded in those statements. When asked, she could not tell the specific dates supplementing that there used to be frequent demands.
8.8 Manish Kumar had claimed in his statement under Section 161 Cr.P.C. that Shivani used to tell him that Ravi used to drink a lot and when she used to request him not to drink, Ravi used to abuse her. He also revealed that Vicky (elder brother of Ravi) was not working anywhere and parents-in-law of Shivani used to help him financially and Shivani used to object to such financial help. He had also FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 24 of 35 revealed about the incident dated 07.05.2012. His such statement was recorded by the police on 09.05.2012. Again, he did not make even a whisper regarding dowry or harassment related to dowry.
8.9 Let me see as to what Manish has deposed before the Court. He claimed that they had given sufficient dowry articles to the accused at the time of marriage and after few days of marriage, the demand of dowry from the side of accused increased and there was demand of Eeco car despite the fact that they had given a motorcycle in the marriage. He claimed that accused were demanding much more than what they had already given and accused Ravi used to beat his sister Shivani up for said reason after consuming alcohol and his sister used to tell all these things to his mother and in turn his mother used to tell these facts to him.
8.10 PW14 Manish deposed that he had visited matrimonial house of Shivani on various occasions and also talked to her and accused Ravi and tried to convince them that the matter would be sorted out with the help of elders in the family. He also claimed that on some occasions, Shivani also used to come to their house because accused used to demand dowry and used to harass her. PW14 Manish also claimed that Vicky was unemployed and all the three accused used to give him money to which Shivani used to object. He deposed that Shivani used to tell that if money was given to Vicky in that fashion, he would not work anywhere and for said reason also, all the three accused used to beat up Shivani.
8.11 On 07.05.2012, Shivani made call to him on his mobile phone from the mobile phone of accused Ravi and told him that all the accused were troubling her a lot and requested him to take her back. He told her he could not visit her as he was busy in his office. When he reached his house at about 10.00 PM, Shivani was at their house with her parents-in-law. He claimed that Shivani was crying and told them that accused persons had harassed her a lot on account of dowry and that she did not want to go back and since it was already late in the evening, they told Shivani that they would talk about the same next morning and Shivani left for her matrimonial house along with her mother-in-law. However, her father-in-law stayed FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 25 of 35 back at their house and after taking meals, he also left.
8.12 On 08.05.2012, Shivani told him on phone that all the accused were again harassing her for dowry and he told Shivani that they would come in the evening and would talk to accused. At about 5.00 PM, he got call from accused Ravi who told them that Shivani was quarreling with them and asked PW14 Manish to come there and to take her back. As per PW14 Manish, within next 15 minutes, accused Ravi called up again to inquire whether they were coming or not and they told him that they were coming. After five minutes, they got another call from accused Ravi and asked them to reach Sunder Lal Jain hospital. PW14 Manish deposed that they reached said hospital and talked to doctor who told them that Shivani had been brought late as she had already died two hours back. He claimed that his sister has died on account of harassment given to her by the accused persons. He also proved dead body identification statement and receipt of dead body as Ex. PW3/A & Ex. PW6/A respectively.
8.13 PW14 Manish Kumar claimed in cross-examination that he was earning Rs. 17,000/- per month as salary and overtime and his father of Rs. 15,000/- per month. He also admitted that his mother was doing the work of match-making but denied that she was earning anything. He claimed that she was running committees and even Shivani was member of one such committee. According to him, he did not know as to how marriage of Shivani got fixed as he was only 20 years old at that time. He claimed that his mother was taking care of all such things. He never met Ravi or his family prior to marriage of Shivani and though he knew Pooja but he claimed that he did not attend her marriage. He was confronted with his previous statement and claimed that he did not know as to why certain things which he had disclosed to the police were not recorded by the police. When asked whether he had stated before the police that accused used to beat Shivani as he used to come late in drunken condition and Shivani used to advise him not to take alcohol, he claimed that he never stated any such thing to the police. Fact, however, remains that such fact was found mentioned in his statement Ex. PW14/DA. He could not tell any date or month when Shivani visited them and FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 26 of 35 revealed about alleged demands. He claimed that Shivani never stated any such thing to him as she always used to tell everything to her mother and he learnt all these things from his mother only. As regards incident dated 07.05.2012, he deposed that he met Shivani at about 10.30 PM in front of their house and he had also seen swelling on her face. He claimed that he did not make any complaint against the police as to why police had not recorded correct and complete facts.
8.14 It is now important to take note of the various suggestions which have been put to all these witnesses by the defence. According to suggestions given by defence, Shivani was short tempered and adamant. She got spoilt due to extra love and affection and used to throw tantrums. She used to remain annoyed and used to quarrel because money used to be given by her in-laws to Vicky. Since Ravi used to come late, she used to doubt his character which was a self created illusion on her part. Shivani was not satisfied with the quality of her matrimonial life and facilities available her matrimonial home and she used to pressurize Ravi to live separately like Vicky. She committed suicide as her demand of living separately was not fulfilled. Shivani also used to remain tense due to illicit relationship between her mother and one Amit. Of course, all such suggestions have been brushed aside as incorrect.
8.15 Importance of testimony of Pooja also cannot be undermined in any manner whatsoever. She is holding dual capacity. If on one hand she happens to be the Jethani of Shivani, on the other, she also happens to be her elder cousin. She deposed that her marriage was very simple and so was Shivani's marriage. She also claimed that Shivani was short-tempered and used to become adamant if her demands were not met. She also claimed that her father-in-law i.e. accused Rajendra Kumar used to give extra money to them to run their house hold as Vicky was not having much income and Shivani never used to like such financial help. She deposed that Shivani used to quarrel with Ravi whenever he used to come late from his work.
FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 27 of 358.16 She deposed that there was never any demand of any nature by her in- laws from Shivani. According to her, accused persons had never misconducted themselves and their behaviour was good towards her as well as qua Shivani. She also revealed that accused Ravi had got remarried and such match was brought by her Mami i.e. Nanda Devi who felt that Ravi was innocent and had no involvement in the suicide of Shivani.
8.17 I have also seen her cross-examination. Though, she did admit that her brothers were better placed vis-a-vis brother of Shivani, yet she stuck to her stand taken in examination-in-chief. I cannot be unmindful of the fact that she is also a close relative of deceased Shivani. She was married in the same household and, therefore, her testimony has greater significance.
8.18 If prosecution wanted to show complete transparency and fair play, it should have rather itself examined Pooja during the course of investigation. Nothing of that sort was even attempted. I can understand the precarious position of Pooja. She, if I may say so, is caught between devil and deep sea. She seems dutiful wife but at the same time, she must be perturbed by the turn of event i.e. unfortunate death of Shivani. Be that as it may, there is nothing to suggest that her testimony is false or fabricated.
8.19 DW9 Shyam Lal happens to be neighbour of accused(s). He has also claimed that Shivani was adamant and of quarrelsome nature. According to him, Shivani used to lose temper in fit of anger and used to pick-up quarrel with accused Rajender who used to give money to his other son i.e. Vicky. She also used to doubt her husband. According to him, being immediate neighbour, he used to hear such quarrels and, therefore, learnt about the reasons behind such quarrel as well. He had also accompanied Rajender and his family to Sunder Lal Jain Hospital when Shivani had committed suicide. In his cross-examination, he claimed that on the fateful evening, he was sitting in a park along with accused Rajender when Ravi came there and told that Shivani was not opening the door. Then, they went to the house and the door was broken with the help of kicks and then they saw FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 28 of 35 Shivani hanging. Shivani was brought down and was taken to nearby hospital. I have also seen cross-examination of DW9 Shyam Lal. Though being neighbour, I may not attach much significance to his testimony, yet fact remains that equal treatment is required to be given to the evidence of prosecution witness and defence witness. Importantly, a careful perusal of case diary would indicate that same very witness was examined by police during investigation on 27/11/2012 but not cited as prosecution witness at all.
8.20 For a moment, if I exclude the testimony of DW9 Shyam Lal, I have no cogent reason to exclude the version of DW10 Pooja who is elder cousin of deceased Shivani and was married in same household five years prior to the marriage of Shivani. If at all, in-laws of Pooja were greedy or cruel, Nanda Devi would not have even thought of marrying her daughter in that family. She must have reassured herself in this regard by making inquiry from Pooja as well as from her sister-in-law Shakuntala and thereafter must have approved the marriage between the two.
8.21 In this regard, the testimony of father of Shivani is little suspectful.
8.22 For the reasons best known to him, he pleaded his ignorance about said marriage between Vicky and Pooja. So much so, he even did not identify Pooja when photographs were shown to him. He took shield behind the reason that he was not on cordial terms with his sister Shakuntala. However, his such stance is not believable one.
8.23 To recapitulate, PW6 Kamal Kishore claimed before the SDM that accused Ravi and his mother Sudesh Devi used to beat-up Shivani and accused Rajender Kumar used to demand a car. Mere demand, in itself, is not enough as per various judicial pronouncements. Moreover, curiously enough, PW6 Kamal Kishore has also gone to the extent of deposing that he had not given any statement before any official except the IO. He categorically claimed that he did not make any statement to SDM supplementing that he had given one statement only when he FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 29 of 35 had received the dead body. He is evidently referring to the identification statement which obviously is confined to identification and receipt of dead body. PW13 Nanda Devi, in her statement made before SDM confined herself to the incident dated 07/05/2012 claiming that Shivani did not want to return to her matrimonial home as she apprehended threat from her in-laws. She, in her such statement made to SDM which has been proved as Ex. PW3/C, did not clarify as to why she apprehended threat from her in-laws. She merely suspected that Shivani had committed suicide because of her in-laws. Statements made by parents of Shivani u/s 161 Cr.P.C. also do not contain any reference regarding dowry or cruelty related to dowry except for the desire of Eeco. Kamal Kishore had simply claimed therein that Ravi used to drink and abuse and that Shivani had told him that her father-in-law used to claim that only Pulsar motorcycle had been given in the marriage and if Eeco had been given, then they would have enhanced their prestige in the society. In his such statement u/s 161 Cr.P.C., in last, he claimed that Ravi used to drink daily and used to beat her up and her in-laws and her husband used to abuse her and, therefore, she used to remain mentally disturbed. Not a word was whispered by him as regards any dowry or cruelty or harassment. As per statement u/s 161 Cr.P.C. of Manish Kumar, Shivani had told him about the fact that her husband used to drink a lot and used to return late. She also told him that her father-in-law used to financially help Vicky and she used to object to such financial help. He also did not mention anything which may even remotely indicate that there was any cruelty or harassment linked with dowry. Moreover, testimony of Manish has shades of hearsay evidence. He has categorically claimed that Shivani used to confide in her mother and then, in turn, his mother used to tell him all these things.
8.24 A comparison of what they all stated during investigation and what they deposed during trial would lay bare the fact that they have come-up with embellishments and improvements. Even these are general and vague in nature. Undoubtedly, something must have happened on the evening of 07/05/2012. That day, Shivani had come to her parental home and her parents-in-law also followed her but it is also quite evident that the matter got patched-up as later, accused Rajender Kumar took dinner with them and then returned to his house. It is not very FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 30 of 35 much clear as to why Shivani did not want to return to her parental home. But merely because she had come to her parental home a day before would not by itself mean and indicate that her such visit was on account of any cruelty in connection with dowry.
8.25 I must append right here that there is apparent exaggeration regarding the incident dated 07/05/2012. If Nanda Devi is to be believed, then she had seen bruises over the body of Shivani when she had come that evening. If she was having bruises and if at all, even next afternoon, she had been beaten-up by her in- laws, at least the medical examination would have revealed and confirmed the same. I have already noticed above that nothing of that sort came to fore during such medical examination.
8.26 Be that as it may, there is an attempt to pad up the case by all material public witnesses of prosecution.
8.27 Reference be made to one Judgment of our own High Court cited as Jagdish & Others Vs. State 2010 (2) JCC 943 wherein it has been observed that it was difficult to rely upon the testimony of witnesses who had come up with marked improvements in their testimony vis-a-vis their previous statements recorded by SDM. In Nasib Chand v. State of Punjab, 2009(3) R.C.R.(Criminal) 285, it has been observed that the principle of law, laid down, was to the effect that the improvements throw doubt on the prosecution story. Improvements made by interested witnesses make their testimony vulnerable and reliance cannot be placed on such witnesses. Reference be also made to Badruddin Vs. State of Maharshtra 1981 CRI. L. J. 729 SC.
8.28 Nonetheless, accused cannot be permitted to claim that they are absolutely unblemished.
8.29 It has come on record that they used to abuse her and they used to beat her up. Accused Rajender Kumar also created mental cruelty by taunting that if FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 31 of 35 Eeco car had been given in the marriage, instead of Pulsar motorcycle, it would have enhanced their image in the society. Cruelty can be of varied kinds. It can be physical or mental or both. Here, physical cruelty emanates from the act of beating- up Shivani and mental cruelty from said taunt and teasing remark. I am also cognizant of the fact that Shivani was barely 18 when she got married and keeping in mind her young age, it was all the more important for all the accused to take care of her instead of leveling baseless, fallacious and unsubstantiated allegations. Accused persons have not chosen to enter into witness box by moving any application u/s 315 Cr.P.C. If at all, they thought that there were so many vices in Shivani, they should have entered into witness box to substantiate those.
8.30 Not taking proper care of Shivani is a clear sign of cruelty.
8.31 Cruelty can be committed by positive acts and also by omissions. By omitting to take proper care of Shivani, all the accused, inferentially, displayed heartlessness. Even on the date of the incident i.e. 08/05/2012, when Shivani, after taking lunch, retired to her room, accused persons were least bothered when she did not come out of her room for four hours approximately. Accused Rajender was sitting in a park and his son Ravi and his wife, who were in the house, did not even try to inquire from Shivani whether everything was alright with her and why she was not opening the door. Even when their statements u/s 313 Cr.P.C. were recorded, they did not choose to open-up and did not speak even a single word as to where were they along after lunch and till 6.00 p.m. Such indifferent attitude reflects their cruel behaviour qua Shivani. Surely, such act though amounts to cruelty within the ambit of Section 498A IPC but still falls short of abetment to commit suicide.
INVESTIGATIONAL ASPECTS 9.0 Various investigational aspects have been duly proved.
9.1 PW3 Sh. M.P. Kushwaha, Executive Magistrate, had recorded the statements of Kamal Kishore and Nanda Devi. He has proved the same. Though, FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 32 of 35 he did admit that there was gap between the end of the statement and the thumb impression of the maker of the statement in Ex. PW3/A, yet no foul play can be deciphered as Sh. Kushwaha has categorically claimed in his examination that he himself had recorded the statements and these were in his hand.
9.2 PW16 ASI Lekh Raj had reached Sunder Lal Jain Hospital and collected MLC of Shivani and informed SHO about the death of Shivani. He was the one who had summoned crime team and took possession of the chunni. I have also seen the testimony of concerned officials of crime team i.e. PW10 SI Satpal (in-charge, crime team) and PW12 Ct Parminder (photographer, crime team).
9.3 PW17 Inspector Dharmender Kumar had recommended registration of FIR vide his endorsement Ex. PW17/A. He also visited the spot and prepared site plan Ex. PW17/B. He also seized chair (Ex. P2) vide memo Ex. PW17/C and arrested accused Ravi as well as his mother next day. He also seized marriage card and photographs of marriage from mother of deceased. Seizure memo in this regard has been proved as Ex. PW13/A. 9.4 Later investigation was carried out by PW15 Inspector Dinesh. FIR has also been duly proved by concerned duty officer i.e. PW2 HC Jai Singh and malkhana in-charge PW5 HC Mehfooz has deposed about the entries maintained in register no. 19 and register no. 21.
9.5 I have also seen the testimony of other defence witnesses and it really does not matter much whether accused Ravi had obtained health insurance cover for self and for his wife and the fact that he took her to private as well as government hospital. There is no doubt that Shivani had given birth to a baby girl. Her medical reports related to her pregnancy are not much relevant in present context.
9.6 There is one more curious aspect of the case which I cannot resist commenting upon. Most of the time, there used to be conversation between Shivani FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 33 of 35 and her mother on mobile. It really beats my imagination as to why police did not attempt to collect the call detail records (CDR) of the mobile phone of Shivani as well as of her mother or father. Surprisingly, when specific questions were put to Kamal Kishore, his wife and his son Manish, none of them even revealed their mobile number. Case diary indicates that police had made request on 01/06/2012 to collect CDR of phone of accused Rajinder. Such CDR, in fact, is there on police file but neither any CAF (Customer Application Form) nor any certificate u/s 65B Evidence Act has been annexed. Being not part of challan, I cannot give any weightage to such document though court can draw adverse inference against prosecution for withholding the same.
CONCLUSION 10.0 Hypothesis of murder stands ruled out.
10.1 The testimony of Kamal Kishore, his wife Nanda Devi and his son Manish do not inspire much confidence in context of demand of dowry or cruelty related to dowry. They have come-up with improvements and overstatements. Even these embellishments are general and no specific date of any incident has been given.
10.2 In order to attract cruelty for the purpose of Section-304B IPC, the prosecution was duty bound to come with overwhelmingly trustworthy evidence. There is also not sufficient material on record to demonstrate that accused had deliberately omitted to take care of Shivani so that she is eventually compelled to commit suicide. Therefore, the element of abetment is also conspicuously missing.
10.3 However, it stands proved that all the three accused persons had not treated Shivani properly. She was abused. She was beaten-up. Accused Ravi was alcoholic and when Shivani asked him not to take the same, he used to beat her. Her advise not to help Vicky financially else he would adopt laid-back attitude was also not digested by accused and they used to beat her up for raising such FIR No. 106/12 PS Bharat Nagar (State Vs. Ravi Kumar etc) Page 34 of 35 objection. On these aspects, the testimony of Parents and brother of Shivani is found to be coherent, consistent throughout and inspiring one. Remark displaying hidden desire of Eco car being given in marriage, instead of Pulsar motorcycle, has also enough of potential to disturb her mental equilibrium and cause mental trauma. However, such expression of desire cannot be stretched too far and too away so as to fall within the sphere of graver penal sections i.e. sec 304-B and sec 306 IPC. Instances of beating-up and hurling abuses had no connection with any demand. As rightly observed in Dinesh Seth Vs. State of NCT of Delhi 2009(2) SCC (Cri) 783, the ingredient of cruelty is though common to sections 304B and 498A IPC but the width and scope of two sections is different. In Nandkishore alias Kishore vs. State Of Maharashtra 1995 CriLJ 3706 Bombay, while rejecting the contention that ill-treatment was implicit in demand, Hon'ble Bombay High court, while upholding the conviction u/s 498-A IPC and setting aside one u/s 304-B IPC, held that in their view, a reading of the evidence of Mahadeo would make that explicit that there was absolutely no connection between harassment and cruelty meted out to the deceased on one hand and the monetary demand of Rs. 50,000/- on the other and that those were independent of one another.
10.4 Resultantly, while granting the accused benefit of doubt and acquitting them of charges u/s 302/304-B/306/34 IPC, I hold all of them guilty u/s 498-A IPC read with Section 34 IPC and convict them thereunder.
Announced in the open Court (MANOJ JAIN)
On this 7th day of April 2017 Addl. Sessions Judge (FTC)
North-West District, Rohini: Delhi
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