Delhi District Court
State vs (1) Ram Prakash on 25 July, 2017
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / (NORTH EAST):
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44626/2015
CNR No. DLNE01-000210-2012
STATE Versus (1) RAM PRAKASH
S/o Sone Lal
R/o H.No. 1059, Gali No. 21,
A-Block, Part-4,
Sonia Vihar, Delhi.
(2) DEEPAK KUMAR
S/o Ram Prakash
R/o H.No. 1059, Gali No. 21,
A-Block, Part-4,
Sonia Vihar, Delhi.
FIR No. : 105/12
PS. : Khajuri Khas
U/s. : 498-A/304-B/34 IPC
Chargesheet Filed On : 27.06.2012
Date Of Allocation : 12.07.2012
Judgment Reserved On : 25.07.2017
Judgment Announced On : 25.07.2017
JUDGMENT:
1. Both the above mentioned accused have been sent up for trial on the allegations that they caused dowry death of one Neelam i.e. wife of accused Deepak.
2. Deepak married Neelam on 09.02.2010. She was residing at her matrimonial house i.e. H.No. 1059, Gali No. 21, Part IV, A-Block, Sonia Vihar, Delhi. On 31.03.2012 a PCR call was received vide DD No. 36A in the PS Khajuri Khas. The caller was father of the deceased who informed that his FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 1 of 17 daughter had died at the abovesaid address and the death seemed unnatural. After receipt of this information, SI Dhian Singh reached the spot. He found Neelam lying dead there. He called the Mobile Crime Team and got the scene of crime inspected and photographed. He also informed the SDM concerned. The SDM recorded statement of Sh. Dhani Ram i.e. father of the deceased.
3. Sh. Dhani Ram alleged that he had married his daughter Neelam with Deepak and he had given all the necessary items in the marriage. He alleged that after four days of the marriage when he had gone to the matrimonial house of Neelam, accused Ram Prakash kicked his son and did not allow them to enter the house. He also alleged that the in-laws started demanding Rs.50,000/- and one motorcycle from Neelam and Neelam told about it when she had come to his house for stay. He alleged that his daughter died because of this demand of dowry. Upon this statement, FIR was registered u/s 498A/304B/34 IPC. Investigation was initiated.
4. During investigation both the accused were arrested. Dead body of Neelam was sent for postmortem. Viscera report was pending. Chargesheet was filed for the offences u/s 498A/304B/34 IPC against both the accused.
5. Later on, viscera report was also obtained and thereafter opinion was supplied regarding cause of death. The subsequent opinion was to the effect that "No definitive cause of death can be given. However, other uncommon poisonings cannot be ruled out". This was because common poisons could not be detected in the viscera of the deceased.
FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 2 of 17
6. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s. 304-B IPC was exclusively triable by it.
7. Vide order dated 21.08.2012, my learned Predecessor framed charges for offences u/s. 498-A/304-B/34 IPC against both the accused. Both the accused pleaded not guilty and claimed trial.
8. In order to prove the charges, the prosecution examined as many as 17 witnesses.
9. Statements of both the accused u/s 313 CrPC were recorded. They sought opportunity to examine witnesses in defence but later on did not examine any such witness.
10. Now evidence led by the parties may be noted.
COMPLAINANT / MATERIAL / PUBLIC WITNESS(ES)
11. PW-1 is Dhani Ram. He is father of the deceased Neelam. He deposed that he was a farmer by profession. He was illiterate. He deposed that Neelam was married with accused Deepak about three years back. He deposed that after about four days of the marriage, he alongwith his son namely Arvind aged about 15 years, went to matrimonial house of Neelam and he had taken sweets, fruits, wheat and pulses. He deposed that when he reached there, accused Ram Prakash, father-in-law of Neelam, while coming out from his house at Sonia Vihar, Delhi had kicked Arvind with intention to break the relations. PW-1 FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 3 of 17 gave the sweets, fruits, wheat and pulses at the matrimonial house of Neelam and came back to his house.
12. He deposed that he again had visited matrimonial house of Neelam after gap of two months of the first visit to bring Neelam back to his house. On that day, in the evening time accused Ram Prakash and accused Deepak had said to him that they would kill his daughter and throw her in Yamuna river as he was not fulfilling their demand of dowry of motorcycle and Rs.50,000/-. He deposed that it was beyond his capacity. He also deposed that accused persons did not allow him to take Neelam with him.
13. PW-1 further deposed that after one year of marriage, accused Deepak had come to his house alongwith Neelam. She stayed there for one night and returned back to her matrimonial home alongwith accused Deepak. During her stay, Neelam had told him that accused persons had directed her not to disclose anything to him. However, she had told him that accused persons used to beat her on account of demand of dowry of aforesaid motorcycle and Rs.50,000/-. He had advised Neelam to keep quite and have patience. PW-1 deposed that in the morning Deepak and Neelam had left his house. PW-1 further alleged that accused Deepak did not allow him to talk with his daughter. After about one year of marriage, Neelam had delivered a female child and regarding which no information was given to him. Neelam was having the girl child when she visited his house after about one year of her marriage.
14. He further deposed that on 31.03.2012 at about 6:00 pm accused FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 4 of 17 Deepak had telephonically informed him that his daughter was sick on account of swelling in her neck and asked him to come and see her. He had tried to get more information from him about the sickness of Neelam but accused Deepak stated that he was no having any time because he was taking Neelam to hospital. Immediately, PW-1 left for Delhi. PW-1 further deposed that brother of Deepak namely Sunil or Anil, telephonically informed him 'Neelam was no more'. He reached Delhi at the matrimonial home of Neelam and found her lying on ice slabs. He noticed swelling on the neck of Neelam. Accused Deepak had told him that Neelam had vomited two or three times and thereafter she died. He had asked accused Deepak and his family members as to where from Neelam was being medically treated. They had told him that Neelam was taken to some doctor. PW-1 had enquired from that doctor. He deposed that the doctor told him that Neelam was brought to him at about 3:00 pm. PW-1 deposed that at that time, accused Deepak had twisted his hand and said, "whether you will lodge an FIR (Kya Tum FIR Karvaoge)". He deposed that accused Deepak threatened to behead all the villagers who would come in support of PW-1 if any FIR was lodged. PW-1 became angry and went to PS and reported the matter there. Police had come to the matrimonial house of Neelam and conducted some enquiries there. The dead body was taken to hospital.
15. He also deposed about recording of his statement on the next day by the SDM which is Ex.PW1/A. PW-1 received the dead body of Neelam after postmortem. He had also identified the dead body of Neelam vide Ex.PW1/B. He deposed that he had got the cremation done in Delhi. Police had arrested FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 5 of 17 accused Ram Prakash and Deepak vide arrest memo Ex.PW1/C and Ex.PW1/E respectively and their personal search was carried out vide memo Ex.PW1/D and Ex.PW1/F. He deposed that during investigation he had handed over the marriage invitation card of marriage of accused Deepak and his daughter Neelam which was seized by the police vide seizure memo Ex.PW1/G. The marriage card is Ex.P-1.
16. In cross-examination, he denied the suggestion that he had not visited the matrimonial house of the deceased alongwith his son. He denied the suggestion that accused had informed him about birth of daughter to deceased. He admitted that he had not lodged any report with any authority in respect of demand of Rs.50,000/- and motorcycle by accused persons. He was confronted with his previous statement wherein allegation of accused Deepak threatening him and other villagers to behead them was not mentioned.
17. PW-2 is Smt. Dhan Devi. She is mother of the deceased. She also deposed about the married life of Neelam. She told the date of marriage as 09.02.2010. She also informed that accused Deepak is son of her Nanad. She also deposed about incident of giving kicks to her son by accused Ram Prakash but she told the name of the said son as Amrender instead of Arvind. She deposed for the most part on the same lines as PW-1 regarding demand of Rs.50,000/- and motorcycle by the accused persons. However, she was not telling all the facts and, therefore, was cross-examined by Ld. Addl. PP for the State. In the said cross-examination, she admitted about receipt of phone call FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 6 of 17 from accused Deepak vide which he informed that Neelam was seriously ill. She also admitted about receipt of phone call from Sunil about death of Neelam. She also admitted about going to Delhi with PW-1 and seeing dead body of Neelam lying there on ice slabs. She also admitted other facts as per her previous statement.
18. In cross-examination on behalf of accused persons, it has come that she knew about birth of daughter to Neelam one month prior to her visit in February 2011. It has come that they had not visited house of Neelam from February 2011 till March 2012 and that Neelam also did not contact them during this period. PW-2 also admitted that no complaint was made with any authority regarding dowry demands.
19. PW-5 is Arvind Kumar. He is brother of the deceased. He also deposed about various facts regarding demand of dowry by the accused persons. He also deposed about incident of kicking by accused Ram Prakash but he stated that it was not him who was given the kicks but rather his brother Amrender was the said person. Like PW-2, PW-5 was also cross-examined by Ld. Addl. PP and he admitted various suggestions as true. INVESTIGATION WITNESS(ES)
20. PW-3 is SI Dhian Singh. He deposed that information vide DD No. 36-A (Ex.PW3/A) was received in Police Station at about 11:10 pm of 31.03.2012. This call was assigned to him for further action. He alongwith Ct. FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 7 of 17 Rajiv (PW-6) went to the spot i.e. House No. 1059, Gali No. 21, Part IV, Sonia Vihar, Delhi. He noticed that dead body of Neelam was lying on the ice slab in front of aforesaid house. He deposed that SHO of PS Khajuri Khas alongwith his staff also reached there. On enquiry, it was revealed that the marriage of deceased had taken place about two years ago. Consequently, SDM of the area Sh. Radha Charan and crime team had reached at the spot. Crime team officials took photographs of the dead body. SDM Radha Charan inspected the room which was located on the first floor of the said house. No suspicious article was found in the aforesaid room. He deposed that the SDM directed to send the dead body at mortuary of GTB Hospital and to inform the parents of deceased. The name of deceased was revealed as Neelam, wife of Deepak. Brother of deceased namely Arvind and father of deceased namely Dhani Ram were found present at the spot and they were instructed to reach at GTB Hospital. Dead body of Neelam was transported to GTB Hospital mortuary through Ct. Rajiv.
21. He further deposed that on 01.04.2012, at around 9:00 or 9:30 am he reached at GTB Hospital mortuary. SDM Radha Charan had also reached there. He had prepared documents for conducting postmortem. Arvind and Dhani Ram had also reached at GTB Hospital mortuary. They identified the dead body of Neelam. After postmortem, dead body of Neelam was handed over to Dhani Ram and Arvind. He deposed that the SDM had recorded the statement of Dhani Ram and gave it to him and thereafter he went to police station and gave it to the SHO. The SHO recorded endorsement on the same and got registered this case. The investigation was taken by Insp. Vivekanand. PW-3 also narrated the facts FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 8 of 17 to the IO.
22. The defence did not cross-examine this witness.
23. PW-6 is Ct. Rajeev Kumar. He deposed about going to the spot with PW-3 and corroborated him. He deposed about receiving viscera box in sealed condition and one sealed parcel from the doctor which he handed over to the IO vide Ex.PW6/A. He also deposed about receiving postmortem report number 492/2012 and gave the same to the IO vide memo Ex.PW6/B.
24. PW-9 is SI U. Bala Shankaram. He was Incharge Crime Team, North-East District. He had visited the scene of crime alongwith his team on 31.03.2012. He inspected the scene. Other members of the team did other work. PW-9 prepared Scene of Crime (SOC) report which is Ex.PW9/A. There is no cross-examination.
25. PW-11 is Ct. Neeraj Kumar. He was photographer in the Mobile Crime Team. He had taken photographs of the spot. Photographs are Ex.PW11/B (colly.) and negatives are Ex.PW11/A (colly.).
26. PW-14 is HC Bijla Oraon. He was MHC(M) at the relevant time. He produced record of deposit and transfer of the case property. The record is Ex.PW14/A to D.
27. PW-15 is Insp. Om Dutt. He had received the investigation at the last stage. He tried to obtain viscera result but could not collect it. He filed the FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 9 of 17 chargesheet.
28. PW-16 is Insp. J.S. Mehta. PW-16 has obtained viscera result and filed supplementary chargesheet. The viscera result/FSL result is Ex.PW16/A.
29. PW-17 is Insp. Vivekanand. He received the investigation of this case on 01.04.2012. He prepared site plan Ex.PW17/A. He arrested both the accused and conducted their personal search. He proved all the memos in this regard. He had seized wedding card produced by mother of the deceased. He collected SOC report and photographs. He also collected P.M. report.
30. In cross-examination, he stated that he had not recorded statement of any neighbour but explained that no neighbour was coming forward to give statement. He denied the suggestion that he did not investigate the case fairly. MEDICAL/EXPERT WITNESSES
31. PW-12 is Dr. Priyal Jain. He proved the postmortem report prepared by Dr. Shabarish Dharam Pal having seen him writing and signing in the course of his duties. The same is Ex.PW12/A. FORMAL WITNESS(ES)
32. PW-4 is ASI Baldev Raj. He was duty officer at the relevant time. He had received the rukka from the SHO and put endorsement Ex.PW4/A FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 10 of 17 thereon. He also got registered the present FIR, copy of which is Ex.PW4/B.
33. PW-7 is Sh. Radha Charan. He was posted as SDM at the relevant time i.e. on 31.03.2012. He deposed about receiving call at about 11:00 pm from PS Khajuri Khas regarding death of one lady at A Block, Sonia Vihar. PW-7 visited the spot. He made enquiries from the ladies present over there but none had responded. He directed the police to send the dead body to GTB Hospital, Mortuary. He had inquired about the parents of the deceased.
34. On the next day, he recorded the statement of father of the deceased namely, Sh. Dhani Ram at GTB Hospital, Mortuary before the postmortem which is already Ex.PW1/A. He also conducted the inquest proceedings and filled up form no. 25.35(1)(B) which are Ex.PW5/A and 7/B. He had also directed the police to take necessary action.
35. PW-8 is HC Jagbir Singh. He deposed that on 31.03.2012 he was working as Duty Officer from 4:00 pm to 12 midnight. At 11:10 pm, an intimation was received at PS through Wireless Operator that a lady had died in unnatural circumstances. He had entered this information in DD No. 36-A. Copy of the same is already Ex.PW3/A.
36. PW-10 is Ct. Chander Shekhar. He deposed that on 25.04.2012 he was posted as constable in PS Khajuri Khas and on that day on the direction of IO he visited the office of Mobile Crime Team, NE District, Shahdara, Delhi and collected scene of crime inspection report and 10 photographs and thereafter he FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 11 of 17 handed over the same to IO. His statement was recorded by the IO.
37. PW-13 is Ct. Shiv Dutt. He deposed that on 18.05.2012, he was posted at PS Khajuri Khas. On that day, on the instructions of the IO, Insp. Vivekanand, he had collected a viscera box from the MHC(M) which was sealed with seal of MK alongwith a sample seal of MK, one sealed envelope also sealed with the seal of MK containing the photocopy of the PM report to FSL Rohini and deposited the exhibits there. He collected the receipt from FSL and deposited the same with the MHC(M). He deposed that till the exhibits remained with him they were not tampered with in any manner.
STATEMENTS OF ACCUSED PERSONS
38. Incriminating circumstances appearing in evidence against accused persons were put to them as required U/s. 313 CrPC. Both the accused stated that they were innocent and were falsely implicated. SUBMISSIONS OF THE PARTIES
39. I have heard Sh. R.K. Tanwar, learned Addl. PP for the State and Sh. Rishi Chawla, learned LAC for the accused persons.
40. Learned Addl. PP submitted that testimonies of family members of the deceased prove the charge fully. He argued that all the ingredients of the offences stand established on record. He prayed for conviction of the accused persons.
FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 12 of 17
41. On the other hand, learned Counsel for the accused persons submitted that there are several discrepancies and contradictions in the testimonies of PWs who are family members of the deceased. He pointed out that even the cause of death has not been established by the prosecution. He prayed for acquittal of the accused persons.
FINDINGS
42. From the submissions of the Ld. Counsels, the following points for determination arise in the present case:
a). Whether the death of Neelam was unnatural?
b). Whether it is a case of dowry death?
43. As already noted above, initially final opinion regarding cause of death was kept pending in view of non-availability of viscera report. Only later on, viscera report was made available. No common poisons were detected in the viscera. Subsequently, opinion was provided by the concerned doctor. He opined that definitive cause of death cannot be given but other uncommon poisoning cannot be ruled out.
44. Learned Addl. PP submitted that this subsequent opinion cannot be termed as against prosecution case. He submits that at least it recognizes that it might be a case of uncommon poisoning. He thus argued that it was case of unnatural death of Neelam. Per contra, learned Defence Counsel argued that FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 13 of 17 the report/subsequent opinion is in fact against prosecution case. He submits that it cannot be said with certainty that it is a case of poisoning. He contended that if it was case of poisoning, the investigating agency must have told as to which poison was used. He asserted that it cannot be called a case of unnatural death.
45. The answer to this issue is necessary. This is because only if the death is unnatural, it can come within the four corners of Sec. 304-B IPC.
46. Section 304-B, IPC, reads as follows:
Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purposes of this sub- section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
47. In my view, the report is inconclusive. Prosecution cannot derive any benefit from the same. Instead of providing any benefit, the report actually does more harm to the prosecution case. The investigating agency failed to identify the poison. For this reason, the cause of death was also not provided by the concerned doctor. As such, it will be difficult to term death of Neelam as a FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 14 of 17 death under abnormal circumstances. This will entail failure of the charge u/s 304-B IPC.
48. Even if it is assumed that death of Neelam was under abnormal circumstances, still charge is not proved. This is because the prosecution also failed to establish that deceased Neelam was subjected to any cruelty or harassment for, or in connection with, any demand of dowry or within the meaning of Sec. 498-A IPC.
49. No presumption u/s 113-B, Indian Evidence Act can be raised. The said section reads as under:
"113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.-- For the purposes of this section,"dowry death"
shall have the same meaning as in section 304B of the Indian Penal Code."
50. So, for raising presumption under the abovementioned section, it is again necessary to show that the woman was subjected to crelty or harassment for, or in connection with, any demand for dowry. The prosecution has failed to show the same.
51. Testimonies of PW-1, PW-2 and PW-5 leave much to be desired. There are flaws in their testimonies.
FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 15 of 17
52. PW-1 stated that after four days of marriage he had gone to the matrimonial house of Neelam with his son Arvind and alleged that accused Ram Prakash had given kicks to said Arvind with intention to break the relations. PW- 5 is Arvind himself. However, PW-5 says he had not gone with his father but rather his brother Amrender had gone with the father. PW-5 said that it was Amrender who was given kicks by accused Ram Prakash. Even PW-2 says that Amrender was given kicks. This is a major contradiction in the case of prosecution. This allegation was the starting point of all the allegations. When prosecution could not establish even this allegation, it must be held that case of the prosecution became weak. What is more damaging is that the said Amrender was never examined in the court.
53. There was no previous complaint regarding any harassment or cruelty to deceased Neelam. Neither the deceased nor her parents ever lodged any complaint against the accused persons. It was only after death of Neelam that allegations of harassment, cruelty and dowry demands cropped up.
54. PW-1 had alleged that he was not even informed of birth of child to Neelam. However, PW-2/mother of the deceased says that she was informed of the same. This is also a contradiction and major one.
55. Testimonies of family members of the deceased regarding these allegations is not consistent. PW-1 and PW-5 deposed at variance regarding kicks being given to Arvind or Amrender. PW-2/mother of the deceased was even cross-examined by learned Addl. PP. Many facts were suggested to her FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 16 of 17 which she admitted as correct. Evidence of PW-2 is thus weak evidence. Even PW-5/brother was cross-examined by learned Addl. PP. He too was suggested various facts which he admitted as correct. Evidence in the form of self serving suggestions are weak evidences as these are admissions by the witnesses in their favour and not against them. While admissions against the interest of the maker are good evidences but admissions advancing self interest are not so. For these reasons, evidence of these witnesses cannot be relied upon. It is not a case of dowry death.
56. Thus prosecution has failed to establish the charges. As a necessary consequence both the accused are entitled for acquittal and are hereby acquitted.
57. Accused persons are required to furnish bail bonds as per Sec. 437-A CrPC. At request of the accused persons, bonds already furnished by them are accepted further for a period of six months for the purposes of Sec. 437-A CrPC.
58. File be consigned to Record Room.
Announced in open court
on 25th day of July, 2017. Digitally signed by
SANJAY SANJAY BANSAL
Location:
BANSAL Karkardooma Court
Date: 2017.07.31
16:56:01 +0530
(Sanjay Bansal)
Special Judge (NDPS)/ASJ/
NE/KKD Courts/Delhi.
FIR No. 105/2012 PS Khajuri Khas State Vs. Ram Prakash & Anr. Page 17 of 17