Delhi District Court
St. vs . Manoj Etc. Fir No.161/03, Ps Alipur ... on 28 November, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION
JUDGENW: ROHINI COURTS: DELHI
Session Case No.: 1065/09
Unique Case ID No.: 02404R0136902006
State (1) Manoj Kumar
S/o Late Dev Dutt Chauhan
R/o House No. 1090,
Tigri Pur Mor, Bakhtawarpur,
Delhi - 110036
(Convicted)
(2) Prakashwati
W/o Late Dev Dutt Chauhan
R/o House No. 1090,
Tigri Pur Mor, Bakhtawarpur,
Delhi - 110036
(Acquitted)
(3) Kumari Rachna
D/o Late Dev Dutt Chauhan
R/o House No. 1090,
Tigri Pur Mor, Bakhtawarpur,
Delhi - 110036
(Discharged - 11.5.2005)
FIR No.: 161/2003
Police Station: Alipur
Under Section: 498A/304B/406/34 IPC
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 1
Date of committal to sessions court: 16.2.2005
Date on which orders were reserved: 29.10.2011
Judgment announced on: 15.11.2011
JUDGMENT:
As per the allegations on 17.2.2002 the accused Manoj Kumar was married to Rachna according to Hindu Rites and customs at Sonepat and after the marriage she had gone to her matrimonial home at Bakhtavar Pur, Delhi. After the marriage, the accused Manoj Kumar being the husband and accused Prakashwati being the mother inlaw of deceased Rachna in furtherance of their common intention subjected Rachna to cruelty and harassed her for unlawful demand. It has also been alleged that on the intervening night of 18/19.5.2003 the death of Smt. Rachna occurred under otherwise than normal circumstances within seven years of her marriage and soon before her death, Rachna was subjected to cruelty or harassment by the accused Manoj Kumar being husband and accused Prakashwati being the motherinlaw of deceased Rachna in furtherance of their common intention for or in connection with the demand of dowry and they committed dowry death of Rachna. It has also been alleged that in furtherance of their common intention all the accused committed murder of Smt. Rachna.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 2 BRIEF FACTS Case of the prosecution:
The case of the prosecution is that on 18.5.2003 DD No. 35B was received in Police Station Alipur pursuant to which SI Ram Saran along with Ct. Baljeet reached at Santom Hospital, Prashant Vihar where they found one Smt. Rachna admitted who was declared fit for statement. The statement of the injured was recorded wherein she informed the police that she had consumed Celphos tablets since she had realized that she could not conceive. Thereafter SDM Narela was informed about the same since the marriage of Rachna had taken place about one and a half years back. The SDM Narela reached the hospital and in the meanwhile Smt. Rachna expired after which the SDM sent the dead body to mortuary and recorded the statement of Rana Bahadur father of the deceased and Smt. Saroj Bala mother of the deceased. They have in their statement alleged that their daughter was being harassed for dowry demands by her husband Manoj, her motherinlaw Prakashwati and her Nanand Kumari Rachna. On the basis of the statements made by the aforesaid relatives of the deceased, the SDM Narela directed the SHO Police Station to register an FIR. Thereafter, the present FIR was registered and the accused persons were arrested and charge sheeted.
Vide order dated 11.5.2005 the Ld. Predecessor of this court discharged the accused Kumari Archna for the alleged St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 3 commission of the offence under Section 304B/498A/406 IPC and also discharged the accused Manoj Kumar and Prakashwati for the offence under Section 406 Indian Penal Code.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 304B/498A/34 Indian Penal Code to which they have pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as twelve witnesses.
Complainant/ Public witnesses:
PW8 Rana Bahadur Singh is the father of the deceased who has deposed that he had three sons and one daughter Rachna who was married to accused Manoj on 17.2.2002 according to Hindu rites and customs. According to him, he had given sufficient dowry in her marriage and her daughter went to her matrimonial home at Bakhtawarpur after her marriage. He has deposed that after some time on 4.5.2002 the cousin of accused Manoj got married who got a Maruti 800 car in marriage as dowry after which the inlaws of her daughter started harassing his daughter for bringing car or cash in lieu St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 4 of the car. The witness has testified that on 19.5.2003 he received a telephonic call informing that his daughter was not feeling well on which he went to village Bakhtawarpur i.e. the matrimonial home of his daughter at about 9:30 am where he came to know that his daughter was admitted in Babu Jagjeevan Ram Memorial hospital and therefore he went to the BJRM hospital where he came to know that his daughter had expired. According to PW8, he got his daughter admitted in M.A. (Economics) and after passing he got her admitted in B. Ed. in Chaudhary Charan Singh University, Meerut in a college in NOIDA and on 16.5.2003 he had gone to NOIDA to make arrangement for her residence as her classes were from Monday to Friday. PW8 has testified that his daughter informed him on telephone that she was being harassed by her husband and motherin law and sisterinlaw Rachna. He has deposed that he had paid the college fees of his daughter for the courses in Economics and B. Ed. and in August 2002 Prakashwati took his daughter to Vaishno Devi against the advice of doctors as his daughter was pregnant at that time. The witness has also testified that his daughter had to undergo abortion and the doctors advised her complete rest but the accused Prakashwati used to take household work from his daughter and in the month of November 2002 his daughter was again got aborted. He has testified that because of this torture his daughter might have committed suicide. According to him, he had given Rs.51,000/ in the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 5 marriage as demanded by the accused Manoj and when his daughter reached her matrimonial home accused persons started harassing her and demanded gold, cash and car from him through his daughter. He has also alleged that the accused persons compelled his daughter to write a suicide note since there was no reason for his daughter to commit suicide as he had got her admitted in B. Ed. course on 16.5.2003. He has proved his statement recorded by the SDM which is Ex.PW8/A and later on the statement of his wife was also recorded.
PW8 has also proved having identified the dead body of his daughter Rachna vide statement Ex.PW8/B and after postmortem the dead body was handed over to him vide handing over memo which is Ex.PW8/C. The witness has further deposed that on 20.7.2003 he along with Inspector Pratap Singh, SI Ram Sharan Sharma and staff reached at village Bhaktawarpur and dowry articles and istridhan was taken into possession vide seizure memo Ex.PW8/D. In his crossexamination the witness has deposed that her daughter was doing M.A. Economics at the time of marriage and the Roka ceremony was performed on 26.10.2001 and engagement took place on 16.2.2002 and marriage was performed on 17.2.2002 at Sonepat. According to him, he had given the gifts and articles to his daughter at the time of her marriage and Sagai as per his capacity of his own which gifts and dowry articles were being used by his St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 6 daughter till her death. He has further deposed that his daughter was happy with her marriage and she never complained him in writing against the accused persons but used to tell him on telephone that the accused persons used to harass her. The witness has also testified that his daughter had told him for the first time in April 2002 that accused persons used to harass her which fact he never told to any person nor did he tell the SDM about the said fact. According to PW8, he did not make any complaint either orally or in writing against the accused persons regarding harassment of his daughter by the accused persons. He has admitted that on 30.8.2002 his daughter was having a abortion in the Sethi Nursing Home and deposed that his daughter was having another abortion on 16.11.2002 which according to him was got done by the accused persons. He is not aware of the name of the hospital where his daughter was admitted for abortion but states it was in Sonepat. He has denied the suggestion that his daughter was aborted on 16.11.2002 at which time she had come to stay at their house at Sonepat. The witness has further denied that one uterus tube of his daughter had got infected at the time of first abortion or that her second uterus tube had got infected at the time of her her second abortion. He has also denied that cyst was found in the uterus tubes of his daughter for which treatment had started. He has further deposed that she was admitted on 20.12.2002 in Tirath Ram Hospital where the operation of one uterus tube was conducted by the doctors. He has St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 7 denied that due to infection the ovaries of his daughter were removed in the Tiarth Ram Hospital or that his daughter went into depression after the operations. According to him, Dr. Sethi of Sethi Nursing Home advised not to take his daughter to Vaishno Devi but he did not give him in writing with regard to the same. PW8 has testified that he had no personal talks with Dr. Sethi and the doctor of Ram Tirath Hospital advised for three months bed rest after the operation of his daughter but the same was not given in writing. He has denied the suggestion that due to the complications and biological problems in the body of his daughter, she had to undergo abortions or that she used to write her feelings on the papers. According to the witness, he made requests to the accused persons after her complaint not to harass his daughter which fact he had told to the SDM. PW8 has been confronted with his statement Ex.PW8/A wherein the said fact is not recorded. He has deposed that he had gone to the house of accused persons to make the request for the first time in May 2002. He has denied the suggestion that his daughter was never harassed by the accused persons or that no demand was made by the accused persons at any point of time.
According to the witness, some family member of one Jai Bhagwan rang up at about 8:30 am at the residence of his inlaws about the illness of his daughter on 19.5.2003 and his wife was at Sonepat at that time. He has admitted that the brother of accused St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 8 Manoj and his uncle came to inform at Sonepat about the illness of his daughter on 19.5.2003 at 3:00 am and he was told about this fact by one Shakti Singh in Delhi. According to him, his wife reached in the hospital around 4 to 4:30 am on the morning of 19.5.2003 and was brought from Sonepat by the brother and uncle of the accused Manoj. He has testified that he saw the dead body of his daughter for the first time around 4:00 pm on 19.5.2003 and his wife saw her dead body for the first time at about 7 to 7:30 pm on 19.5.2003. The witness has further deposed that he had no talks with the doctor of the Santom Hospital regarding the cause of death of his daughter. He has testified that he is not having any receipt to show that he was making the payment of fee of his daughter. According to PW8, he came to know from the papers that his daughter had made a statement to the police in the presence of the doctors of Santom Hospital but the said statement has not been signed by his daughter and he never made any complaint to any authority complaining that his daughter never gave such statement to the police. The witness has further deposed that he did not tell the SDM that the said suicide note is not of his daughter since he was not in a fit state of mind at that time. He has denied the suggestion that his daughter was sad because she could not conceive for that reason she consumed Celphos tablets or that accused were looking after his daughter properly or that she was never tortured/ harassed by them. According to PW8, he did not state before the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 9 SDM that the accused persons demanded Rs.51,000/ on the day of Sagai of his daughter.
PW9 Smt. Saroj Bala is the mother of the deceased Rachna who has deposed that her daughter Rachna was married to accused Manoj Kumar on 17.2.2002 according to Hindu rites and ceremonies at their residence at Sonepat and in the marriage they had given everything according to their capacity i.e motorcycle, Rs. 51,000/, gold chain, gold ring to accused Manoj and one gold set to her daughter, fridge, cooler, washing machine etc. According to her, they had spent about four lacs Rupees in the marriage and after the marriage Parkash Devi motherinlaw of her daughter, Nanand Rachna and accused Manoj started demanding car and more gold of around twenty tolas from her daughter. According to the witness, all the accused persons used to give beatings to her daughter Rachna for demand of dowry and her daughter told her all these facts after about two months of the marriage when she visited to her house since the accused Manoj had told to her daughter that he would bring her back only when she would she brings a car. The witness has also deposed that she talked to accused Manoj and motherinlaw Parkashi Devi on telephone and made them to understand but they did not agree and insisted on their demands and after more request Manoj took away her daughter. PW9 has testified that on 1.8.2002 her daughter along with her motherinlaw Parkash, Nanand Rachna went Mata Vaishno Devi, St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 10 at which time her daughter was pregnant and doctor had advised her bed rest but accused persons insisted her to accompany them to Mata Vaishno Devi. According to her, after coming back from Mata Vaishno Devi the condition of her daughter deteriorated and was taken to doctor where her abortion took place and the accused persons asked her daughter to arrange medical treatment expenses from them. She has deposed that after abortion her daughter came to their house and informed her of this demand but she (witness) told the accused that she had no money to pay and after one to two months again, abortion of her daughter took place and the doctor demanded Rs.20,000/ for which she paid Rs.20,000/ to Parkashi Devi. She has testified that thereafter she again brought her daughter to her house and after some time Manoj took away her daughter with him and in the year 2003 she got her daughter admitted in B. Ed. and they (the parents) paid the admission charges on 16.5.2003. According to the witness, on 19.5.2003 her husband had gone Noida in connection with the admission process of her daughter when at about 3:30 am, Sandeep Dewar of her daughter and chacha Sasur of her daughter namely Shakti Singh came to their house and asked her to accompany them as her daughter is not well after which she accompanied them and reached Santom Hospital where her daughter was lying dead and after seeing dead body of her daughter she became unconscious and fell down. She has deposed that later on they were told by the accused St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 11 persons that her daughter had consumed Celphos tablets which she did not believe since her daughter could not have consumed Celphos since she was well educated lady and there was no reason for her to commit suicide. The witness has also testified that some person told her in the hospital that accused had brought her daughter as dead and they had taken her thumb impression on some paper forcibly in connivance with the doctor. She has alleged that her daughter died on account of dowry demand and accused persons had killed her. She has also proved her statement given to the SDM which is Ex.PW9/A wherein she had told all the facts to the SDM but states that some facts were missed out at that time which she has stated in her deposition in the Court. The witness has correctly identified the accused Manoj and Parkashwati in the court.
In her crossexamination the witness has deposed that her Jeth who is residing in village Bakhtawarpur had got the matrimonial alliance between accused Manoj and her daughter Rachna settled. According to her, prior to the marriage a Roka ceremony, Godbharai and Sagai ceremonies also took place during which no dispute or quarrel of any nature took place and everything happened peacefully and happily. She has admitted that prior to the marriage, they had made complete inquiries regarding Manoj and his family members. According to the witness, whatever articles were given in the marriage or any other functions prior to it, were not of their own free will and St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 12 voluntarily but on account of demand made by the accused persons. She has admitted that her daughter was using the articles so given in the marriage in her matrimonial home. She has testified that in the Roka ceremony they had given Rs.2,100/ in cash besides a gold ring to Manoj and clothes of other family members and other relatives which articles were demanded by the accused persons at the time of Roka ceremony itself. She has further deposed that in the god bharai ceremony they had given Rs.11,000/ to the accused persons besides clothes for other family members and relatives but she does not recollect the date when the roka and god bharai ceremonies took place and explains that there was a difference of two to three days between the two ceremonies. She has also alleged that the accused had demanded Rs.11,000/ and other clothes for godbharai when they had come for roka ceremony and in Sagai they had given Rs.51,000/ in cash besides one motorcycle and other usual furniture articles, clothes and one gold chain for the accused Manoj, one gold ring and one gold set for their daughter and after god bharai ceremony the accused persons had demanded said Rs.51,000/ besides motorcycle and other articles but she does not remember the date of demand. She has admitted that they (accused) were also making preparations for the marriage of their daughter Rachna since she was approaching the age of marriage and that for quite a few years prior to the marriage of Rachna they had started preparations of purchasing gold, clothes or St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 13 saving money for her marriage. She is not aware as to how much amount was spent in all by them in the Sagai ceremony but she did not ask her husband in this regard as he only used to provide money for various expenses. She is also not aware as to how much money was spent on the function of marriage which took place on 17.2.2002 and states that she was told that a sum of rupees four lacs was spent in all the ceremonies including the one which took place on 17.2.2002 which amount was spent by them only on the asking of the accused persons. She has further deposed that they themselves were not having so much of capacity to spend this much of amount and they of their own wanted to spend only rupees two to three lacs in the marriage. According to PW9, they arranged for an additional sum of rupees one lac from their relatives and friends etc. and borrowed a sum of Rs.60,000/ from her Nandoi - Dayal Singh and Rs.40,000/ from her another Nandoi - Raju but she does not remember the date, month of year when this amount was taken. The witness has testified that she had told her Jeth Dalel about the demand made by the accused persons since he was the mediator in the marriage. According to PW9, her daughter had told her about the harassment being meted out to her by the accused persons on account of demand of car after about two months of the marriage and that too after the marriage of cousin of accused Manoj but she is unable to tell the any exact, date month or year when the deceased told her about this harassment or demand. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 14 The witness has further deposed that initially for a period of about one and a half or two months her daughter remained happy with her in laws. She has denied the suggestion that no cousin of accused Manoj received any car in the marriage. According to her, from May, 2002 till August, 2002 her daughter came to her house at Sonepat on three to four occasions. She has testified that though she was happy but she used to tell her that she is being harassed by the accused persons in connection with demand of dowry and she had seen even some marks of injuries on the body of Rachna which took place due to the beating given to her by the accused persons. PW9 has further deposed that they had shown the deceased to a private doctor and since the said injuries were internal injuries, so the doctor told them to apply some cream etc. and he did not prepare a prescription slip. She is not aware which doctor had advised Rachna to not to go to hilly areas and has deposed that her daughter told her about her trip to Mata Vaishno Devi after she returned back from there and told her that she was not well. She is also not aware of the date when the first abortion of the foetus of Rachna took place and has deposed that the reason for abortion was that Rachna was made to walk right upto Mata Vaishno Devi Shrine which fact was told to her by her daughter herself. She has denied the suggestion that Rachna had gone to Mata Vaishno Devi on 21.6.2002 and states that it may be possible that the abortion took place on 30.8.2002. PW9 has admitted that after abortion Rachna St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 15 used to remain ill and has deposed that after some time her daughter started recovering and thereafter she remained all right. The witness has further denied that there was infection in the uterus tube of Rachna and has deposed that Rachna had two abortions and the second abortion took place after about two months of first abortion. She has admitted that Rachna got admitted in Tirath Ram hospital in December, 2002 for some operation but has denied that in the said operation the ovaries of Rachna were removed and states that her one tube was removed and the doctor stated that she can still conceive. She is not aware whether police was present at Santom hospital when she reached there and states that her statement was recorded only once by the SDM. She is not aware as to who were those persons who told her that thumb impression of her dead daughter was obtained at the hospital but some people were talking in this regard at the spot and states that she did not lodge any complaint against the doctors of Santom Hospital. The witness has also deposed that she had stated in her statement to the SDM Ex.PW9/A that accused Manoj had told her daughter that he would bring her back if she would bring a car and that she had talked to Manoj or Prakashi Devi on telephone but they did not agree. According to her, she is not aware the name of the doctor who had advised her daughter bed rest but states that it was around the time when she was taken to Mata Vaishno Devi Shrine. The witness has testified that she does not remember whether or not St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 16 she had stated in her statement Ex.PW9/A that abortion took place since Rachna was taken to Mata Vaishno Devi despite being pregnant or that upon return from Mata Vaishno Devi the condition of her daughter deteriorated. She also does not recollect whether she had stated in her statement that the accused persons demanded expenses of medical treatment in respect of the first abortion of her daughter from them and she had paid Rs.20,000/ to Prakashi Devi. She has stated having stated in her statement Ex.PW9/A that her daughter had died on account of dowry death and that accused persons had killed her but when confronted with her statement Ex.PW9/A wherein the said facts were not found so recorded. PW9 has also deposed that in her presence police never made any inquiries from any villagers of her village. According to her, she did not complain to any authority about the conduct of the accused persons but she informed to the Tau of Rachna namely Dailer Singh who was the mediator in the marriage. She has also testified that Rachna had informed her of the doctor having told her that abortion was taking place as she was required to take bed rest but the accused persons did not allow her to take bed rest. According to her, the abortion took place within 1520 days of the return of the deceased from Mata Vaishno Devi during which period Rachna was not well. She is not aware as to whether her daughter before her death had made any statement to the police in the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 17 presence of doctor. She has been shown a document mark Ex.PW9/DA written on both sides in ink on which the witness deposed that the said document is not in the hand of her daughter. She has denied the suggestion that the marriage of Rachna with accused Manoj was solemnized by them against the wishes of their daughter. PW9 has also denied that her daughter was depressed on account of repeated abortion suffered by her or that on account of medical problems and the failure to carry the pregnancy she used to remain depressed on account of which she took the drastic step of committing suicide. The witness has denied the suggestion that the accused persons never made any demand of any article or cash i.e. dowry either before the marriage or after the marriage.
PW2 Subedar Dayal Singh has deposed that on 19.5.2003 he had gone to the mortuary of Babu Jagjeevan Ram Memorial hospital where he had identified the dead body of Rachna vide his statement which is Ex.PW2/A. In his crossexamination the witness has deposed that Rachna had undergone an operation once at Tirath Ram Hospital when her one tube was removed but she told him that she was perfectly alright and can still conceive. He is not aware if she had undergone a second operation on November 2002 or she was under
depression. He has admitted that the deceased was happy in her St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 18 matrimonial house and she never complained against her inlaws. According to the witness, though he was told that the deceased had taken Celphos tablets but on looking at her dead body he did not find any symptoms of poison and when he saw her dead body, he only found blood in one of her nostrils but otherwise he did not find any injury on the face. The witness has testified that at the time of marriage and on two occasions after the marriage, father of the deceased made complaints to him against the inlaws of deceased Rachna. He has added that the said complaints were of adjustments problem and not of dowry.
PW3 Shakti Singh is the uncle of accused Manoj and has deposed that on 18.5.2003 he was present at his house when accused Manoj came to him in the night in a perplexed condition and informed him that Rachna had taken something and her condition is bad. According to him, he had taken Rachna in a Maruti Car to Santom Hospital in the hight itself where she was got admitted and immediately rushed to the house of parents of Rachna to inform them about her condition and brought the mother of Rachna from there to hospital and thereafter Rachna was declared dead.
In his crossexamination the witness has deposed that he is not aware if Smt. Rachna consumed Celphos or not and to his knowledge there was no quarrel between the deceased Rachna and her husband and her inlaws.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 19 Medical witnesses:
PW6 Dr. S.K. Mundra from Santom Hospital has proved that on 19.5.2003 he medically examined the injured Rachna wife of Manoj Kumar who was brought by Manoj Kumar and Shankti Singh with alleged history of ingestion of one tablet of Celphos (used to preserve wheat and cereals). According to him, history of vomiting was present and the patient was complaining of pain in abdomen and was critically sick. Pulse was very feeble; blood pressure only 80 mm systolic old clammy skin and cyanosis was present. He has proved having prepared his report which is Ex.PW6/A and deposed that at about 2:20 am the patient expired and she was declared dead by him and Dr. Vijay Kumar. According to him, Dr. Vijay has left the hospital and his present whereabouts are not known.
After the framing of alternative charge under Section 302 Indian Penal Code, the said witness was recalled wherein he has proved that he had prepared the medical certificate of cause of death which is Ex.PW6/B. According to him the cause of death was due to Cardio Respiratory Arrest on account of the history of Celphos ingestion which affects the circulatory system resulting into respiratory distress/ failure. He has testified that the patient was brought in the hospital at about 12:30 AM on 19.5.2003 and the police was informed at about 12:45 AM at 100 number which endorsement St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 20 had been made by Dr. Vijay at point D and thereafter the patient Rachan expired at 2:20 AM on 19.5.2003.
This witness has not been crossexamined by the Ld. Defence Counsel despite an opportunity in this regard and his testimony has gone uncontroverted.
PW7 Dr. B.N. Acharya has deposed that on 19.5.2003 he conducted the postmortem on the dead body of Rachna, aged 22 years female whose body was identified by Ct. Ashok and the investigating officer. According to him, on brief history as per inquest papers she died at Santom Hospital at 12:30 am on 19.5.2003 with history of sulphor poisoning. He has further deposed that on external examination there was no mark of injury on her body and on internal examination neck, head and chest were normal; abdomen and pelvis lever spleen, kidney, pencriyas congested; stomach contained 200 ml heamorrhagic fluid; Mucosa - greyish substance attached to the mucusa with patchy heamorrhagic; Smell - garlic like smell; urine bladder half uterus empty both ovaries were absent. The witness has also deposed that the cause of death could be given on receipt of chemical analysis report and he preserved the blood and viscera for chemical analysis which was handed over to the police. He has proved his report which is Ex.PW7/A and has testified that on 18.1.2004 he had given the subsequent opinion on receipt of chemical St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 21 analysis report according to which Celphos (Aluminum Phosphide) and other common poison could not be detected in the content of exhibit Marked as 1, 2, 3, 4, 2A, 2B and in view of the above finding no definite cause of death could be ascertained but the possibility of death by ingestion of unknown (obscure) poisoning could not be ruled out on the basis of Postmortem findings. The witness has proved his second opinion which is Ex.PW7/B. He has not been crossexamined by the Ld. defence counsel and hence their testimonies have gone unrebutted.
PW13 Dr. Vijay who was not examined earlier by the prosecution, has been examined after this Court framed the additional charge under Section 302 Indian Penal Code against the accused wherein he has deposed that on 19.05.2003 he was working as JR at Santom Hospital and Dr. S.K. Mundhra was also working as senior resident at the said hospital. According to the witness, he examined the patient Rachna W/o Sh. Manoj Kumar, aged about 22 years, female vide Ex.PW6/A who expired at about 2:20AM and his endorsement to this effect is at point D. On specific Court Questions, the witness has deposed that he does not remember if the SDM had come to record the statement of the injured. According to him, when Rachna was brought to the hospital at 12:30 AM she was in a drowsy condition and her response St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 22 was not very clear. He has testified that he was present all through the treatment and she expired about 510 minutes prior to his making the endorsement at 2:20 AM. According to the witness the husband of the patient was with her throughout the treatment and there were some other persons also present. He does not recollect if any police officer or government officer had come to examine the patient/ take her statement but has voluntarily explained that when the patient is in the ICU they do not permit any person inside and in the present case they had not permitted any person to record the statement of the patient because she was not in a state to make a statement. He has further deposed that the husband of the patient remained in the hospital till her death. He does not recollect what the patient was saying when her statement was recorded by the police officer who had requested him to permit him (police officer) to record the statement of the patient but there was no written request of the police officer and it was only verbal. The witness has also deposed that he did not make any endorsement in any of the files or documents maintained in the hospital to this extent that he had permitted the police officer to record the statement of the patient. PW13 has deposed that he had told the police officer that the patient was not in a fit state to make a statement and her condition was deteriorating but he insisted upon taking the statement. He has specifically deposed that the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 23 patient was not in a fit mental state to make a statement and he had told the police officer about it, but he insisted upon questioning the patient and he did not hear what questions were put to the patient and what answers she was giving since he was standing at some distance while the police officer was very slowly asking the patient something which was inaudible and he was recording something which he did not see or hear but he was only asked to sign the same as a token of an endorsement that he was present at the time when the police officer recorded the statement. He has admitted that he is totally unaware of what statement was made by the patient/ deceased and his endorsement mark C on Ex.PW10/A is only to show his presence at the spot. The witness has further deposed that he does not recollect if he told/ disclosed to the SDM that he had made his endorsement at mark C on Ex.PW10/A only as a token of his presence in the room but the statement was recorded by the police officer despite his telling him that the patient was not in a fit state to make the statement at all and his did not hear what was stated by the deceased as her voice was very feeble on account of the pain and drowsiness because her BP was very low so much so that the lower BP was not recordable and her temperature had fallen and pulse was also very feeble. PW13 has admitted that in a case where the BP on the lower side is not recordable being very low a patient would either St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 24 be semi conscious but not unconscious and also may not be slipping into COMA. According to him, the SDM had come after the death of the patient and he only confirmed to him that the police had recorded the statement of the patient but he did not confirm the contents of the statement of the deceased but he is unable to tell the name of the police officer who had recorded the statement of the patient/deceased.
In his crossexamination by the Ld. Defence Counsel the witness has admitted that the record on the basis of which he has deposed during court examination, the same is not available with him. He has also admitted that they record the complete condition of the patient in the MLC which is Ex.PW6/A in the present case. He has stated that the ICU where the patient had been shifted was a secured area and no person could remain there even the attendant and has voluntarily added that sometimes when the relatives insist then they permit one person to come inside for short time. According to him, in this case there is no document that the husband was permitted inside and the husband of the patient was permitted to visit the patient in the ICU to see her condition. He has further testified that the fact that the patient was in a drowsy condition and her response was not clear has been mentioned by him in the file which file is not in the court nor has he brought the same. PW13 has admitted that the ingestion of one tablet of Celphos was informed by the patient herself but he is unable St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 25 to tell whether it was a voluntarily statement made by her or not. According to him, the patient was verbally responding though she was in semiconscious condition and was restless and disturbed which is a normal condition in the poison ingestion case. He has denied the suggestion that the patient was restless because the BP was not recordable and has voluntarily added that the BP was recordable but was fluctuating. He has further deposed that he did not tell his senior doctor that the police officer had recorded the statement despite his telling that the patient was not fit but has admitted that his endorsement was made at point mark C to the effect that the statement was recorded in his presence. According to PW13, the patient was in a position to speak and she had also verbally interacted with the police official. He has denied the suggestion that the statement of the deceased was made in his presence and he is aware of the contents which he is deliberately not disclosing.
Police/ official witnesses:
PW1 Inspector Jitender Singh is a formal witness who has deposed that in the month of March 2004 he was entrusted with the investigations of this case. According to him, during investigations he directed the handwriting expert report from FSL, Malviya Nagar which report is Ex.PW1/A and placed the same in the judicial file. He has testified that after completion of the investigation, St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 26 he put up the challan before the officer incharge of the police station for filing the challan in the court for trial. The witness has not been crossexamined by the accused and his testimony has gone uncontroverted.
PW4 Ct. Ashok Kumar has deposed that on 23.6.2003 he obtained two sealed parcels and sample seal from the MHC(M) which he deposited the same at CFSL Hyderabad vide RC No.73/21. According to him, after depositing the case property and on reaching at police station he handed over receipt to MHC(M). He has proved that so long as the case property remained in his possession the seals remained intact and nobody tampered with the parcels.
PW5 HC Chand Singh is a formal witness being the duty officer who has deposed that on 19.5.2003 a rukka was produced before him by SHO Inspector Pratap Singh on the basis of which he recorded FIR No. 161/03 copy of which is Ex.PW5/A. According to the witness, after recording the FIR he made his endorsement on the rukka which is Ex.PW5/B and handed over the original rukka and copy of FIR to Inspector Pratap Singh.
PW10 Retd. SI Ram Saran has deposed that on 18.5.2003 he was on emergency duty and on receipt of DD No.35B he along with Ct. Baljeet reached Santom Hospital, Prashant Vihar where they found one Smt. Rachna admitted who was declared fit for statement. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 27 According to him, he collected her MLC which is Ex.PW6/A from the doctor and recorded her statement which is Ex.PW10/A and attested her thumb impression. The witness has further deposed that the said statement was also attested by the doctors and thereafter he informed to the SDM Narela as the marriage of the Rachna was taken place about one to one and a half year ago. According to him, the SDM also reached the hospital and in the meanwhile Rachna expired and SDM also verified the statement of Smt. Rachna after which SDM sent the dead body to mortuary and recorded the statement of witnesses and gave directions for registration of FIR and further investigation was handed over to Inspector Partap Singh. He has further deposed that on 19.05.2003 Ct. Ashok handed over to him a viscera peti and sample seal which he seized vide memo Ex.PW10/B; Ct. Jeet handed over to him stomach wash and sample seal which he seized vide memo Ex.PW10/C and deposited the same in the malkhana. The witness has further deposed that on 20.7.2003 the complainant identified the stridhan which was seized vide memo which is Ex.PW8/D by the investigating officer.
In his crossexamination the witness has deposed that he reached Santom Hospital within thirty minutes when DD No.35B was received. He has admitted that Rachna was being treated and was being fully conscious and deposed that he had verified from her that St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 28 the statement which she wanted to give was with her free will and there was no force or pressure upon her. According to him, when he recorded the statement no relative of Rachna was present there and Rachna herself told him that she had consumed some poisonous substance. He has deposed that he had not met the inlaws of Rachna and that he had not made any efforts to know who had brought Rachna to the hospital. He has denied the suggestion that husband and other relatives of Rachna were present throughout in the hospital and were getting her treatment. PW10 has testified that he remained in the hospital till 1:30 AM and SDM had reached in his presence who had not met with Rachna as she had already been expired but he had met with the doctor and had verified the statement of Rachna from the doctor. The witness has further deposed that he investigated the matter till the SDM reached in the hospital and thereafter he joined the investigation when the stridhan was seized.
The said witness was recalled for examination after framing the additional charge under Section 302 IPC wherein he has deposed that on 19.05.03 he was present in the hospital along with the doctor when the dying declaration of deceased Smt. Rachna was being recorded and he recorded the said dying declaration which is Ex.PW10/A in the presence of Dr. Vijay. According to him, Smt. Rachna was alive at about 1.30AM when he reached the hospital. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 29
On a specific court question the witness has deposed that he was not aware if it is the doctor who was required to record the dying declaration and states that he made no request to the doctor to record the dying declaration and only asked the doctor if the patient was fit to make a statement. He has further deposed that he did not check the medical papers regarding the blood pressure, pulse, temperature etc. of the deceased before recording her statement and has voluntarily added that according to MLC she was conscious so he record her statement. He has testified that he had asked the doctor to give the fitness certificate of the deceased before recording her statement and stated that the doctor had certified that she was fit for giving her statement. However, after seeing the entire record the witness was unable to place before the court any fitness given by the doctor. He has admitted that he is not aware as to who met the deceased and who were the family members of the deceased who were present with her before 1.30AM but states that when he reached the hospital he did not find any family member of the deceased. He has however deposed that the husband of the deceased had brought her to the hospital which fact was told to him by the doctor. According to him, he searched for her husband in the hospital for half an hour to forty five minutes after recording the statement of the deceased. Further, when asked as to what was the urgency in recording the statement of deceased Rachna without first informing the SDM and St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 30 without first making local enquiries from the person who had brought her to the hospital, the witness has deposed that there was no emergency. He has further deposed that it hardly took him 10 minutes to record the statement of the deceased. He has admitted that while he was recording the statement, the condition of Rachan deteriorated and that she slipped into COMA in his presence and expired at 2.20AM in the presence of Dr. Vijay. He has been specifically asked by the Court if the girl was conscious till such time her statement was completed, then why her signatures were not taken and she was asked to put thumb impression. On this the witness initially stated that there was drip on both the hands of the deceased but when asked as how there could be drip in both hands, he then changes his stand and stated that the drip was only in the right hand. The witness was again asked by the Court why he did not take the signatures of the deceased despite the fact that the deceased was an educated woman and if he could take her thumb impression while she was on the drip he could have have taken her signatures, to which the witness initially did not respond and thereafter stated after some time that he did not notice what was the reason "Dhyan nahin, kya vajah thee".
According to the witness, he had taken the endorsement from Dr. Vijay at point C on dying declaration Ex.PW10/A after the statement was completed but he is unable to tell at what time the patient was brought the hospital. He has testified that he made no St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 31 enquiry at what time the patient was brought the hospital and has voluntarily added that it was written in the MLC. The witness has testified that the husband of Rachna was not present in the hospital till her death and he did not make any written request to the doctor for recording the statement of the patient.
In his crossexamination by the Ld. Defence Counsel the witness has deposed that at the time when he reached the hospital doctors were treating the patient/ deceased but has denied the suggestion that the entire team of doctors was present there to treat the patient and Dr. Vijay was one of them and states that only Dr. Vijay was treating the patient. According to him, Dr. Vijay did not tell him that the condition of the patient was serious. He has admitted that he was not aware whether the patient was educated or illiterate.
On a court question the witness has deposed that he did not make any inquiry from the patient/ deceased prior to recording her statement with regard to her family background, address, educational status and other details pertaining to her family but states that he only asked her about her name and address.
He is unable to tell if Dr. Vijay was hearing what was being told by the deceased but has voluntary stated that he was standing at a distance near a rack kept in the same room. He has further deposed that he had recorded the statement Ex.PW10/A on the basis of what had been told to him by the deceased. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 32
On further court question the witness has deposed that the deceased did not tell him that she was making a statement voluntarily without any pressure, force or coercion of any kind though he had asked the patient if she was making this statement voluntarily without any pressure, force or coercion of any kind and adds that he did not record this fact in this statement.
He has admitted that the doctors were making hectic efforts to save the patient but has denied the suggestion that doctors were procuring medicines from the relatives of the deceased while she was under treatment, in an attempt to save her life. He has also admitted that in the ICU the relatives are not allowed to enter but states that they are allowed if permitted by the doctor but he did not see any relative even outside. PW10 has also deposed that he had asked the doctor where the relatives of the deceased who had brought her to the hospital i.e. husband and his chacha had gone, on which the doctors told him that they may be outside but when he checked they were not there. According to the witness, he is a matriculate and had joined the services of Delhi Police in the year 1969. He has admitted that after going through the MLC and after feeling satisfied from the doctor that she was fit to make a statement, he recorded the statement. According to PW10, SDM had come to the hospital while he was still there and made inquiries from the doctor but he is unable to tell what kind of inquiries he made. He has deposed that the endorsement at point X2 St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 33 was made by the SDM in his presence on Ex.PW10/A. The witness has also deposed that he never met any person from the family of the deceased. He does not recollect if the deceased was not in a position to sign the statement as there were needles on both her hands.
PW11 Inspector Pratap Singh is the investigating officer who has deposed that on 19.5.2003 he was posted as Addl. SHO at Police Station Alipur and on that day investigations of this case was handed over to him after which he reached at the house of the accused i.e. Village Bakhtawar Pur and arrested the accused Manoj vide arrest memo which is Ex.PW11/A and personally searched vide memo which is Ex.PW11/B. He has further testified that thereafter the accused was sent to police lock up and produced before the court on the next day. He has deposed that the collected the Postmortem report as the same was got conducted by the SDM and sent the exhibits of this case through Ct. Ashok Kumar to CFSL Hyderabad, but he does not remember the date. The witness has also proved that on 9.6.2003 he arrested the accused Parkashwati @ Parkashi vide memo which is Ex.PW11/C and her personal search was conducted by WSI Kailash vide memo which is Ex.PW11/D and was released on bail as she was on anticipatory bail. The witness has further deposed that the complainant Rana Bahadur told that inlaws of Rachna had not returned the stridhan of Rachna and had given list of the same which St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 34 is Ex.PW11/E and has given one list of expenses and articles which is Ex.PW11/F. According to him on 20.7.2003 on the identification of complainant the stridhan was seized vide memo which is Ex.PW8/D and later on the same was released on superdari. The witness has further deposed that he collected the admitted handwriting of Rachna and also the specimen handwriting of accused Manoj, Parkashi and of Sandeep and deposited the suicide note, specimen handwriting and admitted handwriting in FSL Delhi for expert opinion. The investigating officer has deposed that he recorded the statement of witnesses and thereafter challan was prepared by the SHO and he collected the CFSL result which is Ex.PX and filed in the court. He has correctly identified the accused Manoj in the court.
In his crossexamination the witness has admitted that when he was handed over the investigation of the present case he had the dying declaration and a suicide note written by the deceased Rachna and there was no complaint or allegations that after her marriage she was treated with cruelty or harassed for dowry. According to him, he had made inquiries from the neighbours of the accused regarding the behaviour and conduct of the accused with their daughterinlaw/ deceased but he does not recollect their names and addresses. The witness has deposed that all the neighbours were neutral and did not make any statement either in favour or against the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 35 accused. PW11 has testified that Manoj was alone at that time in the house and his mother and sister were not available. The witness has further deposed that Rana Bahadur had claimed right on the stridhan items after about one month from the date of the incident but he does not remember if Ex.PW11/F was given on 10.07.2003. He has denied the suggestion that Rana Bahadur had no right to claim the articles of deceased Rachna or he had not demanded the same any time before 10.07.2003.
PW12 Sh. A.K. Saxena, the then SDM, has deposed that on the intervening night of 18th/19th May, 2003 he received an information regarding the serious condition of a woman admitted in Santom Hospital, Prashant Vihar, Outer Ring Road, Delhi. According to him, at about 3:00 pm he visited Santom Hospital and found the police already present at the spot, who informed him that one woman had consumed poison and had already expired which fact was confirmed by the doctor. He has proved having prepared his report in this regard which is Ex.PW10/A after which he took the MLC from the doctor which is Ex.PW6/A and after affixing his signatures he handed over the same to the police officer present in the hospital. He has further deposed that on 19.5.2003 the father of deceased namely Rana Bahadur came to him and he recorded his statement which is Ex.PW8/A at his office after which he went to the mortuary on the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 36 same day and prepared the inquest papers which are Ex.PW12/A (running into five pages). According to him, Dayal Singh and Rana Bahadur identified the dead body vide memo Ex.PW2/A and the statement of Rana Bahadur with regard to identification of the dead body is Ex.PW8/B and he handed over all the papers to Investigating Officer. The witness has further deposed that on 23rd May, 2003 the mother of the deceased Smt. Saroj came to his office and got recorded her statement which is Ex.PW9/A which he forwarded to SHO Police Station Alipur on the same day vide his communication Ex.PW12/B. In his crossexamination the witness has deposed that he got the information regarding the condition of the lady, whose name he came to know later on Rachna through some police official who had called him at late night hours and he was told by the Inquiry Officer when he reached the hospital at night that he had recorded the statement of deceased Rachna before her death which had been made in the presence of doctor which fact the doctor had confirmed. On a specific question by the Court the witness has testified that he had put his signatures on the statement shown to him by the Inquiry Officer when he reached the hospital and put his endorsement on the said statement after he made the confirmation from the doctor. He has admitted that neither the statement was made in his presence nor he was present at the time to confirm whether it was made in the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 37 presence of doctor or not and he had stated this only on the information given to him by the investigating officer as confirmed by him from the doctor. The witness has admitted that he has not recorded any separate statement of the doctor on duty in whose presence Rachna had made the statement.
According to PW12, on 19th May, 2003 when the father of deceased came to his office he did not inform him about the dying declaration of Rachna. The witness has admitted that the suicide note was shown to him by the investigating officer and he had also put his endorsement on the same in this regard and states that the said suicide note was also shown to the father of deceased. He has also admitted that the statements are not in his handwriting and states that they are in the handwriting of his reader on his dictation. The witness has denied the suggestion that the parents of the deceased were very upset on 19th and 23rd May, 2003 and the statements recorded by him have not been made by them.
The witness was recalled after framing of additional charge under Section 302 IPC wherein the witness has deposed that he reached the hospital at about 3/3:15 AM on the intervening night of 18/19.5.03 when he first met the Investigating Officer in the hospital who took him to Dr. Vijay who was sitting in the hospital. According to the witness, he made enquiries from Dr. Vijay and asked him St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 38 whether the dying declaration Ex.PW10/A was recorded by him or by any other person to which Dr. Vijay has informed him that the said statement of Smt. Rachna, W/o Manoj was recorded by Investigating Officer in his presence and within his hearing on which he made his endorsement at point X2 on the statement and put his signature and official seal at point B. On a specific court question whether the Dying Declaration was made before him or not, the witness has denied the same and has stated that he only authenticated what was told to him by Dr. Vijay and it was Dr. Vijay who told him that the deceased made a statement before him.
He has admitted that the statement of the deceased had been written by the Investigating Officer and not by Dr. Vijay and on court question has deposed that Dr. Vijay did not tell him the contents of the statement of the deceased or what she had stated but he only told him that her statement had been recorded by the Investigating Officer in his presence. According to the witness, he did not ask Dr. Vijay if the deceased was fit to make a statement at the time when her statement was recorded by the Investigating Officer nor did he ask Dr. Vijay to show him the medical papers of the deceased showing her medical condition at the time, her statement was recorded. He has also deposed that he did not make inquiries from Dr. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 39 Vijay as to who was the person from the family of the deceased who were with her before the time the statement was recorded.
In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that he has deposed falsely and Dr. Vijay had told him the contents of the statement of the deceased. He has further denied the suggestion that he had seen the medical record of the deceased or that he was told by Dr. Vijay that the deceased was fit to make the statement.
Statement of accused/ defence evidence:
After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them which they have denied. The accused Manoj Kumar has stated that he is innocent and has been falsely implicated. He has further stated that the admission of Smt. Rachna was only confirmed and no fees etc. was paid by Rana Bahadur. The additional statement of the accused was also recorded wherein he has stated that he and his uncle had taken his wife to the hospital where her statement was recorded in the presence of doctor. According to the accused, his wife was conscious and well oriented and was in a fit state of mind and had voluntarily made a statement to the police after the doctor confirmed that she was fit to make statement. Accused Manoj has further stated St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 40 that it was a case of consumption of poison and since his wife was impatient and panicky, the doctor started treating her immediately after she was admitted in the hospital. According to him, his wife was depressed as she came to know that she could not conceive and give birth to a child and in that state of depression she consumed celphos tablets kept in the house to conserve the grains.
The accused Prakashwati has stated that she is not aware of any statement made by Rana Bahadur before the SDM Narela and according to her, only the motorcycle was given but she is not aware if Rs. Four lacs were spent on the marriage. She has further stated that she is innocent and has been falsely implicated in the present case. In her additional statement she has corroborated the statement of her son that is accused Manoj Kumar in toto.
The accused have examined one Ashok Kumar Chauhan in their defence. DW1 Ashok Kumar Chauhan has deposed that the accused Manoj is his cousin and accused Smt. Prakashwati is his Chachi. According to him, they reside in same village and have visiting terms with each other. He has deposed that Manoj was married to Rachna on 17.2.2002 in which he had participated and there was no differences or disputes of any kind nor there was ever any demand of dowry or any other articles from the inlaws of the accused. According to DW1, the parents and other relatives of Rachna used to frequently visit the residence of Manoj and similarly Rachna St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 41 and Manoj were used to visit the parental home of Rachna and he had interaction with the parents of Rachna. He has testified that on 18.5.2003 Manoj called him that Rachna had some problem and he should immediately come to him and also told him that Rachna was in bad shape and was vomiting and on inquiry Rachna told him that she had consumed poison. The witness has also deposed that Rachna never had any dispute or problem with her husband or inlaws and was depressed as she had suffered repeated abortions. DW1 has also testified that he and his wife had tired to console her and had tried to make her understand that god will help her but the problem continued to aggravate as she had also suffered infection and had suffered operation in Tirath Ram Shah Hospital, Delhi. According to the witness, the parents of Rachna had been continuously visiting and also tried to make her understand. He has further deposed that Rachna had also gone to Mata Vaishno Devi as she wanted to pray for the child and nobody had forced her for that visit. DW1 has deposed that Manoj and accused Prakashwati treated Rachna with love and care and she never had any problem of any kind except of having abortions and inability to conceive. According to him, the allegations made by the parents of Rachna regarding the demand of dowry or car are false.
He has deposed that Rachna had continued her studies after her marriage with Manoj and she did MA (Economics) and also taken admission in B Ed. Course in Chaudhary Charan Singh University. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 42 According to the witness, Rachna was responsible for her own death as she took drastic step of consuming poison in acute depression.
In her crossexamination the witness has deposed that Rachna did not tell each and everything to him and he had visited the hospital only once when she had gone to Sethi Nursing Home for her abortion but she is unable to tell the date of that visit and states that it was in the month of August 2002. He has further deposed that he had gone to the house of Rachna after her death and prior to her death he had gone to the house of Rachna in the night. According to him, he did not see any police official in Santom Hospital where she died and did not make any call to the police when Rachna informed him that she had consumed poison after being depressed due to nonconceive. He has testified that he did not meet the SDM to give his statement regarding false implication of accused persons nor did he make any complaint to the police to show that the deceased had consumed poison due to inability to give birth to the child. He has admitted that he did not make any oral or written statement to the police or any other authority after the death of the deceased regarding false implication of the accused persons. He has denied the suggestion that being the relative of accused persons he is creating a new story that the deceased Rachna had informed him prior to her death that she consumed poison due to inability to conceive.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 43 FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of both the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the various public witness individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of description
No. witness
PUBLIC WITNESSES/ EYE WITNESS
1. Rana Bahadur He is the father of the deceased who has deposed on
Singh (PW8) the following lines:
1. That he had three sons and one daughter Rachna who was married to accused Manoj on 17.2.2002 according to Hindu rites and customs.
2. That he had given sufficient dowry in her marriage and her daughter went to her matrimonial home at Bakhtawarpur after her marriage.
3. That after some time on 4.5.2002 the cousin of accused Manoj got married who got a Maruti 800 car in marriage as dowry after which the in laws of her daughter started harassing his daughter for bringing car or cash in lieu of the car.
4. That on 19.5.2003 he received a telephonic call informing that his daughter was not feeling well on which he went to village Bakhtawarpur i.e. the matrimonial home of his daughter at about 9:30 St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 44 am where he came to know that his daughter was admitted in Babu Jagjeevan Ram Memorial hospital on which he went to the hospital where he came to know that his daughter had expired.
5. That he got his daughter admitted in M.A. (Economics) and after passing he got her admitted in B. Ed. in Chaudhary Charan Singh University, Meerut in a college in NOIDA and on 16.5.2003 he had gone to NOIDA to make arrangement for her residence as her classes were from Monday to Friday.
6. That his daughter informed him on telephone that she was being harassed by her husband and motherinlaw and sisterinlaw Rachna.
7. That he had paid the college fees of his daughter for the courses in Economics and B. Ed. and in August 2002 Prakashwati took his daughter to Vaishno Devi against the advice of doctors as his daughter was pregnant at that time.
8. That his daughter had to undergo abortion and the doctors advised her complete rest but the accused Prakashwati used to take household work from his daughter and in the month of November 2002 his daughter was again got aborted.
9. That because of this torture his daughter might have committed suicide.
10. That he had given Rs.51,000/ in the marriage as demanded by the accused Manoj and when his daughter reached her matrimonial home accused persons started harassing her and demanded gold, cash and car from him through his daughter.
11. That the accused persons compelled his daughter to write a suicide note since there was no reason for his daughter to commit suicide as he had got her admitted in B. Ed. course on 16.5.2003.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 45
12. That his statement recorded by the SDM which is Ex.PW8/A and later on the statement of his wife was also recorded.
13. That he has identified the dead body of his daughter Rachna vide statement Ex.PW8/B and after postmortem the dead body was handed over to him vide handing over memo which is Ex.PW8/C.
14. That on 20.7.2003 he along with Inspector Pratap Singh, SI Ram Sharan Sharma and staff reached at village Bhaktawarpur and dowry articles and istridhan was taken into possession vide seizure memo Ex.PW8/D.
2. Smt. Saroj Bala She is the mother of the deceased Rachna who has (PW9) deposed as under:
1. That her daughter Rachna was married to accused Manoj Kumar on 17.2.2002 according to Hindu rites and ceremonies at their residence at Sonepat and in the marriage they had given everything according to their capacity i.e motorcycle, Rs.51,000/, gold chain, gold ring to accused Manoj and one gold set to her daughter, fridge, cooler, washing machine etc.
2. That they had spent about rupees four lacs in the marriage and after the marriage Parkash Devi motherinlaw of her daughter, Nanand Rachna and accused Manoj started demanding car and more gold of around twenty tolas from her daughter.
3. That all the accused persons used to give beatings to her daughter Rachna for demand of dowry and her daughter told her all these facts after about two months of the marriage when she visited to her house since the accused Manoj had told to her daughter that he would bring her back only when she would bring car.
4. That she talked to accused Manoj and motherin law Parkashi Devi on telephone and made them St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 46 to understand but they did not agree and insisted on their demands and after more request Manoj took away her daughter.
5. That on 1.8.2002 her daughter along with her motherinlaw Parkash, Nanand Rachna went Mata Vaishno Devi, at which time her daughter was pregnant and doctor had advised her bed rest but accused persons insisted that she should accompany them to Mata Vaishno Devi.
6. That after coming back from Mata Vaishno Devi the condition of her daughter deteriorated and was taken to doctor where her abortion took place and the accused persons asked her daughter to arrange medical treatment expenses from them.
7. That after abortion her daughter came to their house and informed them of this fact but she told the accused persons that she has no money to pay and after one to two months again, abortion of her daughter took place and doctor demanded Rs.20,000/ and she paid Rs.20,000/ to Parkashi Devi.
8. That thereafter she again brought her daughter to her house and after some time Manoj took away her daughter with him and in the year 2003 she got admitted her daughter in B. Ed. and they paid the admission charges on 16.5.2003.
9. That on 19.5.2003 her husband had gone to Noida in connection with the admission process of her daughter when at about 3:30 am, Sandeep Dewar of her daughter and chacha Sasur Shakti Singh of her daughter came to their house and asked her to accompany them as her daughter is not well after which she accompanied them and reached Santom Hospital where he daughter was lying dead and after seeing dead body of her daughter she became unconscious and fell down. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 47
10. That later on they were told by the accused persons that her daughter had consumed Celphos tablets which she did not believe since her daughter could not have consumed Celphos since she was well educated lady and there was no reason for her to commit suicide.
11. That some person told her in the hospital that accused had brought her daughter as dead and they had took her thumb impression on some paper forcibly in connivance with the doctor.
12. That her daughter died on account of dowry demand and accused persons had killed her.
13. That her statement was recorded by the SDM which is Ex.PW9/A wherein she had told all the facts to the SDM but some facts were missed out at that time which she has stated in her deposition in the.
The witness has correctly identified the accused Manoj and Parkashwati in the court.
Now coming to the microscopic evaluation of the evidence on record against the accused.
Identity of the accused Manoj and Prakashwati:
In so far as the identity of the accused is concerned, there is no dispute with regard to the same. The accused Manoj is the husband of the deceased Rachna and accused Prakashwati is the mother in law of the deceased which aspects stand established. Unnatural Death of the deceased within 7 years of marriage:
It is an admitted case of both the parties that the marriage between the accused Manoj and the deceased Rachna had been St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 48 solemnized on 17.2.2002 according to Hindu rites and ceremonies at Sonipat and the death of deceased occurred on 18.5.2003. Hence it stands established that the death of the deceased had occurred within 15 months of her marriage that is within seven years of the marriage with accused Manoj Kumar.
Cause of death:
The case of the prosecution is that on the intervening night of 18/19.5.2003 the deceased had been brought to the hospital by her husband Manoj with alleged history of ingestion of one tablet of celphos which history had been given by the deceased herself and soon after her condition deteriorated and she expired. In this regard the testimony of Dr. S.K. Mundra (PW6) from Santom Hospital is relevant wherein he has proved that the certificate of cause of death prepared by him which is Ex.PW6/B showing that the cause of the death was due to Cardio Respiratory Arrest on account of the history of Celphos ingestion which affects the circulatory system resulting into respiratory distress/ failure. He has proved that the patient was brought to the hospital at about 12:30 AM (midnight) on 19.5.2003 and the police was informed at about 12:45 AM after which she reportedly expired at 2:20 AM.
Here, I may observe that the case of death as proved by Dr. S.S. Mundra finds no corroboration from the FSL/ Viscera Report St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 49 which is Ex.PX and is admissible in evidence under Section 293 Cr.P.C. and otherwise not being disputed by the accused. The findings with regard to the Celphos poison do not find corroboration from the viscera report according to which Celphos (Aluminum Phosphide) and other common poisons could not be detected in the exhibits sent to FSL. Thereafter subsequent opinion was given by Dr. B.N. Acharya (PW7) who has proved that after the receipt of the chemical analysis report bearing No. 13/CFSL (H) EE/2003/8195 dated 11.9.2003 since Celphos and other common poison could not be detected, no definite cause of death could be ascertained but the possibility of death of ingestion of unknown (obscure) poisoning could not be ruled out.
The postmortem report which is Ex.PW7/A has been duly proved by Dr. B.N. Acharya (PW7) which reflects that Abdomen & pelvis, lever, spleen, kidney, pancreas were contested; stomach contained 200 ml hemorrhagic fluid; Mucosa had greyish substance attached to the mucosa with patchy hemorrhagic and garlic like smell; urine bladder half utres were empty and both the ovaries were absent. The testimony of Dr. B.N. Acharya has gone uncontroverted on account of which I hereby hold that the prosecution has been able to establish that the death of the deceased was on account of ingestion of unknown/ obscure poisoning.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 50 Dying Declaration:
The case of the prosecution is that before the deceased had expired she had made a statement to SI Ram Saran (PW10) who recorded the same in the presence of Dr. Vijay. The said dying declaration reads as under:
Bayan ajane Smt. Rachna W/o Manoj R/o Village Bakhtawarpur, Delhi umar 22 saal Bayan kiya ki main uprokt pate par apne pati ke saath rehti hoon. Meri shadi arsa karib 1½ saal pehle Shri Manoj ke saath hui thi. Mujhe pata chal gaya tha ki main maa nahin ban sakti to mainne soocha ki aisi zindgi se to marna achcha hai. Mainne apne ghar rakhi Celphos ki goli kha li. Mejhe apni sasural walloon ki taraf se koi pareshani nahin hai. Mainne maa nahin banne ki vajah se goli khai hai aur mujhe koi pareshani nahin thi.
I may observe that neither the prosecution has challenged the said Dying Declaration recorded by SI Ram Saran (PW10) who was initially involved in the investigations of this case nor it has been challenged by the accused and naturally because it suits him. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 51 However, when the Court of its own analyzed the same serious infirmities were observed. Before analyzing the evidence on record it is necessary to briefly discuss the law relating to the Dying Declaration which is as under:
There is a historical and a literary basis for recognition of dying declaration as an exception to the Hearsay Rule. Some authorities suggest the rule is of Shakespearian origin. In "The Life and Death of King John", Shakespeare has Lord Melun utter what a "hideous death within my view, retaining but a quantity of life, which bleeds away,..lost the use of all deceit" and asked,"Why should I then be false, since it is true that I must die here and live hence by truth?" (Ref.: William Shakespeare, The Life and Death of King John act. 5, sc.2, lines 2229).
It is the provisions of Section 32 of the Indian Evidence Act which are relevant in case of statements of the persons who are dead or cannot be found. It reads as under:
Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant: Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 52 following cases:
(1) when it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question.
Section 32 of the Indian Evidence Act provides for exception to the rule of hearsay. As a general rule the hearsay evidence is excluded and best evidence must always be given but Section 32 of the Indian Evidence Act is an important exception to this rule and one of the exceptions so provided where a person is dead or incapable of giving evidence or cannot be found, then in such case since no better evidence can be obtained, the oral or written evidence of such a person relating to relevant fact under inquiry, becomes admissible. The test of crossexamination being unavailable, the safeguards which are enumerated under Section 32 of the Indian Evidence Act must be observed. Dying Declaration is only a piece of untested evidence and must like any other evidence satisfy the court that what has been stated therein is the unalloyed truth and that it is St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 53 absolutely safe to rely upon it. The evidentiary value or weight which has to be attached to such a statement/ Dying Declaration necessarily depends upon the facts and circumstances of each case. It is the duty of the court to subject such a statement to close scrutiny to ascertain whether it was honest and truly made and not a result of any tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assailants and was in a fit state to make a declaration. It is hence settled that in passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including weapon which injured the victim, nature and extent of injuries, victim's physical condition, his conduct, and what was said to and by him. The Hon'ble Apex Court has in various judicial pronouncements has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration. Hearsay exception is a mixed question of fact and law. It is equally well settled that dying declaration can form the sole basis for conviction but at the same time due care and caution must be exercised in considering weight to be given to dying declaration in as much as there could be any number of circumstances which may affect the truth. The Hon'ble Apex Court has in more than one decision cautioned the courts to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination and has observed that it is the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 54 duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
It is not difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of the oath in the case of a living witness is a thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be last to give untruth as he stands before his creator. There is a legal maxim "Nemo Moriturous Praesumitur Mentire" meaning, that a man will not meet his maker with lie in his mouth. Woodroffe and Amir Ali, in their treatise on Evidence Act state : "when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity and therefore the tests of oath and crossexamination are dispensed with."
Therefore it is for the court to consider in each case and under the given circumstances as to what value should be given to a dying declaration. The court on assessment of the circumstances and the evidence and materials on record, has to come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 55 by sign or by gestures. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. The Hon'ble Supreme Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statement.
In Smt. Paniben vs State of Gujarat reported in (1992) 2 SCC 474, the Hon'ble Apex Court while observing that a dying declaration is entitled to great weight however cautioned to note that the accused has no power to crossexamination. It was observed that:
"Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 56 voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration [Munnu Raja vs State of M.P.) (1976) 3 SCC 104; 1976 SCC (Cri.) 376; (1976) 2 SCR 764; AIR 1976 SC 2199].
(ii)If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [(State of U.P. vs Ram Sagar Yadav) (1985) 1 SCC 552 :
1985 SCC (Cri) 127: AIR 1985 SC 416;
Ramavati Devi vs State of Bihar (1983) 1 SCC 211: 1983 SCC (Cri) 169: AIR 1983 SC 164].
(iii)Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [(K. RamChandra Reddy vs Public Prosecutor) (1976) 3 SCC 618:
1976 SCC (Cri) 473:AIR 1976 SC 1994].
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. [Rasheed Beg vs State of M.P.) (1974) St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 57 4 SCC 264 : 1974 SCC (Cri) 426].
(v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [(Kake Singh vs State of M.P.) 1981 Supp. SCC 25: 1981 SCC (Cri.) 645 : AIR 1982 SC 1021].
(vi)A dying declaration which suffers from infirmity cannot form the basis of conviction.
[(Ram Manorath vs State of U.P.) (1981) 2 SCC 654 : 1981 SCC (Cri) 581].
(vii)Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [(State of Maharashtra vs Krishnamurti Laxmipati Naidu) 1980 Supp. SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617].
(viii)Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [(Surajdeo Oza vs State of Bihar) 1980 Supp. SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505].
(ix)Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [(Nanahau Ram and Anr. vs State of M.P.) 1988 Supp. SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912].
(x)Where the prosecution version differs from the version as given in the dying declaration, the said St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 58 declaration cannot be acted upon. [(State of U.P. vs Madan Mohan) (1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519]"
Applying the settled principles of law to the facts of the present case it is evident that when Rachna (deceased) was brought to the hospital she was conscious but her blood pressure was not recordable. Dr. Vijay (PW13) who had been called and examined by the Court exhaustively, has specifically stated that it was he who had made an endorsement on the MLC of the deceased which is Ex.PW6/A who had been brought to the hospital by her husband Manoj. When specifically asked if the SDM had come to record the statement of the injuries he stated that he does not recollect. Further, when asked about the condition of the patient he has stated that she was in a drowsy condition and her response was not very clear. He has further stated that he had repeatedly told the police officer that she (deceased) was not in a fit state to make a statement and her condition was deteriorating but the IO insisted upon recording the same. Perhaps it is for this reason that there is no fitness given by the doctor at the said statement. The entire examination of Dr. Vijay by the Court which is relevant for the purposes of analyzing the circumstances under which the alleged Dying Declaration had been recorded. The relevant portion is being is reproduced as under: St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 59
On Court question : I do not remember if the SDM had come to record the statement of the injured. Q: What was the condition of the patient when she was brought to the hospital at 12:30 AM?
Ans.: She was in a drowsy condition and her response was not very clear.
On court questions : I was present all through the treatment and she expired about 510 minutes prior to my making the endorsement at 2:20 AM. The husband of the patient was with her throughout the treatment. There were some other persons were also present. I do not recollect if any police officer or government officer had come to examine the patient/take her statement. Vol. When the patient is in the ICU we do not permit any person inside. In the present case we had not permitted any person to record the statement of the patient because she was not in a state to make a statement. The husband of the patient remained in the hospital till her death. I do not recollect what the patient was saying when her statement was recorded by the police officer. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 60 The police officer had requested me to permit him to record the statement of the patient. There was no written request of the police officer and it was only verbal. I did not make any endorsement in any of the files or documents maintained in the hospital to this extent that I had permitted the police officer to record the statement of the patient. I had told the police officer that the patient was not in a fit state to make a statement and her condition was deteriorating but he insisted upon taking the statement.
Court Question : Was the patient in a fit mental state to make a statement?
Ans. : No, she was not in a fit mental state and I had told the police officer about it, but he insisted upon questioning the patient.
Court Question : Did you hear what questions were put to the patient and what answers she was giving?
Ans.: No, I was standing at some distance while the police officer was very slowly asking the patient something which was in audible and he St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 61 was recording something which I did not see or her but I was only ask to sign the same as a token of an endorsement that I was present at the time when he recorded the statement.
Court Question : Do I take it that you are totally unaware of what statement was made by the patient/deceased and your endorsement mark C on EX PW 10/A is only to show your presence at the spot.
Ans. : Yes.
Court question : Did you tell/disclose to the SDM that you had made your endorsement at mark C on EX PW 10/A only as a token of your presence in the room but the statement was recorded by the police officer despite your telling him that the patient was not in a fit state to make the statement at all and you did not hear what was stated by the deceased as her voice was very feeble on account of the pain and drowsiness because her BP was very low so much so that the lower BP was not recordable and her temperature had fallen and pulse was also very feeble.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 62 Ans. : I do not recollect about the same.
Court Question : Is it correct that in a state where the BP on the lower side is not recordable, the patient is virtually either unconscious or is slipping into COMA.
Ans. : It is correct that in a case where the BP on the lower side is not recordable being very low a patient would either be semi conscious but not unconscious and also may not be slipping into COMA.
The SDM had come after the death of the patient and I only confirmed to him that the police had recorded the statement of the patient but I did not confirm the contents of the statement of the deceased. I cannot tell the name of the police officer who had recorded the statement of the patient/deceased.
It is evident from the aforesaid that Dr. Vijay is not a witness to the alleged statement and the endorsement on Ex.PW10/A only establish his presence at the spot when SI Ram Saran had proceeded to question the deceased despite the serious objections by St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 63 the doctor and Dr. Vijay had not heard anything which the deceased had allegedly told SI Ram Saran.
Now coming to the testimony of Retd. SI Ram Saran (PW10) who has been recalled by the Court for purposes of cross examination. He earlier in his testimony recorded on 13.4.2010 stated that he recorded the statement of the deceased after which he informed the SDM Narela but till the time the SDM reached the hospital, Rachna had already expired. Here, I may observe that the SDM Narela Sh. A.K. Saxena (PW12) has proved that he came to the hospital later and the endorsement on the Dying Declaration on the basis of what had been told to him by the Investigating Officer. He has proved that when he reached the hospital, he found that the lady had already expired and the doctor on duty confirmed this fact and therefore after taking the MLC from the doctor he affixed his signatures on the same. In his crossexamination on a Court Question he has explained that he had put his signatures on the statement shown to him by the IO when he reached the hospital and he had put his endorsement on the same after he made the confirmation from the doctor. He has also stated that he did not record any separate statement of the doctor on duty in whose presence Rachna had made a statement. It is evident that the SDM A.K. Saxena had in routine made an endorsement on the Dying Declaration of Rachna to a limited extent that "the above statement has been confirmed by Dr. Vijay at St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 64 Santom Hospital, Prashant Vihar, Delhi. This has been treated as dying declaration. Dead body seen."
According to the SDM this statement had been confirmed by Dr. Vijay. Here, I may observe that when Dr. Vijay (PW13) was examined in the Court he only confirmed that the fact that his signatures were taken on the same but he did not certify the deceased as fit for statement. Rather, he has proved that he had objected the Investigating Officer recording the statement and has also proved having told the Investigating Officer that the deceased was not in a fit state to make a statement and her condition was deteriorating. He has further proved that he did not know what the deceased had told the Investigating Officer.
Here, I may observe that the Dying Declaration Ex.PW10/A which bears the alleged thumb impression of the deceased show that the said thumb impression are very faint. It is evident from the record that the deceased was a qualified educated girl who was doing her B. Ed. and there was no reason for her to put her thumb impressions on her statement in case if it was made by her. The Investigating Officer SI Ram Saran (PW10) has been exhaustively examined on this aspect but he has not been able to give any satisfactory answer. Rather he has been very inconsistent and has not been able to justify under what circumstances the above statement had been made by the deceased. The deposition of Retired SI Ram St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 65 Saran (PW10) on the aforesaid aspect on the aspect of questioning of the Court is reproduced as under:
On court question: it is correct that before 1.30AM who met the deceased and who were the family members of the deceased who were with her are not in my knowledge. When I reached the hospital I did not find any family member of the deceased. The husband of the deceased had brought her to the hospital. I was told by the doctor that her husband had brought her. I searched for her husband in the hospital for half an hour / 45 minutes which was after recording the statement of the deceased. On Court Question: What was the urgency in recording the statement of deceased Rachna when according to you she was conscious oriented and in a fit physical state that within 15 minutes you proceeded to record her statement without first informing the SDM and without first making local enquiries from the person who had brought her to the hospital?
Ans. The witness is taking unduly long time to answer. Now after a very long pause he states there St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 66 was no emergency.
It hardly took me only 10 minutes to record the statement of the deceased.
On court question: It is correct that while I was recording her statement, she become deteriorated. It is correct that the deceased slipped into COMMA in my presence and expired at 2.20AM in the presence of Dr. Vijay.
Question:When according to you the girl was conscious till such time her statement was completed, why were her signatures not taken and she was asked to put thumb impression?
Ans. The witness is taking unduly long time to answer. The witness is not giving any answer. After a very very long pause, he says that there was drip on both the hands of the deceased.
Court Question: How can there be drip in both hands?
Ans. I think it was in the right hand.
Court Question: The deceased was an educated woman and if you could take her thumb impression while she was on the drip, why did not not take her St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 67 signatures when under these circumstances it is much more convenient and easy to take the signatures ?
Ans. Witness is not giving any answer despite having taken a very long time. Now he says "Dhyan nahin, kya vajah thee"
It is evident from the aforesaid that according to the Investigating Officer the husband of the deceased was not present nor any relative of the deceased was present in the hospital when her statement was being recorded and he was told that the husband had gone away. This is contrary to the version given by Dr. Vijay who has stated that the husband of the deceased was present in the hospital along with the deceased. Further, when asked as to what was the urgency in recording the statement of the deceased when the doctor was repeatedly telling him that she was unfit for statement and her condition was deteriorating and why he did not inform the SDM before recording the statement, he could not answer the same but rather admitted that there was no urgency. Further, when asked why he took the thumb impression of the deceased despite the fact that she was an educated lady and could sign, on which he initially answered that there was drip on both the hands of the deceased but when asked St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 68 by the Court as to how could there be drip in both the hands, he stated that it was only in the right hand. Further, when asked if there was a drip on the right hand of the deceased then how her thumb impression could be taken, he could not answer. It is this what creates a suspicion since the right thumb impression of the deceased had been taken on the said statement. If the deceased was under treatment and there was a drip on her right hand then how under these circumstances was it possible for her to put her thumb impressions. Further, assuming that the deceased was in a position to affix her thumb impressions despite the drip, then it would have been more convenient for her to sign being an educated woman who was doing her B. Ed. from Chaudhary Charan Singh University, Meerut. It is writ large that this alleged Dying Declaration has been fabricated by SI Ram Saran wherein the signatures of Dr. Vijay were taken at 1:30 AM at point C in a different ink. Further, when the SDM arrived later at 3:15 AM the patient Rachna had already expired and he took the said statement as Dying Declaration simply because the doctor concerned had confirmed the said statement. However, now before the Court Dr. Vijay (PW13) has admitted that he did not hear anything what the deceased was saying and has rather stated that she was not in a physical or mental condition to made a statement. I hereby hold that his alleged Dying Declaration Ex.PW10/A is a sheer fabricated document since even the FSL report Ex.PX does not corroborate the contents of the alleged Dying St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 69 Declaration. The report Ex.PX does not show the presence of Celphos (Aluminum Phosphide) or other common poison. Had it been so that the deceased would have consumed Celphos as claimed by her in Ex.PW10/A its presence would have been established in Ex.PX which is not the case. Therefore, under these circumstances, I hereby hold that no reliance can be placed on the alleged Dying Declaration and the same has been fabricated by SI Ram Saran for which he is liable to be prosecuted.
Allegations against the accused under Section 498A/304B (dowry death proximity death) In order to succeed in charge under Section 498A of the Indian Penal Code, the prosecution is required to prove that the accused had subjected the deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under Section 498A of the Indian Penal Code. The cruelty, so as to attract penal provisions, contained in Section 498A of Indian Penal Code, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498A of Indian Penal Code indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 70 of the woman or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498A of Indian Penal Code.
The expression "Cruelty" takes in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 71 that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498A of Indian Penal Code.
If the woman has been harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498A of IPC. The expression "harassment" has not been defined in Section 498A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. However, it is not harassment of every nature which is punishable under section 498A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.
Further, in order to establish a charge under Section 304B of Indian Penal Code, which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients: i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstance;
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 72 ii. Such death must have occurred within seven years of her marriage;
iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
iv. Such cruelty or harassment must be for or in connection with demand for dowry;
v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.
The term "Dowry" has not been defined in Section 304B of IPC, but, since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under Section 304B IPC as held by Hon'ble Supreme Court in Satvir Singh & Ors. v. State of Punjab and Anr. reported in 2001 (4) Crimes 45. Section 2 of Dowry Prohibition Act defines dowry as under:
"Definition of 'dowry'. In this Act, "dowry"
means any property or valuable security given or agreed to be given either directly or indirectly (a) by one party to a marriage to the other party to the marriage, or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 3 or any time after the marriage 4in connection with the marriage of the said parties, but does not include dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applies." St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 73 Dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of a person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. However, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some cash, valuable security or property to her husband or inlaws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that would also, to my mind, constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 74 on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304B of Indian Penal Code.
In the case of Pawan Kumar & Ors. Vs. State of Haryana reported in AIR 1998 SC 958, the Apex Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or promised or even demanded prior to or at the time of marriage, to be a demand for dowry for the purpose of Section 304B of IPC. If cash or some property, etc. is demanded by the boy or his family members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or any other person related or connected to her promise to fulfill such a demand, that also may fall within the purview of dowry, as the promise though made after marriage, would nevertheless be referrable to the marriage, having been made with a view to preserve the marriage. In case, if the demand is made after marriage and it is in St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 75 respect of a property or valuable security, which was not demanded, was not expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry.
In the case of Satvir Singh Vs. State of Punjab reported in 2001 (4) Crimes 45 while dealing with this issue, the Hon"ble Supreme Court, inter alia, observed as under:
"Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties".
This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 76 In the case of Appasaheb and Anr. Vs. State of Maharashtra, reported in AIR 2007 SC 763, the Hon'ble Supreme Court observed as under:
"In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning........ A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood.
The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 77 asked for was some money for meeting domestic expenses and for purchasing manure."
The Indian Penal Code and the Dowry Prohibition Act are both remedial and penal statutes. As such Courts are expected to construe the provisions in a way that the purpose is fulfilled through and within the limits of language employed in the statute. If a case is established then the Courts are to be stringent in dealing with the culprits. The Courts while taking a stringent view and despite the obligation of the Legislature enactment a success have also to keep in mind that the charge should be made out.
The main ingredients to be proved for establishing a case under Section 304B IPC are (i) unnatural death of a woman within seven years of her marriage and (ii) she being subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand of dowry.
The words "it is shown" occurring in section 304B IPC are of significance for the reason that the initial burden of proving that circumstances envisaged by Section 304B IPC do exist on the prosecution. This being shown or established, the question of presumption under Section 113B of the Evidence Act would arise. In other words, to draw a presumption under section 113B of the Evidence Act the necessary ingredient that it is shown that soon St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 78 before her death she was subjected to cruelty or harassment in connection with the demand of dowry has to be proved. Only when these facts are proved then by virtue of the deeming provision of section 304B IPC, the Court shall presume that the husband or any relative of the husband had caused dowry death. Though cruelty at any time after the marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged by Section 304B is to be soon before the death of a woman.
The Courts are required to scrutinize the evidence carefully because cases are not rare in which occasionally there is a demand and then the atmosphere become calm and quiet and then again there is demand. Where a wife dies in the house of her husband within a short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined to the four walls of the house. The Courts are, however, required to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are the relatives of the deceased and relations between them and her in laws are strained for any reason whatever it might be.
Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 79 committing suicide may think that life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person . Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life. (Reliance can be placed upon the judgment of the Rajasthan High Court reported as Gurditta Singh Vs. The State of Rajasthan reported in 1992 Crl. L.J. 309).
The importance of proximity test is both for the proof of an offence of dowry death as well as for raising a presumption under section 113B of the Evidence Act. The expression "soon before her death" used in the substantive section 304B IPC and section 113B Evidence Act is pregnant with the idea of proximity test. No definite period has been indicated and the expression "soon before" used in section 113B of the Evidence Act, Illustration (a) of the Act is relevant. The determination of the period which can come within the term "soon before" is left to be determined by the Courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be too much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 80 cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
It is well settled by several judgments that mere suspicion cannot be a substitute for proof of guilt. In the case reported as State of Punjab v. Bhajan Singh and Ors., reported in AIR 1975 SC 258, it was observed by Hon'ble Supreme Court of India as under: ''The circumstances of this case undoubtedly create suspicion against the accused. Suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused.'' In another case reported as Kali Ram Vs. State of Himachal Pradesh reported in AIR 1973 SC 2773, it was observed by Hon'ble Supreme Court of India as under: Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 81 inconsistent with that of this innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have benefit of that doubt........
It needs all the same to be reemphasized that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused..
In another case reported as AIR 1973 SC 2622, it was observed by Hon'ble Supreme Court of India as under : ''Certainly it is a primary principle that the accused must be and not merely may be guilty before the court can convict and the mental distinction between "may be" and "must be" is long and divides vague conjectures from sure consideration.'' St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 82 Further more, in another case reported as Mousam Singha Roy & Ors. v. State of West Bengal, reported in 2003 (3) JCC 1358, it was observed by Hon'ble Supreme Court of India as under : ''Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstance this Court in the case of "Sarwan Singh Rattan Singh Vs State of Punjab (AIR 1957 SC 637) stated thus:
It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.'' It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 83 higher degree of assurance is required to convict the accused.
Applying the settled principles of law to the facts of the present case it is evident that the death of the deceased had occurred within 15 months of her marriage with the accused. The allegations of demand of dowry made against the accused, his mother and sister by the parents of the deceased are oral. PW8 Rana Bahadur Singh the father of the deceased and Smt. Saroj Bala (PW9) mother of the deceased have deposed that after the marriage their deceased daughter, who was admitted in B.Ed. in Chaudhary Charan Singh University, Meerut, used to inform them that she was been harassed by her husband Manoj, mother in law Prakashwati and sister in law Rachna on account of demand being made by them from time to time. According to them, the harassment had increased after the marriage of the cousin of accused Manoj who had got a Maruti car in the wedding. It is admitted by both the mother and father of the deceased that they did not make any complaint either written or oral against the harassment caused by the accused to their daughter to any authority. In fact the mother of the deceased has also given the details regarding alleged demand made by the accused. According to her, in the Roka ceremony they had given Rs.2,100/ in cash besides a gold ring to Manoj and clothes to other family members and relatives and in the Sagai ceremony they had given Rs.51,000/ in cash besides one motorcycle and other usual furniture articles, clothes and one gold St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 84 chain of the accused Manoj, one gold ring and one gold set of their daughter but after God Bharai the accused persons demanded Rs. 51,000/ besides motorcycle but she is unable to give the date.
It is evident from the detail testimonies of these witnesses that apart from the expenses which they had made at the time of marriage, they have not cited any instance of demand of dowry and the allegations which have now been made for the first time in the Court do not find any corroboration. In fact Subedar Dayal Singh the uncle of the deceased has specifically stated that the complainants which were made by the parents of the deceased were regarding adjustment problems and not connected with dowry. Therefore in so far as the aspect of demand of dowry by the accused is concerned the same has not been proved beyond reasonable doubt benefit of which has to be given to the accused.
However, in so far as the aspect regarding the infliction of cruelty to the deceased is concerned, the suicide notice and the alleged dying declaration of the deceased would be relevant. As already discussed herein above the alleged Dying Declaration recorded by SI Ram Saran on the face of it is a fabricated document and therefore, under these circumstances, there is no question of relying upon the same. However, it is evident from the testimony of Inspector Pratap Singh that he had sent the suicide note and the admitted handwriting of the deceased to FSL. There is nothing on record to show from St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 85 where this suicide notice was recovered and who seized the same. The said suicide note has however, not been disputed by the accused as evident from the crossexamination of Inspector Pratap Singh, rather the accused are relying on the same. Under these circumstances since the defence has not disputed the suicide note I hold that the same would be admissible in evidence. The FSL report from the handwriting expert shows that the suicide note had been written by the deceased (the questioned writing found matching with the admitted handwriting of the deceased which the IO had obtained from Chaudhary Charan Singh University). The contents of the same are as under:
Har koi gunah karta hai par shayad mere gunahoon ka koi hisab nahin. Ek basebasaaye ghar ko tora hai mainne. Bajaey ghar ko ek aulad dene ke main ne ghar ka chain china hai. Bhagwan mere gunahoon ki kab saza dega main nahin janti par ab main in gunahoon ka bojh aur nahin seh sakti so main jaa rahi hoon taki mujhse shuru hua toofan mere saath khatm ho jaye.
Meri aakhri khwahish yehi hai ki mujhe mere har gunah ki saza mile aur hey tabhi ho sakta hai jab marne ke baad mujhe do gaz zamin tak no mile. Manu ho sake to mere sharir ko daan kar St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 86 dena aur hey na ho sake to lawaris phenk dena. Agan mainne zindgi mein koi sukh diya hai to bas itni si chahat puri kar dena.
A random reading of the above reflects the extent of depression of the author. The parents of the deceased in their testimonies having admitted that within the short span of 15 months of marriage the deceased had undergone two abortions but have denied the suggestion that she had undergone abortions when she was at their house and have specifically stated that she was at her matrimonial house at that time. What were the compelling circumstances under which a young girl hardly married for 15 months with no history of any medical problem before her marriage, was constrained/ compelled to undergo abortion and that too on two occasions. I may observe that the Medical Termination of Pregnancy Act, 1971 prohibits the termination of the pregnancy except under exceptional circumstances as provided under the Act. It is evident from the suggestions put to the witnesses that after the first abortion an infection had set into the body of the deceased on account of which her one tube and ovary had to be removed and again when her second abortion was done, she again suffered infection and complications due to which reason her second ovary had to be removed and in this regard I may observe that the postmortem report also corroborates this fact and shows that both St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 87 the ovaries were absent. It is this which made me ponder as to how a hale and hearty young girl within 15 months of her marriage was compelled to undergo two abortions. No evidence has been brought on record by the defence to justify the said abortions on medical grounds or on any other grounds provided under the Medical Termination of Pregnancy Act, 1971 which resulted into loss of both the ovaries of the deceased.
Here, I may observe that even the accused has put another note allegedly written by the deceased to the mother of the deceased Smt. Saroj Bala (PW9) which the mother of the deceased has denied. The said note reads as under:
"Main bahut buri hoon. Main kabhi kisi ko khush nahin rakh sakti. Har koi mujhse nafrat karta hai. Shayad main isi layak hoon. Maabaap par bojh bani sari zindgi unka jina haram karke rakha. Shaadi ki to sir par karz karwa diya. Sasural men jaate hi ghar tor diya har kisi ka apmaan kiya pati ko koi pyar nahin kiya. Shaadi ke baad bhi defence wale to chaha. Pata nahin yeh defence wala hai kaun. Jo bhi ho usese kya main to awaara hoon jo ek aur mard to chahti hoon. Mammi ko dar tha ki kahin main bhag no jaoon isliye do vash pehle hi St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 88 meri shaadi kar di. Phir bhi main khapar bharti hoon. Anshanpatti le kar pari rehti hoon. Kisi ki izzat nahin karti. Mere karan mere pati ne mere maabaap ki beizzati ki. Mere mammi papa ko jhukna para sirf mere karan. Har musibat ki jar main hi hoon. Samajh mein nahin aata main zindia kyon hoon. Mammu kehti hai ki mere had vyavhar ka asar mere bachche par parega. Main har vakt udaas rehti hoon, har vakt roti rehti hoon. Mera bachcha bhi mere jaisa hoga. Vo bhi har vakt rota hi rahega. Main chah kar bhi apne bachhe ko kuch nahin de sakti. Na achche sanskar aur na hi zindgi ka koi sukh, use bhi rona hai meri tarah. Main bahoot buri hoon. Main apne bachche ko paida hone se pehle hi maut se badtar zindgi de rahi hoon. Main bahut buri aurat hoon. Ek achchi maa bhi nahin ban sakti. Kya bhagwan aisa kuch nahin kar sakta ki main aur mere bachcha is duniya se hamesha ke liye chale jaayen aur kisi ka munh bhi kala na ho. Vaise bhi bure loogon ko jine ka haq nahin hona chahiye. Mere marte hi kai logoon ke sir se musibat tal jayegi. Bahut se log chain ki saans le sakenge Bahut se St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 89 chehron par khushiyan laut aayengi. Ek baar phir se unke chehre khil uthenge. Khya bhagwan itne sare logoon ki khushi ke liye mujhe apne pass nahin bula sakta hai.
Main kisi ke liye achchi nahin. Mere pati Manu jisse mainne bahut pyar kiya vo bhi mujhse nafrat karte hain. Unki zindgi ko bhi maine na chahte hue bhi narak bana diya hai. Unhe koi khushi nahin de sakti ulta jo zindgi mein thora bahut sukum tha vo bhi chin liya aur unka jina bhi mushkil kar diya. Main janti hoon unki doosri shaadi hogi. Vahi unki zindgi mein khushiyan bharegi. Un doono ki shaadi ke liye bhagwan mujhe utha kyon nahin leta. Though, the mother of the deceased had denied the aforesaid document but assuming that the same was written by the deceased as claimed by the accused, it is evident from the above that the deceased was suspected to be having relations with some army personnel. It is in this background that the deceased had in the above note mark PW9/DA pleaded her ignorance of the above army personnel. It is also evident from the crossexamination of the witnesses that specific witnesses have been put to the mother of the deceased that the deceased wanted to marry some army personnel. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 90 Who is this army personnel is not forthcoming. Rather, it is evident from the suicide note that even the deceased had mentioned about this unknown army personnel on account of which she was being subjected to unwarranted taunts.
It is writ large from a joint reading of the suicide note and the above note placed on record by the accused that it was on account of her physical/ mental condition and her being subjected to taunts in connection with some army personnel whom perhaps even the deceased did not know, which made her life unbearable and miserable. It is evident from the note mark PW9/DA that the deceased felt that she was living a life which was hell for her and she was not in a position to provide any happiness to anybody and in case if a child is born to her, the said child would have to suffer in the same manner as she was suffering. Is subjecting a woman to taunts, doubting her credentials and character, connecting her to some nonexisting person, getting abortions conducted on two occasions within a short span of 15 months of marriage resulting into irreparable physical loss to the deceased not cruelty? To my mind, all this is nothing sort of mental cruelty. It is evident that the deceased entertained an extreme feeling of self persecution and lowered self esteem when she ultimately took the unfortunate step. If this is not cruelty then what else is it and the only responsible for the same would be the husband of the deceased and none else.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 91
In view of the aforesaid, I hold that in so far as the accused Manoj Kumar is concerned, his case is covered within the provisions of Explanation (a) of Section 498A Indian Penal Code. However, in so far as the accused Prakashwati is concerned, it is evident that the names of the sisterinlaw and motherinlaw and other distant relatives have been introduced only to spread the net wide as often happened in cases under Section 498A/ 304B Indian Penal Code. Hence, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against Prakashwati of causing harassment to the deceased, beyond reasonable doubt and hence, benefit of doubt is being given to her.
Coming now to the provisions of Section 304B Indian Penal Code, as already observed herein above that the demand of dowry has not been proved beyond reasonable doubt. Further, it is clear from the evidence of the prosecution witnesses that the deceased had committed suicide at her matrimonial house but it cannot be related to any dowry related harassment by the accused Manoj Kumar and Prakashwati as apparently there is no proximity or live link between the death of Rachna or any misconduct by them. I am, therefore, of the considered opinion that the prosecution has not been able to establish the role of the accused Manoj Kumar and Prakashwati in the commission of the alleged crime beyond St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 92 reasonable doubt nor there is anything on record to show that the deceased had taken the extreme step of committing suicide on account of conduct of the accused.
FINAL CONCLUSIONS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622 the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 93 Applying the above principles of law to the present case, it is evident that the identity of all the accused stands established. The accused Manoj Kumar is the husband of the deceased Rachna and the accused Prakashwati is the mother in law of the deceased. It stands established that the marriage between the accused Manoj and the deceased Rachna was solemnized on 17.2.2002 according to Hindu rites and ceremonies. It also stands established that at the time of marriage and even prior to that there was no demand of dowry. The allegations against the accused Manoj of causing cruelty to the deceased after marriage stands established. It stands established that during the short span of 15 months of the marriage she had undergone abortions on two occasions when she suffered an infection and complications when both her ovaries had to be removed and the accused has failed to place before the Court evidence to justify the termination of pregnancy (as provided under the Termination of Pregnancy Act). It also stands established that before her death the deceased had written a suicide note showing the extent of depression, however it does not establish that she had made a Dying Declaration Ex.PW10/A which has been observed to be a fabricated document.
With regard to the accused Manoj Kumar, his case is covered within the provisions of Explanation (a) of Section 498A St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 94 Indian Penal Code. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link in so far as the aspects of inflicting mental cruelty and harassment to the deceased Rachna are concerned. Therefore, I hereby hold the accused Manoj Kumar guilty of the offence under Section 498A Indian Penal Code and convict him accordingly.
In so far as the accused Prakashwati in respect of offence under Section 498A Indian Penal Code and the accused Manoj Kumar and Prakashwati in respect of the offence under Section 304B or Section 302 Indian Penal Code are concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 95 with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The material brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the accused. Crucially, the materials and evident on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Prakashwati beyond reasonable doubt and hence, benefit of doubt is being given to the accused Prakashwati who is acquitted of the charge under Section 498A Indian Penal Code. Further, in so far as the provisions of Section 304B or Section 302 Indian Penal Code are concerned, I hold that the prosecution has not been able to prove and substantiate the allegations against the accused Manoj Kumar and Prakashwati who are acquitted of the same.
Further, in so far as the role of Retired SI Ram Saran (PW10) is concerned, he is the initial Investigating Officer of the St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 96 present case. He has deposed falsely with regard to the absence of accused Manoj and other relatives in the hospital despite the medical record showing that the deceased was brought by the accused and their presence being established in view of the testimony of Dr. Vijay. He has further deposed falsely on the aspect of the deceased being declared fit for statement by the doctor and having taken the fitness which he did not take and rather the doctor had refused to give him the fitness and had told him that Rachna was not in a fit condition to make any statement and that her condition was deteriorating and it was despite the same that he proceeded to take thumb impression of Rachna on her alleged statement under circumstances which are suspicious. It is writ large that this alleged Dying Declaration has been fabricated by SI Ram Saran wherein the signatures of Dr. Vijay were taken at 1:30 AM at point C in a different ink. Further, when the SDM arrived later at 3:15 AM the patient Rachna had already expired and he took the said statement as Dying Declaration simply because the doctor concerned had confirmed the said statement. Dr. Vijay (PW13) has submitted before the Court that he did not hear what the deceased was saying and that she was not in a physical or mental condition to made a statement. It is evident that the FSL report Ex.PX does not corroborate the contents of the alleged Dying Declaration which does not show the presence of Celphos (Aluminum Phosphide) and other common poison. This being so it stands established from St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 97 the record that SI Ram Saran had fabricated the alleged Dying Declaration of the deceased Rachna which is Ex.PW10/A. I hereby hold the witness Retired SI Ram Saran (PW10) guilty of the offence of fabrication of evidence/ perjury and I am satisfied that it is necessary and expedient in the interest of justice that Retired SI Ram Saran should be tried for the same. Therefore, under these circumstances, notice is directed to be issued against Retired SI Ram Saran as to why he should not be punished for fabricating evidence and also for giving false evidence on oath believing the same to be false during the trial of the case despite being legally bound to state truth and believing the same to be false. He shall appear in person before this court on the next date of hearing and shall also file his reply with regard to the above. The proceedings in this regard are directed to be separated.
Case be listed for arguments on sentence qua the convict Manoj Kumar on 22.11.2011. At this stage, on request of the counsel the date is changed to 24.11.2011. The date of 22.11.2011 is cancelled.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.11.2011 ASJII(NW)/ ROHINI
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 98
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No.: 1065/09 Unique Case ID No.: 02404R0136902006 State (1) Manoj Kumar S/o Late Dev Dutt Chauhan R/o House No. 1090, Tigri Pur Mor, Bakhtawarpur, Delhi - 110036 (Convicted) (2) Prakashwati W/o Late Dev Dutt Chauhan R/o House No. 1090, Tigri Pur Mor, Bakhtawarpur, Delhi - 110036 (Acquitted) (3) Kumari Rachna D/o Late Dev Dutt Chauhan R/o House No. 1090, Tigri Pur Mor, Bakhtawarpur, Delhi - 110036 (Discharged - 11.5.2005) FIR No.: 161/2003 Police Station: Alipur Under Section: 498A/304B/406/34 IPC St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 99 Date of Judgment: 15.11.2011 Arguments heard on: 24.11.2011 Date of Sentence: 28.11.2011 APPEARANCE:
Present: Sh. Taufique Ahmed, Addl. Public Prosecutor for the State.
Convict Manoj Kumar in judicial custody with Sh. Yashvir Sethi Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 15.11.2011 the accused Manoj Kumar has been held guilty of the offence under Section 498 A Indian Penal Code. However, he has been acquitted of the charge under Section 304B or Section 302 Indian Penal Code. The accused Prakashwati has been acquitted of the charges under Sections 498A, 304B or 302 Indian Penal Code.
The case of the prosecution is that the marriage between the accused Manoj and the deceased Rachna was solemnized on 17.2.2002 according to Hindu rites and ceremonies at Sonepat and after the marriage, the accused Manoj Kumar being the husband and accused Prakashwati being the motherinlaw of deceased Rachna, subjected Rachna to cruelty and harassed her for unlawful demand. It St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 100 has also been alleged that on the intervening night of 18/19.5.2003 the death of Smt. Rachna occurred under otherwise than normal circumstances within seven years of her marriage and soon before her death, Rachna was subjected to cruelty or harassment by the accused Manoj Kumar and Prakashwati for or in connection with the demand of dowry and they committed dowry death of Rachna.
On the basis of the testimonies of the various witnesses examined by the prosecution and the circumstantial evidence on record, this Court has held the accused Manoj Kumar guilty under Section 498A Indian Penal Code for causing mental cruelty upon the deceased Rachna since it was established that during the short span of 15 months of the marriage she had undergone abortions on two occasions when she suffered an infection and complications when both her ovaries had to be removed and the accused has failed to place before the Court evidence to justify the termination of pregnancy (as provided under the Termination of Pregnancy Act). However, the prosecution was not able to establish the allegations regarding dowry demand due to which reason the accused Manoj Kumar has been acquitted of the charges under Section 304B or Section 302 Indian Penal Code. Further, the accused Prakashwati has been acquitted of the charges under Sections 498A, 304B or 302 Indian Penal Code. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 101
I have heard arguments on the point of sentence. The convict Manoj Kumar is aged about 38 years with a family comprising of aged widow mother, sister, younger brother, wife and two minor children. He is a teacher by profession. Ld. Counsel appearing on behalf of the convict has vehemently argued that after the incident the convict had remarried and is having two children one of whom was born after the convict was sent to judicial custody after his conviction. It is submitted that the convict is the sole bread earner of his family and any harsh view would be prejudicial not only to the convict but also to his family members. Ld. Counsel has also pointed out that the convict has already remaining in judicial custody for about one month and has faced the agony of trial since the year 2003. He requests that a lenient view be taken against the convict. On the other hand, the Ld. Addl. PP for the State has prayed for a strict view against the convict keeping in view the allegations involved.
I have considered the rival contentions. I may observe that the marriage between the accused and the deceased unfortunately hardly lasted for about 15 months. It is during this period that the deceased under went abortions on two occasions resulting into severe complications and loss of both her ovaries. The incident is of the year 2003 and the convict has suffered the agony of trial for the last almost eight years and during the trial he has never misused the liberty so granted to him. At the time of incident was hardly 30 years of age. St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 102 He has now remarried and is having two children one of whom is hardly one week old. He is the sole bread earner of his family comprising of his widow mother, wife and two children. He has been acquitted of the charges under Section 304B IPC and the conviction under Section 498A IPC is on the basis of the circumstantial evidence there being no direct evidence in this regard. This being the background a lenient is taken against the convict Manoj Kumar who is hereby sentenced to Rigorous Imprisonment for the period already undergone and a fine to the tune of of Rs.1,00,000/ for the offence under Section 498A Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One month. Out of the total fine amount of Rs.1,00,000/ (if recovered) Rs.50,000/ shall be deposited with the State and Rs. 50,000/ shall be given to the parents of the deceased towards mental pain and agony which they had suffered. It is clarified that in the eventuality of the parents of the deceased not accepting the compensation amount, the same shall go the NGO Help Age India.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 103 Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Further, vide judgment dated 15.11.2011 this Court has held the witness PW10 Retired SI Ram Saran guilty of the offence of fabrication of evidence/ perjury. A notice was issued to him to show cause as to why he should not be punished for fabricating evidence and also for giving false evidence before this Court on oath believing the same to be false during the trial of the case despite being legally bound to state truth and believing the same to be false. On 24.11.2011, retired SI Ram Saran gave a hand written reply which I have duly perused. I am not satisfied by any of the explanations offered by retired SI Ram Saran. Vide separate proceedings a complaint is being sent to the Ld. ACMM, Rohini with a request to initiate proceedings against retired SI Ram Saran for fabrication of evidence and deposing falsely in the Court.
Copy of the judgment and order of sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.11.2011 ASJ (NW)II: ROHINI
St. Vs. Manoj Etc. FIR No.161/03, PS Alipur Page No. 104