Delhi District Court
State vs 1. Veena Jain W/O Subhash Jain on 8 December, 2010
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In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. :17/08
State versus 1. Veena Jain W/o Subhash Jain
R/o H.No.4676/21, Ansari Road,
Darya Ganj, Delhi.
2. Subhash Jain S/o Sh. L.C. Jain
R/o H.No.4676/21, Ansari Road,
Darya Ganj, Delhi.
3. Yash Jain S/o Subhash Jain
R/o H.No.4676/21, Ansari Road,
Darya Ganj, Delhi.
4. Prashant Jain S/o Subhash Jain
R/o H.No.503, Sector16A,
Faridabad, Haryana.
5. Anjali Jain W/o Prashant Jain
R/o H.No.503, Sector16A,
Faridabad, Haryana. (Discharged)
6. Ruchi Jain W/o Sanjay Jain
R/o H.No.AM/28, Shalimar Bagh,
Delhi. (Discharged)
7. Sanjay Jain S/o Sh. L.K. Jain
R/o H.No.AM/28, Shalimar Bagh,
Delhi. (Discharged)
SC No.17/08: State vs. Veena Jain & Ors.
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Case arising out of:
FIR No. : 344/2000
Police Station : Darya Ganj
Under Section : 498A/304B/201/34 IPC
Judgment reserved on : 23.11.10.
Judgment pronounced on : 08.12.10.
JUDGMENT
1. Four accused persons namely Veena Jain, Subhash Jain, Prashant Jain and Yash Jain stood trial before this Court for the offences punishable U/s 498A/304B/34 IPC.
2. As per the chargesheet, on 13.06.00, a telephonic information was received at Police Station Darya Ganj that Smt. Shalu Jain W/o Yash Jain R/o 4676/21, Ansari Road, Darya Ganj, Delhi had been taken by CATS Ambulance to JPN Hospital in burnt condition. DD No.24A was accordingly recorded and SI Prabhu Dayal reached the hospital and obtained the MLC of Smt. Shalu Jain wherein she had declared unfit for statement. SI Prabhu Dayal met the complainant Smt. Kamlesh Jain, mother of Smt. Shalu Jain and recorded her complaint Ex.PW1/A. SC No.17/08: State vs. Veena Jain & Ors.
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3. The complainant stated that her daughter Shalu was married to accused Yash Jain S/o accused Subhash Chand Jain on 23.01.98. She alleged that since her marriage, her daughter Shalu was harassed by her inlaws and that her husband used to beat her and demand money from her. Even after birth of her child, Shalu was harassed by her inlaws and was turned out of the matrimonial home with the condition that she should return after brining Rs.40,000/ which were spent on the delivery of the child. Shalu was again kept in the matrimonial home upon receipt of the said Rs.40,000/.
4. The complainant also alleged that accused Yash Jain, husband of Smt. Shalu was unemployed and used to beat her frequently. She stated that her daughter had told her that her mother inlaw accused Veena Jain also harassed her on account of dowry and some days ago, Shalu had been turned out of the matrimonial home, pursuant to which a meeting was held in a temple in Shalimar Bagh where the matter was compromised and Shalu was taken back to the matrimonial home by the accused persons.
5. The complainant has also alleged that her daughter Shalu was burnt by her husband accused Yash Jain and accused Veena Jain. Smt. Shalu Jain, subsequently, expired on 14.06.00 and as per the postmortem report, her death was due to shock consequent upon ground 75% burn SC No.17/08: State vs. Veena Jain & Ors.
:4:injuries. Scalp hair sample was preserved at the request of the SDM. Viscera of deceased was preserved for chemical analysis to rule on to any conincidental common poisoning, expecting corrosive poisons, nature not known. The SDM conducted the inquest proceedings U/s 176 Cr.P.C. After completing the investigation, the chargesheet was filed against accused Veena Jain (mother inlaw), Subhash Jain (father in law), Yash Jain (husband), Prashant Jain (Jeth), Anjali Jain (wife of Prashant Jain), Ruchi Jain (sister inlaw) and Sanjay Jain (husband of Ruchi Jain).
6. After the case was committed for trial to the Sessions, vide order dated 06.07.01, Charge for offences punishable U/s 498A/304 B/34 IPC was framed against accused Veena Jain, Subhash Jain, Prashant Jain and Yash Jain to which they pleaded not guilty and claimed trial. However, the accused Anjali Jain, Ruchi Jain and Sanjay Jain were discharged vide the same order.
7. The Prosecution examined as many as 35 witnesses in order to bring home the guilt of the accused persons.
8. Besides examining PW1/ Complainant Smt. Kamlesh Jain, mother of deceased Shalu Jain, the Prosecution has also examined PW5 Sh. Subhash Jain, maternal uncle (Mama) of deceased Shalu Jain, PW9 SC No.17/08: State vs. Veena Jain & Ors.
:5:Sh. Vishal Jain, brother of deceased Shalu Jain and PW10 Sh. Vishal Kirti Jain, father of deceased Shalu Jain who are the main witnesses of the Prosecution. PW2 Ram Avtar, PW8 Smt. Kamla Devi and PW26 Shashi Bhal Shukla are the independent witnesses of the Prosecution who had witnessed the incident of burning with deceased Shalu Jain.
9. The Prosecution also examined PW4 HC Ombir to prove the relevant entries in the Malkhana Register regarding depositing of case property in the Malkhana. PW6 SI Sunil Kumar, PW7 Constable Varinder, PW14 Constable Kuldeep Kaur, PW16 Devender Kumar Jain, PW19 ASI Jagroshni, PW22 Anil Prabhakar and PW34 Inspector Ranbir Singh are the witnesses relating to investigation of the case. PW12 Constable Mahinder Singh was posted in Police Station I.P. Estate and he informed about the death of deceased Shalu Jain to Police Station Darya Ganj vide DD NO.15A Ex.PW12/A. PW13 Dharam Singh, Assistant Junior Ambulance Officer was the Incharge of the CATS Ambulance on 13.06.00 which had taken the victim to the hospital. PW17 HC Om Prakash had taken the exhibits vide RC No.97/21 from Malkhana and deposited the same in FSL, Malviya Nagar. PW21 Govind Singh is the photographer who took photographs of the spot and proved the same as Ex.PW21/1 to Ex.PW21/8. PW23 Sh Rajiv Jain is the husband of sister of deceased Shalu Jain. PW24 Inspector Devender Singh is the Draftsman who had prepared the site plan and proved the SC No.17/08: State vs. Veena Jain & Ors.
:6:same as Ex.PW24/A. PW28 Sh. Raj Kumar was posted as SDM, Dary Ganj at the relevant time who has proved the proceedings conducted by him. PW20 Inspector Prabhu Dayal and PW30 Inspector Satbir Singh Malik are the Investigating Officers of the case and have proved the respective proceedings on record.
10. Prosecution also brought the medical evidence on record by examining PW15 Dr. Prem Kumar who has proved the MLC of deceased Shalu Jain as Ex.PW15/A, prepared by Dr. Nitin. However, subsequently Dr. Nitin Kumar has also been examined as PW25 to prove the MLC Ex.PW15/A, prepared by him. PW27 Hemraj, Record Clerk from MAMC has proved the postmortem report Ex.PW27/A. However, subsequently Dr. Akash Jhanjee has also been examined as PW35 and proved the said postmortem report, prepared by him. PW29 Dr. Himanshu Chauhan examined accused Veena Jain on 14.06.00 and found burns on her both hands. He has proved his report in this regard as Ex.PW29/A. PW31 is B.S. Bhati, Record Clerk who has proved the endorsements, made by Dr. Siddharth on the MLC Ex.PW15/A and also proved the Death Summary Report Ex.PW31/A, prepared by Dr. Pankaj Singh. PW32 is Dr. Rohit who on the basis of postmortem report and CFSL Report opined that the cause of death was the combine effect of shock due to burn injuries and organophosphorus poisoning vide his opinion Ex.PW32/B. PW33 Dr. Madhulika Sharma was posted as Senior SC No.17/08: State vs. Veena Jain & Ors.
:7:Scientific Officer (Chemistry) at FSL, Malviya Nagar and had examined the exhibits. She has proved her report in this regard as Ex.PW33/A.
11. The admitted facts of the case as borne out from the record are that accused Yash Jain was married to deceased Shalu Jain on 23.01.98 according to Hindu rites and customs and that Shalu Jain died on 14.06.00 after being admitted her in JPN Hospital on 13.06.00, following severe burn injuries.
12. It is plea of the accused persons that deceased Shalu Jain died on account of burn injuries, sustained by her while she was cooking food. It is stated that accused Veena was also having burn injuries on both her hands which she sustained while trying to save her daughter inlaw i.e deceased Shalu Jain. The accused persons denied having committed any act of cruelty or harassment as alleged and have claimed that they have been falsely implicated in this case. The accused persons also examined one witness in their Defence i.e DW1 Dr. Bharat Singh. It is their plea that the death of Ms. Shalu Jain was caused by fire when she was cooking food and for this they relied upon her own statement made to the doctor who attended her while preparing her MLC Ex.PW15/A. Accused Prashant Jain further raised a plea that he was residing separately with his family at Faridabad and denied the incriminating SC No.17/08: State vs. Veena Jain & Ors.
:8:evidence against him. He also denied his presence in the meeting held on 26.05.00 at the Jain Temple, stating that he was in Faridabad.
13. Detailed arguments were advanced both by Learned APP and by Learned Defence Counsels. I have also gone through the voluminous written arguments along with the relevant case law. I have carefully perused the same and considered the submissions in the light of evidence both oral and documentary on record.
14. It was argued by Learned APP that the case U/s 498A IPC and U/s 304B IPC stands duly proved on record. He argued that the provisions of S.113B Indian Evidence Act raise a presumption in cases where the question is whether a person has committed dowry death of a woman and it is shown that soon before her death, such woman was subjected to cruelty or harassment for or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.
15. It was argued by Learned APP that in order to counter the presumption, available U/s 113B Indian Evidence Act, which is relatable to S.304B, a heavy burden is shifted on to the accused to prove his innocence. He argued that having regard to the language of S. 113B, the question arises as to whether a person has committed dowry SC No.17/08: State vs. Veena Jain & Ors.
:9:death of a woman and if it is established that soon before her death, the said woman was subjected to cruelty or harassment by such person for or in connection with any demand of dowry, the Court shall presume that such person has caused dowry death.
16. It was further argued that the use of expression "shall" in S. 113B Indian Evidence Act clearly indicates that the Court shall presume such death as dowry death provided in S.113B and it was for the accused then to prove otherwise. Learned APP has also relied upon a judgment of the Hon'ble Supreme Court reported as Trimukh Maroti Kirkan vs. State of Maharashtra 2007 Cri.LJ 20 in support of his arguments that even though S.106 of Indian Evidence Act is not intended to relieve the Prosecution to prove the guilt of the accused beyond reasonable doubt, but the Section would apply to cases like the present where the Prosecution succeeds in proving the facts from which a reasonable inference can be drawn regarding the death and the accused by virtue of his special knowledge since such woman is within the confines of the house of the accused as in the present case, it is the accused who is to offer an explanation which might lead the Court to draw a different inference.
17. However, it is settled law that to prove its case, since, a presumption U/s 113B shall be raised only on proof of essential SC No.17/08: State vs. Veena Jain & Ors.
:10:ingredients of S.304B IPC, the Prosecution must establish the following: (1) That the accused committed the "dowry death" of a woman (2) The woman was subjected to cruelty or harassment by her husband or his relatives; (3) Such cruelty or harassment was for; or in connection with any demand for dowry; (4) Such cruelty or harassment was soon before her death.
18. In order to establish its case, the Prosecution, therefore, must prove the aforesaid ingredients. The factum of the death of deceased Ms. Shalu Jain on 14.06.00 by sustaining burns to the extent of 75% is not in dispute in this case. It is also not in dispute that she was married to accused Yash Jain on 23.01.98 and that she died on 14.06.00 i.e within seven years of her marriage to accused Yash Jain. Hence, it stands admitted that the deceased died by burning i.e otherwise than under normal circumstances and within seven years of her marriage.
19. The next relevant factor which is to be proved by the Prosecution is that the deceased was subjected to cruelty or harassment by her husband and his relatives and that cruelty or harassment was for or in connection with demand of dowry and that the deceased was subjected to such cruelty or harassment soon before her death.
SC No.17/08: State vs. Veena Jain & Ors.
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20. In order to prove the allegations of cruelty, the Prosecution firstly examined the Complainant/ PW1 Smt. Kamlesh Jain, mother of deceased Ms. Shalu Jain. PW1 deposed that at the time of marriage of her daughter with accused Yash Jain, they had given many dowry articles including Rs. Two Lacs which were paid in four installments of Rs.50,000/ each. She further deposed that after marriage, her daughter deceased Shalu Jain started living in her matrimonial home in Darya Ganj along with the accused persons. But after 23 months of her marriage, accused Veena Jain, accused Subhash Jain, accused Prashant Jain, accused Yash Jain, accused Ruchi Jand accused Sanjay Jain started harassing her daughter and that she used to complain about their harassment to her on telephone. She deposed that the accused persons had made a demand of vehicle at the time of marriage and the harassment of the deceased for the aforesaid vehicle continued even after marriage as told to her by her deceased daughter. She stated that after a year, her daughter gave birth to a female child. After one week of the birth of the child, she went to the house of accused persons along with her husband. Accused Veena Jain told them to take their daughter and the child to their own house as the child was suffering from Jaundice and no proper sun light was coming in their house. After two days, they received a telephone call by accused Veena Jain who stated that the deceased would be turned out the matrimonial home and would be permitted to enter the house only upon brining Rs.40,000/ i.e the SC No.17/08: State vs. Veena Jain & Ors.
:12:amount, spent on the operation of the deceased at the time of delivery of the child. PW1 has further deposed that the amount of Rs.40,000/ was paid despite which her daughter continued to complain to her about the harassment by the accused persons.
21. The witness further testified that on 24.05.00, accused Yash Jain brought the deceased Shalu Jain to their house when her daughter was quite unwell and her face was swollen. Her daughter told her that she had been given severe beatings by the accused persons. PW1 also stated that a meeting took place in Jain Mandir, Shalimar Bagh on 26.05.00 which was attended by herself, her husband, her son, deceased Shalu Jain and all the accused persons. In the said meeting accused Subhash Jain demanded Rs. One Lac to set up accused Yash Jain in business. PW1 also stated that accused Veena Jain stated that they should keep back their daughter and when accused Yash Jain would be in a position to earn, he would bring back their daughter to her matrimonial home. However, the deceased Shalu Jain was taken by the accused persons to the matrimonial home at that time.
22. Further, as per PW1 on 12.06.00, at about 5 PM, her daughter i.e deceased Shalu Jain rang her up, stating that she was continuously harassed and beaten. On 13.06.00, they came to know that their daughter SC No.17/08: State vs. Veena Jain & Ors.
:13:had been burnt and admitted in LNJP Hospital. Her statement to the police has been proved by her as Ex.PW1/A.
23. Learned APP submitted that the allegations of cruelty and harassment of deceased at the hands of accused persons have also been established by PW10 Sh. Vishal Kirti Jain, father of the deceased. He also deposed about payment of Rs.Two Lacs, by way of installments at the time of marriage of deceased with accused Yash Jain. He also deposed that accused Subhash Jain raised a demand for one Maruti Car. He also deposed that after 23 months of marriage, the accused persons started harassing his daughter and she used to inform them about the said harassment on telephone. Deceased Shalu Jain told them that her husband accused Yash Jain was jobless and was pressurizing her to arrange some money for him. The witness further deposed that after the birth of the child, the deceased along with her child was brought to her parental home and later accused Veena Jain telephonically stated that infact the deceased was shunted out the matrimonial home and will only be accepted if the amount of Rs.40,000/ which were spent on the birth of the child in the hospital is paid. PW10 also deposed about the payment of aforesaid amount of Rs.40,000/ on the demand being made by the accused persons.
SC No.17/08: State vs. Veena Jain & Ors.
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24. The witness further deposed that on 24.05.00, when his daughter came to his house, he found the face of the deceased to be swollen and stated that the deceased informed him about the beatings given to her by the accused Yash Jain and the harassment by her father inlaw, mother inlaw, husband, sister inlaw and her elder brother inlaw (Jaith).
25. PW10 also deposed about a meeting which took place in Jain Mandir in Shalimar Bagh where accused Subhash Jain told him to arrange a job for accused Yash Jain or to pay Rs. One Lac immediately to them.
26. Sh. Vikas Jain, the brother of the deceased was also brought into the witness box by the Prosecution as PW9. He also more or less corroborated the testimony of PW1 & PW10.
27. Sh. Subhash Jain, maternal uncle (Mama) of the deceased was examined by the Prosecution as PW5. He stated that in the last week of June, 1998, he had visited the house of accused persons to given an invitation card of marriage of his niece where he met with deceased Shalu Jain. In that meeting, he felt that she was not happy in the house of her inlaws. He stated that when she visited the house of her parents, he also met her there and enquired about her. Deceased Shalu Jain SC No.17/08: State vs. Veena Jain & Ors.
:15:disclosed to him that her husband accused Yash Jain was having no business and her Jaith & Jaithani used to ask her that she should settle the business of her husband through her parents. He also deposed that deceased Shalu Jain used to narrate the story of her mental and physical harassment at the hands of accused persons telephonically from time to time.
28. PW5 also corroborated the version of PW1, PW9 & PW10 regarding the payment of Rs.40,000/ to the accused persons after the delivery of the child of the deceased. He deposed that on 13.06.00, he spoke to the deceased and stated that when she talked to him 'her awaj bhari hui thi and uski baton mein udasi chaee hui thee'.
29. The witness also deposed about the meeting which took place on 26.05.00 between the parents of the deceased and the accused persons. The said meeting was also attended by him where the accused persons again made a demand of Rs. One Lac to set up the business for accused Yash Jain.
30. PW8 Kamla who used to visit the house of accused persons after birth of the child of deceased also deposed about dowry demands made by the accused Yash Jain. She deposed "The lady [the mother of the said child] used to tell me that her husband used to illtreat, harass SC No.17/08: State vs. Veena Jain & Ors.
:16:and beat her. She also used to tell me that he was not permitting her to visit her parental home. She also used to tell me that her husband was asking her to bring money from her parental home. She used to tell me that her parents had given enough goods in 'Choochak' ceremony but a sum of Rs.40,000/ were demanded by her husband from her at that time."
31. On the basis of deposition of the aforesaid witnesses i.e PW1, PW5, PW9, PW8 & PW10, Learned APP argued that the Prosecution has been able to establish that the deceased was being subjected to cruelty and harassment in her matrimonial home on account of dowry demands.
32. On the other hand, Learned Defence Counsel drew my attention to the crossexamination of these witnesses and pointed out various contradictions in their depositions from their earlier statements.
33. Learned Defence Counsel pointed out that in her cross examination, PW1 Smt. Kamlesh Jain was confronted with her statement Ex.PW1/A and pointed out that in the said statement, she had taken only the names of accused Yash Jain and accused Veena Jain. He further argued that it is also not stated by her in her statement Ex.PW1/A that a sum of Rs.2 Lacs was given in four installments besides other household SC No.17/08: State vs. Veena Jain & Ors.
:17:articles given in dowry. The names of other accused persons were also not stated by her in her statement Ex.PW1/A. It was further pointed out that the witness did not state in her statement Ex.PW1/A that the demand of Rs.40,000/ was made on telephone.
34. On the basis of aforesaid contradictions and the contradictions as pointed out in the crossexamination of PW1, Learned Defence Counsel further argued that the witness has clearly improved upon her earlier statement and her testimony is not worthy of reliance.
35. On the other hand, Learned APP submitted that supplementary statements of PW1 Kamlesh Jain recorded during investigation show that she had stated the aforesaid facts during the course of investigation. He argued that the statement Ex.PW1/A was recorded on 13.06.00 when the deceased was admitted in the hospital and the Complainant could not be expected at that juncture to spell out each and every allegation against the accused persons as specifically deposed by her before the Court and in her supplementary statements recorded during investigation. Learned APP also submitted that the FIR is not the encyclopedia of the entire case of the Prosecution and he relied upon a judgment reported as Umar Mohd. vs. State of Rajasthan 2008 Cri.LJ 816 in support of the said arguments.
SC No.17/08: State vs. Veena Jain & Ors.
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36. I have considered the submissions and gone through the record including the statements, recorded U/s 161 Cr.P.C and I find force in the contention that when deceased Shalu Jain was hospitalized, her mother could not be said to be in proper state of mind to state all the facts intoto.
37. Moreover, it is settled law that not all contradictions or discrepancies are bound to prove fatal to the case of the Prosecution. Hon'ble Supreme Court in the judgment reported as Bur Singh vs. State of Punjab 2009 AIR (SC) 157 made a difference between normal discrepancies and material discrepancies and held : Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.
38. Similar observation has been made by Hon'ble Supreme Court in the judgment reported as State of Rajasthan vs. Smt. Kalki & Anr. AIR 1981 SC 1390(1).
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39. In the judgment reported as Shashidhar Purandhar Hegde & Anr. vs. State of Karnatka 2004 Cri. LJ 4677, the Hon'ble Supreme Court has held that minor discrepancies cannot be termed as contradictions in the evidence, tendered by a witness. It was held : As noted in Tahsildar Singh vs. State of UP (AIR 1959 SC 1012) all omissions are not contradictions. As the Explanation to Section 162 of the Code shows, an omission to state fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant or otherwise relevant having regard to the context in which the omission occurs. The provision itself makes it clear that whether any omission amounts to contradiction in the particular context is a question of fact.
40. Further in the judgment titled as Rammi @ Ramehswar vs. State of Madhya Pradesh decided on 21.09.1999, the Hon'ble Supreme Court held : When eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind SC No.17/08: State vs. Veena Jain & Ors.
:20:that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during crossexamination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below:
155. Impeaching credit of witness - The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him.
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross SC No.17/08: State vs. Veena Jain & Ors.
:21:examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the crossexaminer is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the crossexaminer to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e to contradict the witness.
To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would be helpful to contradict that witness, (vide Tahsildar Singh and Anr. vs. State of UP air 1959 SC 1012).
41. In view of the aforesaid law as laid down by the Hon'ble Supreme Court, I am of a firm view that the Prosecution witnesses namely; PW1 Smt. Kamlesh Jain, PW9 Sh. Vikas Jain & PW10 Sh. Vishal Kirti Jain, being close relatives of the deceased, have consistently deposed about harassment and torture of the deceased at the hands of accused persons on account of dowry demands. But for some minor contradictions which cannot be termed as 'material', their testimonies clearly and cogently prove the allegations of harassment and torture of the deceased by the accused persons on account of dowry demands. Their statements also find corroboration with the statements of PW8 Smt. Kamla & PW5 Sh. Subhash Jain, as discussed above.
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42. It would also be pertinent to note that though there may be minor contradictions here and there in the statements of PW1, PW9 & PW10 yet the said witnesses i.e PW1 Smt. Kamlesh Jain, mother of deceased Shalu Jain, PW10 Sh. Vishal Kirti Jain, her father and her brother Sh. Vishal Jain, PW9 all have consistently deposed that a demand of Rs.40,000/ was made by the accused persons, pursuant to the birth of the child of the deceased. The demand of Rs.40,000/ made by accused Yash Jain from the deceased is also corroborated by PW8 Smt. Kamla Devi. The demand of car by the accused persons has also been stated by the aforesaid PWs who have also consistently stated that the deceased Shalu Jain was ill treated on account of said dowry demands. The parents and brother of deceased have also deposed that on 24.05.00 when the deceased came to their house along with accused Yash Jain, she was having swelling on her face and that she had told them that she had been beaten by her husband accused Yash Jain. A demand for Rs.One Lakh in the meeting at Jain Temple, Shalimar Bagh on 26.05.00 has also been established by the testimony PW1, PW5, PW9 & PW10.
43. It was further argued by Learned Defence Counsel that as per PW1 & PW10, the deceased was brought to her parental home after one week of the birth of the child, whereas as per PW8 Smt. Kamla Devi, she had given massage to the deceased Shalu Jain and her new born child for SC No.17/08: State vs. Veena Jain & Ors.
:23:40 days in her matrimonial home and therefore, for this reason, the testimony of the parents of deceased is not worthy of reliance.
44. A careful reading of the statements of PW1 & PW10 with statement of PW8 would reveal that but for the difference in number of days as to for which the deceased remained in her matrimonial home after the birth of the child, the testimony of PW8 more or less corroborates the testimony of PW1 & PW10. PW8 deposed that the deceased used to tell her that her husband used to illtreat, harass and beat her and used to ask for money to be brought from her matrimonial home. She also deposed about the demand of Rs.40,000/, as also stated by the parents of deceased PW1 & PW10.
45. I also find force in the argument of Learned APP that the statement of PW8 that she used to give massage to the deceased and her new born child for 40 days cannot be believed as a gospel truth. He pointed out that in the crossexamination, PW8 has stated that she visited the house of the accused persons for the last time, 23 days prior to the burning incident. Admittedly, the child was born on 01.10.99 and deceased Shalu Jain died on 14.06.00. Thus, the statement of PW8 that she gave massage to the deceased and her child for 40 days does not seem probable and therefore, the argument of the Defence that the deceased remained in her matrimonial home for 40 days also does not SC No.17/08: State vs. Veena Jain & Ors.
:24:stand proved on record. In these circumstances, the version of parents of the deceased and her brother that the deceased was infact turned out of the matrimonial home after about a week of the birth of the child on the pretext of sending her to her parental home and the payment of Rs. 40,000/ seems to be more believable.
46. In order to prove the allegations that the deceased was subjected to cruelty or harassment in connection with dowry demand soon before her death, Learned APP also relied upon the testimony of PW1, PW5, PW9 & PW10 who deposed that demand for dowry was being made by the accused persons in a meeting which took place on 26.05.00 in a Mandir at Shalimar Bagh which was attended by all the accused persons and accused Subhash Jain made a demand of Rs.One Lac. The aforesaid witnesses have consistently deposed that even after 78 days of the meeting, the deceased again telephoned at her parental home and enquired if the arrangement of the agreed amount has been made or not.
47. The next important ingredient to be proved in a case U/s 304 B IPC is that soon before her death, the deceased was subjected to cruelty and harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be SC No.17/08: State vs. Veena Jain & Ors.
:25:called "dowry death", and such husband or relative shall be deemed to have caused her death.
48. The term 'soon before her death' has been discussed in various judgments and in the judgment reported as Prem Kumar vs. State of Rajasthan 2009(1) JCC 482, it has been held by Hon'ble Supreme Court that the expression "soon before her death" used in S.304B & S.113 B Indian Evidence Act is present with the idea of proximity test. Existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death must be there. If the alleged incident of 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.
49. Reliance may also be placed on a judgment of the Hon'ble Supreme Court reported as Ashok Kumar vs. State of Haryana AIR 2010 Supreme Court 2839 where the Hon'ble Apex Court relied on the statement of the sister of the deceased clearly showing that 2022 days prior to the incident, the deceased had come to her father's house and informed about the dowry demand, cruelty, harassment and torture. It was held by Hon'ble Supreme Court that the expression "soon before her death" has to be accorded in its proper meaning in the facts & SC No.17/08: State vs. Veena Jain & Ors.
:26:circumstances of a given case. Relying on the aforesaid evidence which shows that merely 2022 days prior to the death, the deceased came to her father's house and informed about the dowry demand, harassment and cruelty to which she was subjected to, the Hon'ble Supreme Court held that the ingredients of S.304B IPC have been satisfied in this case.
50. Similarly, in the judgment reported as Amar Singh vs. State of Rajasthan AIR 2010 Supreme Court 3391, the Hon'ble Supreme Court observed that a mere demand of dowry is not an offence punishable U/s 304B IPC & S.498A IPC. The Hon'ble Apex Court observed that : The Prosecution, therefore, has been able to show that soon before her death, the deceased has been subjected by the appellant to taunt in connection with demand for dowry. This Court has held in Pawan Kumar & Ors. vs. State of Haryana AIR 1998 SC 958 that a girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day, the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would constitute cruelty both within the meaning of S. 498A IPC and S.304B IPC.
SC No.17/08: State vs. Veena Jain & Ors.
:27:
51. Learned APP submitted that in the present case, the Prosecution witnesses have been able to prove that the deceased was subjected to cruelty and harassment in connection with and for demand of dowry, made by the accused persons since her marriage. The presence of the accused persons at the time of alleged incident on 13.06.00 is also stated to be proved by the Prosecution. Learned APP relied upon the statement of several independent witnesses namely PW2 Ram Avtar and PW26 Shashi Bhal Shukla who were brought into the witness box and who were present at the time of alleged incident of burning on 13.06.00.
52. As per the Prosecution, the said independent witnesses were present in the vicinity of the house of the accused persons at the time when deceased Shalu Jain is said to have being burnt. He relied upon the statement of PW2 Ram Avtar who deposed that he used to ply his Rehri, selling Chole Bhature near 95/21, Ansari Road at Patri. He deposed that the incident of burning took place on 13.06.00 at about 3.30 PM. At that time, he was present at his stall. He was told by PW26 Shashi Bhal Shukla that a fire had taken place in the house of the accused persons and he went to their house. The witness categorically deposed that accused Yash Jain was present there and upon his enquiry, he was told by accused Yash Jain that they did not need him and was asked to go away. PW2 also deposed that the door of the house was closed and he talked to accused Yash Jain through the window.
SC No.17/08: State vs. Veena Jain & Ors.
:28:
53. PW26 Shashi Bhal Shukla deposed that in June, 2000, he was residing at Veer Sewa Mandir, located at 21, Ansari Road, Darya Ganj, Delhi. On 13.06.00, at about 2.30 or 3.00 PM, he was present in the office of aforesaid Trust and he went out to wash his face and hands. Per chance, glanced towards the house of accused Subhash Jain which was located in front of the office of the said Trust. He found the door of the said house was lying open, flames of fire were raising from inside the said house. He raised an alarm and on looking towards the house of accused Subhash Jain, he noted that accused Prashant Jain came out of the house who snubbed out by saying that it is their family matter and they would take care of it and he should mind his own business. He corroborated the statement of PW2 Ram Avtar, CholeBhature Wala and deposed that PW2 went to the house of accused Subhash Jain. He identified accused Subhash Jain, accused Prashant Jain, his brother and his mother and stated that after ten minutes, he again came out and saw that all the aforesaid accused persons came down and sat in a vehicle.
54. Although it is not disputed that deceased Shalu Jain sustained severe burn injuries on 13.06.00 and later on succumbed to those injuries on 14.06.00 yet the Defence has placed strong reliance on the MLC of the deceased which is Ex.PW15/A. It was submitted that as per the said MLC, the deceased is reported to have given a history of having sustained the burn injuries while she was cooking food and her saree SC No.17/08: State vs. Veena Jain & Ors.
:29:caught fire as told by the deceased herself. Reliance in this regard has been placed upon the testimony of PW25 Dr. Nitin Kumar who has stated that when the deceased was brought to the hospital, she was conscious and oriented. Her vital were stable and she was afirble. It was argued by Learned Defence Counsel that in view of the testimony of PW25, it is apparent that the deceased herself had stated that her saree had caught fire while she was cooking and in the light of the aforesaid statement made by the deceased herself, the accused persons cannot convicted for the offence punishable U/s 304B IPC.
55. On the other hand, Learned APP placed reliance on the statements of PW2 Ram Avtar and PW26 Shashi Bhal Shukla. He submitted that as per the statement of PW26, on 13.06.00, he had found the door of the house of the accused persons lying open, flames were rising from inside the house and he heard the cries of a female, coming from the house. He also deposed about the presence of accused Subhash Jain, accused Yash Jain and accused Prashant Jain at that time and in his crossexamination by Learned APP, he admitted that when his attention was towards the house of the accused persons, accused Veena Jain had closed the door of the house.
56. Learned APP submitted that as per the testimony of PW26 when he went to enquire about the fire from the accused persons, he was SC No.17/08: State vs. Veena Jain & Ors.
:30:rebuked by accused Prashant Jain who closed the door after rebuking him. Learned APP argued that the aforesaid conduct of the accused persons clearly points a finger towards the guilt of the accused persons. He further relied on the testimony of PW32 Dr. Rohit who proved the FSL Report as Ex.PW32/A and his opinion as Ex.PW32/B. He deposed that on the basis of postmortem report Ex.PW27/A and FSL report, he subsequently opined that the cause of death was "combined effect of shock due to burn injuries and organophosphoros poisoning".
57. Learned APP further drew my attention to the fact that the testimony of PW32 remained unimpeached despite a lengthy cross examination and this establishes that the deceased was first made to consume poison and subsequently was set afire by the accused persons.
58. In support of this submissions, Learned APP further placed reliance on the testimony of PW33 Dr. Madhulika Sharma and her report Ex.PW33/A. It was submitted that as per report Ex.PW33/A, "Exhibits 1 & 2 were found containing residue of kerosene and exhibit2 is the sample of scalp hair of the deceased". Learned APP submitted that the presence of residue of kerosene in the scalp hair of the deceased also belies the contention of the Defence that the clothes of the deceased caught fire while she was preparing food. He submitted that presence of SC No.17/08: State vs. Veena Jain & Ors.
:31:residue of kerosene in the scalp hair of deceased cannot be explained if it is stated that her clothes caught fire while cooking. In other words, the residue of kerosene in the scalp hair of the deceased could only be found if the kerosene had been poured over her and kerosene oil could not have reached her scalp hair if her clothes caught fire while preparing food as stated by the Defence.
59. It is further the argument on behalf of the State that it is not disputed that accused Subhash Jain, father inlaw of the deceased had accompanied the deceased to the hospital in CATS Ambulance on 13.06.00. The statement of PW13 Dharam Singh, Assistant Junior Ambulance Officer also establishes that father inlaw of the victim Shalu Jain also accompanied her to JPN Hospital. Learned APP argued that since it is not disputed by the accused persons that accused Subhash Jain had accompanied victim Shalu Jain to the hospital after the incident of burning.
60. It is submitted that at that time, the victim must have been under tremendous shock, not only from burning but also due to the very presence of accused Subhash Jain. In these circumstances, considering the mental condition of deceased Shalu Jain at that point of time, not much reliance can be placed upon the fact that it is mentioned in the SC No.17/08: State vs. Veena Jain & Ors.
:32:MLC Ex.PW15/A that the deceased gave a history of getting burnt while preparing food.
61. Learned APP further argued that considering the overall facts & circumstances of the case and the scientific evidence on record in the form of reports Ex.PW32/A and Ex.PW33/A, coupled of statement of PW35 Dr. Akash Jhanjee, the statement made by the deceased Shalu Jain of having been burnt while preparing food cannot be relied upon.
62. I have given my thoughtful consideration to the arguments advanced before me and have gone through the record of the case. Although the MLC Ex.PW15/A coupled with the testimony of PW25 brings out that the deceased had herself stated that she had sustained burns as her saree caught fire while cooking food, yet the overall facts & circumstances of the case, compel me to discard this piece of evidence.
63. I find force in the argument of Learned APP that there is sufficient scientific evidence on record in the form of reports Ex.PW32/A & Ex.PW33/A and the testimony of PW35 Dr. Akash Jhanjee which establish the presence of poison in the stomach of the deceased after examination of viscera and the presence of residue of kerosene in scalp hair of the deceased.
SC No.17/08: State vs. Veena Jain & Ors.
:33:
64. I am also not intended to accept the argument of the Defence that the delay of about one month in sending the viscera & samples to FSL and delay of 1 ½ years in receiving the report Ex.PW33/A is sufficient ground to discard the aforesaid evidence. Learned Defence Counsel relied upon a judgment of the Hon'ble Supreme Court reported as Santa Singh vs. State of Punjab AIR 1956 SC P526 in support of the argument that the said inordinate delay raises a suspicion.
65. However, the delay in examination of the sample by PW33 had been satisfactorily explained in this case. A perusal of cross examination of PW33 would reveal that the said witness clearly answered the queries of the Defence regarding the delay. She deposed in her crossexamination that "in the year 2001, there was only one Lab in our office for Chemistry Division located in Malviya Nagar ................................ At the relevant time, I had only one Assistant namely Mrs. Kusum Singh, working with me.
66. Moreover, it is not the stand of the Defence that the viscera sent for examination had become putrefied or that the scientific examination of viscera and samples thereof was not conducted properly.
SC No.17/08: State vs. Veena Jain & Ors.
:34:
67. In view of the aforesaid, I find no force in the argument of Learned Defence Counsel that the aforesaid reports are not worthy of reliance. Rather had the report of FSL come on record in time, probably, the case could have been investigated from the angle of presence of organophosphorus poison which was found to be contained in the stomach of deceased Shalu Jain.
68. It was pointed out by Learned APP that the testimony of PW2 & PW26 establishes the presence of accused Yash Jain, accused Subhash Jain, accused Veena Jain and accused Prashant Jain at the time deceased Shalu Jain was burning. The conduct of the accused persons in turning away and rebuking PW26 and closing the door of the house also speaks volumes about their guilt.
69. Another relevant factor is the admitted fact that when the victim Shalu Jain was being taken to the hospital by CATS Ambulance, she accompanied by accused Subhash Jain, her father inlaw. It cannot be doubted that the victim Shalu Jain must have been in a state of shock after having received severe burn injuries and the presence of one of the offenders at that time would have been sufficient, in my opinion, for her to state that her clothes caught fire while preparing food.
SC No.17/08: State vs. Veena Jain & Ors.
:35:
70. Even otherwise as per the examining doctors, when victim Shalu Jain reached at JPN Hospital at 6 PM on 13.06.00, she was conscious and oriented. Her vital were stable and she was afirble and it was only at 6.50 PM when it was declared for the first time that she was "unfit for statement". It cannot be ruled out that at that point of time, deceased Shalu Jain could not have anticipated that the burn injuries would cause her death. She was probably hoping to recover, and in order to save her married life and for the sake of her minor child, she stated that she had sustained the burn injuries while preparing food.
71. Another relevant factor, in my opinion, is the nonrecovery of any kerosene stove from the house of accused persons during investigation. During the entire proceedings, the accused persons did not raise any objection to the fact that no recovery of kerosene stove was effected from their house or that any such recovery, if made, was deliberately suppressed by the Investigating Agency. Moreover, from the photographs of the kitchen of the accused persons which are Ex.PW21/5 to Ex.PW21/7, a gas cylinder and LPG cooking stove are clearly visible. It is hereby noted that no kerosene stove can be seen in the kitchen of the accused persons in these photographs. The accused have also not brought any evidence on record to show that a kerosene stove was used in their house for cooking food. In these circumstances and in absence of any kerosene stove in the house of the accused SC No.17/08: State vs. Veena Jain & Ors.
:36:persons, there cannot be any other explanation for the presence of kerosene oil in the house of the accused persons.
72. In the light of overall circumstances and on the basis of above discussion, I am of the considered opinion that the statement of the deceased in MLC Ex.PW15/A is not worthy of reliance. Several factors as discussed above were apparently responsible for making of the said statement by the deceased.
73. It was submitted by Learned Defence Counsel that DW1 Dr. Bharat Singh has categorically stated in his deposition that he cannot give an opinion that organophosphorus poisoning was also one of the cause of death of Shalu Jain as the quantity of poison was not given by the chemical examining.
74. It was submitted that in these circumstances, it cannot be expected that the deceased died on account of organophosphorus poisoning and on account of shock by way of 75% burn injuries. Learned APP argued that it has been established from the testimony of PW35 Dr. Akash Jhanjee that the stomach was found burst open at the time of conducting her postmortem. In his crossexamination, the witness clearly stated while answering a question as to the material SC No.17/08: State vs. Veena Jain & Ors.
:37:which led him to suspect poisoning that since the stomach has burst open, it was a case of poisoning.
75. Learned Defence Counsel for accused Veena Jain relied upon report Ex.PW29/A, given by PW29 Dr. Himanshu Chauhan regarding accused Veena Jain that she had burnt her hands while trying to save deceased Shalu Jain and had also sustained burn injuries on her hands. However, on the basis of totality of the evidence on record, I find no force in this submission. There is nothing on record to suggest that accused Veena Jain burnt her hands while trying to save the deceased. Rather in his statement, PW26 deposed that when his attention was towards the house and he had seen one lady burning fire in the lobby, accused Veena Jain had closed the door of the kitchen. The testimony of PW1 that the nurse, attending to the deceased had told her that accused Veena Jain had informed her that the victim Shalu Jain was her daughter and had come to live with her during vacations and that Shalu Jain was preparing tea at stove and that her pallu caught fire, also indicates that accused Veena Jain was trying to conceal the true facts.
76. A perusal of statement of PW26 also reveal that the door of the kitchen was closed by accused Veena Jain when he saw one lady burning with fire in the lobby of the said house. In the light of this piece of evidence, it is difficult to believe the plea raised on her behalf that she SC No.17/08: State vs. Veena Jain & Ors.
:38:was trying to save deceased Shalu Jain and in that process, her hands got burnt. It cannot be believed that accused Veena Jain would close the door of the kitchen instead of calling for help from neighbours or other passersby if her intention was to save deceased Shalu Jain.
77. It was submitted by Learned Defence Counsel, appearing on behalf of accused Prashant Jain that accused Prashant Jain has taken a plea in his statement, recorded U/s 313 Cr.P.C that he was living separately in Faridabad. He has also denied his presence at the meeting held on 26.05.00, stating that he was in Faridabad. It was argued that since he was living with his family separately in Faridabad, he has nothing to do with the alleged offences and he was not present at the time when deceased Shalu Jain was subjected to cruelty and harassment at the hands of her inlaws.
78. However, on going through the record, particularly the statements of PW1, PW5, PW9 & PW10 clearly establish that accused Prashant Jain was present in the meeting which took place on 26.05.00 in Jain Temple, Shalimar Bagh. Further the allegations of cruelty and harassment of the deceased at the hands of the said accused are also established from the testimony of PW1 Smt. Kamlesh Jain, mother of the deceased Shalu Jain. PW5 Sh. Subhash Jain, her maternal uncle, PW9 Sh. Vishal Jain, her brother and PW10 Sh. Vishal Kirti Jain, her SC No.17/08: State vs. Veena Jain & Ors.
:39:father have deposed that accused Prashant Jain also used to make dowry demands. They have specifically deposed that he also used to harass the deceased Shalu Jain on account of dowry demand. A reference may also be made to the statement of PW5 Sh. Subhash Jain, at this juncture who has categorically deposed that the deceased had disclosed to him that her inlaws, her husband, her Jeth and Jethani used to ask her that she should settle the business of her husband through her parents and all of them threatened her that if their demand is not fulfilled, they will not allow her to live in the house.
79. PW5 also deposed that on 13.06.00, at about 1 PM when he rang up at the matrimonial home of deceased Shalu Jain, the phone was attended by accused Prashant Jain who subsequently handed over the receiver of the telephone to accused Subhash Jain. PW5 also deposed that when the deceased talked to him, she was sounding depressed and had also told him about the presence of her 'Jeth, Jethani, Nanad & Nandoi' at the house.
80. The presence of accused Prashant Jain is also established by the testimony of PW26 Shashi Bhal Shukla who went to the house of accused persons on 13.06.10 on seeing the flames of fire, rising from inside the house. This witness categorically deposed accused Prashant Jain came out of the house and then he enquired about the fire. Accused SC No.17/08: State vs. Veena Jain & Ors.
:40:Prashant Jain snubbed by saying that it was their family matter and told him to mind his own business.
81. It may also be mentioned here that although accused Prashant Jain used to ordinarily reside at Faridabad, he has raised a specific plea stating that as he was residing separately at Faridabad, he has no role to play in the alleged acts of cruelty and harassment of the deceased. However, he has not led any evidence on record in rebuttal to the testimonies of the above named Prosecution witnesses. For want of any evidence to this effect in his Defence, and in the light of the testimonies of the above named PWs, I am convinced that accused Prashant Jain is also guilty of having committed offences punishable U/s 498A IPC & S.304B IPC.
82. The testimony of all the above PWs has also categorically established the allegations of offences punishable U/s 304B IPC & 498 A IPC against accused Veena Jain, accused Subhash Jain and accused Yash Jain. The presence of accused Veena Jain at the time of burning of deceased on 13.06.00 is also established by independent witness PW26 who also established the presence of accused Yash Jain and accused Subhash Jain. PW2 Ram Avtar also deposed about the presence of accused Yash Jain on the date of incident i.e 13.06.00.
SC No.17/08: State vs. Veena Jain & Ors.
:41:
83. For the foregoing reasons and the above discussions and the evidence on record, I have no hesitation in concluding that the Prosecution has been able to establish that all the four accused persons subjected the deceased Shalu Jain to cruelty and harassment on account of their dowry demand. It has also been proved on record that deceased died otherwise than under normal circumstances within seven years of her marriage with accused Yash Jain and that soon before her death, she was subjected to cruelty and harassment by her husband accused Yash Jain and by accused Subhash Jain, her fatherinlaw, accused Veena Jain, her mother inlaw and accused Prashant Jain, her brother inlaw (Jeth)
84. In the light of the above discussion and evidence on record, the Prosecution has been able to prove that all the above named accused persons are guilty of having committed offences punishable U/s 304B IPC and U/s 498A IPC. All the four accused persons are hereby convicted for offences punishable U/s 498A/304B/34 IPC. Let them be heard on the point of sentence.
Announced in the Open Court On 08.12.10.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.17/08: State vs. Veena Jain & Ors.
:42: FIR No. 344/00PS : Darya Ganj SC No. : 17/08 08.12.10 Present : Sh. Rakesh Mehta, Learned APP for State.
All the four accused on bail with Proxy Counsel Sh. Hamid Khan.
Vide judgment announced of even date on separate sheets, all the four accused persons are held guilty and convicted for offences punishable U/s 304B IPC and U/s 498A IPC.
Put up for arguments on the point of Sentence on 10.12.10. At request of Ld. Proxy Counsel, date is changed to 13.12.10.
All the four accused persons be taken into custody and be sent to JC and be produced on date fixed.
(KAVERI BAWEJA) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.17/08: State vs. Veena Jain & Ors.
:43: FIR No. 344/00PS : Darya Ganj SC No. : 17/08 13.12.10 Present : Sh. Rakesh Mehta, Learned APP for State.
All the four convicts produced from JC.
Sh. I.A. Alvi - Ld. Counsel for all the four convicts. Arguments heard on the point of Sentence. Put up for Order on Sentence on 14.12.10.
(KAVERI BAWEJA) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.17/08: State vs. Veena Jain & Ors.
:44:In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. :17/08 State versus 1. Veena Jain W/o Subhash Jain R/o H.No.4676/21, Ansari Road, Darya Ganj, Delhi.
2. Subhash Jain S/o Sh. L.C. Jain R/o H.No.4676/21, Ansari Road, Darya Ganj, Delhi.
3. Yash Jain S/o Subhash Jain R/o H.No.4676/21, Ansari Road, Darya Ganj, Delhi.
4. Prashant Jain S/o Subhash Jain R/o H.No.503, Sector16A, Faridabad, Haryana.
Case arising out of:
FIR No. : 344/2000 Police Station : Darya Ganj Under Section : 498A/304B/201/34 IPC Judgment pronounced on : 08.12.10. SC No.17/08: State vs. Veena Jain & Ors. :45: ORDER ON SENTENCE
1. All four accused persons have been convicted for the offences punishable under Section 304B/498A IPC vide separate judgment dated 08/12/10.
2. Detailed arguments were advanced before me on the point of Sentence by Learned Defence Counsel as well as Learned APP.
3. It was submitted by Learned APP that considering the gravity of offences committed by the convicts, they are liable to be sentenced to imprisonment for life, as prescribed under Section 304B IPC in addition to imprisonment for three years for offence punishable under Section 498A IPC in addition to fine.
4. On the other hand, Learned Counsel appearing for convicts submitted that convict Subhash Jain is 62 years of age and is having 50% handicap in his elbow and knee joint. He submitted that the convict is facing trial for last ten years and prayed for a lenient view having regard to the old age and the long pendency of the trial. Similarly, for convict Veena Jain, it was submitted that she is now 60 years of age and is suffering from several age related ailments besides facing trial for last ten years.
SC No.17/08: State vs. Veena Jain & Ors.
:46:
5. As regards convict Prashant Jain, Learned Defence Counsel submitted that he has two minor children to support and is sole bread earner of his family. It was submitted that convict Yash Jain is taking care of minor daughter after the death of deceased and is facing trial for last ten years.
6. I have given my thoughtful consideration to the submissions made and the entire mitigating and aggravating circumstances. It is not disputed that convict Yash Jain was married to the deceased on 23/01/98 and within seven years of marriage she died otherwise than under normal circumstances. There is overwhelming evidence on record which has established presence of organophosphorus poison in the stomach of the deceased. It has also been proved on record that deceased had sustained severe burn injuries to the extent of 75% and that she expired on 14/06/00. Her death has been opined due to combined effect of organophosphorus poisoning and severe burn injuries.
7. That being so, I am of the opinion that this is not a case where convicts deserve any kind of leniency. Convict Yash Jain, being the husband of deceased had taken sacred marriage vows and was infact her protector, instead of which he became a perpetrator of the offences in question. In these facts & circumstances, convict Yash SC No.17/08: State vs. Veena Jain & Ors.
:47:Jain is sentenced to Imprisonment for life for offence punishable under Section 304B IPC. He is also directed to undergo Rigorous Imprisonment for three years for offence punishable under Section 498A IPC, in addition to payment of fine of Rs. 10,000/ in default whereof, he shall undergo SI for six months. Both the substantive sentences shall run concurrently.
8. There is also ample evidence on record which has established that convict Veena Jain and convict Prashant Jain turned away public persons who had come to their house on 13/06/00 to enquire about the fire which was seen coming from their house. This conduct of convict Veena Jain and convict Prashant Jain clearly establishes their malafide intention and has disproved their defence that convict Veena Jain was infact trying to save the deceased from burning.
9. Considering the nature of allegations and the gravity of offences, both convict Veena Jain and convict Prashant Jain are hereby directed to undergo Rigorous Imprisonment for ten years for offence punishable under Section 304B IPC. They both are also directed to undergo Rigorous Imprisonment for three years for offence punishable under Section 498A IPC, in addition to fine of Rs. 7500/ each, in default whereof they shall undergo SI for four months. The substantive sentences regarding both convicts shall run concurrently.
SC No.17/08: State vs. Veena Jain & Ors.
:48:
10. Insofar as, the convict Subhash Jain is concerned, there is sufficient evidence on record which indicates his presence at the time of burning of the deceased on 13/06/00. However, considering his plea that he is 62 years of age and is suffering from 50% handicap in his elbow and knee joint and despite the fact that no medical certificate has been produced to this effect on record, convict Subhash Jain is hereby sentenced to Rigorous Imprisonment for seven years for offence punishable under Section 304B IPC. For offence punishable under Section 498A IPC, he is directed to undergo Rigorous Imprisonment for three years, in addition to payment of fine of Rs. 7500/ in default whereof, he shall undergo SI for four months. Both the substantive sentences shall run concurrently.
11. All the convicts shall be entitled to benefit of Section 428 CrPC. Copy of judgment and order on sentence be given to all the convicts free of cost.
Announced in the Open Court On 14.12.10.
(Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
SC No.17/08: State vs. Veena Jain & Ors.
:49: FIR No. 344/00PS : Darya Ganj SC No. : 17/08 14.12.10.
Present : Sh. Rakesh Mehta- Learned APP for State.
All the four convicts produced from JC.
Sh. Anand Maheshwari and Sh. I.A. Alvi - Ld. Counsels on behalf of four convicts.
Vide Order on Sentence announced of even date on separate sheets, Convict Veena Jain is sentenced for offence punishable U/s 304B IPC to RI for ten years and for offence punishable U/s 498A IPC to RI for three years, in addition to payment of fine of Rs.7500/, in default whereof, SI for four months.
Convict Subhash Jain is sentenced for offence punishable U/s 304B IPC to RI for seven years and for offence punishable U/s 498A IPC to RI for three years, in addition to payment of fine of Rs.7500/, in default whereof, SI for four months.
Convict Prashant Jain is sentenced for offence punishable U/s 304B IPC to RI for ten years and for offence punishable U/s 498A IPC to RI for three years, in addition to payment of fine of Rs.7500/, in default whereof, SI for four months.
SC No.17/08: State vs. Veena Jain & Ors.
:50:Convict Yash Jain is sentenced for offence punishable U/s 304 B IPC to Imprisonment for life and for offence punishable U/s 498A IPC to RI for three years, in addition to payment of fine of Rs.10,000/, in default whereof, SI for six months.
The substantive sentences regarding all the convicts above said shall run concurrently and benefit of Section 428 Cr. PC be given to all the convicts.
File be consigned to Record Room.
(Kaveri Baweja) ASJ FTC (Central) : Delhi.
14.12.10.
SC No.17/08: State vs. Veena Jain & Ors.