Delhi District Court
State vs . 1. Ram Prasad S/O Mam Chand, on 12 May, 2011
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : North East /
KARKARDOOMA COURTS: DELHI.
Case ID Number. 02402R0449602007
Sessions Case No. 249/2007
Assigned to Sessions. 09.08.2007
Arguments heard on 23.04.2011
Date of order. 12.05.2011
FIR No. 232/2007
State Vs. 1. Ram Prasad s/o Mam Chand,
2. Satpal s/o Ram Prasad,
3. Krishan Pal s/o Ram Prasad,
4. Smt. Sakuntla w/o Ram Prasad,
5. Suman w/o Krishan Pal,
6. Sarita d/o Ram Prasad,
7. Lalita d/o Ram Prasad,
All r/o Gali No.2, Village
Sadatpur, Karawal Nagar, Delhi.
Police Station Gokalpuri
Under Section 498A/304B/34 IPC
JUDGEMENT
1. Station House Officer of Police Station Gokalpuri had filed a challan vide FIR no. 232/2007 dated 04.04.2007 u/s 498A/304B IPC & 3 / 4 SC No.249/2007 State Vs. Ram Prasad and others 1/61 Dowry Prohibition Act for the prosecution of accused persons namely Ram Prasad, Smt. Shakuntla, Krishan Pal, Suman, Sat Pal, Sarita and Lalita in the court of Ld. MM as deceased Babita was married with accused Sat Pal on 04.04.2007 and her death had taken place within seven years of her marriage. Accordingly, Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court.
2. In brief, facts of the case are that on 31.03.2007 a DD No.19B was recorded at Police Station Gokalpuri regarding admission of one Babita in GTB Hospital by her husband as she had consumed something and said DD was marked to ASI Duli Chand for investigation. On receipt of this DD, ASI Duli Chand along with one constable reached at GTB Hospital where doctor declared her unfit for statement on MLC Ex.PW13/A. On 04.04.2007 a DD No.30B regarding death of Babita in the GTB Hospital was recorded. Since the period of marriage was less than seven years, SDM of the area was informed by IO. Sh. A.K. Pasi, Executive Magistrate, who reached at GTB Hospital and recorded statement of Tara Chand, father of deceased Ex.PW2/A and directed SHO PS Gokalpuri to take action as per law. On the basis of said statement of FIR u/s 498A/304B IPC & SC No.249/2007 State Vs. Ram Prasad and others 2/61 3 / 4 of Dowry Prohibition Act Ex.PW8/B was recorded at police station Gokalpuri. SDM conducted inquest proceedings and prepared form 25.35 vide Ex.PW7/C, made a request for postmortem vide Ex.PW7/A and recorded statement of father of deceased and uncle regarding identification of dead body of deceased vide Ex.PW7/D. After postmortem the dead body was handed over to the relatives of deceased. IO had prepared the site plan of the place of occurrence mark Z. IO had also recovered dowry articles from the accused persons vide seizure memo Ex.PW2/B and also seized the marriage photos of the deceased with the accused Satpal Ex.P2. IO had also seized dowry articles Ex.P7. Accordingly, accused persons were arrested and booked for the offences u/s 498A/ 304B/ 34 IPC.
3. On the basis of material available on record ld. predecessor of this court framed a charges vide order dated 03.11.2007 against accused persons namely Ram Prasad, Smt. Shakuntla, Krishan Pal, Suman, Sat Pal, Sarita and Lalita for the offences punishable u/s 498A/304B/34 IPC to which accused persons did not plead guilty and claimed trial.
4. In order to prove its case prosecution has examined 14 witnesses namely PW1 Bhim Singh, PW2 Tara Chand - complainant/father of SC No.249/2007 State Vs. Ram Prasad and others 3/61 deceased, PW3 Ajab Singh, PW4 Inspector B.S. Kushwah, PW5 Krishori Lal, PW6 Kaushal, PW7 Sh. A.K. Pasi, Executive Magistrate, PW8 ASI Duli Chand, PW9 W/Ct. Anjula, PW10 Vijay Singh, PW11 Inspector Bakshi Ram, PW12 ASI Om Prakash, PW13 Dr. Davender and PW14 Dr. R.P. Singh.
5. PW1 Bhim Singh. This witness is uncle of deceased Babita. This witness has identified the dead body of deceased Babita in the mortuary of GTB Hospital and also obtained the dead body of deceased Babita vide receipt of the handing over dead body Ex.PW1/A.
6. PW2 Tara Chand, father of deceased is a material witness being complainant. This witness has deposed that her daughter Babita was married with Satpal as per Hindu customs on 22.04.04 from his village and after marriage her daughter was taken at her inlaws house in the joint family. This witness has further deposed that he had given sufficient dowry as per his financial status in the marriage of her daughter and her daughter lived happily for one year after marriage. This witness has further deposed that thereafter, accused persons i.e. her inlaws started torturing my daughter on account of demand of SC No.249/2007 State Vs. Ram Prasad and others 4/61 motor cycle and he had paid Rs.30,000/ to his son inlaw Satpal for purchasing the motor cycle but he cannot tell the date of the same. This witness has further deposed that accused again started torturing her daughter that a motor cycle cannot be purchased for a sum of Rs.30,000/ and accused Satpal started beating her daughter. This witness has further deposed that her daughter used to visit at his house and they had asked her to live in her inlaws house after consoling her. This witness has further deposed that he used to say her daughter that he would pay to her whenever money is available with him. This witness has further deposed that the mother inlaw of her deceased daughter is Shakuntala, Ram Parsad her father in law, Jeth Kishan Pal and Jethani Suman, Nanad Suman and Sarita used to torture her daughter on account of demand of dowry and they also used to beat her and her daughter had died at her inlaws house. This witness has further deposed that he do not know whether she had consumed poison at her own or she was given poison by the accused persons.
7. This witness was cross examined by ld. APP on certain facts. In his cross examination this witness has deposed that he had stated to SDM in his statement that her daughter had died due to beating, torture by the accused persons. This witness has further deposed that he had SC No.249/2007 State Vs. Ram Prasad and others 5/61 stated to SDM in his statement that Babli told him that she had talked with her daughter Babita in the hospital and Babita told Babli that she had consumed poison due to torture of her inlaws.
8. This witness has been cross examined by Ld. Defence counsel at length. In his cross examination, this witness has deposed that nobody had tutored him before his deposition in the court. This witness has further deposed that no demand was made by the accused Satpal at the time of marriage and after the marriage of one year of her daughter, accused persons used to respect him whenever he visit them. This witness has further deposed that he had not seen the accused persons beating her daughter but her daughter used to tell him that she was tortured and beaten by her inlaws whenever she visited his house.
9. PW3 Ajab Singh. This witness has deposed that deceased Babita was married with accused Satpal r/o Shahadatpur in the month of April'2004 and he had attended the marriage and deceased was given sufficient dowry as per financial status of her father. Motorcycle was not given at the time of marriage as the same was demanded by her in laws. After her marriage, deceased remain peaceful at her SC No.249/2007 State Vs. Ram Prasad and others 6/61 matrimonial home. This witness has further deposed that deceased told him that all the in laws used to torture her for not providing motorcycle by her parents and this fact was also confirmed by Tara Chand father of deceased. This witness has further deposed that he had once visited the in laws of Babita on the occasion of birth of a female child to her and he had a talk with Babita and she told him that her in laws are demanding motorcycle from her and also used to harass for not providing sufficient dowry. This witness has further deposed that in his presence accused persons never demanded any dowry articles from deceased or her father and he used to get information from the father of deceased regarding torture of Babita. This witness has further deposed that all the accused persons were interrogated in his presence and their disclosure statements were recorded. The disclosure statement of accused Suman (Bhabhi of deceased) is Ex.PW3/A which bears my signature at point A. The disclosure statement of accused Lalita is Ex.PW3/B, disclosure statement of Sarita is Ex.PW3/C, and disclosure statement of Shakuntla is Ex.PW3/D, disclosure statement of Krishan Pal Ex.PW3/E and all the disclosure statements bears his signature at point A. This witness has also witnessed the disclosure statement of accused Ram Prasad Ex.PW3/F and of accused Satpal Ex.PW3/G. SC No.249/2007 State Vs. Ram Prasad and others 7/61
10.This witness has further deposed that certain dowry articles were recovered from the house of accused Satpal and he was present at that time and Seizure memo of Istri Dhan articles is Ex. PW3/B. This witness has further deposed that deceased died in the month of April'2007 and he had accompanied the in laws house of deceased and noticed that she has been poisoned as her body was in blue condition. This witness was cross examined by Ld. Defence counsel, in his cross examination this witness has deposed that he does not know directly Tara Chand, I had relations with his brotherinlaw (saadu) namely Kishori Lal as a landlord and tenant as he was tenant in his house. This witness has further deposed that he had received information regarding death of a lady through Tara Chand and Kishori Lal in March 2007 and Tara Chand had told him that her daughter Babita is not well and she is admitted in GTB Hospital. This witness has further deposed that he had not visiting terms with Tara Chand. This witness admits that he had good visiting terms with Kishori Lal and Kishori Lal had not disclosed him anything about this incident. This witness has voluntarily deposed that Tara Chand had disclosed him after the death of Babita that accused Satpal used to harass Babita on the demand of motorcycle and deceased Babita had also disclosed him about the harassment by accused Satpal on the demand of motorcycle SC No.249/2007 State Vs. Ram Prasad and others 8/61 when he had visited her matrimonial home and he had met with deceased Babita three or four times.
11.PW4 Inspector B.S. Kushwah (Retd. Inspector) is a material witness being IO of this case. This witness has deposed that on 04.07.2007 he had received one statement forwarded by Executive Magistrate Sh. A.K. Pasi, Seelampur, Delhi of one Tara Chand s/o Yad Ram for necessary action and SHO Shri Bakshi Ram made endorsement upon the same for registration of FIR u/s 498A/304B IPC and 3 / 4 Dowry Prohibition Act and after registration of FIR the investigation was handed over to him. This witness had called complainant Tara Chand and his relatives and recorded their statements u/s 161 Cr.P.C.
12.This witness along with ASI Duli Chand and other staff went to GTB Hospital and in his presence the inquest papers were prepared by Sh. A.K. Pasi, Executive Magistrate and after identification of dead body same was got postmortem and after postmortem it was handed over to relatives of deceased. This witness had arrested accused persons namely Suman w/o Kishan Pal, Lalita d/o Ram Prasad, Sarita d/o Ram Prasad, Shakuntala w/o Ram Prasad and Kishan Pal s/o Ram Prasad, Ram Prasad s/o Mam Chand and Satpal s/o Ram Prasad and SC No.249/2007 State Vs. Ram Prasad and others 9/61 arrest memo of all the accused persons prepared by him vide Ex. as PW4/A, PW4/B, PW4/C, PW4/D, PW4/E, PW4/F and PW4/G and he had also prepared their personal search memos Ext. as PW4/G1, PW4/G2, PW4/G3, PW4/G4, PW4/G5, PW4/G6 and PW4/G7 and accused Satpal was taken on police remand for two days and at his instance certain dowry articles such as one dressing table, one sofa set, five chairs, one table, one T.V. make Samsung, one wall clock, one old Fridge, one wrist watch make Vijay HMT, one old press, one diwan bed box and mattress, one iron almirah and 22 pairs of clothes (ladies) and one old cooler were seized by him vide Ext.PW2/B. This witness had also recorded disclosure statement of all the accused persons vide Ex. PW3/A, PW3/B, PW3/C, PW3/D, and PW3/E and the disclosure statement of accused Ram Prasad is Ex. PW3/F and PW3/F1. This witness had also prepared the site plan of the place of occurrence photocopy of same is mark 'Z'. This witness had also recovered dowry articles from the accused persons vide seizure memo already Ex.PW2/B and same were handed over to father of deceased namely Tara Chand. This witness had also seized the marriage photos of the deceased with the accused Satpal and same are Ex.P2 and he had also seized the list of dowry articles Ex.P7 given to the deceased at the time of her marriage. This witness had collected postmortem SC No.249/2007 State Vs. Ram Prasad and others 10/61 report of the deceased and the viscera of deceased was sent to CFSL. This witness was cross examined by ld. Defence counsel Sh. Bimlesh Kumar. In his cross examination by ld. Defence counsel, this witness admits that neighbours of deceased Babita did not tell about anything about the torture and complainant did not hand over to him any document that he had given Rs.30,000/ to the accused persons. This witness has further deposed that no witness from society came forward to make any statement that the father of deceased had given Rs.30,000/ to the accused persons. This witness further admits that deceased Babita did not make any statement before anybody as per his knowledge. In his cross examination by Sh. Saurav, ld. Counsel for accused Satpal, this witness has deposed that no incident regarding torture or beating or cruelty came forward during his investigation upon deceased by her husband Satpal for the period about six months and complainant did not hand over any cash memo regarding purchase of TV, Fridge or other articles seized by him. This witness has further deposed that none of the relatives from both sides disclosed to him regarding the torture upon deceased.
13.PW5 Kishori Lal. This witness has been got declared hostile by Ld. APP for the State. This witness has deposed that deceased Babita was SC No.249/2007 State Vs. Ram Prasad and others 11/61 his Sandu's daughter and she was married on 22.04.2004 with Satpal. This witness has further deposed that he had visited two/three times at her matrimonial home and she was living happily at her matrimonial house and he does not know how she had died. This witness has further deposed that during the period of her death he was getting treatment of her wife at GTB Hospital. This witness has further deposed that he did not make any statement to the police. Even in cross examination by ld. APP for the State, this witness has denied that Tara Chand, father of deceased had told him that in laws of her daughter Babita including her father in law, and Jaith Krishan pal are demanding one motorcycle for their son Satpal and Tara Chand had told them that he will provide the said motorcycle to them after doing labour and after selling some articles as he was under the burden of debt due to ill health of her wife. This witness has further denied that deceased Babita was being tortured by her in laws on account of demand of dowry as well as demand of motorcycle. This witness has further denied that Babita had died due to torture made by her in laws. This witness has further denied that accused persons Ram Prasad, Krishan Pal, Satpal, Smt. Shakuntla, Suman, Sarita and Lalita had harassed and tortured deceased Babita that is why she had died. SC No.249/2007
State Vs. Ram Prasad and others 12/61
14.PW6 Kaushal is elder sister of deceased Babita. This witness has deposed that after one year of marriage of her sister Babita, accused persons Satpal, father in law and mother in law of deceased, Bhabhi, Jaith started torturing her and accused persons had made a demand of one motorcycle from her father and her father had paid Rs.30,000/ in cash to accused Satpal in lieu of motorcycle and after giving the aforesaid amount, they again started torturing her sister. This witness has further deposed that prior to her death about one month ago, accused Satpal, her sister, and mother of Satpal and Jija of Satpal had visited her in laws house in routine to meet them and when she had a talk with her sister, she told her that she was given beating by the accused persons and she was forced to accompany them at her matrimonial house. This witness has further deposed that she came to know regarding death of her sister Babita when she had visited GTB Hospital to her ailing Mausi and she had gone to the house of her Mausi when her sister had died. In her cross examination by Ld. Defence counsel, this witness has deposed that her father is a farmer and there is no any other business. This witness has further deposed that her parents as well as her husband and herself had not made any police complaint regarding demand of motorcycle and torture of deceased against the accused persons.
SC No.249/2007
State Vs. Ram Prasad and others 13/61
15.PW7 Sh. A.K. Pasi. This witness on 31.03.2006 was posted as
Executive Magistrate Seelampur. This witness on receipt of call from IO I immediately went to GTB Hospital and Babita was found unfit for statement and memo in this regard was prepared by him vide Ex.PW7/X. This witness had directed the concerned officials present there to call him again when the victim may regain consciousness but she could not regained consciousness. This witness has deposed that on 04.04.2007, she died in the hospital and this message was conveyed to him by Inspector B.S. Kushwah and he went to GTB Hospital around 7:30 p.m. and met father of deceased Tara Chand and recorded his statement Ext. as PW2/A and on the basis of his statement, he directed SHO Police Station Gokalpuri to take action as per law. This witness has further deposed that on o5.04.2007 the dead body of Babita was got postmortem from GTB Hospital and he had made a request in this regard vide Ex.PW7/A and he had also prepared brief facts of the case vide Ex.PW7/B and he had conducted inquest proceedings and prepared form 25.35 vide Ex.PW7/C. This witness has further deposed that the dead body of the deceased was identified by her father as well as her uncle and he had recorded statement in this regard vide Ex.PW7/D. This witness has further deposed that in his statement the father of deceased Babita made allegations against SC No.249/2007 State Vs. Ram Prasad and others 14/61 Satpal, husband, Ram Prasad father in law, Shakuntla, mother in law, Jeth, Kishan Pal, Jethani Suman, Nanad Sarita and Lalita that aforesaid accused persons used to beat the deceased on account of non payment of demand of dowry. In his cross examination by Sh. Bimlesh Kumar, Adv. for all the accused persons, this witness has denied that constable informed him that the deceased is fit for statement as per doctor.
16.PW8 ASI Duli Chand. This witness has deposed that on 31.03.2007 a DD No.19B was handed over to him for investigation. On receipt of said DD, he along with one constable went to GTB Hospital where he found Babita wife of Satpal admitted in the hospital and she was declared fit for statement and having suspect of poisoning case. This witness had asked her what had happened to her, she told him that she had consumed insecticides which used to kill rats because of harassment from her in laws on account of dowry. This witness has further deposed that he could not record her statement as doctor Manoj Kumar who was treating the patient directed him not to record her statement as her B.P. was very low, thereafter, Dr. Manoj immediately declared the patient unfit for statement in the MLC. On 01.04.2007 this witness again went to hospital to record her statement but she did SC No.249/2007 State Vs. Ram Prasad and others 15/61 not meet him in the ICU Unit. On 02.04.2007 this witness took the parents of Babita including her father and uncle to the office of Executive Magistrate, Sh. A.K. Pasi at Seelampur. After hearing both the parties, he directed him to keep the DD pending for investigation and thereafter, he went to Police Station and wrote down all the facts mentioned above in the daily diary register. This witness has further deposed that on 04.04.2007, he received DD No.30B regarding death of Babita and thereafter, he went to hospital and called Executive Magistrate, Sh. A.K. Pasi who recorded statement of Tara Chand, father of deceased and directed the SHO to take action as per law. This witness has further deposed that on the directions of SHO, case u/s 498A/304B IPC was got registered at Police Station Gokalpuri and the investigation of the present case was transferred to Inspector B.S. Kushawh at the instance of SHO Police Station Gokalpuri. This witness was cross examined by Sh. Bimlesh Kumar, Adv. for all the accused persons and in his cross examination this witness has deposed that on 31.3.2007 he directly met with the victim in the hospital but I do not recollect the exact time when I met the victim in the hospital. He admits that as per MLC and as per doctor the victim was fit for statement. This witness also admits that no family member was present in the hospital from the deceased side and he could not inform SC No.249/2007 State Vs. Ram Prasad and others 16/61 deceased parents as he only directed to accused Satpal to inform the deceased parents for this incident.
17.PW9 W/Ct. Anjula. This witness had joined investigation of the present case with Inspector B.S. Kushwah and accused persons Suman, Lalita, Sarita, Shakuntala, Krishan Pal, Ram Prashad and Satpal were arrested in the present case and their Personal Search Memos were also prepared by the IO in her presence. This witness has proved the arrest memo of accused Suman, Lalita, Sarita and Shakuntala vide Ex.PW4/A, PW4/B, PW4/C and PW4/D and their disclosure statements vide Ex.PW3/A, PW3/B, PW3/C and PW3/D.
18.PW10 Vijay Singh. Before recording of statement of this witness this court made a Memorandum of observation as under :
The father of this witness does not tally with the name which he had told to this court, however, he is being examined on the identification of IO Inspector B.S. Kushwah. Let, the witness be examined.
19.This witness has deposed that deceased daughter of Tara Chand was married with accused Satpal today present in court but he had not attended the said marriage and he had accompanied the father of SC No.249/2007 State Vs. Ram Prasad and others 17/61 deceased to her in laws house to take the deceased to her parents house just after marriage and deceased never met me thereafter. This is a hearsay witness. This witness was informed by father of deceased that in laws of deceased were torturing her. In his cross examination by ld. Defence counsel, this witness has deposed that he does not know about the present case.
20.PW11 Inspector Bakshi Ram, SHO of PS Gokalpuri. This witness has deposed that ASI Duli Chand had produced some documents containing the statement recorded by A.K. Pasi, Executive Magistrate, Seelampur, Delhi with the direction to register the case as per law and after going through the documents, he had made endorsement and statement of Tara Chand for registration of FIR u/s 498A/304B IPC along with section 3 and 4 Dowry Prohibition Act. This witness has proved his endorsement Ex.PW11/A. In his cross examination by Ld. Defence counsel, this witness has deposed that no verification is made when direction is issued by SDM for registration of FIR.
21.PW12 ASI Om Prakash is a formal witness being Duty officer. This witness on the basis of said rukka had recorded FIR No.232/07 u/s 498A/304B IPC and 3 / 4 Dowry Prohibition Act Ex.PW12/A and SC No.249/2007 State Vs. Ram Prasad and others 18/61 after registration of FIR, the investigation was handed over to Inspector B.S. Kushwah.
22.PW13 Dr. Davender, CMO, GTB Hospital, Shahdara, Delhi. This witness has proved the MLC Ex.PW13/A of patient Babita w/o Satpal, 22 years female on behalf of Dr. Shafiq, Junior Resident and as per MLC, alleged history is mentioned unknown poisoning. This witness has deposed that patient was conscious and oriented at the time of examination i.e. on 31.03.2007 at about 12:01 p.m. and as per record, patient was referred to medicine (259) for further management after giving first aid. This witness has further deposed that it has been mentioned in the MLC that it is a case of suspected poisoning and Gastric lavage had taken as sample and handed over to sister on duty.
23.PW14 Dr. R.P. Singh, Senior Resident, Trauma Centre, AIIMS, New Delhi. This witness has proved the postmortem report Ex.PW14/A. This witness has further deposed that no external injuries was found on the dead body and on general examination eyes were closed, cornea hazy, mouth partially open. Echymosis (type of bleeding) was present in conjunctivae of both eyes. All other natural orifices NAD (No Abnormality Detected). Rigor mortis was well developed. SC No.249/2007
State Vs. Ram Prasad and others 19/61 Postmortem staining was present on back and fixed. This witness has further deposed that again on 22.10.2010 on the request of Investigating Officer SubInspector Pritam Singh, Police Station Gokalpuri he had given subsequent opinion regarding cause of death in the matter. On the basis of the findings in the postmortem report, medical documents pertaining to the patient and report of chemical examiner, he opined cause of death in this case is coagulopathy disorder which is a complication of organo phosphorus poisoning and he had given the detailed reasons also at the time of giving subsequent opinion. This witness has proved subsequent opinion Ex.PW14/B which is running into two pages. This witness has further deposed that he is of the opinion that the lady Babita had not died a natural death but an unnatural death. This witness was cross examined by Sh. Bimlesh Kumar, Adv. for all accused persons except accused Satpal. This witness has deposed that he exactly do not know the definition of natural death in medical terminology but in his opinion he consider natural death when a person dies because of some disease. This witness was again cross examined on 14.01.2011.
24.This witness has further deposed that natural death means death occurring due to some natural disease or pathological condition, old SC No.249/2007 State Vs. Ram Prasad and others 20/61 age, debility means effect of some disease or devitalization means opposite of normal health; here the death is not intended or attempted and also does not occur accidentally. This definition is given in book by Krishan Vij, third edition page no.149, titled as 'Text Book of Forensic Medicine and Toxicology' and every disease are natural.
25.This witness was also cross examined by Sh. Saurabh, Ld. counsel for accused Satpal. In his cross examination, this witness has deposed that it is true that a death caused by disease or the aging process is called natural death. This witness has further deposed that it is true as per the medical opinion furnished by him the immediate cause of death of the deceased was coagulopathy disorder and it is also true the coagulopathy disorder may be caused by other reasons apart from poisoning. This witness has deposed that Coagulopathy disorder is the condition in which the normal balance of coagulation (blood clotting inside the body) is disturbed and there are various causes which may induce coagulopathy disorder i.e. toximea, vide spread disease like Cancer, prolonged hospitalization, embolism etc. This witness has also admitted that coagulopathy disorder can be caused due to diseases like brain fever and dengue. This witness has further deposed that in this case as per the findings of the postmortem report SC No.249/2007 State Vs. Ram Prasad and others 21/61 and the medical records it is highly unlikely that the coagulopathy disorder in the deceased was acquired by some disease. This witness was again cross examined on 28.01.2011. This witness has deposed that he ruled out the possibility of natural death in this case on the basis of medical records (medical records mean documents pertaining to the treatment of patient who comes for treatment), and postmortem report. This witness was again cross examined on 05.02.2011 by ld. Defence counsel. This witness has further deposed that he do not know that what are the tests to detect the poison in the body of deceased and he also does not know whether the gastric lavage test was conducted in this case or not. This witness has further deposed that the medical opinion regarding the cause of the death of the deceased given by him is based on conjectures and not on any chemical or medical analysis.
26.This witness was again cross examined by Sh. Bimlesh Kumar, counsel for all accused persons except accused Satpal. This witness has deposed in his cross examination that after receiving CFSL report Ex.PW14/DA, he again turned all the clinical record of the patient/deceased on which he had given subsequent opinion Ex.PW14/B. This witness has further deposed that he had given his SC No.249/2007 State Vs. Ram Prasad and others 22/61 opinion on Ex.PW14/A only on the basis of postmortem of the body of deceased and he denied that he had filed his subsequent opinion Ex.PW14/B just to fill the gap of medical negligence on his part. This witness has further deposed in the end of his cross examination that it is correct to suggest that all the findings and opinion are not 100% sure regarding the cause of death due to poison.
27.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded wherein all the accused persons denied all the allegations, evidences and circumstances put to them. Accused persons had stated that they had never demanded any dowry articles and they had not harassed or tortured deceased and that articles recovered by Investigating Officer belongs to their family and after death of deceased in laws and relatives of deceased demanded money from them and when they refused, they have been framed in the present case. Accused Suman stated that she is also daughter in law of in the family of accused persons and she has never faced any cruelty by the accused persons. They had led the defence witnesses and examined Smt. Suman as DW1, Sh. Om Prakash as DW2, Sh. Yogender as DW3 and Sh. Hukam Singh as DW4.
SC No.249/2007
State Vs. Ram Prasad and others 23/61
28.DW1 Suman who is also an accused had examined herself u/s 315 Cr.P.C. During her examination this witness deposed that on 30.03.2007 deceased Babita informed her regarding the pain in her stomach due to mensuration period and she had consumed medicine for pain relief. This witness has further deposed that on her request her in laws immediately took her to the nearest hospital for medical aid and in her cross examination by Ld. APP. This DW did not depose anything in support of prosecution.
29.DW2. During his examination this witness has deposed that all the accused persons are known to him since their childhood and he had not heard any kind of quarrel in the family of accused persons till the lifetime of deceased Babita. This witness has further deposed that he had not heard any kind of beating with deceased.
30.DW3. This witness has also deposed on the same footing as deposed by DW2.
31.DW4. During his examination this witness has deposed that deceased Babita had not made any complaint with regard to either demand of dowry, cruelty or harassment by the accused persons and he had also SC No.249/2007 State Vs. Ram Prasad and others 24/61 not noticed any complaint in this regard whenever he visited the matrimonial house of deceased.
32.Thereafter, matter was fixed for arguments. After examination of DW's, D.E. was closed.
ARGUMENTS:
33.Ld. APP for state, Sh. Zenual Abedeen argued that on the statement of PW2 Tara Chand, father of deceased Ex.PW2/A before the SDM present FIR Ex.PW8/B u/s 498A/304B IPC & 3 / 4 Dowry Prohibition Act was registered at PS Gokalpuri. Accordingly, accused persons were arrested and booked for the offences u/s 498A/ 304B/ 34 IPC & 3 / 4 of Dowry Prohibition Act. Ld. APP for state submits that statement of father of deceased is sufficient to prove the case of proseuction. Ld. APP further submits that since the statement of father of deceased support the case of prosecution, therefore, the present case is squarely covered under the ingredients of 498A/304B/34 IPC. Ld. APP for the State has submitted that PW1 Bhim Sain had identified the dead body of deceased before SDM. PW2 Tara Chand, complainant/father of deceased has supported the case of prosecution. PW3 Ajab Singh is tenant/relative of SC No.249/2007 State Vs. Ram Prasad and others 25/61 complainant. PW4 Inspector B.S. Kushwah is investigating Officer. PW5 Kishori Lal did not support the case of prosecution even in his cross examination. PW6 Kaushal, sister of deceased has supported the case of prosecution. PW7 Sh. A.K. Passi is SDM who had recorded statement of complainant and completed inquest proceedings. PW8 ASI Duli Chand is first IO who informed the SDM. PW9 W/Ct. Anjula is the witness of arrest of accused persons. PW10 Vijay Singh is a hearsay witness. PW11 Inspector Bakshi Ram is SHO of PS Gokalpuri. PW12 ASI Om Prakash is a formal witness being Duty Officer. PW13 Dr. Devender has proved the MLC of deceased on behalf of Dr. Shafiq. PW14 Dr. R.P. Singh has conducted postmortem of dead body of deceased. Ld. APP for the State has further submitted that testimony of PW2 is believable. No one could talk to deceased during her treatment in hospital. Ld. APP for the State has further submitted that as per PW8 deceased was fit for statement and having suspect of poisoning but statement could not recorded as the B.P. of deceased become low. Ld. APP for the State has submitted that death of deceased is unnatural and death is within the seven years of her marriage. Ld. APP for the state has further submitted that as per statement of ASI Duli Chand, this is admitted case of poisoning and death has happened in unnatural circumstances. Oral evidence cannot SC No.249/2007 State Vs. Ram Prasad and others 26/61 run on medical evidence. Alleged history on MLC shows the case of poisoning - conscious and oriented. Ld. APP for the State has further submitted that there is no eye witness to fact of payment of Rs.30,000/ to accused Satpal. PW4 Inspector B.S. Kushwah could not produce original site plan, only photocopy is mark 'Z'. Ld. APP for state further argued that statements of some other PWs are sufficient to convict the accused persons for offence charged as prosecution has proved its case beyond reasonable doubt. On these grounds, Ld. APP for the State has submitted that there are sufficient evidence to convict the all accused persons.
34.Ld. counsel Sh. Bimlesh Kumar, for all accused except Satpal has submitted that marriage of deceased Babita with accused Satpal was solemnized on 22.04.2004 and till her life time no complaint of dowry was made. ld. Counsel for accused has further submitted that since no exhibits shows date of admission as 31.03.2007. Deceased died on 04.04.2007 thereby it shows FIR delayed by four days. Ld. Counsel for accused has further submitted that DD No.19B is not admissible on Judicial record and in DD No.19B Duty Ct. Ram Kumar had forwarded information to Sh. A.K. Pasi regarding "Kuchh Kha Liya hai pati dwara dakhil karya gaya hai". Ld. Counsel for accused SC No.249/2007 State Vs. Ram Prasad and others 27/61 has further submitted that DD No.30B dated 04.04.2007 is starting of this case. No gastric lavage has been recovered or seized and as per MLC deceased was not fit for statement. On the day of admission in the hospital patient was conscious and oriented. Injured was not fit for statement as per contents of FIR No.232/2007.PW5 Kishori Lal who has passed the information taking something by Babita to the father of deceased. Testimony of PW5 is relevant. PW5 Kishori Lal have denied each question put to him by Ld. APP for State. Ld. Counsel for accused has further submitted that PW3 Ajab Singh has not been described neither by deceased or by her father. PW2 Tara Chand has stated in his examination that his daughter live happily for one year and PW2 has stated before the court that he had received information from Kishori Lal that his daughter has fallen ill and PW3 Ajab Singh did not come in picture in examination of PW2. Ld. Counsel for accused has further submitted that in cross examination by Ld. APP, PW states in her cross examination that her father is farmer and there is no any other business whereas PW2 has deposed that he had 56 buffaloes by which he used to sell the milk. PW2 states that he had taken bath, eat food and covered distance of 3 km by foot before boarding bus to Delhi whereas PW3 Ajab Singh states in his statement that after receiving the information of admission of deceased he had SC No.249/2007 State Vs. Ram Prasad and others 28/61 visited the hospital. PW3 used to be tenant of PW5. Ld. Counsel for accused has further submitted that PW3 has been involved in so many cases whereas he had stated in his statement that he has no previous case. PW3 has received information about the death of Babita .... PW2 Tara Chand and he states that he not accompanied Kishori Lal to GTB Hospital. On his cross examination he states that he had not put his signature any where at either at hospital or at PS.
35.Ld. counsel for accused has further submitted that on 31.03.2007 deceased was absolve to statement but he had not recorded her statement.
36.Ld. counsel for accused has further submitted that DW1, DW2, DW3 and DW4 have deposed that deceased had never made any complaint against accused persons regarding demand of dowry.
37.Ld. counsel for accused has further submitted that as per PW13 Dr. Devender gastric lavage was taken but same has not been brought on record. Ld. Counsel for accused further submitted that as per medical jurisprudence cleaning of abdomen and vital monitoring of heart beat and pulses etc. and then gastric lavage. In this regard, he has relied SC No.249/2007 State Vs. Ram Prasad and others 29/61 upon Hon'ble Supreme Court Judgment in case titled as "Mahender Modi and Others Vs. State of U.P." wherein it has held that in such a case to ascertain the cause of death further tests such as Histopathological test, Drug reaction and Bacteriological test were required to be made.
38.Ld. counsel for accused has further pointed out to cross examination of PW14 Dr. R.P. Singh where had stated that no external injuy was found, no abnormality detected whereas FSL report suggest no poisonous substance found. PW14 Dr. R.P. Singh has deposed that he is of the opinion that lady Babita had not died a normal death but a unnatural death but this opinion has been given without any reasoning.
39.It is further argued that PW10 stated that he has no idea about the name of deceased. This witness had not visited the house of deceased prior to marriage or after the marriage. Ld. Counsel has further submitted that PW1, 2, 3, 5, 6 and 10, all the family members of complainant. None of these witnesses had deposed regarding the cruelty soon before death.
40.Ld. counsel for accused persons has further argued that PW6 SC No.249/2007 State Vs. Ram Prasad and others 30/61 Inspector B.S. Kushwah did not place site plan on record and he states that the same has been lost somewhere. This witness had received the present file for first time on 04.07.2007. this witness has not disclosed these facts in his police diary. This witness has stated that deceased Babita did not make any statement before anybody as per his knowledge. This witness had not investigated regarding dowry articles or their proof from complainant. This witness further states that none of relatives from both sides disclosed to him regarding the torture upon deceased.
41.It is further submitted that Dr. Manoj Kumar has not been examined by prosecution. Dr. Manoj had declared patient unfit for statement in MLC. PW8 states that the victim was fit for statement. This witness states that on 31.03.2007 Executive Magistrate, Sh. A.K. Pasi could not recorded statement of deceased in hospital.
42.PW7 Sh. A.K. Pasi states that on 31.03.2006 he was posted as Executive Magistrate Seelampur whereas alleged incident as per PW8 on 31.03.2007. In cross examination this witness states that It is wrong to suggest that on 31.03.2007 he did not attend the hospital whereas PW8 states that PW7 had not attended the hospital on SC No.249/2007 State Vs. Ram Prasad and others 31/61 31.03.2007. PW3 and PW8 are in connivance with each other. PW8 states that he had directed the accused Satpal to inform the family of deceased as no family members from deceased was present in the hospital. This witness states that only on 02.04.2007 family members of deceased reached in the hospital whereas on perusal of testimony of PW2 family members of deceased were present in hospital on 31.03.2007 i.e. date of incident. This witness further states that he informed about the condition of deceased only on 02.04.2007. This witness again states that he knew about the condition of victim only on 02.04.2007. In his cross examination PW7 states that he had recorded the statement of father of deceased and he had attended the hospital in second time only when he received information that victim had died.
43.It is further submitted that no cruelty has been committed by accused persons either before the marriage, at the time of marriage of parties or after the marriage. In support of his contention, he has relied upon judgment "Hans Raj Sharma & Others Vs. State of Govt of NCT of Delhi, 175 (2010) Delhi Law Times 446," wherein it has held that :
"Indian Penal Code, 1860 - Sections 304B, 498A - Dowry Death, Cruelty, Benefit of doubt - Appreciation of SC No.249/2007 State Vs. Ram Prasad and others 32/61 evidence One solitary instance of asking deceased to bring Rs.50,000/ from her parents on fateful day, even if true will not constitute dowry death punishable under section 304B IPC or cruelty or harassment punishable under section 498A, IPC Young woman has lost her life in house of appellants But it was for prosecution to prove that she committed suicide on account of cruelty or harassment meted out to her by appellants in connection with demand of dowry Prosecution has miserably failed to establish charges attributed to appellants, beyond reasonable doubt."
44.Further in the above mentioned judgment it has also held that :
"Coming to the charge under Section 304B of IPC, before a person can be convicted under this section, which deals with what is described as "dowry death", the prosecution must necessarily prove the following ingredients :
(i) The death of woman must have been caused by burn or bodily injury or otherwise than under normal circumstance;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected 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 of dowry;
(v) Such cruelty or harassment is when to have been meted out to woman soon before her death."
45.Ld. counsel for accused has further relied upon the Judgment of Hon'ble Supreme Court in case titled as "Surinder Kaur and another Vs. State of Haryana, (2004) 4 Supreme Court Cases 109", wherein it has held that :
SC No.249/2007
State Vs. Ram Prasad and others 33/61 "We have noticed neither PW6 nor PW7 nor for that matter the complaint gives the particulars of the time and date whent he alleged harassment was meted out by the appellants. As noticed by us hereinabove, these statements are omnibus in nature. The specific allegations of harassment made only involve AI and his father with whose case we are not concerned now. The appellants are neither parties to the demand for a buffalo or Rs.25,000/ which seems to be the proximate cause of Baljit Kaur committing suicide. The courts below in appreciating the evidence have failed to appreciate the material on record properly nor have they applied the required standard of proof necessary to base a conviction on the appellants. We have already noticed that if at all the prosecution case against these appellants is to be accepted it would only show that soon after the marriage i.e. About 2 ½ years prior to the death of the deceased, there was some alleged harassment for lack of dowry which, in our opinion, is not a sufficient ground to hold the appellants guilty for the offence charged, since these allegations are not proximate to the death of the deceased."
46.It is further argued that no PW except PW6 support the case of prosecution. MLC does not disclose any injury. Neither no cruelty has been proved soon before death.
47.Sh. Saurabh, Ld. counsel for accused Satpal has argued that according to FIR Babli is not the witness since she was a material person. On scope and object of 304B, Ld. Counsel has relied upon judgment i.e. "
Hira Lal and Others Vs. State of Delhi, (2003) 8 Supreme Court Cases 80, where it has held that :SC No.249/2007
State Vs. Ram Prasad and others 34/61 "In support of the appeal, learned counsel for the appellants submitted that ingredients of Sections 304B and 498A are not made out. There was no evidence regarding any dowry demand. On the contrary, it was confirmed that at the time of marriage there was no demand for dowry. It is of relevance to note that while the deceased was married to accused Surender, her sister Manju (PW11) was married to Virender, elder brother of Surender. Both the marriages were solemnized on the same date. It has been accepted by the prosecution witnesses that there was no demand for valuable articles at any point subsequent to the marriage in case of Manju. If the demand was made for the deceased as alleged, there no reason as to why a departure was made in case of her sister. The evidence of the relatives (PW1, PW2, PW10 and PW11) does not inspire any confidence. Before the alleged suicide, there were differences between the deceased and her husband for which allegations were made before the police. Finally the differences were sorted out by settling that they shall stay separately from other members of the family. There was a conciliation made by the officials and the conditions indicated related to separate residence. There was not even an inkling about demand of money or articles. This has been categorically accepted by both PWs 10 and it is therefore submitted that both the trial court and the High Court fell in grave error by going into surmises to convict the appellants."
"In response, learned counsel for the State, Government of NCT of Delhi, submitted that the ingredients of the offences have been clearly made out. In any event, the case can be considered in terms of Section 306 IPC."
48.Ld. counsel for accused has also relied upon judgment titled as "Mahender Modi and others Vs. State of U.P., 2005 IV AD (Delhi) SC No.249/2007 State Vs. Ram Prasad and others 35/61 83," wherein it has held that :
"Section 498A of the IPC was inserted by Criminal Law (Second Amendment) Act, 1983, with a view to curb the vice of cruelty to a married woman by the husband or inlaws. Explanation (b) of Section 498A shows that if there be any harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on acount of failure by her or any person related to her to meet such demand, the same would amount to cruelty. Section 304B IPC was added by Dowry Prohibition (Amendment) Act 1986, with a view to combat the increasing menace of dowry death. It lays down, where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry, such death shall be called 'dowry death'. The explanation further provides that for the purpose of this section 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. And section 4 of the Dowry Prohibition Act, provides punishment for giving, taking or demanding dowry. Although these offences are independent. Yet "demand for dowry" is the common ingredient. In this case prosecution allegations are that appellant Mahendra Modi demanded maruti car at the time of 'Bidai' and continued to insist on this demand even after the marriage Learned trial court, after noticing the evidence of the various witnesses, held that the prosecution has failed to prove that the deceased was being harassed, in connection with demand of dowry and acquittal the accused for the offence under section 498A. Further, learned trial court acquitted appellant for the offence punishable under section 304B giving SC No.249/2007 State Vs. Ram Prasad and others 36/61 him benefit of doubt, holding that the prosecution has failed to prove that the deceased was harassed in connection with the demand of dowry, soon before her death."
49.Ld. counsel for accused persons has also relied upon judgment of Hon'ble Supreme Court in case titled as "Nepal Singh Vs. State of Haryana, (2009) 12 Supreme Court Cases 351", wherein it has been held that :
"Penal Code, 1860 Ss. 304B and 498ADowry death Suicide by wife Acquittal by trial court Interference by High court On facts held, not justified Deceased committed suicide within seven years of marriage At the time of marriage - At the time of marriage appellant husband was studying Few days before the death, deceased met and told her parents that the accused had completed his course and wanted her to bring Rs. One lakh from them and that if she failed to do so accused would turn her out of the house Fact that while going back to the village of her inlaws she told her father to arrange for the money otherwise her inlaws would not allow her to live, and many other vital things not stated during investigation by PWs - DW1, who settled the marriage stated that there was no demand of dowry at the time of marriage and the deceased or her parents never complained to him for any such demand - No amount was sent to the appellant while he was prosecuting studies Father of the appellant promptly sent intimation of death to her parents Held, it was rightly noted by trial court that there was no evidence towards the claim regarding any demand of dowry Reasoning of High Court that something must have happened otherwise deceased would not have committed suicide, is clearly indefensible That certainly could not have been a reason to set aside trial court's wellreasoned judgment of acquittal."SC No.249/2007
State Vs. Ram Prasad and others 37/61
50.Ld. counsel for accused further submitted that in testimonies of PW Tara Chand, Ajab Singh and Kaushal, these witness have not mentioned a single word of harassment, cruelty and demand of dowry against accused persons. Ld. Counsel for accused further argued that conviction of seven persons cannot be based merely of assumption and conjectures. PW Ajab Singh used to be a tenant of Kishori Lal, testimonies of this witness is not trustworthy. Ld. Counsel further argued that both the parties comes from village background and no one has been make a witness from the villages of the parties and Why Ajab Singh has been made witness?
51.Ld. Counsel for accused has further submitted that allegations of PW2 Tara Chand are vague and general in nature, it is usual practice that a girl being sent to their parental house. Ld. counsel for accused persons has further submitted that no receipt or R.C. of motorcycle has been placed on record in order to prove the payment towards demand of dowry. No dates or time has been mentioned regarding the torture, harassment or cruelty committed by the accused persons on account of demand of dowry. Mandate of Section 304B IPC is clear that there must be cruelty soon before death. It is further argued that Viscera SC No.249/2007 State Vs. Ram Prasad and others 38/61 Test is negative, no gastric lavage had been collected. On these grounds, Ld. Counsel for accused persons has prayed for acquittal of all the accused persons from the charges.
52.Arguments heard. Record perused. On perusal of record it is revealed that on 31.03.2007 a DD No.19B was recorded at Police Station Gokalpuri regarding admission of one Babita in GTB Hospital by her husband as she had consumed something and said DD was marked to ASI Duli Chand for investigation. On 04.04.2007 a DD No.30B regarding death of Babita in the GTB Hospital was recorded. Since the period of marriage was less than seven years, SDM of the area was informed by IO. Sh. A.K. Pasi, Executive Magistrate reached at GTB Hospital and recorded statement of Tara Chand, father of deceased Ex.PW2/A and directed SHO PS Gokalpuri to take action as per law.
On the basis of said statement, FIR No.232/2007 Ex.PW8/B u/s 498A/304B IPC & 3 / 4 of Dowry Prohibition Act was recorded at police station Gokalpuri. Accordingly, accused persons were arrested and booked for the offences u/s 498A/ 304B/ 34 IPC & 3 / 4 of Dowry Prohibition Act.
53.On perusal of record, it is further revealed that SDM conducted SC No.249/2007 State Vs. Ram Prasad and others 39/61 inquest proceedings and prepared form 25.35 vide Ex.PW7/C, made a request for postmortem vide Ex.PW7/A and recorded statement of father of deceased and uncle regarding identification of dead body of deceased vide Ex.PW7/D and after postmortem the dead body of deceased was handed over to the relatives of deceased.
54.On further perusal of record it is revealed that IO had prepared the site plan of the place of occurrence mark 'Z' and IO had also recovered dowry articles from the accused persons vide seizure memo Ex.PW2/B and also seized the marriage photos of the deceased with the accused Satpal Ex.P2.
55.On perusal of record, it is further revealed that IO had seized dowry articles vide Ex.P7.
56.On perusal of record, it is further revealed that IO had arrested accused persons namely Suman w/o Kishan Pal, Lalita d/o Ram Prasad, Sarita d/o Ram Prasad, Shakuntala w/o Ram Prasad and Kishan Pal s/o Ram Prasad, Ram Prasad s/o Mam Chand and Satpal s/o Ram Prasad vide arrest memo Ex. as PW4/A, PW4/B, PW4/C, PW4/D, PW4/E, PW4/F and PW4/G respectively and he had also SC No.249/2007 State Vs. Ram Prasad and others 40/61 prepared their personal search memos Ex. as PW4/G1, PW4/G2, PW4/G3, PW4/G4, PW4/G5, PW4/G6 and PW4/G7 respectively.
57.On perusal of record, it is further revealed that accused Satpal was taken on police remand for two days and at his instance certain dowry articles such as one dressing table, one sofa set, five chairs, one table, one T.V. make Samsung, one wall clock, one old Fridge, one wrist watch make Vijay HMT, one old electric iron press, one diwan bed box and mattress, one iron almirah and 22 pairs of clothes (ladies) and one old cooler were seized by IO vide Ex.PW2/B. IO had also recorded disclosure statement of all the accused persons namely Suman, Lalita, Sarita, Shakuntala, Krishan Pal, Ram Prasad and Satpal vide Ex. PW3/A, PW3/B, PW3/C, PW3/D, PW3/E, PW3/F and PW3/G. IO had also prepared the site plan of the place of occurrence photocopy of same is mark 'Z'. IO had also recovered dowry articles from the accused persons vide seizure memo already Ex.PW2/B.
58.On perusal of record, it is further revealed that there is photocopy of DD No.19B and which has not been proved by prosecution. It is further revealed that DD No.30B has also not been proved by prosecution.SC No.249/2007
State Vs. Ram Prasad and others 41/61
59.On perusal of record it is further revealed that MLC of deceased is Ex.PW13/A.
60.On perusal of record it is further revealed that CFSL report was proved vide Ex.PW14/DA wherein it is mentioned that no common poison could be detected in the contents of exhibits marked as 13627/1, 13627/2, 13627/3 and 13627/4.
61.On perusal of record, it is further revealed that postmortem report has been proved vide Ex.PW14/A by PW14 Dr. R.P. Singh.
62.It is further revealed that PW14 Dr. R.P. Singh has given subsequent opinion vide Ex.PW14/B wherein he had opined that the cause of death in the present case is coagulopathy disorder which is complication of organo phosphorus poisoning but after a lengthy cross examination by Ld. Counsel for accused persons, this witness admits that all the findings and opinion are not 100% sure regarding the cause of death due to poison as clinical records as basis of opinion are not on judicial record. Testimony of this PW reflects that opinion of this witness are contradictory in itself and in such circumstances it is SC No.249/2007 State Vs. Ram Prasad and others 42/61 difficult to accept.
63.We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the postmortem as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self contradictory. This on such case where we find that there is a reasonable doubt in regard to the cause of death of Babita by poisoning and we find it not safe to rely upon the evidence of PW14 solely for the purpose of coming to conclusion that Babita's death is proved due to poison.
64.So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by poison takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the SC No.249/2007 State Vs. Ram Prasad and others 43/61 deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor.
65.Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reached a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
66.Hon'ble Supreme court in "Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116" has laid down the parameters for arriving at an opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence, stating:SC No.249/2007
State Vs. Ram Prasad and others 44/61 "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made :
'19.....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion.' (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 a 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.
154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
SC No.249/2007
State Vs. Ram Prasad and others 45/61
67.In the light of facts of present case, viscera report of deceased is also does not suggest any poisonous substance and further FSL report is also negative and gastric lavage was also not taken by the IO to ascertain the nature of poison. On perusal of MLC of patient the treatment given to her during the medical treatment also does not suggest that treatment was offered for Organo Phosphorus poisoning. In absence of clinical notes with reference to subsequent opinion by PW14 Dr. R.P. Singh, it cannot be presumed that death was caused due to organo phosphorus poisonous. In view of the observation, testimony of PW14 Dr. R.P. Singh, it cannot be said to be reliable and it is difficult to accept the opinion of PW14.
68.Moreover, MLC also does not reflect any personal injury on the person of deceased during that period and other material PWs are relatives of deceased either father of deceased or relatives. Further, in postmortem report no abnormality detected upon the person of deceased.
69.All the prosecution witnesses are relative to the deceased. Therefore, chances of their deposing falsely cannot be ruled out. Be that as it may, when the offence is said to have been committed and the SC No.249/2007 State Vs. Ram Prasad and others 46/61 circumstantial evidence is made the basis for establishing the charge against the accused persons, indisputably all the links must be completed to form the basis for their conviction.
70.Before reaching at any conclusion the Section 113 B of the Evidence Act is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation For the purposes of this section `dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a SC No.249/2007 State Vs. Ram Prasad and others 47/61 provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry 113 death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(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.
A conjoint reading of Section 113 B of the Evidence Act and Section 304 B IPC shows that there must be material to show that soon SC No.249/2007 State Vs. Ram Prasad and others 48/61 before her death the victim was subjected cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113 B of the Evidence Act and Section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test 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 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114, Illustration (a) of the SC No.249/2007 State Vs. Ram Prasad and others 49/61 Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If 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.
The presumption u/s 113B of the Evidence Act for the purpose of section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law. The Hon'ble Apex Court in 'Kamesh Panjiyan v. State of Bihar, (2005) 2 SCC 388' reiterating and elaborating the similar principles defining section 498A IPC and 304B SC No.249/2007 State Vs. Ram Prasad and others 50/61 IPC observed that:
"12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) : AIR 1991 SC 1142). Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
"13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. 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 parents 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 or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.SC No.249/2007
State Vs. Ram Prasad and others 51/61 Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
71.In order to bring home conviction under section 304B it will not be sufficient to only lead evidence showing that cruelty and harassment had been meted out to the victim,but that such treatment was in connection with demand of dowry.
72.Hon'ble Supreme Court in case titled as "Nepal Singh Vs. State of Haryana, (2009) 12 Supreme Court Cases 351", wherein it has been held that :
"Penal Code, 1860 Ss. 304B and 498ADowry death Suicide by wife Acquittal by trial court Interference by High court On facts held, not justified Deceased committed suicide within seven years of marriage At the SC No.249/2007 State Vs. Ram Prasad and others 52/61 time of marriage - At the time of marriage appellant husband was studying Few days before the death, deceased met and told her parents that the accused had completed his course and wanted her to bring Rs. One lakh from them and that if she failed to do so accused would turn her out of the house Fact that while going back to the village of her inlaws she told her father to arrange for the money otherwise her inlaws would not allow her to live, and many other vital things not stated during investigation by PWs - DW1, who settled the marriage stated that there was no demand of dowry at the time of marriage and the deceased or her parents never complained to him for any such demand - No amount was sent to the appellant while he was prosecuting studies Father of the appellant promptly sent intimation of death to her parents Held, it was rightly noted by trial court that there was no evidence towards the claim regarding any demand of dowry Reasoning of High Court that something must have happened otherwise deceased would not have committed suicide, is clearly indefensible That certainly could not have been a reason to set aside trial court's wellreasoned judgment of acquittal."
73.It is also pertinent to mention here that as per Modi Jurisprudence and Toxicology, the duty of medical practitioner in case of suspected poisoning are as under :
i. It is advisable to maintain a proper written record of his findings and the treatment administered.
ii. In a suspicious case of acute poisoning, the medical practitioner must try to find out the nature of the suspected poison, so that he can at once administer the appropriate treatment and save the patient's life.SC No.249/2007
State Vs. Ram Prasad and others 53/61 iii. He should make a very careful note of all the symptoms exhibited by the patient.
iv.He should also collect the vomited matter and 24 hour's urine if possible, and get them analysed for the presence of poison.
v. In every case of suspected poisoning, a medical practitioner, whether in private practice or in government service, must preserve all the evidence such as the vomited matter or stomach wash and samples of urine and facces passed in his very presence and likely to contain poison and suspected articles of food, drink or medicine in separate widemouthed glass bottles or jars with tightly fitting glass stoppers.
vi. A medical practitioner must also preserve any other evidence of the suspected poisoning, like a bottle, cup or tumbler in which the poison is suspected to have been mixed before administration, a mortar and pestle with which the poison might have been powdered, or a piece of paper used for dispensing and wrapping the poison.
74.As in the present case, no gastric lavage and moreover preserve any other evidence of the suspected poisoning, like a bottle, cup or tumbler in which the poison is suspected to have been mixed before administration, a mortar and pestle with which the poison might have been powdered, or a piece of paper used for dispensing and wrapping the poison. This fact creates a doubt upon the investigation of prosecution.
SC No.249/2007
State Vs. Ram Prasad and others 54/61
75.After arguments and careful perusal of record, observations, preceding discussions and testimonies of PWs and DWs, it is clear that the present case was registered on the statement of PW Tara Chand, father of deceased who is complainant and he has made only general allegations upon all the accused persons and none of PWs including PW Tara Chand could produce any receipt or RC of motorcycle or date of demand of dowry on record in order to prove the payment on account of demand of dowry and further he could not tell the dates or time regarding the torture, harassment or cruelty committed by accused persons in connection with demand of dowry. Allegations leveled by PWs appears to be vague.
76.Further, no DWs being the neighbour of deceased had deposed in the support of prosecution and even in the cross examination by Ld. APP for the state, they had not deposed anything towards cruelty or demand of dowry upon the deceased by the accused persons.
77.Further, Babli who is stated to be with deceased in the hospital since inception of deceased in the GTB Hospital but Investigating Officer did not examine this Babli as her name was also mentioned in the FIR. SC No.249/2007
State Vs. Ram Prasad and others 55/61 This Babli could have been material person in the case of prosecution but as Investigating Officer did not examine this Babli hence, case of the prosecution has been hit due to inaction of Investigating Officer and Dr. Manoj who was on duty during that relevant period has not been examined by the IO who has opined the deceased unfit for statement.
78.Again PW6 Kaushal who is to be the real sister of deceased she had gone to GTB Hospital to visit her ailing Mausi and that time her Mausa was also present in the hospital. PW Kaushal remained with her mausi from 11:00 a.m. to 04:00 p.m. on relevant date but IO did not examine Mausi and Mausa of PW Kaushal who had been very much present there.
79.It is very surprising that PW5 Kishori Lal who is Sadhu of PW Tara Chand and uncle of deceased, being in very much close relative of deceased does not speak anything about demand of dowry or cruelty by any of the accused person and PW 3 Ajab Singh, who has been neighbour of PW Kishori Lal speaks very much. Testimony of PW Kishori Lal seems to be much reliable instead of PW Ajab Singh. This PW Ajab Singh had stated in his cross examination that he had gone SC No.249/2007 State Vs. Ram Prasad and others 56/61 to house of deceased after her death to collect the dowry articles along with police, but on perusal of seizure memo Ex.PW2/B signature of PW Ajab Singh appears to be doubtful as his signature are different as on seizure memo and on statement deposed in the court. Hence, this PW Ajab Singh cannot be said to be a reliable witness.
80.Further perusal of MLC in column fit/unfit for statement it suggest to be fit and further in column of permanent address in MLC it reflects not fit for statement. It appears to be improvements in order to avoid any correction in MLC. It shows that deceased was fit for statement but her statement could not be recorded by the IO due to his negligence.
81.Even, 'soon before death' no circumstances have been proved by the prosecution connecting the accused persons subjected to cruelty or harassment upon deceased on account of demand of dowry. As no physical injury has been suggested either in her MLC or in her postmortem report. In terms of section 113B Evidence Act the term 'soon before death' lead to presumption that accused persons had caused dowry death. Since in the present case ingredients of section 304B IPC have not been fulfilled. Hon'ble Supreme Court in case SC No.249/2007 State Vs. Ram Prasad and others 57/61 "State of Rajasthan Vs. Teg Bahadur, 2004(8) J.T. 116", has held that "Prosecution has to prove 1. The death of married woman was within seven years of marriage. 2. a little prior to death, her husband or relative on point of demand of dowry subjected cruelty to her or harassed her. 3. Prosecution has to rule out the possibility of natural or accidental death so as to bring within purview of "death occurring otherwise then in normal circumstances".
"On the careful scrutiny of the statements of the aforesaid witnesses, it is seen that witnesses have given different statements regarding demand of dowry. According to him, with respect to dowry, dispute was raised at the time of marriage. According to Om Prakash, when Suman returned to her parents' house, she complained about demand of dowry by the inlaws. There is no corroboration about the statement of Om Prakash by the statement of his wife Smt. Hira Bai. Under these circumstances, we are of the opinion, that there is lack of evidence to prove the demand of dowry and that the evidence led by the prosecution bristles with discrepancies and contradictions. On the basis of the evidence, it could not be treated to have been proved that actually the accused had made a demand of dowry and that was made soon before the death and due to this, the deceased was harassed."
82.Since it is confirmed that at the time of marriage there was no demand of dowry. The provisions of section 304B IPC has application when death of woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that soon before her death SC No.249/2007 State Vs. Ram Prasad and others 58/61 she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. The evidence of PW1, PW2, PW4, PW6 shows that at the time of marriage there was no demand of dowry subsequently according to PW2 and PW6 demands were made. The crucial question whether there were demand soon before death. None of PWs stated that complaints were made to authority regarding demand of dowry against the accused persons. There are mere general allegations and there is no definite evidence about the ill treatment to the deceased at any time having immediate proximity to the death of deceased by the accused persons to attach culpability under section 304B IPC, therefore, basic requirement of cruelty or harassment soon before death to bring application of section 304B IPC is absent.
83.Further question is whether the case under section 498A is made out. Even if accusation under section 304B fails.
498A IPC. Husband or relative of husband of woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purpose of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health (whether mental or physical) of the woman; or SC No.249/2007 State Vs. Ram Prasad and others 59/61
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand or any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
84.In reference to section 498A IPC no circumstance has been shown by the prosecution indicating any wilful conduct on part of any of the accused persons. Only mere general allegations cannot be put as wilful conduct towards demand of dowry or cruelty by the accused persons.
85.From the testimonies of witnesses and circumstances and facts of this case, at this stage, this court comes to the conclusion that the case of prosecution does not inspire the confidence of this court as prosecution has failed to prove the guilt of accused persons beyond the reasonable doubt.
86.Further, facts of the case also does not prove any circumstance which may lead to the conviction of the accused persons. Accordingly, keeping in consideration testimonies and facts and circumstances of this case, this court comes to the conclusion that case of the prosecution does not inspire the confidence of this court. Hence, in the absence of sufficient evidence against the accused persons this court acquit accused persons namely Ram Prasad, Smt. Shakuntla, SC No.249/2007 State Vs. Ram Prasad and others 60/61 Krishan Pal, Suman, Sat Pal, Sarita and Lalita from the charges u/s 498A/304B/34 IPC. In terms of Section 437 (A) Cr. P.C. accused persons namely Ram Prasad, Smt. Shakuntla, Krishan Pal, Suman, Sat Pal, Sarita and Lalita are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months. Order accordingly, file be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 12.05.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.249/2007 State Vs. Ram Prasad and others 61/61