Delhi District Court
State vs . (1) Rakesh Sharma on 14 January, 2011
-:1:-
IN THE COURT OF SHRI I. S. MEHTA, DJ-IX CUM ASJ I/C
DWARKA COURTS, NEW DELHI.
Session Case No. : 65/2008
Date of Institution : 12.3.2007
Date of Decision : 14.1.2011
State Vs. (1) Rakesh Sharma
S/O Sh. Hari Prasad
R/O RZ-2/40A, West Sagar Pur, New Delhi.
(2) Hari Prasad
S/O Late Raghuvar Dayal
R/O RZ-2/40A, West Sagar Pur, New Delhi.
(3) Bimlesh @ Bimla
W/O Sh. Hari Prasad
R/O RZ-P-77/25, Dayal Park, West Sagar Pur,
New Delhi.
(4) Beena Sharma
W/O Sh. Rajneesh Sharma
R/O H.No. 25,Village Mawai, Sec-9,
Vijay Nagar, Ghaziabad, U.P.
FIR NO.: 917/06
Police Station : Dabri
Under Section: 302/498A/304B/34 IPC
For State : Sh. Devinder Kumar Ld. Chief
Prosecutor on behalf of the State.
For Accused : Sh. R.N Sharma, Adv, counsel
for the accused persons.
JUDGMENT
1. Accused Rakesh Sharma, Hari Prasad, Bimlesh @ Bimla and Beena Sharma are facing trial for an offence under Section 302 IPC read with Section 34 IPC for committing murder of Smt. Savita W/O Rakesh Sharma on the intervening night of 30.9.2006 & 1.10.2006 at H. No. RZ-2/40A, West Sagar Pur, New Delhi and further all the abovenamed four accused persons are also facing trial for SC No. 65/2008 Page 1/25 -:2:- offence under Section 498A/304B/34 IPC for subjecting Smt. Savita to cruelty and harassment for demand of dowry as a result of which Savita died an unnatural death on the intervening night of 30.9.2006 and 1.10.2006, within the seven years of her marriage, at her matrimonial house i.e H. No. RZ-2/40A, West Sagar Pur, New Delhi.
2. Precisely, the brief facts stated are that on receiving DD No. 11A on 1.10.2006, ASI Ved Parkash, along with HC Rajinder Singh reached at H.No. RZ-2/40A, West Sagar Pur, New Delhi where, a lady was found hanging from ceiling fan. During the inquiry, it revealed that the dead body which was hanging with bed sheet from the ceiling fan, was of Smt. Savita W/O Rakesh Sharma. Information regarding death of Smt. Savita was given to Sub Divisional Magistrate as well to the parents of the deceased. Crime team was called at the spot and on the directions of Sub Divisional Magistrate, dead body of Smt. Savita was sent to Mortuary, DDU Hospital. Thereafter, Sub Divisional Magistrate recorded the statement of Sh. Sanjay Sharma, brother of the deceased Smt. Savita, as under:
He is elder brother of deceased Smt. Savita. He is doing business of property. Marriage of his sister Savita was solemnized in the year 1999 with Rakesh Sharma, as per Hindu Rites and Customs and in the said marriage, dowry was given by them as per their capacity. Married life of her sister was not good from the beginning. Soon after the marriage, inlaws of Savita started harassing her for more dowry. Sister in law of Savita also used to harass her for dowry but since, she got married three years ago, there was no harassment from her side.
Six months prior to the incident, inlaws of Savita had demanded rupees one lac to construct a house and they paid a sum of Rs. 50,000/- to them.
Once his sister Savita was seriously ill due to the harassment of her inlaws and she was admitted in DDU hospital. At that time, matter was settled by the intervention of police.
On 1.10.2006, at about 4.00 am, his sister Savita had called him on telephone and told him that her husband Rakesh had beaten her mercilessly and he will kill her. She also requested him to take her from her matrimonial house. Thereafter, at about 11.00 am, SC No. 65/2008 Page 2/25 -:3:- he received a telephone call from Rakesh, who told him that Savita expired. He suspect that his sister Savita has been killed.
On the basis of statement of Sanjay Sharma, brother of the deceased, Sub Divisional Magistrate directed the SHO to register the case under Section 498A/304B/34 IPC. After registration of the case, further investigation of the case was entrusted to SI Ved Parkash. During investigation, SI Ved Parakash called the crime team, got the spot photographed, inspected the spot along with crime team and taken into possession the bedsheet i.e ligature material. Thereafter, SI Ved Parkash, recorded the statement of the witnesses. On the direction of Sub Divisional Magistrate, the dead body of Savita was sent to Mortuary, DDU Hospital for postmortem examination and after completion of postmortem examination dead body was handed over to brother of the deceased. Thereafter, SI Ved Parkash arrested accused Rakesh Sharma and Hari Prasad Sharma and sent them in JC. He also obtained the postmortem report. Since accused, Bimlesh W/O Hari Prasad Sharma and Beena W/O Rajneesh Sharma were evading arrest, SI Ved Parkash obtained NBW against them and thereafter, proceedings u/s 82, 83 Cr.P.C were initiated against them.
On the basis of investigation and available evidence, charge sheet under Section 498A/304B/34 IPC was filed in the court, against accused Rakesh Sharma and Hari Prasad and later, supplementary charge sheet under Section 498A/304B/34 IPC was filed against accused Bimlesh and Beena.
3. The case was committed to the court of sessions by Ld. Metropolitan Magistrate vide order dated 26.2.2007 and 4.8.2007.
4. Prima facie case having been made out, charge for offence under Section 302/498A/304B read with 34 IPC was framed against SC No. 65/2008 Page 3/25 -:4:- all the four accused persons to which, they pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined as many as fifteen witnesses, as under:-
PW1 Sanjay Sharma is the complainant/real brother of the deceased Savita, proved his statement Ex.PW1/A, on the basis of which present FIR Ex PW8/A was got registered.
PW2 ASI Rajinder Singh, who on receiving the DD No. 12A Ex PW14/B, reached to the spot i.e H.No. RZ-2/40A, West Sagar Pur, New Delhi, along with IO SI Ved Parkash PW14 on 1.10.2006. He deposed that at the spot one room was found bolted from inside. They peeped into the said room through the window pane and found that deceased was hanging with the ceiling fan. IO SI Ved Parkash sent call request to the SDM. SDM reached to the spot. Crime team was called. Dead body was sent for postmortem examination. Accused Hari Prasad and Rakesh Sharma were arrested vide arrest memo Ex PW2/A and Ex PW2/B. Ligature material i.e Dupatta was taken into possession vide memo Ex PW2/E and proved the said piece Ex P1.
PW3 Devender Kumer is the real brother of deceased Savita, who was residing at Ghaziabad at the time of incident along with his brother Sanjay. On 1.10.2006 at about 4.00 am, his sister Savita made a telephonic call on his telephone No. 9810803399, which was picked up by his younger brother Sanjay. Deceased Savita told Sanjay on the said call that she is being beaten by her inlaws and they would kill her. She also requested him to take her to her parental home and to save her. He thereafter, contacted his elder brother Pradeep PW5 on phone, who was residing in Delhi. PW5 reached to Ghaziabad. Thereafter, they were informed by accused Rakesh that deceased Savita had died and on this they reached to the spot i.e H.No. RZ-2/40A, West Sagar Pur, New Delhi. Dead body of deceased was received by them vide memo Ex PW3/B. He has deposed in his statement that the deceased was married to accused Rakesh on 9.12.1999 as per Hindu Rites and Customs. Soon after the marriage, the accused persons started harassing and beating deceased Savita and raising demand of rupees one lac, out of which, rupees fifty thousand was paid by them. When he purchased a car, inlaws of Savita demanded a car for themselves.
PW4 Sh. Sureder Singh is the Executive Magistrate, Palam, who reached to the spot i.e H.No. RZ-2/40A, West Sagar Pur, New Delhi, on the request of IO SI Ved Parkash, PW14, on 1.10.2006 at about SC No. 65/2008 Page 4/25 -:5:- 11.20 am. He inspected the spot, body of the deceased and thereafter sent the dead body to the DDU hospital for conducting postmortem examination. He proved death report Ex PW4/A and his report Ex PW4/B and recorded statement of brothers of the deceased i.e Sh. Sanjay Sharma PW1, Devender Kumar PW3 and Pradeep Kumar PW5.
PW5 Pradeep Kumar is also one of the real brother of the deceased Savita. who has stated that after the marriage of his sister Savita, she was harassed for dowry by all the accused persons i.e Rakesh Sharma, Har Prasad Sharma, Beena and Bimlesh. He has further stated that, six months prior to the incident, accused persons demanded a sum of rupees one lac for construction of their house out of which rupees 50,000/- was handed over to the accused persons by his brother Devender. He further stated that when his brother Devender purchased a car, the accused persons demanded a car from them.
PW6 Bohri Lal Sharma is the father of the deceased Savita who has stated that just after the marriage, all the four accused persons i.e Rakesh Sharma, Hari Prasad Sharma, Beena and Bimlesh harassed her daughter on the pretext of dowry. He further stated that 4-5 years after the marriage, accused persons started constructing their house and at that time, on the demand of accused persons, he gave rupees fifty thousand to them.
PW7 Smt. Rajkali is the mother of deceased Savita. who has stated that after the marriage, her daughter was being harassed by all the four accused persons for demand of more dowry. She further stated that the accused persons also demanded rupees fifty thousand from them and her son handed over amount of rupees fifty thousand to the accused persons. She further stated that when her son Devender purchased a four wheeler, accused Rakesh told her son to arrange some vehicle for him.
PW8 SI Rajbir Singh is the witness who recorded the FIR Ex PW8/A. PW9 Dr. B.N Mishra is the witness who conducted the postmortem examination on the dead body of deceased Savita and his report is Ex PW9/A. PW10 Megh Raj hales from the parental village of deceased Savita. He has stated that he visited deceased Savita's house twice and deceased Savita told him that her inlaws used to taunt her for bringing less dowry.
PW11 SI Rajinder Singh is the member of the Crime Team, who proved its report Ex PW11/A. SC No. 65/2008 Page 5/25 -:6:- PW12 Inspector Vijay Chandel is the witness who reached at the spot i.e H. No. H.No. RZ-2/40A, West Sagar Pur, New Delhi on 1.10.2006, soon after reaching of ASI Rajinder Singh and SI Ved Parkash. After reaching at the spot, on their request, i.e Inspector Vijay Chandel, ASI Rajinder Singh and SI Ved Parkash, Crime Team Officials and the photographer were called at the spot. Spot was photographed and thereafter, with their help, they broke open the inside bolt of the said room. He informed the SDM Najafgarh, and directed SI Ved Parkash to conduct the further investigation.
PW13 Anand Swaroop is the photographer who proved photographs Ex PW13/1 to Ex PW13/6.
PW14 SI Ved Parkash is the initial IO who on receiving the DD No. 11 A and 12 A, carried out the investigation of the case and reached at the spot i.e H.No. RZ-2/40A, West Sagar Pur, New Delhi and found that the room was bolted from inside. He alongwith other police officials, who accompanied him, peeped from the window, in the said room and saw that a woman was hanging with bedsheet, crossing over the fan. Thereafter, Crime Team was informed and call for Executive Magistrate was sent. After arrival of Crime Team, photographer and Executive Magistrate the bolted door was broken open and the dead body was sent for postmortem examination. The accused Hari Prasad and Rakesh Sharma were arrested.
PW15 Inspector Raj Kumari is the IO of the case, who took investigation of case from SI Ved Prakash and filed the supplementary charge sheet against accused Bimlesh and Beena in the court.
Thereafter, prosecution evidence was closed.
6. In the statement recorded under Section 313 Cr.P.C, all the accused persons denied all the incriminating evidence and circumstances appearing in evidence against them and claimed false implication. However, they opted not to lead evidence in defence.
7. I have heard Sh. Devinder Kumar, Ld. Chief Prosecutor on behalf of the State along with Sh. Ranbir Singh Kundu and Sh. Rajneekant Sharma Advocates on behalf of the complainant and Sh. R.N Sharma Advocate, counsel for the accused persons and also perused the entire evidence as well as the material placed on record.
SC No. 65/2008 Page 6/25 -:7:-8. Ld. defence counsel has submitted that the prosecution has failed to prove its case beyond reasonable doubt. Ld. Defence counsel has further submitted that no case under section 302/34 IPC is made out. There is no eye witness in the present case. Infact, the deceased committed suicide on her own. The allegation of dowry demand is missing in the FIR. As per PW14 SI Ved Parkash, who inspected the spot, after commission of suicide by the deceased Savita, he found the room locked from inside. The said version is corroborated with the statement of PW 11 SI Rajender Singh, PW 12 Addl. SHO Inspector Vijay Chandel, PW4 Sh. Surender Singh, Executive Magistrate, as well as PW2 ASI Rajender. The prosecution has relied upon the aforesaid witnesses. Ld defence counsel has further submitted that once the place of the incident proved to be locked from inside, there was no possibility in the said room to be opened from the outside as such, the possibility of deceased, being murdered by the accused persons, is completely ruled out.
Ld defence counsel has further relied upon the testimony of PW9 Dr. B.N Mishra, who conducted the postmortem examination on the body of the deceased Savita. Ld defence counsel has further submitted that the deceased committed suicide. Ld defence counsel has further submitted that case of the prosecution u/s 302/34 IPC fails.
Ld defence counsel has further pointed out that the case of the prosecution under Section 304-B/34 IPC also fails as there is no proof from the side of the prosecution that the accused persons demanded dowry. Ld defence counsel has further submitted that mere allegation of spending amount of rupees one lac, for construction of the house of the accused persons, is no dowry demand. Ld defence counsel has further submitted that the prosecution has to prove, beyond reasonable doubt that the accused persons made the dowry demand, soon before the death of the SC No. 65/2008 Page 7/25 -:8:- deceased. In the present case, there is no such allegation proved on record that soon before the death of the deceased Savita, the accused persons raised any dowry demand and consequently, she died an unnatural death. Ld defence counsel has further submitted that the allegation made by PW1 Sanjay Sharma, PW3 Devender Kumar, PW5 Pradeep Kumar, PW6 Bohri Lal and PW7 Smt. Raj Kali are self contradictory and the same is not consistent regarding the date, month or year of such demand or the date, month or year of meeting such demand or the source of money from where the alleged demand was fulfilled or to which of the accused, the money was given. Ld. Defence counsel has further submitted that infact, the deceased has committed suicide. Ld. defence counsel has further submitted that this version is corroborated with the statement of PW9 Dr. B.N Mishra, who specifically stated that it was a case of suicide only.
Ld defence counsel has further submitted that so far as the injuries on the person of the deceased are concerned, the same were found to be simple in nature and the same is not connected with the cause of death. PW 9 Dr. B.N Mishra, has explained during his cross-examination that such injuries could be caused to a person, who is trying to hang herself and falls upon some hard substance like bed, chair or floor, prior to completion of complete hanging. Ld defence counsel has further submitted that even if, injuries No. 2 to 7 are attributed to accused Rakesh that he was responsible for having caused those injuries, to the deceased, prior to her committing suicide, in that event a case under section 323 IPC is made out in view of judgment rendered by Hon'ble Apex Court in State of Himachal Pradesh Vs. Nikku Ram, reported in AIR 1996 SC 67.
Ld defence counsel has further submitted that prosecution has miserably failed to prove its case beyond reasonable doubt and as such, all the accused persons be acquitted from the charges framed against them and has relied upon Sarwan Singh Ors Vs. SC No. 65/2008 Page 8/25 -:9:- State of Punjab 2009(2) RCR (Criminal) ; T. Aruntperunjothi Vs. State Through SHO, Pondicherry 2006 (2) JCC 617 ; Bejjanki Kishan Vs State of Andhra Pradesh, 2005 CRI. L.J. 3780 ; Ramanand And Smt. Sarwan Devi Vs. State of Rajasthan 2000 CI L.J. 2522 ; Sunil Bajaj Vs. State of M.P, AIR 2001 SC 3020 ; State Vs. Surender And Anr. 2009 (2) RCR (Criminal) ; G. Venkatachandra Reddy @ Ors. Vs. State of A.P 2001 CrI. L. J 2630 ; Bhakhar Ram & Anr. Vs. State of Rajasthan II (1995) CCR 729 ; Devender Singh Vs. State of Haryana 2006 (13) Scale 375 ; Indra Singh M. Rool Vs. State of Gujarat 1999 (4) Crimes 468 ; Ravindra Pyarelal Biddan And Ors. Vs. State of Maharasthra 1993 CRI L.J 3019 ; Dharam Pal Vs. State of Delhi 1997 (3) CC Cases 1 (H.C) ; Sanjeev Kumar Aggarwal & Ors. Vs. State & Anr. 2007 (4) C.C Cases (H.C) 228 ; Savitri Devi Vs. Ramesh Chand & Ors. 2003 (2) C.C Cases (H.C) 195 : Rajesh Kumar and Anr. Vs. State of Punjab 2006 (1) LRC 66 (P&H) ; Om Parkash Vs. State of Haryana 2004 (3) RCR (Criminal) ; Sushil Kumar Sharma, Vs. Union of India & Ors. 2005 (2) JCC 1193 (S.C) ; Babaji Charan Barik Vs. State II (1994) MC 382 (Orissa H.C) ; State of Himachal Pradesh Vs. Nikku Ram and Ors. (1995) 6 SCC 219 ; Ramesh Chander Sibbal Vs. State 2009 (4) C.C Cases (HC) 257 ; Harjit singh Vs. State of Punjab 2006 (1) JCC 1 ; Sarwan Singh and others Vs. State of Punjab 2009 (2) RCR (Criminal) 649 Punjab and Haryana High Court ; State of Karnataka Vs. Pundalik and others, 1999 CRI L.J 4751; Tirath Kumar @ Raj Rani & Anr. Vs. State of Haryana, 2005 (3) JCC 1740 ; Haladhar Behera Vs. State of Orissa 2008 CRI. L. J 3389 ; State of Punjab Vs. Daljit Singh and others 1999 CRI. L.J 2723 ; Sunil Bajaj Vs. State of M.P AIR 2001 SC 3020; Emperor Vs. Parimal Chatterjee and others AIR 1932 Calcutta SC No. 65/2008 Page 9/25 -:10:- 760; State of Bihar Vs. Ranen Nath and others, AIR 1938 Patna 259 (V 45 C 96) ; Shri Ram Vs. The U.P, Sai Ram and another Vs. State of U.P, AIR 1975 SC, 175 ; Gurdip Kumar and others Vs. the State of Punjab, 1981 CRI L.J NoC 178 ; Brij Lal and Anr. Vs. State 1985, C.C Cases HC 130 ; Gurcharan Singh Vs. State 1983 C.C Cases 350 (HC) ; Ms. Taposhi Chakervarti Vs. State, 2000(2) JCC 466 (Delhi) ; Laxmi & Anr Vs. State 2000 (2) JCC (Delhi) 297 ; Maulaali Yakub Jamadar & Ors. Vs. State of Maharashtra IV (2000) CCR 624 Bombay High Court ; Alka Grewal Vs. State of M.P, 2000 CRI.L.J 672 ; Pallem Deniel Victor @ Victor Hanter and Others Vs. State of A.P 1997 (1) Crimes 499 ; Manish Kumar Sharma Vs. State of Rajasthan, 1995 CRI L.J 3066 ; C. Nehru Baby Vs. State of A.P, 2002(1) C.C Cases (H.C) 300 ; Ahshan Khan Vs. State of Madhya Pradesh, 2002 91) Crimes 117 ; Pradeep S. Ahluwalia Vs. The State, 1999 (2) C.C Cases HC 414 ; K. Ravi Kumar Vs. State and Anr. 2008 (1) Crimes 345 (Mad.) ; Rajkumar and another Vs. State of Karnataka, 2006 (3) Crimes 662 ; Devassia Vs. State of Kerela, 2006 (3) Crimes 664 ; Jugam @ Jugal Ram and Ors. Vs. State of Chhattisgarh , 2006 (2) Crimes 654 ; Rikhee Ram mahilang Vs. State of Chhatisgarh, 2006 (2) Crimes 658 ; Khyaliram and others Vs. State of M.P, 2008 (1) Crimes 283 (M.P) ; Kartar Singh & Ors Vs. Central Bureau of Investigation, 2006 (4) Crimes 498 ; Neeraj Gupta Vs. State, 2006 (4) Crimes 494 ; Chanchal Kumari and others Vs. Union Territory, AIR 1986 Supreme Court 752 ; Devender Singh Vs. State of Haryana, 2007 (1) Crimes 228 (SC); Narender Kumar & Anr Vs. State , Vijay Kumar & Anr, Vs. State , Gyan Prakash Vs. State, Jeevani Devi @ Jamuna Devi Vs. State 2008 (1) JCC 1 ; Ms. Anu Gill Vs. State & Anr. 2002 (1) C.C. Cases (H.C) 150 ; Arvind SC No. 65/2008 Page 10/25 -:11:- Singh Vs. State of Bihar, 2001 (3) C.C Cases SC 12 ; Mrs. Kiran Chipra Vs. The State of union Territory of Chandigarh 2000 (1) C.C.C Cases HC 122 ; Maninder Singh Vs. State of U.T Chandigarh, 200 (1) C.C.Cases HC 332 ; Nanak Chand & Ors Vs. State of Haryana & Anr. 1992 (2) C.C Cases 38 (H.C) ; Harjit Singh Vs. State of Punjab 2006 CRI.L.J 554.
9. On the other hand, the Ld. Chief Prosecutor and counsel for the complainant has submitted that the case falls under Section 302 IPC. Under Section 302 IPC, there is no direct eye witness but there are circumstances to connect the accused persons in the present offence u/s 302 IPC. The first circumstantial evidence is statement of PW1 Sanjay Sharma, regarding telephonic call at 4.00 am in the morning, on 1.10.2006. This fact is mentioned in the FIR Ex PW PW8/A. The second circumstances is the IO ASI Ved Parkash, who visited the spot.
Another circumstance is the conduct of the accused persons. When ASI Ved Paraksh reached at the spot, all the accused persons were found present there. Ld Chief Prosecutor has further submitted that when all the accused persons were present at the house, why the accused persons had not taken the deceased to the hospital. Infact, all the accused persons were waiting for the police to come and when the police reached at the spot, photographs were taken in the hanged position. There is no explanation on the record as to why the husband has not taken the deceased to the hospital, prior to the reaching of the police at the spot. Even, no step has been taken by the accused persons, which indicates that the accused persons have not murdered the deceased.
Ld Chief Prosecutor has further submitted that as per IO ASI Ved Parkash, he reached at the spot at about 11.15 am and thereafter, he informed the crime team. Crime team came and SC No. 65/2008 Page 11/25 -:12:- photographs were taken. Even, if at all, the crime team might have taken 45 minutes to reach at the spot and to take photographs, none of the accused made any effort to take the deceased to the hospital.
Ld Chief Prosecutor has further submitted that the accused persons committed murder of deceased Savita by strangulation and thereafter, the deceased was hanged and this fact is corroborated with the postmortem report Ex PW 9/A. PW9 Dr. B.N Mishra, in his statement has proved this fact, stating that there was a ligature mark deep on the right side of the neck and the back on left side. In the ordinary hanging the deep mark could not have been on the body and it should have been in uniform. But, since there is a deep ligature mark on the right side of the neck, it means that the accused persons firstly, strangulated Savita and after her death, deceased was hanged.
Ld. Chief Prosecutor has further submitted that there is a photograph on record, which shows that the door was bolted from outside. All the photographs on record shows that the door is broken. There is no photograph on the record to show the door in the unbroken condition. It otherwise means that from the broken door the door can be bolted from outside as well as from the inside.
Ld Chief Prosecutor has further submitted that in the present case, hanging is not possible as photograph, Ex PW13/A, shows that the feet of the deceased are touching on the bed and are also bend, and, if the feet are touching on the bed she should not have been died due to hanging, which otherwise means, that she was hanged after committing her murder and she could not have been hanged in this manner, without the other family members cooperation.
Ld Chief Prosecutor has further submitted that PW2 ASI Rajender Singh, during the cross-examination has specifically stated SC No. 65/2008 Page 12/25 -:13:- that, when, he reached at the spot at about 9.20 am, he found accused Rakesh and his father Hari Prasad on the spot. Secondly, as per his statement, the room was broken open, by the public person. He does not know the name of the public persons.
Ld. Chief Prosecutor has further submitted that the postmortem report Ex PW 9/A, shows that deceased was having seven antemortem injuries. There is no explanation on the record to show as to how those injuries were cause to the deceased and further no cross-examination is carried out by Ld defence counsel on this point. The injuries found on the person of the deceased, corroborates the version of PW1 Sanjay Sharma, that, the deceased made a call on 1.10.2006 at about 4.00 am and told that she is apprehending death from the accused persons.
Ld Chief Prosecutor has further submitted that the call, which was made by the deceased to her brother Sanjay, (PW1), at about 4.00 am on 1.10.2006, be treated as dying declaration of the deceased Savita under section 32 Evidence Act. The SDM also corroborates the version that seven injuries were found to be suspicious.
Ld Chief Prosecutor has further submitted that the postmortem report Ex PW9/A shows that the postmortem examination was conducted on 11.30 am, on 1.10.2006 but lateron, the change of the timing from 11.30 am to 3.30 pm, on 2.10.2006 is an attempt to help the accused persons. The accused persons have committed the murder of deceased Savita in between 5.00 to 6.00 am on 1.10.2006. The time 3.30 pm is changed to help the accused persons to show that Savita was alive till 10.30 am. So the prosecution has proved that it was the accused persons, who in furtherance of their common intention, committed murder of deceased Savita on 1.10.2006. The deceased married with accused Rakesh on 12.12.1999 and the deceased died within the seven years of her marriage.
SC No. 65/2008 Page 13/25 -:14:-Ld Chief Prosecutor has further submitted that despite receiving the cash amount of rupees one lac, the accused persons have also demanded a car, when, brother of the deceased purchased a car. The demanding of car from the side of the accused persons, is demand of dowry, within the meaning of Section 3 of Dowry Prohibition Act. It is further argued that the antemortem injuries found on the person of the deceased Savita, is cruelty, soon before her death and the injuries found on the body of the deceased were not simple injuries, but grievous injuries.
Ld Chief Prosecutor has further submitted that as per the (Modi's) Medical Jurisprudence there is a difference between hanging and strangulation. In hanging neck will be stretched and elongated. In case of hanging asphyxia can be caused only when cartilages and other neck bones are broken. In the present case, cartilages are intact. In the present case the asphyxia is due to strangulation and not due to hanging and has relied upon Satya Narayan Tiwari @ Jolly & Anr. Vs. State of U.P, 2010 V AD (CRI) (SC) 417.
10. Thus, from the above submission of the respective parties, following points arises for determination in this case:
(i) Whether the prosecution has been able to prove its case against all the four accused persons beyond reasonable doubt, if so, its effect?
(ii) Final order.
11. For the reasons to be recorded hereinafter, while discussing the points for determination, my findings are as under:
Point No.1: Yes.
Final Order: Accused Rakesh Sharma is convicted under Section 498A and 306 IPC and accused Hari Prasad, Bimlesh @ Bimla and Beena are acquitted as per the operative part of the judgment.
SC No. 65/2008 Page 14/25 -:15:-REASONS FOR FINDINGS
12. The case of the prosecution is that the deceased Savita got married with accused Rakesh Sharma, on 12.12.1999, as per Hindu Rites and Customs. Soon after the marriage, the accused Rakesh Sharma-husband, accused Hari Prasad-father in law, accused Bimlesh-mother in Law and accused Beena-sister in law of the deceased, in furtherance of their common intention, subjected deceased Savita to cruelty, harassment and given her beatings on the intervening night of 30.9.2006 and 1.10.2006 at H.No. RZ-2/40A, West Sagar Pur, New Delhi, as a result of which all the accused persons committed murder/dowry death.
13. The case of the prosecution is based on the circumstantial evidence and there is no eye witness to the incident, in the present case.
(i) OCULAR EVIDENCE OF PW1 SANJAY SHARMA PW1 Sanjay Sharma is the real brother of deceased Savita, who, on the date of incident, was residing in village Garhi, Meerut Road, District Ghaziabad along with PW3 Devender Kumar and who received telephonic call from his sister Savita at about 4.00 am on 1.10.2006, stating therein that she has been severely beaten by accused Rakesh and she will be killed and she should be taken back to her parental house. This fact was disclosed by PW1 Sanjay Sharma before the Executive Magistrate Sh. Surender Singh, who recorded his statement Ex PW1/A and made endorsement Ex PW4/D and on the basis of said statement, present FIR Ex PW8/A was got recorded on 1.10.2006.
PW1 Sanjay Sharma, during his examination in chief has specifically stated that on 1.10.2006, at about 4.00 am, a call was SC No. 65/2008 Page 15/25 -:16:- received by him from his deceased Sister Savita informing him that she has been beaten severely by Rakesh and she will be killed and subsequently, at about 11.00 am, he received a call from Rakesh that Savita died and collect the body.
His statement, that he has received a telephonic call at about 4.00 am, on 1.10.2006, is corroborated with the statement of PW3 Devender, PW5 Pradeep & PW7 Smt. Rajkali.
The statement of PW1 Sanjay Sharma that deceased Savita has been severely beaten by accused Rakesh Sharma, is supported with chain of events i.e the inquest proceedings Ex PW4/A of the SDM, who visited the spot, soon after the incident and inspected the dead body and reported that blue marks near left eye, both hands upto wrist on both the feet upto ankle were found on the dead body.
He further reported, that, it apparently appears to be beaten by punching and he sent the dead body for conducting postmortem examination.
The said version of PW1 Sanjay Sharma is further corroborated with the postmortem report Ex PW9/A wherein, seven antemortem injuries were found present on the body of the deceased Savita.
Further, postmortem report Ex PW9/A shows that physical assault prior to hanging cannot be ruled out.
The seven antemortem external injuries found are as under :-
1. Ligature mark was present on the anterior and right lateral aspect of the neck at the level of thyroid cartilage. It was placed diffused in pattern with more marked ( deep) on the right side of the neck and the back on left side. Total length measured was 29 cm in length and 2-3 cm in width with hard and leathery in-consistency with dark brown in colour.
2. One swelling with bruise of size 5 x 3 cm present on left eyebrow with reveling haematoma on section of said bruise.
3. One bruise of size 3 x 2 cm present on the lateral aspect of the left eyebrow.SC No. 65/2008 Page 16/25 -:17:-
4. Both upper and lower lips found bruised.
5. One bruise of size 2 x 1.5 cm present on the right shoulder.
6. One bruise (haemotoma) of size 5 x 3 cm present on the right forearm.
7. Multiple abrasion cum bruise present on the back, left forearm and right wrist.
Therefore, the statement of PW1 Sanjay Sharma inspires confidence and he is a trustworthy witness in the present case.
(ii) PLACE OF INCIDENT AND ITS OCCUPANT PW1 Sanjay Sharma, in his statement, has specifically stated that on 1.10.2006, at about 11.00 am, on receiving a telephonic call from accused Rakesh that Savita died and collect her body, he went to Sagarpur i.e matrimonial house of deceased Savita situated at RZ-2/40A, West Sagarpur, New Delhi.
The statement of PW1 Sanjay Sharma, is corroborated with the statement of PW3 Devender Kumar, who during the cross- examination has admitted that his sister Savita was residing at RZ-2/40A, West Sagarpur, New Delhi, on the ground floor, which is her matrimonial house.
Further, IO SI Ved Parkash, soon after the incident, visited the spot and prepared site plan Ex PW14/C. Ex PW14/C, also shows the place of incident as RZ-2/40A, West Sagarpur, New Delhi. The arrest memo Ex PW2/B of accused Rakesh also shows his arrest from the matrimonial house of deceased Savita i.e RZ-2/40A, West Sagarpur, New Delhi.
The accused Rakesh, during the cross-examination did not put any suggestion to PW SI Ved Parkash that at the time of incident, he was not residing at the given address i.e RZ-2/40A, West Sagarpur, New Delhi. The accused Rakesh also did not put any suggestion to PW1 Sanjay Sharma and PW3 Devender Kumar, that accused Rakesh was not residing at RZ-2/40A, West Sagarpur, New Delhi, on the date of incident.
SC No. 65/2008 Page 17/25 -:18:-PW1 Sanjay Sharma, during the cross-examination has admitted that accused Hari Prasad Sharma, was living with his wife Bimlesh separately from the accused Rakesh Sharma, in different house, however, both the houses are located in the same locality. He has further admitted that accused Hari Prasad Sharma alongwith his wife had started living separately from accused Rakesh, after 2-3 years of marriage, due to their differences with accused Rakesh.
PW3 Devender Kumar, during the cross-examination has admitted that accused Beena is married in Village Mavai, Ghaziabad, U.P and she is residing at her matrimonial house, since the day of her marriage, which was taken place about three years back.
PW6 Bhori Lal, father of the deceased Savita, too, has admitted that the accused Rakesh was residing separately with his deceased daughter Savita.
The aforesaid evidence on record, has proved that accused Rakesh, on the date of incident, was residing separately with his deceased wife Savita at RZ-2/40A, West Sagarpur, New Delhi, as shown in site plan Ex PW 14/C. However, the prosecution failed to prove that remaining accused persons namely Hari Prasad, Bimlesh and Beena were residing with accused Rakesh, at ground floor of H.No. RZ-2/40A, West Sagarpur, New Delhi.
(iii) THE ROOM, WHERE DEAD BODY WAS HANGING.
PW14 SI Ved Parkash, initial IO, on receiving the DD No. 11A Ex PW14/A, and DD No. 12A Ex PW14/B, along with HC Rajinder PW2, reached to the spot i.e matrimonial house of deceased, where he found one room bolted from inside and, then, they peeped from the window of that room and saw that one woman (i.e deceased Savita) was hanging with the bedsheet crossing over the fan. PW14 SI Ved Parkash and PW2 HC Rajinder were followed by Additional SHO Inspector Vijay Chandel. Thereafter, the spot was photograph and SC No. 65/2008 Page 18/25 -:19:- after that the bolted door was got broken.
Similar is the statement given by PW2 HC Rajinder Singh and PW12 Inspector Vijay Chandel, the then, Additional SHO.
In their statement PW14 SI Ved Parkash, who reached first at the spot, along with PW2 HC Rajinder, followed by PW12 Inspector Vijay Chanded, all of them categorically stated that the room in which the deceased was hanging was bolted from inside and the door of the said room was opened in their presence. The DD No. 11A Ex PW14/A was received at 11.00 am and DD No. 12A Ex PW14/B was received at 11.20 am, on 1.10.2006 at police station Dabri, which means PW14 SI Ved Parkash, PW2 HC Rajinder and PW12 Inspector Vijay Chandel, reached at the spot subsequent to 11.20 am on 1.10.2006 and dead body was hanging till 11.20 am in the said room, the matrimonial house of the deceased i.e RZ2/40A, West Sagarpur, New Delhi.
Statement of PW14 SI Ved Parkash, PW2 HC Rajinder and PW12 Inspector Vijay Chandel has not been controverted during cross-examination by the accused persons and their statement remains un-rebutted on record.
Further, PW1 Sanjay Sharma, during the cross-
examination has clarified that he has seen the room where his sister Savita committed suicide. There is only one door in the said room. The said room is situated on the ground floor. There is no other door or space except the said door, to come out of the said room.
PW13 Anand Swaroop, the photographer has proved photographs Ex PW13/1 to Ex PW13/6 of the place of incident. Photograph Ex PW13/6 shows that the window of the said room is open, which is affixed with an iron grill and door of the said room is bolted from inside and part of the wooden door is broken to open the door from inside by putting the hand.
SC No. 65/2008 Page 19/25 -:20:-Thus, as per the evidence on record, the dead body of the deceased was found hanging in a room at ground floor of H. No. RZ- 2/40A, West Sagar Pur, New Delhi i.e the matrimonial house of the deceased, till 11.20 am on 1.10.2006 and said room was bolted from inside and same was opened in presence of PW14 SI Ved Parkash, PW2 HC Rajinder and PW12 Inspector Vijay Chandel.
(iv) DOWRY DEMAND The prosecution has alleged that the accused persons demanded sum of rupees one lac at the time of construction of their house. The accused Rakesh raised demand of a maruti car at the time, when, PW3 Devender Kumar purchased a car for himself. The deceased Savita was subjected to cruelty, soon after the marriage.
PW1 Sanjay Sharma, during his cross-examination, has stated that demand of rupees one lac was made by accused Rakesh on telephone after about three years of marriage and out of rupees one lac, he paid rupees fifty thousand to accused Rakesh. PW3 Devender Kumar, in his statement has stated that at the time of purchase of a car, inlaws of his deceased sister Savita demanded a car for themselves. During the cross-examination, he clarified that he had purchased a car in the year 2005 and accused Rakesh had constructed his house in the year 2005 and amount of rupees fifty thousand was paid by his younger brother Sanjay Sharma.
PW5 Pradeep Kumar, in his statement has stated that six months prior to the incident, the accused persons demanded rupees one lac for construction of their house. His deceased sister was cruelly treated at her matrimonial house on 7.11.2001, when she was suffering from diarrhoea and accused Rakesh was called at the hospital and thereafter, the matter was patched up.
As per PW1, demand of rupees one lac was raised by accused Rakesh, after three years of the marriage, the date of SC No. 65/2008 Page 20/25 -:21:- marriage is 12.12.1999, which means, the demand of dowry was raised in the year 2002 and as per version of PW1, amount of rupees fifty thousand was paid by him to accused Rakesh in the year 2003. PW3 Devender Kumar has purchased car in the year 2005 and demand of car is made in the year 2005. The allegation of the cruelty started from the year 2001 onwards.
There is no specific allegation against the accused Hari Parsad, Bimlesh and Beena for raising demand of dowry i.e rupees one lac and a maruti car. Moreover, it is not out of place to mention here that PW1 Sanjay Sharma, has specifically admitted that accused Hari Prasad Sharma alongwith his wife Bimlesh, started living separately from accused Rakesh, after 2-3 years of marriage, due to their differences with accused Rakesh.
14. The contention of Ld. Chief Prosecutor that the present case falls under Section 302 IPC, on the basis of the circumstantial evidence, does not seems to be correct.
The place of incident, as alleged by the prosecution is a room at ground floor of H.No. RZ-2/40A, West Sagarpur, New Delhi, as shown in site plan Ex PW 14/C. As per the prosecution version, the dead body of the deceased Savita was hanging, prior to reaching of PW14 SI Ved Parkash, PW2 HC Rajinder and PW12 Inspector Vijay Chandel. As per own version of the prosecution, the room in which, the dead body was hanging was bolted from inside and the same was got opened in the presence of aforesaid witnesses i.e PW14 SI Ved Parkash, PW2 HC Rajinder and PW12 Inspector Vijay Chandel and thereafter, the dead body was sent for conducting postmortem examination. The statement of PW14 SI Ved Parkash, PW2 HC Rajinder and PW12 Inspector Vijay Chandel remains un-rebutted on the record as no cross-examination is done by he accused persons on this account.
SC No. 65/2008 Page 21/25 -:22:-On the other hand, PW1 Sanjay Sharma, during his cross- examination has specifically admitted that the said room was having only one door. There is no other door or space, except the said door to come out of the said room. The photograph Ex PW13/6 also confirms that room was bolted from inside and window of the said room is affixed with an iron grill and there is no other space to come out of the said room. Since, the room was bolted from inside and the dead body was hanging inside the room, there was no occasion for the accused persons to enter into the said room and commit murder of deceased Savita. In these circumstances, committing murder of deceased Savita, by the accused persons is completely ruled out.
15. In the case of Kaliyaperumal and Anr. Vs. State of Tamil Nadu reported at 2003 (7) JT (S.C) 392, the Apex Court has observed as under : -
A conjoint reading of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to 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 then in normal circumstances. The expression soon before is very relevant where Section 113 B of the Evidence Act and Section 304 B Indian Penal code 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 strait-jacket 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 for raising a presumption under Section 113 B of the Evidence Act. The expression soon before SC No. 65/2008 Page 22/25 -:23:- her death used in the substantive Sections 304 B Indian Penal Code 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 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.
In the present case, as per PW1 Sanjay Sharma, the demand of rupees one lac was alleged to have made by accused Rakesh Sharma, while he was constructing the house and amount of rupees fifty thousand is alleged to have paid by PW1 Sanjay Sharma. As per PW3 Devender Kumar, the construction of house was done by accused Rakesh Sharma in the year 2005 and PW Devender Kumar, too, had, purchased a car in the year 2005. Incident, in the present case, has taken place on 1.10.2006. It means that there is a gap of ten months between the alleged demand of dowry and unnatural death of Savita, which does not fulfills the essential ingredients of Section 304-B IPC. However, there is sufficient evidence against accused Rakesh under Section 306 IPC on the following grounds:-
(1) The marriage between accused Rakesh and deceased Savita has taken place on 12.12.1999.
(2) The accused Rakesh after 2-3 years of the marriage, got separated from his parents and started living separately at RZ-2/40A, West Sagarpur, New Delhi.SC No. 65/2008 Page 23/25 -:24:-
(3) The allegation of demand of dowry is specifically made against accused Rakesh.
(4) As per statement of PW1 Sanjay Sharma, on the basis of which FIR Ex PW8/A was registered, there is allegation that deceased Savita made a telephonic call to his brother Devinder at about 4.00 am on 1.10.2006, which was picked up by another brother Sanjay Sharma PW1, who was residing with PW3 at Ghaziabad. The deceased Savita had telephonically communicated that the accused Rakesh has given beatings on her person and he will kill her and take her to her parental house.
The said version of giving beating by accused Rakesh on the person of deceased Savita, is confirmed in the inquest proceedings Ex PW 4/A, prepared by the Executive Magistrate and further confirmed in the postmortem report Ex PW9/A wherein, the doctor opined that physical assault prior to hanging cannot be ruled out.
(5) The seven injuries found on the dead body of deceased Savita are antemortem in nature and same has not been denied by the accused, during the cross-examination.
(6) The accused during the cross-examination, did not put any suggestion or explanation to the initial IO SI Ved Parkash PW14, Inspector Vijay Chandel PW12 and Inspector Raj Kumari PW15, as to why deceased Savita has committed suicide.
(7) Further, the accused Rakesh during the cross- examination, to IO SI Ved Parkash, who arrested him, from the matrimonial house of the deceased, soon after the incident, did not put any suggestion that he was not present at the ground floor of the matrimonial house i.e H. No. RZ 2/40A, West Sagarpur, New Delhi, at about 4.00 am on 1.10.2006, when deceased Savita made a telephonic call to his brother Devinder Kumar PW3, which was picked up by Sanjay PW1. The accused has not given any explanation in his statement u/s 313 Cr.P.C, too.
SC No. 65/2008 Page 24/25 -:25:-16. The following seven grounds, discussed above, indicates that accused Rakesh has given mercilessly beatings to deceased Savita at her matrimonial house i.e ground floor of H.No. RZ-2/40A, West Sagarpur, New Delhi, prior to her making telephonic call at about 4.00 am on 1.10.2006, to her brother Devinder Kumar PW3 at Ghaziabad, which was picked up by Sanjay Sharma PW1.
After giving mercilessly beatings to Savita, the accused Rakesh, in order to facilitate the commission, intentionally left deceased Savita in the said room alone, in adverse circumstances, without providing her any medical aid or taking her to the hospital, to achieve unnatural death by his own silence. Thus, accused Rakesh forced and facilitated deceased Savita for committing unnatural death, as a result of which, she died on 1.10.2006. As such, I convict accused Rakesh under Section 498A/306 IPC in view of the judgment dated 12.12.2008 in Crl. Appeal No. 329-30/2006 titled as Rafiq- ur-Rehman and Others Vs. State. The Judgment in case State of Himachal Pradesh Vs. Nikku Ram, reported in AIR 1996 SC 67 is of no help to the accused as the same is not applicable in the present facts and circumstances.
There is no specific and sufficient evidence against accused Hari Prasad, Bimlesh and Beena, to bring home conviction u nder Section 498A and 306 IPC, hence, they are acquitted accordingly.
Announced in open court on 14.1.2011.
(I.S Mehta) DJ-1X-cum-ASJ I/C Dwarka Courts/Delhi.
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