Delhi District Court
State vs . Birju Kumar Paswan, on 29 July, 2011
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 43/11.
Unique Case ID No.02405R0228462010.
State Vs. Birju Kumar Paswan,
S/o Sh. Shankar Paswan,
R/o Jhuggi No.CN156,
Gas Godown, Todapur,
Inderpui,
New Delhi.
Date of Institution : 06.7.2010.
FIR No.50 dated 08.4.2010.
U/s. 302/498A/304B IPC.
P.S. Inderpuri.
Date of reserving judgment/Order : 23.7.2011.
Date of pronouncement : 29.7.2011.
JUDGMENT
1. On the intervening night between 05.4.2010 and 06.4.2010 at about 12.05 a.m., the abovenamed accused brought his SC No.43/11. Page 1 of 22 wife Neelu to RML Hospital, New Delhi, in unconscious state. She was declared dead by the doctor, who examined her in the hospital. The accused is alleged to have murdered her and has been facing trial for the offences punishable u/s.498A IPC and 304B IPC as well as u/s.302 IPC.
2. It is not in dispute that the accused had solemnised the marriage with the deceased in May, 2009 and after marriage, the accused brought the deceased to Delhi. Both of them started residing with maternal grandmother of the accused in Jhuggi bearing no.CN156, Gas Godown, Inderpuri, New Delhi. Both of them have their native place in District Muzaffarpur, Bihar, and the marriage was also solemonised in Bihar.
3. After committal of this case to this court, following Charge was framed against the accused on 20.9.2010 :
"That on 06.4.2010 death of Neelu (wife of Birju Kumar Paswan) was caused by bodily injury or otherwise than under normal circumstances, within seven years of her marriage and soon before her death, she was subjected to cruelty or harassment by you for, or in connection with, SC No.43/11. Page 2 of 22 any demand for one Gold chain and Colour T.V. thereby you committed an offence punishable u/s.304B IPC.
In alternative Charge on the aforesaid date, month and year within jurisdiction of P.S. Inderpuri, you intentionally killed your wife namely Neelu and thus, committed an offence punishable u/s.302 IPC within my cognizance.
That on or before 06.04.10 you being the husband of deceased Neelu, subjected her to cruelty for demand of one Gold chain and Colour T.V thereby committed an offence punishable u/s.498A IPC and within my cognizance."
4. The prosecution has examined 24 witnesses to prove the Charge against the accused. Statement of the accused was recorded on 21.5.2011 wherein he stated that he has been implicated falsely in this case and that he is innocent. However, he chose not to lead any evidence in defence.
5. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the material on record.
SC No.43/11. Page 3 of 22
6. The Ld. APP submitted that the statement of PW3 (mother of the deceased), PW4 (brother of the deceased) and PW13, the doctor who conducted postmortem of the dead body coupled with recovery of ligature material i.e. a piece of wire at the instance of the accused clearly establishes that the accused strangulated his wife to death and therefore, he is liable to be convicted u/s.302 IPC. He would also submit that it has further been proved that the accused used to harass the deceased in relation to dowry demands and therefore, he is liable to be convicted u/s.498A IPC also.
7. On the other hand, Ld. Counsel for the accused submitted that the prosecution has not lead any direct evidence establishing the demand of dowry from the accused or his mother. According to him, there are material contradictions in the testimonies of PW3 and PW4, which makes them unreliable witnesses. He further submitted that PW5, who is the maternal uncle of the deceased and PW6, PW7, PW8, PW9 and PW10, who all are the neighbours of the accused, have not supported the case of the prosecution at all. He prayed for acquittal of the accused.
SC No.43/11. Page 4 of 22
8. It is the case of the prosecution itself that the accused had brought the deceased to RML Hospital himself on the night intervening between 05.4.10 and 06.4.10 at about 12 midnight when was declared brought dead. As per the further prosecution case, the Duty Constable at RML Hospital passed on said information to the police station Inderpuri, where the same was recorded as DD No.4A, and the same was intimated to ASI Mahavir Singh (PW19). ASI Mahavir Singh reached RML Hospital and collected MLC of the deceased. He informed the concerned SDM and also telephoned the family members of the deceased. He gave directions for preservation of the dead body. On 07.4.10 the brother of the deceased Sh. Anil Paswan reached Delhi. ASI Mahavir Singh produced him before the SDM, Delhi Cantt., who recorded his statement. He also identified the dead body of his sister. Pursuant to the said statement of Anil Paswan, FIR No.50/10 was registered in P.S. Inderpuri on 08.4.2010 u/s. 304B/498A IPC. After receipt of postmortem report of the deceased on 21.4.2010, Section 302 IPC was added in the FIR.
9. In the aforesaid statement recorded by the SDM, which has been proved on record as Ex.PW1/A, Sh. Anil Paswan has stated that the deceased used to tell him that the maternal grandmother of the SC No.43/11. Page 5 of 22 accused often remarked that she is the daughter of a beggar family and has not brought anything in dowry. He also stated that they often used to receive telephonic calls from Rajesh Paswan, brotherinlaw (Jija) of the accused demanding a golden chain and a colour T.V for the accused. His sister also had told him to give a golden chain, so that she is not harassed by her inlaws. He further stated that on 06.4.10 he received a call from P.S. Inderpuri regarding the death of her sister and immediately left for Delhi. He met the accused in P.S. Inderpuri. Accused told him that on 05.4.10 at about 11 - 11.30 p.m. the deceased was watching T.V and when at 12 midnight accused tried to wake her up she did not respond and he thereafter brought her to RML Hospital alongwith his family members.
10. Appearing for the prosecution as PW4 Anil Paswan has reiterated the aforesaid statement before the court also. In answer to a leading question put to him by Ld. APP, he admitted that his sister i.e. the deceased used to tell him if he did not fulfill the demand of golden chain and colour TV, her inlaws would continue to harass her. In his cross examination, he admitted that no demand of any type was made by the accused to him. He volunteered that the brotherinlaw (Jija) of the accused demanded a golden chain and a colour TV. He further SC No.43/11. Page 6 of 22 stated that the deceased had made a telephonic call to him after Holi and stated that she was being harassed by the accused. He went to Sarpanch of the village with the complaint against the accused but the Sarpanch suggested him to keep low profile if his sister is living happily in her matrimonial home. He also deposed that thereafter when he made inquiries from her sister, she told him that she is living happily with the accused.
11. Smt. Jharokha Devi, mother of the deceased, has been examined as PW3. She deposed that she had spent Rs.65,000/ in the marriage of the deceased with the accused, which amount she had arranged after selling her agricultural land. She further stated that after the marriage, the accused never allowed the deceased to come to her house. According to her, the accused took the deceased to Delhi and on the occasion of Diwali brought her back to his native place. After Diwali, she was brought to her house where the deceased stayed till Holi of the next year i.e. year 2010 and on the day of Holi, accused alongwith four persons came and took the deceased alongwith him. After 4/5 days of Holi, the accused again took the deceased to Delhi. Ten days thereafter she made a telephonic call to the accused and talked to her daughter, who told her that she is fine. Again 10 days SC No.43/11. Page 7 of 22 after she called accused and asked him to allow him to talk to the deceased but the accused told her that she would throw the deceased. The accused, this time, did not allow her to talk to the deceased. She also stated that on 04/05.4.10 she received a telephonic call from the deceased in the morning at 7 a.m., told her that she would call again in the night, but she did not do so. In the same night at about 2/2.30 p.m. Her son received an information from the police station regarding the death of Neelu. She also stated that accused did not allow the deceased to appear in matriculation examination. To a leading question put to her by Ld. APP, she admitted that the accused demanded golden chain, one colour TV and the cycle from her in the marriage. In the cross examination, she stated that she talked to the deceased once in a week on phone and the deceased used to complain against her inlaws including the accused that they were demanding dowry, however, she did not lodge any complaint with the police in this regard. She also stated that during stay at her house in Bihar, deceased used to complain against her husband and inlaws that they used to say "Jo Samaan Dahej Me Diya Hai, Usme Thokar Marte Hai". She was confronted with her statement u/s.161 Cr.PC Ex.PW3/DA wherein it is not recorded so. Therefore, this seems to be a clear improvement upon her earlier statement.
SC No.43/11. Page 8 of 22
12. PW5 is the maternal uncle of the deceased. He had identified the dead body of the deceased in Safdarjung Hospital vide memo Ex.PW1/E. In his testimony, he stated that the accused used to demand Rs.21,000/, one colour TV and one golden chain. In the cross examination, he stated that he does not remember the date when the accused made the aforesaid demand. He added that the demand was raised by the accused at the house of the deceased, but at the same time, he further stated that accused was not present in the house at the time when the demand was raised. He further stated that they did not make any complaint regarding dowry demands to any concerned authority as everything was alright at that time. He stated that he met the deceased only once after her marriage, but at that time she did not make any complaint regarding any cruelty inflicted upon her or dowry demands made to her.
13. The scrutiny of the testimonies of aforesaid material witnesses of the prosecution i.e. PW3, PW4 and PW5 and from perusal of the statement Ex.PW1/A of PW4, which forms the basis of the FIR in this case, it is revealed that there was no direct demand of dowry from the accused either to the deceased or to her mother. PW3 SC No.43/11. Page 9 of 22 and PW4 have attributed the dowry demands to the brotherinlaw of the accused, whereas PW5 seems to be a tutored witness in this regard and he even has deposed that accused was not present in the house when the dowry demands were raised. The Ld. APP lead PW4 to admit that the deceased used to tell him if he did not fulfill the demand of golden chain and colour TV, her inlaws would continue to harass her. However, the witness nowhere has mentioned the particular occasion or a specific date when such demands were made to the deceased and she apprised him of such a demand. It is also nowhere disclosed as to who amongst her inlaws were demanding these articles from the deceased. The name of the accused does not figure in the deposition of the PW4 before the Court or in his statement Ex.PW1/A.
14. Similarly, Ld. APP lead PW3 to admit that the accused demanded golden chain, one colour TV and the cycle from her in marriage. She does not mention anywhere in her testimony when was this demand made by the accused, whether before marriage or at the time of marriage or any time after the marriage.
15. Therefore, the prosecution as utterly failed to prove that SC No.43/11. Page 10 of 22 accused used to make dowry demands to the deceased or her mother or that the deceased used to be harassed in relation to dowry demand. The Charge u/s.304B IPC against the accused, thus, fails. Though PW3 and PW4 have mentioned in their respective depositions that the deceased had told them that she is being harassed by her inlaws yet it has nowhere been explained who particularly used to harass her and in what manner. It seems to be a vague and omnibus allegation lacking in material particulars. The exact nature of harassment meted out to the deceased or the cruelty inflicted upon her has nowhere been mentioned either by PW3 and PW4. They nowhere say that whether the deceased was beaten or abused or kept without food or thrown out of the matrimonial house etc. etc. It appears that PW3 was in regular touch with her daughter i.e. the deceased right since after her death and despite that she has not testified about the exact nature of harassment and cruelty meted out to the deceased in her matrimonial house. There is just one line statement in the deposition of PW3 that the deceased was not allowed to appear in a matriculation examination. This, in my opinion, does not amount to either harassment or cruelty unless it is shown that the deceased belong to highly educated family and was herself keen to pursue her studies. That having not been done, I am constrained to take the contrary view. SC No.43/11. Page 11 of 22
16. In my opinion, the Charge u/s.498A IPC also fails against the accused.
17. This takes me to the another important question whether the death of deceased Neelu was caused by the accused.
18. PW6, PW7, PW8 and PW9 are the neighbours of the accused. All of them have turned hostile and have not supported the prosecution case. PW7, however, stated that he woke up at 10 p.m. on that night (he did not remember the exact date) on hearing noise. He reached the house of accused and found many persons gathered there. He alongwith the accused and his family members took the deceased to the hospital in a TSR, where she was declared brought dead.
19. PW11 is also a neighbour of the accused. He stated that on 05.4.10 at about 11 p.m. when he was present inside his house alongwith his mother and brother, he heard the cries of accused, he immediately came out of his house and went to the house of accused where he found the wife of the accused namely Neelu lying unconscious on the bed. He alongwith the accused and other SC No.43/11. Page 12 of 22 neighbours took the deceased to RML Hospital in a TSR where she was declared brought dead.
20. According to PW13, the doctor who conducted postmortem examination of the dead body following external injuries were found :
Ligature mark over upper part of the neck measuring 15 cm in length, 0.25 cm in width located 6.5 cm below chin, 3 cm below right ear and 3.5 cm below left ear. On deeper dissection of the neck there was slight extravasation of blood under the skin and muscle.
21. He opined the cause of death to be Asphyxia caused by application of ligature around the neck.
22. On 16.7.2010 a blue colour electric wire recovered at the instance of the accused pursuant to his disclosure statement was shown to this witness for subsequent opinion and he opined that the possibility of ligature mark mentioned in the postmortem report having been caused by the said wire cannot be ruled out. He proved his subsequent opinion as Ex.PW13/B. In the cross examination, he SC No.43/11. Page 13 of 22 stated that the ligature mark is possible in cases of both hanging and strangulation. There was no other external injury on the body of the deceased. He stated that he is not sure whether the death was caused with the help of said wire or not.
23. According to IO Inspector Jagpal Singh, PW24, the accused was arrested from his jhuggi on 09.1.2010 at 6 p.m. He was arrested vide arrest memo Ex.PW12/B. He further stated that after receipt of postmortem report of the deceased on 21.4.2010. He took police remand of the accused for two days from the concerned Magistrate. During that period, the accused was inflicted and the accused made a voluntary disclosure statement dated 22.4.10 which he proved as Ex.PW21/C. He stated that the accused disclosed that he can get recover the piece of wire which he used in committing the murder of his wife. According to him, the accused got recovered one piece of wire from the roof of his house, which was taken into possession vide seizure memo Ex.PW21/B. He identified the said piece of wire when shown to him at the time of deposition. I do not find any noteworthy cross examination of this witness on his aforesaid deposition. A suggestion was given to him that piece of wire Ex.PW24/P1 is not the same wire with which the death of the SC No.43/11. Page 14 of 22 deceased was caused, which was denied by him. It was also suggested to him that she had hanged herself with the help of a different piece of wire which also he denied. He also denied the suggestion that piece of wire Ex.PW21/P1 has been falsely planted upon the accused.
24. PW21 who was present with PW22 when the accused made the disclosure statement and got the electric wire recovered also deposed on the same lines regarding the said disclosure statement and the subsequent recovery of electric wire. He corroborated the testimonies of PW22. The disclosure statement as well as seizure memo in respect of the electric wire bear his signature also. In the cross examination, he deposed that they reached the house of accused at about 10 a.m. According to him, IO had requested some public persons including ladies to join the investigation but none agreed, however, the IO did not give any notice to any of them. He further stated that the piece of wire was collected by the IO from the roof of the jhuggi by himself. They had remained at the jhuggi with the accused for about one hour. He denied all other suggestions given to him by the Ld. Counsel for the accused.
SC No.43/11. Page 15 of 22
25. As would be noticed that it is the contention of the accused himself that he removed the deceased to the hospital on the fateful night. PW7 and PW11 also have deposed that they accompanied the accused to hospital alongwith deceased Neelu, who was unconscious. PW14, who examined the deceased when she was brought to RML Hospital by the accused, has proved the MLC of the deceased as Ex.PW14/A. The MLC shows that the deceased was brought to the hospital by her husband i.e. accused at 12.05 a.m. in the night. This establishes that it was only the accused, who was in the company of the deceased immediately before her death. Therefore, it was for the accused to explain the death of his wife. I am conscious about the statutory right of an accused in a criminal case to maintain silence and his silence cannot be taken to be an admission of guilt, but this legal doctrine does not apply to the cases where the deceased is last seen with the accused and the prosecution has been able to establish that it was only the accused, who was in the company of the deceased immediately before his/her death. In such a situation, it is for the accused to explain the death of the deceased and he cannot take refuge in the aforesaid legal doctrine.
26. In the present case, the accused nowhere mentioned even SC No.43/11. Page 16 of 22 in his statement u/s.313 Cr.PC about the circumstances in which the deceased died. He even does not say that the deceased committed suicide either in his presence or in his absence. He does not say how did he became aware about Neelu becoming unconscious. He has maintained an eerie silence about what took place between himself and the deceased during that fateful night.
27. It may be noted here that PW4 in his statement recorded by the SDM Ex.PW1/A has stated that when he met the accused in police station Inderpuri, the accused told him that the deceased was watching TV on the night of 5th April, 2010 at about 11/12.30 p.m. and he tried to wake her up at about 12 midnight but she did not respond and thereafter, he alongwith her family members took her to RML Hospital, where she was declared brought dead. This statement has been proved on record both by the SDM appearing as PW1 as well as by PW4. Both these witnesses have not been cross examined at all on the aforesaid portion of this statement. Even no suggestion has been given to either of these two witnesses that accused had never stated so to PW4 and that it is apparently false. This part of the statement of PW4 is, therefore, taken to be admitted as true and correct by the accused. As per this version of the accused, it appears that the SC No.43/11. Page 17 of 22 deceased died a natural death but this is contrary to the findings contained in the postmortem report Ex.PW13/A which shows that a ligature mark found around the neck of the deceased meaning thereby that she was killed by strangulation. PW13 has also opined the cause of death to be asphyxia caused by application of ligature around the neck. Therefore, it is certainly not a natural death.
28. PW21 and PW24, as mentioned herein above, have successfully proved that the accused got recovered a blue colour electric wire from the roof of his jhuggi pursuant to his disclosure statement. Therefore, that portion of his disclosure statement becomes relevant and admissible in evidence. The recovery of said wire can, otherwise also, be not doubted as it was recovered from the roof of jhuggi, where accused was living with the deceased and not from an open place easily accessible to all. This blue colour wire was shown to PW13, who had conducted the postmortem report and he opined that the ligature mark is possible by the said piece of wire. It, therefore, gets established that the death of the deceased was caused by application of the said electric wire as a ligature around her neck.
29. The aforesaid facts proved on record lead to only one SC No.43/11. Page 18 of 22 inference that accused strangulated the deceased with the electric wire, thereby causing the death. It was vehemently contended by the Ld. Counsel for the accused that prosecution has not proved the motive for the murder and hence murder theory cannot be believed. The arguments of the Ld. Defence Counsel is not acceptable. Even though prosecution has failed to prove that the accused inflicted cruelties upon the deceased or made dowry demands to her, yet the testimonies of PW3 and PW4 (the mother & brother of deceased) would manifest that the deceased was not living a peaceful life in her matrimonial house. An impression can also be gathered that the accused had nurtured a feeling of disliking for the deceased. So, it cannot be said that there was no motive for the accused to kill the deceased.
30. Even if it be assumed that prosecution has failed to prove motive in this case, still that does not absolve the accused of the offence. Mere absence of proof of motive does not lead to inference that accused is innocent. The High Court in 176 (2011) DLT 129 DB, Pawan Vs. State, has said :
"No doubt, if there is clear proof of motive for the crime that lends additions supports to the finding of the court that the accused was guilty but absence of clear proof of SC No.43/11. Page 19 of 22 motive does not necessarily lead to the contrary conclusions. No proof can be expected in all cases as to how the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established by the prosecution is as a weak one but that itself is not sufficient to lead to any inference adverse to the prosecution. Most of the times it is only perpetrator of the crime alone who knows as to what circumstance prompted him to take a course of action leading to the commission of crime. The mere fact that the prosecution failed to translate the mental disposition of the accused into evidence does not necessarily mean that no such mental condition existed in his mind."
31. It may be said that the motive coming out of the testimonies of PW3 and PW4 is not clear or is very weak but that alone is not sufficient to acquit the accused when the other circumstances proved point towards his guilt only. The motive could have been spelt either by the deceased or by the accused. They were husband and wife and were the best persons to tell what was going on between them and what exactly happened on the night of incident. SC No.43/11. Page 20 of 22 The deceased is dead and the accused does not open his mouth. It is very difficult, in such a situation, for the prosecution to produce evidence about what prompted the accused to kill the deceased.
32. The suicide theory gets ruled out from the facts that it is impossible to apply the small piece of electric wire round one's own neck and hold it so tightly for a considerable time period till one falls dad. Certainly one cannot do it. For the sake of arguments, if we assure that deceased committed suicide with help of said piece of electric wire, it would have been lying inside the jhuggi near the body of the deceased. It would have been seen by the persons visiting the crime scene. No police official including the members of crime team saw the piece of wire inside the jhuggi. It was got recovered by the accused from the roof of the jhuggi. Why did he try to conceal it, if he was not guilty. His guilty conscience prompted him to do so in order to feign his ignorance about the cause of his wife's death. It is wisely said that a guilty conscience needs no accuser.
33. The aforesaid discussion leads to only one conclusion that the accused caused death of his wife Neelu by strangulation. SC No.43/11. Page 21 of 22
34. The accused is, therefore, convicted u/s.302 IPC.
Announced in open (VIRENDER BHAT)
Court on 29.7.2011. A.S.J. :Dwarka Courts
New Delhi.
SC No.43/11. Page 22 of 22