Delhi District Court
State vs . 1. Dilbagh Rai Bhola @ Pala S/O. Sh. on 26 May, 2010
IN THE COURT OF SH. SANJAY GARG: ADDITIONAL SESSIONS JUDGE; (EAST) FTC,E-COURT : KARKADOOMA COURT: DELHI. SESSIONS CASE No.81/09 FIR No.167/02 U/S: 304/498A/406/120B/34 IPC P.S: Geeta Colony State Vs. 1. Dilbagh Rai Bhola @ Pala S/o. Sh. Roshan Lal, R/o. Mohalla- Taliyana, Jind, Haryana. 2. Rajender Kumar @ Nitu S/o. Sh Roshan Lal, R/o. Mohalla- Taliyana, Jind, Haryana. 3. Chander Mohini W/o. Sh. Roshan Lal,R/o. Mohalla- Taliyana, Jind, Haryana. 4. Suman Rani D/o. Sh Rashan LalR/o. Mohalla- Taliyana, Jind, Haryana. 5. Roshan Lal S/o. Late Sh. Malik Chand,R/o. Mohalla- Taliyana, Jind, Haryana (dead). 6 Sanjay @ Rama S/o. Kundan Lal R/o. Mohalla- Taliyana,Jind, Haryana. DATE OF INSTITUTION :25.11.2002 JUDGEMENT RESERVED ON :10.05.2010 JUDGEMENT DELIVERED ON :25.05.2010 JUDGMENT
1. Local police reached at the spot on 25.07.02 on receipt of DD No. 3A of PCR call regarding a quarrel at house No. 13/315, Geeta Colony. PW-14 Inspector Harpal Singh, IO of this case reached FIR No. 167/02 1 of 28 at the spot and there he found a lady namely Rashmi lying on a stretcher. One ambulance with Haryana registration number and its driver was also there. Dilbagh Rai husband of Rashmi and Sanjay were also present at the spot. The condition of Rashmi was serious and he (PW14) took Rashimi in the same ambulance to SDN hospital, Shahdra. There doctor declared Rashmi unfit for statement and she was taken to Safdarjung Hospital. Rashmi on that day did not make any statement. On 27.07.02 Prithvi Raj father of Rashmi made a complaint Ex.PW1/A.IO PW-14 prepared rukka and got FIR registered. He tried to get statement of Rashmi on 27.08.02, 28.07.02, 01.08.02 and 02.08.02 but Rashmi was declared unfit for statement. On 07.08.02, Rashmi was declared fit for statement and IO recorded her statement. PW1 Prithvi Raj, father of the deceased made a complaint Ex.PW1/A mentioning that he had married his daughter on 26.11.93 with Dilbagh Rai Bhola of Jind. All the accused persons started harassing her for bringing insufficient dowry. It is a case of exchange marriage, sister in law of Rashmi was already married to his son Jag Mohan. Accused persons also used to abuse and beat Rashmi. Due to behaviour of the accused persons, Rashmi used to remain mentally disturbed. The matter was discussed with the accused persons. They felt sorry and assured that this thing will not happen in the future but again accused started harassing Rashmi. On 20.07.02 he received information on phone that his daughter had fallen from roof. He immediately reached at Sood Nursing Home at Jind, Haryana with his family where Rashmi was admitted. There at FIR No. 167/02 2 of 28 Jind, he was not allowed to make a complaint with the police. On 25.07.02 at about 2.2.30 AM, accused Dilbagh Rai and his cousin Sanjay brought Rashmi in Maruti van No. HR-31A-9316 and tried to ran away after leaving Rashmi outside his house. Due to sound of vehicle he got up and saw his daughter lying on the road. Immediately he made a call to the police. He is doubting incident of Rashmi falling from roof.
2. Rashmi died on 24.08.02. PW IO 14 reached at the spot and prepared inquest papers and got dead body post mortemed. Section 304-B was added in the FIR after consultation with Senior Officers by IO. IO visited Jind, Haryana for investigation of this case. There he visited Sood Hospital and General Hospital. During investigation, accused persons were apprehended. After investigation police filed charge sheet against the accused persons under section 304/406/498A/120 B/34 IPC.
3. Charge under section 498A/34 IPC was given to all the six accused persons to which they pleaded not guilty and claimed trial. A charge under section 304 IPC was given to accused Chander Mohini to which she pleaded not guilty and claimed trial.
4. To prove its case, prosecution examined 15 witness. PW1 Prithvi Raj is the complainant and father of the deceased Rashmi. He proved his written complaint Ex.PW1/A, statement of Rashmi Ex. PW1/B, his statement Ex.PW1/C identifying dead body, receipt Ex. PW1/D on receiving dead body, personal search memo Ex. PW1/ E of accused Chander Mohini, personal search memo Ex. PW1/G of FIR No. 167/02 3 of 28 accused Suman, personal search memo Ex. PW1/ H & J of accused Sanjay and Rajender Kumar, arrest memo of accused Sanajy Ex.PW1/K, arrest memo of Chander Mohini Ex.PW1/L and arrest memo of accused Suman Ex. PW1/M. PW-2 Jagmohan is brother of the deceased. He proved his statement to the police Ex.PW2/A, arrest memo of Roshan Lal Ex.PW2/B and arrest memo of Dilbagh Rai Ex.PW2/C. PW-3 Smriti Bhola is sister-in law of deceased. PW-4 Sudesh Verma is neighbourer of the complainant. PW5 Dr. P.C. Sood, Sood Hospital, Jind Haryana proved out patient register entry Ex. PW5/A dated 21.07.02 regarding deceased Rashmi. PW-6 Manoj Garg, photographer, proved photographs Ex. PW6/A, B and C. PW-7 Dr. A. K. Wahal, CMO, SDN Hospital proved MLC Ex.PW6/A. PW7A Dr. Arvind Thergaonar,CMO, Safdarjung Hospital conducted postmortem of dead body and proved postmortem report Ex.PW7/A. PW-8 Rajinder Kapoor is neighbourer of the complainant. PW-9 Ashok Batra is the ambulance driver who brought deceased Rashmi to Delhi from Jind. PW-10 Dr. Praveen Kumar proved history Ex. PW10/A of patient Rashmi and treatment prescription slip Ex.PW10/B and C. PW11 Hari Charan, Haryana Police proved rukka of Casualty Medical Officer of Jind Ex.PW11/A, application Ex. PW11/B moved by him to record statement of injured Rashmi. PW-12Dr. R. K. Chopra, Safdarjung Hospital, proved death summary of Rashmi Ex.PW12/A. PW13 HC Daya Chand i duty officer of PS Geeta Colony proved FIR Ex.PW3/A and endorsement on ruqka Ex. PW13/1. PW-14 Inspector Harpal Singh proved ruqka Ex.PW14/A, his application dated FIR No. 167/02 4 of 28 28.07.02 Ex.PW14/B, his application dated 01.08.02/02.08.02 Ex.PW14/C, his application dated 07.08.02 as Ex.PW14/D vide which patient was declared fit for statement, seizure memo of photograph of Rashmi Ex.14/E, inquest papers Ex.PW14/F, an application for postmortem Ex.PW14/G, rough site plan Ex. PW14/H, arrest memo of accused Rajender Kumar Ex. PW14/I,. PW-15 Dr. Yadu Lal Consultant Orthopeadic Surgeon, Lok Nayak Hospital proved his opinion regarding cause of death as Ex. PW15/A.
5. Statements of the accused persons were recorded under section 313 Cr. P.C, giving them opportunity to explain evidence appearing against them. All the accused persons denied the prosecution evidence appearing against them and took defence of false implication in this case. Accused Chander Mohini and Dilbagh Rai Bhola took plea that Rashmi was suffering from mental ailment. On the day of incident she jumped from the second floor of the house at Jind and she was provided best medical treatment. All the accused led defence evidence and examined four witnesses.
6. DW1 Krishnawati is a relative and also neighbourer of the deceased. DW-2 Professor Dr. Hitesh Khurana,, PGIMS, Rohtak proved letter Ex.DW2/A vide which the summoned record has been destroyed. He also proved discharge slip of patient Rashmi Ex. DW2/ B and C. DW-3 Chiman Lal is the neighbourer of the accused persons. DW-4 Kumari Sweety is the daughter of the deceased Rashmi from accused Dilbagh. She filed diary of her mother Ex. DW4/A. FIR No. 167/02 5 of 28
7. I have heard arguments of Sh. R. K. Mehta, Ld. APP for the state and Sh S. K. Ahluwalia, Ld. Defence counsel for all the accused persons. Ld. Addl. PP submits that from the statements of various prosecution witnesses, it stands established beyond doubt that all the accused used to harass Rashmi for dowry and she was thrown from the roof of the accused by Chander Mohini on 20.07.02. It is stated that prosecution has been able to bring home guilt of the accused persons. Ld. Defence counsel did detailed arguments and also filed written submissions. In support of his contentions, he relied upon on the following judgments:-
I.2010 Vol. I JCC 362 II. 1990 Vol. I CCC(DHC)261 III.2009 Vol. IV, Page 2564(SC) IV. AIR 1973 SC2773 V.2010 Vol. II JCC 972(DHC) VI.AIR 1957 SC 637 VII. 1990 Vol. I CCC( DHC) 261
8. PW-1 Prithvi Raj is the complainant and father of the deceased. As per him, marriage of Rashmi with Dilbagh was solemnized on 26.11.93. He had given sufficient dowry. After marriage accused Roshan Lal started saying " Delhi walo ne mujhe thag liya hai mujhe bahut kuch milna tha". Accused Suman, Chander Mohini and Roshan Lal started beating her daughter on account of dowry. Accused Dilbagh and Rajinder used to say "
Rashmi ko ghar se bahar mat janey do jab ye mar jayegi Delhi walo FIR No. 167/02 6 of 28 ko khabar kar denge" On the eve of Diwali in the year 2002, Rashmi came to Delhi and told him all the facts. Rashmi started remaining silent and sahmi-2. I took her to clinic of Dr. Sharma in Nirman Vihar. Doctor after checking Rashmi told him that she has been terrorized by her in-laws. She remained with me for about 6 months and continued her treatment with Dr Sharma and regained her health. Thereafter accused Dilbagh, his mother, uncle and aunt came to his house to take Rashmi, he called a Panchayat and accused persons were advised not to terrorize Rashmi as there is exchange marriage between both the families. Accused persons apologized and assured Panchayat that such things will never happen in future. His daughter again came to his house in June, 2001 with her son and daughter and told him that accused will kill her. She stayed for a week and accused Dilbagh took her back .
9. PW1 further testified that on 20.07.02, he received a telephone from accused Dilbagh that Rashmi has fallen from the roof of the house. He along with his sons Jagmohan, Anurag and brothers Pritam Lal and Kishan Lal went to Jind and Rashmi was admitted in in Sood Hospital in Jind Haryana and she was unconscious. He asked accused persons that how this happened, at this, accused persons and the relatives started quarreling with him and threatened him that PS Jind is their own PS and he cannot do anything against them. He returned to Delhi with his sons and brothers. On the intervening night of 24/25.07.2002 at about 2.30 AM, he heard noise of a maruti Van outside his house and accused Dilbagh, Sanjay( Cousin of FIR No. 167/02 7 of 28 accused Dilbagh) and Rajender removed Rashmi from the van and put her on road and told him to take care of her. They immediately sat in the vehicle but he shouted and mohalla people came there. Police was informed and accused persons were handed over to the police. He removed Rashmi to Daya Nand Hospital from there she was referred to Safdarjung Hospital. Chanchal, Bhabhi of Rashmi and daughter of accused Roshan Lal was restraining them from lodging any complaint against accused persons and threatening them that if he and his family members will lodge a complaint against her parents, she will also lodge complaint against him and his family members . There was an exchange marriage, Chanchal was married with his son Jag Mohan and his daughter Rashmi was married with Dilbagh Rai, brother of Chanchal. He made a written complaint to the police on which FIR was registered against the accused persons. Police went to Safdarjung hospital and recorded statement of Rashmi in his presence and in the presence of concerned doctor. On 23.08.02, Chanchal his daughter in law went to Jind to her parents along with clothes and jewellery and other valuable articles. Rashmi on 25.08.02 died in the hospital. None of the accused persons attended last rites of his daughter. During cross PW1 has stated that he had gone to Jind with the police but he had not gone on the roof of the house of accused persons. He cannot say if Harpal Singh had gone to the roof of the house of the accused persons in his presence; one side of the said house was vacant and on another side constructed portion is there; he cannot say if FIR No. 167/02 8 of 28 photographs marks X2 and X3 are of the said house or not; he cannot say if the height of the said wall as reflected in the photograph mark X1 is about 5 feet 3 inches. Chanchal lived happily for about one years and after marriage of his daughter Rashmi, she started harassing them. There was a dispute between Chanchal and Jag Mohan before November, 1993. There are other girls in their family married in the family of Roshan Lal.
10. PW-2 Jag Mohan is the brother of the deceased and son of complainant PW1 and husband of Chanchal (sister of accused Dilbagh Rai and daughter of Roshan Lal and Chander Mohini). He also deposed the same facts the incident prior to i.e. 20.07.02 and after the incident as deposed by his father PW1. PW-3 Smriti Bhola is the sister in law( brother's wife) of the deceased. She also reiterated the same facts as deposed by PW-1 and PW-2.
11. PW-4 Sudesh Verma is neigbourer of the complainant, he deposed that after marriage he came to know that a quarrel had taken place between Dilbgh Rai and Rashmi, Dilbagh used to leave Rashmi at her parents house. In-laws of Rashmi had taken Rashmi back 3-4 times saying that in future there will be no quarrel. 2-3 times, he also joined in compromise at the house of Prithvi Raj Bhola. Last time Rashmi was sent to the house of her in-laws she was refusing to go in the house of her in-laws as she was not feeling safe there. In July, 2002, at 2.30 AM, he heard some noise and reached at the house of Prithvi Raj and found Rashmi was lying on a stretcher outside the house of Prithvi Raj on road. One ambulance was also there in which FIR No. 167/02 9 of 28 in-laws of Rashmi had brought her there. In the meantime, police also reached there and took Rashmi with them.
12. Ex PW12/A is the death summary of Rashmi, as per which patient was admitted with alleged history of fall from roof with complaint of traumatic quadriplegia and she expired on 24.08.02 at 10.15AM. Ex. PW15/A is the admission and discharge record of patient Rashmi proved by PW15 Dr. Yadu Lal. As per him, patient was having fracture cervical spine with quadriplegia with loss of control of bladder and bowel. Patient was given treatment in consultation with department of Medicine, ENT and Psychiatric Department. Despite all the measures taken to save her life and limb, she could not be revived and expired on 24.08.02. The cause of death was complications due to fracture of cervical spines. Cause of death mentioned on Ex. PW15/A is " Cardio respiratory arrest following traumatic quadriplegia" It thereby stands established that Rashmi died due to complications arisen due to fracture of her cervical spine suffered by her falling from roof on 20.07.02.
13. One the main contentions raised by Ld. Defence counsel on behalf of the accused is that the wall of the roof of the house of accused on the side, in which it is alleged that Rashmi was pushed by accused Chander Mohini is 5 feet 3 inches. It is stated that Chander Mohini being an old lady was not strong enough to throw Rashmi from the wall having height of 5 feet 3 inches. it is stated that Rashmi being mental patient herself jumped from the wall. It is stated that DW-4 Sweety who is daughter of Rashmi has also deposed that FIR No. 167/02 10 of 28 at the time of incident, accused Chander Mohini was with her at the ground floor. It is an admitted case of the prosecution that no site plan was prepared by IO of the place of incident. IO PW-14 has admitted that he has not prepared any site plan of the place of the incident. Since FIR was lodged here, IO PW-14 was required to prepare site plan. To this extent, I have no hesitation to observe that investigation is lacking. Law is settled that if the investigation is illegal or suspicious, rest of the evidence must be scrutinized independently of the impact of it. Reliance is placed upon AIR 2000SC 185 State of Karnatka Vs. K. Yarappa.
14. PW-2 Jag Mohan who is brother of deceased Rashmi is also son in law of accused Roshan Lal and Chander Mohini. During his cross, he has stated that on the second floor, there is a boundary on all the four sides; photographs mark X1 to X3 are of the second floor of the house; photograph mark X1 shows Suman standing near the boundary wall and the height of the boundary wall is above 6 inch more than the height of Suman; in photograph mark X2 wall is more than his height; in photograph mark X3, boundary wall is approximately 2.9" in front portion of the house facing the road. An application was moved by accused persons under section 310 Cr. P.C seeking site inspection of the site at Jind, Haryana by this court with purpose to observe the height of boundary wall on the roof of the second floor of the house towards vacant plot.This application was dismissed by this court vide order dated 22.02.10 with observation that whether boundary wall was 5.3 " or not at the time of incident FIR No. 167/02 11 of 28 cannot be ascertained at this stage after lapse of 8 years. DW-4 Sweety who is daughter of the deceased and accused Dilbagh has stated that height of boundary wall on the side in which her mother hais fallen is about 5 feet 5 inches. DW4 Sweety who is now 16 years of age was 8 years of age at the time of incident and at present she is residing at Jind with accused persons. She was too young to note height of boundary wall on the roof of the second floor. Secondary, she being residing with accused persons will have natural sympathy for them and it is not strange if she is deposing in their line of defence. Even if it is assumed that the boundary wall of that particular side was 5.5" and boundary wall on the opposite side towards road as shown in photographs mark X-3 was 2.9"
approximately, question arises why deceased Rashmi would have scaled wall of 5.5" and then jumped, instead of jumping opposite wall which was 2.9" only. This contention raised by Ld. Defence counsel for accused is not found tenable.
15. The other contention raised by Ld Defence counsel on behalf of the accused is that Rashmi was suffering from mental disease/psychiatric problem and due to this reason she jumped from the second floor of the house and met her end. Arguments are advanced by Ld. Defence counsel to this extent that even prior to the marriage Rashmi was having some mental problem. It needs to be kept in mind that it is a case of exchange marriage and before marriage of Rashmi to accused Dilbagh, Chanchal sister of Dilbagh, daughter of accused Roshan Lal and Chander Mohini was married FIR No. 167/02 12 of 28 with PW-2. If Rashmi had any mental problem then why Chanchal agreed to the marriage of Rashmi with her brother Dilbagh Rai. It is unlikely that the marriage between Rashmi and Dilbagh would have happened,if Rashmi had any mental problem prior to her marriage. To prove its defence, accused has examined DW1 Krishnawati, their relative. As per her, at the time of marriage,Rashmi was having slight mental problem and disease increased day to day. In her cross, she stated that marriage of Chanchal was solemnized with Jag Mohan, brother of Rashmi two years prior to marriage of Dilbagh and Rashmi and during this period, they were not aware about her mental condition. Statement of this witness does not inspire confidence at all.
16. PW-10 Dr Praveen Kumar, Assistant of Doctor A.K Sharma, Dr Sharma Neuro Psychiatry Centre has testified that as per record, patient was seen by senior doctor A.K. Sharma on 27.10.00. Patient disclosed that she had been tortured by her husband and other family members and it was also corroborated by the child of the patient; she was begun with psychotherapy and medications and she improved completely within few weeks. On 13/2/00 she was well except mild somatic symptoms; treatment stopped because her husband took her to his place; Dr. A.K. Sharma has left the said place and has settled abroad and his return in India is not certain. During cross, witness has stated that occasionally her husband and brother accompanied the patient and record of visit of the patients is maintained in the clinic.
17. DW-4 Sweety who is daughter of the deceased is another FIR No. 167/02 13 of 28 important witness in this case. As per her, her mother sometimes used to take strip of pills at a time and she was not having normal mental condition; her mother used to scold her and her brother. During her cross, she has stated that once she had accompanied her mother to doctor in Delhi and she does not remember if her mother had told the doctor that she was being tortured by her husband and other family members and she had also confirmed this to the doctor.DW4 has filed diary Ex.DW4/A wherein it is written" Mujhe TB Nahi Hai, main pagal jaroor hui hoon". Whether diary Ex.DW4/A is in the handwriting of deceased Rashmi absolutely no evidence has been brought on record to this effect by the accused persons. Moreover as already noted that DW-4 was too young to understand all these things at the time of the incident and she being residing with accused persons is speaking whatever is tutored to her by them. Her testimony does not inspire confidence.
18. DW-2 Professor Dr Hitesh Khurana PGIMS, Rohtak is another witness examined by accused persons to establish their defence that Rashmi was suffering from mental/ psychiatric problem prior to this incident. As per DW-2 he was posted in this hospital since 1999 and in the year 2002, he was working as Lecturer in the department of Psychiatric of this hospital. The summoned record has been destroyed vide order of Professor PGIMS, Rohtak. He proved original discharge slip Ex.DW2/B to D of patient Rashmi. Dr Jyani and Dr Dangi who had prepared these slips had already left service and their present whereabouts are not known to him. As per him, at FIR No. 167/02 14 of 28 the time of admission of patient Rashmi injured in the hospital on 13.02.2002; she was suffering form bipolar affective disorder currently mania that is mental illness. Doctor has given the history of intake of sedative drug( clonazepam 3.5 mg); from OPD patient was referred to psychiatrist and psychiatrist referred this patient to physician to ascertain her neurological status. During cross, witness has admitted that Ex.DW2/D where the age of the patient is mentioned as 27 years female was prepared in 2001, age of the patient on Ex. DW2/B and C is mentioned as 22 years and it was prepared in 2002 and this could be of two different patients. Explaining the disease, DW2 has stated that this patient manifests in different kind of phases, in one phase the patient feels extremely happy and confident and energetic and indulges in fun seeking activities like spending without any proper reasoning and in other phase the patient feels extreme sad and despondent and also feels that she is a miserable person in the world. Through on Ex. DW2/B and DW2/C age of the patient is mentioned as 22 years and on Ex. DW2/D age of the patient is mentioned as 27 years but the name of the patient is clearly mentioned as Rashmi and merely on this ground these documents cannot be disbelieved. PW1 Prithvi Raj, father of the deceased, has admitted that in the year 2000 on the eve of Diwali, Rashmi came to Delhi due to terror of the accused persons and she told him that accused persons will kill her and her daughter started remaining silent( Sahmi-2). He took his daughter to clinic of Dr. Sharma, Nirvan Vihar who is a psychiatrist. Treatment given by Dr. FIR No. 167/02 15 of 28 A.K. Sharma has already been proved and discussed in above paras. It thereby stands established that the deceased was suffering from mental/ psychiatric problem prior to this incident i.e. 20.07.02.
19. Now let us see what was medical treatment given to injured Rashmi after this incident, at Jind and thereafter at Delhi till she breathed her last on 25.08.02. PW 5 Dr. P.C. Sood, Sood Hospital, Jind Haryana has testified that on 21.07.02 Rashmi was brought to his hospital by her relatives with alleged history of fall from roof. Patient had psychiatric history. After giving first aid, she was referred to medical college Rohtak. During cross, DW 5 stated that patient was conscious and history was given by the patient as well as her relatives. As per the prosecution case, incident happened on 20.07.02. As per PW-5 Rashmi was brought to his hospital on 21.07.02 by her relatives. It is not clear from the evidence which has come on record if directly Rashmi was taken to Sood Hospital or was some where else from the spot. Ex. PW5/A is the copy of Out Patient Register filed by PW5. It is found mentioned on it that patient is referred to Medical College Rohtak. Neither the name of the patient is visible any where nor history of the patient is mentioned any where. It is difficult to ascertain that on what basis PW5 deposed that history of fall from roof was given by patient as well as her relatives.
20. After medical record Ex.PW5/A, Ex. PW6/A is the MLC of Rashmi prepared at SDN Hospital Shahadra on 25.07.02, proved on record by prosecution . PW-7 Dr. A. K. Wahal who prepared this MLC has stated that he examined this patient at 2.50 AM on 25.07.02, she FIR No. 167/02 16 of 28 was fully conscious conversing but doing irrelevant talks. As per history mentioned on this MLC, told by IO SI Harpal Singh the injuries were sustained by falling from roof at Jind.
21. On 21.07.02, from Sood Hospital at Jind where Rashmi was taken is not clear from record. PW-9 Ashok Batra is a driver of ambulance who brought Rashmi on 25.07.02 to Delhi. As per him he was called by Dr. Rajesh Gandhi, Civil Hospital Jind and he referred the patient to PGIMS Rohtak. It appears that from Sood Hospital, Rashmi was referred to Civil Hospital Jind and from there she was referred to PGIMS Rohtak but instead of taking her to PGIMS Rohtak, as admitted by accused Dilbag during his statement under section 313 Cr. P.C, Rashmi was brought to Delhi. What was treatment given to Rashmi at Civil Hospital Jind has not come on record. Admission of Rashmi in Civil Hospital Jind also stands established from Ex. PW11/A dated 24.07.02 sent by Casualty/ Medical Officer General Hospital Jind to SHO, PS City Jind. Ex. PW11/B is endorsement made by Dr. Gandhi that patient is mentally sick person and taking treatment from Rohtak and is unfit for statement.
22. PW-7during his cross has stated that since patient was making irrelevant talks so he certified that patient is not fit for statement.
23. As per prosecution case, from SDN hospital, patient was same day referred to Safardjung Hospital. Treatment given to deceased Rashmi at Safdarjung is proved by PW-15 Dr. Yadu Lal FIR No. 167/02 17 of 28 Consultant, Orthopedic Surgeon, as on 25.07.02 he was posted at Safardjung hospital and incharge of orthopedic unit. As per PW-15, patient was having fracture cervical spine with quadriplegia with loss of control of bladder and bowel. She was given treatment in consultation with department of Medicine, ENT and Psychiatric department. During his cross, PW15 stated that patient died because of complications due to traumatic quadriplegia and cardio respiratory arrest due to fall from height. As per recording in the file by Dr. Marut Nandan, Senior Resident Orthopaedics, statement of patient was recorded on 07.08.02 at 5.00 PM. It was recorded in the presence of Dr. Marut Nandan. As per the treatment record Ex. PW15/A running almost 117 pages, patient's tracheostomy was done on 26.07.02 but after consultation with ENT and Psychiatrist Department. However, her condition deteriorated and she was having respiratory disorder.
24. It is not the prosecution case if Rashmi had told the details of incident which took place on 20.07.02 either to PW1, PW2, PW3 or any of his family members. Even PW1, PW2 and PW-3 have also no where stated that Rashmi told them about the manner how she fell down or pushed from the roof of the second floor. It is clear from the entire treatment of Rashmi that throughout her treatment she remained unfit to make statement. As per prosecution, on 07.08.02 Rashmi was declared fit for statement and her statement Ex. PW1/B was recorded by IO SI PW14 Harpal Singh. As per IO, he recorded statement of Rashmi on 07.08.02 in the presence of complainant and the concerned doctor. The same is the statement made by PW1. If FIR No. 167/02 18 of 28 the prosecution version of the incident is believed, either deceased Rashmi or accused Chander Mohini was aware about exact incident. Chander Mohini being accused, Rashmi was the only person who could have thrown light on the exact details of the incident. Ex. PW1/B, claimed by prosecution is the only statement of deceased made to the police regarding the manner in which the incident took place is a Dying Declaration. As per Ex. PW1/B, Rashmi has stated that she does not remember the date but she has gone on the roof to collect clothes; her mother in law Chander Mohini gave push to her as her mother in law wanted to marry Dilbagh Rai second time; it was noon time; there was no one in the house; she got unconscious after falling from the roof; now she is fully conscious and knows that she is in Delhi hospital; she cannot speak more as there is some problem in her throat. As per IO, her statement was recorded at 5 PM in the hospital and attested by Dr. Afzal, Junior Resident Ortho-III and PW1 as a witness. Prosecution has failed to examine Dr. Afzal who signed as witness to Ex. PW1/B.
25. Entire case of the prosecution is based upon dying declaration Ex. PW1/B, stated to have made by Rashimi. In Sasi Kumar Vs The State of Tamil Nadu 2009,(7) SCALE 444, it is observed that once a dying declaration is of such nature as to inspire full confidence of the Court in its correctness, the same can be the basis of the conviction. Though a dying declaration is entitled to great weight, the appellant has no power of cross examination which is normally essential for eliciting truth. The Court must satisfy itself that FIR No. 167/02 19 of 28 not only was the deceased in a fit state of mind after a clear opportunity to observe and identify the assailant, the declaration should be true and voluntary and not a figment of imagination of the deceased. The dying declaration is really a piece of evidence and has to be considered along with other relevant and admissible evidence brought on record.
26. As per the treatment record Ex.PW15/A on 07.08.02 at 2.15 PM. Dr. Marut Nandan has given note that patient is serious and she has been declared fit by specialist psychiatrist to give statement, investigating authorities, concerned PS be informed to record her statement as early as possible. At page 43 of Ex.PW15/A some doctor after examining the patient has certified that in view of her mental status, patient is fit to give statement today. Patient appears to have been examined by the said doctor before certifying about her mental status, wherein patient has alleged that she was pushed by her mother in-law who tortured her for 10 years. This doctor could have been the best witness for the prosecution as he had certified about the mental status of patient and for the first time patient has in front of him made statement that she was pushed by her mother in law who tortured her for 10 years. This doctor was never produced before this court. At page 45 of Ex. PW15/A Dr. Marut Nandan has opined that patient is fit to give statement in presence of the doctor on duty. Probably Dr. Afzal was the doctor on duty at that time who is signed Ex.PW1/B as a witness but he has no where certified that patient is fit to make statement.
FIR No. 167/02 20 of 28
27. A noting at page number 43 of Ex. PW15/A was made on 07.08.02 but time has not been found mentioned. Now let us see what IO PW 14 has to say about recording of Ex. PW1/B, during his cross he admitted that on 1.08.02 Dr. Marut Nandan had certified that the statement of patient can be taken in the presence of senior doctor ENT. He does not remember if he made an application to SR ENT for permission to record statement of Rashmi till 07.08.02 or even 07.08.02; on 03.08.02 on his application Ex.PW14/DA doctor had asked him to seek opinion of ENT specialist to be taken as the patient is tracheotomized and in not able to utter words clearly ; doctor had also asked him that opinion of psychiatrist should also be taken as the patient has already been taking anti psychiatric drugs. Even in this certification of doctor, he did not ask any ENT Specialist or psychiatrist to seek opinion about the fitness of Rashmi.
28. As already discussed, the condition of Rashmi remained serious throughout her treatment at Safdarjung Hospital. Throughout her admission there, PW14 was making efforts to record her statement but every time she was declared unfit for statement. The pertinent point is to be seen is whether Rashmi was fit to make statement and she was in her senses when Ex PW1/B was recorded. In my opinion, due to the following reasons dying declaration Ex.PW1/ B does not inspire confidence.
1. As Rashmi was tracheotomized, it is not clear if any specific opinion of ENT specialist was taken prior to recording Ex.
PW1/B.
FIR No. 167/02 21 of 28
2. Dr. Afzal who has signed as a witness on Ex.PW1/B neither has been examined nor there appears any certification given by him on Ex.PW1/B that patient is fit to make statement.
3. At 43 page of PW15/A some doctor probably Specialist Psychiatrist has given the opinion that mental status of patient is fit but it does not bear time when this certification is given. Keeping in view the serious condition of the patient, it was required that her statement should have been recorded immediately after obtaining certification from psychiatrist that she is fit for statement. From the treatment record Ex. PW15/A it is not possible to infer that there was either no gap or shortest gap between the said certification and recording of her statement.
4. Rashmi was suffering from mental/ psychiatric problem prior to this incident.
5. Ex.PW10/A to C is treatment record of deceased Rashmi at Dr. A.K. Sharma, Neuro Psychiatric Centre, as per which she was treated with psychotherapy and medications. Ex.DW2/A to C is treatment record of Rashmi at Pandit B.D. Sharma, Post Graduate Institute of Medical Sciences, Rohtak proved by DW-2 Professor Dr. Sh. Hitesh Khurana, PGIMS Rohtak. As per this record she took treatment from the department of psychiatry in January and February, 2002. Deceased having long history of psychiatric problems if her fall from roof on the fateful day was an accident cannot be ruled out.
FIR No. 167/02 22 of 28
29. In view of the aforesaid reasons, case of the prosecution against accused Chander Mohini for the commission of offence under section 304 IPC fails.
30. Accused Chander Mohini and other five accused persons are also charged under section 498A IPC. In order to succeed in charge under Section 498A, the prosecution was required to prove that the accused had subjected deceased to cruelty. The cruelty as required under section 498A IPC has necessarily to be a willful conduct which is of such a nature that is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression " willful" in the explanation section to Section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Reliance is placed upon Hans Raj Sharma (supra) [2010(2)JCC972].
31. It is an admitted case of the prosecution that two years prior to solemnisation of the marriage between deceased and accused Dilbagh Rai, Chanchal sister of accused Dilbagh Rai was married with brother of deceased i.e. Jag Mohan ( PW2). PW1 has stated that Chanchal lived happily for about one year and after marriage of his daughter Rashmi she also started harassing them and there was a dispute between Chanchal and Jag Mohan before November, 1993. It is unlikely that if there existed any dispute FIR No. 167/02 23 of 28 between Chanchal and Jag Mohan, the complainant PW1 may have agreed in exchange marriage of his daughter Rashmi with accused Dilbagh Rai. PW1 has alleged that immediately after marriage, accused persons started harassing her daughter for bringing insufficient dowry. As per PW1, on the eve of Diwali 2000, Rashmi came to his house due to terror of the accused persons. If there was any specific demand of dowry or there was any specific incident of harassment of Rashmi by the accused persons, statement of PW1, PW2 and PW3 are totally silent to this effect. As per PW1, Rashmi in the year 2000 expressed her apprehension that accused will kill her and she started remaining silent. He took her daughter to Dr. Sharma's clinic for her psychiatric treatment which continued for six months. As per PW1 when Rashmi refused to go back to her matrimonial home, he called a Panchayat of Biradari and since there was an exchange marriage, Panchayat advised the accused persons that they should not terrorise Rashmi. How Rashmi was terrorised by the accused persons, what were the acts of commission and omission, if any, on the part of the accused persons by which they terrorised or harassed Rashmi during this period, has not any where elaborated been by either of the witnesses.
32. As per PW1, Rashmi came to his house in June 2001 along with her son and daughter and again told him that accused persons will kill her. Accused Dilbagh took his daughter back to her matrimonial home. Again, PW1, PW2 and PW3 has nowhere explained that why Rashmi was apprehending danger to her life from FIR No. 167/02 24 of 28 the accused persons. What happened after June, 2001 up to 20.07.02 when the incident of falling from roof of Rashmi took place, testimony of PW1 is silent.
33. As already discussed, Rashmi was suffering from psychiatric problems in 2000. As per Ex. DW2/A to C her treatment continued from the department of Psychiatry PGIMS Rohtak. It is alleged by the complainant PW1 that Rashmi developed psychiatric problems as she used to be harassed by accused persons. How Rashmi became psychiatric patient due to harassment given to her by the accused persons, absolutely no evidence to this effect has come on record. Merely because deceased Rashmi developed psychiatric problem while living in matrimonial home after 7 years of her marriage, it cannot be presumed that it was due to the cruelty to which she was subjected by the accused persons. Ld. Counsel has pointed out various improvements in the statement of PW1 vis a vis in FIR. In my opinion, no case is free from some contradictions and improvements and the improvements pointed out by Ld. Defence counsel are minor in nature which does not go to the root of the matter. It has to be seen if from statements of PW1, PW2 and PW3 necessary ingredients of cruelty as defined under section 498A are made out against the accused persons or not.
34. There is not a whisper in the statement of PW1, PW2 and PW3, if any specific demand of dowry was made by the accused persons either from the deceased or from PW1 or his family. Regarding other instances of cruelty as alleged by PW1, only FIR No. 167/02 25 of 28 sweeping and vague allegations are there. Moreover, there being exchange marriage between families, every action on the part of the accused at Jind by subjecting Rashmi to cruelty must have invited equal and opposite reaction from Delhi i.e. house of PW1 where Chanchal, daughter of Roshan Lal and Chander Mohini and sister of accused Dilbagh Rai was married to Jag Mohan, brother of deceased Rashmi. It is also admitted by PW1 that few girls from his family relatives are married in the family of the accused persons. Similarly PW-4 and PW-8 who are neighbourers of the complainant have not deposed about any specific incident of cruelty meted out by the accused persons to deceased Rashmi.
35. Now coming to the incident which took place on 25.07.02 outside house of PW1. As per PW1 accused Dilbagh Rai along with his cousin Sanjay was seen him outside the house at 2.30 AM, both the accused removed Rashmi from Van and put her on road and told him to take care of her and immediately sat in their vehicle and tried to run away. As per the prosecution case, Rashmi was referred to PGIMS Rohtak by Dr. Rajesh Gandhi, General Hospital of Jind. Then why instead of taking Rashmi, who was in serious condition to PGIMS Rohtak, they brought her to Delhi. The explanation given by the accused Dilbagh Rai is that Rashmi was brought to Delhi for best possible medical treatment and she was brought at her parent's house. He called his in-laws from inside the house but they started quarreling. Similar explanation was given by accused Sanjay. Statement of PW-9 who is driver of van in which Rashmi was brought FIR No. 167/02 26 of 28 to Delhi also throws light on this incident. As per PW-9, patient was on a stretcher. Accused Dilbagh knocked the door, family members of the patient came out and started weeping and after some time police reached there and took the injured to the hospital. He has further stated that he advised the accused persons that condition of the patient is serious and patient should be taken to PGI Rohtak, otherwise it can be fatal for the patient. During his cross, PW9 stated that after knocking at the door of witnesses, 2-3 persons came outside the house and Dilbagh asked him to see the patient and thereafter patient was removed from the ambulance. Explanation given by accused Dilbagh and Sanjay in their statements under section 313 Cr. P.C appears to be logical. No doubt, Delhi is place where best medical treatment is available. Merely on this ground that ignoring advice of the doctor, instead of taking Rashmi to PGI Rohtak, accused brought her to Delhi, it cannot be said that by this act of accused persons, Rashmi was subjected to cruelty as this act could have caused grave injuries or danger to her life.
36. In similar type of cases, it is observed that there is growing tendency on the part of victim's family to falsely implicate all the family members of husband by making false and frivolous allegations. Denouncing this growing tendency, in Kans Raj Vs. State of Punjab and others 2000(2)JCC665: AIR 2000 SC 2324 the Hon'ble Supreme Court has inter alia, observed as under:-
"In cases where such accusations are made, the overt acts attributed to persons other than husband are required to FIR No. 167/02 27 of 28 be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has,however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
37. In view of the aforesaid reasons, statement of PW1, PW2 and PW3 are not found credible and trustworthy. Prosecution has failed to prove its case beyond reasonable doubt against the accused persons. Accordingly all the five accused persons are thereby acquitted from the offence punishable under Section 498A/34 IPC. Accused Chander Mohini is also acquitted from the offence punishable under section 304 IPC.
File be consigned to the record room.
Announced in the open Court ( SANJAY GARG ) on th day of 26th May, 2010. Addl. Sessions Judge (East) FTC, E-Court KKD Courts Delhi FIR No. 167/02 28 of 28 FIR No. 167/02 29 of 28