Delhi District Court
State vs . Pawan Yadav Etc. Fir 285/12 (56570/16) on 29 January, 2018
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56570/16
FIR No. 285/12
PS Nangloi
U/s 498A/304B/302/406/34 IPC
STATE
VERSUS
(1) PAWAN YADAV (A1)
S/O SH. LALA RAM YADAV,
R/O H. NO. 96, AHIR MOHALLA,
VILLAGE NANGLOI
DELHI.
(2) SUMAN YADAV (A2)
W/O SH. LALA RAM YADAV,
R/O H. NO. 96, AHIR MOHALLA,
VILLAGE NANGLOI
DELHI.
(3) LALA RAM YADAV (A3)
S/O SH TARA CHAND YADAV,
R/O H. NO. 96, AHIR MOHALLA,
Result: Acquitted Page 1 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
VILLAGE NANGLOI
DELHI.
(4) DEEPTI YADAV (A4)
D/O SH. LALA RAM YADAV,
R/O H. NO. 96, AHIR MOHALLA,
VILLAGE NANGLOI
DELHI.
(5) POONAM YADAV, (A5)
W/O SH. SANDEEP YADAV,
R/O H. NO. 39, VPO BEGAMPUR,
DELHI86.
Date of Institution : 16.02.2013
Date of Reserving Judgment : 22.12.2017
Date of Judgment : 29.01.2018
Offence Complained of :U/s498A/304B/302/406/34IPC
Offence Charged with :U/s498A/304B/302/406/34IPC
JUDGMENT
1. Accused Pawan Yadav (A1); Suman Yadav (A2), Lala Ram
Yadav (A3), Deepti Yadav (A4) and Poonam Yadav (A5) have been
facing charges for offences Punishable under Section 498A/34IPC
and 304B/34 IPC with an Alternative/Additional Charge U/s 302/34
Result: Acquitted Page 2 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
IPC.
2. A1, A2 and A3 have been also facing trial for offence Punishable
U/s 406/34 IPC.
PROSECUTION'S CASE :
3. A DD No.13A (Ex.PW22/A) was recorded on 08.11.2012 at PS
Nangloi at 08:20 AM on a telephone call from W/Ct. Poonam/PCR
(PW19) regarding information from Control Room regarding a
woman having hanged herself at H.No. 96, Ahir Mohalla, Nangloi
Jat, Delhi. To inquire into it, SI Pankaj Saroha (PW24) and Ct. Binay
(PW3) had proceeded to the informed place. Insp. Ramphal Singh
(Case IO) (PW25) was also informed on wireless set and as such, he
also reached the spot after some time. On second floor of the house,
an incident had taken place in which a lady named Satyam Yadav
(wife of A1) was found hanging by the neck with the help of one
'Chunni' tied at the opposite end with the ceiling fan. She was found
hanging. Crime Team was informed and inquiries were made
revealing that the family members have taken a 'girl child' aged about
1½ years in state of unconsciousness to Satya Bhama Hospital. Insp.
Ramphal Singh (PW25) proceeded to the said hospital with SI
Result: Acquitted Page 3 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
Pankaj Saroha (PW24). They obtained MLC no. 924 dated
8.11.2012 (Ex.PW13/A) in respect of said minor girl namely Baby
Vanshu (D/o A1) showing that the baby was 'Brought Dead' in
Emergency. 'Name or injury' was described as 'Strangulation'. She
was brought in the Emergency at 07:50 AM, Ct.Dinesh (PW1), who
had come to the hospital being on patrolling duty was entrusted duty
to look after the dead body of minor child and both PW24 and PW
25 returned to the informed place/place of incident.
3.1. Further inquiry revealed that deceased Satyam Yadav was
married in the year 2010 only and hence, SDM Punjabi Bagh as well
as relatives of deceased were informed about the incident. The
relatives of the deceased also arrived who were informed of the
development. The dead body of Satyam Yadav alongwith the Chunni
and its remaining piece was preserved in the Mortuary of SGM
Hospital where dead body of Baby Vanshu was also preserved.
3.2. In the mean time, the SDM Punjabi Bagh recorded
statements (in his office) of Smt. Satyawati, mother of deceased (PW
4), her brothers namely Prashant (PW5) and Nishant (PW18) and
victim's sister namely Komal (dropped as PW). He thereafter marked
Result: Acquitted Page 4 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
these statements to SHO Nangloi for further action.
3.3. The gist of the statement of Satyawati (PW4) on the basis
of which the FIR was registered is her suspicion banking heavily
towards a belief that A1 to A5 had killed Satyam owing to persistent
cruelty and demands for dowry. Her statement (Ex.PW4/A) recorded
by Hukam Chand, SDM Punjabi Bagh (PW21) is the basis of this
investigation. She had five children two boys and three girls. Satyam
was married to A1 on 16.02.2010. She had a girl child named
Vanshu aged one year and six months. Though no demand for dowry
was made by Inlaws of Satyam at the time of marriage, yet she gave
jewellery worth 1.50 lacs, a Car worth Rs. 6 lacs and all other
articles required in a household at the time of marriage. Soon, she was
harassed by A2 (MotherinLaw) after passing of six months for
dowry. She was demanding clothes, jewellery, money for expenses
from deceased for it to be arranged by her brothers. When child was
born on 12.03.2011, demand for various articles in 'Chhuchak
Ceremony' were made in the form of 51 Sarees, Ear Rings, Neck
Chain, Golden Finger Ring, Silver Anklets which was fulfilled and a
Silver Toe Ring was also given to A2.
Result: Acquitted Page 5 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
3.4. A1 was given a Gold Finger Ring, a Gold Chain. The
newly born child was given Gold Chain, Gold Ear Rings (Bali), a
ChandSuraj Pandent and Silver Anklets. All accused persons were
also given Clothes, Mattresses, Woolen Bed Sheets (Rajai/quilted
bed sheets) etc. These articles were given on specific demand of A2
despite absence of requisite paying capacity of PW4 so that Satyam
was no more harassed.
3.5. During the Municipal Councilor Elections, A2 intended to
contest but could not get the Ticket being illiterate and hence (when
Satyam was at Bullandshahar at her Parental House) her Fatherin
Law i.e. A3 came to her so that she can get the Election Ticket being
highly educated. She was taken back to Delhi. At the time of
elections, A2 made another demand of Rs.50,000/ which PW4 sent
to the accused persons through her son Nishant (PW18). During
Elections, her elder son Prashant (PW5) had gone to Matrimonial
House of Satyam but he was turned away after an argument was
started by A2 as he had gone without any money.
3.6. She further submitted that since Satyam was taunted that
her brothers had not even given her a phone hence, she herself
Result: Acquitted Page 6 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
purchased a mobile and gave it to Satyam alongwith talk time. The
said talk time was utilized by A2 who also instructed A1 to not to
have it recharged. Satyam was forced to call her mother from mobile
phone of her husband/A1 and that too, a missed call only upon which
Smt. Satyawati used to call back. She used to inform about her plight
on phone and also personally as and when she visited Bulandshahar.
Smt Satyawati also sent clothes and 'gifts' for all the Inlaws of
Satyam upon their demands on the festivals.
3.7. She then described the jewelery articles that she had given
to her daughter Satyam on the asking of the A2 and also about the
articles that she gave to A3, A4 & A5 on the asking of Lala Ram
Yadav. She also described about the jewelery articles to A1 besides
the fact that she opened a Bank account in a Bank situated in
Bulandshahar having a credit of Rs.50,000/.
3.8. She has also described about the family function dated
07.11.2012 as a baby boy was born to her son Prashant (PW5)
regarding which she had made a telephone call to A2 for inviting her
but the said call was disconnected. She also called A3 who claimed
to be busy in Dussehra Function. She also told the SDM that she
Result: Acquitted Page 7 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
had sent her younger Son Nishant (PW18) to the house of the
accused persons on 06.11.2012 to invite them for the occasion by
giving a formal invitation card and also to bring back deceased
Satyam with him. She alleged that accused persons made her son wait
the whole day and also commented that as many as 50 such invitation
cards are received by them daily, of course, in a sarcastic manner.
Satyam was not sent to attend the function.
3.9. Then, on 08.11.2012, she came to know through PW18
that Satyam has been hanged by neck.
4. The charge sheet does not reflect but the SDM also, while
preparing inquest report Ex.PW21/C, recorded statement of PW5
Prashant Singh (Ex.PW5/C); of Smt Komal (Ex.PW21/A) and PW
18 Nishant Yadav (Ex.PW18/A) on the same day i.e. 08.11.2012.
Contents of these statements will be discussed later in this judgment.
4.1. On receipt of these statements, Insp Ram Phal Singh (PW
25) prepared a Rukka (Ex.PW25/A) on 08.11.2012 itself requesting
registration of a case U/s 498A/304B/302/406/34 IPC. On the basis
of said Rukka, he got a case FIR (Ex.PW14/B) registered on the
Result: Acquitted Page 8 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
same date and as per the endorsement of the Duty Officer (Ex.PW
14/A) that was made on the Rukka, the FIR was registered at DD No.
20A at 04.15 PM by Duty Officer HC Dharambir (PW14). The FIR
was handed over to HC Jagdeep (PW2).
4.2. Investigation was assigned to PW25 only. By then, he got
the spot inspected through the Crime Team, he took into possession
the broken door latch; got the postmortem on the dead bodies
conducted and handed over the same to the relatives of the victim;
necessary seizures were made and samples were preserved/deposited
for their results; the accused persons were arrested; marriage card and
marriage photographs were collected and postmortem report of
victims were obtained. Satyam was found to have died due to
'Asphyxia as a result of hanging' and all injuries were found
antemortem in nature while Baby Vanshika @ Vanshu was found to
have died due to 'Asphyxia as a result of antemortem ligature
strangulation'. Their Visceras were sent to FSL, Rohini and Viscera
results were later obtained. The IO also obtained list of Stridhan
articles. The charge sheet indicates that deceased Satyam had killed
her daughter namely Vanshika by strangulating her because the room
Result: Acquitted Page 9 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
was latched from inside and there was no way for any one to have
entered inside the latched room in which only the victims were
present. Minor child Vanshika could not have strangulated herself. It
was concluded that after killing Vanshika, Satyam made a Noose of
her own 'Chunni' and committed suicide. Charge sheet also indicates
that investigation had revealed that victim's husband/A1 was an
introvert and after the incident, the door of the room was opened by
A1, A4 and A5 and that all of them had entered together in the room
after which Vanshika was removed to the hospital by her father/A1.
A4 &A5 had rested the body (which was hanging from the ceiling
fan) of Victim Satyam on the bed situated in the same room. They
were hence charge sheeted for offences punishable U/s
498A/304B/302/406/34 IPC.
THE CHARGE :
5. Charge sheet was received in this Court on 16.02.2013. A detailed
order on charge followed on 06.06.2013. The Court found a prima
facie case U/s 498A/304B IPC and in alternative U/s 302 IPC against
all the five accused persons. The Court also found a prima facie case
against A1, A2 and A3 U/s 406/34 IPC. A formal charge was
Result: Acquitted Page 10 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
served on 06.06.2013. The accused persons pleaded not guilty and
claimed due trial.
6. This order was challenged in Hon'ble Delhi High Court in Revision
Petition i.e. Crl.R.P. No. 411/2013 which was disposed of by a
detailed order dated 17.04.2014. The accused persons were aggrieved
of the Alternative Charge
U/s 302 IPC that was framed against them
besides Section 304B IPC. It was observed that the order had no
mention of and the findings as to in what background the additional
charge U/s 302 IPC was made out and as such, the matter was
remanded back to examine it afresh and conclude as to whether
Additional Charge U/s 302 IPC was made out or not.
6.1. This was followed by another order on charge dated
25.07.2014 which ruled that there was sufficient evidence on record
to proceed against accused persons U/s 302/34 IPC.
7. Record reveals that A3 was granted regular bail on 04.01.2017. A
4 and A5 were granted Anticipatory bail on 05.12.2012 and
23.112.012 respectively. The remaining accused i.e. A1 and A2 are
still in judicial custody.
Result: Acquitted Page 11 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PROSECUTION EVIDENCE (IN BRIEF) :
8. Alongwith the charge sheet, the prosecution cited 28 witnesses
including the MHC(M) as per the list submitted by it. It has
examined 25 witnesses. Victim's sister Komal was cited as
prosecution witness no. 4. She was not examined by the prosecution.
The ld. Prosecutor made a separate statement on 14.10.2016 seeking
permission to drop her as a PW in view of the fact that on same facts,
PW4, PW5 and PW 18 had been examined.
8.1. The Table as below shall broadly indicate the name of the
witness, his/her role as per prosecution and short gist of their
testimonies/documents proved through them.
S.No. Name of the Evidence
Witness
/Nature
PW1 Ct.Dinesh Entrusted the custody of deadbody of baby
Kumar (On Vanshika @ Vanshu at Satya Bhama Hospital
Patrol duty on by IO.
08.11.2012)
PW2 HC Jagbir (On D.O.handed him copy of FIR and Rukka for
duty at PS handing over same to IO at the spot of
Nangloi on incident, which was handedover at about
08.11.2012) 05:25 PM on 08.11.2012.
Result: Acquitted Page 12 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW3 Ct.Binay This witness responded to DD no.13A with SI
Kumar (On Pankaj Saroha and found Satyam hanging from
emergency Ceiling fan. He controlled the crowd. SDM and
Crime Team reached in his presence. Deadbody was
duty at the PS unhung and taken to Satya Bhama Hospital. He
on 08.11.2012 collected body of Vanshika from PW1. Both
from 08:00 deadbodies were taken to the Mortuary. Postmortem
AM to 08:00 examination was conducted and deadbodies released
PM) to their relatives.
PW4 Smt.Satyawati The witness gave oral testimony and supported the
prosecution. She proved the following documents
(mother of
besides her oral testimony viz :
deceased
(i) Statement to SDM dt. 08.11.2012 as Ex.PW4/A.
Satyam)
(ii) One gold Chain given by her to the A1 at marriage
as Ex.PW4/P.1.
(iii) Pair of Silver colour Anklet, one Black colour
thread having Suraj & Chand Pendent and one pair of
golden Bali (earrings) given to Vanshu in Chhuchhak
Ceremony as Ex.PW4/P.2, P.3 and P.4 respectively.
(iv) Other articles produced by MHC(M) were proved
and identified as articles of Satyam handedover in the
marriage and Chhuchhak Ceremony as Ex.PW4/P.5
(colly.) i.e. 4 golden colour Bangles; 1 golden chain
with Pendent; 4 Golden ladies Rings; 3 pair of golden
Jhumkis; 2 pair of golden Tops; 1 golden Necklace and
3 pair of silver Anklets.
(v) Seizure Memo of above articles as Ex.PW4/B.
(vi) In crossexamination, she was confronted by defence
with her statement U/s 161 Cr.P.C. dt.16.11.2012
Ex.PW4/DA.
Result: Acquitted Page 13 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW5 Prashant This witness has given oral testimony in support of
Prosecution's case besides which he proves :
Singh (brother
(i) His signatures on Seizure Memo Ex.PW5/A;
of deceased
Satyam) (ii) Marriage Card Ex.PW5/A1;
(iii) 5 photographs Mark PW5/1 to 5 (colly.);
(iv) List of dowry articles Ex.PW5/A.2;
(v) His signatures on Seizure Memo qua some Jewellery of
Satyam and Vanshika, handedover by A4/ Deepti to IO as
Ex.PW4/B;
(vi) His signatures on Seizure Memo qua handing over of list
of remaining dowry articles to IO; details of Bank account of
Satyam and Six Jewellery Receipts as Ex.PW5/B;
(vii) His signatures on the balance list of dowry articles as
Ex.PW5/B.1;
(viii) Six Receipts of Jewellery articles as Mark PW5/6 to 11;
(ix) Bank account details as Mark PW5/12;
(x) He also deposed specifically that IO had returned Mobile
Phone of Satyam to him; that on 10.12.2012, he received a
phone call to not pursue this matter or else, face implication in
false case being govt. servant; received threat in Court no.109
on 13.05.2013 for which complaint was made to I/C PP, THC,
Delhi and that on 27.08.2014, a lady came to his Class room
(where he was teaching) claiming to be maternal grand mother
of A1 who threatened him to compromise this matter.
(Complaint/application in this regard was made and disposed
of).
(xi) Proves his statement to the SDM 08.11.2012 as
Ex.PW5/C;
(xii) His signatures on deadbody Identification Statement
Result: Acquitted Page 14 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
of Satyam and Vanshika Ex.PW5/D and Ex.PW5/F
respectively.
(xiii) Receipts qua deadbodies of Satyam and Vanshika
Ex.PW5/E and Ex.PW5/G respectively.
(xiv) In his crossexamination, he was confronted with
his statement U/s 161 Cr.P.C. dt. 16.11.2012 Ex.PW
5/DA.
(xv) Photographs Mark D.1 to D.15 (produced by
defence).
PW6 HC Sanjeev This witness is Police Photographer. On
Kumar 08.11.2012, he responded with Crime team
(Member, comprising of the Incharge ASI Azad Singh
Mobile Crime (PW7) and another member ASI Dharamvir
Team) Singh on a PCR Call and came to the spot of
incident where he met the IO and his staff.
He took photographs proved as Ex.PW
6/A.1 to A.8 with their negatives Ex.PW6/B
(colly.)
PW7 SI Azad Singh Like PW6, he was part of Mobile Crime
(Member/Inch team and witnessed the deadbody of a female
arge, Mobile suspending from Ceiling fan on second floor
Crime Team) of the house of accused persons where he
met the IO and other police officials. He
searched the spot and found no suicide Note.
He proved his report Ex.PW7/A.
Result: Acquitted Page 15 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW8 Ct.Sunil This witness received five envelops at 05:25
Kumar (On PM on 08.11.2012 for delivering them to
duty in PS on Sr.Police Officers and the Illaqa MM
08.11.2012) concerned which he did and returned to PS at
09:00 PM - 09:30 PM.
PW9 Insp.Mahesh This witness prepared Scaled Site Plan on
Kumar 15.01.2013 Ex.PW9/A after having
(Draughtsma inspected the second floor of the house of
n;Crime accused persons on 22.12.2012 on the basis
Branch) of his rough notes/measurements which he
later destroyed.
PW W/HC Runa This witness, on 23.11.2012, is a witness to
10 Rathore (On arrest of A2 vide Arrest Memo Ex.PW
duty in PS on 10/A. She conducted her personal search
23.11.2012) vide Memo Ex.PW10/B.
PW Ct.Rajesh (On This witness, on 23.11.2012, is a witness to
11 duty in PS on arrest of A3 vide Arrest Memo Ex.PW
23.11.2012) 11/A. IO conducted his personal search vide
Memo Ex.PW11/B signed by this witness.
Result: Acquitted Page 16 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW HC Krishan He deposes that on 08.11.2012, IO deposited one
12 Kumar Parcel sealed with the seal of RP and three parcels
MHC(M) sealed with the seal of SGMH alongwith one CPU
against entry no. 5134 in Register no.19, Ex.PW
12/A (OS&R).
The IO also deposited on 16.01.2013, one sealed
Parcel with seal of RP containing Jewellery articles
against entry no. 4666 in Register no. 19, Ex.PW
12/B (OS&R).
The witness deposes that on 03.12.2012, Viscera
box of deceased and her child with sample seal were
sent to FSL vide RC 157/21/12 Ex.PW12/C and
RC 158/21/12 Ex.PW12/D through Ct.Satyavrat
(PW15), who deposited the same in FSL, Rohini on
the same day under a Receipt Ex.PW12/E. All
originals were seen and returned. Witness deposed
that case property remained intact in his custody.
PW Dr.Gopal He deposes that on 08.11.2012, at about 07:50 AM,
13 Sharma Vanshu d/o A1 aged 1½ years was brought in his
(Director, hospital in dead condition by her grand father. He
examined her and found injuries as described in
SBH,
MLC which is duly proved as Ex.PW13/A.
Nangloi)
PW HC As duty officer from 02:00 PM to 06:00 PM, he
14 Dharamvir received Rukka sent by IO at 04:10 PM and
Singh (Duty registered FIR Ex.PW14/B (FIR register seen and
officer on returned) and made an endorsement (Ex.PW14/A)
on Rukka in red encircled portion.
08.11.2012)
Result: Acquitted Page 17 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW Ct.Satyavrat The witness collected Viscera and Sample seals on 03.12.2012
on the directions of IO vide RC no. 157/21 and 158/21 and
15 (on duty in PS deposited the same in FSL in intact condition and deposed that
on Receipt was given on the same day to the MHC(M).
03.12.2012
PW Dr.Manoj It is deposed that on Written request of SDM Ex.PW16/A, the
MS constituted a Medical Board comprising him, Dr.Munish
16 Dhingra (MO Wadhavan and Dr.Brijesh Kumar for conducting
I/C Sanjay P.M.examination on bodies of Satyam aged 26 years and
Gandhi Vanshika aged 1½ years respectively. He identified his
signatures on photocopy of application Ex. PW16/B and
Memorial submitted that two more applications were made to SDM in this
Hospital) context which also were signed by him as Ex.PW16/C and
Ex.PW16/D respectively. He provided the details of P.M.
examination report and opinion in his testimony and clarified
that Inquest papers were 17 in number on which the Members
of the Board had duly signed.
He has proven P.M.Report of Satyam Ex.PW16/E by
identifying his signatures at point A, of Dr.Munish Wadhavan
at Point B and of Dr.Brijesh Kumar at Point C.
He has also proven P.M.Report of Vanshika Ex.PW16/F by
identifying his signatures at point A, of Dr.Munish Wadhavan
at Point B and of Dr.Brijesh Kumar at Point C.
He deposed that the Board collected Viscera, Blood sample
and clothes of deceased Vanshika, preserved them and
handedover to the IO in sealed condition.
He also deposed regarding subsequent opinion on cause of
death of deceased Satyam prepared by Dr.Munish Wadhavan
which is Mark PW16/SO.
Result: Acquitted Page 18 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW Bijender As per the statement of this then Congress MLA,
17 Singh Mark PW17/A dt. 31.01.2013, he deposed to the
(Prosecution's police that he had gone to the place of incident where
witness to prove he observed that Satyam was hanging from Ceiling
that Satyam was fan and that Room door was latched from inside; that
hanging with Fan A1, A4 and A5 had broken the door latch and
and he called the entered inside the Room with him; that A4 and A5
PCR from his rested Satyam on bed where Vanshika was also lying
Cell Phone and who was moved to SBM hospital; that A1 was of
other facts
good nature, an introvert and of Shy nature and that
regarding his police conducted investigation in his presence.
visit to the place
of incident). When examined in Court, he deviated from his
above statement and hence, was declared hostile by
prosecution and subjected to Crossexamination
leading to confrontation with Mark PW17/A.
PW Nishant This witness, a Govt.employee, is the Prosecution's
18 Yadav (Elder witness in support of its case which he did in his oral
testimony and proved :
brother of
deceased (i) His statement dt. 08.11.2012 to the SDM
Satyam) Ex.PW18/A;
(ii) His signatures upon Seizure Memo Ex.PW5/A
(iii) His signatures upon Seizure Memo Ex.PW
5/A.2.
(iv)In crossexamination, he was confronted with his
statement U/s 161 Cr.P.C. Ex.PW18/DA.
Result: Acquitted Page 19 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW Ct.Poonam The witness deposed that during her duty
19 (On duty in hours, at 08:12 AM, she received PCR Call
CPCR, PHQ from then MLA, Nangloi Sh.Virender Singh
on regarding this incident and proved the PCR
08.11.2012) form Ex.PW19/A.
She had forwarded this information to the
Communication Cell of the PCR.
PW Dr.Kanak She was posted as Sr.Scientific Officer
20 Lata Verma (Chemistry) in FSL, Rohini, Delhi in
(Ast.Director, December, 2012 and January, 2013. She
RFSL, received two sealed Plastic Containers
Chankya through Ct.Satyavrat on 03.12.2012 and
Puri) examined them between 14.12.2012 and
05.01.2013. The seals were intact and tallied
with Specimen Seal. The containers
consisted of Viscera Samples of the deceased
persons in this case. No Poison was
detected. Her Report is Ex.PW20/A.
Result: Acquitted Page 20 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW Hukam This witness also supported the Prosecution's case. He
received information regarding incident on 08.11.2012 at
21 Chand (the
about 09:30 AM and was picked up from Nangloi Mode
then SDM) by officers of PS Nangloi and taken to place of incident
where he found Satyam Yadav had committed suicide by
hanging with Ceiling Fan. In his presence, the Knot of
the Chunni was cut off from the Ceiling Fan end and
deadbody was brought down. It was searched by lady
police officials for Suicide Note but none was found. He
took steps for preservation of deadbody for postmortem
and informed parents of deceased on which the mother,
two brothers and one sister of deceased reached the spot.
They were taken to his office where he recorded
statement of mother Ex.PW4/A; brothers Prashant and
Nishant Ex. PW5/C and Ex.PW18/A respectively as
well as of sister Komal Ex.PW21/A. Family members
of deceased made written request for P.M.examination by
a Panel of Doctors which is proved as Ex.PW21/B
pursuant to which he submitted request Ex.PW16/A
before MS, SGMH for Postmortem by a Penal of Doctors
and submitted a prescribed format for Postmortem
Ex.PW16/C.
He was also told about Vanshika who was taken to
hospital in unconscious state. He also requested for her
Postmortem vide Request Ex.PW16/D. He prepared
Inquest Report Ex.PW21/C and directed the police for
investigation vide Letter Ex.PW21/D. Ornaments on
body of deceased Satyam were seized in his presence and
given to Police vide Ex.PW21/E.
Result: Acquitted Page 21 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW ASI Raj Singh This witness was D.O. on 08.11.2012 from
22 (on duty in PS 12 AM till 08:00 AM and received
on information at 08:20 AM from Control room
08.11.2012) that a lady had committed suicide by hanging
in H.No. 96, Ahir Mohalla, Nangloi, Delhi.
He recorded DD no.13A and assigned it
to ASI Pankaj through Ct.Binay. The
Handwritten Certified copy of DD no.13A is
proved as Ex.PW22/A (OS&R).
PW Puneet Sarin He was called by Prosecution to prove that
23 (Manager, Satyam Yadav held a Bank Account at the
HDFC Bank) Bullandshahar Branch of the Bank
bearing A/C No. 07701930006094 w.e.f.
28.11.2009.
Account Statement is Mark PW23/A and
the letter forwarding the A/C statement till
15.12.2016 is Ex.PW23/B. The Nominee is
Mr.Nishant Yadav (PW18) and the account
is presently "Dormant".
Result: Acquitted Page 22 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW SI Pankaj The witness supports Prosecution in respect of
24 Saroha (First preliminary investigation that he conducted himself
and then alongwith the case IO. He responded to DD
IO)
no.13A (Ex.PW22/A) and reached the spot where
he noticed a lady hanging with 'Dupatta' from
Ceiling Fan. He informed his Superiors who reached
the spot. Crime team was called in his presence and
SDM also arrived in his presence. They also
discovered facts about baby Vanshika and that she
was declared "dead" at the hospital. The witness
proves following documents Viz :
(i) Rough Site Plan Ex.PW24/A;
(ii) Seizure Memo of broken portion of latch lying on
the Floor Ex.PW24/B;
(iii) Seizure Memo of CPU Ex.PW24/C;
(iv) Seizure Memo of Pullanda of Dupatta, Ex.PW
24/D;
(v) Seizure Memo of Pullanda of Viscera/Clothes of
Satyam Yadav Ex.PW24/F;
(vi) Arrest Memo of A1 Ex.PW24/G;
(vii) Disclosure statement of A1 Mark PW24/H;
(viii) One Pink & White coloured Chunni in two
pieces Ex.PW24/P.1;
(ix) CPU Ex.PW24/P.2;
(x) Broken piece of door latch and one Screw
Ex.PW24/P.3 (colly.)
Result: Acquitted Page 23 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
PW Insp.Ram Being IO, the witness deposed about the entire
25 Phal (Case investigation conducted by him in support of the
Prosecution's case. He has also stood in support of
IO)
PW24 as well as the other Prosecution witnesses
including the PW4, PW5, PW18 and also the
police witnesses who assisted him in the
investigation. Besides the documents already
proved, he proved the other documents which are :
(i) His endorsement on Tehrir Ex.PW25/A for
registration of FIR;
(ii) Site Plan (without Scale) that he prepared is
Ex.PW24/A;
(iii) Seizure Memo of broken door latch and a Screw
that he made after sealing it with the seal of RP,
Ex.PW24/B;
(iv) Duly sealed pullandas with the seal of SGM
hospital containing Viscera/clothes of deceased and
two pieces of Chunni that he had prepared are
Ex.PW24/E and Ex.PW24/F respectively;
(v) Entire case property was produced before him
which has been referred earlier by their respective
exhibits which he identified in the court during his
testimony.
(vi) He specifically deposed about the other exhibits
that have been proven by the other prosecution
witnesses submitting that no incriminating material
was found in the CPU Ex.PW24/P.2.
Result: Acquitted Page 24 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
DEFENCE U/S 313 CR.P.C. :
9. When the incriminating evidence by Prosecution was explained
separately to all the accused persons, they took common defence and
hence, the said common defence is summarised in this Paragraph. To
begin with, the accused persons have not denied the factum of
marriage between deceased Satyam and A1 on 16.02.2010 and that
after marriage, she resided in her matrimonial home in Nangloi.
9.1. They have however, denied in unison about any demands
for dowry at the time of marriage in the form of any dowry article or
in cash of Rs.6 lacs for purchase of a Car or there being demand for a
Honda City Car. They have denied that they received any Gold or
Diamond articles as Dowry at the time of marriage. A3 specifically
denied that she had ever taken the Gold ornaments belonging to
Satyam Yadav after one week of marriage. Other accused persons
have also denied this fact.
9.2. They have also denied that they ever harassed Satyam with
respect to dowry and quality of dowry articles.
9.3. They do not dispute that Vanshika was born to Satyam but
they have denied that they made any demand of any article on the
Result: Acquitted Page 25 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
occasion of 'Chhuchhak Ceremony'. They have denied receipt of
any dowry Ornaments in 'Chhuchhak Ceremony'.
9.4. They also denied that A2/Lala Ram Yadav had ever
forced/compelled Satyam to contest Elections for Municipal
Councilor or that they ever demanded Rs.50,000/ towards Elections
expenses. They denied to have given beatings to Satyam on non
fulfillment of the demand. They also denied that PW18 ever gave
them the amount of Rs.50,000/ as stated to have been given by him
to A3.
9.5. They have denied that there ws any telephonic
conversation on 05.11.2012 between deceased and PW4 with respect
to any quarrel between Satyam and A2.
9.6. They also denied visit of PW18 to their house on
06.11.2012 which he says that he made with intent to invite them for
"Kuan Poojan" Ceremony of PW4's grand Son and hence, denied
any demand of Rs.10 lacs and Honda City Car etc. Infact, they
denied entire evidence regarding visit of PW18 to their house on
06.11.2012.
Result: Acquitted Page 26 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
9.7. They also denied to have not given permission to Satyam
to attend "Kuan Poojan/Naamkaran Ceremony" of son of PW5.
9.8. A1 admits that he took his daughter Vanshika to the
hospital without claiming knowledge of any additional facts.
In complete denial to the Prosecution's case except where it was
"matter of record", the accused persons took plea that they have been
arrested on false grounds. Regarding seizure of Jewellery articles
from their house, it is submitted that the said Jewellery also included
Jewellery of A2 which was wrongly claimed by the complainant.
9.9. Their defence is that the case is false and wrong. It has
been registered by complainants in order to cover up their own
misdeeds and ill behaviour towards Satyam. They claim that Satyam
was an Elected Councilor of MCD and had freedom to move around
in the Constituency, where she used to meet Senior officers of MCD,
Police department and other agencies almost every alternate day.
Moreover, she was attending two offices almost daily which were
situated in the Constituency. They claimed that she never had any
complaint against anyone including the husband/A1 or other family
members. The defence has rated the witnesses as "Interested".
Result: Acquitted Page 27 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
Defence also claimed that more witnesses in the vicinity of their
house had been examined and inquired but not cited as Prosecution
witnesses.
Hence, all the accused persons opted to lead Defence Evidence.
DEFENCE EVIDENCE :
10. The defence has examined five witnesses, who are all summoned
witnesses.
Their brief testimonies are tabulated as here under :
S.No. Name / Nature Evidence
DW1 S.K.Bansal He was summoned to produce record pertaining to MCD
Elections held in April, 2012. Same had been destroyed as
(Supdt. State per Rules. He produced copy of Note Sheet regarding
Election destruction of record and his authorisation to appear in the
Commission) Court which is Mark DW1/A.
DW1/B (colly.) is certified copy of a Nomination
Form Receipt alongwith annexures which was shown to him
by defence and as per the witness, it seemed to him that it was
issued from the office of Returning Officer, who accepts
documents of a Covering Candidate for Elections contested
by the Main Candidate on Ticket of an established National
Political Party.
Result: Acquitted Page 28 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
DW2 Tejinder Yadav He was posted in MCD Ward 43,
(Asstt.Sanitary Nangloi Since 2008 and his duty includes
Inspector/MCD) maintenance of sanitation in the Ward.
Thus, he was constantly in touch with
Area Municipal Councilor i.e. deceased
Satyam in the year 2012 in connection of
his official duties as she remained the
Councilor for 6 months. He used to meet
her daily and had official interactions
during which he had no discussion about
her personal life.
DW3 Sanjay Yadav He is familiar to A3 and his family
(immediate members being immediate neighbour and
neighbour of visited their house as a neighbour and also
accused comember of same Community. Police
persons) made inquiries from him and he informed
that relations between Satyam and her In
laws were cordial. Satyam was a Councilor
and visited different places. Police had
not recorded his statement despite oral
inquiries not only from him but also other
locals/neighbourers.
Result: Acquitted Page 29 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
DW4 Rekha Yadav Her house is just opposite to house of accused persons
at a distance of 10 Feet where she used to visit
(Neighbour of
occasionally and interact with them including
accused deceased. Police never met her during investigations.
persons) She never came across any complaint from Satyam
against her Inlaws or even by her Inlaws against
Satyam. Relations between Satyam and A3 were said
to be very very cordial to the extent that nobody had
any complaint against each other.
DW5 Upender Kumar He deposed to be familiar with Bijender Singh/PW17
who was an MLA from Nangloi and also as he works
(Asstt.in Delhi
as his P.A. in the Bank. Bijender Singh is the
State Co Chairman of the Bank, who has a private Office at
operative Bank) Plot No.2, Main Rohtak Road, Nangloi and also at G
69, Nihal Vihar, 50 Foota Road, Delhi where this
witness used to visit in 2012, when Satyam was the
Municipal Councilor. She used to sit in the office of
Sh.Bijender Singh situated in Nangloi. He also used to
sit with her and Bijender Singh in the same room and
had interactions with her. Satyam was visiting
Nangloi office 2 or 3 times in a Week. This witness
was not aware about her Visits to Nihal Vihar office.
He had no conversation with her regarding her
personal matters.
ARGUMENTS BY LD.ADDL.P.P.FOR THE STATE :
11. The ld.Prosecutor Mr.B.B.Bhasin has broadly submitted that the
Prosecution's case against the accused persons stand duly proved
beyond any reasonable doubt on all the charges. Ld.Prosecutor has
provided brief summary of facts highlighting that the door of the
Result: Acquitted Page 30 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
room where the Victims were found dead was opened by force from
outside as the broken latch was found lying on the floor.
11.1. After having highlighted the same, the Ld.Prosecutor has
drawn special attention of the Court to the Photograph Ex.PW6/A.6
which was taken at the Crime Scene in which the deceased Satyam is
seen in a sitting posture on the bed with the intact Chunni (later
seized in two pieces Ex.PW24/P.1 vide Memo Ex.PW24/D) still
tied to her neck at one end and the Ceiling fan at another. It is pointed
out that her one foot can be seen slightly rested on the floor while the
other is just above the floor. This photograph has been pointed out by
the Prosecutor specifically to highlight that the members of the Crime
Team had found the Victim in the same position as is depicted in the
picture and which fact is verifiable from the Crime Team Report
Ex.PW7/A which mentions that the Victim was found in "sitting
straight position" and "latch Cap found on Lobby wooden door". It
is further highlighted that the Crime Team Report makes no mention
of availability of any Stool/table or any other such object that could
have been used by the Victim for tying the Noose with the help of her
Dupatta so that the Victim could reach upto the Ceiling Fan.
Result: Acquitted Page 31 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
11.2. The Ld.Prosecutor further proceeded to demonstrate from
the Medical Records and the Subsequent Medical Opinion regarding
Report Ex.PW20/A of the Victim Satyam including P.M. Report
Ex.PW16/E that the same provide that the death was due to hanging
(Asphyxia) but no opinion is given by the concerned doctor if the
death was 'Homicidal or Suicidal'.
11.3. He points out that the FIR was registered also for offence
Punishable U/s 302 IPC and even the Chargesheet has been filed
indicating Commission of the said Offence. It is stressed upon that
Section 302 IPC was never deleted from the FIR and therefore, the
IO was obligated to investigate the case for Commission of the
greater offence also which he failed to do. Expressing concern over
this conduct of the Case IO, Mr.Bhasin even went to the extent of
submitting that the IO appears to be "Motivated" in not investigating
the case at all for offence U/s 302 IPC despite the above pointed clear
anamolies and instead focused himself only on the investigation of
lesser offences U/s 304B, 498A and 406 IPC. The Ld.Prosecutor has
thereafter built up his Case as per evidence on record regarding
Sections 304B IPC and 498A IPC. No specific submissions were
Result: Acquitted Page 32 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
made on either side with respect to evidence qua offence Punishable
U/s 406 IPC.
12. It appeared from the arguments of the Prosecution that the
Ld.Prosecutor was well aware of the lacunae in his case and hence, he
began with PW17 /Bijender Singh who is shown as the PCR caller. It
is urged that his Court testimony is not relateable to his statement
made to the police. It is submitted that his Court testimony shows that
being local MLA at the relevant time, he was in regular touch and
had also visited the house of the deceased on 08.11.2012 to greet her
birthday wishes and was informed by A3 that she was in her Room
on Second Floor. He went there and knocked on the door but in
absence of any response, he forced the door open and found Satyam
hanging by neck from Ceiling Fan and her child on the bed in
unconscious state. As per him, A1 was in the house besides some
other persons. A3 suggested to open the Noose and bring the body
down but he insisted for informing the PCR. Ld.Prosecutor submits
that since the said statement was in contrast to his earlier statement,
he was declared hostile and therefore, crossexamined and confronted
with his Statement Mark PW17/A dt. 31.01.2013. The Ld.Prosecutor
Result: Acquitted Page 33 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
urges that since the witness "disowned" his earlier statement, it
would not imply that the said statement was incorrect as it has been
confronted with wherein some parts of the statement are admitted.
Particular attention is drawn to the part of his police statement where
he claimed that information regarding death of Satyam was received
by him and therefore, he had prior knowledge regarding her death.
13. It is submitted that in any case, PW17 has still supported the
prosecution in establishing that Satyam was a brave hearted and
Cheerful lady and despite this she was found to be little gross and
with tears in her eyes on 07.11.2012 and on being prompted for the
reason for it, she told PW17 that her proposed visit to her parental
house could not materialise as her parents did not invite her.
According to the Prosecutor, latter part of the statement is motivated.
14. The Ld.Prosecutor then referred to PW18 Nishant Yadav
submitting that he is the most relevant witness to the Prosecution as
he dealt with all the aspects personally. He, being brother of Satyam,
had visited house of deceased and accused persons on 06.11.2012 for
inviting them for the 'Naamkaran/Kuan Poojan Function' of son of
PW5/his elder brother on 07.11.2012. It is submitted that there is
Result: Acquitted Page 34 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
corroborative evidence that PW5 could not himself go to invite the
family members of Satyam as his daughter namely 'Raashi' was
hospitalised in MAX hospital. Same reason is found in the statement
of PW5 also and that the defence had also crossexamined him on
this aspect. The testimony was readover in the Court in order to show
that there were regular demands for dowry and even on 06.11.2012,
the accused persons had demanded Rs.10 lacs and a Honda City Car
and that they had given beatings to Satyam in his presence. It is
submitted that even on 08.11.2012, the witness had reached house of
Satyam and found that she was hanging from Ceiling Fan. It is
submitted that this testimony is also corroborated by PW5 and PW
18.
15. Ld.Prosecutor then referred to the fact that the suggestion of
defence to the Prosecution witnesses that PW5 had never visited the
house of deceased Satyam as he was having strained relations with
Satyam is contrary to the defence disclosed by the accused persons in
their statements U/s 313 Cr.P.C.
16. It is submitted that PW4 and PW5 have categorically testified
Result: Acquitted Page 35 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
about the incident dt. 06.11.2012 and supported PW18 which is
definitely an incident "Soon before death" of Victim Satyam and
therefore, it is urged, that the court may draw presumption against the
accused persons U/s 113B of the Indian Evidence Act to the effect
that the accused persons have caused dowry death within the meaning
of Section 304B IPC.
17. The Prosecutor has again referred to the testimony of PW18
recorded on 14.10.2016 and has urged that the incident described
regarding his visit on 06.11.2012 had been shared with PW4 and
PW5 and that both of them have also deposed regarding it. It is
submitted that testimonies of PW4 & PW5 regarding the said
incident cannot be treated as "hearsay" as it is relevant being
"Conduct" U/s 8 of the Indian Evidence Act. It is urged that this
fact has been also put to the SDM Sh.Hukum Chand/PW11 in his
crossexamination. It is further urged that there are three previous
statements of PW18 U/s 161 Cr.P.C. dt. 16.11.2012; 23.11.2012
and 16.01.2013. He mentioned about this fact in his first statement to
the police and reiterated its correctness in the other two statements.
Result: Acquitted Page 36 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
He affirmed the same also in his Court testimony.
Attention of the Court is drawn to the statement of
PW4/mother of Victim who deposed that A3 had come to her house
at Bullandshahr to take away the Victim so that she could contest the
Municipal Elections in 2012 as Nangloi Seat was declared as
Reserved Seat for women and as her daughter was highly educated
being B.A.,M.A., B.ed. Later, accused persons demanded Rs.50,000/
for expenses towards Elections and that the demand was fulfilled as
PW4 sent her Son/PW8 to the house of Satyam to deliver
Rs.50,000/ to her. It is submitted that this testimony also establishes
that demand for dowry was also made at the time of Elections which
as per other evidence on record, took place in the month of
March/April, 2012 and which fact can be gathered from statement of
PW5 (recorded by the SDM) Ex.PW5/C.
18. It is further pointed out that the demands for dowry and
harassment /cruelty on that count can also be seen from the fact that
PW4 categorically stated on Oath that the harassment started after six
months of the marriage of Satyam and A1. It continued and was
repeated 10 days after 12.03.2011 when baby Vanshika was born to
Result: Acquitted Page 37 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
Satyam and A1. Demand for specific dowry articles was made in the
guise of "Chhuchhak Ceremony". This fact is also recorded in her
statement U/s 161 Cr.P.C. It is submitted that PW4 categorically
stated that though she had no capacity to pay however, she gave the
articles as demanded so that her daughter was not harassed for dowry.
Mr.Bhasin submitted that the defence never asked any
material prosecution witness (including PW4) as to how he/she
arranged for the dowry articles/money to pay even though PW4 did
not have the requisite capacity to pay.
Mr.Bhasin also submitted that the same aspects are
noticeable in the statement of PW5 also. Regarding the death of
minor child Vanshika, attention of the Court is drawn to Ex.PW16/F
i.e. her Postmortem Report which reveals that the cause of death was
"Strangulation". It is submitted that neither the IO nor PW24/SI
Pankaj Saroha investigated as to which ligature material was used in
strangulating her even though the IO had drawn a conclusion that it
was Satyam who killed the minor Child and despite the fact that as
per the Medical Board Opinion, cause of death was "due to asphyxia
as a result of Antemortem ligature strangulation".
Result: Acquitted Page 38 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
19. Lastly, the Ld.Prosecutor took the Court through Defence
evidence submitting that no help is derived by the accused persons as
none of the witness produced in defence was in close proximity with
the Victims.
DEFENCE ARGUMENTS :
20. Mr.S.P.Kaushal, ld.defence counsel appearing for all the accused
persons opened arguments submitting that in view of submissions
made by Mr.B.B.Bhasin, ld.Prosecutor on Section 302 IPC, it is an
admitted case that matter was not investigated for it. According to
him, the Alternate Charge U/s 302 IPC cannot be considered
alternatively in view of the Judgment of the Hon'ble Apex Court in
case titled as J asvinder Saini & others vs. State (Goverment of
NCT of Delhi) (2013) 7 SCC 256 holding that ;
"The direction issued in Rajbir, (2010) 15 SCC 116 was not meant
to be followed mechanically and without due regard to the nature
of the evidence available in the case. The Supreme Court in Rajbir
case meant to say that in a case where a charge alleging dowry
death is framed, a charge under Section 302 IPC can also be
framed if the evidence otherwise permits. No other meaning can
be deduced from the order of the Supreme Court". (Para 14)
"The question whether it is murder punishable under
Section 302 IPC or a dowry death punishable under Section 304B
Result: Acquitted Page 39 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
IC depends upon the fact situation and the evidence in the case. If
there is evidence whether director or circumstantial to Prima facie
support a charge under Section 302 IPC the trial court can and
indeed ought to frame a charge of murder punishable under
Section 302 IPC, which would then be the main charge and not an
alternative charge, as is erroneously assumed in some quarters. If
the main charge of murder is not proved against the accused at the
trial, the court can look into the evidence to determine whether the
alternative charge of dowry death punishable under Section 304B
is established. The ingredients constituting the two offences are
different, thereby demanding appreciation of evidence from the
perspective relevant to such ingredients. The trial court in that
view of the matter acted mechanically for it framed an additional
charge under Section 302 IPC without adverting to the evidence
adduced in the case and simply on the basis of the direction issued
in Rajbir case".
21. Ld.Defence counsel has then drawn attention of the Court to few
specific dates, Viz :
(a) Date of marriage - 16.02.2010;
(b) Date when Vanshika was born - 12.03.2011;
(c) Date of Elections - 10.04.2012 ; and
(d) Date of Incident - 08.11.2012.
21.1. The time gap between various phases has been pointed
out. It is submitted that there is a gap of about 20 months (approx.)
Result: Acquitted Page 40 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
between the birth of Vanshika and death of Satyam and Vanshika. It
is pointed out that there is a time gap of approx. 07 months between
the date when deceased Satyam was elected as a Councilor and the
date of incident. It is also pointed out that there is a time gap of about
two years and nine months approx. between the date of marriage and
the date of incident.
21.2. In the context of the above time gap between the above
mentioned various phases, the defence counsel based his arguments
on four broad points i.e.
(1) "Soon before death" Evidence thereupon.
(2) "Major contradictions" - In testimonies of PW4, PW5 and
PW18
(3) "Drastic Improvements" In testimonies of PW4, PW5 and
PW18
(4) "Faulty Investigation" by case IO/PW25 as well as First IO/
PW24.
22. The defence has tried to demonstrate as to how the testimony of
PW18 (to begin with) stated to be corroborated by PW4 and PW5
Result: Acquitted Page 41 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
by the Prosecution, is not reliable. In doing so, he simultaneously
covered other three aspects as in Para 21.2 above.
22.1. This argument is based on the primary evidence that
Prosecution produced to support the last incident of
Cruelty/harassment for dowry as well as demand of dowry by the
accused persons, particularly A2. The court has given brief
description of what PW18 stated to the SDM Sh.Hukam Chand /PW
21 in his statement dt. 08.11.2012 (proved by this witness himself as
Ex.PW18/A) and also as to what he has stated to the IO in his
statement U/s 161 Cr.P.C. dt. 16.11.2012 (Ex.PW18/DA). It was not
recorded by the SDM but by a Clerk in the office of SDM/PW21
and the witness did not remember if the SDM was present at the time
of recording of his said statement.
22.2. The defence pointed out that the witness was confronted
with both statements in his Court testimony in order to show that
there are major contradictions and drastic improvements upon them.
Regarding his visit dt. 06.11.2012 to the Nangloi house of accused
persons for purpose of delivering the Invitation Card of "Naamkaran
Result: Acquitted Page 42 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
Ceremony" of Son of PW5, it is urged that if the same is to be
believed, then the witness had gone only for purpose of invitation and
not to make any complaint against alleged cruel behaviour of the
accused persons against the Victim Satyam.
22.3. Without admitting the visit at all, defence urged that there
is no corroborative evidence regarding his visit dt. 06.11.2012 as the
IO did not recover the said Invitation Card which ought to have been
recovered on the date of incident or even thereafter when it was stated
to have been given to the accused persons two days prior to the
incident. It is urged that Mobile Phone records of PW18 have not
been collected by IO to show his presence at Nangloi, Delhi for
almost the entire day of 06.11.2012 even though the witness is a
resident of Bullandshahar, U.P. where he resided even on
06.11.2012 and also on date of incident. It is submitted that there is
no investigation as to how PW18 travelled to Delhi from
Bullandshahar on 06.11.2012. It is pointed out that as per the
evidence on record, the Invitation Cards are shown to have been
printed on 01.11.2012 but no effort was made for formally inviting
Result: Acquitted Page 43 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
the accused persons or even Satyam prior to 06.11.2012 except the
plea of PW4 in her statement to the SDM Ex.PW4/A regarding
phone call on Dusshera which was on 24.10.2012. It is urged that the
Prosecution did not prove any medical documents to show that
daughter of PW5 namely Raashi was admitted in Max hospital,
Noida (as claimed) and therefore, PW5 was incapacitated to visit
himself for inviting the accused persons/Satyam even though he was
serving as a Primary Teacher in an NDMC School in Chankya Puri,
Delhi at the relevant time and residing in Noida.
22.4. The defence has been prompt in pointing out that if PW
18 is to be believed then as per his police statement dt. 16.11.2012,
the accused persons gave beatings to Satyam and said to her that if
her family does not give Rs.10 Lacs and Honda City Car, she will
not be sent to attend the "Naamkaran Ceremony Function" on
07.11.2012. It is contended that in his statement to the SDM Ex.PW
18/A, PW18 was silent about any such demand on 06.11.2012.
When juxtaposed to the same, PW4 submitted in her statement to the
SDM that PW18 was sent for inviting the accused persons on
Result: Acquitted Page 44 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
06.11.2012 and overwriting on date is present. However, in her
subsequent statement to the police on 16.11.2012 Ex.PW4/DA, she
improved upon her version to the SDM submitting that Nishant
visited on 06.11.2012 when all five accused persons gave beatings to
Satyam and made a demand for Rs.10 Lacs and Honda City Car.
This is said to be a major contradiction as also a major improvement.
22.5. It is further submitted that if the demand for Honda City
Car and Rs.10 Lacs in cash was made on 06.11.2012, it could not
have been made earlier as per own version of PW18 evident from his
police statement dt. 16.11.2012 wherein he makes no mention of such
demand prior to 06.11.2012.
22.6. To buttress these arguments, it is pointed out that PW4
again contradicted herself and made a major improvement on her
statement to the SDM when she told the police (against her earlier
statement to the SDM) that no Car was given as dowry in the
marriage and the accused persons had demanded a Honda City Car.
22.7. The attention of the Court is then drawn to Court
statement of PW18 wherein he deposed that on his visit to Nangloi
Result: Acquitted Page 45 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
on 06.11.2012, A2 had said that till date, brother of Satyam had not
brought Rs.10 Lacs. All five accused persons then beat Satyam in his
presence and said that until she brings Rs.10 lacs and the Honda City
Car from her home, she will not be permitted to attend the
"Naamkaran Ceremony". This point is specifically laid emphasis
upon to show that for reasons best known to him and also the other
Pws, the PW18 introduced the case that Satyam's brother had not
brought Rs.10 lacs till date. It is therefore urged that factum of visit
of PW18 on 06.11.2012 is not corroborated and in any case even if
PW18's version in the Court is taken as Gospel's truth and the same
treatment is also given to the SDM statement of PW4 that no Car
was given in marriage as a Honda City Car was demanded then
itself, than this demand can very well said to be a very very stale
demand that is shown to have been made (against preliminary
evidence) at the time of marriage itself and never repeated specifically
till 06.11.2012.
22.8. In the same context, it is also urged that testimony of
PW4 shows that she alleges PW18 to have been put to wait for
Result: Acquitted Page 46 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
almost the entire day time of 06.11.2012 at Nangloi. It is said to be
further revealing that the alleged demand/beatings were made/given
on 06.11.2012, which is not believable as the "Naamkaran
Ceremony" was to be held at Bullandshahar on the very next day i.e.
07.11.2012 and also the fact that the daughter of PW5 is said to have
been hospitalised at Max Hospital, Noida during this period. It is
urged that it is not expected of PW18 to have waited for the entire
day as claimed. It is said to be further unbelievable as if such a
demand was indeed made, then the same was unreasonable and could
not have been fulfilled as the Function was in the morning of very
next day i.e. 07.11.2012 at 07:00 AM while PW18 was still at
Nangloi for whole day of 06.11.2012.
23. The defence then tried to demonstrate that the alleged demand of
Rs.50,000/ in cash by the accused persons for meeting out Elections
Expenses for Elections to be held on 10.04.2012 cannot be said to be
"Soon before death" by any stretch of imagination. It is urged that
during the interregnum, no specific demand, their date or even month
has been shown. Here, the defence is focusing on the period between
Result: Acquitted Page 47 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
the visit of A3 to Bullandshahar when he took his daughter in
law/Satyam back from her Parental house to Delhi so that she could
contest the Elections for Municipal Councilor, and till the date of
incident i.e. 08.11.2012. Attention of the court is drawn to the oral
testimony of PW4, PW5 and PW18 in this context.
24. Here the defence has also targeted the Prosecution by arguing
that Komal, the Sister of PW5 and PW18 as well as daughter of
PW4, has been dropped by the prosecution despite the fact that she
was examined not only by the SDM but also by the IO. It is
submitted that Court has to draw the presumption that the said
witness has been finally dropped being vulnerable and unable to
perhaps stand the stringent test of crossexamination. It is submitted
that she was amongst those prosecution witnesses who is said to have
also visited house of the deceased on the date of incident but still she
is not before the Court.
25. In order to further demonstrate the first three heads of arguments
i.e. "Soon before death", "Major Contradictions"; "Drastic
Improvements", the defence urged to compare the previous
Result: Acquitted Page 48 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
statements as well as the Court testimony of PW5 and also compare
the same with testimonies of the other two material witnesses PW4
and PW18. It is urged that there are glaring differences regarding the
alleged demands for dowry, Cruelty/harassment for or in connection
with demand for dowry and particularly in respect of the alleged
demand of Rs.10 lacs and the Honda City Car.
26. Attention of the Court is drawn to statements Ex.PW5/C and
Ex.PW4/A as well statement Ex.PW18/A. It has been urged that
there is a clear and startling difference amongst the three versions
with respect to the demand of Rs.10 lacs and the Car. It is submitted
that as per PW18, no such demands are shown in his statement
Ex.PW18/A. It is submitted that in Ex.PW4/A also, no such
demand is reflected. It is further urged that even in Ex.PW5/C, the
allegation of demand of Honda City Car and Rs.10 lacs is shown to
have been persistent throughout the marriage without any
specification of such dates even though in the Court testimony, the
PW5 admitted that he gave only three instances of such demands i.e.
the date of Marriage 26.02.2010; date of Election 10.04.2012 and the
Result: Acquitted Page 49 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
date of alleged visit of PW18 to Nangloi i.e. 06.11.2012. It is argued
without accepting the claim of Prosecution that even if the demand
for the Honda City Car or even the demand for Rs.10 lacs is taken by
this Court to have been proved then also, these demands, being inter
miltent, cannot be said to be "Soon before death" of Victim Satyam.
It is submitted that even the statement of Smt.Komal Ex.PW21/A is
silent about any such demand allegedly made in the subsistence of the
Marriage or even on 06.11.2012 as alleged.
27. It is next argued that as per own case of the Prosecution, the
Victim had a Mobile Phone which was never seized by the IO and
allegedly returned to PW5 by him. PW5 never produced this
Mobile Phone or even provided the Mobile Number used in the said
phone by Satyam. It is contended that no Call Detail Record has
been obtained by the IO of the Case to establish that there was regular
communication between Satyam and her parental family members as
alleged. It is contended that Satyam had another Mobile Phone in
her official capacity provided to her by the MCD as she was a Sitting
Councilor. No investigation was carried out regarding that Phone. As
Result: Acquitted Page 50 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
per IO, Mobile details were never provided to him whereas the PW5
has claimed that the same were provided. It is urged that being
Sitting Councilor, the Victim Satyam was holding Public Rallies;
Meetings; attending two Offices; was in touch with Police department
etc.etc. It is submitted that as per own case of the Prosecution, Victim
Satyam Yadav had been visiting her Parental house at Bullandshahar
on regular basis even prior to being elected as Municipal Councilor
and that her brothers had been also visiting her at Nangloi house. It is
submitted that relatives of PW4, PW5 and PW18 namely Mehtab
and also Sudesh had been residing in the same locality of Nangloi. It
is therefore, said to be imperceivable that the Victim who was never
in any confinement; was highly educated and also an Elected
Councilor would not have made a complaint to anyone regarding the
alleged misbehaviour, taunting and Cruelty with respect to the alleged
demands of dowry by the accused persons.
28. It is also submitted that the witnesses are confused as to which
particular accused demanded what kind of dowry article. Testimony
of relevant Pws have been read in court to show that the same
witnesses who had been alleging main demands of dowry by A2
Result: Acquitted Page 51 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
have improved on their testimonies subsequently submitting and
narrating a different version incorporating therein the same story of
the alleged demand but not just by A2 or any other particular accused
but by roping all of them together as a single entity.
29. The defence has specifically targeted PW4. It is submitted that
the witness is, by her own accord, an illiterate lady. She is also rustic.
She is said to be an interested witness who went on targeting A2
only while seldom incriminating the other accused persons in her
statement Ex.PW4/A made before the SDM. It is contended that in
her subsequent statement dt.16.11.2012 Ex.PW4/DA, she introduced
new facts and also took a 'U turn' qua the earlier statement that at the
time of marriage, no demand for dowry was made and hence, she had
agreed to the marriage at the first place. It is pointed out that the
Articles which the witness tried to passoff as dowry articles given at
the time of marriage can only be construed as "Customary Gifts".
The said submission is without any admission of being in receipt of
the articles allegedly given. It is submitted that the witness claimed of
having given Rs.6 lacs to A3 at the time of marriage for purchase of
a Car whereas she herself submitted later that no such Car was
Result: Acquitted Page 52 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
given. It is urged that testimony of other two Prosecution witnesses
i.e. PW5 and PW18 be also compared on this aspect.
29.1. It is pointed out that the witness had been untruthful right
from the beginning when she disclosed her age as 65 years to the
SDM at the time of her statement Ex.PW4/A. It is so as she claimed
herself to be 60 years old only on the date of her first testimony on
record i.e. 08.12.2014. When questioned, she affirmed that the age
she provided in the Court is the correct age. It is pointed out that this
witness is not even sure of her age and has ended up making drastic
improvements and introducing major changes in her various
testimonies and therefore, her testimony cannot be relied upon by this
Court. Without admitting the case of the Prosecution, it is urged that
even if the articles given in Marriage are taken as "dowry articles",
then also the said demands cannot be said to be 'Soon before death'.
It is further contended that admittedly, the witnesses produced no
Proof of expenditure. It is submitted that PW4 has gone to the
extent of saying in the Court that she spent Rs.15 to Rs.16 lacs on the
marriage; gave a sum of Rs.6 lacs to A3 for purchasing Car and that
Result: Acquitted Page 53 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
she also gave many gold ornaments at the time of marriage. It is said
to be a clear departure from the earlier statement.
29.2. It is further submitted that the deposition to the effect
that the accused started harassing Satyam for bringing less dowry
after six months of marriage is only bald, vague and in any case, not
"soon before death'.
29.3. It is submitted that the Court must take into account the
admitted position that despite being mother of the deceased, PW5
never visited the matrimonial house of Satyam after marriage. It is
submitted that only PW18 is claimed to have made such visit and
that too, broadly on two occasions i.e. one at the time of allegedly
handing over Rs.50,000/ during Elections and the other allegedly on
06.11.2012. It is submitted that though PW18 claimed to have
visited the Nangloi house on a number of occasions but no such dates,
month or year is provided. It is submitted that PW5 claimed likewise
but when crossexamined specifically, he was only able to provide
one instance of such visit which was at the time of Elections when
admittedly Satyam and her Inlaws etc. were busy in Election Rallies
etc. It is submitted that the evidence even on this Count is not
Result: Acquitted Page 54 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
trustworthy.
29.4. it is submitted that only PW18 claims to have visited
Satyam to see her in the hospital at the time of her Pregnancy and
Cesarean delivery. PW5 admittedly never visited her and so did her
mother. They did not even go to attend the felicitation programme
arranged on Satyam being declared as Elected in the Municipal
Council Elections from Nangloi Reserved Constituency for Women.
29.5. It is submitted that the deceased naturally had
expectations from her mother and brothers. She was never invited to
attend the 'Naamkaran Ceremony' despite the fact that she had invited
many of her associates to accompany her for attending the said
Ceremony at Bullandshahar on 07.11.2012. It is submitted that this
pattern of behaviour of neglect by her parental family members and
their failure to even invite her for the last Ceremony worked as a
Catalyst and a last straw on the already depressed mental state of the
Victim prompting her to end her life before which, she also took away
the life of baby Vanshika.
29.6. It is further submitted that so far as the demand of
Rs.50,000/ is concerned, it again is imperceivable. It is submitted
Result: Acquitted Page 55 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
that the Prosecution witnesses have not realised the fact that Satyam
was considered as a better Candidate by the Members of the family of
the accused persons than accused Suman Yadav (A2) as she was
more educated. It is submitted that no inference can be drawn from it
to the effect that A2 herself could not have contested the Elections.
It is pointed out that the witnesses produced by defence established
that A2 was a Covering Candidate for deceased Satyam. It is pointed
out that had there been alleged demand of dowry and
harassment/Cruelty in its connection, there was no reason to promote
deceased Satyam as the Candidate in the elections on the Ticket of a
Leading National Political Party. Attention of the court is drawn to
testimony of Banker/ PW23 who produced Bank Statement of
Victim Satyam showing an outstanding of Rs.61,000/ to her Credit.
It is submitted that the accused persons had never withdrawn or
utilised the money exclusively belonging to Satyam which establishes
that there was no such need for them to have demanded Rs.50,000/
towards meeting out the expenses of the Elections.
29.7. It is pointed out that the A3 already had two Cars and
wanted to gift the third one to his Son/A1 as he was admittedly
Result: Acquitted Page 56 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
selected for a Govt.Job a month prior to the Marriage. It is this Car
which was displayed in the 'Sagan/ Marriage Ceremony' and that too,
at the insistence of the Members of Satyam's family. Attention of the
Court is drawn to statement Ex.PW5/C where PW5 Prashant has
clarified that the said Hundai Accent Car was purchased by the
accused persons only and was not a dowry article. It is submitted that
the Car was financed. Court's attention is also drawn to
Supplementary statement of PW5 dt. 30.01.2013 U/s 161 Cr.P.C.
wherein he told the IO that his mother had wrongly told the SDM
about providing Car of Rs.6 lacs in the marriage as she was
perplexed and that no such Car was given and the accused persons
had been demanding a Honda City Car.
29.8. The defence has then pointed out to the third specific
demand for dowry articles which was at the time of "Chhuchhak
Ceremony" after the birth of Child Vanshika. It is submitted that
even if it is believed that there was such demand which was fulfilled,
then also it cannot fit into the interpretation of the term 'Soon before
death'. Without admitting the same, the defence urges that all three
main PWs have accepted the fact that 'Chhuchhak Ceremony' is
Result: Acquitted Page 57 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
customary in their community. It is urged that Gifts cannot take place
of dowry. It is further urged that no proof of expenditure on the said
articles has been provided to the IO or collected by him.
29.9. It is further pointed out that claim of PW4 is that she
gave a call firstly to A2 and thereafter to A3 on the "Dusshera day"
i.e. 24.10.2012. It is submitted that there was no further calls made till
05.11.2012. It is pointed out that this telephone Call was never
verified by the IO even though it is claimed to have been made from
the Cell phone of PW5 on the mobile Phone of Satyam when PW4
had come to Max Hospital, Noida on 05.11.2012 with her grand
daughter. PW5 was still unable to provide the Mobile Number of
Satyam in the Court. No Proof of such visit to Delhi is claimed to
have been produced in corroboration to this testimony and also the
fact that daughter of PW5 was taken to Max hospital. It is pointed
that no medical records were produced.
30. It is therefore urged that the Victim was so dejected on account of
persistent neglect by her family that she took the extreme step by
ending her own life alongwith the life of infant Vanshika.
31. In support of above contentions, the defence placed reliance upon
Result: Acquitted Page 58 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
following Judgments which are set out herein under alongwith the
relevant extracts.
(1) JASVINDER SAINI & OTHERS VS. STATE
(GOVERMENT OF NCT OF DELHI) (2013) 7 SCC 256 :
"The direction issued in Rajbir, (2010) 15 SCC 116 was not meant
to be followed mechanically and without due regard to the nature of
the evidence available in the case. The Supreme Court in Rajbir
case meant to say that in a case where a charge alleging dowry
death is framed, a charge under Section 302 IPC can also be framed
if the evidence otherwise permits. No other meaning can be deduced
from the order of the Supreme Court". (Para 14)
xxxxxx xxxxxxxx xxxxxxxx
"The question whether it is murder punishable under Section
302 IPC or a dowry death punishable under Section 304B IC
depends upon the fact situation and the evidence in the case. If there
is evidence whether director or circumstantial to prima facie support
a charge under Section 302 IPC the trial court can and indeed ought
to frame a charge of murder punishable under Section 302 IPC,
which would then be the main charge and not an alternative charge,
as is erroneously assumed in some quarters. If the main charge of
murder is not proved against the accused at the trial, the court can
look into the evidence to determine whether the alternative charge of
dowry death punishable under Section 304B is established. The
ingredients constituting the two ofences are different, thereby
demanding appreciation of evidence from the perspective relevant to
such ingredients. The trial court in that view of the matter acted
mechanically for it framed an additional charge under Section 302
Result: Acquitted Page 59 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
IPC without adverting to the evidence adduced in the case and
simply on the basis of the direction issued in Rajbir case". (Para 15)
(2) NARENDER SINGH ARORA VS. STATE (GOVT.OF
NCT DELHI) & OTHERS, 2010 SCC ONLINE DEL 2980 :
"6.Suicide is a known phenomenon of human nature. Suicides are
committed by living human beings for various reasons, some are not
able to bear the normal stresses which are common in life. Some are
not able to cope up with the circumstances in which they are placed.
Some commit suicide because of frustration of not achieving the
desired goals. There are many cases where students commit suicide
because they failed to achieve certain percentage of marks. Some
commit suicide because they are not able to retain top position, some
commit suicide because they are not able to cope with the demands
of life. Some commit suicide because they suffer sudden loss, some
commit suicide out of fear of being caught. There are various
reasons for which suicides are committed by men and women. All
suicides are unnatural deaths. Suicide is a complex phenomenon.
One, who commits suicide, is not alive to disclose as to what was
going on in his or her mind when he or she committed suicide. There
is no presumption that every suicide committed by a married women
in her inlaws' house or at her parents' house has to be because she
was suffering harassment at the hands of her husband or her in
laws.
7. Normally inlaws are convicted on the testimonies of parents of
the girl who, in a fit of anger or because they had lost their
daughter, are not prepared to believe that their daughter could
commit suicide for any other reason. Xxxxxx xxxxx ".
Result: Acquitted Page 60 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
(3) STATE VS. PARAMJEET SINGH & OTHERS, ILR
(2013) V DELHI 4014
"8.Another factor that needs to be examined by us while dealing
with the charge of dowry death is the proximity between the time of
demand of dowry and the time of death of the deceased. It is a
settled Principle of law that the demand of dowry to be covered
under Section 304B of IPC, has to be made soon before death. It has
been held that no definite interpretation can be given to the phrase
"soon before death". It would be appropriate to reproduce the
observations made by the Apex Court in the case of Satvir Singh Vs.
State of Punjab, (2001) & SCC 633, with respect to the phrase "soon
before" :
"21. Thus, there are three occasions related to dowry. One is
before the marriage, second is at the time of marriage and the
third is "at any time" after the marriage. The third occasion may
appear to be an unending period. But the crucial words are "in
connection with the marriage of the said parties". This means that
giving or agreeing to give any property or valuable security on any
of the above three stages should have been in connection with the
marriage of the parties. There can be many other instances for
payment of money or giving property as between the spouses. For
example, some customary payments in connection with birth of a
child or other ceremonies are prevalent in different societies. Such
payments are not enveloped within the ambit of "dowry". Hence,
the dowry mentioned in Section 304B should be any property or
valuable security given or agreed to be given in connection with
the marriage.
22. It is not enough that harassment or cruelty was caused to the
Result: Acquitted Page 61 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
woman with a demand for dowry at some time. If Section 304B is
to be invoked. But it should have happened "soon before her
death". The said phrase, no doubt, is an elastic expression and
can refer to a period either immediately before her death or within
a few days or even a few weeks before it. But the proximity to her
death is the pivot indicated by that expression. The legislative
object in providing such a radius of time by employing the words
"soon before her death" is to emphasise the idea that her death
should, in all probabilities, have been the aftermath of such cruelty
or harassment. In other words, there should be a perceptible nexus
between her death and the dowryrelated harassment or cruelty
inflicted on her. If the interval elapsed between the infliction of
such harassment or cruelty and her death is wide the court would
be in a position to gauge that in all probabilities the harassment
or cruelty would not have been the immediate cause of her death.
It is hence for the court to decide, on the facts and circumstances
of each case whether the said interval in that particular case was
sufficient to snuff its cord from the concept "soon before her
death".
"9. It is clear from the testimonies of PW1 and PW15 that the
respondents continued to make the demand for Honda City Car only
till April 2007 i.e.till deceased came to her parental home for a period of six months due to her differences with respondent no.1, Paramjeet Singh. In October 2007, the deceased went back to her matrimonial house where she continued to stay till her death in March 2008. Applying the law laid down above to the facts of the present case at hand, since during the said period of 11 months preceding her death, no demand for Honda City Car was made by the respondents, there does not seem to exist any perceptible nexus between the dowry related harassment and her death. Therefore it has been correctly observed by the learned trial court that during the period w.e.f.April 2007 till her death in March 2008 no dowry Result: Acquitted Page 62 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) demand has been made by the respondents and hence, the ingredient of "soon before" has not been satisfied. Furthermore, photographs have been submitted on record by the Respondents (DX81 to 86 and DX87 to 89) that have been taken on the occasions of second birthday of the daughter of respondent no.1 and deceased i.e.on 20.10.2007 and on the occasion of deceased's birthday celebrations on 07.12.2007 respectively. Deceased Navpreet appears to be happy in these photographs which have been taken as recently as three to six months before her death which further weakens the argument of harassment and dowry demand during the time period immediately preceding the death of the deceased.
xxxxxxx xxxx xxxxxx "15.In our opinion, from the testimonies of PW8 and PW9 as well as the opinion of DW1, it is clear that various crucial elements have not been examined and recorded in the post mortem report prepared by PW8 and PW9 and hence the opinion regarding the cause of death as asphyxia by strangulation as given in the post mortem report does not inspire any confidence. It appears to be the case of hanging and there is no evidence that may of the accused had abetted the suicide of the deceased. The prosecution has, thus, failed to prove that the cause of death was strangulation as opined in Ex.PW8/A. Therefore, no case has been made out against the respondents U/s 302 IPC".
(4) RAMESH CHANDER VS. STATE OF DELHI, 2016 SCC ONLINE DEL 6473 "10. In the case of Vipin Jaiswal Vs. State of A.P.Rep.by Pub.Prosecutor, 2013 STPL 198 SC Hon'ble Apex Court held that the Prosecution is required to prove beyond reasonable doubt that Result: Acquitted Page 63 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the deceased was subjected to cruelty or harassment by the accused. It was observed from the evidence of the prosecution witnesses and in particular PW1 and PW4 that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased. The onus was on the prosecution to prove beyond reasonable doubt the ingredient of Section 498A IPC. Relevant portions from the Judgment read as under :
"In any case, to hold an accused guilty of both the offences under Sections 304B and 498A IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. From the evidence of the prosecution witnesses, and in particular PW1 and PW4, we find that they have made general allegations of harassment by the appellant towards the deceased and have not brought in evidence any specific acts of cruelty or harassment by the appellant on the deceased. ...........".
xxxxxxx xxxxxxx "11. As per the ratio of the law settled down by Hon'ble Apex Court in Vipin Jaiswal's case (Supra), in the absence of specific allegations like date, time and incident that too by public witnesses who were not found reliable and trustworthy, the prosecution had failed to establish beyond reasonable doubt that the deceased was meted with cruelty and harassment by the accused persons for or in connection with demand of dowry.
12. The plea has been taken by the appellant that neither the deceased nor any of her family member had ever made any complaint against the appellant or his family members with regard to demand of dowry or harassment or cruelty meted out to the Result: Acquitted Page 64 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) deceased on account of demand of dowry".
(5) UMED SINGH & OTHERS VS. THE STATE, NCT OF DELHI, 2014 SCC ONLINE DEL 3492 "5.No independent public witness was associated or examined at any stage of investigation to ascertain if at any time, the victim was physically or mentally tortured or subjected to harassment by the appellants in connection with nonfulfillment of dowry demands. The Investigating Officer did not examine any neighbour of the victim to find out the conduct and behaviour of the appellants towards the victim during her stay in the matrimonial home or to infer if any quarrel ever took place on that count. At no stage, the victim reported the incident to the police or to her close relatives. Mahender Singh, mediator in the marriage, was not examined during investigation. Neither the victim nor her family members ever lodged any complaint to him against the appellants for harassment or cruelty meted out to the victim. It is on record that the parents and brothers of the victim used to remain in touch on phone with the deceased. However, no such call details were collected during investigation. Xxxxxx".
Xxxxx xxxxxxx "11. A conjoint reading of Section 113B of the Evidence Act and Section 304B shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment for or in connection with any demand of dowry. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman are required to be established to bring home the application of Section 498A IPC. The evidence adduced by the prosecution to establish the guilt under Section 498A/304B IPC is highly scanty. The Result: Acquitted Page 65 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) investigation is defective and no attempt was made to find out the true reasons for the unfortunate death within one year and three months of her marriage at the matrimonial home. The statements given by the prosecution witnesses are full of contradictions, discrepancies and improvements which affect the core of the prosecution case particularly when all these allegations have been leveled only after the unfortunate incident of death. It is certain that the prosecution was unable to bring on record cogent and reliable testimony to establish that the appellants were solely responsible or were instrumental in her death".
(6) ROHTASH VS. STATE OF HARYANA, (2012) 6 SUPREME COURT CASES 589.
The Judgment is cited again in order to show that the fact not mentioned by a witness in his statement U/s 161 Cr.P.C. and introduced subsequently makes the Prosecution's case unreliable.
(7) SUNIL KUMAR SAMBHUDAYAL GUPTA (DR.) & OTHERS. VS. STATE OF MAHARASHTRA (2010) 13 SCC 657.
In this case, it was observed that the main witness is PW 10 had made lot of improvements and contradictions and introduced certain facts for the first time in the court during trial. It was also observed (regarding other witnesses) that they being father, brother and Aunt of the deceased are close relatives and that they might have developed inimical feelings towards the accused persons.
Result: Acquitted Page 66 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Further, the statements were also found full of contradictions and marked improvements from their statements recorded earlier.
(8) STATE (NCT OF DELHI) VS. NARESH & OTHERS (2014) 3 HIGH COURT CASES (DEL) 25 "25.It is trite that general and vague allegations of dowry demands and beatings given to the deceased without detailing specific instances, vague and inconsistent statements of interested witnesses such as parents, brothers and sisters of the deceased, bald statements made by prosecution witnesses which fall short of evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, and improved versions of statements made by prosecution witnesses for the first time in Court disclosing things not disclosed during investigation, are liable to be viewed with suspicion and the presumption of dowry death cannot be raised therefrom, and the accused cannot be convicted on the strength of such statements. xxxxx".
(9) KASHI RAM PUJARI VS. STATE OF (NCT) & OTHERS, 2012 SCC ONLINE DEL 2586 The Judgment is cited to show that in this case, the material witness whose statements were recorded within reasonable time after death of the Victim, were silent at the earliest available opportunity. It was observed that the aspect Result: Acquitted Page 67 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) assumes importance because statements were recorded not just by the police but also by the concerned Executive Magistrate. In this case, the defence had been able to successfully show that the most damaging allegations were really improvements, which had not been made during the statements recorded at the time of investigation.
(10) NAVEEN VS. THE STATE (GNCT OF DELHI), 2014 SCC ONLINE DEL 4355 The Judgment is cited in order to demonstrate to this Court again that here also, no witness from Victim's neighbourhood was examined to find out as to what was the conduct and attitude of the accused persons towards the Victim during her stay or if there was any sort of disharmony among them. The Victim here was also an educated lady but during her stay in the house, she never lodged any complaint regarding any harassment on account of dowry demands to the police or any other authority during her life time. Even her Parents failed to do so. It was observed that no Panchayat was ever held. It was also found, like in this case, that no medical evidence emerged to infer if at any time, the Victim was taken to hospital for physical beatings allegedly given to her. It had also been observed that the deceased used to remain in touch with her Parents on telephone but no such call details had been collected and placed on record. Further more, it was also observed that statements given to police at various stages and in the court revealed that witnesses had made vital improvements. They had not attributed any definite and Result: Acquitted Page 68 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) specific role to each of the accused persons. It was observed that all family members staying in the matrimonial home were implicated. The statements of all the witnesses were found to be omnibus and generic in nature.
(11) BAIJNATH & OTHERS VS. STATE OF MADHYA PRADESH, (2017) 1 SUPREME COURT CASES 101 "32.This court while often dwelling on the scope and purport of Section 304B of the Code and Section 113B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304B as in Shindo Vs. State of Punjab and echoed in Rajeev Kumar Vs. State of Haryana. In the latter pronouncement, this court propounded that one of the essential ingredients of dowry death under Section 304B of the code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113B of the Act. It referred to with approval, the earlier decision of this court in K.Prema S.Rao Vs. Yadla Srinivasa Rao to the effect that to attract the provision of Section 304B of the code, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty and harassment "in connection with the demand for dowry".
(12) MAHAVIR KUMAR & OTHERS VS. STATE, 2014 SCC ONLINE DEL 3079.
Result: Acquitted Page 69 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) The Judgment is cited to support the arguments that there is a delay of about 10 days in recording the statements of PW 4, PW5 and PW18 by the police U/s 161 Cr.P.C. The Hon'ble Delhi High Court, in this Judgment, cited various Judgments on the issue that if statement of the witness is not recorded on date of incident or within reasonable time then, it has to be viewed with caution. To cite a few are Paramjit Singh Vs. State of Punjab, (1997) 4 SCC 156; Jagjit Singh Vs.State of Punjab, (2005) 3 SCC 689; Maruti Rama Naik Vs. Staet of Maharashtra, (2003) 10 SCC 670; Harjinder Singh @ Bhola Vs. State of Punjab, (2004) 11 SCC 253; Prem Narain Vs. State of Madhya Pradesh, (2007) 15 SCC 485.
The Court observed that the relevant witness was available to the IO of the case but no explanation whatsoever was given by the IO as to why the statement of the said witness (PW10) was not recorded earlier.
The Hon'ble Court had culled out the main points in Para 41 indicating that the testimonies were general, vague and inconsistent; that not a single neighbour had come forward to support Prosecution; that there was no demand of dowry at the time of marriage or even thereafter and that the Victim Saroj took the extreme step of committing suicide within 8 months of the marriage but what exactly prompted her to take the said step had not surfaced.
(13) STATE OF NCT OF DELHI VS. RAKESH & OTHERS, 2012 SCC ONLINE DEL 2816. Result: Acquitted Page 70 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
The observations in this case are similar to the observations made by the Hon'ble Delhi High Court in Naveen's Case, supra. It was held that the onus is on the Prosecution to establish beyond doubt that deceased was subjected to mentally cruelty or harassment for or in connection with the demand of dowry soon before her death. Admittedly, till the incident, no complaint was ever lodged by either the deceased or her close Relatives. No medical examination was ever conducted to ascertain physically torture. No Pachayat was ever held. One of the material prosecution witness (Rakesh) was never examined and thus adverse inference was required to be drawn against the Prosecution. Further, deceased used to converse with her Parents and other family members on Phone but no call details were collected in this regard. The witnesses had not given specific dates when any specific dowry articles were demanded by any particular accused. Facts introduced in evidence did not find mention in the statements made to the SDM or the Police. Nothing was found to have emerged that dowry demands were persisted and unabated.
(14) NEERAJ KUMAR VS. SURAJ PRAKASH & OTHERS, 2015 SCC ONLINE DEL 7994.
The Judgment is cited to show that to establish offence U/s 304 B IPC, Presumption U/s 113B of the Evidence Act cannot be raised against the accused until independently the offence U/s 498A IPC is proved by leading evidence to the Result: Acquitted Page 71 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) specific allegations with regard to time and date of such demand and Cruelty and further more establishing the proximity of live link between the effect of Cruelty based on dowry demand and the death of the Victim and the evidence of Prosecution to establish the offence U/s 498A IPC needs to be analyze meticulously particularly when it could result into Conviction U/s 304B IPC.
(15) AJAY PAL & OTHERS VS. STATE, 2017 SCC ONLINE DEL 8058 This Judgment is also cited on the same aspect that has been considered in the Judgment in Neeraj Kumar's Case, supra. Special reference was made to the Judgment of the Hon'ble Apex Court in case titled as Vipin Jaiswal Vs. State of A.P., AIR 2013 SC 1567 with respect to Section 498A IPC, raising of Presumption U/s 113B of the Indian Evidence Act and Section 304B IPC.
REUBUTTAL ARGUMENTS BY THE LD.ADDL.P.P. ASSISTED BY COMPLAINANT'S COUNSEL SH.PRAMOD KUMAR :
32. The Ld.Prosecutor's focus of rebuttal arguments was primarily on citing Judgments to contradict defence (which I shall be referring here under) besides submitting that Charge U/s 302 IPC was not framed against the accused persons merely on the basis of the ratio of Result: Acquitted Page 72 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Judgment in Rajbir's Case, supra (2010) 15 SCC 116 but is on the basis of the ratio of the Judgment in Jasvinder Saini, supra.
Attention of the Court has been drawn to Order dt. 25.07.2014 which is the subsequent order of Charge wherein the Court dealt with this issue in the light of Order of the Hon'ble Delhi High Court dt. 17.04.2017 holding that a Charge U/s 302/34 IPC was made out against all the accused persons herein. According to the Ld.Prosecutor, the said Charge is to be considered as the main Charge in sync with directions in Jasvinder Saini, supra.
33. The Ld.Prosecutor also submitted that not only the arguments by the defence are unworthy of consideration, the case being proved on all counts, but also that the evidence produced in support of the instances of Cruelty within the meaning of Section 498A IPC is sufficient to also convict these accused persons for having abetted the Commission of Suicide by Satyam and therefore, liable to be convicted also for commission of offence Punishable U/s 306 IPC.
The Ld.Prosecutor even went to the extent of urging that these accused can, on the same facts and evidence, be also convicted U/s 306 of the IPC as besides ingredients of framing the Charge for Result: Acquitted Page 73 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) commission of offence punishable U/s 304B IPC and in the alternative Section 498A IPC, ingredients for framing Charge U/s 306 IPC also exits in this case. Mere omission on part of trial Judge to mention Section 306 IPC with Section 498A IPC does not preclude the Court in convicting the accused for the said offence when found proved.
Mr.Bhasin, Ld.Prosecutor has cited Para 25 of Judgment titled as Bhajan Singh @ Harbhajan Singh Vs. State of Haryana decided on 04.07.2011 in Crl.Appeal No. 562/2007, which mendates that U/s 215 Cr.P.C., omission to frame Charge U/s 306 IPC will not result in failure of Justice as further opportunity to defence was not required to be granted when accused had ample opportunity to meet the Charge U/s 498A IPC.
Ld.Prosecutor also placed reliance upon the Judgment titled as K.Prema S.Rao & Another Vs. Yadla Srinivasa Rao & others WITH State of A.P. Vs. Yadla Ranga Rao & Anorther (2003) 1 SCC 217 on Section 306 IPC. In this case, no evidence of demand of dowry 'Soon before her death' was found and hence, Section 304B Result: Acquitted Page 74 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) IPC was not made out. It was however held that since offence U/s 498A IPC was made out, accused can be Convicted for the same and as on the same facts offence U/s 306 IPC was also made out, the accused could be convicted also for the said offence regardless of the fact that such Charges were not framed because alternative Charge U/s 498A IPC was duly framed and Section 215 and 221 Cr.P.C. takes care of such situation.
The above judgment is also cited to show that it is not necessary that public witnesses would be really interested to come forward and depose against the assailants. In the said case, without any substantial cause, two persons had been killed and one had been seriously injured. As per the Prosecutor, the same answers the contention of the defence and also the defence witness i.e. DW3 who stated that police made oral inquiries from him but did not record his version and also gave same treatment to other locals/neighbours.
34. Regarding the discrepancies pointed out by the defence in the testimonies of PW4, PW5 and PW18, the Ld.Prosecutor has submitted them to be minor. He placed reliance on Judgment in State of Karnatka Vs. Suvarnamma 2014 (4) RCR (Crl.) 772 submitting Result: Acquitted Page 75 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) that when the accused took false plea about facts exclusively known to him then such a circumstance is a vital additional circumstance against the accused. In the Judgment, the Hon'ble Apex Court had observed that Investigating Agency was expected to be fair and efficient and any lapse on its part cannot Perse be the ground to throw out the Prosecution case when there was overwhelming evidence to prove the offence. It was observed that the courts below had rejected overwhelming evidence to prove demand of dowry on account of minor discrepancies about place at which negotiation took place or persons in whose presence demand was made and such minor contradictions were not enough to discredit version of demand of dowry. In said case, the accused took false plea that they had no knowledge of burn injuries having been caused to the deceased and it was held as an additional circumstance against the accused persons. In this case the Prosecution claims that the defence was not disclosed by the accused persons U/s 313 Cr.P.C. regarding their whereabouts at the time of occurrence of incident.
35. The Ld.Prosecutor also submitted that similarly because PW17 was subjected to crossexamination by the State, it cannot be Result: Acquitted Page 76 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) considered as a factor to discredit his entire testimony as he was naturally expected to lend some support to defence as he also has political background and was an Elected MLA from the same Constituency. It is submitted that the crossexamination was aimed only to let the complete facts surface. It is further urged that merely because a witness turns hostile, his entire testimony cannot be effaced from the record. He places reliance on the Judgment titled as "Khujji @ Surendra Tiwari Vs. State of M.P., AIR 1991 SC 1853" .
36. The ld.Prosecutor submitted that there have been instances when there was no justification to raise Presumption against the accused U/s 113B of the Indian evidence Act, the Courts have maintained Conviction U/s 498A IPC for which also the Prosecution has led sufficient evidence. Reliance is placed on Common Judgments in case titled as Sham Lal Vs. State of Haryana WITH Bhagwan Dass Vs. Sham Lal & others, 1997 (9) SCC 759.
37. On the aspect of interpretation of the term "Soon before her death", the Ld.Prosecutor placed reliance on Judgment in Kans Raj Vs. State of Punjab and others, AIR 2000 SC 2324 , submitting that mere lapse of time by itself would not provide the accused the Result: Acquitted Page 77 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) defence that Cruelty or Harassment was not "Soon before her death".
38. The ld.Counsel for the Complainant thereafter took leave of the Court to also address relevant points highlighted by the Ld.Prosecutor by citing certain Judgments. Liberty was granted with an opportunity to defence to rebut the same.
39. The Ld.Counsel for the Complainant cited six Judgments out of which he laid particular stress on the first Judgment. Their extracts and submissions by him are provided herein as under :
(A) V.K.Mishra & another Vs. State of Uttarakhand & Another (2015) 9 Supreme Court Cases 588 :
"15. Section 161 Cr.P.C. titled "Examination of witnesses by police" provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C. can be used at any trial are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C.reads as under :
"162. Statements to police not to be signed: Use of statements in evidence - (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; or shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any Result: Acquitted Page 78 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872(1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, but for the purpose only of explaining any matter referred to in his crossexamination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation - An omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
(A.1) This part of the Judgment is relied upon only to show as to how the Hon'ble Apex Court has described about the process of evaluation and proof of previous statement of a witness vis a vis Section 162 Cr.P.C. and Section 145 of the Evidence Act submitting that there is no proper confrontation of the Result: Acquitted Page 79 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) witnesses of Prosecution particularly the material witnesses i.e. PW4, PW5 and PW18.
(A.2) Para 16 to 19 of this Judgment are specifically quoted which are as under :
"16. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re examination of the witness if necessary".
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. "if duly proved"
clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during crossexamination and also during the crossexamination of Result: Acquitted Page 80 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under :
"145. Crossexamination as to previous statements in writing - A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him".
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his crossexamination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the Result: Acquitted Page 81 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction.
(A.3) Regarding plea of defence on delayed examination of PW4, 5 and 18 by the case IO on 16.11.2012, it was urged that the same cannot be considered as delay at all as there is nothing which is suggestive of any unfair practice by the case IO. The complainant cited Para 26 of this Judgment which is quoted as under :
"26. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar Vs. state of Rajasthan, it was held that the question of delay in examining a witness during investigation is material Result: Acquitted Page 82 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW2 and even assuming that there was delay in questioning PW2, that by itself cannot amount to any infirmity in the prosecution case".
(A.4) Regarding defence's plea that no neighbour of the accused persons came forward to support the Prosecution or that Dws particularly DW3 and DW4 deposed that the relations of deceased were cordial with the accused persons; it is argued that this fact proves nothing in itself for the reason that demands and harassment for dowry usually takes place behind the walls of a house and not in public. Para 28 of this Judgment has been quoted as under :
"28. Vijay Kumar Sharma (PW6), tenant neighbour of the accused, has stated that he never heard any shouting, screaming from the house of the appellants and the couple was living happily. Placing reliance upon the evidence of this witness, appellants contended that had there been any dowry demand, there would have been disharmony among the couple which would have definitely been known to neighbours like PW6. It is to be noted that in a case where demand of dowry is alleged such demands are confined within the four walls of Result: Acquitted Page 83 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the house and known only to the members of both sides of the family. In such cases, independent and direct evidence with regard to the occurrences is ordinarily not available. That is why the legislature has introduced Section 113A and 113B in the Evidence Act by permitting presumption to be raised in certain circumstances. Evidence of PW6, in our view, does not in anyway advance the case of the appellants".
(A.5) The Complainant also targeted the plea of defence that faulty investigation cannot be made as a ground for conviction or that the accused herein can be entitled to any benefit thereof by citing this Judgment and highlighting the observations of the Hon'ble Apex Court regarding impact of Investigational lapses and the duty of Court. Relevant extracts from Judgment are as under :
"xxxxx xxxxx
34. Refuting the contention of the appellants on the lapses in the investigation and contending that any lapse in the investigation does not affect the core of the prosecution case, the respondents have placed reliance upon the Judgment of this Court in State of Karnataka V. K.Yarappa Reddy, wherein this Court held as under : (SCC P.720, Para 19) "19. ....It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the Result: Acquitted Page 84 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) probity of investigation. It is wellnigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
"xxxxxxx xxxxxx
38. The investigating Officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions.
39. In Sher Singh Vs. State of Haryana, it had been held therein that the use of word "shown" instead of "proved" in Section 304B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, "shown" will have to be read upto mean "proved" but only to the extent of preponderance of probability. Thereafter, the word "deemed"Result: Acquitted Page 85 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) used in that section is to be read down require an accused to prove his innocence, but beyond reasonable doubt. The "deemed" culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong "presumption" of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in Ramakant Mishra Vs. State of U.P.".
(B) VIJAY PAL SINGH & OTHERS VS. STATE OF UTTARAKHAND, (2014) 15 SCC 163.
The Judgment is on the aspect that it is not necessary that dowry demand is to be made only from the deceased. It can be made to relatives of a married woman and therefore plea of defence that Prosecution has not provided details as to from whom demands were made in this case is not fatal to it. Para 28 of this Judgment is cited as under :
"28. Mr.Dey contends that even assuming that there is evidence on demand for dowry, there is absolutely no evidence to show that any demand was made to the deceased Saroj. This contention is difficult to digest. Demand for dowry so as to come under the purview of Section 304B or Section 498A need not be to the married woman. The demand can as well be to the father, mother, brother etc. of the Result: Acquitted Page 86 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) married woman. Any demand to them is as good as a demand to the married woman since she is the one to suffer in case the demands are not met, as has happened in the instant case.
(B.1) This Judgment is also cited to show that even if there is an acquittal U/s 302 IPC, same will not lead to automatic acquittal U/s 304B IPC. Para 34 of this Judgment is quoted which is as under :
"34. In Alamgir Sani Vs. State of Assam, one of the issues that came up for consideration before this Court on acquittal under Section 302 IPC is whether on account of acquittal under Section 302 IPC, the accused could claim acquittal under Section 304B IPC. It was clarified by this Court that the acquittal under Section 302 IPC will not lead to automatic acquittal under Section 304B IPC. Even if an accused is acquitted under Section 302 IPC, if there is evidence available so as to satisfy the ingredients of Section 304B IPC, the accused can still be convicted under Section 304B IPC, in case there is no rebuttal or presumption on the death as caused by the accused".
(C) SUNIL KUMAR & ANOTHER VS. STATE OF RAJASTHAN, (2005) 9 SUPREME COURT CASES 283 This Judgment is relied to counter defence argument that IO Result: Acquitted Page 87 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) examined PW4, PW5 and PW18 U/s 161 Cr.P.C. after 08 days of incident i.e. on 16.11.2012. It is submitted that Pws were not in their normal state of mind on the day of incident. Para 14 is particularly relied which is quoted as under : "14. So far as the delayed recording of statement of the witnesses is concerned, here again no question was put to the investigating officer specifically as to why there was delay in recording the statement. On the contrary, the witnesses themselves have indicated as to why there was delay. The plea of the appellants in this regard, therefore, has no substance".
(D) PATHAN HUSSAIN BASHA VS. STATE OF ANDHRA PRADESH, (2012) 8 SUPREME COURT CASES 594 In this case it was clarified that once the Court raises the presumption U/s 113B of the Evidence Act, burden lies on the accused as to how deceased died. Mere denial cannot be treated as discharge of onus.
(E) JAMADAR OJHA & OTHERS VS. STATE & OTHERS, 2017 VI AD (DELHI) 225 Result: Acquitted Page 88 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Baijanth, supra and Kans Raj, supra have been referred in this Judgment. These Judgments are cited by the ld.Addl.P.P./Complainant relies on Para 17, which is quoted here under :
"17.Essential ingredients for the prosecution to prove for an offence punishable under Section 304B IPC are (I) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband (iv) Such cruelty or harassment must be for, or in connection with, demand for dowry".
(F) The Hon'ble High Court of Delhi in recent Judgment titled as Poonam Srivastav and Others Vs. State of Delhi , 2017 Law Suit (Del) 3845 - followed the Judgment passed by Hon'ble Apex Court in the case of V.K.Mishra and another Versus State of Uttarakhand & Another, supra.
POINTS FOR DETERMINATION :
40. The following broad Points for determination can be culled out in accordance to Section 354(1)(b) of Cr.P.C. viz :Result: Acquitted Page 89 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) (1) Whether the Victim Satyam was murdered by A1 to A 5 in furtherance of their common intention? (2) If not, whether the Victim died otherwise than under normal circumstances?
(3) Whether the Victim died so within 7 years of the Marriage?
(4) Whether A1 to A5 had, in furtherance of their common intention, subjected the deceased Satyam to Cruelty by committing Acts of Willful conduct of such nature as were likely to drive her to commit suicide or harassed her with a view to coercing her as well as PW4, PW5 and PW18 to meet their Unlawful demand for dowry articles? (5) Whether the accused A1 to A5, in furtherance of their common intention, demanded dowry and subjected the deceased for or in connection with any demand for dowry, to such Cruelty soon before her death and thus, caused dowry death?
(6) If not, Whether A1 to A5, in furtherance of their Result: Acquitted Page 90 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) common intention abetted the Commission of suicide by the Victim Smt.Satyam?
(7) Whether A1, A2 and A3 were entrusted with Stridhan of deceased Satyam or had any dominion over it and they, in furtherance of their common intention, misappropriated or converted it to their use, or dishonestly used/disposed it and thus committed criminal breach of trust.
41. While dealing with these Points of determination, the relevant aspects, as and when relevant, in respect of arguments addressed and points noticed by this Court will also be dealt with.
42. The Court shall take up the first Point for determination which entails commission of Offence Punishable U/s 302 IPC for three broad reasons i.e. (i) the said Charge was framed in Alternative on 06.06.2013 and the said order was set aside by the Hon'ble Delhi High Court; (ii) as per Order of the Hon'ble Delhi High Court dt. 17.04.2014, said Charge is referred as an "Additional Charge" and
(iii) the said "Additional Charge", as per the Judgment in Jasvinder Saini, supra has to be considered as the main Charge and not an Result: Acquitted Page 91 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Alternative Charge.
43. The arguments by the Ld.Prosecutor on this Charge have been succinctly recorded in this Judgment in Para 11.1 to 11.3. In this very context, the submissions of defence that Charge U/s 302 IPC cannot be considered as an Alternate Charge is recorded in Para no.20. Counter arguments by the Complainant and the Ld.Prosecutor are also recorded in Para 32. As to why the Court is inclined to treat this Charge as first Point for determination has been already explained in the Preceding Paragraphs of this Judgment.
44. The case of the Prosecution is that minor child Baby Vanshika was strangulated by none other than deceased Satyam herself before snuffing her own life by hanging. This, of course, pertains mainly to the other Charge U/s 304B/34 IPC. The arguments before the Court for dealing with this Charge includes interalia the possibility of foul play by the accused persons in dressing up the Crime scene to give it a colour of death by 'suicide' after having actually committed Culpable Homicide on not only Satyam but also Vanshika which tentamounts to murder. (There is no Charge U/s 201 IPC). The above precisely is the crux of the arguments on this count by the Result: Acquitted Page 92 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Prosecution. The Prosecution has been fair enough to concede that the case IO did not investigate the case on the aspect of murder of the Victims even though there are suspicious pointers that indicated that the Victims may have been murdered.
45. I have carefully analysed the evidence on record including the documents. Though not argued, but it will be absolutely safe to say that Motive for Commission of Murder was already available with the accused persons if the other evidence is believed. The said Motive would be failure of the accused persons to provide dowry and meet the dowry demand of Rs.10 lacs in cash and Honda City Car that was raised in the presence of PW18 on 06.11.2012. As per the Prosecution witnesses particularly PW18, Satyam would not have been sent to attend the "Naamkaran Ceremony" of Son of PW5 on 07.11.2012 if the said demand was not met. Further, as per PW18, the very purpose of his visit to house of accused persons on 06.11.2012 was to formally invite them for this Ceremony and also take away deceased Satyam with him to Bullandshahar where the Venue of the Ceremony was situated.
Result: Acquitted Page 93 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
46. I am to say that mere presence of Motive, howsoever weak and howsoever strong it may be, cannot be the sole factor to determine the issue as to whether the said Motive led to actual Commission of the offence.
47. I am mindful of the fact that for the reasons unexplained by the Prosecution, this Court has not been provided with any Expert Medical Opinion regarding the manner of death of deceased Satyam and therefore there is no corroborative evidence before it to deduce as to whether the death was "Homicidal" or "Suicidal". This omission is despite the fact that the Postmortem examination on deceased Satyam vide P.M.Report, Ex.PW16/E was conducted by a Panel constituting of three doctors which included PW16 Dr.Manoj Dhingra of SGMH hospital. The SDM/PW21, vide his request for Postmortem examination on body of deceased Satyam as well as her daughter to be conducted by a Panel of doctors Ex.PW16/A also asked for details as to whether deceased was suffering from any prolonged Chronic illness besides asking for any other useful and relevant opinion. Still, the manner of death was not provided in the report of deceased Satyam though it can be deduced from Result: Acquitted Page 94 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) P.M.Report of baby Vanshika (Ex.PW16/F) which provides that the death was due to "Antemortem ligature strangulation" and hence "homicidal". Neither the Ligature material was identified nor it was seized. Vanshika died due to strangulation is also corroborated by the fact that the name of injury in her MLC Ex.PW13/A was also described as "Strangulation". This finds even further corroboration from Ex.PW16/F which clearly provides that on external examination, the doctors observed "ligature mark 2.5 cm wide completely encircling the neck situated at the level of Thyroid Cartilage transversely located 4 cm below Chin, 2 cm below right ear, 1.5 cm below left ear. Base of the ligature mark is red & inflamed. On exploration, effusion of blood seen underlying neck muscles on right side". The child was 1.8 years old at the time of her death when calculated from her date of birth i.e. 12.03.2011. That the Panel of doctors have found a ligature mark which was 2.5 cm wide and that it was completely encircling the neck shows that in all probabilities, a ligature material was used for strangulated the child.
"Ligature" is a thing which is used for tying or binding something tightly. In Medical Jurisprudence, ligature Result: Acquitted Page 95 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) strangulation and death caused by suspension of a body by a ligature leave different ligature marks. In this case, the ligature mark on the neck of Vanshika completely encircled her neck.
48. When compared with the observations of Medical Board on external examination of deadbody of deceased Satyam, evident difference between the Pattern of the ligature marks on both the bodies can be observed. As per P.M. Report Ex.PW16/E, there were "Pressure, abrasion mark seen around neck with width 1.5 cm and circumference 29 cm, situated above the Thyroid Cartilage in midline of Neck running obliquely upwards and backwards on both sides, absent at nape of Neck. The ligature mark is "6 cm below Chin, 5 cm below right ear and 0.5 cm below left ear".
49. The said description when compared with the photographs of the body of deceased Satyam particularly the Photographs Ex.PW6/A.5, A.6, A.7 and A.8 (08 Negatives of which are also proved as Ex.PW6/B Colly.); clearly show that the ocular evidence in the form of these photographs is in conformity with the Medical Opinion as abovesaid. The Noose can be clearly seen in these photographs at varying distance from the Chin and both the Ears and hence, the Result: Acquitted Page 96 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ligature mark on body of Satyam was found running obliquely upwards and backwards on both sides of the Neck.
50. The above analysis of evidence clearly shows that deceased Child Vanshika died as a result of "Homicidal death". This is the only probable inference, rather the most probable one which the court can infer from the above conclusive evidence.
I shall touch upon the aspect of the door being latched from the inside and presence of none shown inside the said room in the hitherto below Paragraphs :
51. The above kind of inference cannot be however drawn from the P.M.Report of Satyam Ex.PW16/B. In the absence of corroborating opinion regarding manner of death being homicide or suicide, the Court cannot say on the basis of ocular and medical evidence that Satyam was also given the same treatment as was given to deceased baby Vanshika. It is dehors of any opinion as to whether it was Satyam herself who strangulated her child Vanshika or not. In this context only the opinion of the IO/PW25 is before the Court that since Vanshika was a small Child, she could not have killed herself. Further, as the door latch was broken from the outside to gain entry Result: Acquitted Page 97 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) into the room which was bolted from inside and was not having any way for anybody to enter inside, is projected as conclusive proof of the fact that Satyam only killed her daughter. There is no evidence in the form of investigation conducted independently on this issue.
52. Before I proceed any further, it is necessary to mention here the relevant Sections in this regard. Culpable homicide is defined under Section 299 IPC which reads as under:
299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) Always sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know Result: Acquitted Page 98 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) it A, intending to cause, or with the knowing it to be likely to cause Z's death, includes B to fire at the bush. B fires and kills Z. here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3 - The causing of the death of child in Result: Acquitted Page 99 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
53. Culpable homicide is first kind of unlawful homicide. It is causing of death by doing (i) an act with the intention of causing death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; (iii) an act with the knowledge that it was likely to cause death. Proceeding further, Section 300 IPC is a species of Section 299 and it defines murder. It is important to mention here that the charge so framed against the accused persons is a charge for murder which has been defined under Section 300 IPC which reads as under:
300. Murder - Except the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely Result: Acquitted Page 100 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) to cause the death of the person to whom the harm is cause, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to caused his death, strikes him with the intention of causing bodily injury; Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, Result: Acquitted Page 101 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) give him such a blow as would not in the ordinary course of nature kill a person in a sound stated of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a swordcut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
54. Each of the four clauses as mentioned above, requires that the act which causes death should be done intentionally, or with the knowledge or means of knowledge that death is a natural consequence of the act. An intention to kill is not always necessary to make out a case of murder. A knowledge that the natural and probable consequence of an act would be death will suffice for a Result: Acquitted Page 102 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) conviction under Section 302 IPC. Reference may be had to "Santosh, 1975 CrLJ. 602 (SC).
55. The mental element in culpable homicide i.e the mental attitude of the agent towards consequences of his conduct, is one of the intention or knowledge. Motive is immaterial so far as offence is concerned, and need not be established. There are three species of mens rea in culpable homicide:
1. an intention to cause death;
2. an intention to cause a dangerous injury;
3. knowledge that death is likely to happen
56. The intention or knowledge necessary in order to render killing culpable homicide must be clearly prove by the prosecution which can usually be done by proof of the circumstances which prove the act of omission in question for the presumption is that a man knows the probable result of his conduct.
57. Before proceeding even further, it is submitted in brief that there is a difference between culpable homicide and murder. All murders are culpable homicide, however, all culpable homicide may not be Result: Acquitted Page 103 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) murder as defined under Section 300 IPC and punishable under Section 302 IPC. The distinction between these two offences is very ably set forth by Melveill, J. in Govinda's case [(1876) 1 Bombay 342] and Sarkariya J in Punnayya's case [State of AP Vs. R. Punnayya AIR 1977 SC 45].
The facts which reduce murder to culpable homicide are:
(a) It should have been committed without pre meditation;
(b) It should have been committed upon a sudden quarrel;
(c) It should have been commission in the heat of passion;
(d) It should have been committed without the offenders having taken undue advantage or acted in a cruel or unusual manner;
58. Having so highlighted the law on subject and my observations on the present Point for determination as recorded in Paragraph 45 to 51, it can be easily now observed that out of three species of mens rea that are pointed out in Para 40 above (besides the Motive part that has been already commented upon) there may be presence of the Result: Acquitted Page 104 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) first species i.e. an 'intention to cause death' provided the Prosecu tion's evidence on the alleged demand for dowry and Cruelty for ha rassment by accused persons upon the deceased Satyam is found to be believable. I see no reason as to why the evidence on that aspect can not be read with oral testimony of PW4, PW5 & PW8 wherein they have voiced their strong suspicion that both deceased have been killed by the accused persons. As a matter of fact, oral evidence of PW5 that can be gauged from his statement to SDM Ex.PW5/C, is to the fact that since there were demands for dowry and that since the accused persons were intending to remarry A1 with someone else with an objective of getting more dowry, they murdered Satyam and her daughter in a preplanned manner.
But if the Court has to go ahead with the said first species of mensrea then the prosecution was obligated to produce evidence for this offence which is not the case here.
Thus, despite the Ld.Prosecutor's plea that there is absence of investigation on this offence, this Court has to proceed to analyse whatever evidence on the issue that is available on record.
59. To begin with, PW4, PW5 and PW18 in their statements to Result: Acquitted Page 105 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the SDM Ex.PW4/A, Ex.PW5/C and Ex.PW18/A respectively have raised pointing finger on the accused persons of murdering Satyam and Vanshika. Main evidence in this context has surfaced in testimony of PW5 and PW18. As per PW18, when he reached Nangloi at 11:30 AM, he observed that it appeared from the Crime Scene that Satyam had been killed first and then hanged to show that she committed suicide by hanging which was not possible owing to the fact that the Ceiling height was such that Satyam was incapable to reach it. Same version finds mention in the Court testimony on Oath. Interestingly, PW4 and PW5 never gave such description of the place of incident as is given by PW18.
60. Besides this suspicion, there is nothing else in their oral testimony besides testimony on Cruelty for or in connection with demands of dowry. This aspect will be covered at an appropriate stage in this Judgment as I have already said that even if the Court was to draw an inference that accused persons had an intention to kill, there is no supporting evidence collected by the IO.
61. The medical evidence is silent on the Manner of death of Satyam. Neither the IO, nor Prosecution sought clarifications from Result: Acquitted Page 106 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the concerned doctors as to whether the death was homicidal or suici dal and even on the aspect as to whether the Victim could have died of 'asphyxia' despite being found by the PW24 and PW3 in a sit ting Posture although both of them say in their Chief examination that they found Satyam hanging from Ceiling Fan. The Court therefore falls back upon the Crime Team Report Ex.PW7/A which in spected the Crime Scene between 09:30 AM to 11:00 AM and found deadbody of Satyam in sitting straight Position with her fists closed touching bed sheet near boundary of Bed.
62. Nevertheless, Expert opinion of Doctor has not been provided to this Court on the above aspect regarding possibility of death due to 'asphyxia' in a sitting posture. Contrary to it is the evidence of PW 17/Bijender Singh. He disowned his statement given to the Police Mark PW17/A dt. 31.01.2013 and even his first statement U/s 161 Cr.P.C. dt. 18.01.2013 wherein he stated to have come in the morn ing of 08.11.2012 to Victim's house where the Victim was found hanging with Ceiling Fan and that he informed the PCR from his Mo bile Number 9810830555.
Result: Acquitted Page 107 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
63. The IO proceeded to record his statement Mark PW17/A again after a few days on 31.01.2013 where the witness stated that he had gone to house of Satyam on the date of incident after hearing news of her death recorded at Portion A to A1 which this witness denied of having made to the IO in his crossexamination by the Prosecution.
63.1. Further, PW17 found the Second Floor room bolted from inside and thus clarified that A1, A4 and A5 forcibly opened the door and that all four of them entered in the room together where it was found that Satyam was hanging alongside the bed with the help of a Chunni with Ceiling Fan. He went on to depose that A4 and A5 started crying and then rested Satyam on Bed in sitting pos ture. This part was never confronted by the Prosecution to the witness although the witness was confronted by the Prosecution to his state ment that Sisterinlaws Poonam and Deepti had also forcibly opened the door.
63.2. In his crossexamination, the witness admitted that when door was forced open, A1 and A4 were present with him claiming that he did not remember if A5 was also there. At the same time, he furnished his explanation that a lot of persons were present Result: Acquitted Page 108 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) besides them and therefore, no fault can be found in his statement aforestated.
63.3. What creates an issue is that the PW17 denied to have made any statement to the police at all. This fact was however not confronted with the case IO. The testimony of the witness that he had gone to greet Satyam in the morning on 07.11.2012 as it was her Birthday is quite plausible and acceptable in view of his first state ment claimed to have been recorded by the IO on 18.01.2013 wherein it is shown that he said that on reaching the house, he came to know that Satyam was dead.
63.4. The reason why this fact has been dealt minutely is that in his Court testimony, the witness is categorically sure that he got the door forced open and found Satyam hanging by the neck with the help of Dupatta from Ceiling Fan. As per him, A2 suggested to open the gallows and bring the body down but he insisted for arrival of Police.
63.5. Here, the Prosecution did not confront the witness with the fact that as per Ex.PW17/A, A1, A4 and A5 were the persons who rested body of Satyam on the bed from hanging position.
Result: Acquitted Page 109 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 63.6. In this context, the observations in V.K.Mishra's case, supra regarding use of previous statements U/s 161 Cr.P.C. comes to aid of defence and not to the aid of Prosecution in the man ner claimed. Though there is compliance of Section 145 of the Evi dence Act by the Prosecution but the fact remains that PW17 dis owned his previous statement Mark PW17/A and was never con fronted with his first statement dt. 18.01.2013 U/s 161 Cr.P.C. An other important factor is that there is no explanation by the IO sought by the Prosecution or even the defence as to why the statement of PW17 was not recorded earlier in point of time when the witness claimed to be a Sitting MLA of the area and also claimed his pres ence on the spot for almost three hours. Important is the fact to men tion that as per own case of the Prosecution, he is the person who called the PCR. His Phone number provided by the Prosecution is duly reflected in the PCR form Ex.PW19/A.
64. The above analysis of evidence clearly shows that the room was bolted from inside and as per the IO as well as PW24, there was no way for anybody else to enter inside.
Result: Acquitted Page 110 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 64.1. Here, what the IO seems to have forgotten and ignored to investigate and what even the Crime Team seems to have ignored is the fact that though they found the second floor door forcibly opened and they also recovered the broken latch as well as the Screw Ex.PW 24/P.3; yet, nobody paid attention to try and see if any Chance Prints could be lifted from the door latch/lever itself.
65. It can be clearly observed from the Photograph Ex.PW6/A.2 which is a picture depicting the position of the door and latch from in side the room, that the latch itself had been pushed up from its origi nal place and is in a position in which it should be when latched com pletely. The latch handle/lever is also clearly visible in the Photo graph. Photograph has been proved as Negatives Ex.PW6/B (Colly.) have been produced. All documents as well as oral testimony of In vestigating witnesses show that they found the broken door latch on the floor with a Screw in it. This is incorrect. It is so as the Seizure Memo of door latch and the Screw Ex.PW24/B shows that when seized, the broken upper portion Socket of the door latch, was found in the latch itself which was removed and then seized. One Revolving Screw was actually lying on the floor and seized from there.
Result: Acquitted Page 111 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
66. The IO should have ensured presence of possibility of lifting of Chance Prints on the door latch itself that would have been a strong piece of evidence to show that Satyam herself bolted the door form inside and this could have obviated any possibility that the Suicide was only a set up (as alleged by PW18) and that the place of incident was dressed.
67. While saying the above, this Court is specifically conscious of the fact that the IO collected absolutely no evidence regarding where abouts of the accused persons during the entire night intervening 07/08.11.2012. As a matter of fact, he did not even ascertain the ac tual whereabouts of the accused persons when he himself arrived at the spot for the reported period of death in the morning till atleast the reporting time of Vanshika in Satya Bhama Hospital i.e. 07:50 AM. As per the IO, he was told that A1 took the Child to the hospital. Presence of any relative is not recorded by the concerned doctor in the MLC of Vanshika Ex.PW13/A. Furthermore, as per the con cerned doctor i.e PW13 Dr.Gopal Sharma, Vanshika was brought to the hospital by her grand father. This fact is also not recorded in the MLC. As per Voluntary assertion of PW13, he remembered this fact Result: Acquitted Page 112 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) as said by him in his crossexamination.
67.1 The above establishes that whether the Victim Child's Father/A1 or whether her grand father/A3 or whether the other ac cused persons who took Baby Vanshika to the hospital they ought to have been present at their Nangloi house when the incident came to light. IO did not establish about the exact time when the incident came to the knowledge of the accused persons including PW17. Presence of PW17 is established in house of the accused persons with effect from morning hours of 08.11.2012. The time of arrival has not been clarified. It is in evidence that Satya Bhama Hospital is nearby to house of accused persons. Time of arrival of Vanshika in the said hospital is 07:50 AM. PW17 was present when the room door was forced open and thus he arrived at the spot sometime prior to 07:50 AM. His Court testimony reveals that he inquired from A3 about Satyam and was told that she is in her room on the second floor. PW17 then went upstairs and knocked repeatedly on the room door. Position of this door is shown in both the Site Plans. Scaled Site Plan shows the location of this door at Point C. The location of Ceil Result: Acquitted Page 113 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ing Fan is such that it is not possible to see from outside of the bolted door at Point 'C' that Satyam was hanging inside with the Fan shown at Point A in the Site Plan Ex.PW9/A. Thus, believing the testi mony of PW17, A1, A4 and A5 forced open the door and he with others entered inside the room. Once inside, A4 and A5 rested the hanging body in sitting position on the bed. In this context, the Court will have to go with the testimony of PW17 regardless of the fact that he claimed that the IO did not record his statement. As a matter of fact, the IO has not been shown by the Prosecution the part of the police statement of PW17 which he denied to have made to the po lice. It is to be observed that PW17 was not examined immediately by the IO. His first statement U/s 161 Cr.P.C. was recorded only on 18.01.2013 i.e. after about 70 days of the incident even though PW 17 was present on the spot for almost 3 hours. His subsequent state ment U/s 161 Cr.P.C. dt. 31.01.2013 Mark PW17/A is even later. The Court has therefore three statements of this witness including his Court testimony. The IO tried to project from his statement dt. 31.01.2013 that PW17 came to Victim's house after coming to know Result: Acquitted Page 114 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) of her death. However, had it been so, this fact would have reflected in his first Police Statement dt. 18.01.2013. This statement shows that PW17 had come in the morning of 08.11.2012 to Victim's house where he found that Satyam had committed suicide. 67.2. PW17 denies to have made these statements. At the same time, he categorically denies also in his Court testimony that he knew about the incident prior to his visit. As a matter of fact, he clar ified that purpose of his visit to Satyam's house in the morning was to greet her Birthday wishes as 08.11.2012 was her Birthday. He clari fied in his crossexamination that records of Party Workers with re spect to their Birthdays and Anniversaries are kept by him and that he had been personally greeting the Party Workers on the said occa sions.
67.3. The testimony of PW17 with respect to the above aspect is therefore trustworthy which empowers this Court to draw inference that sometime must have been consumed between arrival of PW17 and subsequent call that he made to the PCR from his Cell Phone which was made at 08:12:50 hours as evident from PCR Form Result: Acquitted Page 115 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Ex.PW19/A. 67.4. Vanshika was taken to hospital at 07:50 AM. As per Postmortem report, Satyam died at about 06:00 AM based on the "Time since death" opinion in the P.M.Report. Body was therefore discovered between 06:00 AM and some time prior to 07:50 AM. This is the period between which PW17 arrived at the spot of inci dent. Exact time could have helped not only the Prosecution but also the defence as well as this Court for exact clarity on the issue. Never theless, the time bracket of possible discovery of the incident and the arrival of PW17 on the spot is established. It is also established from these testimonies that atleast A1, A3, A4 and A5 were present in the house when the incident took place. IO has not pro vided these whereabouts at all and thus status of A2 is not before the Court with respect to her activities at the time of incident and even thereafter. Thus, the above time bracket cannot be said to be early morning of 08.11.2012. There is a possibility that A1 and his family might have spent the night together in the second floor room which admittedly does not comprise of a separate Kitchen and admittedly, all other activities except resting during the night, were carried out in Result: Acquitted Page 116 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the floors below. There is a possibility that incident occurred after the Victims and accused persons had started their day on 08.11.2012. 67.5. Had the IO collected CDRs of the accused persons, their exact locations during the intervening night of 07/08.11.2012 could have been ascertained. If the Victim made or received any telephonic call during the night from/on her Mobile Phone, then even the same goes unverified for want of CDRs of Victim's Mobile Phone. The IO is found to be silent even on the personal Phone as well as the official Phone of the Victim and if PW5 is to be believed, then the IO re turned the Mobile Phone of Satyam to her on the date of incident as evident from PW5's subsequent Police statement dt. 30.01.2013. Defence is correct in saying that Phone was never physically pro duced; IO was not provided with the numbers used in the said Phone and the IO did not even collect the CDRs of the said Phones.
67.6. Nevertheless, so far, there is no evidence on record to show Commission of culpable homicide.
68. Having regard to the oral evidence on the aspect of Murder, I shall now be describing the Scene of Incident and the possibility if the Victim could not have reached upto the Ceiling Fan height as de Result: Acquitted Page 117 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) posed. True, no Stool/Table etc. was found in the room that could have been used by the Victim to facilitate commission of Suicide. The Ld.Prosecutor has rightly pointed to this flaw in the investiga tion. However, what is being ignored here is the fact that there is overwhelming evidence to the effect that the Victim was hanging (when discovered for the first time) with the Ceiling Fan and that she was not in a sitting posture. I shall make special reference to PW 17's statement that is claimed to have been recorded by the IO and it has been also used by the Prosecution as Mark PW17/A, not only for purpose of Section 155 Cr.P.C. but also to contradict PW17 as per Section 145 Cr.P.C. In the said statement, it is recorded that "Smt.Satyam Yadav पपखख सख चचननन बबबध कर बबड कख सबथ लटकन हचई थन".
69. The above analysis of the fact situation is the only analysis that appears to be true and correct out of the various distorted versions re garding the exact position of the Victim when found by the PW24, case IO, members of the Crime Team, PW4, PW5 and PW18. 69.1. I say so, for the reason that PW17 who seems to disown his previous statement to the police is shown to have told the IO that Result: Acquitted Page 118 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) from the above described position, the Victim was made to sit on the corner of the Bed by A4 and A5 who were crying. This aspect is missing in Court testimony of PW17.
69.2. One may argue that PW17 saw the Victim hanging with Ceiling Fan and did not allow alteration to this position before arrival of Police. But then, the same can only be appreciated if PW17 had found the Victim already in sitting position after forcing upon the door at Point 'C'. This is not the case. Though the Prosecution con tradicted PW17 with Portion Mark A to A.1 and B to B.1 of his statement Mark PW17/A but no such contradiction was made with respect to the above "Description" of the position of the deadbody. This was not done. The above when read in light of his Court testi mony that despite suggestion of A3 to open the gallows and bring the body down, he (PW17) insisted for arrival of Police may give an impression that he found the body hanging with Ceiling Fan and not partially rested on the bed. However, this is not the case as PW17 never stated in the Court that A4 and A5 had not rested the dead body on corner of the bed. What A3 suggested him was to open the Result: Acquitted Page 119 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) gallows. By "Gallows" the witness is obviously meaning to say that by opening the knot of the Chunni. It is therefore to be inferred that the Victim was indeed made to sit on the bed from her the then hang ing position without opening the Knot of the Dupatta. The Dupatta appears to be completely stretched and showing no looseness between the neck and the Ceiling Fan. It is not clarified if the Noose at either end was loosened for resting the body on the bed. Once the above in ference is drawn, it will be safe to proceed on an approach that the room was latched from inside; it was forced open by A1, A4 and A 5 in presence of PW17; that Satyam was found hanging with Ceiling Fan alongside the bed and that A4 and A5 rested her on the bed while A1 took the Child to hospital and perhaps A3 also accompa nied him.
70. The next important aspect is the oral evidence of PW5 on this is sue in which he claims not only in his statement Ex.PW5/C but also in his Court testimony that when he reached Nangloi at 10:30 AM, A 1 who was present there told him that he will hang PW5 like Satyam. None has reported about presence of A1 in the house at Result: Acquitted Page 120 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) around 10:30 AM or even thereafter. PW4 categorically responded to Prosecutor's specific question that when she reached with PW18 and others to the Victim's house at about 11:30 AM, none of the ac cused was present. Thus again, the fault on the part of the IO of not establishing the whereabouts of the accused persons before and even after the incident is questionable.
70.1. It is so as the Court has come across a specific evidence which at least establishes that the accused persons had returned to the Nan gloi house in the presence of not only the PCR but also the Local Po lice. This piece of evidence is Ex.PW19/A wherein the details dis patched to the Operator by the PCR Vans PWR64 and TGR48 are recorded. It specifically records that "08.11.2012 10:20:41 लडकन Vanshika कक घरवबलख hospital सख घर लख आए हब"प . This fact seems to have escaped the attention of the Prosecution. It is so as as per the IO, he had left deadbody of Vanshika in the custody of PW1 at Satya Bhama Hospital and this custody was released in the form of handingover deadbody of Vanshika by PW1 to PW3 Ct.Binay Ku mar.
Result: Acquitted Page 121 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) If deadbody of Vanshika remained with PW1 at the hospital then, the accused persons could not have brought it to their house at 10:20:41 hours. If the PCR Van's dispatch message is correct then the deadbody was not in possession of PW1 and therefore PW3 could not have collected it from PW1. No clarification has come up on this issue which is a very vital aspect. The fact is therefore non supportive of any corroborating evidence. No inference can be drawn on basis of this statement particularly in the absence of any other evi dence regarding presence of A1 on the spot at 10:30 AM to the ef fect that A1 was present in the house to threaten PW5.
71. PCR Form also disclosed that by that time i.e. 10:20:41 hours, the SDM had not arrived as he was still being awaited at 10:19:40 hours. There is a possibility that if A1 was at the house considering this period, then the SDM must have encountered him. However, even his Inquest Report is silent on this aspect. There are contradic tions in the statement of SDM regarding his arrival time. Such con tradictions are also present in the statements of PW24 as well as PW25.
Result: Acquitted Page 122 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
72. Regardless of the same, PW18 who also witnessed the spot of occurrence is found to be silent on the Posture in which he saw Satyam upon reaching at the spot at 11:30 AM. Not only his state ment Ex.PW18/A but also his Police statement Ex.PW18/DA as well as his Court statement are found to be silent on this aspect.
73. The above brings me to the last Determination Point on the issue which was raised by the Prosecution and also by PW18 that Satyam could not have reached the Ceiling Fan height.
73.1. The PW24 has categorically stated that he drew the Rough Site Map Ex.PW24/A. As per the IO, the Site Map was prepared by him. Nevertheless, Scaled Site Plan Ex.PW9/A was prepared on Pointing out of PW24. It records all measurements and dimensions in Cms.
73.2. Death Report purportedly prepared by the SDM regard ing both deceased persons is on Judicial record but same is found to be unsigned and also not proved as per law. It records the body height of Satyam as 5'4". The Postmortem Report of Satyam is proved and it also records the body height as 5'4". The same when Result: Acquitted Page 123 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) converted to Cms is 162.56 cms. The height of bed from the floor level is 65 cm and if Satyam stood on the bed, her total height would be 162.56 + 65 cms is = 227.56 cms. The Fan height from Floor level is 235 cms. Accordingly, if Satyam stood on the bed then the only difference between the top most point of her hand and the bot tom point of the Fan is of 7.44 cm. All that Satyam had to do to tie the Noose with the Fan was to raise her hands which would be more than 7.44 cms. Her total height coupled with the Bed height would translate to 7 Feet and 519/32 Inches.
73.3. The above analysis therefore clearly establishes that Satyam could have very well reached the Ceiling Fan to commit sui cide. Coupled with the fact that there is no other evidence to suggest that she was murdered alongwith her daughter and later hanged with Ceiling Fan, the only necessary corollary that arises is to the effect that this Court does not have any evidence to show that the death of Satyam was "homicidal". The entire evidence analysis above points it to be "Suicidal".
74. Thus, the Court has no evidence to raise an inference that the Result: Acquitted Page 124 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) place of incident was dressed and a Stage was set up to give it an appearance of the murder (Vanshika) and Suicide (Satyam). Consequently, no evidence is on record to prove Commission of Offence Punishable U/s 302 IPC. It also appears to the Court that the Ld.Counsel for the Complainant was perhaps conscious of the above lapses in the prosecution case and hence, he cited from Vijay Pal Singh & others, supra referred to at Para 39 (B.1) of this Judg ment that acquittal U/s 302 IPC does not lead to automatically acquit tal U/s 304B IPC.
75. (2) If not, whether the Victim died otherwise than under nor mal circumstances?
While dealing with the first Point for determination, I have dis cussed extensively upon the ocular evidence regarding the Scene of Occurrence including the Photographs Ex.PW6/A.1 to Ex.PW6/A.8 while also discussing the medical evidence in the form of the MLC of Baby Vanshika Ex.PW13/A and the Postmortem Reports of Satyam and Vanshika Ex.PW16/E and Ex.PW16/F respectively. I have also discussed extensively about the observations recorded in the Result: Acquitted Page 125 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Crime Team's Report Ex.PW7/A. Further, the Inquest Report by PW21, Ex.PW21/C also describes the factum of death of the Vic tim in 'unnatural circumstances'. Even further, Dr.Kanak Lata Verma prepared the FSL Report of Viscera examination of Child Vanshika and Satyam Ex.PW20/A. In this context, no evidence to the con trary has come on record that there was a delay in depositing the Vis cera samples with either the MHC(M) or the FSL. Also, no evidence has come on record to show that the Samples were subjected to either tampering or putrification. Report Ex.PW20/A is conclusive. As per the same, Ex.1A to Ex.1D are the Viscera Samples of Vanshika while Ex.2A to Ex.2D are the Viscera Samples of Satyam. On none of these exhibits, presence of any Metallic Poisons, Ethyl and Methyl Alcohol, Cyanide, Phosphide, Alkaloids, Barbiturates, Tran quilizers and Pesticides was found.
76. Dr.Munish Wadhawan prepared the Subsequent Opinion on ap plication of PW24 on Postmortem Report of Satyam. The Report is Mark PW16/SO which reaffirms that after going through the P.M.Report and FSL Report, the cause of death remained "As Result: Acquitted Page 126 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) phyxia as a result of antemortem hanging". Once the Court has ruled out the conclusive evidence of murder of Satyam, the death would no longer be "Homicidal" but "Suicidal" which is a death otherwise than under normal circumstances.
77. So far as Baby Vanshika is concerned, there is absolutely no ques tion that she was murdered. While determining First Point regarding Offence Punishable U/s 302 IPC, no conclusive evidence at all has come on record that the said Murder was handi work of A.1 to A.5 in furtherance of their common intention to Murder Vanshika. As a mat ter of fact, the Prosecution has not even brought any Motive on the part of the accused persons to have murdered/killed Baby Vanshika. I have already ruled that the Court will have to go with the evidence that the room in which the deceased were found after forcing open the door at Point 'C' shown as Ex.PW9/A was not accessible to any body else from inside from anywhere as the door at Point 'C' was bolted from inside. There is a witness in the form of PW17 who was present at this bolted door before it was forced open. True, no Chance Prints were lifted from the door latch/lever by the IO but that in itself can never have proven that killing of Vanshika was handi Result: Acquitted Page 127 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) work of the accused persons. In all probabilities, Baby Vanshika was killed by her own mother i.e. Satyam. I have discussed about the Ex ternal Injuries found present on Baby Vanshika's Neck during the Postmortem Examination. It is not the case of Strangulation by bare hands but a case of Strangulation by a ligature material that was never identified and seized. Fact remains that Baby Vanshika also died an unnatural death but no culpability for it is attributable to the accused persons. I may as well refer to a disturbing fact that evidence sug gests that Vanshika was in unconscious State when found. Who de clared her to be unconscious and not dead while still at the house has never seen in the light of a day. Fact also remains that when she was taken to nearby hospital i.e. Satya Bhama Hospital, Nangloi, she was declared "brought dead" at 07:50 AM on 08.11.2012. Even this as pect does not change the fact that the cause of death of Vanshika was "Antemortem ligature strangulation".
78. It is therefore conclusively proven that Satyam had died in unnatural circumstances otherwise than under normal circumstances.
79.(3) Whether the Victim died so within 7 years of the Marriage?
This point for determination is not to be dealt with in its Result: Acquitted Page 128 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) minute details as the Prosecution's case is supported by cogent evidence on that Count. Even the accused persons do not deny that marriage between A1 and Satyam had taken place on 16.02.2010. She died on 08.11.2012 i.e. after 2 years, 8 months and 10 days of marriage.
80. Nevertheless, it is an admitted case in testimonies of PW4, PW 5 as well as PW18 that the marriage had taken place on 16.02.2010. Vide Seizure Memo Ex.PW5/A, the case IO had seized the Marriage Card Ex.PW5/A.1 which was produced on 23.11.2012 to him by none other than PW5. Seizure Memo was witnessed by PW
18. The IO also seized, on the same day, five Photographs of Marriage Ceremony Mark PW5/1 to Mark PW5/5. Besides this, the IO was also provided with list of Stridhan/Dowry Articles Ex.PW5/A.2 provided to him by PW5 on 23.11.2012. It also reflects that the date of Marriage was 16.02.2010. The date of death is not at all disputed and hence, the Prosecution has proven that Victim Satyam had died an unnatural death within 7 years of her marriage.
Result: Acquitted Page 129 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
81. (4) Whether A1 to A5 had, in furtherance of their common intention, subjected the deceased Satyam to Cruelty by committing Acts of Willful conduct of such nature as were likely to drive her to commit suicide or harassed her with a view to coercing her as well as PW4, PW5 and PW18 to meet their Unlawful demand for dowry articles?
And (5) Whether the accused A1 to A5, in furtherance of their common intention, demanded dowry and subjected the deceased for or in connection with any demand for dowry, to such Cruelty soon before her death and thus, caused dowry death?
The above two Points for determination are taken up together as the Peculiar facts of this case are intricately woven so far as they pertain to harassment and cruelty for or in connection with demand for dowry and also as to whether such demands, harassment and Cruelty was "Soon before death" of Victim Satyam. The Court will not be justified in its finding unless both the aspects, though different, are dealt with and analysed together. It is also so as Charge Result: Acquitted Page 130 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) with respect to Offence U/s 498A IPC is clearly founded as per the Explanation (b) appended to Section 498A IPC. The Charge clearly defines that A1 to A5 are alleged to have subjected Satyam to Cruelty and harassment for demand of dowry on various occasions.
82. Having said so, this Court is required to probe keeping in mind the relevant law and the Ingredients of Section 498A IPC and also Section 304B IPC. It will have to be conscious as to whether the Prosecution proves Cruelty and harassment upon Victim Satyam with respect to demand of dowry on various occasions and also as to whether such demands had a live link with the cause of death of Satyam in the sense that there was a demand which could be considered "Soon before death". The Court will then have to be conscious to say that the Prosecution has "shown" that there was such demand "Soon before death" for drawing presumption U/s 113B of the Indian Evidence Act, 1872. Further, the Court while dealing with the evidence will have to be also conscious if there is evidence regarding abetment of suicide of Satyam within the meaning of Section 306 of the IPC worth enough to raise presumption as per Result: Acquitted Page 131 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Section 113A of the Indian Evidence Act.
83. Both the sides have presented their arguments and cited Judgments in support of these arguments. The Prosecution arguments have been clearly set out in appropriate detail in Paragraphs 11 to 18 of this Judgment. Arguments by defence in above aspect are set out in Paragraphs 20 to 29 of this Judgment. The Judgments cited in support of its contention by the defence on the above issue are reflected in para 30(2) to 30(15) of this Judgment. Rebuttal arguments including arguments by complainant are set out in Para 32 to 38 and the relevant details which are cited in support of the same are set out in Para 39 of this Judgment.
84. Thus, this testimony is now to be dealt with in accordance of the ingredients of the offences Punishable U/s 498A IPC & also U/s 304B IPC r/w Section 113B of the Indian Evidence Act.
85. Section 498A IPC reads as under :
"Husband or relative of husband of a woman subjecting her to cruelty - whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine".Result: Acquitted Page 132 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Explanation - For the purposes of this section, 'Cruelty' means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life,limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand.
86. Section 304B IPC reads as under : "Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called 'dowry death' and such husband or relative shall be deemed to have caused her death." Explanation - for the purposes of this subsection, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
Result: Acquitted Page 133 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
87. The Hon'ble Supreme Court in Sunil Bajaj Vs. State of MP (2001) 9 SCC 417 after noticing the provisions of Section 304B IPC had opined that in order to establish an offence U/s 304B IPC, following ingredients must be established before any death can be termed as dowry death :
(1)The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of her marriage.
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(4) Such cruelty or harassment must be for or in connection with demand of dowry.
In this Judgment, it is also held that :
"This Section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or inlaws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on Result: Acquitted Page 134 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the husband or inlaws even though they did not in fact cause the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence or establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution".Result: Acquitted Page 135 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
88. Section 113B of the Evidence Act is also relevant for the case in hand. Both Section 304B and Section 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B of the Evidence Act, 1872 reads as under : "113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation : For the purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)".
89. As per the definition of "dowry death" in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in Result: Acquitted Page 136 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment "for or in connection with the demand for dowry". While considering these provisions, Hon'ble Supreme Court in M.Srinivasulu Vs. State of A.P. (2007) 12 SCC 443 has observed thus :
"8.4... The presumption shall be raised only on proof of the following essentials :
(1) The question before the court must be whether the accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B Indian Penal Code).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death".
90. A perusal 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 Result: Acquitted Page 137 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) harassment. In other words, the prosecution has to rule out the possi bility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circum stances". The prosecution is obliged to show that soon before the oc currence, there was cruelty or harassment and only in that case pre sumption operates.
91. Further, I may as well add at this Juncture itself that improve ments in testimonies which can be said to be minor shall not effect the entire testimony of the Prosecution witness if the testimonies are found to be minor only which do not put the veracity of statements of PW4, PW5 and PW18 under serious Question Mark then they are liable to be ignored. It is held in (1) State of UP Vs. Naresh (2011) 4 SCC 324 that :
"Discrepancies are bound to occur in the deposition of witness due to normal error of observation, error of memory, due to lapse of time or due to mental condition such as shock and horror at the time of occurrence".
(2) In 1983 Crl.L.J.1096 (SC), it is held that :
Result: Acquitted Page 138 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) "Much importance should not be given to minor discrepancies. They can overlooked unless discrepancies go to the root of the matter to impeach basic version".
(3) In 1980 Crl.L.J. 958, it is held that :
"Improvement of the story at the trial in one material particular. Entire evidence cannot be rejected".
Reliance can also be placed in this regard in the Judgment titled as (4) Inder Singh Vs. State (1978) 4 SCC 161, wherein it is held that :
"Proof beyond reasonable doubt is a guideline and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes".
when projected through human processes".
92. The Hall Mark of the Judgments on the issue cited by both the sides and also relied by this Court as in above Paragraphs is that the Cruelty or harassment which is to be shown by the Prosecution to exist must not only be "Soon before death of the Victim" but it should also be for or in connection with demand of dowry. It has Result: Acquitted Page 139 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) been also established from Catena of Judgments as above that the relatives of such Victim have the tendency to rope in all the members of family of Victim's Inlaws for various reasons including the reason that they were unable to come to terms with the fact that there may have been some other cause distinct from demand of dowry/Cruelty/harassment which may have propelled the Victim to take away her own life. What is further followed from the Judgments is that the Presumption U/s 113B of the Indian Evidence Act shall be raised only in case of offence U/s 304B IPC and not U/s 498A IPC coupled with the fact that the Prosecution proved that the woman was subjected to Cruelty or harassment by her husband or his relatives and that the same was for or in connection with any demand for dowry which was "Soon before the death of a Woman". What is also observed from the above Catena of Judgments is that the minor discrepancies and contradictions are not to be used for discrediting the interested witnesses i.e. relatives of the Victim and are to be over looked unless the discrepancy go to the root of the matter to impeach basic version of the Prosecution's case, regard being had to the fact that minor discrepancies may arise due to normal error of Result: Acquitted Page 140 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) observation, memory, lapse of time, mental condition like Shock/Horror etc.
93. The arguments before me are full of factual narrations and advanced in a manner to show that the drastic Improvements and material contradictions are such that go to the root of the Prosecution case thereby rendering them so improbable that the defence seems to be more probable rather than the attack.
94. Defence in this case has been set out categorically in the Preceding Paragraphs. Further defence is to be also observed from the Crossexamination of material witnesses. Basic defence is same running in the crossexamination offered to PW4,PW5 and PW18 to the effect that they never had good relations with Satyam and that her expectations were always defeated. It is an admitted case that PW4 and PW5 never ever visited Satyam during her stay in the hospital at the time of Cesarean delivery of Child Vanshika. They did not even know the complications which she had. None of them including PW18 ever visited Satyam to attend her fecilitation function on being elected as Municipal Councilor from Nangloi. That PW18 visited the Victim in the hospital at the time of birth of Result: Acquitted Page 141 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) her daughter is only the bald statement which does not provide any date or even time of such visit and that it, in any case, is without any corroboration.
95. The basic defence that Satyam had taken her life after killing Vanshika is also to be seen in crossexamination of these witnesses wherein they were suggested that Satyam felt humiliated and insulted when Prashant/PW5 did not invite Satyam and her Inlaws in the "Kuan Poojan Ceremony" of his Son which led to the Victim being badly disturbed for the fact of this neglect coupled with the fact that she had invited several persons of her Constituency to accompany her in the "Kuan Poojan Ceremony". The defence that PW5 was residing at Nangloi in the house of Sudesh and Mehtab who are related to PW4 and thus PW5 was already known to accused persons is said to be the reason as to why admittedly no inquiries were ever made by PW5 and PW18 regarding financial status of the accused persons as they were already satisfied that it was Sound.
96. The defence that PW5 who is admittedly the only relative who pursues this case has a reason to falsely implicate the accused persons can also be seen in the extensive crossexamination of PW5. The Result: Acquitted Page 142 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) witness was suggested that since he had been working at Chankya Puri and staying at Noida even prior to the marriage on 16.02.2010, he, after marriage, made a demand from A3 of Rs.20 lacs for the purchase of a house in Noida and that A2 had refused to give the said amount while saying that such borrowing spoils the relations. Further, the defence can be seen in the same crossexamination dt. 11.05.2016 that owing to the above refusal, even PW5 was not having any cordial relations with either Satyam or her Inlaws which was the exact reason as to why PW5 did not interact with Satyam. No DE was led on it.
97. The preceding few Paragraphs have been specifically set out in order to highlight the full defence of the accused persons. It will not be out of place to say that PW5 has been the main target of defence as is evident from the lengthy crossexamination with which he was subjected to.
98. I shall now state broadly about the events which are said to be taunting/Cruelty and harassment for or in connection with demand of dowry. Conjoint reading of statements of PW4, PW5 and PW18 including statements Ex.PW4/A, Ex.PW5/C and Ex.PW18/A Result: Acquitted Page 143 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) reveal that there was no demand for dowry at the time of marriage though PW4 presented certain articles of Jewellery to the accused persons on asking of A3. This version is diagonally opposite to the version that there was no demand of dowry at the time of marriage and until six months thereafter.
99. There is further addition which is over and above the first statements to the SDM wherein Cruelty and harassment for bringing less dowry and further demands for dowry are said to have started after six months of Marriage. In this context, there is no specification regarding date or even month or the year when such demands were made or even about the incidents when Satyam was allegedly beaten up. Defence has been hitting the Prosecution time and again on this Count saying that these demands are unspecific, bald and omnibus.
100. The next specified period of specific demand is of the "Chhuchhak Ceremony" celebrated 10 days after birth of Vanshika i.e. 12.03.2011.
101. After the above, the next specific demand is said to be of Rs.50,000/ during the Election Period i.e. March/April, 2012.
102. The taunts on the brothers for not even providing the Mobile Result: Acquitted Page 144 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Phone to Satyam and incident related to it regarding recharging the talk time in Mobile Phone etc. are also unspecific. As per Ex.PW 4/A, Satyawati used to send various clothes and gifts for the husband and Inlaws of Satyam on all festivals.
103. The next specific incident for dowry demand is of 06.11.2012.
104. Of course, there has been development of case from stage to stage by PW4, PW5 and PW18 as is evident from bare readings of their first statements to the SDM and subsequently on 16.11.2012 to the case IO. Even retraction from earlier statement by PW5 is present in this case regarding amount of Rs.6 lacs given as dowry for purchase of a Car at the time of Marriage. I shall touch upon these improvements in succeeding Paragraphs of this Judgment. Before that, it is very important to point out that a specific question was put by the defence to PW5 during his crossexamination recorded in the Court on 03.05.2016 and as per him the specific dates of ill treatment to his sister by accused persons are 10.04.2012 and 06.11.2012.
105. Thus, the above incidents which are having some definitive element of specificness sans any baldness are the following viz :
Result: Acquitted Page 145 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) (1) Date of Marriage : 16.02.2010;
(2) Six months after marriage i.e. August, 2010 & after ; (3) "Chhuchhak Ceremony" i.e. 10 days after 12.03.2011 ; (4) During Municipal Elections i.e. around 10.04.2012, and (5) Visit of PW18 i.e. on 06.11.2012.
106. In the context of analysis of statements Ex.PW4/A; Ex.PW 4/DA; Ex.PW5/C; Ex.PW5/DA; Ex.PW18/A; Ex.PW18/DA and the Court testimonies of these witnesses i.e. PW4, PW5 and PW 18, this Court finds that PW4 has been crossexamined, confronted and also contradicted with both her complaints to the SDM Ex.PW 4/A and statement to the Police Ex.PW4/DA during her Court testimony. Likewise, PW5 has been similarly treated with both his previous statements Ex.PW5/C and Ex.PW5/DA. Same is the treatment given by defence to PW18 in the form of cross examination on and contradictions with his Court testimony and statements Ex.PW18/A as well as Ex.PW18/DA. As a matter of fact, the crossexamination of these witnesses comprises of a major part pertaining to bringing about various improvements, Result: Acquitted Page 146 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) contradictions, departures, additions, improvements in the form of contradictions. These witnesses have deposed during their cross examination that they had stated the specific facts (confronted) to the SDM as well as the case IO and the Court observations are on record as to whether the said facts were indeed recorded in such previous statements or if recorded, whether the same were recorded in the form in which witness later improved on them during court testimony. All these instances of contradictions are therefore implied admissions that the fact contradicted was not stated in the earlier statement. The above is barring three exceptions wherein firstly, PW5 admitted in his crossexamination dt. 11.05.2016 that he never mentioned in any of his statements that they had given a Car as dowry in the marriage of Satyam. The second exception is in the crossexamination dt. 23.02.2016, where the witness admitted that he did not state to the police that A1 never visited Bullandshahar either to take or drop Satyam and every time either he or his brother used to pick and drop the deceased from her matrimonial home; that all accused persons did not allow his Sister to talk with them and they never recharged her Mobile Phone; that he used to give stitched clothes to the deceased Result: Acquitted Page 147 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) from Bullandshahar and that neither A1 nor other accused persons used to provide Satyam any money for personal expenses. The third exception is also recorded in his crossexamination dt. 23.02.2016 where he admits that he did not tell the Police that his Sister never desired to contest Elections of Councilor; that A3 was having Political ambitions but Seat was reserved for ladies; that due to this reason, his Sister was made to contest the Elections; that despite this, all accused used to beat her; that A2 used to torture his Sister physically and mentally and that all accused used to demand Rs.10 lacs always from his Sister.
107. The crossexamination by defence is with an aim to impeach the credit of the witnesses by Proof of their inconsistent former statements. Section 155(3) of Cr.P.C. provides for impeaching credit of a witness by Proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Section 145 of the Evidence Act also enables the crossexaminer to use any former statement of the witness, but it cautions that if it is intended to contradict the witness, the crossexaminer is required to comply with Result: Acquitted Page 148 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the formality prescribed therein. Section 162 of Cr.P.C. also permits the Crossexaminer to use the previous statement of the witness recorded U/s 161 Cr.P.C. for the only limited purpose i.e. to contradict the witness. Unless former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be improbable to contradict the witness. Reference in this context may be had to Judgment of the Apex court in Tehsildar Singh Vs. State of U.P., AIR (1959) SC 1012.
108. The Complainant also relies likewise on V.K.Mishra's case, supra.
109. In the light of the above, I have already set out those instances which PW5 himself admitted he never told the IO. The other instances are where all these related witnesses are confronted with former statements after due compliance of Section 145 of Cr.P.C. and the court observed that the previous statement did not mention the fact contradicted. Thus, I am of the opinion that the defence has duly complied with Provisions of Section 145 of the Evidence Act as well as Section 155 of Evidence Act.
Result: Acquitted Page 149 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
110. The court shall now take up the points elaborated in Para 105 of this Judgment.
(1) Date of Marriage i.e. 16.02.2010 110.1. As per Ex.PW4/A, there was no demand for dowry at marriage which is a reason why she agreed to the marriage at first place. She gave Rs.1.50 lacs for Jewellery and Car for Rs.6 lacs besides all household utilities. When the statement was being concluded, she added at Page 4 thereof that she gave Satyam one Gold Set, one gold Chain, 4 gold Karas, 4 Pair of jewellery of Ears, one diamond ring, 4 golden Finger Rings, 4 pair of Silver Anklets. She added that to A2 one gold set, ear Jewellery, gold finger ring, silver Anklet and Silver toe ring. She also added that to A4 and A 5, she gave diamond rings. She also gave a diamond ring to A3. In the same breath, she added that these Jewellery articles were given by her on asking of A3. She then adds that she gave one diamond finger Ring and one gold finger Ring to A1. It is to be taken note of that nowhere in this statement, PW4 said that the articles were given as dowry articles. I shall also touch upon the definition of 'dowry' Result: Acquitted Page 150 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) and the cauldron of law on the subject in the subsequent Paras. 110.2. Here, it is important to note that the case IO recorded further statements of these three witnesses and also Komal after 8 days on 16.11.2012 but does not explain as to what was the reason to do so and that too, after 8 days of the incident. The defence has called this delay as fatal to the Prosecution in the light of nonexplanation for it by citing Kashi Ram Pujari, supra as well as Mahavir Kumar & others, supra. Thus, the Court is required to view these Police statements with caution.
110.3. Statements of all these witnesses open up with an explanation that the witnesses could not explain facts properly on 08.11.2012 before the SDM due to death of Satyam. Conversely, the statements before the SDM record that these witnesses had given statements before him on their own volition and in full conscious state as well as senses. Thus, these two versions are mutually contradictory. Very interestingly, PW4 was put a question in her crossexamination regarding her state of mind on 08.11.2012 at the time of recording of her statement Ex.PW4/A. She stated on Result: Acquitted Page 151 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 08.10.2012 in her crossexamination that, "I was conscious and normal state of mind when SDM recorded my statement. Whatever I deposed before the Court, I had stated all the facts in my statement Ex.PW4/A".
110.4. Thus, PW4 who is eldest amongst of the other related witnesses has affirmed in her Sworn testimony that there was nothing wrong with her state of mind on 08.11.2012. Thus, explanation given in her subsequent statement Ex.PW4/DA and also such statements of PW5 and PW18, regarding 'disturbed state of mind' is belied by the witness herself. This calls for greater caution in analysing these testimonies.
110.5. In this statement Ex.PW4/DA, PW4 improves drastically by introducing new fact that she gave "Daan Dahej beyond her capacity during marriage of Satyam". Thus, as per Ex.PW4/A, there was no demand of dowry at the time of marriage but various articles were given on the asking of A3. As per Ex.PW 4/DA, "Daan Dahej was given in the marriage beyond the capacity". She also added in this very statement that she had not Result: Acquitted Page 152 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) given any Car as dowry in the marriage and that Satyam's Inlaws demanded Honda City Car. This part in the statement has been added after conclusion of the entire statement and it is apparent that this addition is only to fulfill this lacuna left earlier. 110.6. Regarding this incident, PW5 disclosed nothing regarding demand of dowry in marriage. He stated that the Hundai Accent Car shown in the marriage as dowry was actually purchased by the accused persons only and they were demanding a Honda City Car. This statement is silent on demand of dowry at the time of marriage and is diagonally opposite the version of PW4. 110.7. In Ex.PW5/DA, the PW5 repeated what PW4 did and introduced likewise that dowry was given at the time of marriage beyond capacity. Since the Ld. Prosecutor laid special emphasis on his another subsequent police statement dt. 30.01.2013, I may as well refer to it wherein PW5 was clarifying to the IO that his mother's statement to the SDM regarding providing Car worth Rs.6 lacs to the accused at the time of marriage was not so as his mother/PW4 was perplexed. He clarified that no Car was given in Result: Acquitted Page 153 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the marriage.
110.8. PW18 Nishant is absolutely silent about any dowry during the marriage Ceremony in Ex.PW18/A. Even in his statement Ex.PW18/DA, he merely follows suit by introducing new fact of giving dowry at the time of marriage beyond their capacity.
111. In her Court testimony, PW4 repeats and asserts on Oath that at the time of marriage, there was no demand of dowry from the accused persons. She introduced an all together new story with which she was also contradicted which is that she spent Rs.15 to 16 lacs in the marriage and in crossexamination, she admitted of not having provided any Proof of expenditure. Surprisingly, she again reasserted on Oath that she gave Rs.6 lacs to A3 for purchase of Car in marriage. As against her statement Ex.PW4/A wherein she did not refer to the articles given in marriage as "dowry articles", she stated on Oath that the said Jewellery articles etc. were "dowry articles". She was even suggested that she made improved statements for success of this case and framed accused persons despite their innocence only due to the reason that her daughter passed away untimely. She clarifies in her crossexamination that accused persons Result: Acquitted Page 154 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) displayed Hundai Accent Car in 'Lagan Ceremony' even though they did not give any such Car in dowry. It is the defence and also seen in the crossexamination that as admittedly A1 got the Govt.Job as a Teacher in a School a month before his marriage, A3 had decided to gift him a Car. The witnesses came to know of it and requested that the Car be displayed in the marriage and therefore, the same was so displayed so that the credit of it could be taken by the family members of Satyam. Of course, no evidence is led on this aspect but the defence sounds to be probable when the Pws are found to be materially inconsistent regarding providing sum of Rs.6 lacs in the marriage. It is more so as surprisingly cash amount of Rs.6 lacs for purchase of Car still stands distinctively described in the list of Articles Ex.PW5/A.2 which PW5 admittedly prepared as per his memory and in consultation with his mother PW4 and handed it over to the IO much subsequent to the incident on 23.11.2012. He had already made a statement before the SDM on 08.11.2012 that no such amount was given and the Car shown in the marriage was purchased by the accused persons only. It being so, neither this amount ought to Result: Acquitted Page 155 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) reflect in the above list nor it had to be reiterated in Sworn testimony of PW4. It is a material contradiction.
111.1. PW18, who was silent about dowry demand in Marriage in Ex.PW18/A and was vague on this aspect in Ex.PW 18/DA, deposed in the Court nothing about any demand of dowry during the marriage. His examination in Chief is silent and he did not even reassert his earlier version to the Police that dowry was given during the marriage and that too, beyond capacity. Very very surprisingly, PW18 admits in his crossexamination dt. 09.11.2016 that, "It is correct that there was no demand from the accused side before or at the time of Marriage. It is correct that whatever was given at the time of Marriage was gifted to my Sister".
111.2. The above analysis of evidence on this particular Point shows the significant improvements and contradictions which are sufficient enough to put a question mark on the credibility of these three witnesses even on the first issue and on demand for dowry which commences right from the beginning i.e. the date of Marriage Result: Acquitted Page 156 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) and to top it all, the above three witnesses are sure that the Marriage talks started in May, June of the year 2009. Admittedly, there was no demand for dowry prior to the marriage and demand for dowry at the time of Marriage is totally disproved in view of the above major discrepancies and contradictions. This is why I said earlier that I shall be touching upon the Cauldron of Legislation on Dowry Laws. 111.3. In referring to the same, the Court places emphasis on the observations of the Hon'ble Apex Court in the Judgment in Sher Singh @ Pratap Vs. State of Haryana, (2015) 3 SCC 724. It is in respect of Cauldron of litigation in respect of death of Married Women due to dowry demands, Cruelty and dowry expectations.
111.4. Section 2 of the Dowry Prohibition Act, 1961 defines "Dowry" as including any property or valuable Security given or agreed to be given by one party to the other party around the time of marriage.
111.5. Section 3 of this Act provides Punishment for the offence being not less than 5 years and fine of Rs.15,000/ or the amount of the value of such dowry whichever is more.
Result: Acquitted Page 157 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 111.6. Section 3(2) of this Act makes an differentiation with respect to "Presents" given at the time of marriage provided they are of a Customary nature and the value thereof is not excessive having regard to the Financial Status of the Parties. There is a mandate of drawing of a list of "Presents" received in Contemplation of marriage. Even the demand of dowry is Punishable as per Section 4 and if any Agreement is entered into for giving or taking dowry, Section 5 makes it void.
111.7. Section 6 of this Act clarifies that where any dowry is received by any person other than the Women in connection with whose marriage it is given, it must be transferred to her within three months of marriage or receipt of the dowry (Reliance may be had from Judgment in case titled Durga Pd. Vs. State of MP, 2010 (9) SCC 73).
111.8. Chapter XXA was introduced into the IPC containing solitary Section 498A and the Amendment makes matrimonial Cruelty to the Wife punishable with Imprisonment for a term which may extend to three years together with Fine.
112. I shall be dealing with the relevant Provisions a little later in this Result: Acquitted Page 158 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Judgment adding that what has been essentially considered in Sher Singh's case (Supra) is the term "Cruelty" U/s 498A IPC which is sans the term "Dowry".
112.1. Act 46 of 1983 simultaneously incorporated changes in Section 174 (3) Cr.P.C. pertaining to the Suicide or death of a women within 7 years of her marriage; it mandated the examination by the nearest Civil Surgeon of the body of the Victim. 112.2. Additionally, Section 113A was introduced into Evidence Act, 1872 which specifies that when question is whether the Commission of Suicide by a Woman had been abetted by her husband or his relative and it is shown that she had committed Suicide within 7 years from the date of her marriage and that her husband or such relative or her husband had subjected her to Cruelty, the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by relative of her husband.
113. Further amendments were made to the Dowry Act as well as the IPC by Act 43 of 1986 which made Offence dealt with in the Dowry Act Cognizable for certain purposes and also made them Non Result: Acquitted Page 159 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Bailable and non Compoundable. Section 8A was introduced to the Dowry Act and burden to prove was reversed in respect of Prosecutions for taking or abetting the taking or demanding of any Dowry by making the person concerned responsible for proving that he had not committed such Offence.
113.1. Section 304B was inserted into IPC which defines Dowry Death and makes it Punishable with Imprisonment for a term not less than 7 years but which may extend to Imprisonment for Life. 113.2. Simultaneously by the same Act, Section 113B IPC was incorporated into the Indian Evidence Act regarding Presumptions as to Dowry Death stating that where the question is whether a person has committed the death of a Married Women and it is shown that soon before her death such Women was subjected by such person to Cruelty or harassment for or in connection with any demand for dowry, the Court shall presume that such person has caused 'dowry death' within the meaning of Section 304B of the IPC.
114. The Prosecution is required as per Sher Singh's Case, supra to prove that, (i) death of Victim was caused in abnormal circumstances Result: Acquitted Page 160 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) by her having been burnt or having been bodily injured; (ii) Within 7 years of her marriage; (iii) That she was subjected to Cruelty and harassment by her husband or any relative of her husband; (iv) In connection with any demand for dowry and (v) That the Cruelty or harassment meted out to her continued to have a casual connection or a live link with the demand of dowry.
114.1. In this case (Sher Singh, supra), the deceased was Pregnant at the time of her suicide and thus, only exceptional and overwhelming factors could have driven her to take her life alongwith her unborn Child. The fact remained that she did so. It was observed that what motivated or compelled her to take this extreme and horrific step will remain a Mystery. It was so as the Prosecution had not proved or even shown that Victim was treated with such Cruelty; connected with dowry demands, as led her to commit Suicide.
115. Accordingly, there is difference between "Presents" given at the time of Marriage if they are Customary in nature and value is not excessive. There is also a mandate of drawing a list of the "Presents".
116. In the instant case, PW4 did not say anything to SDM Result: Acquitted Page 161 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) regarding demand of dowry and did not even term the articles given in marriage as 'dowry'. PW5 said nothing to the SDM regarding either demand of dowry or about description of articles given as stated. He said that accused were demanding a Honda City Car but it is not specified that the demand was at the time of Marriage. PW18 remains silent in all his statements about demand of dowry or its specifications. The above gives an impression that if the articles so described were given during the marriage, the same were Customary Presents. Break up of cost of Articles and told Cost has not been provided anywhere including in Ex.PW5/A.2. The Court has no evidence to say that if the articles were given as per Ex.PW5/A.2 than the same were "dowry articles". Here, I may also refer as to what Articles were recovered during investigation. Seizure memo in this context is Ex.PW4/B. The Jewellery Articles recovered from the house of the accused persons at the instance of A4 are Ex.PW 4/P.1 to Ex.PW4/P.5. Ex.PW4/P.1 is one gold Chain which as per PW1, was given in the marriage to A1. This Article cannot be considered as "dowry article" for the above reason.
Result: Acquitted Page 162 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 116.1. Ex.PW4/P.2 is one Pair of Silver Anklet given to none other than child Vanshika during "Chhuchhak Ceremony". Ex.PW4/P.3 is one black colour thread having Suraj & Chaand given to none other than to Vanshika. Ex.PW4/P.4 is pair of golden Bali that was also given to Vanshika in "Chhuchhak Ceremony". The other articles produced by the MHC(M) belonged to deceased Satyam only as given during "Chhuchhak Ceremony" and in Marriage. The same are 4 golden Bangles, 01 gold Chain with Pendent, 4 golden ladies Rings, 3 Pair of golden Jhumkis, 2 pair of golden Tops, 01 golden colour Necklace and 3 Pair of Silver Pajeb which are collectively Ex.PW4/P.5. The Court is yet to comment on those articles which are said to be given on the demand of accused A 1, A4 and A5 in 'Chhuchhak Ceremony'. However, the articles recovered and shown to be given in Marriage are not 'dowry articles' pursuant to 'dowry demand' as proved above.
116.2. Before parting with this point, I may also refer to certain Jewellery Bills provided to the case IO by PW5 which are Mark PW5/6 to Mark PW5/11. The Bills have not been proved as Result: Acquitted Page 163 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) none has been called as a witness from the concerned Jewellers. Mark PW5/6 is a typed Retail Invoice with respect to purchase of Jewellery in the name of PW5 and it is dt. 15.01.2010 issued by Tanishq Jewellers, Noida.
116.2(A) Mark PW5/7 is an estimate of Jewellery articles dt. 09.09.2009 issued by Kamna Jewellers, Bullandshahar. Name of proposed Purchaser is absent.
116.2(B) Mark PW5/8 is an estimate of Jewellery articles dt. 14.01.2010 issued by Kamna Jewellers, Bullandshahar. Name of proposed Purchaser is absent.
116.2(C) Mark PW5/9 is an estimate of Jewellery articles dt. 16.02.2010 issued by Kamna Jewellers, Bullandshahar. Name of proposed Purchaser is absent.
116.2(D) Mark PW5/10 is a retail Invoice in the name of PW5 dt. 05.08.2006 issued by Orra Jewellers, Cannought Place, New Delhi and 116.2(E) Mark PW5/11 is a document dt. 06.12.2009 which is neither a Invoice nor a proper Bill issued by M/s Pandit Result: Acquitted Page 164 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Jewellers Pvt.Ltd., Bullandshahar on its letterhead. Name of proposed Purchaser is absent.
116.3. It can be observed that the Invoices pertained to the period prior to date of marriage. I have already observed that even if some articles were given in the marriage then they have not been classified as "dowry". Further, no corelation has been established between the articles described in these documents and the Jewellery articles recovered by the IO which are Ex.PW4/P.1 to Ex.PW4/P.4 and Ex.PW4/P.5 (Colly.).
116.4. Lastly, one of the Invoice Mark PW5/10 is admittedly of the Year, 2006 while three documents issued by Kamna Jewellers, Bullandshahar are only estimates. Thus, even these Invoices do not support the Prosecution case in establishing that articles described therein were meant and passed off during marriage as "dowry articles".
117. (2) Six months after Marriage i.e.August, 2010 & after The testimonies of witnesses on this Count are also suffering from contradictions, Improvements and Improbabilities. In Result: Acquitted Page 165 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Ex.PW4/A, it is recorded that after six months of the Marriage, only A3 started harassing the Victim for dowry. Sometimes she used to ask Satyam to bring clothes, sometimes she asked for Jewellery and arrange money for her own expenses. In her statement Ex.PW4/DA, she stated that 'soon after the Marriage", all the accused persons starting harassing Satyam for bringing more dowry and that they used to complain that sufficient dowry was not given. She was therefore, also beaten by the accused persons and that Satyam told about it to her and also other family members. She also told that A5 was married in Begam Pur, Delhi which is situated near to Nangloi and thus, she used to visit her own Parental house (i.e. house of the accused persons) on regular basis. PW5 and PW18 have followed suit in their Police statements Ex.PW5/DA and Ex.PW18/DA. As a matter of fact, all three Police statements dt. 16.11.2012 are almost verbatim.
117.1. Ex.PW4/A constitutes of certain allegations of Cruelty or harassment for dowry which are unspecific. It is recorded therein that PW4 had given a Mobile Phone to Satyam but A2 Result: Acquitted Page 166 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) consumed all the talk time and gave instructions to A1 to not to arrange extra talk time due to expensive Calls. This forced Satyam to give missed Calls to her mother from A1's Mobile Phone. When A 1 would call back then Satyam would speak about the cruelty and harassment and also told about it as and when she visited Bullandshahar. Ex.PW5/C records that accused persons were not allowing Satyam to talk with them on Mobile Phone and that they never recharged the talk time in her Phone. It constitutes of a statement that clothes were got stitched for Satyam from Bullandshahar. It also constitutes of a statement that accused did not provide her any money for expenses. It also constitutes of statement that the entire family treated Satyam as a Servant. Ex.PW18/A is silent on all these aspects.
117.2. In the Court testimony, PW4 reasserts her earlier statement to the SDM that the harassment started after 6 months of the marriage only. She testifies that all the accused persons used to say that her brothers had given less dowry. They also taunted Satyam that her brothers did not give any Mobile Phone. She testifies of giving Mobile Phone to Satyam and that all talk time was used by Result: Acquitted Page 167 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) A3. She also testifies that A3 instructed A1 to not to recharge the said Mobile Phone. She also testifies that these facts were deposed to her by the deceased herself.
117.3. She does not depose on Oath that the harassment started 'soon after marriage' and that Satyam was beaten by all the accused persons for dowry. As per her Court testimony, she (Satyam) was mercilessly beaten only when demand of Rs.50,000/ was made at the time of Elections and later on 06.11.2012. She is silent about any other incident of beatings, making the allegations general in nature.
117.4. I have already pointed out that no such Mobile Phone is produced during the evidence. No Proof of purchase of Mobile Phone is provided. In her crossexamination, PW5 deviated from her Chief examination submitting that she had instructed PW18 to give Mobile Phone to Satyam. She did not know if there was any Sim Card in the said Mobile Phone or not. She was unable to provide the Mobile Phone number in the Court in her crossexamination. Her testimony regarding the alleged beatings and harassment is Result: Acquitted Page 168 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) general in nature and is incoherent with her earlier statements wherein she claimed that Satyam was given regular beatings while in the court she claimed that Satyam was beaten on her refusal of demand of Rs.50,000/ during the Elections and on her refusal on 06.11.2012 to demand Honda City Car and Rs.10 lacs from them.
117.5. PW4 said nothing about purchase of clothes that were provided to Satyam after stitching from Bullandshahar. In contrast Ex.PW5/C does not record that any Mobile Phone was given to Satyam either by PW4 or by PW18. There is no reference in this statement that Satyam was regularly beaten. As a matter of fact, this statement is also silent about beatings given to Satyam at the time of visit of PW18 to Nangloi on 06.11.2012. There is only one bald statement that accused persons specially A2 had been harassing Satyam not only mentally but also physically. The statement Ex.PW 5/DA constitutes of improvements that all five accused persons used to beat Satyam for dowry. As per him, this fact was told by Satyam herself to PW5 and also to other family members. So far as Ex.PW 18/A is concerned, it is verbatim to Ex.PW5/DA.
Result: Acquitted Page 169 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 117.6. In the Court testimony, PW5 states that after sometime of Marriage, all accused persons started beating Satyam for bringing less dowry. His sister used to tell him about this incident on phone and whenever she met him personally. He also deposes about giving stitched clothes to deceased from Bullandshahar and that A1 did not provide any money to her for expenses. Surprisingly, the wit ness in his crossexamination dt. 23.02.2010 stated that, "I cannot tell each and every date when my Sister Satyam Yadav telephonically conveyed me that she was being harassed, however, I remember that about one week prior to her death, she had conveyed the above facts telephonically to him". Why I say that the above answer comes as a surprise is for the reasons that it is incoherent with his testimony that Satyam used to tell him about the incidents of harassment and Cruelty for dowry including about the beatings given to her to this witness not only over the telephone but also during personal visits. Both facts do not go hand in hand. Moreover, if this version is taken as a true ver sion and not exaggeration then, the witness also ought to know of the factum of deceased Satyam having been beaten by the A1 and A3 on her refusal to ask her family members to provide Rs.50,000/ as Result: Acquitted Page 170 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Election Expenses during the Elections. According to the witness, this fact was told to him by his mother and therefore, the defence had objected to this being hearsay. Admittedly, he was not present either at the time of handingover of Rs.50,000/ by PW18 nor on 06.11.2012.
117.7. The witness has been confronted to with these facts which are not found recorded specifically in his previous state ments.
117.8. PW18, during his Court testimony also stated that all accused used to beat Satyam and taunted her for bringing less dowry and these facts were informed by Satyam to him. Again, this witness was admittedly not told by Satyam that she was beaten by A 1 and A3 on refusal to ask her family members to arrange Rs.50,000/ and the fact came to his knowledge only through his mother. The defence again challenged this testimony as hearsay but according to the prosecution, same is a relevant conduct in accor dance to Section 8 of the Evidence Act.
118. It can be observed from the Court observation recorded during his crossexamination on 14.10.2016 that the Court recorded de Result: Acquitted Page 171 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) meanor of this witness and directed him to answer the questions promptly as he was taking too much time in answering the questions. He was repeatedly confronted with his previous statements.
119. All these witnesses did not take any action against the accused persons despite claiming knowledge of the alleged harassment and cruelty for dowry demand. Admittedly, no complaint was ever made to any one with respect to the alleged merciless beatings given to de ceased Satyam even though such beatings may have left telltale signs on the body of the deceased after the alleged incident of beat ings. She was highly educated lady and also a Sitting Municipal Councilor. Even she did not make any complaint in respect of such alleged beatings and alleged harassment/Cruelty for dowry demands. As a matter of fact, crossexamination of the witnesses proved that the marriage was arranged through the Mediator late Mr.Ram Pal who was the grand fatherinlaw (दददयब ससचर) of younger sister of PW5 namely Rachna. Admittedly, no complaint was ever made even to the Mediator. It has also come in evidence that distinct relatives of the family members of Victim were residing in the same locality at a short distance from the Nangloi house of the accused persons. Ad Result: Acquitted Page 172 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) mittedly, the said relative Mehtab is elder brother of the son of PW 4's Bua. Mehtab had also attended the wedding Ceremony of A1 and Satyam. No complaint was ever made to this Mehtab.
120. Moreover, though the witness/PW5 gave evasive answers to the questions regarding period of his stay at Nangloi and also about the house in which he stayed prior to shifting in a rented accommoda tion in the same vicinity in Nangloi yet, he did admit that he resided in Nangloi between July to November, December 1998. It was for a longer period as per his mother/PW5. For the first two or three weeks, he was residing with Son of his Mother's Bua. The house of the accused persons was situated at a distance of 8 to 10 houses from his rented accommodation. The rented accommodation itself was at a distance of 50 Mtrs. from the house of his relative Mehtab. Witness was suggested that he knew A1 since that time itself as he was resid ing in the house of said Mehtab whose son was a friend of A1.
121. According to PW5 and PW18, they never inquired into the financial status of the accused persons as they had full trust on the Mediator. This is despite the fact that the Marriage was arranged around June, 1999. This fact does not go hand in hand with the fact Result: Acquitted Page 173 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) that they did not make any efforts to inquire into financial back ground of even the A1 if not his family.
122. This shows that the witnesses were aware about the family back ground of accused persons at the time of fixing of the marriage itself.
123. Regarding the testimony that even the stitched clothes were pro vided to the Victim from the Bullandshahar, PW5 admitted that he never gave any Bill for purchase of clothes or any Invoice for stitch ing them. No such clothes have been seized from the house of ac cused persons.
124. The complainant placed heavy reliance on the Judgment in V.K.Mishra's supra that omissions on part of the Investigating offi cer cannot be allowed to defeat cause of Justice. It is also relied on the aspect that mere delay in recording of statements of the relevant Prosecution Witnesses when the witnesses themselves indicated cause of such delay cannot be used against the Prosecution. It is also relied to show that demand for dowry can be made even to the relatives of a married Women.
125. Conversely, the accused persons have urged to Court to also consider the fact that the Customary payments in connection with Result: Acquitted Page 174 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) marriage, birth and child or other ceremonies cannot be considered as dowry as per Paramjit Singh, supra. They have also urged the Court to keep into consideration that general allegations of harassment and not bringing specific acts of Cruelty or harassment cannot prove es sential ingredients of Section 498A IPC. The fact that there is ab sence of any complaint with regard to Cruelty and harassment is also projected as an unnatural behavior. Likewise, making no complaint even to the Mediator and the failure of IO to obtain Call details even when the Victim remained in touch with her family members on Phone is also urged to be considered. Defence has also urged the Court to consider that all allegations have been levelled only after unfortunate incident of death and that various facts have been intro duced subsequently and mention of which is for the first time in Court during trial. It is also urged that statements were recorded by the SDM within reasonable time after Victim's death but the witnesses were silent on many aspects at the earliest available opportunity. The witnesses twisted facts and introduced ingredients of the offences with which the accused persons are charged with at belated stage. In this context, attention of the Court has been drawn to the Judgments Result: Acquitted Page 175 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) in Nagender Singh Arora, supra; Paramjit Singh, supra; Ramesh Chand supra; Umed Singh & Others, supra; Rohtash Vs. State of Haryana, supra; Sunil Kumar Shambhu Dayal Gupta, supra, Kashi Ram Pujari, supra; Naveen Vs. State, supra and Mahavir Kumar & others, supra. Attention of the Court is also drawn to the Judgment in State Vs. Rakesh & others, supra to draw an adverse inference against the Prosecution and rightly so, in not having examined Komal as Prosecution witness even though as per her Statement Ex.PW 21/C, which was recorded by the SDM, the witness Komal know about the incident dt. 06.11.2012 and also that the witness had spoken to Satyam over the Phone around the relevant time of her death. She was still not examined.
126. After having appreciated these Judgments in the facts situation as contained therein with facts situation which emerges in this case, I am of the view that entire averments regarding the beatings given to Satyam on this point for determination are vague, bald and omnibus. Inconsistencies and improvements pointed above are sufficient to equate this evidence with exaggeration. Absence of complaint, CDRs and version of any neighbor who might have over heard the incidents Result: Acquitted Page 176 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) unfolding during alleged beatings makes the plea highly improbable. It is true that such incidents take place within four walls and neigh bours may be reluctant to come forward but in this case, DW3 has claimed that he was inquired into by the Police besides other neigh bourers, yet there is no explanation by Prosecution about it. Lastly, the marriage lasted for almost 02 years 8 months and 10 days. If reg ular beatings were given to Satyam, there ought to have some corre sponding medical evidence. If it was then, it was not collected by case IO. The plea goes beyond any corroboration which is required as the testimony with respect to the incidents occurring after six months of marriage are Bald, Unspecific and Omnibus.
127. (3) "Chuchhak Ceremony" i.e. 10 days after 12.03.2011 Ex.PW4/A records that A2 asked Satyam to bring various Jewellery Articles, clothes etc. in Chhuchhak Ceremony which she gave despite her incapacity. Ex.PW5/A is completely silent about any Chhuchhak Ceremony, demand of dowry and fulfillment thereof. Ex.PW18/A is also silent on this aspect. 127.1. Statements of these witnesses recorded by the IO on 16.11.2012 are all verbatim which describe this incident. They also Result: Acquitted Page 177 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) describe that the Victim was beaten up at that time.
127.2. Chhuchhak Ceremony was attended only by PW5, PW18 and their cousin brother Mahavir. As per PW5, demand of various articles in Chhuchhak Ceremony was made by A1, A4 and A5. As per PW4 this demand was made only by A2. As per PW 18, this demand was made by A2, A4 and A5. The fact that Satyam was beaten on refusal to fulfill the demand was told to PW18 by Satyam herself. PW5 said nothing about the accused persons beating Satyam on her refusal to demand the articles for Chhuchhak Ceremony. PW5 says nothing about the alleged beatings on such re fusal. The main testimony is therefore of PW4 only on this count. As per her, only A2 had made this demand. She did not say anything about the alleged beatings. The apparent conflict between the three statements has been highlighted above. None of these witnesses have said that in the Chhuchhak Ceremony, the articles were demanded in the form of gifts in the guise of dowry. On the contrary, the witnesses have admitted that Chhuchhak Ceremony is Customary in their fam ily. It can be seen from the description of articles that are shown to Result: Acquitted Page 178 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) have been given to accused persons at the time of this ceremony that major part of it was given to deceased Satyam herself and also the newly born child Vanshika. I have already set out the observations of the Hon'ble Apex Court in Sher Singh's case, supra. Case law on the point that demand for dowry can be at three stages has been also cited. The three stages are (i) Before the time of marriage; (ii) At the time of marriage and (iii) At any time after the marriage. Case law on the point that it is imperative for Prosecution to show that such demands were made as dowry in connection with mar riage of the parties has been also cited. It is therefore important for the Prosecution to show that the articles given not only to the accused persons but also to the deceased and her daughter were demanded as dowry articles and that too, in connection with the marriage of par ties. Here, what the Prosecution had shown at best is that the jew ellery articles etc. were given at the time of Chhuchhak Ceremony. It is so as from these articles given at the time of Chhuchhak Cere mony, few are shown to be recovered which are Ex.PW4/P/2 and Ex.PW4/P.3 which were given to Vanshika and few of such articles belonging to Satyam only from amongst the articles collectively ex Result: Acquitted Page 179 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) hibited as Ex.PW4/P.5. What the Prosecution does not show beyond reasonable doubt is that these articles were given as dowry articles in connection with marriage of the parties. Testimonies of PW5 and PW18 is more or less stereo typed and I have already said that their police statements dt. 16.11.2012 are Verbatim. They did not identify the articles given at the time of Chhuchhak Ceremony although these are the only two witnesses who claim presence in the Function. Thus, when a doubt arises as to whether the articles were given as dowry or as Customary Articles particularly when Ex.PW4/A reflects that PW4 was in habit of providing "gifts" to accused persons on each and every festival and occasions; the benefit thereof has to be given to the accused persons.
128. (4) During Municipal Elections i.e. around 10.04.2012 Ex.PW4/A records that Satyam was visiting her family at Bul landshahar. A3 came to her house so that she could contest in Mu nicipal Elections as she was highly educated. At that time A2 de manded Rs.50,000/ which PW5 sent through Nishant/PW18. Fur ther, during Elections PW5 had gone to Victim's house but turned Result: Acquitted Page 180 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) away as he had gone without money. Ex.PW5/A records that during March, April, 2012, A2 had demanded Rs.50,000/ during Elec tions. Ex.PW18/A is silent about any such demand. It is also silent as to whether PW18 had gone to deliver Rs.50,000/ to the Nangloi house of the Victim.
128.1. Their verbatim police statements dt. 16.11.2012 , partic ularly that of PW5 and PW18 introduced this fact for the first time. Even PW4, alongwith PW5 and PW18 went further ahead to in troduce a new fact that the demand was made actually by A1 and A 3 and that on refusal of Satyam, she was mercilessly beaten. She told this fact to PW4 on Phone.
128.2. In her Court testimony, PW5 distorted the facts by pro viding details that when Satyam was at Bullandshahr, A3 telephoned her that he was coming to take Satyam with him. A2 wanted to con test Elections but could not due to certain reasons and thus, accused wanted Satyam to contest Elections. Therefore, A3 took away the deceased Satyam to Delhi. In Delhi, all accused persons demanded Rs.50,000/ for contesting Elections. She was given merciless beat Result: Acquitted Page 181 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ings. PW5 visited the house of deceased during elections when A2 stated "बचरब भलब" words due to which PW5 was forced to leave the house. She added that after 34 days of the visit of PW5, she sent PW18 with Rs.50,000/. This amount was given by PW18 to de ceased Satyam only.
128.3. As per PW5, all accused persons demanded Rs.50,000/ from the deceased in April, 2012 for Elections and on her refusal she was beaten up by all the accused persons. The fact was told by Satyam to his mother/PW4 who then told about it to PW5. PW18 was then sent with Rs.50,000/ which he handedover to Satyam. Satyam handed the same to A2 and A3.
128.4. PW18 stated in his Court testimony that before 10.04. 2012, all accused persons pressurized Satyam to bring Rs.50,000/ for Elections and when she refused, A1 and A3 gave her beatings. His mother told this fact to him. He affirms that his mother gave Rs.50,000/ to him which he handedover to A2 at his residence. 128.5. The apparent inconsistencies in above three statements are that witnesses are not confident as to who exactly made this de Result: Acquitted Page 182 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) mand; that they are not stating that the demand was actually for dowry as all of them have said that this demand was for meeting Elec tions expenses; that there is variance amongst the three versions as to whom the amount was given and that PW18 says nothing about visit of PW5 to Victim's house prior to his visit.
128.6. The relevant crossexamination is of PW18 who is the person claimed to have actually gone to the house of accused with the said amount.
128.7. The witness was confronted with his earlier statement where his stand regarding handingover of Rs.50,000/ has not been recorded. The fact is therefore definitely an improvement requiring corroboration. Evidence is on record that amount of Rs.50,000/ was withdrawn from a Bank Account but the bank details were not pro vided to the IO. There is a force in the contention of the defence that there was no requirement to demand of this amount to meet the Elec tion expenses as if they wanted the same, they could have forced Satyam to withdraw this amount from her Bank Account which ad mittedly existed since prior to her marriage with a Credit of more than Rs.50,000/ in March/April, 2012. Mark PW23/A reveals that as Result: Acquitted Page 183 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) on 01.04.2012, an amount of Rs.51,688.77/ existed to the Credit of deceased Satyam in the Bank Account. Admittedly, Satyam was having a Debit Card with her. The fact that no such amount was withdrawn is therefore a relevant fact. It does not stand to reason as to why the accused persons would be beating Satyam and that too, mercilessly when the Elections were due within a short time i.e. 10.04.2012. Witnesses have admitted that prior to Elections, Satyam was actively involved in Campaigning and Canvassing for her Can didature. The witness (PW5) has admitted that the photographs Mark D.3 to Mark D.15 are the photographs of Public Function. The witness has tried to provide evasive answers to the questions of defence that Satyam can be seen happy in these photographs. It also does not stand to reason as to how a sum of Rs.50,000/ only can be taken as sufficient for purpose of bearing expenses of post of Munici pal Councilor and that too, on a Ticket of a Leading National Politi cal Party.
128.8. The defence has thus urged the Court and rightly so, to be careful in scrutinizing the testimonies of these witnesses in cluding PW18. It is true that there is no explanation on record as to Result: Acquitted Page 184 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) why PW5 who visited 34 days prior to the visit of PW18 during Elections, could not have himself given the amount of Rs.50,000/. That too, when he is eldest of all Siblings and in Govt.Job since the Year 2001. He is the relative who was residing most near to the Vic tim i.e. in Noida and working in Chankya Puri, Delhi. No corrobora tive evidence is present regarding visit of both PW5 and PW18 to the house of the Victim during the Elections.
129. I may also point out that an aspect that ought to have been ad dressed but not addressed on either side is testimony of PWs regard ing visit of PW5 during the Election period. In his extensive cross examination by the defence, it can be observed that the witness has claimed that he did visit matrimonial house of Satyam on 02.04.2012. This date is very relevant as if it is correct then, PW18 (as per PW4) visited 23 days after this date i.e. around 5th or 6th April, 2012. If this date is correct then amount of Rs.50,000/ would have been handedover on 05/06.04.2012 i.e. 45 days prior to Elections. The accused persons could not have afforded to give merciless beatings to Satyam just prior to 45 days of her Elections. Nevertheless, the wit Result: Acquitted Page 185 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ness clarified that on his visit, he met 'Tau' of A1 and that he met the family members of A1 for the first time at Krishan Mandir, Nangloi where there was a big rally with respect to Elections of Satyam. Thereafter, he visited the matrimonial house. If the same is the Prose cution's case then when compared with testimony of PW4 that her elder Son visited house at Nangloi and was said "बचरब भलब" words by A2 and turned away as he did not bring money cannot go handin hand with the testimony of PW5 himself. He is silent about being turned away by A2 from the house on pretext that he did not bring money. Moreover, purpose of his visit is not explained. Further more, admittedly, the PW5 and even his wife who got marriged just one year prior to the marriage of Satyam, never visited the Celebra tory Function of Satyam on being elected as Municipal Councilor. That Satyam was unwilling to contest Elections is also unproved as she can be seen happy in Photographs Mark D.1 to Mark D.15. Evasive answers of PW5 are recorded in his crossexamination when he claimed that he did not know if Satyam was very happy after being elected as Councilor despite the fact that he admittedly had a conver Result: Acquitted Page 186 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) sation with Satyam after her Elections.
130. The above analysis of the evidence clearly goes to establish that evidence on this aspect is also Shaky and not conclusive. In any case, even if the Court came to the conclusion that amount of Rs.50,000/ was indeed given, then it was given only for purpose of meeting Elec tions expenses and not as a dowry demand in connection with mar riage of Parties.
131. (5) Visit of PW18 i.e. 06.11.2012 :
The incidents occurring on this date are very crucial as there is nothing on record to suggest any Cruelty and harassment with respect to demand of dowry between 10.04.2012 and 06.11.2012. During the interregnum, deceased Satyam was also per forming her duties being Municipal Councilor besides her family commitments. In the absence of any specific incident of dowry de mand and Cruelty/harassment in its respect, the essential ingredient of Section 304B IPC i.e. 'Soon before her death' will not be estab lished. I may as well say that Prosecution is required to show live link between such demands which are not to be such as are liable to be bracketed as 'State'. The discussion so far establishes as to why Result: Acquitted Page 187 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) this court is not inclined to accept the testimony of the relevant wit nesses with respect to the specific incidents of alleged Cruelty/ha rassment in connection with demand of dowry. The instances which are unspecific, Vague, General and Omnibus in nature have been al ready highlighted by this court. Hence, this date is very important and if it is proved that the demand of dowry was made on this occa sion for which the deceased was subjected to Cruelty and harassment, it will definitely to be within the ambit of Section 498A IPC and the proximity between this demand and the death of Victim will justify raising Presumption U/s 113B of the Indian Evidence Act against the accused persons.
132. Ex.PW4/A records that few days prior to this incident, PW5 was blessed with a baby Boy. Function was kept to be celebrated on 07.11.2012. In that context, PW4 called A2 on Phone for inviting her family. The Phone was disconnected. She then called A3 who told to be busy in Dusshera festival and that he will call later. No such call came. She then sent PW18 on 06.11.2012 to Satyam's house with an Invitation Card and to bring back Satyam with him. She stated that PW18 was made to wait for the whole day by the ac Result: Acquitted Page 188 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) cused persons. A2 also said that she receives 50 such Cards daily. Nothing further was said in this context.
132.1. PW4, in her statement Ex.PW4/DA narrates this version again without specifying about Phone calls she made on the Desshera festival. She added in the statement that all accused persons gave beatings to Satyam in the presence of PW18 and de manded Rs.10 lacs alongwith a Honda City Car.
132.2. In her Sworn testimony in the Court, PW4 de posed the same facts stating that she had called A2 on Phone on 24.10.2012. She did not pick up. When she called for the third time, A2 picked Phone but disconnected it saying that she is busy. She then called A3 who also disclosed that he was busy in Dusshera fes tival.
132.3. She went on to introduce a completely new fact not stated earlier by her regarding her version with deceased over telephone on 05.11.2012. As per her, the deceased gave her missed Call on her Mobile phone on 05.11.2012. She had come to Max Hospital at Noida with her grand daughter Raashi. PW5 thereafter Result: Acquitted Page 189 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) dialed number of deceased from his Mobile Phone on which he spoke to Satyam. The deceased inquired as to when will her brother come to pick her. In response, she told that Nishant is busy and that he will come tomorrow on 06.11.2012 to take her. She added that the deceased also told her that she was disconnecting the Phone as A2 was quarreling with her at that time. PW4 then asked the reason for the quarrel and was told that it will be disclosed by Satyam when she would come to Bullandshahar. PW5 even offered Satyam that she will talk to A3. However, Satyam told her that there is nothing to worry and that things will be all right. She also added that Satyam had told her that as per A2 the matter should remain between her and A2 only and that if PW4 would speak to A3 then A2 will murder her. The above statements are added subsequently and there is no corroboration to it.
132.4. She thereafter deposed about sending PW18 with Invitation Card to Nangloi on 06.11.2012 where A2 had stated that she threw 50 such Cards daily. She also stated about demand of Rs.10 lacs and Honda City Car as well as the beatings given to the Result: Acquitted Page 190 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) deceased in the presence of PW18. She also added that when PW 18 came back to Bullandshahar, he was Sad and Upset. He was not disclosing the reason for being Sad and Upset but on her insistence, he disclosed about the above facts. She further added that on 07.11.2012, she did not talk with accused persons or deceased due to the 'Kuan Pooja Ceremony' and presence of her guests in her house. It is precisely this limb of her testimony which is objected to by the defence as 'hearsay' and sought to be justified by the Ld.Prosecutor as subsequent conduct relevant U/s 8 of the Indian Evidence Act. In my considered view the defence is correct in its objection regarding 'hearsay' nature of testimony of PW5 as she was not the person who was present when PW18 is stated to have visited Nangloi. In my view, the relevant fact here is whether PW18 had visited Nangloi on 06.11.2012 and whether the incident of beatings to Satyam and de mand of dowry took place or not.
132.5. PW5 could only depose about subsequent con duct of PW18 of being Sad and Upset after coming back to Bulland shahar. But this fact has not been mentioned in any previous state Result: Acquitted Page 191 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ment and there is proper contradiction of the witness on this Count. The Victim died on the very next day but the doctor conducting Post mortem has not described any external injuries on her body that could have been caused by beatings given by as many as five persons (i.e.A1 to A.5). What kind of beatings were given is unspecified even in the testimony of PW18.
132.6. Accordingly, when the witness PW4 was silent about any beatings given to Satyam on 06.11.2012 allegedly by the accused persons in her first statement recorded on the date of incident then a subsequent pictorial description thereof evokes suspicion only, more so, when the witness herself admitted that there was nothing wrong with her Senses on 08.11.2012.
133. PW5 in his statement Ex.PW5/A is literally the only witness who states that Rs.10 lacs was 'always demanded' by the accused per sons. This is in direct contrast with statement of PW18 who never referred to any such demand in the statement Ex.PW18/A much less to the effect that such demand was a continuous demand. Even Ex.PW5/C does not refer to any beatings given to Satyam on Result: Acquitted Page 192 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 06.11.2012 or any demand of Honda City Car in the presence of PW
18. His Police statement Ex.PW5/DA is same as that of his mother.
134. In his Court testimony, he deposed about the incident dt. 06.11.2012 and improved upon Ex.PW5/C by adding that besides raising old demand of Rs.10 lacs, the accused persons also demanded a Honda City Car. Even this part of testimony is also objected being 'hearsay' and this Court given its reason as to why the objection is correct. Besides the above, it is an admitted case of PW5 that Invi tation Cards were printed on 01.11.2012. He has admitted that he was in Delhi/Noida on 01.11.2012 till 06.11.2012. His daughter Raashi is said to have been brought to be shown to the doctor at Max Hospital, Noida on 05.11.2012. The doctor advised Check up again on 06.11.2012. After the said Check up, he went directly to Bullandsha har on his Motorcycle (as he did not know how to drive a Car) along with his mother and daughter. The witness has admitted that he had invited guests himself also. He has admitted that he never invited Satyam or her Inlaws personally. No reason is forthcoming as to why no such Invitation was extended between 01.11.2012 till Result: Acquitted Page 193 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) 06.11.2012 by him particularly when the Ceremony was in respect of birth of his own Son. It is important for this Court to find out true reason of not extending such Invitation as it has already ruled that the prosecution has not come up with any specific instance of harassment and Cruelty for demand of dowry after 10.04.2012 till 06.11.2012. The defence is therefore plausible.
135. PW18 did not mention about his visit dt. 06.11.2012 in Ex.PW18/A. He also did not mention that A2 told that, "एखसख कबडर तक 50 आतख हब" He said nothing regarding demand of Rs.10 lacs and Honda City Car as well as beatings given to Satyam in his presence. As I said earlier, his Police Statement Ex.PW18/DA is similar to that of PW4 and PW5.
135.1. In his testimony in the Court, PW18 submitted that on his visit on 06.11.2012, A2 had stated that he had not brought Rs.10 lacs till date. His version in Police statement that on his visit the accused persons had demanded Honda City Car and Rs.10 lacs is in contrast with this version as the Court testimony gives an im pression that the demand of Rs.10 lacs is an old demand. The fact Result: Acquitted Page 194 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) has not been clarified by the Prosecution thus leaving it open to sus ceptibility of being an 'informed statement' made with a view to fill up previous lacuna in the case.
135.2. He did depose about the alleged beatings given to Satyam in his presence but he deposes nothing about the fact that he was made to wait for the whole day by the accused persons. He also deposes nothing about the mode of his travel from Bullandshahar or even about the time when he was sent back from the house of the ac cused persons. The IO never recovered or seized any Invitation Card from the house of the accused persons which ought to have been seized as given a day prior to the incident. Moreover, the fact that the PW18 did nothing in protest to the alleged beatings particularly when the incident was taking place for the first time in the presence, hearing and view of a person none other than brother of the Victim, raises a serious concern prompting the Court to analyse the testimony with utmost caution. I have already pointed out that there is nothing in the Postmortem Report to show any sign of such beatings in the form of telltale Marks that ought to have been there on the Victim's body if beaten by five persons simultaneously and that too a day prior Result: Acquitted Page 195 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) to her death. PW18 makes his testimony more susceptible to scru tiny and corroboration when he says in his crossexamination that de mand for Rs.10 lacs was made for the first time after six months of marriage. It cannot be true as Ex.PW18/A gives an otherwise im pression that the such demand was made on that day i.e. 06.11.2012 itself. If the demand was so old then the witnesses ought to be partic ular in narrating their case that after six months of marriage this de mand was constantly raised. As a matter of fact, the witnesses have provided a few specific instances of the alleged dowry demands but have never said that there was repetition of old demand of Rs.10 lacs during those instances. It of course creates a doubt on the credibility of existence of such demands at the first place.
136. The above analysis of evidence is sufficient to show that the Prosecution remains unable to show or prove that the Victim was sub jected to Cruelty and harassment for or in connection with demand for dowry thereby rendering its case U/s 498A IPC doubtful. The Court has held that there is no reasonable explanation on testimony of the witness regarding twisting of facts qua demand of Honda City Car and Rs.10 lacs as dowry. The Court has also pointed out above Result: Acquitted Page 196 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) that the witnesses are otherwise also confused as to which accused had been making demand for what kind of dowry articles. In the ab sence of connecting and proving the incident dt. 06.11.2012 with de mand for dowry and Cruelty as well as harassment for it, the Court will remain incapacitated to raise presumption U/s 113B of the In dian Evidence Act. Consequently, Points for Determination nos. 4 & 5 recorded in Para 40 above are also in 'Negative'.
(6) If not, Whether A1 to A5, in furtherance of their common intention abetted the Commission of suicide by the Victim Smt.Satyam?
137. As per own case of the Ld.Prosecutor, question of abetment to suicide and raising Presumption U/s 113B of the Indian Evidence Act will arise only if the Prosecution proved its case against all the accused persons U/s 498A IPC, regard being had to the Judgments in Bhajan Singh Harbhajan Singh, supra and K.Prema S Rao, supra. Such a conviction can follow only when the Prosecution has proven its case against the accused persons U/s 498A of the IPC and that too, beyond any reasonable doubt. Presumption U/s 113A of the In Result: Acquitted Page 197 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) dian Evidence Act arises if it is shown that the married women com mitted suicide within a period of seven years from the date of mar riage and it is proven that her husband or relatives of her husband had subjected her to Cruelty. Thus, the term "Cruelty" has nexus to Sec tion 498A IPC. In the absence thereof the question of abetment to Suicide does not arise.
138. I may as well point out here that the arguments by defence re garding the cause of Suicide by Satyam after having killed her own child Vanshika to the effect that her expectations with her family were never fulfilled is plausible in the facts of this case. The argument that the family members were not with her even during the important phases of her life coupled with admission of PW4 that she had never visited the Victim's house after marriage; admission of PW4 & PW 5 that they had not even gone to the hospital at the time of birth of Vanshika and that there is no supporting evidence to prove that she was ever invited for the 'Naam Karan Ceremony', are projected as the most probable reason that drove Satyam to take the extreme step of killing her own daughter and thereafter committing suicide. I am to say in this context that the Investigating Officer seems to not have Result: Acquitted Page 198 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) investigated the case to bring out the real reason as to why Satyam took the extreme step. It appears that the case was never investigated beyond the angle of Cruelty and harassment for or in connection with dowry demands. The defence has cited from the Judgment in Naren der Singh Arora, supra. There can be no presumption that every sui cide committed by a married woman in her Inlaws house has to be because she was suffering harassment at the hands of her husband or her Inlaws. In the facts of this case, this Court is constrained to say that the observations in said case are applicable to this case also. In the absence of cogent Proof regarding dowry demand and Cruelty for it, the cause of the incident remains under Cloud. Even in Mahavir Kumar & others, supra, the Hon'ble Delhi High Court has observed that Victim took extreme step of committing Suicide within 8 months of marriage but what exactly prompted her to take the said step had not surfaced.
139. In the case at hand, atleast the defence had tried to furnish one reason as to why the Victim took the extreme step of killing Vanshika and thereafter committed Suicide. The Court shall have no reason to ignore the testimony of PW17 regarding the absence of any com Result: Acquitted Page 199 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) plaint from Satyam against the accused persons or for that matter to discard the testimony of DW3, an immediate neighbour of the ac cused persons, to the effect that he informed the police regarding cor dial relations of Satyam with her Inlaws. This witness had volun teered during her crossexamination by the State that he not only at tended the marriage but participated in premarriage settlement meet ings also. Likewise, DW4 is another neighbour of the accused per sons who claimed to be in regular interaction with the Victim and other family members. She testified that she never came across any complaint from Satyam against her Inlaws or even by the family members of A3 against Satyam Yadav. She also deposed that rela tions between Satyam and A3 were very very Cordial and none had complaints against each other. She was not crossexamined by the State on her sworn testimony. As a matter of fact, DW5 has sup ported the claim of one of the prosecution witness i.e. PW17 in stat ing that Satyam used to sit in the office of PW17 situated in Nangloi in the year, 2012 being a Municipal Councilor. She used to visit this office two or three times in a Week. PW17 had submitted the same fact besides disclosing that the relations between Satyam and her In Result: Acquitted Page 200 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) laws including husband were cordial. Even this witness was not crossexamined.
140. I may also say that there are some instances in testimonies of PW4, PW5 and PW18 and particularly PW4 with respect to taunting the Victim Satyam. Although the Court is not inclined to be lieve the testimonies of the material PWs regarding demand of dowry articles for the various reasons as above but it may be noted that the case should be of continuous state of "torture" and not "taunting". In Sonia Vs. State, 2016 SCC Online Delhi 4689, it is held that "taunting" for not bringing sufficient dowry is distinct from demand of dowry and it does not come in the purview of Section 498A IPC. Hence, same cannot bring this case into a purview of Section 306 IPC also.
141. Lastly, it is an argument by the Prosecution that the accused persons have not given any explanation in their statements U/s 313 Cr.P.C. regarding their whereabouts at the time of incident which can be taken as additional Vital circumstance against them by virtue of the Judgment in Suvarnamma's case, supra.
Result: Acquitted Page 201 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
142. I have already discussed this aspect earlier and observed that the accused persons have not furnished any explanation regarding their whereabouts at the time of incident. At the same time, I have also ob served that the exact time of death is not before the Court and the only relevant evidence in this context is the opinion of the Medical Board that conducted Postmortem examination on both the deadbod ies. Postmortem examination on deadbody of Vanshika was con ducted at 05.00 PM on 08.11.2012 and the time since death was 12 hours. Postmortem on body of Satyam was conducted at 06:00 PM on 08.11.2012 and the time since death is 12 hours. The death there fore occurred between 5 to 6 AM of 08.11.2012.
143. Regarding the death of a married women in circumstances which are not natural, IV Categories have been set out in Para 52 of the Judgment titled as Mukesh Vs. State reported in 2010 (2) JCC 1563, which is quoted as under :
"52. Having examined the decisions of the Supreme Court on the point of death of a wife in her matrimonial house, we deem it appro priate to classify the said judicial decisions into under noted 4 broad categories for the reason we are finding considerable confusion in Result: Acquitted Page 202 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) the minds of the subordinate judges as to the correct position of law :
I. In the first category fall the decisions were it is proved by the prosecution that the husband was present in the house when the wife suffered a homicidal death and rendered no explanation as to how his wife suffered the homicidal death. See the decisions re ported as State of Rajasthan Vs.Parthu (2007) 12 SCC 754; Amars ingh Munnasingh Suryavanshi Vs.State of Maharashtra AIR 2008 SC 479; Ganeshlal Vs.State of Mahrashtra (1992) 3 SCC 106; Prabhudayal Vs. State of Maharashtra (1993) 3 SCC 573; Dy naneshwar Vs. State of Maharashtra (2007) 10 SCC 445; Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681; Bija Vs. State of Haryana (2008) 11 SCC 242 and State of Tamil Nadu Vs. Rajendran (1999) 8 SCC 679;
II. In the second category are the decisions where the prose cution could not prove the presence of the husband in the house when the wife suffered a homicidal death but the cir cumstances were such that it could be reasonably inferred that the husband was in the house and the husband failed to render any satisfactory explanation as to how his wife suf fered a homicidal death. The circumstances where from it Result: Acquitted Page 203 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) could be inferred that the husband was in the house would be proof that they lived in the house and used to cohabit there and the death took place in such hours of the night when a husband was expected to be in the house i.e. the hours be tween night time and early morning. See the decisions re ported as State of U.P. Vs. Dr.Ravindra Prakash Mittal (1992)3 SCC 300 and Narendra Vs. State of Karnataka (2009) 6 SCC 61.
III. In the third category would be proof of a very strong mo tive for the husband to murder his wife and proof of there be ing a reasonable probability of the husband being in the house and having an opportunity to commit the murder. In the decision reported as Udaipal Singh Vs. State of U.P. (1972) 4 SCC 142 the deceased wife died in her matrimonial home in a room where she and her husband used to reside to gether. The accusedhusband had a very strong motive to murder the deceased which was evident from the letter written by him to his mistress, which letter clearly brought out the feeling of disgust which the accused had towards the de ceased. The accused had the opportunity to commit the mur der of the deceased as there was evidence to show the pres Result: Acquitted Page 204 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ence of the accused in the village where the house in which the deceased died was situated at the time of the death of the deceased. Noting the facts that the accused had a strong enough motive and an opportunity to murder the deceased, noting that there was no evidence that the appellant was seen in his house by anybody, the Supreme Court convicted the ac cused.
IV. In the fourth category are the decisions where the wife died in her matrimonial house but there was no evidence to show presence of the husband in the house at the time of the death of the wife and the time when the crime was committed was not of the kind contemplated by the decisions in category II and was of a kind when husbands are expected to be on their job and there was either no proof or motive or very weak motive being proved as in the decision reported as Khatri Hemraj Amulakh Vs. State of Gujarat AIR 1972 SC 922 and State of Punjab Vs. Hari Kishan 1997 SCC Cri.1211".
144. The evidence in this case shows that the husband or other mem bers may had been in the house at the time of incident but they were definitely not in the second floor room where the incident took place.
Result: Acquitted Page 205 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) It is already in evidence that the second floor portion was used only for purpose of sleeping during the night and that too by Satyam, her husband and their daughter. I have already observed that the IO has not investigated activities of the husband/A1 during the intervening night. There is a possibility that the accused persons may have started their day prior to the incident as the time of incident cannot be said to be very early hours. The case can therefore fit in either the (II) or the (IV) Categories as above.
145. Non giving of an explanation may be considered as an addi tional vital circumstance against the accused persons particularly A1 but, it can be done only when there is some corroborative evidence re garding exact time of death which is not possible in this case. Never theless, the assessment of time since death by the doctors conducting Postmortem is only an opinion and it may vary on various circum stances as admitted by PW16.
146. In view thereof, this Court cannot have recourse to Section 106 of the Indian Evidence Act to say that the accused persons are hav ing a burden of proving fact specially within their knowledge i.e. their activities during the intervening night of 07/08.11.2012.
Result: Acquitted Page 206 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
147. For the reasons above, it is to be held that no case is made out against any of the accused persons for the offence Punishable U/s 306/34 IPC.
148. (7) Whether A1, A2 and A3 were entrusted with Stridhan of deceased Satyam or had any dominion over it and they, in fur therance of their common intention, misappropriated or con verted it to their use, or dishonestly used/disposed it and thus committed criminal breach of trust.
In order to prove Commission of Offence Punishable U/s 406 IPC, the Prosecution is enjoined to prove that A1, A2 and A3 were either entrusted with property i.e. 'Stridhan' articles of deceased Satyam or that they had any dominion over it. Having so proven, the Prosecution is next enjoined to prove that these accused dishonestly misappropriated or converted the said property to their own use.
149. Towards that end, the statement Ex.PW4/A is silent. Subse quent statement Ex.PW4/DA introduces the fact that Satyam told her that she had given her Jewellery to A2 after 1015 days of the mar riage. Same fact is stated in Ex.PW5/DA and Ex.PW18/DA.
Result: Acquitted Page 207 of 215State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) Their above statements i.e. Ex.PW5/DA and Ex.PW18/DA to the SDM are silent on this aspect. These witnesses have stated in their Court testimony also that Satyam had disclosed to PW4 that she had given her Jewellery Articles to A2. Of course, the witnesses were contradicted on this aspect with their previous statements. Neverthe less, PW4 has not stated anywhere that she was told by Satyam that as to whether the said 'Stridhan articles' were entrusted by Satyam to A2 for safe custody or for any other reason. The 'Stridhan articles' have been recovered and it is not clarified by either of the witness as to which particular article was 'Stridhan articles' in terms of list of dowry articles Ex.PW5/A.2 or which 'Stridhan articles' were not re turned as per list of remaining 'Stridhan articles' Ex.PW5/B.1. 149.1. So far as PW5 is concerned, same is the position which has emerged from the testimony of PW4.
149.2. PW18 has categorically deposed that Satyam had told his mother/PW4 that A2 had taken the Jewellery Articles belonging to deceased Satyam. However, in his crossexamination recorded on 09.11.2016, he has stated following viz :
"I do not know for what purpose either for safe custody or Result: Acquitted Page 208 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) otherwise the Jewellery of my sister, as informed by my mother, was taken by her Inlaws. I had neither protested nor complained about taking of Jewellery of my sister by her In laws".
149.3. Apart from the above there is no other testimony in respect of proof towards the fact that other accused i.e. A1 and A 3 were ever entrusted with or that they ever had any dominion over the 'Stridhan articles' of Satyam. So far as A2 is concerned, the tes timony is silent regarding "Entrustment" or "Dominion". PW4 re mains silent on the issue at the first available opportunity and so did PW5 and PW18. Testimony of PW18 is only 'hearsay' as he nowhere states that the factum of Suman Yadav/A2 taking Jew ellery articles of deceased Satyam took place in his presence. Same is position with PW5. In view of above, even the essential ingredients of offence Punishable U/s 406 IPC against accused A1, A2 and A3 are not proved.
150. This Court has thread bare discussed the testimonies of relevant witnesses while appreciating the evidence and is of the considered view that the testimonies suffer from material contradictions and ma Result: Acquitted Page 209 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) jor improvements. The investigation has been faulty qua offence Punishable U/s 302 IPC. Even the mode and manner in which the concerned SDM proceeded to conduct Inquest Proceedings without having regard to Provision of Section 174 Cr.P.C. is questionable.
151. The concerned SDM has been confused regarding the time of his arrival at the spot and the time till he remained on the spot. The evidence in the form of PW17, PW24 and PW25 indicate that in all eventuality, he must have left the place of incident for his office around 12:30 PM. He claims his presence on the spot till 02:00 PM to 02:30 PM which is not possible at all. He claims to have arrived at the scene of incident within 10 or so minutes after 09:30 AM approx. which is also not possible in view of the testimony of PW24 and PW25. The documented evidence in the form of PCR Form No.1 Ex.PW19/A reveals that he was still being awaited at 10:19:40 hours. The SDM/PW21 has stated that Ex.PW4/A was recorded in his Supervision by his Staff. It is in his crossexamination that even the other two statements of PW5 and PW18 was also recorded by his Staff. It can be observed that while Ex.PW4/A is in the hand Result: Acquitted Page 210 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) writing of one person, Ex.PW5/C is in the handwriting of another one. Remaining two statements i.e. Ex.PW18/A and Ex.PW21/A are in the handwritings of one and the same person. Despite that fact, PW21 asserts with confidence in his crossexamination that the brothers and sisters of the deceased had given their self written state ments which is not the case of the Prosecution. Further, bare perusal of Ex.PW5/C reveals that the statement was ready by 02:20 PM as per the endorsement of the SDM thereupon. The statement of PW4 was recorded prior to it. If the Court testimonies of PWs concerned are seen, it can be observed that the witnesses have a different narra tion regarding the sequence in which the statements were recorded. Nevertheless, this aspect cannot be given much weightage but it defi nitely shows the lackadaisical approach of the concerned official in recording the statements.
152. I am also to point out that both Prosecution and Defence have emphasized upon the aspect as to whether Satyam died in sitting Pos ture or not. I have given detailed analysis of evidence on this aspect. What has escaped the attention of both sides is in the form of a docu mented evidence which has been over looked. The said documented Result: Acquitted Page 211 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) evidence is in the form of Photographs Ex.PW6/A.1 to Ex.PW 6/A.8. In two of these Photographs, the Wall Clock in the room of de ceased Satyam is also visible besides her. Careful perusal shows that Photo Ex.PW6/A.6 depicts the time in the Wall Clock as 09:52 AM. The next Photograph Ex.PW6/A.7 shows the time in the Wall Clock as 09:55 AM. It is proven that the Crime team reached at the spot at 09:30 AM. Victim was found in sitting straight position. There is ev idence that Victim was rested on the bed from her hanging position. First named witness to have arrived on the spot at 10:30 AM is PW
5. Thus, PW5 was required to say that he saw Satyam in a sitting posture on the bed. He never said so either to SDM or the Police. In his previous statements, it is recorded that Satyam was still hanging from the Ceiling Fan with the help of Chunni. Same is the position in the statements of PW4 and PW18 to the SDM and Police. When PW4 and PW5 were examined in Chief in the Court, both have stated that they found deceased in sitting Posture. As to why did not say so earlier in their previous statements is questionable. Con versely, PW18 never said in his Chief examination that deceased was in sitting posture. Rather he supported his previous statements that he Result: Acquitted Page 212 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) found Satyam hanging with Fan. She could not have been in hanging position at 11:30 AM. This is also questionable. There is an apparent conflict in the source of information regarding the incident. As per PW18, he received Phone Call from A3 at 08:30 AM wherein he was told that Satyam had committed Suicide by hanging. He con veyed this fact to his mother/PW4 and his brother/PW5, who had already left Bullandshahar for his work place in Delhi. In contrast to the same, PW5 says that PW18 had received a call from A3 to the effect that, "Satyam कन तबनयत खरबब हब जलदन सख आ जबओ" . If that be correct, then PW5 had no knowledge of the factum of commission of suicide by Satyam prior to his arrival on the spot. He is supposed to have then given a Phone call to his other relatives that Satyam is no more alive as the other relatives had, by their own accord, reached at the spot of incident at about 11:30 AM. Nothing of this sort was done. Infact PW4 and PW18 who arrived subsequently to PW5 also do not describe that Satyam was found in sitting posture. They are describing this fact in their Court testimony, but not in their ear lier statements. It is a proven fact that when these witnesses saw Satyam, she could not have been in hanging position as she was al Result: Acquitted Page 213 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) ready in sitting straight posture. This therefore establishes the fact that the relevant witnesses could have described this vary scenario at the first instance which they did not for reasons known to them. The Maxim "Falsus in Uno falsus in omnibus" has no application in In dian Jurisprudence. But then the series of improvements that the Court has noticed including introduction of new facts is the main fac tor that has prompted the Court to discard these testimonies with re spect to the offences complained of.
CONCLUSION :
In view of the foregoing discussion, this Court holds that case against all the accused persons have not been proved be yond shadow of reasonable doubt. They are entitled to the benefit of doubt.
Consequently, all the accused persons namely Pawan Yadav (A1), Suman Yadav (A2), Lala Ram Yadav (A3), Deepti Yadav (A4) and Poonam Yadav (A5) are hereby acquitted for the Offence Punishable U/s 302 r/w Section 34 IPC.
All the accused persons namely Pawan Yadav (A1), Suman Yadav (A2), Lala Ram Yadav (A3), Deepti Yadav (A4) Result: Acquitted Page 214 of 215 State Vs. Pawan Yadav etc. FIR 285/12 (56570/16) and Poonam Yadav (A5) are hereby acquitted for the Offence Punishable U/s 304B r/w Section 34 IPC.
All the accused persons namely Pawan Yadav (A1), Suman Yadav (A2), Lala Ram Yadav (A3), Deepti Yadav (A4) and Poonam Yadav (A5) are hereby acquitted for the Offence Punishable U/s 498A r/w Section 34 IPC.
Accused persons namely Pawan Yadav (A1), Suman Yadav (A2) and Lala Ram Yadav (A3) are also hereby acquitted for the offence Punishable U/s 406 IPC r/w Section 34 IPC.
They are directed to furnish PB/SB for Rs.15,000/ each (Rupees fifteen thousand each) with one surety each in the like amount, in view of Section 437A Cr.P.C. Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of fil ing appeal, if any.
ing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi)
on 29.01.2018 ASJ05(W)/THC
Delhi/29.01.2018(P)
Result: Acquitted Page 215 of 215
State Vs. Pawan Yadav etc. FIR 285/12 (56570/16)
Result: Acquitted Page 216 of 215