Delhi District Court
The Background Of The Case Is That The ... vs . on 24 August, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.14/12
FIR NO.103/08
U/S 498A/304B/34 IPC
PS Kanjhawala
Unique Case ID No. :02404R0016972008
State
Vs.
1. Narender @ Sonu s/o Rajender Singh,
r/o H.No.322, Village Nijampur, Delhi110081.
2. Rajender Singh s/o Sh. Bharat Singh,
r/o H.No.322, Village Nijampur, Delhi110081.
3. Smt. Parwati w/o Sh. Rajender Singh,
r/o H.No.322, Village Nijampur, Delhi110081.
4. Smt. Poonam w/o Sh. Surender
r/o H.No.322, Village Nijampur, Delhi110081.
5. Surender s/o Sh. Rajender Singh,
r/o H.No.322, Village Nijampur, Delhi110081.
Date when committed to the court of Sessions :06.12.2008
Date when case reserved for judgment : 13.08.2012
Judgment pronounced on : 24.08.2012
JUDGMENT:
1. The background of the case is that the accused were acquitted SC No.14/12 Page 1/106 by this court vide its order dated 28.03.2011, against which the complainant of the case preferred an appeal bearing No.837/2011 before the Hon'ble High Court of Delhi wherein, vide its order dated 25.01.2012, the said acquittal order was set aside and the case was remanded back to this court with certain directions contained therein.
2. The case of the prosecution in brief is that on 13.07.2008, DD No.5A was recorded at the PS containing the information that at H.No.82, Main Bus Stand, Nizampur, one female had hanged herself and the said DD was given to ASI Satbir Singh, who along with Ct. Jogender reached the said spot where a dead body of a lady namely Smt. Sweety w/o Narender was found lying on a cot. The crime team was summoned at the spot, photographs of the spot were taken and it transpired that the lady was married four years ago and accordingly, the ASI informed the SDM of the area and the Executive Magistrate of the area reached the spot who inspected the same and dead body was ordered to be shifted to the mortuary and the ASI seized one chunni from the spot.
3. On 14.07.2008, the parents of the deceased came to mortuary of SGM hospital and the Executive Magistrate got the postmortem examination conducted on the dead body which was handed over to her parents after the same and at the mortuary itself, the statements of the father of the deceased namely Ram Kishan and mother SC No.14/12 Page 2/106 namely Darshana were recorded.
4. As per statement of the father of the deceased, he was a fourth class employee with the DDA, having five children and the deceased was the eldest child who was married on 29.04.2004 to the accused Narender and in her marriage, 15 tolas of gold and remaining household articles were given in the dowry and that after six months of the marriage, the accused Narender demanded a motorcycle for which he somehow managed Rs.50,000/ in cash and gave the same to accused Narender and that after some days, the deceased gave birth to a female child and at that time also the gold chain was given for their daughter and after sometime the deceased again gave birth to a male child and that the accused continued to harass his daughter for dowry till she died and that on 13.07.2008, at about 5 a.m, the deceased had given a phone call to her mother and told her that her in laws were beating her and after sometime accused Surender had informed him (the complainant) on telephone that his said daughter had expired and on hearing this he along with his wife and relatives reached the Village Nizampur where he saw that his said daughter has been killed on the pretext of suicide by way of hanging and he mentioned the name of all the accused namely Parwati as mother in law, Rajender as father in law, Narender as husband, Surender as brother in law and Poonam as sister in law and alleged that the said accused are responsible for the killing of the deceased. SC No.14/12 Page 3/106
5. To the same effect was the statement of the mother of the deceased and on the basis of the said statement of Ram Kishan, the FIR was registered.
6. During the investigation, accused Narender was arrested and his disclosure statement was recorded and at his instance the cot, one stool, the marriage album were seized, autopsy report was obtained whereby the viscera was got preserved which was sent to FSL and subsequently the result of FSL was also produced and the charge sheet was filed against the accused.
7. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide her order dated 03.12.2009, framed charges against the accused u/s 498A/304B/34 IPC and after the case was remanded back by the Hon'ble High Court as per view expressed, an additional/alternative charge u/s 306/34 IPC was also framed against the accused, to which they pleaded not guilty and claimed trial.
8. The prosecution, in order to prove its case, has produced as many as 19 witnesses and after the case was remanded back and in view of the said additional/alternative charge, PW3 Ram Kishan, PW7 Smt. Darshana, PW8 Sh. Sukhbir Singh, the then Executive Magistrate, PW15 ASI Satya Veer Singh, PW17 Dr. Manoj Dhingra, the autopsy surgeon and PW19 Inspr. Suman Pushkarna were summoned for their further cross examination at the request of the accused, which have been discussed below.
SC No.14/12 Page 4/106
9. Initially, before remand, the statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and produced DW1 in their defence who deposed regarding the demand of living separately from the matrimonial home by the deceased on the pretext that elder brother of accused Narender along with his wife was also residing separately and that the deceased showed her inability to perform such a huge household work and to look after the old parents of the accused and after remand back of the case, additional statements of the accused u/s 313 Cr.PC were recorded and accused Narender being the husband of the deceased, by the permission from the court u/s 315 Cr.PC, appeared as DW2 in his defence.
10. I have heard Ld. APP for the State along with Sh. Yashbir Singh and Narender Singh, Advocates for the complainant and Sh. Avadh Kaushik, Advocate for the accused and I have also gone through the written submissions filed on behalf of the complainant and perused the record.
11. PW1 ASI Krishan Kumar was the duty officer who proved the DD No.5A as Ex.PW1/A and the copy of the FIR as Ex.PW1/B and his endorsement on the original complaint as Ex.PW1/C. PW2 Ct. Jogender deposed regarding reaching the said spot after receiving DD No.5A, description of the dead body, calling of the crime team, SC No.14/12 Page 5/106 calling of the Executive Magistrate at the spot, seizure of the said chunni vide memo Ex.PW2/A and removal of the dead body to mortuary of SGM hospital and after the postmortem examination the dead body was given to the relatives vide receipt Ex.PW2/B and the viscera preserved by the autopsy surgeon was seized vide memo Ex.PW2/C. PW4 SI Manohar Lal prepared the scaled site plan of the spot which is Ex.PW4/A. PW5 Kishan Chand identified the dead body of the deceased who was his niece vide statement Ex.PW5/A. PW6 Virender Singh also identified the dead body of the deceased who was his cousin vide his statement Ex.PW6/A. All the said witnesses were not cross examined on behalf of the accused.
12. PW8 Sh. Sukhbir Singh was the concerned Executive Magistrate who deposed that he visited the spot on 13.07.2008 when he saw a lady lying on a cot and he inspected the spot and the dead body was ordered to be shifted to the mortuary of SGM hospital and on 14.07.2008, he again went to the SGM hospital where the autopsy was got conducted on the dead body and thereafter he recorded the statement of mother and father of the deceased separately which are Ex.PW3/A and Ex.PW7/A and he gave the direction to the SHO for registration of FIR and thereafter he also carried out inquest proceedings vide document Ex.PW8/A and he requested for conducting autopsy vide his application Ex.PW8/B. However, in his cross examination, he answered that all the statements were in handwriting of ASI Satyaveer which were SC No.14/12 Page 6/106 recorded on his dictation. He further replied that he did not record the statement of any neighbour of the accused. He admitted it as correct that villagers, relatives and police were present at the spot.
13. After remand back of the case, when PW8 again appeared for his cross examination, he replied that he did not remember if the parents of the deceased were present at the spot at about 9 a.m on 13.07.2008 when he had reached the said spot. He could not say if any of the accused was present at the spot at that time on the said date. He admitted that IO ASI Satya Veer Singh was present at the spot at that time among other police officials. He answered that in his cross examination dated 03.08.2010 (prior to remand of the case) he had used the word that relatives were present at the spot at that time and the said relatives may include relatives from both the sides i.e. from the side of the deceased as well as from the side of her in laws. He further answered that he did not make any inquiry about the parents of the deceased at the said spot on the said date so as to record their statements. He answered that he did not ask any person to get his statement recorded and as such, no question arose of refusal by any person for the same. He further replied that he did not remember after such a lapse of time as to whether he noticed any mark of injury on the dead body of the deceased. He could not recollect as to how and by whom the deceased was declared dead as such when he had reached the spot. He specifically answered that he did not call the parents of the deceased on 13.07.2008 so as to record SC No.14/12 Page 7/106 their statements nor he tried to contact them personally. He volunteered that he directed the police to search for the parents of the deceased and call them. He further replied that he first time met the parents of the deceased in the said hospital where autopsy was conducted when he had gone there for recording inquest proceedings on 14.07.2008 but he did not know the exact time but it was before noon. He further answered that he made inquiries from them and thereafter recorded their statements and he did not recollect the exact time of recording their statements but it was also before noon. He further answered that statements of parents of the deceased were recorded first and thereafter request for conducting autopsy was made vide Ex.PW8/B. He further answered that postmortem examination was continuing when he left the hospital and he gave direction to the police officials to hand over the dead body to the relatives of the deceased.
14. PW9 Virender was the photographer who took the photographs Mark A1 to A12. PW10 HC Laxman was the witness of the arrest of accused Narender vide memo Ex.PW10/A whose personal search was conducted vide memo Ex.PW10/B and at the instance of the accused one iron cot, photo album and one wooden stool were recovered from the spot vide recovery memos Ex.PW10/C, Ex.PW10/D and Ex.PW10/E and he identified the wooden stool as Ex.P1, the photo album as Ex.P2, the iron cot as Ex.P3. In his cross examination, PW10 replied that the family SC No.14/12 Page 8/106 members of the accused were present in the house when they reached there and that accused appeared himself in the PS when he was taken to his village after his arrest.
15. PW11 M.N. Vijayan, the Nodal Officer of the mobile telephone service has proved the customer application form with the ID proof of mobile phone no.9250433244 as Ex.PW11/A and Ex.PW11/B respectively. He also proved the call details of the said mobile phone as Ex.PW11/C and Ex.PW11/D. He further deposed that as per call details Ex.PW11/D, one outgoing call was made by the said mobile phone number on 13.07.2008 at about 4.57 a.m to mobile phone no.9210313158 and the location of the tower at that time was at Pooth Kalan, Budh Vihar, Delhi. He further deposed that he has also brought the customer application form of phone no.9210313158 which was subscribed by Ram Kishan Dahiya r/o Swatantra Nagar, Narela, Delhi, and the said application form along with ID proof are Ex.PW11/E and Ex.PW11/F respectively and call details of the said phone are Ex.PW11/G and as per call details Ex.PW11/H, two incoming calls were received on mobile phone no.9210313158 made from mobile phone no.9250433244 on 13.07.2008 at 4.57 a.m and 4.58 a.m and the location of the tower of mobile phone number 9210313158 was at Swatantra Nagar, Narela. He was not cross examined on behalf of the accused.
16. PW12 SI Satpal was the In charge of crime team who proved SC No.14/12 Page 9/106 his spot inspection report as Ex.PW12/A. PW13 Ct. Parminder deposited the said viscera of the deceased with the FSL. PW14 was the MHC(M) who deposed regarding deposit of the said exhibit with him.
17. PW15 ASI Satyaveer Singh deposed regarding receiving of DD No.5A, reaching at Village Nizampur on 13.07.2008, finding a dead body of the female namely Sweety and informing about the same to the SDM and SHO and summoning of the crime team, seizure of the said chunni, inspection of the spot by the crime team and SDM, preserving of the dead body at the said mortuary and getting conducted the postmortem examination, seizure of viscera as preserved by autopsy surgeon and he identified the chunni as Ex.P4. In his cross examination on behalf of the accused, he replied that PCR officials had already reached the spot before he reached there and that SDM did not record the statement of any person on 13.07.2008. After the case was remanded back, PW15 was again summoned for his further cross examination on behalf of the accused wherein he replied that at about 8 or 8.15 a.m, from the spot, he had narrated the facts to the SHO as to what he observed at the spot. He further answered that SDM was informed by the SHO namely Inspr. Suman Pushkarna. He answered that the SHO reached at the spot first after the said information given to him at about 9 a.m and he (the witness) was present at the spot at that time and after about 30 or 45 minutes of the arrival of the SHO, the SDM SC No.14/12 Page 10/106 came to the spot in his presence. He replied that he had made inquiries in the neighbourhood who showed their ignorance about the incident or any previous quarrel, being the internal matter of the family of the accused. He replied that at the spot no doctor declared the said deceased as dead and when he reached with dead body at the hospital, the CMO advised him to get the same preserved at the mortuary. He further answered that SDM had recorded the statements of parents of the deceased Sweety at the spot and he had also inquired from the villagers on 13.07.2008.
18. PW16 Ct. Ved Prakash deposed regarding taking of the parcel of the chunni to the mortuary and handed over the same to the Inspector for the opinion of the doctor.
19. PW17 Dr. Manoj Dhingra conducted postmortem examination on the dead body vide his report Ex.PW17/A and he gave the cause of death as asphyxia as a result of hanging and he further proved his further opinion that the hanging was possible with the said chunni vide his report Ex.PW18/C and he identified the chunni as Ex.P4. He was not cross examined on behalf of the accused. (the said witness was summoned again for reexamination after the deposition of PW18 as from the deposition of PW18 it came to the notice that PW17 has not proved his subsequent opinion in his initial deposition.) After remand back of the case, the autopsy surgeon was summoned for further cross examination on behalf of the accused SC No.14/12 Page 11/106 wherein the doctor replied that though he had not mentioned in his PMR Ex.PW17/A about the injuries, but same were antemortem. He further answered that injuries mentioned in the PMR Ex.PW17/A are possible by fall during making efforts for hanging herself and the time since death may vary from 4 to 6 hours.
20. PW18 Inspr. Ranvir Singh deposed that on 16.11.2008, the further investigation of this case was entrusted to him. He collected the PM report, obtained the final opinion of the autopsy surgeon after getting the FSL result vide his application Ex.PW18/A and he moved another application Ex.PW18/B for seeking opinion regarding the chunni which was seized in the present case and the opinion of the doctor was Ex.PW18/C. He further deposed regarding formal arrest of four accused vide memos Ex.PW18/D to Ex.PW18/G and forwarding of charge sheet. He was not cross examined on behalf of the accused.
21. PW19 Inspr. Suman Pushkarna deposed that on 14.07.2008, the investigation of this case was handed over to him and he recorded the statements of PWs and that on 26.07.2008, he arrested accused Narender vide memo Ex.PW10/A and his personal search was conducted vide memo Ex.PW10/B, the interrogation statement of accused Narender is Ex.PW19/A and he recovered iron cot vide memo Ex.PW10/C, marriage album vide memo Ex.PW10/D and wooden stool vide memo Ex.PW10/E from the room of the house of SC No.14/12 Page 12/106 the said accused and he got the scaled site plan prepared and collected the said call details as well as photographs and sent the exhibits to the FSL and he recorded the supplementary statements of parents of deceased and filed the charge sheet against accused Narender and further investigation of this case was transferred to DIU, Outer District. In his cross examination on behalf of accused, he replied that the neighbours of the accused did not cooperate and did not tell anything relating to the case. After remand back of the case, PW19 Inspr. Suman Pushkarna, in his further cross examination on behalf of the accused, replied that he had not made any inquiry or investigation at the parental house and parental side neighbourhood of the deceased as to whether the deceased had made any complaint of harassment or demand of dowry or otherwise facing any cruelty in her in laws' house. He replied that he had not visited the spot on 13.07.2008 after the incident. He admitted that prior to registration of FIR on 14.07.2008 in the evening, he was not involved either in inquiry or any other kind of investigation of the present case but he was knowing about the incident being the Addl. SHO at the relevant time. He did not know if by the time he had taken up the investigation of the present case, as to whether cremation of the deceased had already taken place or not. He answered that between 14.07.2008 till the arrest of accused Narender on 26.07.2008, probably any of the accused had moved his bail application u/s 438 Cr.PC. He replied that he did not make any SC No.14/12 Page 13/106 inquiry or investigation about the aspect as to how much expenses were incurred by the parental side in the marriage of the deceased. He could not record the statements of the neighbours from whom he made inquiries as the said persons did not cooperate with him to that effect.
22. Coming to the deposition of the parents of the deceased, PW3 Ram Kishan Dahiya deposed about the same facts as mentioned in the FIR above and he further deposed that father in law of his daughter used to abuse and taunt her by saying that as to what she had brought in her dowry and she belonged to a poverty ridden family (Bhukey Nangey Ghar Ki Hai). He further deposed that on the day of festival of Holi in the year 2005, father in law of the deceased namely accused Rajender present in court gave beatings to his daughter and tried to burn her by putting kerosene oil on her person and that demands of dowry kept on increasing from the side of accused and that mother in law of his daughter namely accused Parwati present in court told his daughter that she had not brought anything in dowry and she demanded buffaloes from her daughter and the said demand was fulfilled by him and accused Narender used to beat the deceased at the instigation of her parents in law and brother in law and sister in law who used to comment upon the deceased that neither his daughter nor her husband earn anything so his daughter should bring money from her parent's house. He further deposed that the accused used to tell the deceased that they SC No.14/12 Page 14/106 could not afford to maintain them. He further testified that in the year 2006 his daughter fell ill during her second pregnancy due to which she was left at his house for treatment where she stayed for about 1 ½ years and none from the side of the accused came to take her back and that the deceased gave birth to a male child at M.B Hospital during her stay at his house and thereafter accused Narender took the deceased after 1 ½ years but accused did not change their behaviour towards his daughter who was harassed and tortured by the accused for bringing more dowry and this became a routine affair and that the deceased was beaten and was subjected to cruelty during her stay at her matrimonial home till 13.07.2008 when she called her mother on telephone in the early morning at 5 a.m and told her mother that accused were beating her on account of demand of dowry and that they would definitely kill her and after about one hour of the said telephone, he received a call from accused Surender informing him that his daughter had expired and do whatever he felt like doing and that on hearing this news, he along with family members and covillagers went to Village Nizampur where they saw that his daughter Sweety was lying dead on a cot and none of the family member of accused was present there and that some injury marks were on her hand and beating marks on her body were found and that police, crime team and the photographer were already present at the spot and photographs of the scene of occurrence were taken and that SDM also came at the spot and SC No.14/12 Page 15/106 recorded his statement on 14.07.2008 which is Ex.PW3/A and he identified the dead body of his daughter before autopsy and after autopsy he received the dead body vide receipt Ex.PW2/B and that his daughter was killed by the accused and it was given the colour of suicide.
23. In his cross examination on behalf of the accused, he replied that in the year 2004, he must be getting salary of Rs.2500/ or Rs.3,000/ p.m and he used to keep buffaloes and used to sell milk and he used to save Rs.500/ to Rs.1,000/ per month and that his wife looked after the buffaloes. He further answered that in the year 2004, the rate of gold was about Rs.6,000/ per tola (10 gms) and that he had no documentary proof/bill of purchase of 15 tolas of gold and the same was not purchased at one time. He could not give approximate expenses incurred in the said marriage. He further replied that he had stated to the police that accused Rajender and Parwati used to abuse his daughter and used to taunt by saying that she was from a poverty ridden family and she has not brought anything in th dowry and the said fact was not recorded by the police for the reasons best known to the police. He denied the suggestion that the said fact was not recorded by the police as it did not happen in that manner. He further answered that he had stated to the police that on the day of festival of Holi in the year 2005, accused Rajender tried to burn the deceased by putting kerosene oil on her which was confronted with his previous statement Ex.PW3/A SC No.14/12 Page 16/106 where it was not found recorded. He further answered that he had stated to the police that accused Parwati had demanded buffaloes from the deceased which was fulfilled by him but police had not recorded the same. He denied the suggestion that since no demand of buffaloes was ever made, that was why it was not recorded in his statements. He further answered that on 14.07.2008, he could not explain everything to the SDM in his statement due to death of his daughter and many facts were forgotten by him because the dead body of his daughter was lying in his front. He further answered that he did not keep the bills of the expenses incurred on the treatment and delivery of his daughter during her stay at his house as he was not anticipating this incident. He further answered that he had stated to the police that in the morning of 13.07.2008 his daughter had called her mother to the effect that accused were beating her and that she would be killed but he did not know as to why the police did not record the said fact. He could not say if he got recorded in his statement before the SDM that deceased was having injuries on her person because at that time he was not in his senses. He replied that he collected the amount of Rs.50,000/ from his friends and relatives and he also contributed to the said amount. He admitted it as correct that accused Narender was having a grocery shop and the said accused had kept 4 or 5 buffaloes also for dairy business. He did not know, as per his reply, if on 13.07.2008 at about 4.30 a.m, accused Narender had asked the deceased to serve SC No.14/12 Page 17/106 fodder to the buffaloes to which she refused. As per his further answer, he did not know if accused Narender forcibly made the deceased to stand from the cot to provide fodder to the buffaloes. He could not say if the deceased was not working in the house for 2/3 days as she wanted to remain separately from the said matrimonial home. He could not say that on 13.07.2008, after asking the deceased to serve fodder to the buffaloes, accused Narender went away for his shop. He denied the suggestion that the deceased had given a call from mobile phone to her mother that she would commit suicide. He further denied the suggestion that mother in law of the deceased informed the said talks on the mobile phone to accused Narender who came to house from his shop and snatched both the mobile phones from the possession of the deceased and went away. He further denied the suggestion that in the absence of accused Narender the deceased in the said circumstances committed suicide.
24. After the remand back of the case, in his further cross examination on behalf of the accused, PW3, the father of the deceased, replied that he had a talk with his deceased daughter prior to the day of incident about 1 or 1½ month ago on phone. He replied that he did not lodge any complaint regarding the demand of dowry or cruelty or harassment on that account given to his daughter against the accused persons in any PS. He replied that he never called any Panchayat in respect of demand of dowry and/or cruelty SC No.14/12 Page 18/106 caused to her daughter by accused persons either of his village or of the village of the accused persons. He answered that his daughter visited his house 6/7 months prior to the day of incident. He further answered that on 13.07.2008, he came from his duty at about 6.45 a.m, and he was using mobile phone number 9210313158 during those days which was kept at his house and he had no talk with his wife on the said night prior to 6.45 a.m on the day of incident. He replied that his wife had informed him about the death of his daughter as soon as he came back from his duty on the said day. He replied that besides him and his wife, his other children were also present in the house at that time. He further answered that distance between his residence and matrimonial home of the deceased at Nizampur is around 20 kilometers. He did not recollect as to at what time he left his house for Nizampur along with his family members and relatives who were 20 to 25 in number, after receiving the phone of accused Surender at 7 a.m. He replied that they reached Nizampur at about 9.30 a.m. and they all went in a tempo and none of the five accused were available at the spot when they reached there and that the police was present and house was found opened when they reached there. He replied that after receiving phone call of accused Surender at about 7 a.m, he called the police at phone number 100, which was sent to PS Kanjhawala and neither the police nor the SDM recorded his statement on that date at the spot and that SDM was present at the spot and he requested the SDM to SC No.14/12 Page 19/106 take action against the accused persons. He further answered that he himself did not introduce to the SDM as father of the deceased and he volunteered that neither SDM asked nor he told. He further replied that they remained at the spot for about 1½ or 2 hours and police had removed the dead body of his daughter in his presence. He answered that on 13.07.2008, he did not file any complaint before any senior police official or any other authority complaining that SDM or police official were not taking any action in this regard and he volunteered that it was not done since postmortem examination report was awaited. He further answered that on the following day i.e. on 14.07.2008, he reached the hospital at about 9 a.m where SDM met him who came after their arrival in the hospital and the SDM recorded his statement before lunch i.e. before 1 p.m. and the dead body of his daughter was handed over to him at about 4.30 p.m. He answered that the SDM did not sign on his statement in his presence and he was told that his statement had been recorded and report would be available to him from the PS, which he received after 2/3 days from the PS. He further answered that at the request of Panchayat of Nizampur, for the customary reasons, they handed over the dead body to be taken to Nizampur but all the five accused were not present at that time. He replied that he had accompanied the dead body up to cremation ground and the accused Narender had lit the pyre of the dead body of the deceased who had reached the cremation ground directly and he volunteered that nobody from the SC No.14/12 Page 20/106 accused even put his shoulder underneath the last procession of the dead body up to the cremation ground. He further answered that no article was seized at the spot by the police on the day of incident in his presence except the dead body. He replied that the house of the accused at the time when the dead body was taken to Nizampur, was open as other relatives of the accused and Panchayat people were present there. He answered that cremation was done on 14.07.2008 in the day light. He specifically admitted that his statement was recorded first by the SDM and thereafter the PME was conducted.
25. PW7 Smt. Darshana, the mother of the deceased deposed regarding date of marriage of the deceased to the accused Narender, the dowry items given in the marriage and she deposed that the deceased was tortured and harassed and given beatings by all the accused on account of demand of dowry and that her deceased daughter gave birth to a female child and at that time she gave one gold chain and other customary gifts beyond her capacity at the said occasion and that accused Narender used to give beatings to her daughter at the instigation of other accused and that once her mother in law demanded buffaloe from her daughter which was fulfilled by them and that the brother in law and sister in law used to taunt and comment upon her daughter that what would be brought by her as she belonged to a poverty ridden family and thereafter she deposed about the demand of motorcycle by the accused Narender and Rs.50,000/ given to him for the same, living of the deceased at her SC No.14/12 Page 21/106 parental home after about 2 or 2 ½ years of the marriage due to some complication in her pregnancy, treatment to the deceased given for the said complication and thereafter with regard to birth of the son to the deceased and accused Narender taking back the deceased after about one year and a month back to the matrimonial home. She further testified that when her grand son was about one or 1 ½ year old, and 7 months after her daughter had left her house, this incident took place. She further deposed that about two years back, her daughter called her on telephone at about 5 a.m in the morning and told her that accused was beating her and demanding dowry and they would kill her and she could overhear the voices of accused who were quarreling with her daughter at that time and that after about one hour brother in law of her daughter namely Surender called on telephone regarding the death of the deceased and she along with her husband and other family members and relatives reached Village Nizampur where the dead body of her daughter was lying on a cot and all the accused were absconding from there. Her statement was recorded by some DCP like person and as she was illiterate she could not tell the name and designation of that person and her statement was Ex.PW7/A.
26. In her cross examination on behalf of the accused, she replied that in the year 2004, her husband used to give her Rs.2500/ p.m for household expenses and that they had rental income also as they have let out 5 or 6 rooms on rent and that she had five children at SC No.14/12 Page 22/106 that time and that in the year 2004, she used to save around Rs.10,000/ p.m. She could not tell the exact figure about the rate of gold in the year 2004 but answered that it may be approximately Rs.6 or 6 ½ thousand per tola and that the gold given in the marriage of the deceased was not purchased at one time and she got prepared the jewellery gradually but she did not keep the bills of gold articles. She could not tell about the expenses incurred in the marriage. She further replied that once her statement was recorded at the hospital and again at the PS. She further replied that she had stated in her statement Ex.PW7/A regarding harassment given by the accused to the deceased on account of demand of dowry but she did not know as to whether the same was recorded by the police or not as she was illiterate. She further replied that same is her answer with regard to demand of buffaloe by accused Parwati. She was further confronted with her statement Ex.PW7/A where comments of the brother in law and sister in law over the deceased were not found mentioned. Similarly she was again confronted with regard to telephone of the deceased on 13.07.2008 at 5 a.m with regard to beatings given to the deceased on account of demand of dowry and that she would be killed, which was not found recorded in her statement Ex.PW7/A. She denied the suggestion that the delivery of son of the deceased took place at the house of accused Narender. She further answered that she had brought the vaccination card and the hand belt which was tied to the newly born child along with recorded weight of the SC No.14/12 Page 23/106 child as Ex.PW7/X and Ex.PW7/Y. She denied the suggestion that Ex.PW7/X and Ex.PW7/Y were manipulated subsequently and that was why the same were not handed over to the IO. She denied the suggestion that in order to avoid serving the fodder to the animals, as required by accused Narender on 13.07.2008 at about 4.30 a.m, a hot conversation took place between the deceased and accused Narender. She again denied the suggestion with regard to the fact of accused Narender leaving for the shop before 5 a.m on the said day and the deceased gave her a phone call telling her that deceased would commit suicide as she did not want to live with the parents in law or that this conversation was overheard by accused Parwati, who, in turn, informed about the same to accused Narender who snatched the mobile from the deceased.
27. After remand back of the case, PW7 in her further cross examination on behalf of the accused, replied that she was not aware if any complaint prior to the death of her daughter was lodged with the police in respect of the harassment or demand of dowry caused to her daughter by the accused persons. She answered that she informed her husband about the said phone call of her daughter received by her at about 5 a.m on 13.07.2008 and that only one phone call was received by her from her daughter on the said date and that as soon as the phone call regarding the death of her daughter was received by her husband, he immediately informed her regarding the same. He further answered that he himself did not SC No.14/12 Page 24/106 respond to her daughter after her first said phone at about 5 a.m and her husband might have done so. She replied that her husband had informed regarding the said incident with her daughter of beatings given to her as per the said first phone call to the police but she could not say as to after how much time the police was informed after receiving the first phone call. She further answered that neither she nor her husband tried to contact on phone to the in laws of her deceased daughter after receiving her first phone call at about 5 a.m in order to know as to why they were beating her daughter. She replied that at the time of receiving the first phone call from her daughter, she and her husband were present at their house and at the time of receiving the second call with regard to the death of her daughter, she and her husband were present at their house but she again said that her husband had received the second call with regard to death of her deceased daughter. She answered that in between the said two phone calls, she had informed regarding the beatings given to the deceased in her neighbourhood and to her relatives. She replied that they reached the house of deceased daughter's in laws at Nizampur at about 8 a.m on 13.07.2008 and there were two officials, one was in police uniform and other was without any such uniform and the person in uniform remained outside and her statement was recorded by the person who was not in the said uniform and her statement was recorded on the said day before noon. She did not recollect as to whether her statement was recorded at the place SC No.14/12 Page 25/106 where the dead body of her daughter was lying or somewhere else. She answered that at that time, persons from her village as well as belonging to Nizampur village were present there but she could not tell their names and she volunteered that accused were not present there. She further replied that her husband was not present at the place where her statement was being recorded and she had thumb marked her said statement. She answered that she did not know if the said person or any police official recorded the statement of her husband or not. They remained at Village Nizampur, as per her answer, for a considerable time but she could not tell the duration of the same. She admitted that police had removed the dead body of her deceased daughter in her presence and from there they came back to her house and did not go to the hospital on that day. She answered that on the following day they went to the hospital and her statement was also recorded in the hospital. She replied that as she could not identify the person and as such, she could not say if her statement on the following day was also recorded by the same person who recorded her statement on the previous day. She further answered that last rites including the cremation of the deceased were performed at Village Nizampur and she did not attend the funeral of her daughter. She replied that after the autopsy the dead body was taken to the house of her in laws at Nizampur and neither accused Narender, the husband of the deceased, gave his shoulder to the dead body to be taken up to the funeral pyre nor he was present there at SC No.14/12 Page 26/106 that time. She further answered that her statement was also recorded by the police officials in the PS on the third day of death of her daughter.
28. In their additional statements u/s 313 Cr.PC, as per direction of the Hon'ble High Court, the five injuries including the ligature mark found on the dead body of the deceased were put to the accused, to which they answered that injuries mentioned in the PMR were not observed when they saw the deceased last alive and the same might have been sustained by the deceased during the time she was trying to hang herself or the same may be after her death and they denied to have caused the said injuries to the deceased and they further replied that the said injuries have been mentioned as a part of manipulation in the PMR and that was why the doctor has not mentioned on the PM report as to whether the injuries were prior or after the death of the deceased and further they dispute and challenge the postmortem examination report by further answering to the question put regarding the said phone call at the said odd hour on 13.07.2008 wherein they denied the same and alleged that they did not commit any cruelty or harassment to the deceased nor demanded any dowry from the deceased or her parents at any point of time nor committed any cruelty on that account nor gave any beatings to the deceased at any point of time and even on the day of incident. They further answered that phone in the name of accused Surender mostly used to remain with the deceased who was free to SC No.14/12 Page 27/106 use the same and that on the day of incident, the deceased called her parents in the morning saying that she did not want to reside in the joint family and that was why she asked her parents to come to their house and to get her separated but her parents did not show any interest and refused to interfere in her matrimonial affairs and that was why they refused to come to the house of the accused and that deceased wanted to be separated from their joint family for which she had been pressurizing her husband the accused Narender to take his share from the joint family property and get separated and when the said husband did not accede to her demand, she made a call to her parents for the same demand of getting separated at about 5 a.m and the deceased made repeated calls to her parents at that time but the calls were disconnected by them showing no interest in her phone calls and that was why the parents of the deceased did not come to the house of the accused and they denied the allegation that the said phone call was about committing cruelty, beatings and harassment as false and fabricated being afterthought. In answer to the further evidence against them that PW7, the mother of the deceased, overheard the voices of some of the accused who were quarreling with the deceased at that time, they denied the same as false and PW7 was deposing so being an interested witness. They further denied the allegation against accused Surender who allegedly informed regarding the death of the deceased and asked the parents to do whatever they would feel like. In answer to the question as to SC No.14/12 Page 28/106 whether they have anything else to say the accused replied that firstly, they want to challenge the postmortem examination report which is a false and fabricated document and that the doctor has deliberately not mentioned on the said PM report in respect of the injuries as to whether the same were sustained prior or after the death of the deceased and further, the doctor has mentioned in the PM report that time since death was approximately 9 hours whereas it is a matter of record that the time of conducting autopsy has been mentioned as 1 pm on 14.7.2008 whereas the death of the deceased occurred in the morning on 13.7.2008 between 5 a.m to 6 a.m, as alleged in the charge sheet and as such, the time since death could never be 9 hours and secondly, this case is false and fabricated against them which is an afterthought because in the morning on 13.7.2008, parents of the deceased had reached at the spot and made statements to the police as well as to the SDM on the spot in their presence that their daughter had committed suicide only because she could not adjust in the joint family of the accused and was adamant to be separated from the joint family and that they (the parents of the deceased) also stated to the said authorities that their daughter made phone calls to them in the morning asking for her demand of separating but they refused to interfere in the matrimonial life of the deceased and due to which, she becoming frustrated, committed suicide and that the said authorities also conducted inquiries from the neighbours and from them also and nothing was found against SC No.14/12 Page 29/106 them and that is why no case was registered on that day and that even on the next day, they were all present in the hospital where the postmortem of the deceased was conducted and thereafter they brought her dead body to their house and they performed the last rites and cremation and the co accused Narender being the husband lit the pyre of his wife, the deceased and that the two children, one daughter of about four years and son about 1½ years, of the co accused Narender were with him and the parents of the deceased wanted to take the children with them with the condition that either accused Narender should deposit Rs.5 lacs each in the name of the children or purchase 2 bigha land in their name and to hand over the same to the parents of the deceased and when accused Narender and his family did not agree to this demand, they got the present false case registered against them and that they never absconded from the house and they were always at their house at Village Nizampur and for this reason probably, the accused was enlarged on anticipatory bail by the court and that the present case is the false and fabricated case against them and they are innocent and thereafter the accused preferred to lead additional defence evidence.
29. The accused Narender Kumar appeared as DW2 and deposed that his marriage with the deceased Ms. Sweety took place on 29.04.2004 and they are two brothers and the name of his elder brother was Surender, who is co accused in the present case and who got married in the year 1997 and he is also residing at Nizampur, but SC No.14/12 Page 30/106 separately from the other family members and that at the time of his (the accused Narender) marriage, he was working as a driver and there was also work of milk dairy in his family which was being looked after by him, his mother and father and that he along with his wife were residing jointly with his parents and that they had not made any demand of dowry before the marriage or at the time of marriage or even at any point of time after the marriage nor anything was given by the parents of the deceased on their demand and it was an arranged marriage. He further testified that after few days of their marriage, the deceased Sweety started making demand that she would not reside in joint family with his parents and that she pressurized him to be separated from his parents after taking his share from the family properties and that he refused her demand saying that his elder brother was already separate and if he also got separated, who would look after his old parents and that thereafter she talked on telephone to her parents regarding the said issue and asked them to get her separated as she did not want to live with his parents. He further deposed that the parents of the deceased visited their house and made understand the deceased that her demand was not genuine, but she remained adamant on her said demand and that after around one year of marriage, his daughter Rinki was born on 20.02.2005 and there was no quarrel in their home on any issue except the tension on the issue of demand of the deceased seeking separation from his joint family. He further deposed that when the SC No.14/12 Page 31/106 deceased got pregnant for the second time, she was having some complications for which he took her to the doctors at Bahadur Garh and also at Ghevra and her treatment was going on and in the meantime, her mother said that she wanted to take the deceased along with her to a doctor at Narela where the parents of the deceased were residing and that the doctors had advised them not to have physical relations and therefore, her mother advised that they would get the deceased treated at Narela and in this manner they would also reside separately for sometime, as advised by the doctors. He further deposed that he himself had taken the deceased to her parental home and his second child was born there at her parental house at Narela and that he used to visit the deceased at her parental house and he had paid the expenses of delivery of his second child to the parents of the deceased and that after about 4/5 months of the delivery, he himself brought the deceased to his house along with his children but still she was adamant to her demand of separation and that there was no other quarrel in their house except her said demand and that he had obtained a mobile phone connection in the name of his elder brother Surender Kumar, which used to remain in their house and everybody, including the deceased, was free to use the same. He further deposed that there was no quarrel in their house before the night of incident and there was only a tension for about 2/3 days as the deceased was seriously adamant on her demand to be separated and that there were stitches in the hand of SC No.14/12 Page 32/106 his mother as she sustained injuries 10 to 12 days prior to the alleged incident due to a running standing fan and that was why, his mother was not able to do any work and that he woke up in the morning of incident i.e. 13.07.2008, to milk the buffaloes and that he asked the deceased to wake up and to help him in the work, but she refused and replied that she would not do any work and that after milking the buffaloes, he went to his shop of sweets which was situated in their house itself on the main road and that thereafter the deceased made a telephone call to her parents but they were disconnecting the phone and she was saying to her mother as to why she was disconnecting the phone and that his mother heard the talks and informed him that the deceased was making phone calls to her parents asking them to come to her matrimonial house for getting her separated and that thereafter he went into the room and took the phone from the deceased and came back to his shop and that after sometime, a cry of his son was heard and his mother came to him and informed him and thereafter he along with his mother rushed towards the room of the deceased, where he saw that deceased had hanged herself by the beam of the roof and that he called his father and brother and the deceased was brought down from the said hanging position and that they also called their neighbours and that his brother informed the parents of the deceased that their daughter had committed suicide and asked them to come there and that his brother Surender as well as cousin brother Ramesh, both made a call SC No.14/12 Page 33/106 to the police at phone number 100 and the police reached at the spot first and made inquiries from them as well as from their neighbours as so many people had gathered there and that parents of the deceased along with some other relatives reached there after about 3 or 4 hours and the police as well as the SDM also interrogated the parents and relatives of the deceased and that he was not present at the time when inquiries were made from the parents of the deceased by the police and that they (the accused) were at home but not in front of the parents of the deceased and police took the dead body to the SGM hospital and that they also went to the hospital so also the parents of the deceased and that postmortem examination was not conducted on that day but it was conducted on the next day and that he was present in the hospital at that time and that thereafter they (the accused) took the dead body to their house and parents of the deceased were also with them and that the dead body was taken to the cremation ground and was cremated according to Hindu rites and rituals and he lit the pyre and that by that time the parents of the deceased had no complaint or grievance against them on the death of their daughter.
30. He further testified that his two children were with them and they asked the parents of the deceased that they (the accused) would keep the children but the parents of the deceased were demanding to take the children with them with the condition that either they (the accused) should pay Rs.5 lacs for each children to them (the parents SC No.14/12 Page 34/106 of the deceased) or they (the accused) should give one bigha land for each children and that they (the parents of the deceased) asked them (the accused) to hand over the documents of the land to them (the parents of the deceased) after transferring the same in the name of children, to which they (the accused) replied that they could do it but they would keep the children as well as the documents with them (the accused) and on this issue, the parents of the deceased got furious and thereafter the present false case had been filed against them (the accused) and that they (the accused) remained at their house till the date he was called by the police and arrested and that the present case is a false case against them in collusion with the police officials, SDM and doctor as false documents have been prepared and a false postmortem examination report has been prepared and that they did not commit any harassment or cruelty upon the deceased nor anything was demanded from her or her parents on account of dowry nor they caused any injury to the deceased.
31. In his cross examination on behalf of the State by the Ld. Addl. PP, DW2 answered that one steel almirah, bed, refrigerator, dressing table, cooler, sofa set, utensils, clothes etc were given as the articles in the marriage and that his parents at the time of marriage had given to his deceased wife one necklace of gold, one gold chain, one gold mangalsutra, one gold ring, one gold tika, silver hathphool (hand garlands) and one silver tagri (waist ornamental belt), one pair SC No.14/12 Page 35/106 of gold jhumkas (ear rings). He further answered that parents of his deceased wife had given one gold ring to him and one ring to his father, gold jhumkas for his mother and that the deceased was not given any gold ornaments/jewellery by her parents. He further answered that his brother Surender was residing separately in other rooms within the same premises and that he and his said brother were keeping buffaloes and running dairy business separately and that meals were prepared separately for his family which included his parents and the family of the said brother. He denied the suggestion that there was only one kitchen in the premises. He further answered that there were four rooms constructed in their house out of which one room was occupied by his brother Surender and his family, one room was occupied by him and his family, in the third room his parents were residing and the fourth room was a guest room. He replied that he had never remained in possession of a motorcycle of the make Bajaj Pulsar and that he never purchased any motorcycle of the make Bajaj Pulsar but he had purchased motorcycle of the make TVS Victor on the occasion of Karwachauth, after his marriage in the year 2004. He denied the suggestion that Rs.50,000/ were given by the complainant Ram Kishan on his demand for the purchase of said motorcycle or that the deceased was never kept well by him or his family members and demand of dowry was increased on one or the other pretext from their side. He denied the suggestion of receiving one gold chain and SC No.14/12 Page 36/106 other gifts at the time of birth of his daughter from his parents in law and that only two or three sarees of his wife, one saree for his mother and one cradle for his daughter and some eatable items on the occasion were given by his parents in law. He denied the suggestions that deceased was taunted upon less dowry or belonging to a poor family or giving beatings to the deceased on the festival of Holi of the year 2005 or tried to burn her by pouring kerosene oil on her person. He further denied the suggestion that accused Parwati demanded buffalo from the deceased or the said demand was fulfilled by the complainant with the hope that the deceased would live happily in the matrimonial home. He denied the suggestion to give beatings to his wife at the instance of his parents and his brother and sister in law. He replied that he was working as a private driver at the time of his marriage and was getting salary of Rs.3500/ and he denied the suggestion that at the time of marriage, he was not running any dairy business and was working only as a driver. He further denied the suggestion that his income being meager and in order to raise the income of the family, he used to demand buffaloes or worth thereof from the parents of the deceased. He replied that there was no written document of the partition deed/family settlement regarding separation of his brother from his family and he volunteered that the respectable persons of the village helped in arriving at the said peaceful settlement. He could not tell the date of the said separation of his brother but it took place two years prior to SC No.14/12 Page 37/106 his marriage. He admitted that entire movable or immovable properties are still in the name of his father and he volunteered that the share of his brother was given to him separately at the time of said settlement. He admitted that he left his wife to her parental house during the said pregnancy in the year 2006 for her treatment at the desire of his mother in law and that he got the deceased treated from Dr. Narang at Bahadur Garh and Rana Hospital at Ghewra. He could not produce the treatment papers for the reason that the deceased had taken the said treatment papers along with her at the time she had gone to her parental home for further treatment. He denied the suggestion that deceased was forced to take the treatment at the instance and at the expenses of her parents at her parental home.
32. He further answered that his wife was running in the third month of her second pregnancy when he left her at her parental home for her treatment and she remained there for about 3/4 months even after the delivery of child which was a male child. He could not tell the dates or months of his visit at his in laws house to meet his wife during her stay there, but he used to frequently visit there. He denied the suggestion that his wife stayed at her parental house for more than 1½ year. He further denied the suggestion that he was not owning male child as his own and that was why the deceased was forced to stay in her parents house. He further answered that apart from informing the parents of the deceased, they also called a SC No.14/12 Page 38/106 Panchayat at their house in respect of the behaviour and demand of the deceased for separation and in the said Panchayat, the mediator of the marriage namely Sh. Gyan Singh, a resident of their village was also present but he could not tell the date, month and year of the said Panchayat and he replied that nothing was reduced into writing in the said Panchayat and he denied the suggestion that no such Panchayat was ever called. He further answered that his second child was born in a private hospital at Narela and not at M.B. Hospital, Pooth Khurd, Delhi. He could not give any documentary proof that the alleged expenses of said delivery were borne by him and he volunteered that said amount of expenses was paid by him after taking the same from his father. He denied the suggestion that on 13.07.2008, he along with other co accused gave beatings to the deceased for demand of dowry and that was why the deceased had called her parents in the early hours of the morning. He admitted that deceased had made a phone call in the early hours of morning on 13.07.2008 to her parents and that she called her parents 3/4 times. He further admitted that at the time the deceased was making the said call, he was not present at that time to hear the said call and he volunteered that his mother had heard the said conversation and informed him and that his mother was around 4/5 feet away from the room where deceased was talking to her parents on mobile phone. He denied the suggestion that they gave beatings to the deceased and that was why she committed suicide. He denied the suggestion that SC No.14/12 Page 39/106 he was not present at his house when the police and SDM reached the spot on 13.07.2008. He further replied that he had narrated in his statement to the police and asked them to write down the name but the police did not record the same and that no complaint to any higher authority was made by him when the police did not record his statement despite asking for the same. He further replied that the postmortem examination report Ex.PW17/A was never challenged either by him or by his family members before any authority and this question was objected to by the Ld. Defence Counsel that this trial is in the shape of challenge to the said postmortem report and allegations against the accused, but on the other hand, Ld. Addl. PP submitted that witness could have challenged before the appropriate court by way of writ etc. and this issue was left to be adjudged at the time of final arguments.
33. DW2 further answered in his cross examination that his father was an agriculturalist and he also helped him in the dairy business and that parents of the deceased picked up quarrel for the custody of the children and transferring the land in the name of each children or giving cash amount of Rs.5 lacs for each children on 14.07.2008 in the evening time around 4/5 p.m in the presence of many people including villagers. He replied that he did not lodge any complaint in writing to the police on that day to that effect. He denied the suggestion that a DD was lodged against him at PS Narela as he picked up a quarrel at the house of the parents of the deceased SC No.14/12 Page 40/106 during her stay there. He replied that he did not have any property in his name. He answered that neither he nor his other family members lodged any complaint against their false implication in the present case in collusion with the police officials, the SDM, doctors and the complainant, to any higher authorities of the police or otherwise.
34. DW2 was reexamined by the Ld. Defence Counsel as earlier he was not anticipating the questions put to DW2 with regard to alleged demand of a motorcycle and purchase of the same by the DW2 out of the money given by the parents of the deceased, as earlier the DW2 did not bring the documents with regard to purchase of the motorcycle in his previous deposition and he was allowed to be reexamined in the said circumstances wherein he deposed that he had brought the documents concerning motorcycle no.DL8SAB 5727 of which he was the registered owner vide RC, the copy of which is Ex.DW2/A and the same was purchased for a consideration of Rs.46,142/ from M/s M.C.R. Enterprises having its showroom at C568, Outer Ring Road, Saraswati Vihar, Delhi110034, vide invoice no.1555 dated 05.11.2004 and the copy of the invoice is Ex.DW2/B and the possession of the same was given to him by M/s Bhura Auto Care vide delivery receipt no.2061 dated 31.10.2004, which is Ex.DW2/C and the Insurance Cover Note of the same is Ex.DW2/D and that for purchasing the aforesaid motorcycle, he had paid Rs.11,500/ in cash to the dealer and balance amount was paid SC No.14/12 Page 41/106 through 22 EMIs of Rs.1800/ per month, for which he had given postdated cheques and these cheques were debited to his saving bank account no.01190021174 with State Bank of India, Kanjhawala, Delhi and same is Ex.DW2/E.
35. In his cross examination on behalf of the State, DW2 replied that except the above mentioned saving account, he did not have any other bank account. He admitted that there was no transaction in the aforesaid account of Rs.11,500/ which has been claimed to be paid in cash at the time of purchasing the motorcycle. He denied the suggestion that the cash given by him for purchasing the aforesaid motorcycle was part of the cash payment made by the parents of the deceased amounting to Rs.50,000/ and that was why, he did not get the said amount deposited in the said account. He admitted that as per Ex.DW2/C i.e. the delivery receipt, the day of delivery has been mentioned as 31.10.2004 and the invoice Ex.DW2/B is dated 05.11.2004. He denied the suggestion that the aforesaid documents were fabricated to create a false evidence.
36. As regard the ingredients of Section 304B IPC are concerned, basic requirements for offence are : (a) death of woman otherwise than under normal circumstances; (b) such death occurred within 7 years of marriage; and (c) that prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death.
SC No.14/12 Page 42/106
37. As regards the two ingredients that the deceased in the present case died otherwise than in normal circumstances and within seven years of her marriage, are not in dispute. With regard to the cruelty and harassment on account of demand of dowry soon before her death, it has been contended both orally and in written submissions by the Ld. Counsel for the complainant and the Ld. Addl. PP that the deposition of PW3 and PW7 go to establish not only the demand of dowry of Rs.50,000/, the buffaloes and the harassment and cruelty committed upon the deceased but the talk of the deceased on phone to her mother just about one hour prior to her death operated as her dying declaration u/s 32 of the Indian Evidence Act and in this regard a judgment of the Hon'ble Supreme Court titled Kans Raj Vs. State of Punjab reported as (2000) 5 SCC 207 has been relied upon and the abrasions on face, lips, wrist, which were antemortem in nature, as mentioned in the autopsy report, were sufficient to establish the resulting cruelty soon before the death of the deceased and in these circumstances, presumption u/s 113B of the Indian Evidence Act has arisen and the accused have failed to rebut the same.
38. On the other hand, Ld. Defence Counsel has argued that before a presumption can be raised u/s 113A or 113B of the Indian Evidence Act, the first provision in the scheme of the Act comes in the Indian Evidence Act is that of Section 101, which declares that whoever desires any court to give judgment as to any legal right or SC No.14/12 Page 43/106 liability dependent on the existence of facts which he asserts, must prove that those facts exist. He has further contended that the prosecution has miserably failed to establish any demand of dowry or resulting cruelty upon the deceased at any point of time much less soon before her death.
39. The question arises is as to what is the point of time when the presumption u/s 113B of the Evidence Act can be raised? Is it that the court shall first presume the things and thereafter record the evidence or appreciate the evidence or as to whether the prosecution has to establish the demand of dowry and resulting cruelty and harassment and that too soon before her death first and then the onus is shifted upon the accused to rebut the same?
40. The answer to the said question has been given by the Hon'ble Supreme Court in many cases and some of the cases may be cited, for example, in Hira Lal and others Vs. State of Delhi reported as AIR 2003 SC 2865 the Hon'ble Supreme Court held that the expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304B of IPC are pressed into service and that prosecution is obliged to show that soon before the offence there was cruelty or harassment and only in that case presumption operates and that evidence in that regard has to be lead by prosecution. Again, in the case titled State of Rajasthan Vs. Tek Bahadur and others reported as 2004 (3) JCC 1515 wherein the SC No.14/12 Page 44/106 Hon'ble Supreme Court was dealing with a situation where witnesses have given different statements regarding demand of dowry and death of the woman was due to falling in well and that prosecution failed to prove that just before her death she was subjected to cruelty on the issue of demand of dowry and it was held that no presumption of guilt u/s 113B of the Evidence Act can be raised. Yet in another case titled Baljeet Singh and others Vs. State of Haryana reported as 2004 (1) JCC 627, it was held by the Hon'ble Supreme Court that presumption u/s 113B of the Evidence Act against accused persons to be drawn only when the prosecution establishes that soon before her death if the woman was subjected to cruelty or harassment within seven years of her marriage and the onus lies on the prosecution. Even the said proposition of law was again admitted by the Hon'ble Supreme Court in the said case of Kans Raj Vs. State of Punjab (supra) when in para 16 of the judgment it was held that no presumption u/s 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and that there was no evidence of cruelty and harassment thereafter, but mere lapse of some time by itself would not provide to an accused a defence if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the death of the woman.
SC No.14/12 Page 45/106
41. Describing the object with which the presumption u/s 113B of the Evidence Act was inserted in the Evidence Act and what are essentials for raising presumption, the Hon'ble Supreme Court in the case titled Kaliaperumal and another Vs. State of Tamil Nadu reported as AIR 2003 SC 3828 held as follows:
"The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the preexisting law in securing evidence to prove dowry related deaths, Legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act has been inserted. As per the definition of "dowry deaths" in Section 304B IPC and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry".
Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B, IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with, SC No.14/12 Page 46/106 any demand for dowry.
(4) Such cruelty or harassment was soon before her death."
42. Judging in the light of the said law laid down by the Hon'ble Apex Court, let me examine as to whether the prosecution in the present case has been successful in discharging its initial burden of proving the demand of dowry and resulting cruelty and harassment soon before the death of the deceased by way of proving the same beyond reasonable doubt so as to raise the presumption and shift the burden on the accused to rebut the presumption.
43. It is also well established under the law that to rebut the presumption raised under the law or to prove his defence, the accused is not required to prove the same or rebut the same beyond reasonable doubt, but he has to mere show a probability with regard to existence of the facts rebutting the presumption or for proving his defence and he is not required to prove the same beyond reasonable doubt. Further, there is no law that prosecution witnesses are to be treated at a higher footing than that of the defence witnesses.
44. Let me first take up the alleged demand of buffaloes by the accused from the parents of the deceased and it has been alleged by PW3, the father, and PW7, the mother of the deceased, that the said demand of buffaloes was made by accused Parwati, the mother in law of the deceased but this fact was not found recorded in their previous statements recorded by the Executive Magistrate SC No.14/12 Page 47/106 Ex.PW3/A and Ex.PW7/A and thus, it was an improvement in order to add various alleged demands of dowry. Both PW3 and PW7 have given the explanation that the said demand of buffaloes was told by them to the police but they do not know as to why the same was not recorded by the police in their respective statements. The explanation of PW3 that he forgot to mention so many things as dead body of his daughter was lying in his front and the said explanation is falsified by the fact that there is a great controversy in the present case with regard to the fact as to what is the point of time when the statements of the said parents of the decease were recorded, either by the police or by the SDM, as mentioned by me below while discussing the delay aspect of the case. Even otherwise, the witnesses were remembering, if at all their statements were recorded when the dead body of their daughter was lying in their front, regarding demand of motorcycle and fulfillment of the same, the fact of giving 15 tolas of gold at the time of marriage and it is difficult to believe as to how they forgot to mention such a costlier demand because a buffalo is more costly than a motorcycle in the market and moreover, no specifications as to how many buffaloes were given or from where the same were procured or the source of money for the purchase of the same or were the buffaloes were already in the possession of the said witnesses, are there in their respective depositions. I can understand that a motorcycle is automotive and can be driven by a person with the help of a motor at SC No.14/12 Page 48/106 a much faster speed, but a buffalo cannot be driven of its own from one place to another and it has a specific mode of transportation i.e. to carry the same either in a vehicle such as truck etc. from one place to another. We do not know the place from where the buffaloes were transported to the house of the accused, by what mode and in what manner. If the same were transported from the village of PW3 and PW7, the same escaped the eyes and attention of the neighbours and other covillagers and if the buffaloes were transported from an open animal market to the house of the accused, then the said market has certain business practices including the keeping of record of the sale transaction of animals and their specific identities before completing the sale transaction and again, the mode of transportation comes into picture. No such specifications are there qua the demand of buffaloes fulfilled by PW3 and PW7, as alleged by them in their respective depositions. In the circumstances, the said allegations and the said explanation with regard to non mentioning of the demand of buffaloes by the accused in their respective previous statements do not come to the help of the said two PWs and the irresistible conclusion is that the fact of said demand of buffaloes by the accused has been deposed as an afterthought and for the first time before the court not corroborated by any other evidence, circumstance or the witness and I am of the considered opinion that prosecution has miserably failed to discharge its burden of proving the said demand of buffaloes by SC No.14/12 Page 49/106 the accused and fulfillment of the same by the PW3 and PW7.
45. Coming to the demand of motorcycle which was allegedly demanded after 6 months of the marriage by the accused Narender. PW3, the father of the deceased, has claimed that he somehow arranged Rs.50,000/ and gave the same in cash to accused Narender for the purchase of the said motorcycle. In his cross examination, PW3 admitted that in the year 2004, when the marriage took place, he was getting a salary of Rs.2500/ or Rs.3,000/ per month and besides salary, he used to keep buffaloes and used to sell milk from which he used to save around Rs.500/ to Rs.1,000/ per month and in the year 2004, the rate of gold was about Rs.6,000/ per tola. The Ld. Defence Counsel has argued and rightly so, that even if Rs.1,000/ per month is taken as the savings of PW3, it would take at least 50 months in accumulation of a sum of Rs.50,000/, but he fulfilled the said demand of motorcycle by giving Rs.50,000/ just after six months of the marriage and that too in the circumstances when he performed the marriage wherein he allegedly gave 15 tolas of gold and other household articles in the marriage. He denied the suggestion initially given to him on behalf of the accused that accused Narender was already having a motorcycle of the make TVS bearing No.DL8SAB5727 which he purchased after taking loan from the bank. Admittedly, as per claim of PW3 and PW7, they could not give the names or otherwise details of the persons from whom they managed or arranged the said amount of SC No.14/12 Page 50/106 Rs.50,000/. PW3, nowhere claimed either in his examination in chief or cross examination, that he had any rental income also but interestingly PW7, the mother of the deceased, answered in her cross examination that in the year 2004, her husband i.e. PW3, used to give her Rs.2500/ per month for household expenses and that they had rental income also as they had let out 5/6 rooms on rent and she further admitted that she had five children at that time and she further replied that in the year 2004, she used to save around Rs.10,000/ per month. The said contradictory stands with regard to savings of PW3 and PW7 prima facie go to belie the story of giving Rs.50,000/ in cash to accused Narender for the purchase of motorcycle, as alleged by them. When the accused Narender appeared as DW2, he was suggested on behalf of the complainant in his cross examination that it was a motorcycle of the make Bajaj Pulsar which was purchased by him after the said demand and receiving Rs.50,000/ from the complainant. He reiterated in his cross examination that he was in possession of a motorcycle of the make TVS Victor which he himself purchased on the occasion of Karwachauth after his marriage in the year 2004 and in his re examination, he not only proved the RC of the motorcycle No.DL8SAB5727 as Ex.DW2/A, but also its invoice as Ex.DW2/B and delivery receipt as Ex.DW2/C, Insurance Cover Note as Ex.DW2/D and he further deposed that initial amount of Rs.11,500/ was given in cash to the dealer and balance amount was paid SC No.14/12 Page 51/106 through 22 EMIs of Rs.1800/ per month for which he had given postdated cheques which have been debited to his saving bank account with State Bank of India, Kanjhawala, Delhi, which is Ex.DW2/E. Except that there is some discrepancy in the dates of the invoice Ex.DW2/B and the delivery receipt Ex.DW2/C, all the said documents have gone unrebutted on the record particularly the 22 EMIs debited from his bank account Ex.DW2/E. If the accused had already received Rs.50,000/, as demanded by him, what was the need of making the payment in monthly installments and that too through a bank account. It is not the case of the prosecution nor it has been reflected in the bank account Ex.DW2/E that ever a sum of Rs.50,000/ was deposited in the said bank account from which the said EMIs were paid to the dealer to purchase to said motorcycle. Thus, the accused has been fully successful in disproving the said allegation of demand of a motorcycle for which the alleged amount of Rs.50,000/ was given to him. Thus, the said demand of dowry by way of a motorcycle also falls on the ground.
46. There is no other demand as such of a chattel or valuable security or money except the said two alleged demands and so far as alleged 15 tolas of gold along with other household articles are concerned, it is admitted case of PW3 and PW7 and even of the prosecution that these articles were not demanded by the accused but were given by the parents of the deceased of their own accord at the time of the marriage. Even the accused Narender, when appeared as SC No.14/12 Page 52/106 DW2, in his cross examination answered that his own parents, at the time of marriage, had given to his deceased wife one necklace of gold, one gold chain, one gold mangalsutra, one gold ring, one gold tika, silver hathphool and one silver tagri (waist ornamental belt), one pair of gold jhumkas and he further asserted that deceased was not given any gold ornaments/jewellery by her parents. The said assertion of the DW2 in his cross examination has gone unchallenged on the record in the sense that the parents of the deceased and the prosecution even failed to deny the fact that accused have also given the said jewellery items to the deceased at the time of the marriage and what PW3 and PW7 asserted that they had given 15 tolas of gold, but failed to give any description of the jewellery items made of gold in the form in which the DW2 has given the names of the jewellery items. Similarly, on the birth of two children of the deceased in the alleged "Pilia Ceremony" the customary gifts given were not demanded at all on behalf of the accused nor it is the case of the parents of the deceased.
47. Now coming to other allegations of cruelty and harassment.
PW3, in his examination in chief, has deposed that father in law of his deceased daughter used to abuse and taunt her by saying that she has brought nothing in the dowry and belonging to a family which is hunger and poverty striken (Dahej Me Kya Lai Ho, Bhukhe Nangey Ghar Ki Hai), but in his cross examination, he admitted that although he had stated the said comments in his statement to the SC No.14/12 Page 53/106 police, but it was not recorded by the police for the reasons best known to the police. Similarly, the said comment found mentioned in examination in chief of the mother of the deceased PW7, but the contradiction is that as per PW7 this comment was passed on the deceased by Jeth and Jethani (brother and sister in law) of the deceased and not by the father in law, as is alleged by PW3 and again, the said comment was not found mentioned in the previous statement of PW7 Ex.PW7/A. Thus, the said comment is nothing but outright improvement in order to make the case foolproof against the accused and the said deposition is for the first time before the court and as such not reliable at all.
48. Next is the allegation of PW3, the father of the deceased, that on the day of Holi festival, in the year 2005, father in law of his deceased daughter i.e. accused Rajender, gave beatings to her daughter and tried to burn her by putting kerosene oil on her person. Again, in his cross examination, on confrontation, the said incident of burning the deceased on the day of Holi festival of the year 2005 was not found recorded in his two previous statements Ex.PW3/A and Ex.PW3/B. However, no such incident of attempt to burn the deceased on the day of festival of Holi of the year 2005 was mentioned in the examination in chief of the mother of the deceased PW7. Even otherwise, the said incident being so serious in nature was never reported either to the police or to any Panchayat etc. Thus, the said improved statement for the first time before the court SC No.14/12 Page 54/106 is also not at all reliable and cannot be believed for the said reasons.
49. Further, a suggestion was thrown to accused Narender in his cross examination, when he appeared as DW2, that a DD was lodged against him at PS Narela as he picked up a quarrel at the house of the parents of the deceased during her stay there. But, despite sufficient time granted by this court, no such DD was either produced or got produced on the record and as such, this incident of alleged cruelty is also wiped out.
50. Coming to the fact of forcibly sending the deceased in the year 2006 to her parental home during her second pregnancy for her treatment where she stayed for about 1½ years and as per deposition of PW3, nobody from the side of the accused came to take her back and the deceased gave birth to a male child at Maharishi Balmiki Hospital during her stay at her parental house and accused Narender took the deceased after 1½ years but they did not change their behaviour towards the deceased who was harassed and tortured on account of bringing more dowry and this became a routine matter for her and that she was given beatings and was subjected to cruelty during her stay at her matrimonial home till 13.07.2008. In his cross examination, before remand of the case, PW3 replied that he did not keep the bills of expenses incurred on the treatment and delivery of his daughter during her stay at his house as he was not anticipating this incident.
SC No.14/12 Page 55/106
51. Let me see as to what PW7, the mother of the deceased, has to say with regard to the said incident during second pregnancy of the deceased, who deposed that after about 2 or 2½ years of marriage of her daughter, she was left at her house by accused Narender as she fell ill due to some complication in her three months pregnancy and that she got her daughter treated and her daughter gave birth to a son and after about one year and one month of the birth of the male child, her daughter was taken by accused Narender after great persuasion. In her cross examination on behalf of the accused before remand of the case, she produced vaccination card and the hand belt bearing No.243580 dated 20.10.2008 at about 8.30 p.m and the weight of the child mentioned in the hand belt as 3.3 kgs provided by the hospital at the time of the birth of the child and same are Ex.PW7/X and Ex.PW7/Y.
52. Neither PW3 nor PW7 produced any document of Maharishi Balmiki Hospital with regard to birth of the child, where the said alleged second child was born to the deceased and admittedly the said hospital is a government hospital and presumption under the law is that the working of the government hospital would have been carried out in the ordinary course of its business. It is a matter of common knowledge that no treatment or delivery could be carried out without written prescription and record, but no such document with regard to birth of the second child to the deceased has been produced on record. Ex.PW7/X, which is a vaccination card is not SC No.14/12 Page 56/106 of Maharishi Balmiki Hospital nor it is mentioning of any other medical centre. Similarly, the alleged hand belt Ex.PW7/Y is mentioning the name of the mother as Sweety, wife of Narender, hand belt number and the weight but it is not mentioning the name of any hospital and as such, the said two documents do not come to corroborate the said alleged deposition of PW3 and PW7 that the said child was born at Maharishi Balmiki Hospital.
53. On the other hand, with regard to the said fact, the accused Narender had appeared as DW2, after remand of the case, and deposed that after around one year of his marriage his daughter Rinki was born on 20.02.2005 and that when the deceased got pregnant for the second time, she was having some complications for which he took her to the doctors at Bahadur Garh and also at Ghevra and her treatment was going on and that in the meantime, her mother said that she wanted to take the deceased along with her to a doctor at Narela where the parents of the deceased were residing and that the doctors had advised them not to have physical relations and therefore, her mother advised that they would get the deceased treated at Narela and in this manner they (the accused and the deceased) would also reside separately for sometime, as advised by the doctor and he himself had taken the deceased to her parental home and her second child was born there at her parental house at Narela and that he used to visit the deceased at her parental house and he had paid the expenses of delivery of his second child to the SC No.14/12 Page 57/106 parents of the deceased and that after about 4/5 months of the delivery, he himself brought the deceased to his house along with his children, but still she was adamant to her demand of separation. In his cross examination on behalf of the State, he admitted that he left his wife to her parental house during the said pregnancy in the year 2006 for her treatment, but it was at the desire of his mother in law. He further replied that deceased was got treated by him from Dr. Narang at Bahadur Garh and Rana Hospital at Ghevra and he could not produce the treatment papers for the reason that the deceased had taken the said papers along with her at the time she had gone to her parental home for her further treatment. He further replied that his wife was running in third month of her second pregnancy when he left her at her parental home for treatment and she remained there for about 3/4 months even after the delivery of the child which was a male child. He was given a suggestion on behalf of the State that he was not owning the male child being the father and that was why the deceased was forced to stay at her parents house which he denied as wrong. He further replied that her second child was born in a private hospital at Narela. He could not give any documentary proof that the alleged expenses of delivery were borne by him but he volunteered that the said amount of expenses was paid by him after taking the same from his father.
54. The allegation against accused Narender that he was denying his paternity of the second child has come for the first time in his SC No.14/12 Page 58/106 cross examination on behalf of the prosecution, an altogether new story and new allegation which was never deposed earlier either by PW3 or by PW7 that accused Narender did not come to take back the deceased after the birth of the second child for the alleged 1½ year for the said reason. Thus, non production of the documentary evidence with regard to the birth of the second child and the shifting stand of PW3 and PW7 with regard to the reason of staying of the deceased allegedly for 1½ year in her parental home, this aspect of cruelty is also not worth believing. I have already discussed the law that accused is not required to prove his defence or rebuttal beyond reasonable doubt, but he has thrown himself into the witness box exposing himself to all sorts of cross examination and confrontation with documents but no such documents were thrown for his confrontation nor his stand that he got treated the deceased earlier by some doctors and the hospital could be uprooted on behalf of the State.
55. The remaining and repeated allegations that the deceased was harassed and tortured by the accused persons on account of bringing more dowry and this became a routine matter for her and that he was being beaten and subjected to cruelty during her stay at her matrimonial home till 13.07.2008 are nothing but bald assertions, on the basis of which it cannot be said that acts of committing cruelty have been established against the accused. The reference here can be given of the case decided by the Hon'ble Supreme Court of India SC No.14/12 Page 59/106 in Durga Prasad and another Vs. State of M.P. reported as 2010 (3) JCC 1852 wherein, in para 14 of the judgment, it was held that having carefully considered the submissions made on behalf of the respective parties, we are inclined to allow the benefit of doubt to the appellants having particular regard to the fact that except for certain bald statements made by PW1 and PW3 alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, which, in fact, are the ingredients of the evidence to be lead in respect of section 113B of the Indian Evidence Act in order to bring home the guilt against an accused u/s 304B IPC. Similarly, in an earlier judgment titled Sunil Bajaj Vs. State of M.P. reported as AIR 2001 SC 3020, the Hon'ble Supreme Court held that there were only vague and inconsistent statements of interested witnesses being parents and brother of the deceased and that there was no evidence of any relative or neighbour of parties about cruelty to deceased by accused in relation to demand of dowry and that no demand of dowry at the time of marriage and that there was no mention of demand of dowry in her letter by the deceased to her parents written soon before her death and that there were material contradictions and serious omissions in prosecution witnesses and in the said circumstances Hon'ble Supreme Court set aside the order of confirming conviction and sentence of the SC No.14/12 Page 60/106 appellants/accused. I am of the considered opinion that the said two judgments are substantially applicable to the present case also so far as incidents of alleged demand of dowry and resulting cruelty are concerned till the date of committing suicide by the deceased i.e. on 13.07.2008.
56. Coming to the date of incident i.e. 13.07.2008 and the alleged phone call made by the deceased to her mother at odd hours i.e. early in the morning. The said phone call allegedly made by the deceased at the said odd hours coupled with certain injuries found on the dead body of the deceased have been used by the prosecution for two purposes. First is the purpose of argument that deceased was subjected to cruelty on account of demand of dowry "soon before her death" and second was for the purpose of the argument that it operated as the dying declaration of the deceased. It has been fairly conceded by the Ld. Defence Counsel that at the time he was arguing the said appeal before the Hon'ble High Court of Delhi in this case, he was also ignorant about the fact that it was not one phone call but many phone calls which were made from the mobile phone allegedly used by the deceased at the said early morning of 13.07.2008 and he also submitted that it was not also disclosed by the Ld. Counsel for the appellant before the Hon'ble High Court during the course of arguments of the said appeal. Admittedly the mobile phone number was 9250433244 which the deceased allegedly used on the said day and this is also not disputed that the SC No.14/12 Page 61/106 mobile phone at the house of the parents of the deceased at Narela, which was attended by PW7, the mother of the deceased, its number was 9210313158. A man may tell a lie but documents do not. PW11, the Nodal Officer of the concerned mobile phone service has proved the call details record of the said mobile phone used by the deceased on 13.07.2008 and let me reproduce the relevant extract dated 13.07.2008 of the call details record Ex.PW11/D, as follows:
Calling Called Date Time Duration Direction
Number Number
9250433244 9210313158 13.07.2008 4:57:36 24 seconds outgoing
9250433244 9210313158 13.07.2008 4:58:55 10 seconds outgoing
9250433244 9210313158 13.07.2008 5:00:15 3 seconds outgoing
9250433244 9210313158 13.07.2008 5:01:24 271seconds outgoing
9250433244 9466710383 13.07.2008 5:37:33 40 seconds outgoing
9250433244 9210313158 13.07.2008 6:49:43 116seconds outgoing
9210313158 9250433244 13.07.2008 6:52:23 51 seconds incoming
9250433244 9210313158 13.07.2008 6:53:57 145seconds outgoing
57. The above mentioned seven phone calls took place from the mobile of the deceased between 4:57:36 a.m to 6:53:57 a.m. The Ld. Counsel for the complainant has contended that PW7 being a rustic villager could not have remembered all the said phone calls but whatever was striking in her mind, she deposed before the court regarding the phone of the deceased which she heard. SC No.14/12 Page 62/106
58. Had it been only a single call, I can understand that this would have given rise to a grave suspicion as to why a married female was calling at her parental house at such an early hour of the morning, but the said seven calls, out of which one lasted for about 271 seconds and another lasted for about 116 seconds and yet the first call lasted about 24 seconds and the last call lasted about 145 seconds, giving rise to a doubt as to whether these calls were made for something extraordinary happened with the caller or it was a routine affair talks or conveying a thing which was requiring repeated calls.
59. Let me turn to the deposition of PW7, who admittedly heard the alleged call of the deceased at such an odd hour and I am assuming here, for the sake of argument only, that it was merely one phone call made by the deceased on 13.07.2008 in the early morning. PW7, in her examination in chief, deposed that about two years back, her daughter called her on telephone at about 5 a.m in the morning and she told her that these people (referred for the accused) were beating her and demanding dowry and would kill her on the said day. In vernacular the sentence is "Yeh Mujhe Maar Rahe Hai Aur Dahej Maang Rahe Hai, Aaj Mujhe Maar Denge". She further deposed that she would hear the voices of accused persons who were quarreling with her daughter at that time and that after about one hour Jeth (the brother in law) of her daughter namely Surender called on telephone and told her husband (the witness) that SC No.14/12 Page 63/106 their daughter had died or she had been killed, they do whatever they felt like and on hearing this news, they informed all the family members and relatives and reached at Village Nizampur. In her cross examination on behalf of the accused, the said wordings of the call of the deceased to the effect that the accused were beating her, demanding dowry from her and would kill her, was not found recorded in her previous statement Ex.PW7/A when she was confronted with her said previous statement. In her further cross examination on behalf of the accused, after the case was remanded back, she replied that she informed her husband about the said phone call of her daughter received by her at about 5 a.m on 13.07.2008. She further categorically answered that only one phone call was received by her from her daughter on the said date. She further replied that as soon as the phone call regarding the death of her daughter was received by her husband, he immediately informed her regarding the same. She further replied that she herself did not respond to her daughter after her first said phone at about 5 a.m and her husband might have done so. She further answered that her husband had informed regarding the said incident with her daughter of beatings given to her as per the said first phone call to the police but she could not say as to after how much time the police was informed after receiving the first phone call. She replied that neither she nor her husband tried to contact on phone to the in laws of her deceased daughter after receiving her first phone call at about 5 a.m SC No.14/12 Page 64/106 in order to know as to why they were beating her daughter. She further answered that at the time of receiving of first phone call from her daughter, she and her husband were present at their house. She further answered that at the time of receiving the second call with regard to death of her daughter, she and her husband were present at their house, but she again said that her husband had received the second call with regard to death of her deceased daughter. She replied that in between the said two phone calls, she had informed regarding the beatings given to her daughter in her neighbourhood and to her relatives.
60. Let me now turn to the deposition of PW3, the father of the deceased, with regard to the alleged phone call, who, in his examination in chief, deposed that on 13.07.2008, when the deceased called her mother on telephone in the early morning at 5 a.m, the deceased told her mother that the accused persons were beating her on account of demand of dowry and they would definitely kill her and that after about one hour of the said telephone, they received a call from accused Surender, who informed them that his daughter had expired and do whatever they felt like and that on hearing this news, he along with his family members and co villagers went to Village Nizampur where they saw that his daughter Sweety was lying dead on a cot. However, in his cross examination on behalf of the accused, after remand back of the case, he replied that on 13.07.2008, he came from his duty at about 6.45 a.m and that SC No.14/12 Page 65/106 he was using mobile phone number 9210313158 during those days which was kept at his house. He further answered that he had no talk with his wife on the said night prior to 6.45 a.m on the day of incident and that his wife had informed her about the death of her daughter as soon as he came back from duty on the said day. He further answered that besides him and his wife, his other children were also present in the house at that time.
61. From the said depositions of the said two witnesses, it is quite clear that the words allegedly uttered by the deceased on 13.07.2008 in the early morning hours on phone were not disclosed to the SDM or to the police by PW3 and the same have been deposed for the first time before the court. Further, the contradiction with regard to time when both the witnesses came to know about the said alleged phone call in common, further demolishes the story of the said phone call. PW3 came back from his duty to his house on 13.07.2008 at about 6.45 a.m. and prior to that he had no talk with his wife on the day of incident and he was informed regarding the death of his daughter as soon as he came back from his duty on the said day, whereas PW7, the wife of PW3, has another story to tell that she informed regarding the said phone call of the deceased to PW3, her husband, at about 5 a.m on 13.07.2008 and that it was her husband who heard the phone of accused Surender regarding the information of death of the deceased and who, in turn, disclosed the same to PW7, whereas PW3 is claiming that it was PW7 who disclosed him regarding the SC No.14/12 Page 66/106 death of his daughter. Thus, the story of only one phone call comes under suspicion and difficult to believe in view of the above said seven phone calls with a very little gap of time and one after the other.
62. PW7 could hear the voices of the accused persons on her mobile phone, as deposed by her, meaning thereby that there were more than one accused who were allegedly beating the deceased when she made the alleged one phone call or it can be said that at the time of said seven phone calls. It does not appeal to the common sense that so many persons were beating the deceased and at the same time allowing her to make a phone call to her mother so as to facilitate the disclosing of the cruelty committed upon her by the accused to PW7 and not snatching the mobile phone from the hands of the deceased. If these were the six calls made from the said mobile phone to the said mobile phone at the house of the parents of the deceased, it is difficult to swallow that accused continued to beat the deceased and at the same time permitting the said six phone calls made from the said mobile phone. It is pertinent to mention here that it is not the case of the prosecution nor of PW3 and PW7 that the said six calls from the said mobile phone used by the deceased, were made by different persons so as to give an occasion to the prosecution or to the said two PWs that there was only one phone call allegedly made by the deceased.
SC No.14/12 Page 67/106
63. Even if, for the sake of argument, it is assumed that the said phone calls with said utterance was made by the deceased to her mother, the PW7, it is interesting to note the reaction of the parents of the deceased after receiving such a serious call regarding cruelty upon the deceased by the accused who were bent upon killing her. Admittedly they did not disclose the same to their other children who were admittedly present in the house nor any other witness has been examined on behalf of the prosecution who could tell the court that either PW3 or PW7 disclosed about the said phone call at such an early morning hour of the deceased to him. I can understand that the parents of the deceased may be of old age, although they were not, infirm, sick or otherwise suffering with any physical or economic disability so as not to rush to the matrimonial house of the deceased immediately in order to save her or even I can also understand that they may not be having any other source at the village of the accused whereby the matter could have been pacified at the matrimonial house of the deceased, but I failed to understand as to why they did not give a ring to the police at phone number 100 who could have reached the house of the accused well within the time in order to save her and admittedly the phone call of accused Surender with regard to the death of the deceased received at the parental home, which is also corroborated by the said call details record, was after about one hour of the alleged phone call of the deceased and in such a serious situation, this one hour was never SC No.14/12 Page 68/106 utilized by the parents of the deceased or allegedly by any other relative and no action was taken which further goes to establish that either no such phone call was given by the deceased with regard to the cruelty committed upon her and intention of killing her by the accused or it was some other conversation regarding which the PW3 and PW7 did not think it appropriate to take any action and the said phone call was subsequently inserted in the case so as to prove the cruelty committed upon the deceased "soon before her death" and probably for this reason PW7, the mother of the deceased, who received the call, did not utter a single word before the SDM or the police as to what the deceased told her at that time, as has been deposed before the court for the first time. It is for the same reasons, as discussed by me above, that the said alleged phone call of the deceased and whatever allegedly told by the deceased to PW7 can also not operate as her dying declaration though I shall discuss the said aspect of dying declaration of the deceased further as per other submissions of the Ld. Counsel for the complainant also below.
64. Let me now turn to the version of the defence with regard to the said phone calls. The accused Narender, who appeared as DW2, deposed that he woke up in the morning of 13.07.2008 to milk the buffaloes and he asked the deceased to wake up and to help her in the work but she refused and replied that she would not do any work and that after milking the buffaloes, he went to his shop of sweets SC No.14/12 Page 69/106 situated in the house itself and thereafter he admitted that deceased made a telephone call to her parents but they were disconnecting the phone and she was saying to her mother as to why she was disconnecting the phone and that his mother heard the talks and informed him that the deceased was making phone calls to her parents saying them to come to her matrimonial house and to get her separated and thereafter he went into the room and took the phone from the deceased and came back to his shop. He further deposed that after the deceased committed suicide, his brother Surender informed the parents of the deceased that their daughter had committed suicide and asked them to come to the house of the accused and at the same time, his brother Surender as well as cousin brother Ramesh, both made a call to the police at phone number 100.
65. In his cross examination on behalf of the State, he admitted that the deceased had made a phone call in the early hours of morning of 13.07.2008 to her parents and he further admitted that she called her parents 34 times and that at the time the deceased was making the said calls, he was not present to hear the said calls but he volunteered that his mother had heard the said conversation and informed him and his mother was around 4/5 feet away from the room where deceased was talking to her parents on mobile phone.
66. The said deposition of DW2 finds corroboration from the said call details Ex.PW11/D wherein a phone call was made from the SC No.14/12 Page 70/106 said mobile phone also used by the deceased at about 6:52:23 hours at the mobile phone of the parents of the deceased which lasted for 51 seconds and which go to establish the version that accused Surender informed regarding the death of the deceased to the parents of the deceased and it has also been admitted by PW3 and PW7. Secondly, if it is the case of PW7 that she heard the voices of the accused at the mobile phone call given by the deceased at the relevant time, then the presence of the mother of the accused Narender and other accused at the relevant time cannot be ruled out so as to hear as to what the deceased was talking on mobile phone to her parents. Thus, the alleged story of the prosecution that the deceased made a phone call in the early hours of the morning of 13.07.2008 for the reason that she was being beaten on account of demand of dowry and the accused were bent upon killing her, falls on the ground and in view of the said six calls made just with a little gap of time, one after the other, gives rise to the inference that the said talks on said mobile phones were with regard to some other matter and if two interpretations are possible of a given fact, evidence or circumstance, the one favourable to the accused must be adopted, is the law laid down by the Hon'ble Superior Courts in plethora of judgments.
67. Coming to the aspect of injuries found on the dead body of the deceased as per autopsy report Ex.PW17/A. The four abrasions mentioned in the autopsy report were found on right wrist of the size SC No.14/12 Page 71/106 of 3 x 2 cm, on right side of face 1 x 1 cm, swelling over upper lip and abrasion over left glutial region of size 3 x 1 cm. Considering the decency and modesty of the female body, there was no hindrance to observe the said four abrasions as the same were allegedly and admittedly on the uncovered part of the body of the deceased who was a female. These injuries were not noticed earlier by many witnesses and noticed by some of the witnesses. PW8, the concerned Executive Magistrate, who observed the dead body and also prepared the death report regarding unnatural death on the prescribed form No.25.35(1)(B) Ex.PW8/A where in column no.10, it is mentioned that on both the sides of chin there were signs of invisible/internal injury which means he certainly did not observe the said four abrasions on the said exposed parts of the said dead body. PW2 Ct. Jogender, who reached at the spot first along with the initial IO, also did not notice any such injury and that is why he has deposed that a dead body of a female namely Sweety was lying on a cot and one chunni was also lying by the side of dead body, but he did not mention about any injury on the dead body. PW3 Ram Kishan, the father of the deceased, deposed that some injury marks on her hand and beating marks on her body were found and police was already present when they reached there at the spot but in his earlier cross examination dated 22.05.2010, he answered that he could not say if he had got recorded in his statement before the SDM that deceased was having injuries on her person because at that time SC No.14/12 Page 72/106 he was not in his senses and he denied the suggestion that as there was no mark of injury suffered by the deceased, that was why he had not mentioned the same in his statement before the SDM. PW7, the mother of the deceased, did not notice any injury on the dead body nor was deposed by her in her examination in chief. PW12 SI Satpal of the crime team also noticed two black spots under the chin of the deceased and abrasions on the right hand of the deceased at the time of inspection of the spot. PW15 ASI Satyaveer Singh, who was the initial IO and reached the spot first, has answered in his cross examination that no apparent injury was found on the body of the deceased at that time.
68. To appreciate the deposition of the autopsy surgeon PW17 and the autopsy report, it is necessary to know about the legal status of an autopsy or postmortem examination report under the law of Evidence. It has been consistently held by many Hon'ble High Courts of India that autopsy report is not a substantive piece of evidence and it can be used only for three purposes i.e. for confrontation, for corroboration or for refreshing the memory of the doctor and it is the deposition of the doctor before the court which is the substantive piece of evidence. The reference can be given of a case titled State of Rajasthan Vs. Mathura Lal reported as 1971 Crl. L.J. 1816 wherein the Hon'ble High Court of Rajasthan has held that where a doctor is available but is not examined, his medical report is inadmissible in evidence because it can be used only to corroborate SC No.14/12 Page 73/106 or contradict his statement or to refresh his memory, but where he is dead, his report is admissible u/s 32(2) of the Evidence Act. Similarly, in the case titled In re Ramaswami reported as AIR 1938 Madras 336, the Hon'ble High Court has held that a postmortem certificate is not evidence and that it can be used by the doctor who has given it to refresh his memory when giving evidence and it can also be used as a record of what he observed at the time of postmortem examination or perhaps to contradict whatever he might say in the witness box, but it cannot by itself be substantive evidence. It was further held that where there is a statement in the postmortem certificate to the effect that some quantity of undigested kora food was found in the stomach of the deceased, it is unsafe for the court to act upon an isolated statement of this kind, without the guidance of the opinion of the doctor and to draw an inference that death must have taken place within a very short time of the eating of last meal by the deceased.
69. Judging in the light of the said law laid down with regard to the legal status of the autopsy report, this is admitted case of the autopsy surgeon PW17 that he has not mentioned in the autopsy report Ex.PW17/A that the injuries including ligature mark were either antemortem or postmortem. Even in his examination in chief before the remand of the case, while describing the external injuries, he has not given that these injuries were antemortem in nature and it was for the first time in his cross examination after remand back of SC No.14/12 Page 74/106 the case, that he answered "though I have not mentioned in my PMR Ex.PW17/A about the injuries but they were antemortem". Now the question arises as to why the injuries were not mentioned as antemortem in nature either in the autopsy report or in his deposition in the examination in chief, the answer may be either the injuries were not antemortem or he did not appreciated the symptoms and features of antemortem injuries while appreciating those four abrasions. The doubt is as to how he could refresh his memory from the autopsy report Ex.PW17/A about a fact which is not at all mentioned in the same and probably this is the reason that when he was reminded by way of cross examination, then he answered that injuries were antermotem in nature, but still the said answer in the cross examination is full of doubt on many accounts.
70. In the medical jurisprudence, even the ligature mark is a kind of abrasion and is covered under the word "pressure abrasion" and ligature mark in hanging and strangulation and teeth bite marks are examples of "pressure abrasions". The reference can be of Part III, Chapter XXI of Lyon's Medical Jurisprudence and Toxicology, 11th Edition 2005, published by Delhi Law House, 77, Gokhale Market, opposite Tis Hazari Courts, Delhi110054, at page 448. The autopsy surgeon PW17 has mentioned about the ligature mark found on the dead body of the deceased in the present case as an obliquely placed ligature mark present on front and sides of neck anteriorly placed over thyroid cartilage going upward and backwards towards SC No.14/12 Page 75/106 posterior hairline length is 21 cm and breadth about 1½ cm and ligature mark from right ear is 3 cm and from left ear it is 6 cm and from chin it is 4 cm and the skin over ligature mark is hard and parchmentised and that on dissection of neck, tissue underneath the ligature mark is pale and glistering. I can understand that the dissection conducted of the ligature mark and features noted may be sufficient to refresh the memory of the doctor to say that it was antemortem or postmortem in nature, howsoever he might not have written the words "antemortem" in his autopsy report, but there is no such feature noted by the autopsy surgeon about the said other four abrasions so as to say that the same were antemortem in nature.
71. Almost all the celebrated authors on medical jurisprudence have given fine distinctions between an antemortem injury and postmortem injury so that even a layman can understand the difference between the same. For example, in Lyon's Medical Jurisprudence and Toxicology, 11th Edition 2005, published by Delhi Law House, 77, Gokhale Market, opposite Tis Hazari Courts, Delhi 110054, in part IV, Chapter LIV, at page 839, described the definition and types of abrasions and at page 840 continuing on page 841 has enumerated the differences between antemortem and postmortem abrasions, as under:
"Ante mortem abrasions Postmortem abrasions
1. Located anywhere on the 1. Located usually on bony
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body prominences
2. Exudation of lymph and 2. Absent
blood present
3. Appearancereddish brown 3. Yellowish and translucent
with blurred margins with welldefined margins.
4. Presence of vital reactions 4. No vital reactions.
on histology."
72. The said differences between the two types of abrasions were repeated by the said author in part III, Chapter XXXI at page 449 and at page 448 of the said Chapter, the author has described the changes in the appearance of abrasions with the lapse of time as under:
"Age of an abrasion : In the living, the age of an abrasion can be assessed from its appearance. In relation to the time duration between injury and examination the following change in appearance occurs : * Fresh bright red * 12 to 24 hours formation of bright red scab * 2 to 3 days scab turns reddish brown * 4 to 5 days scab is dark brown.
* after 7 days scab blackish in colour, dries & falls off."SC No.14/12 Page 77/106
73. From the point of view of the said medical jurisprudence and the difference between antermortem and postmortem abrasions, neither in the autopsy report Ex.PW17/A nor in the deposition of the autopsy surgeon any such features were noted with regard to said four abrasions so as to say that these were antermortem in nature nor the abrasions were dissected in order to note the said features nor the appearance and changes with the lapse of time between the abrasion received and observed by the doctor at the time of postmortem examination were recorded or noted and thus, there was no material with the autopsy surgeon to answer in cross examination that the said four abrasions were antemortem in nature for the reasons which he would have deposed, if available with him. Thus, answering for the first time in the cross examination that the said four abrasions were antemortem in nature carries no value as the same were not based upon any material available with the doctor as an expert witness.
74. Next question arises as to whether such kind of abrasions can otherwise be caused or at all could be caused in cases of suicide and homicide, has been answered from one aspect by PW17 himself while he was taking the said abrasions as antemortem in nature by answering in his cross examination that such injuries mentioned in the PMR Ex.PW17/A are possible by fall during making efforts for hanging herself. But still, if these injuries were not antemortem in nature, as discussed by me above, such abrasions are possible due to SC No.14/12 Page 78/106 otherwise circumstances and again in Chapter XXXIII of part III of the same treatise of Lyon's Medical Jurisprudence, while discussing the medico legal aspects of injuries, the author has described medico legal aspects of abrasions as follows:
"Medicolegal aspects of abrasions : Extensive abrasions are usually suggestive of an accident. Abrasions are generally simple injuries. They may be the only external sign of a serious internal injury. From patterned or imprint abrasion the type of weapon can be assessed. From linear or graze abrasion, the direction of application of force and the relative position of the victim and assailant can be assessed. Abrasions at times give indication about the type of offence committed. Abrasion on the private parts, thighs and breast of a woman may be indicative of sexual assault. Nail marks on the neck in a dead body may be indicative of manual strangulation and scratches around the mouth and nose may be indicative of smothering.
From various stages of healing of abrasion, approximate time of assault can be assessed. Abrasions can be produced on the body at the time of shifting the body to the mortuary, which can be mistaken as ante mortem abrasions. Ants and cockroaches can produce small excoriation on the dead body, which can be mistaken as abrasions. Extensive antemortem abrasions on a body are always suggestive of accidental death, especially of death due to traffic accident. Abrasions are not usually found on the bodies of suicides or on those of the murdered, unless perhaps the corpse has been dragged along the ground after death."
75. From the above passage of the Medical Jurisprudence, it is clear that abrasions are generally missing on the bodies in the cases of suicide or in cases of murder, unless the dead body has been SC No.14/12 Page 79/106 dragged and such kind of abrasions could appear even during the shifting of the dead body or handling of the same after death and even then, they may look like antemortem in nature, but in fact, it is not so and the autopsy surgeon should be careful enough to note down the nature of abrasion so as to determine as to whether the same were antemortem abrasions.
76. The casual manner in which the autopsy in the present case has been carried out and the report Ex.PW17/A is prepared, can be demonstrated by another example also. PW17 has opined that time since death was approximately 9 hours and the autopsy was admittedly conducted by him on 14.07.2008 at about 1 p.m. As per answer in his cross examination given by the doctor, after remand of the case, that the time since death may vary from 4 to 6 hours. If I add the extreme duration of time in the said opinion i.e. of six hours in the said nine hours, the opinion of the doctor is that deceased died 15 hours before the said time of postmortem examination conducted at 1 p.m. on 14.07.2008. From this point of view, the deceased died at about 9 p.m on 13.07.2008 whereas, as per ocular version of the witnesses and as per admitted case of the prosecution that deceased died at least before 6.52 a.m on 13.07.2008 when, as per mobile phone call details record Ex.PW11/D, accused Surender informed regarding the death of the deceased to PW3 and PW7, the parents of the deceased at that time. Thus, by no stretch of imagination the said opinion of the doctor with regard to time since death can be SC No.14/12 Page 80/106 relied upon. From the said discussion, the only inference is that the prosecution has miserably failed to establish the said four abrasions caused by the accused on the person of the deceased as cruelty and harassment on account of dowry committed with the deceased "soon before her death" and this also goes to create a dent with regard to the alleged dying declaration made by the deceased because it cannot be said that these were the accused who caused injuries to the deceased and as such, there was no reason for the deceased to disclose to her parents that accused were beating her and were bent upon killing her, as per version of PW3 and PW7, the parents of the deceased. The contention that the PMR was not challenged earlier holds not much water because the accused has a right to challenge the same at any forum and this trial is undoubtedly one such forum and more appropriate one, because the accused had the opportunity to cross examine the autopsy surgeon only in the trial.
77. Although I have already discussed about some aspects of the contention with regard to dying declaration made by the deceased, but still I discuss the other part of the submission of the Ld. Counsel for the complainant that the said demands of buffaloes, motorcycle, the forced leaving of the deceased at her parental home during her second pregnancy, routine beatings given to her coupled with the beatings given to her soon before her death and informing the same to the PW3 and PW7 on mobile phone, all go to operate as dying declaration of the deceased and the Ld. Counsel for the complainant, SC No.14/12 Page 81/106 in this respect, has relied upon the said judgment of the Hon'ble Suprme Court in the case of Kans Raj (supra).
78. Let me enumerate the facts before the Hon'ble Supreme Court in the case of Kans Raj (supra) dealt by it. In that case, the deceased was married to R2 on 09.07.1985 and on 23.10.1988, when her brother PW5 had visited her in laws house to deliver some customary presents to her on the occasion of Karwachauth, he found her dead body lying in the entrance room and the respondents were making preparations for her cremation and that noticing ligature marks on the neck of the deceased, PW5 telephonically informed his parents about the death and himself went to PS to lodge a report and that on the basis of the statement of PW5, a case u/s 306 IPC was registered against the respondents and on postmortem, it was found that deceased had injuries on her person including a ligature mark and after investigation the charge sheet was filed against the husband, mother in law, brother in law and sister in law of the deceased. In the said case, PW5 deposed that R2 had raised a demand of Rs.15,000/ for a scooter and a refrigerator immediately after the marriage which was fulfilled by giving him a sum of Rs.20,000/ and that his demand of colour T.V was also fulfilled and that the continuous harassment connected with the demand of dowry was shown to be in existence till 21.09.1988, when the deceased was reported to have come to her brother's house and met her parents and thereafter she was not shown to have met anyone and no intervening SC No.14/12 Page 82/106 circumstances showing the resolution or settlement regarding demands of dowry were brought on record and that the father of the deceased PW6 deposed that his daughter had told him that accused wanted her to bring further cash amount and that the deceased on persistent demands of the accused has withdrawn the total sum of Rs.26,000/ from the account which was opened by the father in her name and that he was also given a new colour T.V in lieu of the T.V. set given to him at the time of marriage as the same had allegedly gone out of order and that PW6 also deposed that the deceased had told him that she was being taunted by her mother in law, brother in law and sister in law besides her husband but details of the alleged taunts had not been spelt out and that the only thing stated was that the accused used to tell the deceased that she being the daughter of a BJP leader, who used to boast about is financial position, had brought inadequate dowry.
79. The Trial Court convicted the accused u/s 304B, 306 & 498A IPC and on appeal and revision, the Hon'ble High Court acquitted the accused and the matter went up to the Hon'ble Supreme Court in this background. The Hon'ble Supreme Court held that Section 32 of the Evidence Act does not speak of homicide alone but includes suicide also and hence, all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. It was further held that to make such statement as substantive evidence, the person or the agency relying upon it is SC No.14/12 Page 83/106 under a legal obligation to prove the making of such statement as a fact and if it is in writing, the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement and it was in this background that Hon'ble Supreme Court further held that statement of the deceased made to her parents, brother and other acquaintances, before her death are admissible in evidence u/s 32 of the Evidence Act and the distance of time alone in such cases would not make the statement irrelevant. Admittedly in the said case this was so held because there were no contradictions in the statements of PW5 and PW6 and the prosecution had proved the persistent demand of dowry and continuous cruelty and harassment of the deceased by her husband and it was held by the Hon'ble Apex Court that the Hon'ble High Court appears to have adopted a casual approach in dealing with a specified heinous crime considered to be a social crime and relying upon minor discrepancies and some omissions, the court has wrongly acquitted the accused husband and the charges were held as proved against the accused beyond reasonable doubt.
80. I have already discussed in greater details with regard to alleged demand of buffaloes, motorcycle, the forced leaving of the deceased at her parental home at the time of her second pregnancy and other assertions of cruelty above and even the incident dated 13.07.2008, which has been relied by the prosecution for the dying SC No.14/12 Page 84/106 declaration on the mobile phone, has already been held by me as not proved at all what to talk of proof of the same beyond reasonable doubt. Thus, the said case of Kans Raj (supra) decided by the Hon'ble Apex Court does not come to the help of the complainant in establishing even the fact that a dying declaration was made by the deceased at all. Further distinction between the said case before the Hon'ble Supreme Court and the present case is that in the case of Kans Raj (supra) all the demands and resulting cruelty were told to PWs by the deceased herself and the said demands were not directly made to the father and brother of the deceased, but the demands were communicated to the said relatives through the deceased, but in the present case, the motorcycle was directly demanded from PW3, the father of the deceased, and he narrated the other circumstances also as if he was the direct witness of those circumstances with regard to demand and cruelty. However, the demand of the buffaloes was communicated through the deceased to her mother PW7, as per deposition of PW3. Similarly, PW7, except for the said demand of buffaloes, deposed that the accused Narender demanded motorcycle from her daughter on which her husband (PW3) gave Rs.50,000/ to him after managing this amount from here and there and if it was so, then this fact was in sharp contradiction with the deposition of PW3, who never deposed that demand of motorcycle by accused Narender was communicated to him through her daughter or it was so told to him by the PW7. Hence, it cannot be SC No.14/12 Page 85/106 said that the alleged dying declaration has been established at all either on 13.07.2008 or by the prior incidents of demand of dowry and resulting cruelty. Thus, I find no force in the said contention raised on behalf of the Ld. Counsel for the complainant.
81. The Ld. Defence Counsel has vehemently argued that it was a case of delayed FIR and everything was well planned in advance and thereafter the matter was reported to the Executive Magistrate and the police by way of the statements of PW3 and PW7. He pointed out that in the cross examination of the father of the deceased PW3, after remand of the case, the witness has replied that distance between his residence and the house of his daughter's in law at Nizampur was around 20 kilometers and he did not recollect at what time he left house for Nizampur along with his family members and relatives who were 20 or 25 in number after receiving the phone of Surender at 7 a.m. PW3 replied that they reached at Nizampur at about 9.30 a.m. in a tempo and police was present and house was found open when they reached there. PW3 further replied that after receiving phone call of accused Surender at about 7 a.m, he called the police at phone number 100 which was sent to PS Kanjhawala but neither the police nor the SDM recorded his statement on that day i.e. 13.07.2008, at the spot. He further answered that SDM was present at the spot and he requested the SDM to take action against the accused persons but he himself did not introduce to the SDM that he was the father of the deceased and he volunteered that neither SC No.14/12 Page 86/106 the SDM asked nor he told. He further replied that they remained at the spot for about 1½ or 2 hours and police had removed the dead body in his presence and on 13.07.2008 he did not file any complaint before any senior police official or any other authority complaining that SDM or police officials are not taking any action in this regard and he volunteered that it was not done since postmortem report was awaited. He further answered that on the following day i.e. on 14.07.2008, he reached the hospital at about 9 a.m where SDM met him and he recorded his statement before 1 p.m. and dead body of his daughter was handed over to him at about 4.30 p.m.
82. Ld. Defence Counsel further pointed out that in this regard the SDM, PW8 has another story to tell who answered in his cross examination that he did not remember if the parents of the deceased were present at the spot at about 9 a.m on 13.07.2008 when he had reached the said spot. The SDM further answered that he did not make any inquiry about the parents of the deceased at the said spot on the said day so as to record their statements and he did not ask any person to get his statement recorded and as such, no question arose of refusal to record the statement of any person on the said day. He further answered that he did not call the parents of the deceased on 13.07.2008 so as to record their statements nor he tried to contact them personally and he volunteered that he directed the police to search for the parents of the deceased and call them. He further answered that he first met the parents of the deceased in the SC No.14/12 Page 87/106 said hospital when he had gone there for recording inquest proceedings on 14.07.2008 and he made inquiries from the parents and thereafter he recorded their statements. He specifically answered that statements of parents of the deceased were recorded first and thereafter request for conducting postmortem examination was made vide Ex.PW8/B and the postmortem was continuing when he left the hospital.
83. Ld. Defence Counsel has contended that case of the PW3 is that he was begging for taking the action against the accused not only before the police but before the SDM, PW8 also on 13.07.2008 itself but PW8 altogether denied the presence of the parents of the deceased at that time and on the said date and if the explanation of PW3 is that his statement was not recorded on 13.07.2008 because the PMR was awaited, then why the statement of the parents of the deceased were recorded on 14.07.2008 admittedly before the postmortem examination. It has been contended by the ld. Defence Counsel, and in my considered opinion rightly so, that the said time right from 13.07.2008 at about 9.30 a.m. till recording of his statement on 14.07.2008 was being utilized for manipulating the facts of the present case. Even the FIR registered on 14.07.2008 reached the concerned Magistrate on 16.07.2008 at 10 a.m. No explanation is coming forth regarding this delay also.
84. Ld. Defence Counsel has further taken me through the SC No.14/12 Page 88/106 deposition of PW7, the mother of the deceased, in this regard who replied in her cross examination, after the remand of the case, that they reached the house of her daughter's in law at Nizampur at about 8 a.m on 13.07.2008 and there were two officials, one was in police uniform and the other was without any such uniform and the person in uniform remained outside and her statement was recorded by the person who was not in the said uniform and her statement was recorded on the said date before noon and she did not recollect as to whether her statement was recorded at the place where the dead body of her daughter was lying or somewhere else. She replied that she had thumb marked her said statement. She further replied that her statement was also recorded in the hospital and her statement was also recorded by the police officials at the PS on the third day of death of her daughter. The Ld. Defence Counsel has raised a question as to where the said statement recorded of PW7 on 13.07.2008 has gone as the same is neither the part of the charge sheet nor supplied to the accused. In answer to the said question, the Ld. Counsel for the complainant has again pointed out that the PW7 is a rustic villager having no idea of dates.
85. This is the second time that the Ld. Counsel for the complainant has raised the plea of PW3 and PW7 being rustic villagers, not having full sense and implications towards the dates and procedures of investigation. To my mind, whatever is not suitable to the Ld. Counsel for the complainant or the prosecution SC No.14/12 Page 89/106 has been tried to be covered under the argument that the said two PWs were rustic villagers having little knowledge about the things. I can understand that a common man or a poor villager has no control over the investigating agency and such rustic villagers may not be knowing the technicalities of earliest recording of their complaint or date and time of the same, but PW15 ASI Satyaveer Singh, who is not supposed to be a rustic villager and was the initial IO, who reached the spot first on 13.07.2008 and informed the SHO regarding the facts from the spot, as per his own answers given in the cross examination on behalf of the accused, after remand of the case, and who answered that the SHO was present at the spot and after about 30 or 40 minutes of the arrival of the SHO, the SDM came to the spot in his presence and SDM has recorded the statements of parents of the deceased Sweety at the spot and he had also inquired from the villagers on 13.07.2008. I have already discussed the version of the SDM PW8, who even denied the presence of the parents at the spot on 13.07.2008 and directed the police to search for them, what to talk of recording of statements of the parents of the deceased by him on 13.07.2008 itself. These things go to establish that something was being cooked up against the accused in between 13.07.2008 and till the time their statements were recorded by the SDM before the autopsy of the deceased in the hospital.
86. The Ld. Defence Counsel further pointed out as why this SC No.14/12 Page 90/106 delay occurred and in reply to the same, he answered that initially the parents of the deceased were not suspecting any foul play in the matter and they were not even ready to come to the house of the accused when the deceased was making calls to her mother in the early morning to facilitate her separation from the matrimonial home, but since there were so many persons from the parental side of the deceased on 13.07.2008 who remained with the parents of the deceased till the cremation took place and the same was admittedly carried out by the accused at their village and at the instigation of the said relatives, the parents of the deceased started demanding to take the children of the deceased along with them, otherwise if the accused wanted to keep the children with them, either the accused should pay a sum of Rs.5 lacs for each children to the parents of the deceased or the accused should give one bigha of land for each children and hand over the documents of the land to the parents of the deceased after transferring the same in the name of the children, to which the accused refused but assured that the children could be secured as per their wish but the documents should be kept by the accused, on which the parents of the deceased got furious and thereafter this false case was registered against them. Ld. Defence Counsel has substantiated his argument by the deposition of accused Narender as DW2. On the other hand, Ld. Counsel for the complainant contended that the accused are shifting their defence and initially said demand on behalf of the parents of the deceased SC No.14/12 Page 91/106 qua the children was not put to the witnesses but it was devised as an afterthought and put to the witnesses after remand back of the case.
87. The said contention of the Ld. Counsel for the complainant that accused were taking shifting stands qua their defence, is devoid of any merit because when accused Narender disclosed that on the day of incident he was asking the deceased to serve fodder to the buffaloes to which she refused and she was adamant on her demand of separation from matrimonial home, accused was giving his version of the circumstances due to which the deceased committed suicide and when the accused was putting his defence with regard to said demand of the parents of the deceased qua the children after the death of the deceased, was the reason given by him as the cause of registration of the present case. I find no shifting stand in the defence of the accused which was consistent throughout. Even otherwise, under the law, the accused has got a right to remain silent which is his basic defence recognized by the law for the simple reason that it is for the prosecution to prove the case beyond reasonable doubt and if the prosecution fails, there is no need for the accused even to speak, much less to lead his defence. The accused is also entitled under the law even to take contradictory stands in his defence so long as the same are not killing each other. For example, against a charge of criminal trespass, the accused may take defence that he entered the property of the other person either as a licensee or as a tenant, but once he has taken the said different defences, he SC No.14/12 Page 92/106 cannot be heard saying subsequently that he has become the owner of the property by way of adverse possession because once a licensee or a tenant, always a licensee or tenant and any plea of the ownership of the property is killing the defence of the accused being either a licensee or a tenant. Thus, there is no inconsistency or shifting of stands in their defence by the accused found by me as proved on record.
88. Ld. Counsel for the complainant has further pointed out that the accused Narender was taking the stand that deceased was adamant to be separate from the joint family of the accused as his brother, accused Surender, had already separated from the bond of joint family, but accused Surender admittedly is residing within the same premises and as such, the stand of the accused qua the cause of suicide of the deceased is patently false.
89. The said contention of the Ld. Counsel for the complainant ignores not only the legal aspect but factual aspect as well in this regard. Some members of a joint family residing at London and others of the same joint family residing at Tokyo may still be holding the bond of joint family, but on the other hand, members of one joint family residing under the same roof may not be having such a bond of joint family and it is a general practice in Indian village background that the premises as a fort is kept intact of the joint family and it is advised that members of the joint family may SC No.14/12 Page 93/106 had their separate kitchen, thoughts and financial arrangements etc and in the later sense, it cannot be said that no separation in the joint family had taken place. Hence, the said contention is not tenable under the law or as per facts proved on the record.
90. Even otherwise, if the defence or any contention or plea of the accused is weak, it is no excuse for the prosecution not to prove its case beyond reasonable doubt and the prosecution cannot be allowed to take the benefit of the weakness of the defence of the accused. The reference can be given of a case of the Hon'ble Supreme court titled S.D. Soni Vs. State of Gujarat reported as 1991 Crl. L.J. 330 wherein it was held by the Hon'ble Supreme Court in the case of a murder of a wife in the similar circumstances of the present case, that in a case of murder, the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence and that it is not a law where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
91. From the said discussion, I found no occasion to raise the said presumption under the law and shift the burden on the accused to disprove the same, qua the offence u/s 304B IPC nor I found any of the ingredients fulfilled towards the offence u/s 304B IPC to hold the accused guilty of the said offence.
92. Coming to the offence u/s 498A IPC, the Hon'ble Supreme SC No.14/12 Page 94/106 Court in the said case of Kaliaperumal (supra) has described the respective scopes of Section 304B and 498A IPC in the following words:
"Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The Explanationto Section 498A gives the meaning of 'cruelty'. In Section 304B there is no such explanation about the meaning of 'cruelty'. But having regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498A under which 'cruelty' by itself amounts to an offence. Under Section 304B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498A. A person charged and acquitted under Section 304B can be convicted under Section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder V. The State of Andhra Pradesh (AIR 1991 SC 1142). Section 498A, IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."SC No.14/12 Page 95/106
93. Judging in the light of said law laid down by the Hon'ble Supreme Court and in view of my said discussion, no incident of cruelty after the marriage of the deceased has been established at all, what to talk of proving the same beyond reasonable doubt. I have already quoted Hon'ble Supreme Court holding that mere bald assertions and allegations not corroborated at all cannot be the basis of forming an opinion that the cruelty has been committed upon the wife by her in laws. Thus, I am of the considered opinion that even the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt u/s 498A IPC also.
94. Coming to the offence u/s 306 IPC, regarding which an additional/alternative charge has been framed, the Hon'ble High Court, while dealing with the said appeal wherein the case was remanded back, has referred to the judgments titled K. Prema S. Rao and another Vs. Yadla Sriniwasa Rao and others reported as 2003 (1) SCC 217 and said case of Kaliaperumal (supra). In Kaliaperumal's case (supra), in para 10 and 11, after reproducing Section 306 IPC, the Hon'ble Supreme Court held that it may be noted that though no charge was framed u/s 306 IPC that is inconsequential in view of what has been stated by a three Judge Bench of this court in K. Prema S. Rao's case (supra). Thus, in Kaliaperumal's case (supra) also, what was held in K. Prema S. Rao's case (supra) was reiterated only and the premises of law laid down in the said two cases is not disputed that even if a charge SC No.14/12 Page 96/106 might not have been framed u/s 306 IPC, still the court is not powerless to punish the accused for the said offence if the case is otherwise proved beyond reasonable doubt against them.
95. This takes me to discuss the facts of the case before the Hon'ble Apex Court in K. Prema S. Rao's case (supra) wherein, after 3 or 4 months of the marriage, husband of the deceased started demanding from the deceased execution of a deed in his favour of the land and house site gifted to her and that the refusal on the part of the deceased to meet the demand was the cause of her continuous harassment and that taking advantage of his position as the Post Master in the village, the husband never delivered mail sent to the deceased by the father and her sister Nagamani and that her younger sister, after passing Xth class examination had to appear for Polytechnic Entrance Test and that as a part of harassment of the deceased, accused no.1 did not deliver the entrance card received from Kakatiya University addressed to the younger sister of the deceased, which resulted in the former loosing the admission to the test and that the deceased somehow was able to lay her hand on the letters addressed to her and which had been concealed by the accused husband and that on finding those letters, she handed over the same to her father and that this incident led to extreme point of harassment and the husband and his parents drove the deceased out from their house with stern warning to her to restore those letters and this incident was of cruelty was so grave and unbearable that she SC No.14/12 Page 97/106 committed suicide by consuming a poisonous insecticide Endosulphan on 22.10.1989 and PW4 witnessed the incident of the deceased having been driven out of the house the previous day and also saw the husband taking the deceased to the hospital and the PW4 informed about it to the father of the deceased, who rushed to the house of the accused to find the deceased as dead and the father then lodged the FIR.
96. It was in this background that accused were held liable for abetting the suicide u/s 306 IPC r/w section 113A of the Evidence Act, although no charge was framed for the said offence against the accused at the initial stage.
97. A bare reading of the facts of the said case before the Hon'ble Supreme Court and the facts of the present case, go to show that there is no iota of evidence against the accused for having abetted or taking active part with an intention that deceased may commit suicide. The further distinction is that in the case before the Hon'ble Apex Court, the accused were also convicted u/s 498A IPC and those facts were taken into consideration by the Hon'ble Apex Court in finding the guilt of the accused u/s 306 IPC with the help of Section 113A of the Evidence Act and certainly I have already opined that not even a single evidence of cruelty, either after the marriage or soon before her death, could be established by the prosecution in the present case before me, as discussed above. As SC No.14/12 Page 98/106 such, the said case of the Hon'ble Supreme Court does not come to the help of the complainant in any way.
98. Let me now discuss as to how the Section 306 IPC has been interpreted by the Hon'ble Supreme Court and Hon'ble High Courts in other cases so as to appreciate the contention of the Ld. Counsel for the complainant.
99. Giving the history of the provision of Section 306 IPC and quashing the FIR against the accused upon the facts that the deceased Kalyani felt humiliated and committed suicide because her marriage with accused no.1 was cancelled after its settlement so accused no.1 and his father, the accused no.2, and paternal uncle, accused no.3, who was the petitioner are liable for punishment u/s 306 IPC for the suicide of the deceased, Hon'ble High Court of Andhra Pradesh, in case titled V. Shankaraiah Vs. State of A.P. Through Public Prosecutor, High Court Hyderabad reported as 2002 Crl. L.J. 3201, held in para 6 and 7 as follows:
"6. It should be noted that 'Suicide' is not an offence, obviously because the person that committed suicide is not available to undergo the trial and punishment, offences under Sections 306 and 309 IPC respectively. From a reading of the old case law under Section 306 IPC, it can be seen that Section 306 was intended to cover cases of people instigating a Hindu Widow to commit 'Sati' i.e., wife burning herself in the funeral pyre of her husband, which was prevalent at that time. When suicides by married women, due to harassment by their husbands and in laws increased in an alarming proportion in the Country, obviously finding that the SC No.14/12 Page 99/106 provisions in the IPC is not covering such suicides, the Parliament stepped in 1983 and introduced Section 498A in IPC and Section 113A in the Evidence Act, enabling courts to draw a presumption of abetment to commit suicide by the wife, if the husband and his relatives subjected her to cruelty within 7 years of her marriage. Subsequently, Section 304B IPC and Section 113B of Evidence Act also were introduced. Therefore, now, in the case a married woman commits suicide, within 7 years of her marriage due to harassment by her husband or his relatives, by virtue of Section 113A of Evidence Act only Section 306 would come into operation, but not otherwise.
7. Since there is no averment in the charge sheet, of material on record, to show that petitioner either induced the deceased to commit suicide or aided the suicide of the deceased, he is not liable to be charge sheeted for an offence under Section 306 IPC."
100. The Hon'ble Supreme Court in the case titled Chanchal Kumaria and others Vs. Union Territory of Chandigarh reported as AIR 1986 SC 752, while dealing with the case that accused being husband was demanding money from her parental side relatives to build a house for her and her husband, it was held that this by itself does not at all prove any intention to abet her to commit suicide by any of the accused and Hon'ble Apex Court discussed some other evidence on the record which go to disprove the theory of suicide for the said reason and thereafter went on discussing that evidence of PW2, on which prosecution relied, was that he had visited his sister Usha, the CW1 and saw appellant Chanchal and Draupadi beating the deceased and heard her cries at 9.30 p.m, but PW2 did not give this information to police or anybody and spoke regarding this SC No.14/12 Page 100/106 incident for the first time only 1½ months after the occurrence and in these circumstances, it was held that the court has a serious doubt about the truth of his statement and any suspicion, however strong, cannot take the place of proof and the appellants were acquitted of the charge u/s 306 IPC.
101. Hon'ble Gujarat High Court, in the case titled State of Gujarat Vs. Sunil Kumar Kanaiyalal Jani reported as 1997 Crl. L.J. 2014, while dealing with the charge of abetment against the accused upon the wife committing suicide found that married life of husband and wife was quarrelsome leading to dejection and mortification of wife and there was evidence of witnesses, neighbours not trustworthy and not corroborative and it was held that mere quarreling with wife will not amount to abetment and acquittal of the husband was held proper.
102. Hon'ble High Court of Delhi, while quashing the charge framed against the accused u/s 306 IPC, in the case titled Hira Lal Jain Vs. State reported as 87 (2000) DLT 265, while dealing with a suicide note of an employee against his employer mentioning therein that his employer had got him involved in a false case and forcibly got a note executed for misappropriation by the deceased of around Rs.37,621/ and had threatened the deceased to get his family killed, held that from the contents of the suicide note, it certainly cannot be said that petitioner had goaded, provoked, incited, urged or SC No.14/12 Page 101/106 encouraged deceased to commit suicide and there was no material on record to show that ingredients of the offence of abetment satisfied.
103. Again, the Hon'ble Supreme Court, in the case titled Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh reported as 2002 Crl. L.J. 2796, was dealing with a case of matrimonial discord between the husband and the wife and there was a quarrel between the accused husband and the deceased and accused telling the deceased "to go and die" and the Hon'ble Apex Court held that itself would not constitute ingredient of "instigation" and that presence of mensrea is necessary commitment of the instigation and the fact that deceased committed suicide after two days of quarrel, during which said words were uttered by the accused, would go to show that suicide was not the direct result of quarrel and in the said circumstances, charge framed u/s 306 IPC against the accused was quashed.
104. Yet in another judgment, titled Gangula Mohan Reddy Vs. State of Andhra Pradesh reported as 1 (2010) Supreme Laws Today page 1, it was held by the Hon'ble Supreme Court in para 20 and 21 of the judgment that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and that without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be SC No.14/12 Page 102/106 sustained and that intention of the legislature and the ratio of the cases decided by this court (The Hon'ble Supreme Court) is clear that in order to convict a person u/s 306 IPC, there has to be a clear mensrea to commit the offence and it also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.
105. While dealing with the case u/s 304B IPC, and on the question as to whether Section 306 and 107 IPC are also attracted or not, the Hon'ble Apex Court in the case titled Bhagwan Dass Vs. Kartar Singh and others reported as (2008) 1 SCC (Cri.) 664, again held that mere harassment of wife by her husband or in laws, due to disputes of differences, without anything more, pursuant to which a wife commit suicide, it will not attract section 306 r/w section 107 IPC but if the suicide was due to demand of dowry soon before her death, then section 304B IPC may be attracted, whether it is a case of homicide or suicide and it was held and the words used by the Hon'ble Apex Court are "it is, however, made clear that the court is not approving or justifying harassment of wives by their husbands or in laws, but is only clarifying the law in the peculiar facts of this case as it stands today".
106. A fine and remarkable distinction was drawn by the Hon'ble Madhya Pradesh High Court in the case titled Alka Grewal Vs. State SC No.14/12 Page 103/106 of M.P. reported as 2000 Crl. L.J. 672, wherein the petitioner was charge sheeted for offence u/s 306 IPC and her husband Rakesh Grewal committed suicide on 01.02.1996 by hanging himself in his own house and that he was married to the petitioner on 26.07.1992 and that they lived together till 23.03.1993 and then separated and the husband filed divorce suit against her on the ground of unchastity as she developed illicit relationship with one Dhanraj Chaudhary, Advocate and that the said suit was pending still when he committed suicide and that the suicide note written by the deceased was found in the house on 03.04.1996 wherein he has stated in what circumstances he committed suicide and the narration is that this lady was behaving in immoral manner having sexual connections with Dhanraj and on objection by the husband, her mother was creating a scene and declaring that this was the free will of the girl and he was nobody to object and that all this had pained him and in order to avoid all these unfortunate circumstances, he ended his life.
107. In the said facts, Hon'ble High Court of Madhya Pradesh held that there is no other material on record against the petitioner except the suicide note of the husband and the letter written by him to his own sister earlier and that they are totally insufficient material to infer that the wife abetted suicide and that "she may be cause for the suicide, but not the abettor" and that so although this wife on the basis of dying declaration deserves no sympathy of either the court SC No.14/12 Page 104/106 or the society, but it cannot be said that she abetted suicide.
108. The said distinction given by the Hon'ble Madhya Pradesh High Court can well be appreciated in the present case also. If, for the sake of argument, though I have already held otherwise, the demand of motorcycle, buffaloes, pouring kerosene oil on the deceased earlier in order to set her on fire, forcibly leaving her at her matrimonial home at the time of second pregnancy, routinely beating her by the accused on account of demand of dowry and the incident dated 13.07.2008, wherein she uttered on said mobile phone to PW7 that "the accused were beating her for demand of dowry and they would definitely kill her on the said day", are taken as true, the offence may have resulted in conviction u/s 304B IPC if the death was not homicidal and if the death would have been homicidal, the offence would have resulted u/s 302 IPC, but certainly not u/s 306 IPC. By giving beatings the deceased was apprehending her death at the hands of the accused and even if it is so, by no stretch of imagination it can be said that accused were having intention to instigate or to provoke or to incite her to commit suicide, as has been held in the said cases by the Hon'ble Supreme Court, as discussed above.
109. If the defence of the accused, which I have accepted to a considerable extent as being probable in the circumstances of the case, is taken as true, then the deceased was frustrated due to non SC No.14/12 Page 105/106 fulfillment of her demand of a separate house and she was not liking the forceful doing of the household works, such as, serving fodder to the cattle, the accused husband and her in laws may be the cause for her said frustration, but certainly they were not the abettors by their said refusal to fulfill the said demand of the deceased, for the suicide committed by the deceased.
110. In view of the said law laid down by the said Hon'ble Superior Courts and in view of my said discussion, I am not inclined to raise any presumption against the accused u/s 113A of the Evidence Act also or to accept the contention of the Ld. Counsel for the complainant that an offence u/s 306 IPC is made out against the accused in the present case.
111. Hence, all the accused are acquitted of the charges u/s 304B/498A/34 and also of the additional/alternative charge u/s 306 IPC. Their PBs and SBs are hereby discharged. The file be consigned to the Record Room.
(Announced in the open court on 24.08.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.14/12 Page 106/106