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Delhi District Court

State vs . Pawan Dass S/O Sh. Prem Lal Dass on 7 July, 2011

      IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
       JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Session Case No. 945/08
Unique Case ID No.: 02404R0445122008
State                Vs.     Pawan Dass S/o Sh. Prem Lal Dass
                             R/o 6311/124, Street Surrey
                             B.C. Canada
                             Also at:
                             5/1, 2nd Floor,  Indira Vikas Colony,
                             Near Nirankari Colony,
                             Delhi ­ 110009
                             (Convicted)

FIR No.:                                        152/04
Police Station:                                 Mukherji Nagar
Under Sections:                                 498A/306 Indian Penal Code

Date of Committal to sessions court:                            11.1.2010
Date on which orders were reserved:                             16.5.2011
Last date for filing written synopsis:                          3.6.2011
Date of decision:                                               5.7.2011

JUDGMENT:

As per the allegations, on or before 4.4.2004 at House No. 1369, Mukherjee Nagar, Delhi the accused Pawan Dass being the husband of Richa Dass subjected her to cruelty so as to coerce and her relatives to meet your unlawful demands for dowry, as a result of which she committed suicide on 4.4.2004 i.e. within seven years of her marriage.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:

The case of the prosecution is that on 4.4.2004 at about 7:05 PM, SI R.P. Singh received DD No. 19­A pursuant to which he along with Ct. Ram Kishan reached at House No. 1369, Mukherjee Nagar, Delhi where R.K. Saproo met him who disclosed that her daughter had hanged herself at the first floor. The father of the deceased also handed over a suicide note and a diary to SI R.P. Singh. Thereafter information was given to the SHO Police Station Mukherjee Nagar and the concerned SDM. On 5.4.2004 the SDM Sh. Bans Raj reached the spot and recorded the statement of Sh. R.K. Saproo. In his statement to the SDM Sh. R.K. Saproo the father of the deceased Richa informed that his daughter Richa was married to one Pawan Dass a divorcee on 11.12.2003 after Richa converted to Christianity. According to R.K. Saproo, after marriage Pawan Dass and Richa went to Shimla for Honeymoon where some differences arose between them which were settled on the very next day. He further informed the SDM that as per the advice of Pawan Dass they forwarded all the necessary documents of Richa to him about twenty days ago and the last communication was that the immigration documents have been sent for immigration clearance but on 4.4.2004 he and his wife had gone to Rohini for a family get together and when they come back at about 5:30 pm her wife went to the first floor and saw that all the doors were bolted inside on which she St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 2 peeped inside through a key whole when she saw a fallen stool and the feet of Richa. R.K. Saproo also stated to the SDM that thereafter her wife kicked open the door and went inside and rushed to the verandah and asked him to come over immediately and thereafter while he held his daughter, she (his wife) loosened the duppatta from the ceiling fan and they laid her on the bed.

On the basis of the statement of R.K. Saproo the present case was got registered against the accused Pawan Dass who did not return to India from Canada. Inspector Krishan Lal moved an application for opening of LOC (Look Out Circular) on 26.6.2009 and thereafter on 3.8.2009 his LOC was opened by FRRO and an untraced report was filed on 12.9.2009. On 20.9.2009 the accused Pawan Dass arrived at IGI Airport on which an information was sent to Inspector Kirishan Lal by ASI Veena Sharma after which the accused was arrested and charge sheeted.

CHARGE:

Charges under Sections 498­A/306 Indian Penal Code were settled against the accused Pawan Dass to which he pleaded not guilty and claimed trial.

EVIDENCE:

In order to discharge the onus upon it, the prosecution has examined as many as Seventeen Witnesses as under: St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 3 Public witnesses:

PW1 Ramesh Saproo is the father of the deceased who has deposed that accused Pawan was the husband of his deceased daughter Richa and prior to six - seven months of marriage accused Pawan was introduced to him by his daughter when he (Pawan) visited India from Canada. According to the witness, the accused told them that he is a citizen of Canada and his daughter told him that she had seen this boy and wanted to marry him on which he insisted that they should first investigate about the whereabouts of the boy and ensure that he was worth her but his daughter was very confident and insisted that she would only marry Pawan. The witness has further deposed that keeping in view the pressure of her daughter they consented to her request and agreed to go ahead with the marriage proposal and on one occasion during his inquiry from his daughter she told him that the accused was married and had two children in which case he insisted to his daughter that she must first ensure that the accused took a divorce and sent them the necessary documents. He has also testified that at one time his daughter told him that she got a copy of the divorce letter which he never saw and after six months in December 2003 the marriage was performed but before that the accused insisted that Richa should get converted to Christianity. According to PW1, initially it created some misunderstanding in their mind and looked a very odd suggestion but St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 4 they later on relented and agreed to get the marriage performed which was done at Methodic Church at Dhaka, Kingsway Camp, Delhi. He has also deposed that the marriage certificate was applied for and the same was issued by the Church and a after few days the accused stayed at Delhi and his daughter went for their Honeymoon but they returned earlier than expected and when he inquired as he was given a feeling that they had been fighting each other that his daughter told him that Pawan misbehaved with her but however, with passage of few days, they settled their differences amicably. PW1 has further deposed that after about one month, accused Pawan had left Delhi for Canada with promise that he would organize the immigration papers for his daughter immediately. According to the witness, he was told by his daughter that the immigration papers were being organized and had been sent to Otawa for necessary action. Witness has also deposed that from day to day he felt that his daughter was getting upset day by day but was hoping that she would receive the papers and the process would be on for going to Canada. However, on a particular date his daughter wanted to go to Kamla Nagar market for withdrawal of money which he understood Pawan had sent through Money Transfer outlet. He has testified that one day before her death he was told by his wife that Richa was not given that money as it was stopped by Pawan which had really upset her a lot and she was crying whole day. The witness has also deposed that St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 5 when his wife wanted to ask her the reason, she told her about this and his wife also suggested to Richa that she should take money from him for whatever purpose she wanted but she refused to do that because she felt that it was a burden on him after the marriage. The witness has further deposed that one day before her death his wife and two neighbours with their daughters (friends of Richa) went to DDCA Club for dinner and everything looked normal till they returned at 12:30 night and unfortunately something had transpired after that while she was chatting with Pawan on the Computer. He has further deposed that by morning they realized that Richa was very upset and he and his wife had to go for lunch to a relative at Rohini when his daughter insisted to her mother not to go but his wife told her that they needed to go because they were going every month to their relatives house for lunch for a get together. PW1 has also testified that about 4:30 pm to 5 pm he returned back and was talking to his neighbour who owned a telephone booth and suddenly his wife shouted after she went to the first floor and realized that something was wrong as all the doors were closed and she peeped through the key hole to see his daughter's body hanging. According to him, his wife kicked the door and broke the latch and shouted for help after which they both got their daughter down from the ceiling fan and informed the police. He has further deposed that police came and after necessary investigations the dead body was taken by them St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 6 for postmortem next day. The witness has also deposed that his daughter expired on 4.4.2004 and the SDM came there and recorded his statement on 5.4.2004 which is Ex.PW1/A. He has further deposed that at the time when they got the body down they saw a suicide note lying in front of the computer which was handed over to the police which suicide note is Ex.P­1 which was in the handwriting of his daughter and when police desired they gave some more sheets from the personal diary of his daughter for their record. The witness has correctly identified the pages of the diary of his daughter Richa which he handed over to the police which is collectively Ex.P­2 which was objected to by the counsel for the accused as to the mode of proof on the ground that no original loose sheets were available on the judicial record and in the absence of the same the same could not be exhibited were in admissible in evidence. PW1 has also deposed that in fact many times when he was inquiring about the delay in getting the required immigration papers and his daughter confessed from time to time that she was being mislead as on one occasion when he saw her crying on which he asked her the reasons and Richa told him that she wanted to speak to Pawan and insisted ended up talking to Pawan's children who communicated that they were enjoying and had gone out for dinner a day before with Pawan and their mother whereas Richa was categorically told by Pawan that he was not maintaining any relation with his earlier wife and they had St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 7 divorced. According to him, this had terribly upset her because on one hand she thought that she was now the sole wife of Pawan and Pawan would not lie to her. He has testified that postmortem examination on the dead body of his daughter was conducted and they received the dead body vide receipt Ex.PW1/B and the next day before the cremation, the accused Pawan called and he told Pawan that Richa was no more on which the accused cut the phone down and did not come to them thereafter.

On putting leading question to the witness by Ld. Addl. the witness has admitted that his daughter on the asking of himself and his wife told her that she felt that Pawan was not a good man and he used filthy language for her (Richa) on phone and was having illicit relations with many ladies and spent money on them. According to the witness, Richa also told him that she felt that Pawan wanted a servant and lady for use and she felt that he was not interested in taking her to Canada. He has further admitted that his daughter also told him that if Pawan continued to mentally torture her then she would commit suicide and Richa also told him that Pawan had said that he was not bothered if she died and she had narrated all these facts in her suicide note.

The witness was cross examined by the Ld. defence counsel wherein he has deposed that his daughter was a graduate from Delhi University after having done her schooling from J.D. St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 8 Tytler School, Karol Bagh and she had done English Honours from Delhi University. According to him, besides that she had done a three years computer course from Aptech, Kamla Nagar subsequently in the year 2002 and was working in the Excel Call Center in NOIDA which she left three months prior to marriage but he is unable to tell her exactly and states that it was around Rs.10,000/­ per month. He has also deposed that Richa had her own bank account in ICICI Bank but he is not aware of the Branch. He has also deposed that the investigating officer had asked him if he had any admitted handwriting of the deceased on which he handed over a diary to the investigating officer and also states that there was no question of giving the details of the bank etc. since the diary had been handed over to the investigating officer. According to PW1, there were many people who had gathered at the spot but he is unable to tell their numbers and states that his neighbours were also present at the spot. The witness has further deposed that he had gone for lunch to the house of his relative Smt. Kalyani Seru at Rohini but he does not recollect whether he had told the police about this fact of his going to the relatives house. He has been shown his statement made to the SDM where this fact is not mentioned. According to the witness, the police was called at about 5­5:30 pm by other people while he and his wife had got the body down. He has further deposed that the police had taken the signatures of his neighbours on the various St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 9 documents prepared by them. The witness has also deposed that he did not go the police station on the date of incident nor does he recollect whether he was present when the statement of his wife was recorded by the police on 4.4.2004 and states that he was in a state of shock at that time. PW1 has testified that in the statement given by him to the SDM on the next day, he had given the true facts and had read the statement recorded by the SDM himself and signed the same thereafter. He does not remember whether he had told the SDM that his daughter was not having good relations with Pawan and states that after 4.4.2004 they did not meet the police officials at all and they had shifted to Gurgaon after the incident and on the day when Pawan was arrested, they were called to the police station. PW1 has also stated that he gave the entire diary to the police and has admitted that he had stated that he had given sheets but on that day he thought that he had given the entire diary to the police and not the loose sheets because he did not exactly recollect the said fact. According to him, he did not give any receipt of handing over to suicide note to the police and states that the note was lying in front of the computer and when the police reached they had already found the said note and they pointed out the same to them. According to the witness, he thought that he handed over this note to the police on 4.4.2004 and not on 6.4.2004. He has denied that he fabricated the suicide note and handed over the same to the police on 6.4.2004 or that he had St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 10 fabricated the suicide note in connivance with the police officials. PW1 has admitted that Pawan was sending money to his daughter after the marriage but he is unable to tell the dates and whether it was being done regularly. The witness has denied the suggestion that he, his wife and daughter wanted to open a Boutique in Canada but has admitted that his daughter was getting training in stitching from a tailor who used to come at home and states that he noticed him only on three or four days. According to him, he is self employed and operated from his own house. He is not aware that one month before the death of his daughter Pawan had sponsored 1500 Canadian Dolors as a sponsorship fee for getting his daughter to Canada and has denied that his wife had asked Richa to ask Pawan to give her money as they required the same for going to Mumbai where her sister in law (wife's sister) was admitted in the hospital and Pawan had refused the same as he had already spent 1500 Canadian dollars on Richa as sponsorship. The witness has further denied that since Pawan had refused to give this money that he used to taunt his daughter that Pawan had used her. According to him, he did not ask Pawan what happened to the sponsorship papers and states that he only inquired from his daughter as to what happened to the papers on which she told him that they were in the process as told to her by Pawan. He has admitted that they received a call and a letter after the death of his daughter from the Canadian Embassy for the interview St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 11 of Richa.

PW1 Sh. Ramesh Saproo has also testified that on 4.4.2004 he and his wife left the house for Rohini at about 12 - 12:30 noon and he did not speak to Richa before he left the house.

According to him, he had a mobile at the time of incident but does not recollect whether he had told the police that he had gone to dinner to DDCA one day prior along with Richa. He did not tell the police that Richa was upset or having a bad mood in the morning on the day of incident. PW1 has denied that Richa was upset not because she had spoken to Pawan but because he had been taunting her or that he was upset with Richa because she had converted to Christianity and states that at one point of time he did feel personally that putting a condition of conversion was bad. According to him, he did not tell the police that his daughter was upset as Pawan had stopped sending money to her and states that he came to know about this fact two days after her death though his wife was aware of it before. He has deposed that though he had earlier mentioned in his examination in chief that he came to know of it one day prior to her death but he was sure that it was two days after her death when his wife told his about it while they were discussing the reasons of his daughter's demise. The witness has further deposed that he told the police that his daughter used to chat with Pawan on computer but the police did not seize the computer and the police had looked and St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 12 checked the chatting record but did not seize the hard disk of the computer. He has also deposed that he told the SDM that there was a suicide note which he had handed over to the police. The witness was confronted with his statement made to the SDM which is Ex.PW1/A where this fact is not mentioned. He has denied that the fact of the suicide note is not mentioned in his statement to SDM since it was a fabricated document which he prepared later or that his daughter never left any suicide note. PW1 has also denied that since his daughter loved Pawan she could not have left any suicide note. He is not aware if Pawan loved his daughter and it was for this reason that he got initiated the process of sponsorship of getting her to Canada and if his daughter had gone with Pawan to Shimla prior to her marriage for a holiday. The witness has further denied that since the suicide note was not written by Richa it was for this reason that he did not deliberately hand over her admitted handwriting present in the bank and education records to the police so that the admitted handwriting of his daughter may not be revealed. He has admitted that his daughter was married to Mr. Raman in the year 2002 but it is not in his knowledge if she had conceived from the said marriage. He is not aware if his daughter had tried to commit suicide in the year 2002 by consuming rat poison. It is also not in his knowledge if she was treated by one Dr. Aarti for consuming the said rat poison. According to the witness, Pawan did not make any money demands St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 13 from him and not to her knowledge from his wife. He has denied the suggestion that there was no provocation from Pawan prior to the death of his daughter. He did not recollect if he did not inform the police and the SDM the provocation by Pawan and states that he would have informed if he would have been asked. He does not remember whether his supplementary statement was recorded by the police or not but he admits having gone to the police station to make inquiries about the outcome of the case when the new police officer made certain inquiries from him. He does not recollect if he had gone to the police station in the year 2004 to make an additional statement. The witness has also deposed that whenever his statement was recorded, his signatures were taken. He has admitted that his daughter was pursuing a Fashion Designing Course in the year 2004 and states that he was not asked so he did not give these details to the police nor did he tell the police that his daughter was maintaining a diary or loose sheets and states that he found the diary there so he gave it to the police. He has also denied that the loose sheets were not written by his daughter.

PW3 Manish Kohli is the neighbour of the deceased who has deposed that he is doing the business of photography and also having a PCO, STD and ISD at premises no. 1354, Dr. Mukherjee Nagar, Delhi on the ground floor. According to him, on 4.4.2004 he was sitting in his shop at about 12-12:30 noon, his neighbour Richa St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 14 Saproo R/o 1369, came to his shop and made two ISD calls repeatedly after which she went back and after about one hour again she came back and made another ISD call. He has deposed that she was visibly disturbed and she went towards her house after which she did not see her at all. He has testified that at about 5 to 5:30 pm he saw that the father and mother of Richa ran to the top floor and he then came to know that Richa had committed suicide.

With the permission of the court Ld Addl. PP put leading questions to the witness during which the witness has admitted that his statement was recorded by police on 20.9.2009 in the police station and that he had told the police that the husband of Richa namely Pawan was a resident of Canada. He has however, denied that he had told the investigating officer that Richa's husband Pawan Dass used to mentally harass Richa on account of which she had committed suicide. He has also denied that he had changed his statement since he had been won over by the accused.

On a specific court question the witness has deposed that he knew that Richa used to call her husband in Canada and states that she used to call only one number and he had given the record of the ISD calls made by her to the police which bills are Ex.PW3/A, PW3/B and PW3/C. In his cross examination by the Ld. Defence counsel the witness has deposed that he is unable to tell how many people had St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 15 come on his STD booth on that day to make calls and states that he was not maintaining any register in this regard. He has admitted that he cannot tell on which day Deepawli was celebrated in the year 2004 since it is a very old fact and that he was never called by the police after 4.4.2004 to record his statement and states that his statement was recorded only on the arrest of the accused. The witness has further deposed that he had handed over the bills Ex.PW3/A, PW3/B and PW3/C to the police when they had come at the spot but he did not sign any document showing that the bills had been handed over. On court question the witness replied that the said bills were handed over to the police on 4.4.2004. According to him, he remained at the spot only for a short span of time since he had gone to call for the doctor and came back with the doctor only after the police came to the spot and asked them to leave. He has testified that at the time when police came there were a large number of neighbours and in his presence the police did not ask any neighbour to become witness to the investigations. The witness has further deposed that even after the incident he was regularly interacting with Mr. Saproo and at the time of arrest of accused he found Mr. Saproo in the police station and when his statement was recorded Mr. Saproo was present in the police station. According to PW3, at the time when the body of Richa was found hanging both Mr. and Mrs. Saproo were at home but prior to that he was not aware if they were St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 16 at home or not. He did not go to the police with Mr. Saproo after 4.4.2004 and states that at the time when he reached the room of Richa he found she was hanging from the ceiling fan and at that time only Mr. and Mrs. Saproo were present there apart myself. He has testified that Richa was brought down by Mr. & Mrs. Saproo. The witness has further deposed that he did not disturb anything from the room but he did not know about Mr. & Mrs. Saproo. PW3 has also stated that there was no fix time when Richa used to make a call to Canada but has denied that he did not make any statement to the police in 2004 as he did not have anything to tell them truthfully. According to him, he did not collect the dead body from the hospital but has admitted that Ex.PW1/B bear his signatures at point B and states that the dead body was received by Mr. Saproo and he had signed because he received the dead body in his presence. He has denied that subsequently at the instance of Mr. Saproo he had become a witness in the year 2009 and had stated incorrect facts.

PW10 Mrs. Shashi Saproo is the mother of the deceased who has deposed that on 04.04.2004 she was residing at 1369, Dr. Mukherjee Nagar, Delhi and after the death of her daughter she was mentally disturbed and so they decided to shift from the said house to D­47, Greenwood City, Sector 46, Gurgaon, Haryana. She has deposed that the accused Pawan is the husband of her deceased daughter Richa and was the cousin of her son's friend and used to St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 17 visit their house. According to her, just a few months before the marriage of her daughter with Pawan he was introduced to them but Richa knew him before that. She has testified that accused Pawan was a citizen of Canada and was residing at Vancuover and her daughter told her that she had seen this boy and wanted to marry with him and they asked her to make inquires about his back ground on which Richa told them that he was a divorcee. The witness has further deposed that on coming to know of this they refused the alliance but since Richa insisted that she would marry Pawan, finding no option they consented to the alliance. She has also deposed that Richa married Pawan on 11.12.2003 according to Christian rites after her conversion and after marriage Richa continued to stay with them along with her husband the present accused. According to the witness, in December 2003 itself i.e. after fifteen to twenty days of the marriage, Pawan went back to Canada and told Richa that he would send her the immigration papers and her daughter kept on waiting for the immigration papers which never came during her life time and were received only after one and a half month of her death. She has testified that her daughter used to speak to Pawan on telephone regularly but she noticed that every time she would speak to him she got upset. According to her, initially she did not disclose anything but later she told her that Pawan was using abusive language on her and on many occasions she told her that she had St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 18 spoken to his two children who used to come to him in Canada. She has also deposed that Pawan had told Richa that he had not been meeting his previous wife but a few days before her death when Richa spoke to children of Pawan they disclosed that they had gone out with their mother and Pawan on which she became very upset. The witness has further deposed that her daughter had been sending a large number of gifts for Pawan and his children in suit cases through his friends during this period and four­five days before her death she had brought 12 shirts for Pawan from Kamla Nagar. She has also stated that on 03.04.2004 her daughter Richa had gone to Kamla Nagar for withdrawal of money sent by Pawan through money transfer outlet which he had blocked and when she came to know about this, she was upset and told her about this and she told her not to worry and she would pay but she told her how much could she do for her and she was upset. The witness has further stated that on 04.04.2004 she woke her up asking her to go to the Church for prayers but she refused stating she is not in a mood to go and she did not eat anything till 12 noon. The witness has deposed that she saw that her daughter had gone to call up Pawan from the STD booth just across their house but Pawan did not respond and she was upset on which she asked her the reason but she did not tell. PW10 has also deposed that she and her husband had to go for lunch with some relatives in Rohini and therefore, after telling her they left at about St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 19 12:30 PM and when they returned at about 5­5:30 pm she went upstairs while her husband was parking the car. According to her, she saw that the bedroom of her daughter was bolted from outside (wrongly mentioned as outside whereas it should be inside) and their dog was sitting at the door and crying. The witness has testified that she banged the door of Richa's bed room telling her it was too late but she did not opened the door and on realizing that something was happened wrong she looked through the key hole and found that a table was lying on the ground with Richa's feet hanging on which she immediately shouted to her husband to come and pushed the door and the bolt gave up. Thereafter her husband came and hoping that she have must alive and get her to the bed and he tried to revive her but she was already dead. According to PW10, many public persons gathered and some body informed the police and after the the police came to the spot they made inquires from them and asked them if she had written down something. She has testified that she was in a state of shock and hence she is not aware but the police officer found a note in a room and asked her as to who had written the note and after seeing the note which was in the red ink, she told them that it was in the handwriting of Richa after which the police officer took the said note and one dairy which was lying in the room on the table. She has proved that her statement was recorded by the SDM on the next day which is Ex.PW10/A bearing her signatures at point A. St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 20 The witness was cross examined by the Ld. Addl. PP for the State on certain aspects which the witness has missed in her examination in chief. She has admitted that the police had also seized the dairy of the deceased when they had come at the spot on 04.04.2004. She has identified the suicide note which is Ex.P1 which she had identified to be in the handwriting of her daughter Richa and also the certified photocopies of the pages of the dairy of her daughter which is Ex.P­2.

In her cross examination by Ld. Defnece counsel the witness has admitted that her daughter has been previously married and was a divorcee but states that her daughter had not conceived from her previous marriage. She has denied that after her first marriage she had a boy friend and states that Richa had no boy friend by a name of Raman with whom she conceived and she never attempted any suicide by consuming rat poison. According to PW10, at that time she, her mother­in­law, sister­in­law, Richa and her husband were staying together and her son was staying away on ship and used to come for holidays after every six months. She has denied that her sister­in­law was suffering from any mental problem and states that she is suffering from Epilepsy and since childhood her sister­in­law is on medication. The witness has admitted that she never got along with her mother­in­law and her sister­in­law but has denied the suggestion that she had constant quarrels with her sister­ St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 21 in­law. She has denied that Richa was being taunted by her sister­in­ law being divorcee and states that it was never done and rather her sister­in­law was very sad about this fact. PW10 has also denied that Richa was under depression due to quarrels with her mother­in­law and sister­in­law or that Richa and her son­in­law and her son had visited Dr. Batra's clinic at south extension with her for Richa's treatment but states that they had visited Dr. Batra's clinic for her hair fall problem. According to her, there is no prescription by Dr. Batra prescribing any medicine for Richa's depression and states that she had not been taken medicine for depression problem. According to her, Richa was having a piles problem for which she was even operated. The witness has further stated that her daughter had been telling her repeatedly how she was being treated by her husband when she telephoned him. She has also deposed that she did not read her statement Ex.PW10/A before signing the same and states that she was not in a proper state of mind having lost her daughter but has denied that her statement Ex.PW10/A is false. PW10 has deposed that she did not mention the fact regarding Pawan abusing her daughter on phone to the SDM. She does not remember whether she had visited the police station two­three days after the death of her daughter. She did not tell the police the details of the harassment and cruelty inflicted upon her daughter by Pawan. According to her, when the police came to the spot large number of neighbours had St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 22 also gathered and one of the neighours who was running the STD booth opposite her house Mr. Kohli, Mr. Kapoor and Mr. Nair had come but police did not record the statement of Mr. Kapoor and Mr. Nair since the said neighbours came later on. She has admitted that initially Mr. Kohli was there and states that when her husband was parking the car he was talking to Mr. Kohli at that time and when she called him Mr. Kohli also came with him. The witness has also stated that the police took the dead body with them for postmortem which was conducted on next day but she is not aware if police had taken signatures of all those persons standing at the spot while taking the dead body. According to the witness, Richa had done English Honors, a course in tourism and travel, commercial art diploma, MA in Bharatnatyam from Prayag University and was learning stitching and was previously with EXCEL but later she left the job because she would otherwise face immigration problems. The witness has further deposed that at the time of Richa's death she, her husband and her son were all earning members and states that Richa had left the job before her marriage on the asking of her husband. She is not aware if Pawan had been sending Rs.15,000/­ to Richa one year before her marriage and she herself was earning Rs.20,000/­ per month. PW10 has stated that she thought the accused was sending money to Richa after marriage and it is for this reason she had told her that he had stopped the release. She has testified that Richa had St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 23 gone to the Bank on 03.04.2004 and has admitted that her sister was unwell during this period and had to be operated and states that her sister was in Mumbai at her house. She has denied that Richa had asked for money so that they could go to Mumbai to see her sister and states that she herself working and earning Rs.20,000/­ per month and hence there is no question of her asking for money for her. According to PW10, her husband is self employed, but she is not aware how much he was earning at the time of Richa's death and states that he was running the whole house. She has testified that the major contributions had been made by their family to the functions organized during the marriage of her daughter with Pawan who had contributed only a small amount. She is not aware if Pawan had contributed Rs.1 lac towards the expenses of the marriage and also about the actual expenses in Church in the marriage during the ceremony in the Church. She has admitted that Richa was learning stitching but states that Richa wanted to help Pawan while in Canada as she never knew that Pawan would ditch her. She is not aware if Pawan and Richa had planned to open a Boutique in Canada and if Pawan had paid 1500 Canadian Dollars to the immigration authorities for Richa. She does not recollect the exact time when Richa called up Pawan and states that it was before she left. The witness was confronted with the telephone receipts Ex.PW3/A and Ex.PW3/C to show that the call duration on 04.04.2004 was only for St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 24 two­three seconds. She is not aware whether there was any conversation between Richa and Pawan on 04.04.2004 and if Richa had gone to Shimla with Pawan before her marriage and states that she had told her that she had been going to Shimla with her friends but she is not aware if Pawan had gone or not. She is also not aware if her husband was opposed to her daughter taking this trip to Shimla and states that her husband was never against Richa leaving the job but he was against Richa sitting at home doing nothing as he knew she had capabilities. She has denied that there was no condition put by Pawan to Richa for leaving the job or that her husband used to taunt Richa that she was being used by Pawan. The witness has also denied that Richa did not leave any suicide note and it is for this reason this fact does not find mentioned in any of her earlier statements to the SDM and police. She has testified that Richa had bank account and they never gave the details of the bank account or educational qualification to the police nor the police asked for the same. PW10 has denied that loose sheets have not been written by Richa and states that she does not remember whether any red pen was found at the spot where suicide was committed either by the police or by them. Richa knew before marriage that Pawan was married and had two children from the first marriage. She has denied that her daughter had been sending the clothes and gifts to Canada but she is not aware of the details of the person through whom Richa St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 25 used to send gifts and states that the said person was a friend of Pawan and on one occasion Pawan's brother also came with that person and took the baggage. She is unable to tell the exact date or month when the immigration papers of Richa had reached them informing that the Canadian authorities had granted the Visa to her daughter but states that it was one to one and a half month after her death.

Forensic evidence:

PW2 Anurag Sharma Senior Scientific Officer (Documents), FSL Rohini has deposed that on 15.9.2004 exhibits forwarded by Addl. DCP (NW District) Delhi bearing questioned documents (suicide note) marked Q1 to Q4, Q4/1 and standard writings of deceased marked as A1 to A9 in two sheets and one volume, were received in their laboratory. According to him, he had examined all the documents with scientific aids thoroughly and gave his report which is Ex.PW2/A where his specific opinion is mentioned at point A. He has proved that as per the report:

1. The person who wrote the red enclosed writings stamped and marked A1 to A9 also wrote red enclosed writings similarly stamped and marked Q1 to Q4.

2. It has not been possible to express any opinion on Q4/1 on the basis of material at hand.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 26

According to him, after examination all the original documents as well as the original report were handed over to the authorized messenger of Police Station Mukherjee Nagar on 27.5.2005 in a sealed envelope. He has identified the questioned document which were marked as Q1 to Q4, Q4/1 are Ex.P­1. He has testified that after examination he had kept the photocopy of the admitted writing as well as questioned documents with him in the official record, as per the prescribed procedure and later on the asking of the investigating officer he had supplied the attested photocopy of the admitted writing. He has identified the attested photocopies of the admitting writing original of which he had examined with the questioned document which is Ex.P­2.

In his cross examination the witness has deposed that the questioned handwriting was written by ball point pen, A1 to A6 in led pencil writing and A­7 is in green ink, A8 & A9 in black ink. According to him, there is no fixed mathematical formula applied in the document examination and it is work of observation of the expert but is not a quantitative technique. The same was his answer in respect of the query with regard to the proportion of the characters. He has testified that the sample handwriting A1 to A9 were in an intact diary but he is unable to tell whether the entire diary was full or not and states that he had got only the relevant pages used by him for comparison photocopied. The witness has further deposed that he St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 27 had not read the name of any person written on the diary so there was no question of taking photocopy of the same. He has also testified that the writings which were executed by a particular writer in the normal course of business is called the admitted writing and after seeing that document diary or reading the same, he is unable to tell the name of the author and states that he can only tell whether the handwritings under comparison are being written by one author or different persons. The witness has testified that in the present case he did not take the photographs of the sample and questioned handwritings as it was not necessary. He has denied the suggestion that he did not examine the original diary.

Police/ official witnesses:

PW4 Insp. Mukesh Kumar has deposed that on 04.04.2004 he was posted as Incharge Crime Team, North West and on the said date an information was received by him from control room regarding suicide case vide DD No.19A. According to him, on receipt of this information he reached at the spot i.e. House No.1369, Mukherjee Nagar along with Photographer HC Sajjan Singh and finger print expert HC Dharampal where they found one lady namely Richa Dass, W/o Pawan Dass dead lying on bed. He has testified that the photographs of the spot were taken by HC Sajjan Singh and no chance prints were found and a suicide note was found near the dead St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 28 body which was seized by the investigating officer. He has further deposed that a coffee color duppata was also lying near the dead body. He has proved having prepared his report which is Ex.PW4/A. In his cross examination by Ld. Defence counsel the witness has deposed that at the time when he reached at the spot SI Rajender Parshad was present at the spot and a large number of public persons had also gathered. According to him, the body was lying in the room on the first floor and the suicide note was written with a red ink but he did not read the same. The witness has further deposed that he did not see the investigating officer preparing the fard/ seizure memo of the suicide note but he saw him taking the same into his possession on the day when he went the spot i.e. 04.04.2004.

PW5 ASI Sajjan Kumar has deposed that on 04.04.2004 he was posted as Photographer in crime team North west district and on the said date he went to the spot along with SI Mukesh Kumar, Incharge of the crime team. He has testified that on reaching the spot i.e. 1369, Mukherjee Nagar (first floor) they found the dead body of a young girl lying on the bed and he took five photographs of the room negatives of which are Ex.PW5/A1 to Ex.PW5/A5 and the said photographs are Ex.PW5/B1 to Ex.PW5/B5.

In his cross examination by the Ld. Defence counsel he has deposed that when he reached the spot large number of public St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 29 persons had gathered in the gali but no one was present inside the room where the photographs were taken. According to him, he had taken only five photographs and no other photographs were taken nor did he see any suicide note. On court question the witness has deposed that he was not asked to take any photograph of the suicide note.

PW6 ASI Ranbir Singh has deposed that on 04.04.2004 he was posted as Head Constable in Police Station Mukherjee Nagar and was on duty from 5 PM to 1 AM (midnight). He has testified that at about 7:05 PM he received a PCR call from ASI Ram Kumar regarding suicide on which he recorded DD No.19A which is Ex.PW6/A copy of which he handed over to Ct. Ram Kishan for handing over the same to SI R.P. Singh. He has not been cross­ examined by the Ld. Defence Counsel.

PW7 Sh. G.P. Gautam from MTNL has brought the summoned record pertaining to telephone No. 27653785 according to which one Manish Kohli, R/o 1354, Dr. Mukherjee Nagar, Delhi ­09 was allotted the aforesaid telephone No. vide order dated 15.02.98 and the said telephone was installed at the aforesaid premises vide order No. 392. He has proved that the report of this number was prepared by him and duly attested by senior Manager which report is Ex.PW7/A. He has also not been cross­examined by the Ld. Defence Counsel.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 30

PW8 HC Om Parkash has deposed that on 15.09.2004 he was posted at Police Station Mukherjee Nagar and on that day he was handed over one sealed pullanda duly sealed with the seal of RK which he took to FSL Rohini vide RC No.71/2104 and deposited the same. According to him, the copy of the receipt was handed over by him to the MHC(M) Mukherjee Nagar on the same day and informed the investigating officer. He has proved that till the time when the pullanda remained in his possession it remained sealed and was intact. He has not been cross­examined by the Ld. Defence Counsel.

PW9 Ct. Ram Kishan has deposed that on 04.04.2004 he was posted at Police Station Mukherjee Nagar and on the said date he joined the investigation along with SI R.P. Singh. He has testified that on the receipt of information of DD No.19 A he along with SI R.P. Singh reached the spot i.e. H. No. 1369, Mukherjee Nagar where they found that a young girl had committed suicide and her dead body was found lying on a bed in a room on the first floor. According to him, SI R.P. Singh immediately called the crime team and the photographer and also informed the SDM. He has also deposed that crime team reached the spot in his presence and after the report was given by the Incharge to the investigating officer he was sent by the him to the Aruna Asaf Ali hospital, Subzi Mandi Mortuary along with the dead body. The witness has deposed that the dead body was kept in the mortuary for the night and he remained St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 31 at the mortuary through out the night and till the time the dead body remained in his custody there was no tampering with the same. According to PW9, the postmortem was conducted on the next day i.e. 05.04.2004 and the SDM and the investigating officer had come to the mortuary before the postmortem had been conducted and after postmortem he was handed over a sealed pullanda by the doctor duly sealed with the seal of hospital and a sample seal which he handed over to the investigating officer who prepared the seizure memo Ex.PW9/A bearing my signature at point A. He has further testified that on 06.04.2004 he again joined the investigations with the investigating officer and on that day investigating officer had seized suicide note and some pages of the dairy in his presence and his signatures were taken on the seizure memo prepared by the investigating officer at the police station which seizure memo is Ex.PW9/B bearing my signatures at point A. In his cross­examination the witness has deposed that he was with the investigating officer on 04.04.2004 and had also visited the spot. According to him, on 04.04.2004 the suicide note had been given to the investigating officer by the father of the deceased which note was lying near the dead body. He has admitted that on 04.04.2004 the investigating officer did not prepare the seizure memo and it was got signed by him in the police station on 06.04.2004. He does not remember if Sh. R.K. Saproo was present at the time when St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 32 he signed the seizure memo in the police station on 06.04.2004. According to him, he had seen the suicide note but he did not read the same and states that it was with the investigating officer. He has denied that the suicide note was written with black ink and states that it was written with red ink. The witness has also denied that there was no suicide note recovered on 04.04.2004 and that the same was later on planted on 06.04.2004.

PW11 HC Narender Singh has deposed that on 06.04.2004 he was posted at Police Station Mukherjee Nagar and was working as Duty Officer form 5.00 PM to 1.00AM (Midnight) and on that day at about 6.30 PM, he received rukka from SI Rajender Prasad Singh on the basis of which he recorded FIR No.152/04 copy of which is Ex.PW11/A which bears his signature at point A. He has also proved having made an endorsement on the rukka vide Ex.PW11/B. According to him, he handed over the copy of FIR and original rukka to SI Rajender Prasad Singh for further investigation. The said witness was not cross­examined by the Ld. Defence Counsel.

PW12 SI Ajay Kumar has deposed that on 03.10.2009 the investigations of the present case was handed over to him by Inspector Kishan Lal and on 27.10.2009 he verified the aspect of the marriage of the deceased with the accused from Methodic Church, Dhaka Village, Delhi and obtained the attested/ certified copy of St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 33 marriage certificate which is Ex.PW12/A. He has also deposed that on 17.11.2009 he got verified the ownership details of telephone no. 27653785 from Telephone Exchange, Mukherjee Nagar which details are Ex.PW12/B. He has testified that on the same day he recorded the supplementary statement of witnesses Shashi Sapru, Ramesh Sapru and photographer ASI Sajjan Singh and on 18.11.2009 he obtained a certified copy from the FSL Ex.P2 (running into 8 pages). He has proved having prepared the charge sheet and filed the same in the court.

In his cross examination the witness has stated that he did not summon the witness in writing by way of a notice but had orally/ telephonically called them. He has stated that he was not aware that the incident took place at Mukherjee Nagar and came to know that the parents of the deceased had shifted out of Delhi but he had got their telephone number from the previous investigating officer and spoke to them on telephone. He has also deposed that he did not record the statement of any of the neighbours and states that apart from the persons stated herein above he did not examine any other witness and was aware that earlier also the supplementary statement of witnesses Shashi Sapru and Ramesh Sapru had been recorded. He has denied that he had recorded the supplementary statements of witnesses Shashi and Ramesh Sapru only to fill up the lacunas in the prosecution case. He is not aware where is the original diary of the St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 34 deceased and states that he did not take any steps to trace out the said diary and only the certified copies of the relevant pages were taken from the FSL.

PW13 Sh. Bans Raj, ADM (East), Office of the Deputy Commissioner East, Shastri Nagar, Delhi has deposed that on 4.4.2004 he was working as SDM Model Town and on that day he received information on telephone at about 10 - 11 pm that one lady namely Richa aged about 26 years, recently married about four months prior to that, committed suicide by hanging herself with ceiling fan at her parental house i.e. at 1369, Mukherjee Nagar, Delhi and that her body was lying on the bed. According to him, he instructed the investigating officer immediately from his residence to get the place of incident photographed by Crime Team and also directed him to shift the body to nearby mortuary. He has deposed that on 05.04.2004 at about 9:30 am he reached at the aforesaid house i.e. place of incident and inspected the spot and thereafter he went to police station where father of the deceased namely Sh. R.K. Saproo along with his relatives including one Army Major whose name he does not remember at that time, were present. He has testified that his Reader recorded the statement of R.K. Saproo on his dictation which is Ex.PW13/A. He has proved having recorded the statement of Raman Dass, brother of accused which is Ex.PW13/B; Smt. Vidya Prem Dass and Smt. Shashi Saproo vide Ex.PW13/C and St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 35 Ex.PW10/A respectively. The witness has further deposed that the father of the deceased Sh. R.K. Saproo had handed over a suicide note and he handed over the same to the investigating officer which note is already Ex.P1 after which he went to mortuary subzi mandi and prepared inquest documents i.e. Ex.PW13/D, brief facts which are Ex.PW13/E, death report which is Ex.PW13/F. He has also proved having recorded the statements of Sh. R.K. Saproo and Sh. Raman Dass regarding identification of the dead body of Smt. Richa Dass vide Ex.PW13/G and Ex.PW13/H respectively. He has also deposed that after getting the postmortem conducted the dead body was handed to the relatives of the deceased by the investigating officer.

In his cross­examination the witness has deposed that he did not go to the place of incident i.e. the house of the deceased on the receipt of the said information on 04.04.2004. He has also deposed that he had gone to the room where the deceased had committed suicide and that the statement of the father of the deceased was recorded at the police station and not at the house on 05.04.2004. According to him, he did not see any suicide note when he had inspected the site of occurrence and has admitted that while recording the statement, Sh. R.K. Saproo did not mentioned the fact of the suicide note. He has also deposed that Mr. R.K. Saproo did not tell him that the accused had demanded any dowry. The witness St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 36 has further deposed that he did not ask Sh. R.K. Saproo the fact that he had earlier made any complaint against Sh. Pawan Dass. According to him, he recorded the statement of Smt. Vidhya Prem Dass who was the resident of Ghaziabad but he is not aware if grandmother and bua of deceased were also residing in the said house that is place of occurrence. The witness has further deposed that Sh. R.K. Saproo and Smt. Shashi Saproo had read their statements before signing the same and there were no deletions or corrections made in the statement of R.K. Saproo and Shashi Saproo recorded by him at their instance. He has denied the suggest that there is no suicide note and it is for this reason that this fact does not find a mention in the statements of parents of the deceased recorded by me on 05.04.2004. He has further denied that he was inspected the judicial file before coming to depose in the court but stated that he had only gone through the police file to refresh his memory. According to him, he did not give anything in writing to the investigating officer to show that he had handed over the suicide note to him and when he went to the site of occurrence he did not see any loose sheets/ dairy. He has testified that he directed the SHO to register the case against the Pawan Dass under Section 498A/306 IPC on the basis of the statement given by Sh. R.K. Saproo, the father of the deceased and in his statement Sh. Saproo stated that after getting married Pawan Dass was supposed to send the green card for his daughter which he did St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 37 not send. Apart from this he told him that the couple had gone together to Shimla for honeymoon where they had some differences between the same were amicably settled. According to PW13, apart from what has been recorded in the statements of the witnesses recorded by him no other instances of cruelty were mentioned. He has denied that he wrongly directed the registration of the case under Section 498A/306 IPC. He is unable to tell if the suicide note is a fabricated document but has denied that he did not intentionally record the statements of the other relatives of the deceased present in the same house. According to him, the father of the deceased had shown him the suicide note and he had directed him to hand over the same to the investigating officer on 05.04.2004.

PW14 ASI Veena Sharma has deposed that on the intervening night of 19/20.9.2009, he was on duty at immigration IGI Airport as clearing officer (passenger) Arrival Wing and was checking the passport of the passengers. According to her, at about 2:00 AM one Canadian passenger whose name was known as Pawan Das having passport no. JQ 328995 from flight no. CX 753 and found LOC No. 165899 opened. She has deposed that she detained the LOC object and informed the police station Mukherjee Nagar from where Inspector Kishan came there and the accused Pawan Das whom the witness has identified in the court, along with his passport and immigration documents were handed over to inspector Kishan. St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 38 She has proved the subject detection of LOC which is Ex.PW14/A running into two pages bearing her signature at point A. the witness has also correctly identified the original Canada passport of the accused which was otherwise not disputed by the accused as it was filed in the court by him pursuant to the directions issued by this court on his bail application as it was made a condition of bail. The said witness has not been cross­examined by the Ld. Defence Counsel.

PW15 Insp. Rakesh Tyagi has deposed that on 27.04.2005 he was posted at Police Station Mukherjee Nagar as Sub Inspector and on that day he received the further investigations of this case therefore he received the case from MHC(M) and perused the same. According to him, the exhibits of the present case had already been sent to FSL, Rohini by the previous investigating officer SI Rajesh Kumar. He has testified that on 27.05.2005 he collected the FSL result which is Ex.PW2/A from malkhana of Police Station Mukherjee Nagar and same was got placed in the judicial file and the accused namely Raman Dass and Vidhya Devi had moved their anticipatory bail application before the Hon'ble High Court. According to the witness, he attended the matter before the hon'ble court and made request for extradition for the accused Pawan Dass as he was residing in Canada. The witness has deposed that he was transferred from the police station therefore further investigations of St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 39 the case was handed over to some other investigating officer and he handed over the case file to MHC(R).

In his cross examination the witness has deposed that on 25.06.2006 he was promoted to the post of Inspector. According to him, there was a dairy along with the report received from FSL Office, Rohini and he had seen the same. The witness has testified that he said that the dairy belong to the deceased on the basis of the investigations conducted by the previous investigating officer who had taken this dairy into possession vide seizure memo and thereafter got the same tallied from the FSL by taking the admitted handwriting of the deceased from her parents. He is unable to tell what was the admitted handwriting taken by the previous investigating officer and he does not recollect the names of all the previous investigating officer because there were two to three persons who handled the investigations before him. He has denied that he did not conduct the investigations properly.

PW16 Insp. Krishan Lal has deposed that on 03.04.2009 he was posted at Police Station Mukherjee Nagar and on that day further investigations of this case was handed over to him and he received the case file from MHC(R) and perused the same. According to him, he moved an application for opening of LOC on 26.06.2009 and thereafter on 03.08.2009 the LOC of accused Pawan Dass opened by FRRO and thereafter the accused had not come to St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 40 India from Canada. He has testified that to avoid any further delay in filling the charge sheet he filled untraced report on 12.09.2009 and that on 20.09.2009 he received information from ASI Veena Sharma that the accused Pawan Dass had arrived at IGI Airport and was present at immigration for clearing his arrival after which he along with ASI Ram Gopal went at immigration IGI Airport and met ASI Veena Sharma who had produced the accused Pawan Dass whom the witness has correctly identified. The witness has testified that ASI Veena Sharma also produced the copy of detention of LOC subject vide Ex.PW14/A running into two pages which he took into possession and she also produced the original passport of the accused which he took into possession after which he brought the accused and the documents to the police station. He has proved having interrogated, regarding this case to which he denied his involvement in the present case. The witness has further deposed that he called the father of the deceased Sh. R.K. Saproo along with one Manish Kohli who was residing just in front of Sh. R.K. Saproo and having a STD Booth from where the deceased used to make telephone call to the accused at Canada. He has proved having recorded their statements under Section 161 Cr.P.C. and both Sh. R.K. Saproo and Sh. Manish Kohli identified the accused Pawan Dass. He has deposed that the accused was again interrogated in their presence and at that time he admitted his guilt after which the accused was arrested in this St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 41 case on that day itself i.e on 20.09.2009 vide memo Ex.PW16/A and was personally searched vide memo Ex.PW16/B. PW16 has also deposed that the accused was got medically examined and thereafter he was produced before concerned court and Ld. Court had sent the accused in judicial custody and further investigations of this case was again handed over to some other investigating officer therefore he handed over the case file to MHC(R).

In his cross­examination the witness has deposed that on 03.04.2009 he was handed over the investigations of the present case and when he received the case file he studied it and discovered that one dairy/personal note book of deceased was missing. He knew that the same was the dairy/note book of the deceased since the previous investigating officer had made the fard/seizure memo of the same but he is not aware as to whether the said dairy/ note book of the deceased contained how many pages. According to him, he had noted down this fact in the case dairy that the said original dairy/note book was missing from the case file and had intimated this fact to the SHO Police Station Mukherjee Nagar through Case Diary which contains the signature of the SHO as well as the ACP. He does not remember the date but so far as his memory is concerned the same was written on 03.04.2009. The witness has further deposed that the efforts were made to trace the said diary and he inquired from the previous investigating officer Rohtash Singh who was on medical St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 42 rest but he had not communicated with ASI Rajender Singh who was the initial investigating officer of the present case regarding the factum of the missing of the diary. He has testified that when he recorded the statement of Sh. Manish Kohli he did not seize the phone record as the same were already on the case file and had asked Manish Kohli about the call duration made by the deceased but he told him that he did not remember the same. According to the witness, he did not record the statements of the dadi/grandmother and the bua of the deceased. He is not aware if the dadi/grandmother and the bua (parental Aunt) also reside at the same house and states that he received the case file at a later stage. According to him, he did not reduced the disclosure statement of the accused into writing and did not write to the Canadian Embassy to find out if any visa had been applied for the deceased. The witness has also deposed that he did not verify from Canadian Embassy whether the accused Pawan Dass had applied for visa for the deceased. He has denied that he had arrested the accused wrongly in this case without any cause. According to the witness, he had not seized the call details from Sh. Manish Kohli on 20.09.2009 but had only recorded his statement.

PW17 Retd. SI Rajender Parshad Singh has deposed that on 04.04.2004 he was posted at Police Station Mukherjee Nagar as Sub Inspector and on that day he was on emergency duty from 8 AM to 8 PM. According to him, on that day he received DD No. 19­ St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 43 A at about 7:05 PM, copy of which is Ex.PW6/A on which he along with Ct. Ram Kishan reached at House No.1369, Mukherjee Nagar, Delhi where R.K. Saproo met them who disclosed that her daughter had hanged at the first floor. He has testified that he went to the first floor and dead body was lying on the floor which had already been removed from hanging and thereafter he made interrogation from R.K. Saproo who told him about the circumstances and also disclosed that he had called the doctor who checked the condition of her daughter Richa. The witness has further deposed that near the dead body a suicide note and a dairy was lying which was handed over to him by the father of deceased which suicide note is Ex.P1 and photocopy of dairy is Ex.P2 after which he gave the information to concerned SHO and to the concerned SDM and prepared the inquest papers which are collectively Ex.PW13/A and Ex.PW13/E and the dead body was sent to the mortuary of Subzi Mandi hospital. The witness has testified that the concerned SDM could not reached at the spot on the same day and on 05.04.2004 the SDM reached the spot who prepared the inquest papers separately and recorded the statement of Sh. R.K. Saproo and given the same to SHO after making the endorsement which are Ex.PW17/A and he made his endorsement on the statement of R.K. Saproo which is Ex.PW17/B and he got the case registered. The witness has further deposed that St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 44 after registration of the case he prepared the site plan at the instance of R.K. Saproo which is Ex.PW17/C and recorded the statement of R.K. Saproo and neighbourer of R.K. Saproo and made search of the accused person but the accused could not be traced.

According to the witness, on the next day he went to the residence of the brother of accused Pawan Dass and interrogated his brothers and other relative and asked about the address of Pawan Dass of Canada but the relatives of Pawan could not give any authentic address, phone number and the whereabouts of Pawan. Thereafter he went to the office of FRRO and made the application to the in­charge to trace out the flying record of Pawan Dass vide application which is Ex.PW17/D and after the verification the in­ charge of FRRO gave the verification report as Pawan is a Canadian national which is Ex.PW17/E. He has also testified that on 26.04.2004 he collected the marriage certificate of Pawan and deceased from Dhaka Church, Mukherjee Nagar, Delhi which certificate is Ex.PW12/A. According to PW17, during investigations the suicide note and the dairy which was handed over to him by the father of deceased was sent to FSL for comparison and priority letter had been obtained by him but he could not sent the same. He has deposed that he went to the DCP and requested for issuance of a request for opening the Look Out Circular of the accused pursuant to which Addl. DCP wrote to the FRRO regarding opening of LOC in St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 45 respect of Pawan Dass which is Ex.PW17/F and thereafter he was transferred from Police Station Mukherjeet Nagar and he handed over the case file to MHC(R).

Ld. Addl. PP for the State has put some leading question to the witness during which he has admitted that he had called the crime team at the spot when he reached on 04.04.2004 and the Crime Team report is Ex.PW4/A. According to him, he got the spot photographed which photographs are Ex.PW5/B1 to Ex.PW5/B5. He has also admitted that after the postmortem doctor handed over him a sealed parcel which was sealed with the seal of AAA hospital Subzi Mortuary along with sample seal which was seized vide memo Ex.PW9/A. The witness has further admitted that he had seized the suicide note and the papers of dairy and one torn paper of the dairy on 06.04.2004 which were handed over to him by the father of deceased vide memo Ex.PW9/B and torn paper of the dairy is Ex.PW17/G . According to the witness, the said papers were given to him by the father of deceased on 04.04.2004 but the same were seized on 06.04.2004 and after the postmortem of Richa he recorded the statement of relatives of deceased regarding identification and handing over dead body to the relative of deceased. He has admitted that DD No.15A which is Ex.PW17/H is regarding his arrival entry to the police station after making the investigations. The witness has St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 46 further stated that he can identify the Chunni which has not been disputed by the Ld. Defence Counsel.

In his cross­examination the witness has deposed that he went to the spot of occurrence at about 7:15 PM on 04.04.2004 and did not record the statement of R.K. Saproo on 04.04.2004. According to him, Crime team had accompanied him on the spot on 04.04.2004 and the photographer of the crime team had also gone to the spot on 04.04.2004 and he had taken the photographs on his directions. He does not recollect if there was any computer kept in the said room and states that he had seen the loose sheets, dairy and the suicide note lying there which the father of the deceased handed over to him on 04.04.2004 but he does not remember whether he told the photographer of the crime team to click the photographs of the suicide note, loose sheets and the dairy lying on the site of occurrence. According to him, in the photographs duly exhibited Ex.PW5/B1 to Ex.PW5/B5 he did not see any suicide note. He has further deposed that the statement of R.K. Saproo was recorded on 05.04.2004 by the SDM but he does not remember whether R.K. Saproo in his statement to the SDM dated 05.04.2004 mentioned about the suicide note. The witness has been shown the the statement of Sh. R.K. Saproo dated 05.04.2004 given to SDM which is Ex.PW1/A after which the witness states that there is no mention of the suicide note or the loose dairy sheets. According to him, during St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 47 investigations he came to know that the deceased was educated enough and he did not obtain any admitted handwriting of the deceased either from her educational institution or from the place where she was previously working or from the bank where she had her account. On a specific court question the witness has admitted that the admitted handwriting which he got tallied from the FSL was from the dairy given to him by the father of the deceased and he did not verify the fact if the handwriting in the diary belong to the deceased but states that he Presumed that it was her handwriting because her parents had given him the dairy and claimed that it was written by her. He has admitted that he did not make any independent inquiry on this aspect.

The witness has further deposed that he did not make any seizure memo of the suicide note given to him on 04.04.04 and states that he was under the impression that since the inquest proceedings were to be conducted by the SDM, he would do so. He has testified that he had informed the SDM that suicide note had been recovered on 04.04.2004 but he did not give this information to him in writing. He has admitted that even after informing the SDM about the suicide note by him he did not disclose this fact regarding the suicide note in the statement of R.K. Saproo recorded on 05.04.2004. According to him, he had recorded the statements of two to three neighbourers of R.K. Saproo. He has denied that he had recorded the statement of the St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 48 STD booth operator only for purposes of call details and states that being a neighbour he recorded his statement to find out about the family life of the deceased. The witness has stated that he did not go to the Canadian Embassy for any investigations and also did not make efforts to find out if Pawan Dass had applied for the Visa of the deceased from the Canadian authorities. According to PW17, he did not show the spot where the suicide note was lying in the site plan prepared by him. He has stated that he made inquiries from the family of deceased if Pawan Dass was sending money to the deceased who told him that they were not aware of the same. The witness has further admitted that when he went to the site he came to know that in the said house apart from Sh. R.K. Saproo, his wife, his mother was also residing but he did not come to know that his sister was also residing in the said house. He has denied that he had not fully investigated the matter, otherwise he would have recorded statements of all the persons staying in the same house. The witness has further admitted that Sh. R.K. Saproo or his wife never gave any statement that accused Pawan Dass demanded any dowry from them and that their daughter was tortured or treated with cruelty by accused Pawan Dass. He has also admitted that original diary or original loose sheets are not on the record but has denied that he was not having sufficient material to register the FIR against the accused Pawan Dass. PW17 Retd. SI Rajender Prashad has admitted that on St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 49 inquiry with Sh. R.K. Saproo and his wife they told him that neither they nor their daughter had filed any complaint against the accused Pawan Dass earlier. According to him, he had also recorded the statement of wife of Sh. R.K. Saproo under Section 161 Cr.P.C. on 06.04.2004 but he does not remember whether she had disclosed about the suicide note in her statement dated 04.04.2004. He has denied the suggestion that the suicide note has been manufactured and inserted at the instance of R.K. Saproo or that he conducted the investigations at the instance and on the directions of the parents of the deceased only to falsely implicate the accused who was in no way connected with the death of the deceased.

The record reveals that the accused has not disputed the postmortem examination of the deceased and vide his statement dated 23.2.2011 he has admitted the postmortem report which is Ex.PX1.

Statement of the accused/ defence evidence:

After completion of prosecution evidence statement of the accused Pawan Dass was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. He has stated that he met Richa in the year 1999 and thereafter he came back to India in April 2002 and they started seeing each other which was in the knowledge of her parents. According to St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 50 him, he used to spend time at her parental house and they went to Shimla together in April 2002 which was in the knowledge of her parents and he came back again from Canada in July 2002 and then Richa proposed him to get married to her and along with couple of her friends including her brother Rahul they had ring ceremony which he had photographs to show the same. He has further stated that during the ring ceremony Richa along with her friends was very happy and they also cut a cake to celebrate the occasion which is evident from the photographs. According to the accused, Richa was very upset and depressed because of her odd timings of her Call Centre job in Excel and he offered her to send money for her so that she can quit her job and relaxed and after that he stated sending money to her regularly through Western Union Money Transfer and her parents were aware of the same. The accused has also stated that Richa was not dependent upon her parents for her day to day needs and every month he used to send her about Rupees 15­20 thousand. According to him, after the engagement they went to Shimla again for couple of days and after then they remained in constant contact through phone calls and the Internet on day to day basis and then they decided to get married on December 11, 2003. He has further stated that he paid for all the expenses on the marriage ceremony and he stayed at her house after the wedding and thereafter they went for honeymoon. Thereafter he left for Canada and started getting the St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 51 paper work ready to sponsor his wife Richa for permanent residency status in Canada on 16.3.2004 and he deposited 1500 Canadian dollars with TD Bank in Vancouver to the immigration authorities Canada for processing fee of the immigration of his wife Richa to Canada which application was accepted by the Canadian Immigration Authorities on 23.3.2004. Accused Pawan Dass has further stated that he also intimated the said fact to his wife Richa as well as her parents who wanted the proof of the same and as such he faxed the aforesaid documents to Richa's father. He has also stated that they were in constant touch over the phone and was giving her regular feedbacks about the processing of her immigration to Canada. According to him, Richa called him up on 2.4.2004 asking for extra Rupees 20,000/­ as she wanted to go to Mumbai with her mother to look after her ailing Mausi who was operated on which he told her that since he had already spent 1500 Canadian dollars for her immigration in March 2004, but he could only sent rupees 10­15 thousand and would arrange the remaining amount in two to three weeks. The accused has also stated that on 3.4.2004, he went to Western Union Money Transfer and transferred about rupees 12,000/­ to Richa and on 4.4.2004 his brother Raman called him and told him about the commission of suicide by Richa on which he shocked and tried to speak to her parents who did not pick up his phone. According to accused Pawan Dass he never had the occasion St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 52 to abuse or ridicule his wife Richa and wanted her to join him in Canada and they were planning to open up a boutique in Canada for which Richa was also doing a tailoring course. He has further stated that after reading the challan he came to know about the alleged suicide note has not been written by his deceased wife Richa and the same has been fabricated by her parents in connivance with the police officials to falsely implicate him and the same has not been written by Richa. The accused has also stated that he had not in any manner abetted the commission of suicide by his deceased wife Richa and the parents of his deceased wife used to taunt her that Pawan would use her and left her and he would not sponsor her to Canada due to which she was very upset. According to him, he tried to pacify Richa and used to convince her that papers and applications for processing her immigration to Canada had already been filed and her case was under process and very soon she would receive her call for interview. He has also stated that the parents of deceased received the letter from the Canadian immigration authorities for interview call of the deceased as he had duly met the eligibility criteria for sponsoring the permanent residency of his wife Richa to Canada. He is not aware what happened between Richa and her parents on 4.4.2004 which lead the deceased to take the extreme step.

In his defence accused Pawan Dass has examined himself as DW1 who has deposed that he had applied for obtaining a St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 53 sponsorship application to the case processing center in Mississauga, Canada received by the office of Immigration Section, High Commission of Canadain 23.3.2004 in response to which application the said office had provided the transaction record i.e receipt of case processing fee to the tune of 1525 Dollars on 16.03.2004 through T. D. Canada Trust Bank. According to him, the application was mailed by him to the immigration section on 18.3.2004 through Canada post receipt of which is Ex.DW1/A; the receipt of processing fee is Ex.DW1/B and a letter has been issued to him in this regard which is Ex.DW1/C. The accused was cross examined by the Ld. Addl. PP for the State wherein he has deposed that he had informed his deceased wife regarding the mailing of the application to the immigration section. According to him, on 16.3.2004 after depositing the money and it was on the next date when he informed her and faxed the copy of the same to her parents. He has admitted that document Ex.DW2/B which is from Canadian Trust does not bear any certification or authentication and that Ex.DW1/B does not bear any certificate of the banker nor does it bear the customer signatures or the signatures of the person who has prepared the same. He has also admitted that Ex.DW1/A is only the mail proof but does not certify what document or application was mail and that it does not bear any St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 54 stamp or certification of any agency in proof of its authentication. He is unable to tell the name of the person whose initials are present on Ex.DW1/C at point mark A but has denied the suggestion that he had manipulated these documents later on only as a matter of defence.

FINDINGS:

I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the accused as well as the prosecution. Ld. Counsel appearing on behalf of the accused has placed his reliance on the following authorities:

1. Rajib Neog Vs. State of Assam reported in 1 (2011) DMC

626.

2. Indrajit Kundu & Ors. Vs. State of West Bengal & Anr.

reported in 1 (2010) DMC 267 .

3. Amalendu Pal @ Jhantu Vs. State of West Bengal reported in VIII (2009) SLT 349 .

4. Gangula Mohan Reddy Vs. State of Andra Pradesh reported in 1 (2010) SLT 1.

5. Suraj Prakash Vs. State of Delhi reported in 135 (2006) DLT 135.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 55

6. Durga Prasad & Anr. Vs. State of Madhya Pradesh reported in (2010) 9 SCC 73.

7. Shyam Sunder Vs. State reported in 156 (2009) DLT 370.

I have gone through the aforesaid authorities. Before proceeding further it is necessary to discuss the provisions of Section 498­A and 306 Indian Penal Code. In order to succeed in charge under Section 498­A of the Indian Penal Code, the prosecution is required to prove that the accused had subjected deceased to cruelty, as defined in the explanation to the section. It is not every cruelty which is punishable under Section 498­A of the Indian Penal Code. The cruelty, so as to attract penal provisions, contained in Section 498­A of Indian Penal Code, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression "willful" in the explanation to Section 498­A of Indian Penal Code indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 56 injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498­A of Indian Penal Code.

The expression "Cruelty" takes in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498­A of Indian Penal Code.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 57

The expression "harassment" has not been defined in Section 498­A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. However, it is not harassment of every nature which is punishable under section 498­A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Under Section 498­A Indian Penal Code 'Cruelty' itself is punishable. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.

In so far as the provisions of Section 306 Indian Penal Code are concerned, it provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

In order to convict any person for instigating any person to commit suicide, it is to be established that the victim committed suicide. (Ref.: Wazir Chand Vs. State of Haryana reported in AIR 1989 SC 378). If the facts and circumstances establish suicide and there is dowry demand, Section 306 is attracted.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 58

Sections 498­A and 306 Indian Penal Code are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subject a woman to cruelty may amount to an offence under Section 498­A Indian Penal Code and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide, However, merely because an accused has been held liable to be punished under Section 498­A Indian Penal Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. [Ref.:

Ramesh Kumar Vs. State of Chattisgarh reported in 2001 (9) SCC 618].

Conviction of an accused under Section 306 IPC merely on basis of allegation of harassment of deceased is unsustainable in law. No evidence and material available on record where from an inference of accused having abetted commission of offence may be drawn. Deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in day to day life. Different people behave differently in same situation - Conviction of appellant unsustainable and set aside. [Ref: Gangula Mohan Reddy Vs. State of Andra Pradesh reported in 1 (2010) SLT 1]. St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 59

The word 'Suicide' in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and required no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

In our country, while suicide in itself is not an offence, considering that the successful offence is beyond to the reach of law, attempt to suicide is an offence under section 309 of IPC.

'Abetment' has been defined under section 107 of the Indian Penal Code which provides that:

"107. Abetment of a thing - A person abets the doing of a thing, who ­ First - Instigates any person to do that thing; or Secondly ­ engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."

Explanation 2 which has been inserted along with Section 107 reads as under :

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 60

"Explanation 2 - whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to be and the doing of that act."

The Hon'ble Supreme Court in the case of Ramesh Kumar vs. State of Chhattisgarh, reported in VII (2001)SLT 356 has in paragraph 20 has examined different shades of the meaning of "instigation" as under:

"20. Instigation is to goad, urge forwards, provoke, incite of encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 61 case an instigation may have been interred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."

In State of West Bengal Vs. Orilal Jaiswal & Another, reported in IV (1993) CCR 392 (SC) = (1994) DMC 138 (SC) = (1994) SCC 73 the Hon'ble Apex Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trail for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Further, in the case of Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) reported in VI (2009) SLT 584 = III (2009) DLT (Crl.) 1011 (SC) = IV (2009) CCR 1 (SC) = 162(2009)DLT St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 62 257 (SC) = 2009(11) SCALE 24 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word "instigation" and "goading". The Court opined that there should be in tension to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any strait­jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It is also required 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.

Also in the case of Mamta Sahu (Smt.) Vs. State of Delhi reported in 124 (2005) DLT 300 the Hon'ble Supreme Court has highlighted the ingredients of Section 306 of the Indian Penal St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 63 Code i.e. the offence of abetment of suicide in the following words [Ref: Shyam Sunder Vs. State reported in 156 (2009) DLT 370]:

"When Section 107 of the Indian Penal Code is read carefully, it is clear that for constituting abetment, the accused should either instigate any person to do the thing or engages with one or more other person or persons in any conspiracy for the doing of that thing of intentionally aid by any act of omission the doing of that thing. There are two explanations to this Section. A person who by willful misrepresentation, or by willful concealment of a material fact can be said to have instigated the thing which is done on account of such concealment or misrepresentation. Explanation 2 prescribes that an abetment can be done either prior to or at the time of the commission of that act. In the present case, there is nothing to suggest that the accused had instigated or aided the deceased in commission of suicide.

Nor is there any evidence to show that she had engaged with some other person or persons for doing any act. There is no evidence that any St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 64 concealment or misrepresentation on her part had led the deceased to commit suicide. There is no evident hat she in any way did anything to facilitate the commission of suicide by the deceased."

Applying the settled principles of law to the facts and circumstances of the present case Firstly it stand established that the marriage between accused Pawan Dass and the deceased Richa was their second marriage, both of them being Divorcees' which marriage had taken place after Richa had converted to Christianity. The said marriage was solemnized on 11.12.2003.

Secondly it also stands established that immediately after fifteen to twenty days of the marriage the accused had left for Canada and told the deceased that he would send the immigration papers which papers never reached her during her life time.

Thirdly it is also established that during this period the deceased Richa resided with her parents in their house and was learning stitching and tailoring to prepare herself for an employment after she shifts to Canada with the accused which aspect is admitted by the accused.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 65

Fourthly it is also admitted by the accused Pawan Dass in his statement under Section 313 Code of Criminal Procedure that the deceased was in regular touch with him and used to speak to him on telephone and also used to chat him through Internet on day to day basis.

Fifthly it is evident from the testimonies of both the parents of the deceased i.e. father Ramesh Saproo (PW1) and mother Shashi Saproo (PW10) that during this period after the accused had went back to Canada he was interacting with his ex­wife and children out of his first marriage which disturbed the deceased Richa as she had been given to understand by the accused that he had nothing to do with them. Under these circumstances, the deceased who had been left behind in India by the accused after their marriage felt cheated and obviously become insecure about her relationship with the accused.

Sixthly it is also evident that after her marriage with the accused the deceased who was a highly qualified girl having done her English Honors from Delhi University; Diploma in tourism and travel; commercial art diploma and was also an MA in Bharatnatyam from Prayag University did not want to be a a burden on her parental family and therefore, the accused proposed to send her money i.e. 15,000/­ to 20,000/­ dollars per month through the Western Union Money Transfer but a day prior to her death when the deceased went St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 66 to collect the money for Western Union Money Transfer, she came to know that the accused had blocked the same.

Seventhly the prosecution has also established that before committing suicide on 4.4.2004 the deceased Richa had made telephone calls to the accused Pawan Dass from the ISD Booth of Manish Kohli (PW3) but could not speak to him the aspect which stands from the telephone slips place on record which are Ex.PW3/A, PW3/B and PW3/C. Eighthly the case of the prosecution is that the suicide note Ex.P­1 had been left behind by the deceased which suicide note had been handed over by Ramesh Saproo to the Investigating Officer SI Rajender Prashad Singh on 4.4.2004 itself. However, the record reveals that the said note was seized by SI Rajender Prasad only on 6.4.2004 i.e. two days later as evident from the the seizure memo Ex.PW9/B. No explanation is forthcoming as to why this suicide note was seized after two days on 6.4.2004 despite the fact that it was recovered on 4.4.2004. Both Ramesh Saproo (PW1) and Smt. Shashi Saproo (PW10) have not mention about this fact of the deceased Richa leaving behind a suicide note in their statements made to the SDM on 5.4.2004. It is also the case of the prosecution that the handwriting of the deceased has been got matched with her admitted handwriting as she used to write a diary which diary was also handed over to SI Rajender Prashad on 4.4.2004 but interestingly there is no St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 67 seizure memo of the said diary nor the suicide note or the diary have been photographed by the Crime Team. During the course of trial this court has been informed that the original diary has been misplaced and no inquiry has been conducted to identify the person responsible for the same. Attested photocopies of the pages of the diary Ex.P­2 which were handed over to the handwriting expert in the FSL i.e. Anurag Sharma, Senior Scientific Officer (Documents) who has been examined as PW2, have now been claiming that they were a part of the diary written by the deceased. The prosecution has not been able to connect the said pages to the deceased and the FSL report Ex.PW2/A only proves that the writer of the diary and the suicide note was the same person. Under these circumstances it was necessary for the investigating officer to have collected the admitted handwriting of the deceased either from her bank or her educational institution or the place of her employment and to have get the same tallied with the suicide note which he has not done and therefore, it is not safe to rely upon the suicide note allegedly left behind by the deceased without there being sufficient independent corroboration. No doubt, conviction cannot be based upon the suicide note not have been proved beyond reasonable doubt yet the same can always be looked into for collateral purposes.

Lastly the manner in which the Investigating Officer has conducted the investigations leaves much to be desired. The St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 68 investigations have been conducted in a most unprofessional manner. The Investigating Officer has been most insensitive to the plight of the deceased and her family. He did not even bother to do the minimum as was required of him and did not collect the evidence to ascertain the reasons when the deceased had committed suicide. The parents of the deceased having lost their only daughter under tragic circumstances it is only natural that they would have been in a state of shock. Imagine the plight of mother and father who have to get the body of their young daughter hanging on the ceiling fan down hoping against hope to revive her. Is it possible for them to have give the entire details to the investigating officer at that moment? Was it not the duty of the investigating officer and the SDM to have made detailed inquiry from the parents by putting them specific queries to them to elicit the truth rather than simply recording their stereo­typed statements? I may observe that the Investigating Officer defaulted on number of counts and should have done the following which he did not do:

➔ To have seized the suicide note at the earliest opportunity. ➔ To have informed the SDM about the suicide note or to have handed over the same to him.

➔ To have collected the admitted handwriting of Richa from her educational institutions, bank or place of her employment rather than taking the diary from her father, St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 69 ➔ To have ensure that the said diary from which the admitting handwriting was taken, was properly preserved and got connected with the deceased. It is shocking for this court to observe that the said diary has been lost by the investigating officer during the investigations and it is only the loose sheets of pages of the diary which were sent to the FSL copies of which have now been placed on record.

➔ To have seized the CPU and the computer system installed in the room of the deceased and retrieved the chatting record since it is an admitted case that before her death Richa was regularly chatting with the accused.

➔ To secure the call details from the service provider in respect of the calls made by the deceased from the ISD Booth to the accused or vice­a­versa which call details would have been available at the given point of time.

➔ To have verified the transfer of amount if any, to the deceased Richa by the accused Pawan Dass from time to time by way of Western Union Money Transfer and to ascertain the last transfer and also whether it was blocked by the accused a day prior to the death of the deceased or not.

I may observe that there are two stages in the criminal prosecution. The first obviously is the commission of the crime and St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 70 the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

In view of my aforesaid discussion and after having applied the settled principles of law to the facts of the present case, in so far as the aspect of abetment to suicide is concerned there is no active/ direct act of the accused intending to incite, urge, push, provoke and instigate the deceased Richa into a position that she committed suicide. However, in so far as the aspect of the harassment and cruelty is concerned, it is evident that the deceased Richa was a young girl aged about 26 years and was highly qualified having done her English Hons. from Delhi University, Diploma in tourism and travel; commercial art diploma and was also MA in Bharatnatyam from Prayag University. After having suffered a failed marriage she was very excited about her second marriage with the accused and had planned her future with him despite her parents had initial opposition as she was asked to convert to Christianity. She planned her life with the accused which is evident from the fact that she was also learning stitching and tailoring and planned to open a Boutique at Canada after she shifts to Canada with the accused. St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 71 What is it that suddenly made her to end her life?

In this regard the testimony of Ramesh Saproo (PW1) and Smt. Sahshi Saproo (PW10) are most relevant. The father of the deceased namely Ramesh Saproo (PW1) has specifically alleged and proved:

(a) That his daughter Richa was compelled to convert into Christianity.

(b) That after about one month of marriage she was left by the accused at Delhi at their house while the accused himself went to Canada.

(c) That the accused promised Richa that he would send her the immigration papers which papers did not reach her during her life time.

(d) That the accused used to speak in filthy language with the deceased Richa on telephone.

(e) That Richa had been mislead since on the one hand the accused Pawan Dass assured Richa that he had no links with her ex­wife and children whereas on the other hand the accused was in regular touch with his ex­wife and children at Canada.

(f) That Richa had left her job and learning stitching and had no support system.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 72

(g) That the accused had blocked the money which he (accused) used to sent through Western Union Money Transfer.

The mother of the deceased namely Smt. Shashi Saproo (PW10) has also specified the allegations against the accused which are as under:

(a) That after 15 to 20 days of the marriage, the accused Pawan Dass went back to Canada and told Richa was he would send her immigration papers which were not received during her life time.

(b) That every time when her daughter used to speak to the accused she got upset and on asking she informed her that accused was using abusive language on her.

(c) That a few days before her death when Richa spoke to the children of Pawan Dass they disclosed that they had gone out with their mother and Pawan on which she became very upset.

(d) That the accused had blocked the money which he used to sent through Western Union Money Transfer.

In ascertaining whether there existed any cruelty physical, mental, psychological or emotional the test to be applied under the given circumstances is that of a reasonable person. The deceased was a highly qualified girl and had already suffered a failed marriage. Under the given circumstances when she came into contact with the St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 73 accused she was lured into marriage and despite the initial inhibitions of her parents, she agreed to the demands of the accused for conversion to Christianity before her marriage. At the time when the accused left her (deceased) at her parents house after he went away to Canada, she was learning stitching so that after she could join him at Canada and would be in a position to provide additional financial assistance so as to enable him to run the family. Any other woman similarly placed as the deceased, would have similarly felt exploited and cheated. The accused under the given circumstances cannot be permitted to take a refuge of the nuances of law. Justice has to be done to deceased Richa. This is not an isolated case of Richa but also a story of thousands of other girls coming from middle class family who continue to suffer in silence after falling prey to these Non Resident Indian men who after coming to India on short visits lure them into marriage by selling tall dreams and thereafter abandon them leaving them to fend for themselves.

Of late a large number of cases have come to light where the Non Resident Indians have been exploiting young qualified Indian women in search of bright future in the name of marriage. Single women particularly divorcee are easy preys/ targets and often in a hope to get away from the existing anxieties and pressures of day to day life they become victims to these Non Resident Indian men who sell them tall dreams of a bright life away from their homes and St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 74 after marriage abandoned them causing physical, mental and psychological deprivation to them as has happened in the present case. If neglecting one's newly married wife at her parental house within fifteen days of her marriage and depriving her of the company of her husband is not cruelty, what else is it? If using filthy/ abusive language to the newly married wife on telephone is not cruelty then what else is it?

Pawan Dass the accused before this court left his newly married wife after fifteen days of the marriage at her parents and he himself flew away to Canada. While the deceased suffered marital neglect at her parents house in India, he was simultaneously enjoying his life with his ex­wife and children in Canada. It is understandable that the accused Pawan Dass could enjoy the visitation rights with his children from the first marriage but what appears objectionable is the fact that at the time of marriage with Richa he gave a different impression to her (deceased) claiming that he had nothing to do with his ex­wife and children from the first marriage whereas on the contrary he was in regular touch with them. Under these given circumstances, if avoiding to have contact with the newly married wife who the accused has abandoned in India and blocking her maintenance amount is not cruelty then what else is it. The answer lies in the provisions of Section 498­A Indian Penal Code Explanation (a) which takes into its ambit all such cases of St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 75 harassment including mental cruelty and the courts are not helpless to ensure that the justice is done.

No doubt the accused cannot be held guilty of the offence under Section 306 Indian Penal Code but where the husband inflicts mental cruelty and harassment to his wife by abandoning her at her parental house within fifteen days marriage; depriving her of cohibition and his company which leads to death of the wife on account of suicide, there is no reason why he cannot be convicted for the lesser offence under Section 498­A (Part­I) Indian Penal Code. Any willful conduct of the husband which may drive a woman to commit suicide or cause grievous injury or danger to her life or health is punishable under Section 498­A Indian Penal Code. FINAL FINDINGS:

In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 76

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Applying the above principles of law to the present case, it is evident that the identity of the accused Pawan Dass stands established. It also stands established that the marriage between the accused and the deceased Richa was solemnized on 11.12.2003 after Richa converted into Christianity. Further, it has been established that after some time the accused had gone to Canada and left Richa at her parental home and promised Richa that he would arrange for her St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 77 immigration papers which papers were never received during her life time. It is also established that the deceased was in regular contact with the accused through telephone and Internet and the accused was sending money to Richa through Money Transfer which she used to withdraw and use. It is further established that there was a delay in sending the immigration papers and one day prior to the date of incident the accused Pawan Dass blocked the amount being sent to her and on the very next day i.e. 4.4.2004 Richa committed suicide by hanging herself. The prosecution has been able to prove that the accused Pawan Dass inflicted mental cruelty upon the deceased Richa by neglecting and abandoning her soon after marriage, by using abusive language and by blocking the amount. It also stands established that at the time of marriage the accused gave an understanding to the deceased that he had no links with his ex­wife and children whereas he was in regular contact with them after his marriage with the deceased Richa due to which reason the deceased felt exploited and cheated.

The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 78 supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and the witness of the prosecution have been able to built up a continuous link.

In view of the aforesaid, I hold the accused Pawan Dass guilty of the offence under Section 498­A (Part­I) Indian Penal Code for which he is accordingly convicted. He has however been acquitted of the offence under Section 306 Indian Penal Code.

Case be listed for arguments on sentence on 7.7.2011.

Announced in the open court                                     (Dr. KAMINI LAU)
Dated: 5.7.2011                                                 ASJ­II(NW)/ ROHINI




St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar                           Page No. 79 
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
    JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Session Case No. 945/08
Unique Case ID No.: 02404R0445122008

State                           Vs.             Pawan Dass
                                                S/o Sh. Prem Lal Dass
                                                R/o 6311/124, Street Surrey
                                                B.C. Canada

                                                Also at:
                                                5/1, 2nd Floor, 
                                                Indira Vikas Colony,
                                                Near Nirankari Colony,
                                                Delhi ­ 110009
                                                (Convicted)

FIR No.:                                        152/04
Police Station:                                 Mukherji Nagar
Under Sections:                                 498A/306 Indian Penal Code


Date of Conviction:             5.7.2011

Arguments heard on: 7.7.2011

Date of Sentence:               7.7.2011


APPEARANCE:

Present:        Sh. R.A. Yadav, Addl. Public Prosecutor for the State.

                Convict Pawan Dass in judicial custody with Sh. 

                Prabhjeet Jauhar Advocate.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar                           Page No. 80 
 ORDER ON SENTENCE:

                               Vide   my   detailed   judgment   dated   5.7.2011,   the 

accused Pawan Dass has been held guilty of the offence under Section 498­A (Part­I) Indian Penal Code and accordingly convicted. He has, however, been acquitted of the charge under Section 306 Indian Penal Code.

The accused before this court namely Pawan Dass is a Non Resident Indian (NRI) residing at Canada who had been coming to Delhi for short visits and during his visits, he came into contact with Richa (deceased) and developed friendly relations with her. Both the accused Pawan Dass and the deceased Richa were divorcees and they decided to marry each other. However, the accused compelled Richa to convert her to Christianity only after which on 11.12.2003 they get married. After about fifteen days the accused left Richa at her parental house while he himself flew away to Canada and promised Richa to send her the immigration papers which papers never received during her life time. Before marriage the accused Pawan Dass had made to understand Richa and he had no links with her ex­wife and children but when Richa interacted with the children of Pawan Dass she was told by them that they were enjoying with their mother and father i.e. accused Pawan Dass which was contrary to the understanding given to her by the accused. After having come to know of this Richa felt exploited and cheated. It has been alleged that the a few days prior to St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 81 her death when the deceased Richa talked to the accused on telephone, he used filthy/ abusive language with her. Further, a day prior to her death when Richa went to Kamla Nagar Market to withdraw the amount which the accused used to sent her through Western Union Money Transfer, she came to know that the said amount has been blocked by the accused after which was very disturbed and tried to contact the accused even on the date of her death i.e. 4.4.2004 when she committed suicide by hanging herself on a ceiling fan.

Charges under Sections 498­A/306 Indian Penal Code were settled against the accused. However, on the basis of the testimonies of the parents of the deceased and various other witnesses examined by the prosecution, this court has held the accused Pawan Dass guilty of the offence under Section 498­A (Part­I) Indian Penal Code and accordingly convicted. He has, however, been acquitted of the charge under Section 306 Indian Penal Code.

This court vide detailed judgment dated 5.7.2011 has observed that of late a large number of cases have come to light where the Non Resident Indians have been exploiting young qualified Indian women in the name of marriage. Single women particularly divorcee are easy preys/ targets and often in a hope to get away from the existing anxieties and pressures of day to day life they become victims to these Non Resident Indian men who sell them tall dreams of a bright life away from their homes and after marriage abandoned them St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 82 causing physical, mental and psychological deprivation to them as has happened in the present case. If neglecting one's newly married wife at her parental house within fifteen days of her marriage and depriving her of the company of her husband is not cruelty, what else is it? If using filthy/ abusive language to the newly married wife on telephone is not cruelty then what else is it?

It was also observed that Pawan Dass the accused before this court left his newly married wife after fifteen days of the marriage at her parents and he himself flew away to Canada. While the deceased suffered marital neglect at her parents house in India, he was simultaneously enjoying his life with his ex­wife and children in Canada. It is understandable that the accused Pawan Dass could enjoy the visitation rights with his children from the first marriage but what appears objectionable is the fact that at the time of marriage with Richa he gave a different impression to her (deceased) claiming that he had nothing to do with his ex­wife and children from the first marriage whereas on the contrary he was in regular touch with them. Under these given circumstances, if avoiding to have contact with the newly married wife who the accused has abandoned in India and blocking her maintenance amount is not cruelty then what else is it. The answer lies in the provisions of Section 498­A Indian Penal Code Explanation (a) which takes into its ambit all such cases of harassment including mental cruelty and the courts are not helpless to St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 83 ensure that the justice is done.

Finally this court while acquitting the accused Pawan Dass of the offence under Section 306 Indian Penal Code observed that where the husband inflicts mental cruelty and harassment to his wife by abandoning her at her parental house within fifteen days marriage; depriving her of cohibition and his company which leads to death of the wife on account of suicide, there is no reason why he cannot be convicted for the lesser offence under Section 498­A (Part­I) Indian Penal Code. Any willful conduct of the husband which may drive a woman to commit suicide or cause grievous injury or danger to her life or health is punishable under Section 498­A Indian Penal Code.

I have heard the arguments on the point of sentence. Ld. counsel for the convict has vehemently argued that the accused is the sole bread earner of his family and even has a minor child aged about four and a half years old whose custody has been granted to him by the Canadian Courts. He requests that a lenient view be taken against the convict and seeks the benefit of Probation of Offenders Act to be given to the convict and submits that the convict is ready and willing to abide by the condition of probation including that of Community Service if released on probation. In support of his contentions Ld. Counsel for the convict has placed his reliance on the authorities of St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 84 Roshanali Burhanali Syed Vs. State of Gujarat reported in AIR 1982 SC 784 and Ved Prakash Vs. State of Haryana reported in AIR 1981 SC 643.

Ld. Addl. Public Prosecutor for the State on the other hand has prayed for a strict punishment against the convict keeping in view the allegations involved.

I have considered the rival contentions. The convict Pawan Dass is aged about 43 years and has a family comprising of aged widow mother, one brother and one sister. He is a Graduate from Delhi University and is working in a Jewellery shop. He has no other criminal case pending against him and has remained in judicial custody for about eleven months and seventeen days. I have also considered the grounds raised by the convict in his application wherein he has requested for grant of benefit of Probation of Offenders Act and has stated that as a condition of probation he may be given an opportunity to do social/ community service. He has also submitted to the court that in order to atone for his wrong he may be permitted to serve the community. During the course of arguments this court has orally asked the convict as to what kind of service he would like to opt and prefer. The convict submits that he would prefer to serve in the School for Blind.

Remorse is the punishment of crime: Repentance its expiation. The former appertains to the tormented conscious: the St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 85 latter to a soul changed for the better (Ref: Quote by Joseph Joubert).

Justice is required to be administered with comparison. The convict is not a previous offender and is also not involved in any other case. He has suffered a failed marriage and has the custody of his minor child from his first marriage. Any harsh view will be detrimental to the interest of the child. Under the given circumstances, the ends of justice would be met in case if the benefit of the Probation of Offenders Act is given to the convict along with a condition of Community Service. I hereby direct that the convict Pawan Dass be released on probation of good conduct under the provisions of the Probation of Offenders Act, 1958 for a period of one year with supervision, on his furnishing a personal bond in the sum of Rs.50,000/­ with one surety of the like amount and on a further condition that the convict Pawan Dass shall render service in the School for Blind for a period of six months, for at­least three days in a week for a minimum period of one hour on each day.

I am informed by the convict that a School for Blind is being run by the Delhi Government at Sewa Kutir Complex, Autumn Line, Kingsway Camp, Delhi - 110009 and he is willing to offer his services there. Therefore, under these circumstances, I direct the convict to report to the Superintendent/ Incharge (or any St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 86 other duly authorized person in this regard by the Management) of School for Blind within one week of his release in order to undertake the duties assigned to him for the period as aforesaid. The Inchage/ Superintendent, School for Bind shall ensure that the convict Pawan Dass effectively discharge the duties assigned to him. The Superintendent/ Incharge (or any other duly authorized person in this regard by the Management) of the School for Blind shall fix the time table of the convict after due consultation with him from time to time and shall also ensure that the time for community service does not adversely affect the carrier of the convict and shall forward a monthly report in respect of the convict to the Probation Officer and to the court. In case of any absenteeism/ default or breach of condition of probation on the part of the convict, the same shall be brought to the notice of the Probation Officer and also the court. It is clarified that in case of such default or repetition of offence, the convict Pawan Dass shall have to undergo Simple Imprisonment for a period of one year.

The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar Page No. 87

Copy of the judgment and order on sentence be given to the convict free of cost and another be attached with his jail warrants.

Copy of this order is also directed to be placed before the Probation Officer, Superintendent/ Incharge, Sewa Kutir Complex (School for Blind), Autumn Line, Kingsway Camp, Delhi - 110009 and the Station House Officer of police station Mukherjee Nagar for purposes of compliance under intimation to this court as directed herein above.

File be consigned to Record Room.

Announced in the open court                                         (Dr. KAMINI LAU)
Dated: 7.7.2011                                                   ASJ­II(NW): ROHINI




St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar                           Page No. 88 
 St. Vs. Pawan Dass, FIR No.152/04, PS Mukherjee Nagar                           Page No. 89