Delhi District Court
State vs Sarvjeet on 28 February, 2011
IN THE COURT OF SHRI R.K.CHAUHAN: A S J/SPL JUDGE
(NDPS) (WEST) DELHI
FIR no. 25/10
Unique Case ID no.02401R0176302010
Police station : Moti Nagar
U/s 302/304B/498A IPC
State V/s Sarvjeet
1. Session Case no. : SC no. 50/10
2. Name of the accused : Sarvjeet S/o Late Kishan Singh
and parentage Gill R/o WZ81/1, Gali no. 10,
Ram Garh Colony, Moti Nagar,
Delhi.
3. Date of commission of : 30/01/2010
offence
4. Arguments concluded : 21/01/2011
on
5. Date of Judgment : 26/02/2011
6. Date of final order : 28/02/2011
JUDGMENT
1) According to the prosecution case deceased Chandani was married to accused on 20/10/04 as per Arya Samaj rites and sprituals which was a love marriage between them and her parents did not participate in the same . Her father Shanti Prakash Sardana FIR no. 25/10 Page no..............1/ has alleged that they have accepted their marriage but accused started harassing the deceased for demand of dowry. He used to ask her to bring car, refrigerator and other household articles and he was threatening her with death and deceased used to weep as and when she visited her parent's house and complaining that accused used to beat her. Accused has given an affidavit in the year 2006 not to repeat his mistakes. Therefore, he has suspected the accused for causing death of his daughter Chandani because he had been continuously harassing her for bringing dowry and had been beating her on that account. These allegations were made by him on 01/2/2010 after postmortem of his daughter who was brought dead to Acharya Bhikshu hospital Moti Nagar by him and her husband (accused) on 30/1/2010 at about 3.15am. At that time Shanti Prakash Sardana did not make any statement stating that he would make the statement after his son Atul returned from London and his wife returned from Kota, Rajasthan. As per postmortem report Ex. PW15/B the deceased was having external injuries i.e fractured nasal bone with brusing , Subdural Haematoma was present on the right tempero parital region . The cause of death was kept pending till the result of the FSL and Histopathological study report and it was stated that the association of assault on the part of her death FIR no. 25/10 Page no..............2/ could not be ruled out and all the injuries were antemortem. After receiving the FSL report and histopathological study report the Autopsy Surgeon Dr. B . N. Mishra has given his final opinion regarding cause of death on 25/10/2010. In his opinion the cause of death was due to coma caused by Cranio cerebral injury (head injury) by means of hard blunt and forceful impact upon head. The possibility of homicide cannot be ruled out.
2) During investigation accused was arrested and after completion of investigation a chargesheet was filed before the Ld. MM who after the completing the proceedings committed the case to the court of Sessions which was assigned to my Ld. Predecessor on 13.5.2010 . This case was received on transfer on 18.9.2010.
3) On 19/05/2010 Ld Predecessor Ms. Nivedita Anil Sharma Ld ASJ, West, Delhi framed charge under section 498 A/304B/302IPC against the accused to which he pleaded not guilty and claimed trial.
4) In support of its case prosecution has examined in total 21 witnesses.
5) The brief summary of the deposition of the prosecution
witnesses is as under:
FIR no. 25/10 Page no..............3/
FORMAL WITNESSES
6) PW3 Pandit Dhanajay Diwedi has proved the copy of
marriage certificate markA regarding Arya Samajic marriage of accused and deceased.
7) PW7 HC Bricha Singh working as duty officer recorded the FIR and has proved it as Ex. PW7/A.
8) PW9 ASI Jai Singh working as Incharge in Mobile Crime Team has proved the report Ex. PW9/A prepared on 30/01/2010.
9) PW13 HC Rajesh Kumar working as MHC(M) of Police Station Moti Nagar has proved the entry at serial no. 2318/10 Ex. PW13/A; serial no. 2318/10 Ex.PW13/B; serial no. 2319/10 Ex. PW13/C; proved the entry Ex.PW13/D and FSL result received on 30/6/2010 and made the relevant entry in that regard Ex. PW13/A.
10) PW14 Ct. Harender Rana has taken the body of the deceased Chandani on 01/02/2010 to the DDU hospital for postmortem and deposited the body in the mortuary. Thereafter, he alongwith ASI Krishan Chander went to the residence of the accused and found the premises locked and Mr. Atul, brother of deceased gave information that accused Sarvjeet was standing at the Moti Nagar, Metro Station for going somewhere and they reached at FIR no. 25/10 Page no..............4/ Moti Nagar, Metro Station and the accused was apprehended and brought to the Police Station Moti Nagar and he had taken the accused to the DDU hospital for his medical examination.
11) PW16 Ct. Jai Prakash deposed that on the night of 29th and 30th January, 2010 on receiving an information from the duty officer he reached at Acharya Bikshu hospital and where he met ASI Krishan Chander; the dead body of Chandani W/o Sarvjeet was taken to DDU hospital to preserve it for postmortem. The belongings i.e nose pin and the tops of the deceased were handed over to ASI Krishan Chander which were converted into sealed parcel sealed with the seal of KC seized vide seizure memo Ex. PW11/B.
12) PW17 SI Mahesh was posted as draftsman in Crime branch and on 03/03/2010 on the request of Inspector Jagminder Singh he has prepared the scaled site plan Ex. PW17/A.
13) PW18 Ct. Anil Kumar has deposed that on 25/10/2010 he obtained from the MHC(M) one sealed polythene containing JarA, JarB and JarC alongwith sample seal of DFMT DDU hospital for depositing the same to FSL, Rohini vide RC no. 10/21 and received copy of RC was handed over to the MHC (M).
FIR no. 25/10 Page no..............5/ 14) PW19 Ct. Anil Kumar working as photographer in Mobile
Crime team on 30/01/2010 and on the request of Investigating Officer he has taken the photographs of the spot with different angles. He has proved the negative Ex. PW19/1 to Ex. PW19/5. The positives are Ex. PW19/6 to Ex. PW19/10.
15) PW20 HC Mewa Ram working as Duty officer has recorded the DD no. 6 in the RojnamchaA Ex. PW11/A regarding receiving of information from Acharya Bhikshu hospital that Chandani W/o Sarvjeet R/o WZ81/1 Gali no. 10 Ramgarh Colony was brought into the hospital by her father and husband who was declared brought dead. The said DD was marked to ASI Krishan Chander.
MATERIAL WITNESSES
16) PW1 Shanti Prakash Sardana is the father of deceased and has proved his complaint Ex. PW1/A. He has rushed deceased to hospital alongwith accused after having been informed by the accused about unconscious condition of the deceased. He has deposed that he has received the telephone call from Sarvjeet (accused) at 1.45am and reached at house no. 81/1, Gali no. 10 Ram Garh Colony, Delhi where her daughter was lying unconscious and FIR no. 25/10 Page no..............6/ thereafter they took her to hospital.
17) PW2 Rajni Kapoor is land lady of the accused who was informed by the accused at about midnight after knocking at her door; she has accompanied the deceased alongwith her father and accused to Khetrapal hospital. She has deposed that on that night accused was with his wife and further deposed in crossexamination that she had never seen the accused maltreating his wife or fighting with neighbours during the stay in her accommodation.
18) PW4 Shivdesh Kumar was tenant in the same premises since April, 2009; he was called by Rajni Kapoor daughter of landlord alongwith accused and was informed that wife of the accused had become unconscious.
19) PW5 Shiksha Sardana is the wife of brother of deceased; she was awakened by her father in law at about 2am in the night and informed about receiving of the telephonic call from accused; she alongwith father in law went to the house of the accused and saw Chandani (deceased) was fainted and without sense; she alongwith accused, father in law and landlord took Chandani to the Khetrapal hospital where she was declared brought dead. She further deposed that Sarvjeet told to her that quarrel had taken place between FIR no. 25/10 Page no..............7/ him and Chandani thereafter Chandani become unconscious.
20) PW6 Atul Sardana is the brother of the deceased who was living in London at the time of incident and was informed telephonically. He has deposed that his sister was killed by the accused as there was no other person at the time of incident in their house; that the accused started harassing his sister and demanding car, T.V. Fridge and other household articles after sometime of marriage. Accused was apprehended in his presence on 01/02/2010. In crossexamination he has stated that he had telephonic conversation with accused when informed about the incident and when he enquired from the accused he had told him that there was fight with him and deceased and that he has given a push on her neck and thereafter she was not getting up.
21) PW13 Mr. R. K. Saini, Executive Magistrate/Tehsildar, Patel Nagar has deposed that on 01/02/2010 on receiving the information from Inspector Jagminder Singh that a lady Chandani has died in unnatural circumstances had gone to DDU hospital; there he met Shri Shanti Prakash Sardana and Atul Sardana father and brother of the deceased and recorded their statements Ex.PW1/B and Ex. PW6/A and issued the directions for taking action as per FIR no. 25/10 Page no..............8/ law on Ex. PW1/B; the dead body was sent for postmortem and the request for the postmortem Ex. PW13/A which bears his order from pointA to A; form 25.35 regarding the death report is Ex. PW13/B.
22) PW11 ASI Krishan Chander has reached in the Acharya Bhikshu hospital at 3.25am on receiving DD no. 6A Ex. PW11/A where Chandani was found dead. He called the crime team and got the spot inspected and also called area SDM and on 01/02/2010 got the postmortem done and arrested the accused.
23) PW21 Inspector Jagminder Malik was posted as Addl. SHO of PS Moti Nagar on the date of incident . He further deposed that on 01/02/2010 statement of Shanti Prakash Sardana Ex. PW1/B was recorded by SDM Shri R. K. Saini Executive Magistrate. He has carried out investigation alongwith ASI Krishan Chander and Ct. Narender; he has recorded the statement of the witnesses and prepared the site plan Ex. PW21/D and placed on record FSL report Ex. PW21/E, the subsequent FSL report Ex. PW21/F and subsequent opinion regarding cause of death from the doctor B. N. Mishra as Ex. PW15/A. He has proved the call details of mobile phone of accused and Shanti Prakash Sardana and Smt Shiksha Sardana as Ex. PW21/I. MEDICAL WITNESSES FIR no. 25/10 Page no..............9/
24) PW8 Dr. Naveen Tyagi, JR ESI hospital has deposed that on 30/01/2010 patient Chandani was brought to hospital (at 2.15 a.m) vide entry no. 332/10 dated 30/01/2010 and the patient was brought dead. He has proved the casualty register markA.
25) PW12 Dr. Manish has deposed that on 30/01/2010 he was posted at Acharya Bikshu Govt hospital as Junior resident and examined Chandani brought in the casualty(at 3.10 a.m) and found brought dead. He has proved the casualty card Ex. PW12/A and ECG Ex. PW12/B.
26) PW15 Dr. B. N. Mishra has deposed as under: " On 1.2.2010 at 1.15 p.m I started the autopsy on the dead body of Chandani aged 25 and half years female wife of Sarvjeet and daughter of Shri Shanti Parsad Sadana on an application made by the Investigating Officer already Ex. PW13/A with the alleged history of brought dead in the casualty of Acharay Shree Bhikshu , Govt Hospital Moti Nagar , New Delhi vide registration no. 3508/10 dated 30.1.2010 at 3.10 a.m as per inquest papers . No any other detailed history available . Both eyes were closed with day and hazy cornea . Mouth was also closed , RM passed off , PNL present on the back except pressure area, blood clots present in bilateral nasal cavity . EXTERNAL INJURIES :
1) Fractured nasal bone with brusing of adjuscent tissue and collection of blood clots in the nasal cavity and torn nasal FIR no. 25/10 Page no..............10/ Macosa with dark reddish in colour,
2) Two apartly placed linear Bruise of size 03 X 1 cm and 2.5 cm X 1 cm respectively with vertical placement at lower part of back over lumber spine with reddish brown in colour ,
3) Abrasion of size 4 X 2 cm present on the right lower part of the back 5 CM apart from external injury no. 2 with reddish brown in colour .
4) Abrasion of size 2 X 2 cm present on the left side of cheek bone with reddish brown in colour
5) Nails marks in cresentric shape present on the right side of cheek bone and 2 cm below from the Lateral canthus of right eye with reddish brown in colour
6) Bruise of size 1 cm X 0.5 cm present on tip of the right shoulder with reddish brown in colour
7) Bruise of size 4 X 5 cm present on the thenier eminence of right palm with dark reddish colour, Blood clots on section HEAD : Subdural Haematoma present on the right tampero parital region wit thick layered and dark red in colour . Whole brain oedematous with flatened gyri of the brain with relatively congested meninges of the Brain.
Both lungs congested , heart and pericardial section - All chambers were filled by liquid and clotted blood and normal appearance of pericardium and pericardial sac. The time since death about two and half days prior to postmortem examination and same of duration the manner and cause of death will be opined after receiving of the report of FSL and histopathological reports . However the association of assault on the part of her death could not be ruled out . All injuries were antemortem.
Histopatholgy of parts of bilateral lungs, liver both FIR no. 25/10 Page no..............11/ kidney, spleen and heart alongwith blood and viscera preserved in common salt solution to rule out any pathology and poisoning."
The cause of death in this case is due to comma . After going through FSL report and Histopathological study report , it is opined that the cause of death was due to comma caused by Cranio cerebral injury (head injury) by the means of hard blunt and forceful impact upon head. The possibility of homicide cannot be ruled out. Subsequent opinion dated 25.10.10 is Ex. PW15/A. The postmortem report is Ex. PW15/B bears my signatures at point X."
27) Accused u/s 313 Cr.PC has denied the allegations stating that he was innocent and falsely implicated in this case and he had never fought with his wife Chandani; however, she was sick and lying on the bed because of weakness she could not even go to natural calls and she fell down from the bed ; he immediately called his father in law and her brother to come to his house ; he alongwith them rushed to her to a hospital.
ARGUMENTS OF DEFENCE
28) Ld counsel for accused argued that prosecution has miserably failed to prove its case on all the charges because of the following reasons:
(i) First information regarding incident was received vide DD no. 6A Ex. PW11/A. After attending the said call ASI Krishan FIR no. 25/10 Page no..............12/ Chander has made the return entry vide DD no. 13B and all the facts which came to be known by the IO are mentioned therein which was sufficient information to investigate after registering the case but the FIR has been manipulated after return of brother of the deceased from London so as to falsely implicate the accused in this case.
(ii) FIR was registered on 01/02/2010 and crime team has already reached the place of incident vide Ex. PW9/A and not found any extraordinary thing on the spot. Even photographs Ex. PW19/6 to Ex. PW19/10 taken by the crime team has shown any untoward on the spot. Despite the fact crime team has visited the place within 2 hours of the incident.
(iii) Inquest report Ex. PW13/B prepared on 30/01/2010 has shown no injuries on the body of the deceased.
(iv) Casualty card Ex. PW12/A has not shown any injury/illness of the deceased.
(v) Affidavit Ex. PW12/C dt. 22/11/2006 was given by the accused two years ago and same does not mention anything regarding torture / harassment due to the demand of dowry by the accused.
(vi) The contents of the FIR and other documents shows no
FIR no. 25/10 Page no..............13/
allegations of cruelty and demand of dowry and at the time of marriage nothing was given because accused and deceased has eloped and has married themselves in Arya Samaj Mandir.
(vii) Regarding the charge u/s 304(b) IPC there is no evidence of harassment prior to or immediately prior to death and as such nothing is proved that the death of the deceased was a dowry death.
(viii) PW2 Rajni Kapoor has stated that she has never noticed any quarrel between accused and the deceased and if accused has caused injuries, then why he would call the neighbours.
(ix) After the deceased fainted due to falling from the bed accused has called all the nearby neighbours and PW2 stated that he had never seen the accused maltreating the deceased. Similarly, PW4 has also stated that accused has never maltreated the deceased.
(x) Since no injury was noticed in the inquest report as such injuries might have been manipulated in the mortuary because no one of the police has guarded the dead body while same was in the mortuary.
(xi) There are contradictions between PW11 ASI Krishan Chander and PW14 Ct. Harender Rana regarding recovery of mobile from the accused.
FIR no. 25/10 Page no..............14/
(xii) There is no motive for commission of crime as no weapon of offence was ever used in causing alleged injuries as find mentioned in the postmortem report.
(xiii) Opinion about the cause of death was given after 10 months which has been manipulated in connivance with the doctor. Ld counsel relied upon AIR 2003 SC 2868.
(xiv) Regarding charge u/s 302 IPC Ld counsel has argued that from the evidence of the prosecution neither intention nor the knowledge to cause said bodily injury which may cause death has been proved or established beyond reasonable doubt.
29) It is vehemently argued that accused has been falsely implicated because parents of the deceased and other family members were annoyed because of the love marriage between accused and deceased. The accused and deceased has been living happily after the marriage till her death and said fact has been established from the deposition of DW1 and the photographs proved by her. Ld counsel vehementally argued that accused was entitled to acquittal.
Arguments of the State alongwith written arguments of the complainant.
30) Ld Addl. PP for the State argued that registration of the FIR FIR no. 25/10 Page no..............15/
after return of brother of the deceased has been sufficiently explained in the statement of father of deceased and also from the statement of SDM. It is further argued that offence u/s 302 IPC stands proved because after causing injuries the accused has called his father inlaw and he did not rush his wife to any hospital and had not tried to help her in any manner.
31) Regarding the contention that the injuries has been manipulated after tampering with the dead body in the mortuary, it is argued that there is no truth or force in the said arguments because the mortuary was always guarded by the hospital staff and if necessary by the police. There is nothing brought on record to show the tampering of the injuries on the dead body has been done in the mortuary.
32) Regarding the nonmentioning of the injuries in the hospital in casualty record and in the inquest papers it is stated that all the injuries were noticed during the postmortem and because at the time of bringing of the deceased to the hospital or at the time of inquest papers, the body is not supposed to be examined meticulously and the injuries were of such nature which cannot be noticed on the body unless the clothes were removed and as such the injuries were noticed at the time of postmortem which were found FIR no. 25/10 Page no..............16/ antemortem in nature.
33) Regarding the opinion given by the doctor after 10 months, the same has been sufficiently explained by the doctor himself because the said opinion was to be given after receiving histopathology report from the FSL and after receiving the said report the opinion has been given within reasonable time. It is further argued that deposition of PW15 Dr. Mishra has not been assailed in crossexamination despite lengthy crossexamination by the Ld. Defence counsel on all aspects.
34) Ld Addl. PP for the State further argued that reply given by the accused u/s 313 CrPC are contradictory to the suggestions given to the witnesses where it was suggested that deceased was coming in dark and has fallen and sustained injuries. Regarding the credit worthiness of the witnesses, Ld Addl. PP for the State argued that there is no confrontation of the testimony of the witnesses in the crossexamination and whatever was deposed by them the same has been admitted. Ld Addl. PP for the State further argued that even dowry death has been established beyond reasonable doubt because the parents of the deceased has deposed that deceased was unhappy due to the mal treatment at the hands of the accused because after marriage he has started demanding car, TV, fridge and other FIR no. 25/10 Page no..............17/ household articles. It is further argued that brother of the deceased has clearly deposed that as and when deceased talked to him she was weeping and explained the misconduct of the accused and maltreatment given to her. It is further argued that the deceased has expired within 7 years of marriage and a presumption is raised u/s 113B of Indian Evidence Act 1872 and in the absence of any explanation given by the accused it has been established that deceased has died an unnatural death because of the injuries sustained at the hands of the accused.
35) Ld Addl. PP for the State relied upon AIR 2009 SC 1881 in Narender VS State of Karnataka, in her arguments wherein it was held as under: "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.
The law does not enjoin a duty on the FIR no. 25/10 Page no..............18/ prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
36. I have considered the rival contentions made at Bar and carefully gone through the record.
37. First I will take the charge u/s 498A IPC. What is required to be established for the cruelty as offence u/s 498A IPC, the Hon'ble Apex Court in case of Savitri Devi Vs. Ramesh Chand & Ors., 2003 (2) JCC 881, in para no. 16 and 18 has held as under: Para no. 16:"In constituting 'cruelty' contemplated by Section 498 A IPC the acts or conduct should be either such that may cause danger to life, limb or death or cause 'grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be 'willful' i.e. intentional. So to invoke provisions of Section 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave FIR no. 25/10 Page no..............19/ injury to the woman or are likely to cause danger of life, limb of physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and willful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with material life". Para no. 18 "Thus to constitute "harassment" following ingredients are essential:
(i). Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation.
(ii). Such act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats.
(iii)Intention to subject the woman should be to compel or force her or her relatives to fulfill unlawful demands for any property or valuable security.
38 Admittedly the marriage between the accused and the deceased was a love marriage solemnized at Arya Samaj Mandir and no dowry/gift articles were given at the time of said marriage. The said marriage was accepted by the parents of the deceased and accused and deceased started visiting her parents house regularly.
FIR no. 25/10 Page no..............20/ Even till the date of her death, the deceased and accused had been visiting her parents house and had even taken lunch together on the date of incident as the accused used to come daily to take their child to home. It is stated by PW5 Shiksha Sardana, Bhabi of the deceased that Prachi the daughter of deceased and accused used to come their house from her school and Ms. Chandani (deceased) also used to be generally there and accused used to pick up Chandani as well as Prachi in the evening. She further deposed in crossexamination that when Sarvjeet used to come their house in the evening, her mother in law used to prepare tea for him. Even PW1 Shanti Prakash Sardana father of deceased in his crossexamination stated that accused Sarvjeet used to come at his residence every day and generally used to take meal with them and even on the date of incident accused Sarvjeet had come to his residence at about 11.00/11.30am to have breakfast as there was no cooking gas in his house and he used to trust accused like his own son. He further stated that he had never imagined if the accused could have committed the crime of murdering his daughter. He has further deposed in his crossexamination that at the time of marriage he had not given any gifts and articles to the accused but added that he had given gifts to the accused thereafter on different occasions and FIR no. 25/10 Page no..............21/ festival. Thus the allegations of cruelty and torture of the deceased by her husband as deposed by PW1 in his examination in chief does not find corroboration from other material as no time, date or place of such cruelty/torture has been given. The PW1 and other family members had not made any complaint against the accused regarding such cruelty and torture before the date of incident.
39) I have also gone through the contents of the affidavit Ex.PW2/C of the accused which was given by him to his inlaws on 29/11/06 and contents therein does not establish that he has been perpetuating cruelty and harassment to the deceased as defined u/s 498A IPC. Ld counsel for accused pointed out that contents of the affidavit itself shows that whatever the acts and omissions of the accused as alleged in the affidavit, the same were pardoned by his inlaws and his wife and subsequently till the date of incident the relation between the accused and deceased and his inlaws were cordial and there was nothing after giving the said affidavit for 34 years which may show that the conduct of the accused was such which may amounts to cruelty and harassment of the deceased as required by provisions u/s 498A IPC.
40) Even PW2 Rajni Kapoor land lady of the accused in her crossexamination stated that she has never seen the accused FIR no. 25/10 Page no..............22/ maltreating his wife and fighting with neighbours during his stay in the accommodation. Regarding the deposition of PW6 Atul Sardana brother of the deceased as pointed out by Ld Addl. PP for the State the allegations of harassment and torture of deceased by the accused are unspecified and undated . The same cannot be believed to establish the cruelty and torture by the accused for demand of dowry because if the accused had been continuously harassing the deceased for money and articles, it was not possible for him to visit his inlaws house daily to have lunch and dinner/breakfast together and would not have been believed just like as his son by his father in law. Even PW6 Atul Sardana in his crossexamination has admitted that after the elopement of deceased and accused and their marriage the father of deceased suffered heart attack and deceased and accused started visiting them and thereafter the terms between his family and accused and deceased become normal and cordial as they were on visiting terms and would meet on festival and other festival occasions and even deceased had come to her parents home on Raksha Bandhan before her death and festival was celebrated together. Thus, above discussions shows that the evidence on record has not established the offence u/s 498A against the accused beyond reasonable doubt.
FIR no. 25/10 Page no..............23/
41) Now I take up the charge u/s 304 B IPC. The term "dowry
death" is defined under section 304 B of the IPC as under: "Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death".
42) Section 113 (B) of the Indian Evidence Act, 1872 creates a presumption for dowry death by laying down as under: "When the question is whether a persons has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
43) Thus in order to establish and prove dowry death as defined under section 304B IPC, the prosecution is obliged to prove that :
(a) the death of a woman was caused by burns or bodily injury or FIR no. 25/10 Page no..............24/ had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) such cruelty or harassment as the deceased should have been soon before her death."
44) Ld counsel for the accused has argued that from the evidence led by the prosecution it could not be proved beyond reasonable doubt that deceased soon before death was subjected to cruelty by the accused or further that she died in abnormal circumstances. In other words, it is argued that the dowry death as defined u/s 304 B IPC has not been proved. In support of his contention Ld counsel has relied upon AIR 2003 SC 2865 Hira Lal and Others Vs. State (Govt. of NCT), where it was held that the presumption as to dowry death operates only in case where prosecution proves that "soon before death" victim was subjected to cruelty/ harassment. It was further held that expression " soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in FIR no. 25/10 Page no..............25/ question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
45) Further, it was held that evidence of relatives of deceased showed that at time of marriage there was no demand of dowry and grievance made subsequently were resolved by authorities of Crime Against Women Cell and settlement arrived therein did not relate to dowry demand and no definite evidence of ill treatment having immediate proximity to date of death of deceased and ill treatment for dowry not soon before death and the accused cannot be convicted under section 304B IPC.
46) While deciding the charge under section 498A IPC, it was observed by me that the allegations of cruelty and harassment on account of demand of dowry or other physical and mental cruelty as defined u/s 498A IPC could not be established beyond reasonable doubt because allegation of the cruelty and harassment as deposed by father and brother of the deceased were found to be unspecific and undated and nothing was mentioned about which articles were allegedly demanded or received by the accuse forcibly due to the FIR no. 25/10 Page no..............26/ cruelty and harassment of the deceased. Moreover, it was admitted by father and brother of the deceased that till the date of incident relations between accused and his inlaws were cordial and they were having visiting terms and they were celebrating the festival and even immediate festival i.e Raksha Bandhan was celebrated together and even on the date of incident accused had breakfast with his inlaws and his father in law used to treat him as his son. Whatever harassment was allegedly done to the deceased by the accused in the form of running away from the house when deceased was pregnant and not supported her at the time of delivery of the child as find mentioned in the affidavit Ex. PW2/C given by the accused to her inlaws, the said acts/omissions about cruelty or harassment was pardoned and for the last 34 years the relation between the accused and his inlaws were cordial as he has been visiting them daily in order to take her daughter who used to go to her maternal parents home from school. Moreover, land lady PW2 Rajni Kapoor has also deposed that she did not notice any maltreatment by the accused to his wife at their stay in their tenanted premises. Thus, requirement of section 304B IPC read with Section 113B of Indian Evidence Act for raising presumption of dowry death could not be established beyond reasonable doubt and charge against the accused u/s 304 B FIR no. 25/10 Page no..............27/ IPC has also not been established beyond reasonable doubt.
47) Now let us examine evidence of prosecution to know whether it has proved charge under section 302 IPC against the accused. It was argued on behalf of the accused that at the time of incident, the wife of the accused has sustained injuries accidentally as she fell down and got struck with the bed because she was suffering from ailments and become weak and was not able to pursue her ordinary pursuits.
48) The prosecution on the other hand submitted that the autopsy surgeon Dr. B.N. Mishra has clearly stated that injuries No. 1 to 7 were not accidental injuries and the possibility of homicide was not ruled out. It was therefore argued that the accused has admitted in his telephonic conversions with his brother in law and sister in law that he had fight with his wife and gave a push to her as a result she fell down and sustained injuries and because of which she had died. It is also argued that evidence of doctor who conducted Post Mortem has shown that various injuries were found on the body of the deceased and the said injuries were not accidental having been sustained in the manner as suggested by the accused and possibility of homicide was not ruled out by the autopsy surgeon. Ld. Addl. PP for the State has FIR no. 25/10 Page no..............28/ therefore argued that accused had not led any evidence to prove his version as put to the autopsy surgeon in his cross examination and as explained by the accused when the evidence was put to him.
49) Ld. Addl. PP for the State further argued that accused has given false replies in the statement under section 313 Cr.P.C which has completed the missing links if any in the circumstantial evidence and therefore the prosecution case is proved beyond reasonable doubt and accused be convicted for the offence under section 302 IPC.
50) The prosecution case is certainly based on circumstantial evidence as there is no eye witness to the incident except the accused. Therefore, the prosecution has relied upon the testimony of PW 15 Dr. B.N. Mishra who had conducted the post mortem on the dead body of the deceased.
51) On examination of the dead body PW 15 Dr. B.N. Mishra has found following external injuries :
1) Fractured nasal bone with brusing of adjuscent tissue and collection of blood clots in the nasal cavity and torn nasal Macosa with dark reddish in colour,
2) Two apartly placed linear Bruise of size 03 X 1 cm and 2.5 cm X 1 cm respectively with vertical placement at lower part FIR no. 25/10 Page no..............29/ of back over lumber spine with reddish brown in colour ,
3) Abrasion of size 4 X 2 cm present on the right lower part of the back 5 CM apart from external injury no. 2 with reddish brown in colour .
4) Abrasion of size 2 X 2 cm present on the left side of cheek bone with reddish brown in colour
5) Nails marks in cresentric shape present on the right side of cheek bone and 2 cm below from the Lateral canthus of right eye with reddish brown in colour
6) Bruise of size 1 cm X 0.5 cm present on tip of the right shoulder with reddish brown in colour
7) Bruise of size 4 X 5 cm present on the thenier eminence of right palm with dark reddish colour, Blood clots on section
52) The PW 15 has clearly deposed that the association of assault on the part of her death could not be ruled out and all injuries were antemortem.
53) PW 15 has made subsequent deposition on 12.11.2010 as after receiving of FSL report and Histopathological study report, he has given his opinion regarding cause of death. Thus the cause of death as deposed by PW 15 was due to comma caused by Cranio cerebral injury (head injury) by means of hard blunt and forceful impact upon head. The possibility of homicide can not be ruled out.
The opinion dated 25.10.2010 is proved as Ex PW 15/A and post mortem report has been proved as ex PW 15/B. In his cross FIR no. 25/10 Page no..............30/ examination on behalf of accused PW 15 stated that in general condition the injury is possible on the nose when person has fallen on the wooden part of the bed by forcefully thrusting upon it. He further clarified that "but regarding this case in view of the other association of injuries, it is not possible that the injury on the nose could have been caused because of falling on wooden bed". He further clarified that in this case the cause of odema and flattened gyri were developed due to traumatic reasons and it was not possible that the injury as found in this case have been caused during the transportation of the body through stairs of the house. In his cross examination Ld. defence counsel has shown the photographs of the bed Ex PW 19/8 and has put the following question : "Question : The photograph on which no. 171 (Ex PW 19/8) is written is shown to the witness and asked, is it possible if a person have sudden fall with face towards the ground and hits the edge as shown at pt A on the photograph, the said person may get nasal bone fractured?
Ans. : It is possible. Vol. Stated but in this case as there are many other associated injuries which are not consistent with above mentioned fact."
54) Finally regarding the nature of the injuries and the reasons FIR no. 25/10 Page no..............31/
of their sustaining, PW 15 has stated as under :
"Question: For the 7 external injuries as mentioned in the postmortem report Ex. PW15/B either the person be hit with some solid edged object like danda or a person may have a free fall on some solid edged object like bed ?
Ans: The injury noted in PM report are not possible to be inflicted on the body during the single episode as above mentioned modes. Vol stated as the above mentioned injuries are variable in their nature and the distribution on the body, the above suggested conditions cannot cause these injuries.
Question:How many hits are necessary for causing the injury no. 1 to 7?
Ans: The injury present on the body of the deceased cannot be caused only due to falling on the hard surface/blunt object. The same may have been caused by different means of causing injuries. Question: I suggest to you that the injury no. 1to 7 had been sustained by the deceased when she was coming to the bed in darkness and had struck with something on the floor due to which she lost balance and had a free fall on the edge of the bed?
Ans: These injuries no. 1 to 7 are not possible only in the above manner and the same are not possible to have been sustained only by FIR no. 25/10 Page no..............32/ one fall as mentioned above.
55) Thus the deposition of PW 15 after his cross examination has established that injury found on the body of the deceased were not sustained merely as accidental injuries by falling and getting struck with the bed as being claimed by the accused.
56) Different version are given by accused regarding injuries sustained by the deceased:
1st version : In cross of PW 15 Dr. B.N. Mishra the last question was put as under :
"I suggest to you that injury No. 1 to 7 had been sustained by the deceased when she was coming to the bed in darkness and has struck with something on the floor due to which she lost balance and had a free fall on the edge of the bed?"
IInd version : Another explanation regarding injuries sustained by the deceased is given in reply of question 16 in statement under section 313 Cr.P.C wherein it is stated that "he had never had any fight with his wife Chandni and she was sick and was lying on the bed because of weakness and she could not even go to natural calls and she fell down from the bed. He immediately called his father in law and brother in law. His father in law came to his house and along with him went to the hospital".
FIR no. 25/10 Page no..............33/ IIIrd version : The other version of the accused is reply to question No. 92 in statement under section 313 Cr.P.C as under :
"My wife was suffering from high blood pressure for which she was taking medicines and had become anemic. On the day of incident she fell from the bed and suffered injuries and immediately I called my father in law and brother in law".
57) Now I have to scrutinize the evidence of the prosecution with regard to the proof brought on record by the prosecution regarding sustaining of the injuries by the deceased. PW 1 Shri Shanti Parkash Sardana has deposed that accused had killed his daughter who had died due to beatings of the accused ; (accused told lie to them that his daughter is ill infact she was killed by him). In his cross examination he had stated that accused had called him at 01:45 AM in the night and when he reached at the residence of his daughter, she has already died He had checked her pulse to verify whether she was dead or alive. He further deposed in his cross examination that his daughter was not ill and did not suffer from any fever or any other ailment and if she used to fell unwell she used to recover immediately. He had denied the suggestion that his daughter used to suffer from weakness and used to get giddiness (chakkar). He clarified for it that earlier she had weakness for FIR no. 25/10 Page no..............34/ which she had taken some medicine and recovered her health.
58) PW 5 Ms. Shiksha Sardana sister in law of accused has deposed that she had reached the house of the accused along with her father in law and saw that Chandni looked like fainted and without sense and was rushed to Kheterpal Hospital where doctors declared that she was brought dead. She categorically deposed that Sarvjeet had told that a quarrel had taken place between him and Chandni and thereafter Chandni become unconscious. Nothing was suggested in the cross examination of this witness that accused had never told her that a quarrel had taken place between accused and the deceased and she had died. The said deposition of PW 5 is unchallenged.
59) Similarly, PW 6 Shri Atul Sardana brother in law of accused and brother of deceased in his cross examination by defence counsel has deposed as under :
"She also told me that the accused was with her on which I asked her to give the phone to him. I inquired from the accused and he told me that there was a fight between him and my sister and that he had given her push on her neck and thereafter she was not getting up. I inquired why he had not taken her to the hospital on which he told me that he thought that my sister was sleeping FIR no. 25/10 Page no..............35/ and he started reading Hanuman Chalisa. Whenever my sister used to visit my residence, she was crying and she used to tell me that the accused is maltreating her. She used to tell me telephonically about the maltreatment by the accused".
And this deposition of PW 6 in his cross examination on behalf of the accused remain unchallenged in all manners.
60) When question No. 16 is asked to the accused regarding fight between him and deceased and he pushed the deceased due to fight, he has relied as under :
"It is incorrect. I never had any fight with my wife Chandni. However, she was sick and was lying on the bed because of weakness she could not even go to natural calls and she fell down from the bed I immediately called my father in law and her brother. My father in law came to my house and alongwith me went to the hospital. I had made several calls and had also received several calls to my father in law and brother in law".
61) Thus the reply of question No. 16 and his explanation regarding sustaining of the injuries of the deceased by felling down from the bed due to being sick and weak is contrary to the suggestion given to the doctor. It was suggested to the doctor that injuries No. 1 to 7 had been sustained by the deceased when she was FIR no. 25/10 Page no..............36/ coming to the bed in darkness and had struck with something on the floor due to which she lost balance and had a free fall on the edge of the bed.
62) In reply to the question in statement under section 313 Cr.P.C he has further stated that his wife was having blood pressure for which she was taking medicines and had become anemic. The burden of proof of these facts within the exclusive knowledge of the accused that his wife was suffering from blood pressure and has become weak due to illness and further that either she was coming in the darkness and got struck or she had fallen down from the bed due to weakness and got injured was shifted to the accused under section 106 of Indian Evidence Act. He had not examined himself on oath and has not led any evidence in defence in that regard because the DW 1 examined by him has simply stated that after marriage accused and deceased had gone to Kullu and Manali and were happy. Thus the contrary stand regarding sustaining of the injury by the deceased and his explanations and reply to the various question shows that his explanation is false and he has not replied truthfully.
63) Moreover the deposition of PW 15 is contrary to the version of the accused who has categorically stated that injuries FIR no. 25/10 Page no..............37/ sustained were not sustained after falling from the bed as suggested by the accused and that the possibility of homicide could not be ruled out.
64) I have also tried to find from the testimony of PW 5, PW 6 and PW 1 as to what can be the reason of fight between the accused and the deceased or that whether accused had caused bodily injury to deceased resulting into her death.
65) PW 6 Shri Atul Sardana in his cross examinations stated that his sister told him that she was not happy with the accused and she has always crying whenever she met him and told him that the accused wanted to leave her and he did not return at night many times. He had tried several times to convince the accused to live happily but he refused. He further stated in his cross examination that she was crying and used to tell him that accused is maltreating her and she also used to tell him telephonically about the maltreatment by the accused. PW 6 in his examination in chief has categorically stated that his sister was killed by the accused because there was no other person at the time of incident in the room. Similarly, PW 1 has also deposed that his daughter was killed by accused who had died because of the beatings given by the accused.
FIR no. 25/10 Page no..............38/
66) Regarding the contentions of Ld. defence counsel that the
deposition of PW 5 and PW 6 should not be relied because they are close relatives of the victim. In that regard Hon'ble Supreme Court in case of Harbans Kaur Vs. State of Haryana reported as 2005 (1) JCC 490 was pleaded to hold that when a plea of partiality is raised regarding testimony of related witnesses, the reasons has to be shown for that and it has to be established that they have reason to shield actual culprit and falsely implicate the accused.
67) On careful perusal of testimony of PW 1, PW 5 and PW 6, it is found that the over all impression of their testimony is that they have spoken from there heart without hiding anything. PW 1 even stated that he has been considering the accused as his son and never believed that he would kill his daughter.
68) In Vijay Kumar Arora Vs. State of Govt. of NCT of Delhi 2010 (1) Supreme 123 the Hon'ble Apex Court has discussed the law of appreciation of circumstantial evidence as under:
"The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong can not be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof.
FIR no. 25/10 Page no..............39/ However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances can not fail. Therefore, many a times it is apply said that "men may tell lies, but circumstances do not". In case where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, in the other. In regard to proof of primary facts, the court to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although, there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves if, or are FIR no. 25/10 Page no..............40/ not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis, except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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; and where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court''.
69) The accused has given an explanation to PW 5 and PW 6 that in a quarrel he had given a push to the deceased who fell down, got struck with some object and died. But he went on changing his stand regarding explanation of injuries to the deceased because at one time it is suggested to the autopsy surgeon PW 15 Dr. B.N. Mishra that injuries No. 1 to 7 have been sustained by the deceased when she was coming to the bed in darkness and had struck with something on the floor due to which she lost balance and had a free fall on the edge of the bed. PW 15 Dr. B.N. Mishra has clearly stated that injuries noted in the post mortem report are not possible to be inflicted due to single episode as suggested because the FIR no. 25/10 Page no..............41/ injuries are variable in their nature and distribution on the body. He further stated that injuries may have been caused by different means of causing injuries and injuries No. 1 to 7 were not possible only in the manner suggested by the accused and the same has not been sustained only by one fall. PW 15 Dr. B.N. Mishra has also stated that association of assault on the part of her death could not be ruled out. The cause of death given by Dr. B.N. Mishra shows is due to comma caused by Cranio cerebral injury (head injury) by the means of hard blunt and forceful impact upon head and possibility of homicide was not ruled out.
70) This deposition of the doctor clearly shows that the injuries which has caused death has not been sustained accidentally or from a single fall as is being claimed by the accused and the nature of the injuries shows that the same has been caused by forceful impact with which head had been struck against some blunt object. The explanation given by accused regarding sustaining of the injuries has been found to be totally false. It was deliberately suggested to the witnesses in their cross examination that accused had a sudden fight with the deceased and in that fight he gave a push to her and as a result of which she fell down and sustained injuries. Even accused has not struck to this stand as suggested in the cross examination of FIR no. 25/10 Page no..............42/ the witnesses and went on changing his stand again and again in the cross examination of the autopsy surgeon. Further in reply to the said evidence when put to him in his statement under section 313 Cr.P.C, he has simply stated that it was incorrect. Neither he struck to the stand which was explained by him to his brother in law and sister in law nor he has stuck to the stand that the deceased was ill and unable to stands and go to the toilet and fell down from bed and sustained injuries. Further, he went on changing his stand and suggested to the autopsy surgeon that the deceased was coming in darkness to the bed and fell down and got struck with some object.
All these false defence taken by the accused are lending assurance about his guilt. The evidence led by the prosecution has clearly established beyond reasonable doubt that the death of the deceased was a homicidal death and not a accidental death.
71) The accused has reached his house as his own version after 10:00 PM and remained in the house till his wife sustained injuries after midnight and it was left to be explained by the accused as to how and why she sustained injuries and his explanation that she has sustained injuries after having a fall has been belied from the different stand taken by him. His explanation of the injuries to his brother in law and sister in law PW 4 and 5 nowhere he stated that FIR no. 25/10 Page no..............43/ he had a quarrel and gave push to her seems to have been a concocted story to make a false plea of sudden quarrel and fight between him and deceased so as to escape from the liability of murder of his wife. Moreover, the evidence of PW 15 Dr. B.N. Mishra who has conducted post mortem on the body of the deceased has clearly established that the cause of death was head injury sustained by the deceased by means of hard blunt force impact upon head and in his opinion the possibility of homicide was not ruled out.
72) The facts and circumstances of the case are perfectly and squarely covered by the case of Vijay Kumar Arora Vs. Govt of NCT of Delhi (Supra).
73) The falsity of plea of the accused stands proved from the fact that he has even stated that his wife has not died when she was taken to hospital and was responding at the time when she was being taken to hospital. His this deposition is totally contrary to the testimony of prosecution witness including neighbors PW 4 Shri Shivdesh Kumar and PW 2 Smt. Rajani Kapoor, the land lady.
74) The conduct of the accused subsequent to the incident of sustaining inuries by the deceased is such which raised finger upon FIR no. 25/10 Page no..............44/ his conduct because after sustaining injuries by his wife, he has not tried to call doctor or to rush her to the hospital and chosen to inform his father in law and brother in law of the incident on telephone. This conduct which is admissible under section 8 of Indian Evidence Act shows that he knew that because of homicidal injuries his wife has died and in order to escape from law he had chosen to inform the parents and other family members and has not tried to rush her to hospital. He being an educated person should know that there would be no need to calling the parents of the deceased for the purpose of taking the injured to the hospital in case she was alive and responding as is claimed by him.
75) From the evidence led by the prosecution all the circumstances and the chain of the circumstances has been completed, wherein it has been established beyond reasonable doubt that at the time of incident it was the accused who was alone with the deceased; secondly on the date of incident he reached home after 10:30 PM; thirdly after marriage with the deceased he has been shirking his responsibilities for maintaining her and even failed to stand with her at the time of birth of girl child and had gone missing leaving her alone in the tenanted premises and the said fact stand established from his own FIR no. 25/10 Page no..............45/ affidavit placed on record as Ex. PW 2/C.
76) Further reliance can be placed upon the case of Aftab Ahmad ansari Vs. State of Uttranchal 2010(1) SC 421 wherein it was held that :
"where circumstances proved are put to the accused through his examination under section 313 of the code and the accused merely denies the same, then such denial would be an additional link in the chain of circumstances to bring home the charge against the accused".
77) It is further established from the evidence of the prosecution that on the date of incidenta when he came late his wife was waiting for him eagerly and even worriedly for coming late daily and due to those facts and circumstances quarrel has taken place between them and due to that quarrel the accused had caused such bodily injuries to the deceased with a forceful impact upon her head as a result of which she has died because of head injury.
78) Once, it is established beyond reasonable doubt that deceased died because of homicidal injuries, the next question to be decided is whether her death was culpable homicide as covered by clause b of section 299 or the same would be covered the clause 3 of FIR no. 25/10 Page no..............46/ section 300 IPC. Para 14 of the judgment of Apex Court in Sunder Lal Vs. State of Rajasthan 2007 (2) JCC 1538 is apposite to be quoted:
"The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 Section A person commits culpable homicide, Subject to certain exceptions culpable if the act by which the death is caused is homicide is murder if the act by which the homicide is murder, if the act by which death is caused is done done INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death:or
(b) with the intention of causing such (2) with the intention of causing such bodily injury as is likely to cause death ; bodily injury as the offender knows to be or likely to cause the death of the person to whom the harm is caused;or FIR no. 25/10 Page no..............47/ (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient on the ordinary course of nature to cause death;or KNOWLEDGE (C) with the knowledge that the act is (4) with the knowledge that the act is so likely to cause death; imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
79) In case of Sunder Lal referred above, it has been stated that difference between clause (b) of section 299 and clause (3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury. It was further held that " For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature".
"Under clause thirdly of section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied; i.e (a) that the act which causes death is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be FIR no. 25/10 Page no..............48/ present was the injury that was intended to be inflicted.
"Thus according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to section 300 clearly brings out this point".
80) I have carefully scrutinized the evidence on record and the facts and circumstances of the case to find out whether it has been proved that the accused had a intention to inflict that particular bodily injury which according to the autopsy surgeon PW 15 Dr. B.N. Mishra has caused death in this case.
81) The explanation given by the accused for the bodily injuries which has caused death of the deceased was found to be false because he went on changing various stand and has not stuck to the stand disclosed to the witness that he had a sudden fight and gave a push to his wife who sustained injuries and died. Since this stand was put to the witness in cross examination and has been found to be falsely taken because in his statement under section 313 Cr.P.C he has stated that he has not taken the said stand and has struck to a subsequent stand that deceased was coming in dark lost balance fell down and got struck with something on the ground or that because of weakness she fell down from the bed got struck with FIR no. 25/10 Page no..............49/ something and sustained injuries. These different stands taken by the accused regarding injuries of the deceased shows his conduct that he was not coming out with truth and has with held the truth from the Court about sustaining of the injuries by his wife. His further conduct of not going for medical aid to his wife and instead informing his father in law and to wait for his reaching his house shows that he had the knowledge and intention that he had caused such bodily injuries to his wife as a result she had died. PW 1 has clearly stated that when he reached at the house of the his daughter he found her dead because he has checked her pulse and she was no more. This evidence of PW 1 and other circumstantial evidence shows that wife of the accused had died after sustaining injuries and for that reasons accused has not made any effort to call any doctor or to rush her to the hospital immediately. Had he not intended and inflicted the injury because of which his wife had died, he would remain consistent to his explanation given to his sister in law and brother in law to the effect that he had a quarrel with his wife and he pushed her and she sustained injuries. Falsity of his version shows mensrea on his part and leads to irresistible conclusion that in all probabilities he had intention to cause death of wife or such bodily injury sufficient in ordinary course to cause death.
FIR no. 25/10 Page no..............50/
82) For these reasons, I am of the considered view that case of
the accused falls under clause 3 of section 302 IPC and not in clause B of section 299 IPC. Moreover, the evidence of PW 1, father of the deceased has clearly testified that accused had killed his wife who had died because of the beatings given by him.
83) All the circumstances proved on record by the prosecution has been established beyond reasonable doubt and the chain of the circumstance is so complete which is inconsistent with the innocence of the accused and has established beyond reasonable doubt that in all probabilities accused had committed murder of his wife.
84) From the above discussion, I am of the considered opinion that prosecution has proved its case against the accused beyond reasonable doubt for the offence punishable under section 302 IPC. I therefore hold him guilty and convict him for the offence under section 302 IPC.
ANNOUNCED IN THE OPEN COURT ON FEBRUARY 26, 2011.
(RAJ KUMAR CHAUHAN)
ASJ/SPECIALJUDGE(NDPS)
(WEST)DELHI
FIR no. 25/10 Page no..............51/
IN THE COURT OF SHRI R.K.CHAUHAN: A S J/SPL JUDGE (NDPS) (WEST) DELHI FIR no. 25/10 Unique Case ID no.02401R0176302010 Police station : Moti Nagar U/s 302/304 B/498A IPC State V/s Sarvjeet ORDER ON SENTENCE 28/02/2011 Present: Ms. Madhu Arora,Ld Addl. PP for the State.
Shri Sudhir Batra , Ld. counsel for the convict. Convict Sarvjeet in judicial custody .
1. I have heard Ld. counsel for the convict who has submitted that convict is having a bed ridden old mother and widowed sister and in the given facts and circumstances a lenient view may be taken against him while awarding sentence.
2. Ld Addl. PP for the State on the other hand submitted that the convict deserves to be sentenced severely because he has betrayed his wife deceased Chandani who eloped with him and married with him against the wishes of her parents and instead of protecting her , he has killed her within a few years of marriage.
FIR no. 25/10 Page no..............52/
3. Ld. APP for the state further submitted that the convict has also deprived a young child of his / her mother and for that reason also, the maximum sentence be given to the accused and the convict does not deserves any leniency.
4. I have also considered the rival submissions made at bar and also carefully examined the facts and circumstances of the case.
5. Considering the gravity of offence and the fact that a young life was lost and a child was deprived of his / her mother , the convict is accordingly sentenced to imprisonment for life and a fine of Rs. 50,000/ for the offence u/s 302 IPC. In default of payment of fine the convict shall undergo simple imprisonment for a period of two months.
6. Benefit of section 428 Cr. PC is given to the convict. The period of imprisonment undergone by him as accused during trial shall be set off against the term of sentence awarded to him.
7. Copy of judgment and order on sentence be supplied to the accused and his counsel free of cost.
8. File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY
i.e. 28th February, 2011
FIR no. 25/10 Page no..............53/
(RAJ KUMAR CHAUHAN)
ASJ/SPECIALJUDGE(NDPS)
(WEST)DELHI
FIR no. 25/10 Page no..............54/