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Delhi District Court

State vs . on 23 November, 2011

     IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                   ROHINI COURTS, DELHI

SC NO.205/10
FIR NO. 121/03
U/S 498A/302/201/120B IPC
PS Mangol Puri
Unique Case ID No. : 02404R0023252006

               State 

               Vs. 

     1. Jagdish Prasad s/o Durga Prasad

        r/o Y­1695, Mangol Puri, Delhi.

     2. Smt. Shanti Devi w/o Jagdish Prasad

        r/o Y­1695, Mangol Puri, Delhi.

     3. Satya Narain s/o Jagdish Prasad

        r/o Y­507, Mangol Puri, Delhi.

     4. Madan Lal (Discharged on 15.09.2007)



Date when committed to the court of Sessions :14.01.2004
Date when case reserved for judgment        : 09.11.2011
Judgment pronounced on                        : 23.11.2011

JUDGMENT:

1. The case of the prosecution in brief is that on 12.03.2003, the complainant Jagdish Prasad s/o Late Prabhati Lal, gave a written SC No.205/10 Page 1/99 complainant to the SHO of PS Mangol Puri, Delhi, that he was residing at J Block, Prem Nagar II, Sultan Puri, Delhi, and was running a grocery shop and that he married his daughter, deceased Kamlesh, in June 1995 to accused Satya Narain as per Hindu Customs and from the said wedlock, two sons namely Avinash and Akash, were born who were of 7 years and 5 years of age respectively at the time of complaint and that he had given dowry to his daughter as per his capacity and accused Satya Narain usually gave beatings to the said deceased Kamlesh for bringing less dowry and used to demand scooter, saree and money from her and the father and mother in law of the said deceased Kamlesh namely Jagdish Prasad and Smt. Shanti Devi, also used to ask accused Satya Narain to demand dowry from the deceased and uncle of accused Satya Narain namely accused Madan Lal (since discharged by my Ld. Predecessor from the case) also used to ask accused Satya Narain to demand dowry from the deceased and that he got the compromise made between the deceased and accused Satya Narain many times with the help of other persons and that on 06.03.2003, deceased Kamlesh had gone alone to Prem Nagar who was sent by accused Satya Narain and on the same day his son Tara Chand, daughter in law Smt. Santosh Kumari, Dinesh and the deceased Kamlesh had gone to District Alwar, Rajasthan and he along with his other members of the family also reached the said District Alwar SC No.205/10 Page 2/99 as in Village Tapukara of the said District, his second daughter namely Ms. Manju was married and they had gone there in the ceremony of Kuan Poojan of his said second daughter and after that the deceased along with them had gone to her village and his both sons and daughter in law came back to Prem Nagar, Delhi, and on 10.03.2003, the deceased was sent along with Dinesh, at about 7.30 p.m, to her matrimonial home in a fit state of health and was left at Mangol Puri with accused Satya Narain and that on 12.03.2003, at about 6.30 a.m, the landlord/owner of the said shop told him that a phone was received from Mangol Puri (where the matrimonial house of deceased was situated) that Kamlesh had died and thereafter, they made inquiries at Y­Block, Mangol Puri, and they came to know that in the evening of 11.03.2003, Kamlesh had died and her husband and mother and father in law had performed her last rites and cremated her without informing them (the complainant side) and that he had suspected a foul play in the matter.

2. This complaint was marked to SI Dharam Pal for inquiry, who went to the matrimonial home of the deceased Kamlesh at Y­507 and Y­1695, Mangol Puri, Delhi and made inquiries there and from the neighbourhood also and he came to know that Kamlesh suffered with loose motions on 11.03.2003 and she expired in the evening and her husband Satya Narain and father in law Jagdish Prasad along with other persons at the cremation ground of Y Block, SC No.205/10 Page 3/99 Mangol Puri, cremated her and that two children namely Avinash aged 7 years and Akash aged 5 years were also interrogated who informed that their mother had suffered loose motions and thereafter the said SI reached the cremation ground of Y Block, Mangol Puri and from the priest namely Sanjay, made inquiries who informed that on 11.03.2003, cremation of deceased Kamlesh was performed by her husband namely Satya Narain, who was accompanied by 30­ 40 other persons who joined the cremation and left the cremation ground and the SI returned to the PS, informed the said facts to SHO and got recorded an FIR u/s 498A/34 IPC.

3. During the course of investigation, the IO SI Dharam Pal seized some bones and ashes of deceased Kamlesh on 19.03.2003 from her pyre at the said cremation ground and arrested the accused Jagdish and Satya Narain u/s 498A IPC.

4. The complainant Jagdish Prasad was not satisfied with the investigation conducted by the local police and he filed a writ petition No.347/2003 before the Hon'ble High Court of Delhi which, vide its order dated 24.04.2003, transferred the investigation of the case to Anti Homicide Section of the Crime Branch and the investigation was taken by ACP M.K. Sharma afresh. The said order of the Hon'ble High Court of Delhi reads as under:

"Let the investigation be transferred to Anti Homicide Section of SC No.205/10 Page 4/99 Crime Branch of Police to investigate the matter afresh by person not below the rank of ACP who would investigate de hors the fact that the case is registered u/s 498A IPC. After the investigation, the report be submitted to this court on 26th May, 2003."

5. During the course of investigation, a number of relatives of the deceased were examined and it came to the notice that deceased Kamlesh was married to accused Satya Narain on 10.12.1994 at Jain Dharamshala, Narnaul, Haryana, and she gave birth to two male child namely Avinash and Akash and accused Satya Narain, the husband; Jagdish Prasad, the father in law; Smt. Shanti Devi, the mother in law; Madan Lal, uncle in law and others were harassing the deceased soon after the marriage for bringing insufficient dowry and she was subjected to beatings by the said persons regularly and asked to bring more dowry in the shape of cash and other articles and in order to keep the matrimonial relations smooth, the demands of the in laws were being met by the family members of the deceased from time to time and that while son of the deceased namely Avinash was about 1 or 1½ year old, he was forcibly sent to Kolkata at the house of Naresh, brother of her husband, against her wishes and she complained that Avinash was forced to live at Kolkata for about three years and during this period, deceased was not allowed to visit Kolkata even once to meet her child and moreover, after the breast feed was over, the deceased was never SC No.205/10 Page 5/99 allowed to take her children to her parental house as well as during functions at her relations' place and that around 2 or 2½ years back, the deceased was badly beaten by the aforesaid persons as a result of which deceased sustained fracture in her hand and in this regard, father of the deceased along with some reputed persons, visited the matrimonial house of his daughter and on the assurance of her in laws not to torture her in future, the matter was compromised and no police report was lodged. It also transpired during the investigation that after the marriage, accused Satya Narain being the husband, never attended any function at the parental house or at the houses of relatives of the deceased and the deceased was sent alone to attend such functions and was compelled to bring dowry on her return and that deceased was forced not to take her children with her and accused Satya Narain also neither attended the marriage ceremony of the younger sister namely Ms. Manju of the deceased, nor sent the children and it also transpired that said younger sister Ms. Manju gave birth to twins and the Kuan Pooja ceremony was scheduled to be held on 06.03.2003 at Village Tapukara, District Alwar, Rajasthan, at Manju's matrimonial house and that accused Satya Narain was also invited to attend the said function through an invitation card and was also requested on phone by Manju's husband namely Naresh to attend the said function but as often did in past, this time also neither the said accused attended the said function nor SC No.205/10 Page 6/99 sent the children and the deceased had to go alone with an instruction to bring cash and other articles on return and that deceased Kamlesh attended the said function on 06.03.2003 at the said village along with her other family members and relatives and as per custom deceased being elder than Manju, the deceased did not eat anything at her younger sister's matrimonial house and the deceased had told Manju that all the limits of torture had been crossed and her husband and in laws wanted to get rid of her and that all the relations who had attended the said function were given one box of sweets containing Gulab Jamun including the deceased also and more than 300 persons attended the said function and consumed food and sweets at the said function and that in the night of 06.03.2003, deceased Kamlesh along with her father and other relations went to her native place located at Village Nangal Dargu, District Mahender Garh, Haryana, from Village Tapukara and there she told her aunts about torture being given to her by her in laws and she may be done away with by her in laws, above named, and that in order to keep married life of the deceased happy, three sarees were purchased for her by her uncle from Narnaul worth Rs.3300/­ on 08.03.2003 and an amount of Rs.2,000/­ was paid in cash and a balance amount of Rs.1300/­ was still outstanding against the said purchase of sarees and the said record was seized and concerned shopkeeper was examined also and that on 08.03.2003, the deceased SC No.205/10 Page 7/99 returned to her parental house located at Prem Nagar, Sultan Puri, Delhi, and told her parents, brothers and sister in law (Bhabhi) that she would not go to her matrimonial house otherwise she may be killed and that she was consoled by them and that on 10.03.2003, at about 7.30 p.m, the deceased went to her matrimonial house along with her brother Dinesh and at that time deceased was hale and hearty, not suffering from any disease and that on 11.03.2003, deceased had made a telephone call to her uncle at Nangal Chaudhary, District Mahender Garh, wherein she did not complain about diarrhea and/or any other disease to her from which it was evident that on 11.03.2003 she was hale and hearty and on 11.03.2003, at about 4.30 p.m and around 7.30 p.m, accused Satya Narain made telephonic calls to his uncle Data Ram at Nangal Chaudhary, District Mahender Garh and the first call was attended by Data Ram himself whereas second call was attended by Baba Birkha Nath to whom accused Satya Narain informed that Kamlesh had died and Data Ram be informed about this and that Satya Narain also informed him that he was speaking from cremation ground and that Sh. Birkha Nath informed Snehi Lal about the same and requested to inform Data Ram and said Snehi Lal was also resident of the said village and marriage of the deceased Kamlesh and Satya Narain was arranged through said Snehi Lal who made three calls to Delhi to Madan Lal (uncle in law), Pushkar Mal Fufa (uncle) of the SC No.205/10 Page 8/99 deceased and brother of Snehi Lal and Budh Ram (resident of his village) to inquire about deceased Kamlesh and said Budh Ram and Pushkar Mal told Snehi Lal that they had no information about the death of Kamlesh but Madan Lal was not at his house and his son Mahesh told Snehi Lal that he had no information about the death of Kamlesh and relevant records in respect of the above said telephonic calls were collected from STD booth as well as from BSNL and concerned persons and the said persons were examined also.

6. It also revealed during the investigation that on 11.03.2003, accused Satya Narain and his parents took the lame excuse that deceased Kamlesh suffered from acute diarrhea due to her having consumed sweets brought from the house of her sister Ms. Manju where she had gone to attend Kuan Poojan ceremony and she did not take medicine and subsequently died in the evening due to diarrhea and in this regard investigation has revealed that other relatives who consumed the same sweets suffered no ill effect of the same as more than 300 persons attended the said function and consumed the same food and sweets and some of them have been examined in the case and it also transpired that neither deceased was taken to any doctor nor any doctor was called at the house for her treatment despite availability of various doctors in the near vicinity and even SGM hospital was located at a distance of 2 kms but no efforts were made by the accused to provide any medical aid to the deceased and that SC No.205/10 Page 9/99 the investigation has also confirmed that accused Satya Narain purposely did not inform the parents and other relatives of the deceased about her death, though they were residing only at a distance of hardly 2 kms from his house and accused Satya Narain was also aware of the phone numbers of father and brother of the deceased but he did not bother to pass on the information on phone because of the guilt of the accused in killing the deceased and it also came to the light that certain persons asked accused Satya Narain as to whether the parents of Kamlesh were informed about her death or not to which he replied that he had already informed them about it and that the dead body of deceased Kamlesh was hurriedly taken to cremation ground and one of the shopkeepers of the vicinity told that when he came to know about the death of Kamlesh, he started closing his shop for joining the funeral procession which took 25 minutes but he found that the dead body of the deceased had already been taken away and as such, he could not attend the cremation ceremony and this established that dead body was removed to cremation ground in a big hurry for the best reasons known to the accused and the dead body reached cremation ground at 7.20 p.m on 11.03.2003, just within a little over two hours of her alleged death which is established from the entry of the register maintained at the cremation ground and the dead body reached the cremation ground after sun set and that accused Satya Narain told the priests at SC No.205/10 Page 10/99 cremation ground that he had informed the parents of the deceased on phone who resided at a village near Jaipur and accused Satya Narain also informed them that the father of deceased had told him to cremate her as they would be coming on the next day only and with regard to the brother of the deceased, accused Satya Narain informed the said priests that he was looking after the two children of the deceased and these misrepresentation of facts facilitated the cremation of deceased Kamlesh hurriedly and that too after sun set and in view of the said facts conduct of accused Satya Narain and other accused was highly suspicious and indicating that deceased Kamlesh was murdered and did not die due to any ailment.

7. It has been further submitted in the charge sheet that local police made efforts to recover the sweets which allegedly caused diarrhea but could not found the same in the matrimonial house of the deceased. Ashes and bones of the deceased were sent to FSL for expert opinion but it did not reveal that deceased Kamlesh died of any poison qua the food poisoning and that accused Satya Narain made a disclosure statement that he had murdered his wife Kamlesh with the assistance of his father accused Jagdish Prasad because the deceased had not brought sufficient dowry on her return from her parental house and she was killed by pressing her mouth with a pillow when she was asleep on 11.03.2003 and to escape from the clutches of the law, he along with his other family members had SC No.205/10 Page 11/99 concocted a story that she had died due to loose motions and in order to conceal their guilt, they decided to remove her dead body for cremation as early as possible and at the time of cremation also they purposely misrepresented the fact that they had given information to the parents of the deceased and thus, accused Satya Narain was again arrested u/s 302/201/120B IPC and a status report about his arrest was filed before the Hon'ble High Court on 22.09.2003 in the said criminal writ petition which was disposed of vide order dated 22.09.2003 and as a criminal conspiracy transpired in killing the deceased, Section 120B IPC was also added to the case and the charge sheet was filed against the accused persons.

8. Accused Madan Lal in the charge sheet was discharged by my Ld. Predecessor vide his order dated 15.09.2007.

9. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 12.10.2007, framed charges against all the accused persons u/s 498A/34 IPC and a separate charge against all the accused persons u/s 120B/302/201 IPC, to which they pleaded not guilty and claimed trial.

10. The prosecution, in order to prove its case, has produced as many as 35 witnesses, relevant of which have been discussed below.

11. The statements of the accused u/s 313 Cr.PC were recorded SC No.205/10 Page 12/99 wherein they pleaded their innocence and denied the incriminating evidence against them as false and accused Sh. Satya Narain himself appeared in the witness box as DW1 and examined Sh. Gian Chand as DW2.

12. I have heard Ld. APP for the state, Sh. Ayush Gupta, Advocate for the accused and Sh. Ram Kishan, Ld. Counsel for the complainant also filed written arguments and I have also perused the same and the record.

13. The offences alleged against the accused can be broadly divided into two parts. First comes the offence u/s 498A/34 IPC committed during the lifetime of the deceased, as alleged, as an independent offence and also as a motive of the accused for the murder of the deceased and second part is the conspiracy, the murder and the disposal of dead body as a piece of evidence, as alleged against the accused. I shall first deal with the offence u/s 498A/34 IPC.

14. The evidence, in support of Section 498A IPC, has been separated from the rest of the deposition of the respective witnesses. PW1, the complainant Jagdish Prasad s/o Prabhati Lal, deposed regarding date of marriage of the deceased with the accused Satya Narain as 10.12.1994, though he mentioned the date in his complaint to the police as June 1995 earlier, and he identified the other accused SC No.205/10 Page 13/99 Jagdish Prasad as father in law, Smt. Shanti Devi as mother in law of the said deceased and he deposed about two said children of the deceased. He further testified that marriage was performed as per his status and he give dowry as per his status in the marriage and that Satya Narain used to beat Kamlesh for bringing less dowry and used to ask her to bring scooter, costly sarees and cash and similarly, the mother in law and father in law of the deceased used to ask Satya Narain to ask to bring the dowry and one Madan Lal was also asking the accused Satya Narain for the same and on some occasions, with the help of other people, he got compromise made between deceased and accused Satya Narain and sent her to matrimonial home (thereafter the deposition is with regard to other aspects during which he exhibited his written complaint to the police as Ex.PW1/A). He further testified that Sh. Pushkar Mal and Snehi Lal were the mediators of this marriage proposal and he had given Rs.81,000/­ in cash, jewellery and costly clothes to accused Jagdish Prasad at the time of "Tilak Ceremony" i.e the time when the marriage was fixed and that after marriage he had sent Rishi Kumar, the son of his elder brother Babu Lal, to Delhi to bring Kamlesh, the deceased, from Mangol Puri where said Rishi requested Satya Narain to accompany them to ISBT but accused Satya Narain and Jagdish Prasad refused the same and said Rishi alone came with the deceased to ISBT where her costly ornaments and suitcase was SC No.205/10 Page 14/99 stolen regarding which Kamlesh had informed her in laws on which accused Satya Narain and other persons came to ISBT and accused Satya Narain asked Kamlesh not to come back to the matrimonial home unless and until the stolen articles are compensated and that after pacifying the deceased Kamlesh, he sent her to her in laws house with cash of Rs.2,000/­ or Rs.3,000/­ and that he had also compensated the in laws of deceased Kamlesh to the tune of Rs.60,000/­ to Rs.70,000/­ by way of giving various articles like ornaments and clothes when he had sent Kamlesh back to her in laws house and that Kamlesh used to inform that she was being beaten by her husband Satya Narain for bringing less dowry and that they (the complainant side) used to console her and sent her back to her in laws house and that about 2½ years prior to the incident, i.e death of Kamlesh, she was beaten to the extent that her hand was broken and at their house a verbal compromise was effected due to the intervention of Budh Ram, Snehi Lal, Sarpanch Phool Chand and at that time accused Satya Narain and other accused promised them not to repeat such incident in future and thereafter he deposed about 06.03.2003 when the deceased was sent alone to attend the said function at Village Tapukara and accused and his family members did not join the function and the deceased Kamlesh, after the said ceremony, informed them not to go to her in laws house as she was being harassed for dowry and that on 08.03.2003, they (the SC No.205/10 Page 15/99 complainant side) had come back to Delhi and on the way at Narnaul, his younger brother Net Ram got purchased 3 costly sarees worth Rs.3300/­ to Kamlesh out of which Rs.2,000/­ was paid in cash and Rs.1300/­ remained balance and the cash memo Ex.P1 in this regard was handed over to the police and thereafter a leading question was put by the Ld. Addl. PP to the witness with regard to role of accused Jagdish Prasad regarding the incident happened at ISBT wherein the witness admitted it as correct that when the incident of theft of jewellery and suit case of Kamlesh at ISBT, Delhi took place, at that time accused Jagdish Prasad had also asked the deceased Kamlesh not to come to her in laws house till the articles are compensated.

15. In his cross examination on behalf of the accused qua this aspect of Section 498A IPC, PW1 replied that he had not written in his complaint Ex.PW1/A that at the time of Tilak Ceremony he had given a sum of Rs.81,000/­ to the accused. He further replied that his other statement was recorded by crime branch official after the investigation was transferred to them but he did not sign the said statement and his no other statement was recorded and that he had filed the petition before the Hon'ble High Court of Delhi after about one or two months of the death of Kamlesh and that all the facts pertaining to the death of Kamlesh including that of matrimonial life, were told by him to his Advocate over there. He further replied SC No.205/10 Page 16/99 that he had not read the petition filed before the Hon'ble High Court of Delhi before signing the same as he could not read English and it was also not read over to him by his Advocate. He further replied that one of his brother in law namely Pushkar Mal used to accompany him to the office of his Advocate over there and at that time he was aware about the recovery of petticoat of Kamlesh but the said fact was not mentioned in the petition filed before the Hon'ble High Court of Delhi. He did not remember as to whether he mentioned about the fact of giving Rs.81,000/­ in the Tilak Ceremony in the said petition or not. He further replied that he had not mentioned anything about the aforesaid incident of theft of the bag of the deceased at ISBT in his complaint Ex.PW1/A. He further replied that he had not stated anything in the complaint Ex.PW1/A about the incident in which hand of deceased Kamlesh was broken due to beatings given to her. He admitted that he had not stated in his complaint Ex.PW1/A that upon returning to Village Nangal Dargu from Village Tapukara deceased Kamlesh had stated that she did not wish to go to her in laws house as she was still being harassed over there for dowry. He replied that he did not remember whether he stated in his complaint Ex.PW1/A about the purchase of three sarees or not and he was confronted with his statement Ex.PW1/A where it was not so recorded. He replied that he was carrying the cash memo Ex.P1 with him on 08.03.2003 itself. SC No.205/10 Page 17/99

16. PW2 Sh. Tara Chand, the brother of the deceased, deposed regarding marriage of the deceased with the accused Satya Narain and identified other accused as her in laws and thereafter regarding dowry given in the marriage according to their capacity and deposed regarding non satisfaction of the accused with the dowry, beatings to Kamlesh given by the accused and demand of scooter, sarees and cash and informing regarding the said demand by the deceased to them and compromising the matter many a times. In his cross examination on behalf of the accused, he denied the suggestion that accused never demanded dowry or did not give beatings to Kamlesh.

17. PW3, Rishi Kumar, deposed regarding marriage of the deceased with the accused on 10.12.1994 and after 15­20 days of the marriage he had come to Delhi to take deceased Kamlesh to her parents house from her matrimonial home and since he had visited Delhi for the first time, he requested accused to come along with them to ISBT but they flatly refused to accompany them and he along with one suitcase of deceased Kamlesh and the deceased went to ISBT and boarded a bus and the suit case of the deceased Kamlesh having her articles was stolen in the bus and that he had informed the police and also informed accused Satya Narain on telephone about the loss of suitcase who came to ISBT and then he (the witness) requested accused Satya Narain to take the deceased back to her matrimonial home as she was weeping but accused again SC No.205/10 Page 18/99 flatly refused to take Kamlesh back to her matrimonial home and he stated that he would not take her back until the loss of articles and clothes in the suitcase are reimbursed to them and that ultimately, he (the witness) took Kamlesh back to her parents house and she was not taken back to her matrimonial home by accused persons until they (the complainant side) fully reimburse the articles and clothes to them and she was taken back to her matrimonial home after two months along with the said articles and clothes. In his cross examination on behalf of the accused, he answered that he did not inform the parents of deceased Kamlesh about the loss of suitcase. He did not know as to whether police at ISBT had recorded his complaint or not. He further replied that nobody else came to ISBT after hearing about the loss of suitcase. He replied that he did not visit the matrimonial home of deceased Kamlesh ever again.

18. PW4 Pushkar Mal again deposed regarding the said marriage and deposed that Rs.81,000/­ in cash along with gold and silver articles and clothes were given at the time of marriage and that he used to visit the matrimonial home of Kamlesh quiet often and Kamlesh also used to visit his house occasionally and the deceased used to tell him that she was harassed by her in laws including her husband and abused and beaten by them and after about 2½ years of her marriage, once deceased Kamlesh telephoned him that she was beaten up by accused Satya Narain severely on the ground that she SC No.205/10 Page 19/99 had brought less dowry and that she should bring more money from her parents and she was beaten by the said accused with some wooden stick as a result of which she sustained fracture in her arm and Kamlesh had also informed this fact to her father and that he along with Jagdish Prasad, the father, had visited matrimonial home of Kamlesh and they had seen plaster on the arm of Kamlesh and Kamlesh told them at that time that she received injury on her other parts of the body also during the said beatings given to her by accused Satya Narain and that he suggested her father to lodge a police complaint about this but her father was not in favour of making any police complaint to save the matrimonial home of deceased Kamlesh and at the suggestion of the father of the deceased, 4­5 persons from the village of accused persons were called and a compromise was arrived at. In his cross examination on behalf of the accused, PW4 replied that his statement was recorded by the officials of crime branch only once. He answered that he had stated to the police that he used to visit matrimonial home of Kamlesh but he could not say whether police had recorded the same in his statement and he was confronted with his statement Ex.PW4/DA where it was not found so recorded. He answered that neither the police read over nor he himself read his statement. He further replied that he had stated to the police at the time of recording of his statement that after about 2½ years of marriage of SC No.205/10 Page 20/99 deceased Kamlesh, she telephoned him that she had been beaten by accused Satya Narain but he could not say as to whether the same was recorded by the police or not and he was confronted with his previous statement Ex.PW4/DA where it was not found so recorded. He further answered that he had also stated to the police in his statement that accused Satya Narain had beaten Kamlesh with a wooden stick as a result of which he sustained a fracture in her arm and he was confronted with his said statement Ex.PW4/DA where it was not found so recorded. He answered that accused persons also used to live in H.No.502 and sometimes they used to live in H.No.1695, Mangol Puri and that he had visited H.No.1695, Mangol Puri, also. He further replied that he had told the police that he along with Jagdish Prasad visited matrimonial home of Kamlesh or that they had seen plaster on the arm of Kamlesh or that Kamlesh received injuries on her other body parts in the said beatings given by accused Satya Narain or that he suggested father of the deceased to lodge a police complaint about this to which he refused to save the matrimonial house of Kamlesh and he was confronted with his previous statement where it was not found so recorded.

19. PW5 Smt. Santosh deposed that she was married to Tara Chand in the year 1997 and deceased Kamlesh was sister of Tara Chand who was already married to accused Satya Narain three years prior to her marriage and that she shifted to Delhi along with her SC No.205/10 Page 21/99 husband in the year 1999 at J Block, Prem Nagar II, Sultan Puri, and Kamlesh was also married in Delhi and she used to visit their house in Delhi quiet often and used to tell them that she was beaten up by her in laws including husband for bringing more dowry and sometimes they (the witness side) used to give her money and sometimes articles so that her in laws remained satisfied but the in laws of Kamlesh never became satisfied with the articles given by them and even accused Satya Narain did not want to visit their house and Kamlesh used to visit their house alone and that they used to give sometimes Rs.2,000/­ and sometimes Rs.5,000/­, clothes and articles etc as per the demand told to them by Kamlesh which she used to tell them that the said demand had been made by her in laws and that her in laws were demanding a scooter also for which they suggested to talk to accused Satya Narain about the demand of scooter due to their (the witness side) poor financial condition. She further testified that on the occasion of Kuan Poojan at the matrimonial home of Ms. Manju, they had given five sarees in all along with clothes of the children so that parents in law and husband of Kamlesh remained satisfied and that Kamlesh insisted at that time also that she be given a scooter and cash of Rs.10,000/­ as per demands of her in laws otherwise she would not go back to her matrimonial home as she would be harassed if the said demands of her in laws were not fulfilled and that they somehow sent Kamlesh SC No.205/10 Page 22/99 back to her matrimonial home. In her cross examination, PW5 replied that when deceased Kamlesh visited to attend the Kuan Poojan ceremony of Manju, even at that time Kamlesh was having signs of beatings and injury on her body but they straight away went to Village Tapukara and did not visit any doctor. In her further reply, she answered that she had not stated to the police in her statement about the demand of Rs.10,000/­ including scooter made by the accused. She further replied that out of the five sarees mentioned by her above, two sarees were already in the house and three were purchased new but she could not tell the colour of the sarees. She further replied that prior to this also, sarees were given to Kamlesh when she used to visit their house but she could not tell the date on which sarees were given earlier and that Kamlesh was given three sarees earlier also. She replied that her husband Tara Chand and her father in law also knew that five sarees were given to Kamlesh.

20. PW7 Naresh is the husband of Ms. Manju, resident of Alwar, where the deceased and accused Satya Narain were invited for Kuan Poojan ceremony on 06.03.2003 and he deposed that only deceased Kamlesh attended the function along with her brother Tara Chand and his wife Santosh and he had no occasion to meet accused Satya Narain as he did not use to attend any function either at his in laws house or at any function at his own house and that accused Satya SC No.205/10 Page 23/99 Narain even did not attend his brother's marriage in the year 2002 at his house despite the fact that invitation card was sent to him and on the said Kuan Poojan ceremony also, once again neither the children of Kamlesh nor accused Satya Narain accompanied her and whenever he used to inquire from Kamlesh as to why her children or husband does not accompany them, she used to reply that her in laws give beatings to her and did not accompany her and that nothing more used to be told to him by Kamlesh. He further deposed that he never asked Kamlesh as to the reason for which she used to be beaten by her in laws but she used to say sometimes that her in laws were greedy people and thus, did not use to accompany her or used to allow her children to accompany her on any function and by the word "greedy people" he meant that they used to ask Kamlesh to bring money from her parental home. In his cross examination on behalf of accused, he did not remember the telephone number of accused Satya Narain on which he talked to him and he did not know even the address of the accused nor he remembered the time when Kamlesh came to their house on 06.03.2003 nor he remembered the time when she left for her house after the ceremony.

21. PW8 is Ms. Manju wife of Naresh (the PW7) and the sister of the deceased, who deposed that after marriage she (the deceased) used to be harassed by her in laws for bringing money from her SC No.205/10 Page 24/99 parents and her parents accordingly used to pay money to Kamlesh so as to satisfy the demands of her in laws and that after the marriage of Kamlesh, whenever any function used to take place in their house, be it was the marriage of her brothers, sisters or herself or any other function, accused Satya Narain or the children of Kamlesh did not come to attend the same and Kamlesh used to come alone and that she was not aware as to why the husband of Kamlesh or children of Kamlesh did not accompany her on various occasions and thereafter she deposed about Kuan Poojan ceremony on 06.03.2003 and invitation given to the accused Satya Narain who did not attend the function nor children of the deceased attended the function and deceased disclosing her (the witness) regarding her harassment by in laws. She further deposed that prior to the aforesaid incident of 2003, on one occasion in 2001, accused Satya Narain had even broken the hand of Kamlesh but she did not know as to what was the reason for the same or as to what happened thereafter and Kamlesh used to tell her that her in laws harassed her and demanded dowry etc and that she was not aware as to whether any article was given in the marriage to Kamlesh or not. In her cross examination on behalf of the accused, PW8 replied that her one uncle by the name of Prakash residing at Imphal, was married but she did not attend his marriage nor she attended the marriage of the daughter of Net Ram, her own uncle, but she was not aware as to SC No.205/10 Page 25/99 whether accused Satya Narain attended the said two marriages or not.

22. PW18 Snehi Lal deposed regarding the marriage of deceased with accused Satya Narain and that father of Kamlesh had given sufficient dowry at the time of her marriage with Satya Narain and so far as he remember, Rs.80,000/­ were also given at the time of marriage of Satya Narain and there was some tension between the deceased and Satya Narain and that he had also gone to the matrimonial home of Kamlesh more than one year prior to her death accompanied with Sarpanch Phool Chand, Budh Ram and father of Kamlesh namely Jagdish Prasad at the instance of father of the deceased namely Jagdish Prasad where the accused persons and Kamlesh were made to understand and not to quarrel on petty issues. He further testified that they also found that one finger of the hand of Kamlesh was bandaged but he did not know as to why it was having bandage and thereafter he did not go to the house of accused persons again. In his cross examination on behalf of the accused, he replied that he had not attended the marriage of Ms. Manju with Naresh. He further replied that Data Ram is the brother of accused Jagdish Prasad. He admitted it as correct that at the time of death of Kamlesh, she along with her husband Satya Narain was living separately from her in laws. He further admitted that at the said place accused Satya Narain was having his shop on the ground floor SC No.205/10 Page 26/99 and residence at the first floor and he further admitted that no one else was residing in the said house.

23. PW19 Prem Prakash was declared hostile and in his cross examination on behalf of the State by the Ld. Addl. PP, he admitted that accused Satya Narain, husband of Kamlesh, had not attended the function of Kuan Poojan. He replied that he did not know whether in laws of Kamlesh used to torture Kamlesh on account of dowry or they used to beat Kamlesh and that he did not state so before the police and he was confronted with his previous statement Ex.PW19/A from portion A to A where it was found so recorded.

24. PW20 Dinesh Kumar is the brother of the deceased who deposed regarding marriage of deceased Kamlesh with accused Satya Narain and he further deposed that just after marriage the deceased used to tell them near about every day that her in laws used to subject her to cruelty in connection with demand of dowry and that his elder brother, with whom he was running a grocery shop, had given Rs.2,000/­ or Rs.3,000/­ on number of occasions to the deceased and used to console her. A leading question was put to the witness as to whether during the stay of the deceased from 06.03.2003 to 10.03.2003 in connection with the said Kuan Poojan ceremony, the deceased told anything to him which was objected to by the Ld. Defence Counsel which was overruled by my Ld. SC No.205/10 Page 27/99 Predecessor and the witness replied that deceased told them that her husband and in laws used to treat her with cruelty in connection with demand of dowry. In his cross examination on behalf of the accused, PW20 replied that he had stated to the police in his statement that on number of occasions his brother had given Rs.2,000/­ or 3,000/­ to the deceased and he was confronted with his previous statement Ex.PW20/A where it was not found so recorded. He further replied that he had stated in his statement regarding whatever deceased told to them against her in laws between 06.03.2003 to 10.03.2003 but he was confronted with his previous statement where it was not found so recorded. He further replied that on the occasion of the marriage of his uncle Prakash, accused Satya Narain did not attend the said marriage. He did not know as to whether accused Satya Narain was residing separately from his parents in a separate house. He did not know that accused Satya Narain did not accompany the ceremony of Kuan Poojan with the deceased as there were exams of the sons of the deceased sister at that time.

25. PW30 Ratan Lal was the shopkeeper of Main Bazar Narnaul from where the sarees for the deceased were purchased vide bill Ex.P1. He deposed that he knew Jagdish Prasad, Netram Aggarwal and Babu Lal who are real brothers and living in the same area and they were his regular customers and he knew their children also and SC No.205/10 Page 28/99 that deceased Kamlesh was daughter of Jagdish Prasad and that on 08.03.2003, Kamlesh came and purchased three sarees from his shop and she was hale and hearty at that time. In his cross examination on behalf of the accused, PW30 replied that at the time of purchase of sarees, her father Jagdish Prasad was present at his shop.

26. PW32 Ms. Asha, who was the teacher of the children of the deceased taking their coaching classes, deposed that prior to her marriage at Kanpur, she was working as a teacher in Goldy Public School, Mangol Puri, Delhi, and used to take coaching classes at home and that she knew Master Avinash and Akash as she used to give coaching classes to them at her residence from 3 to 5 p.m. and that these children never told her about any type of illness suffered by their mother (this question was objected to by the Ld. Defence Counsel being the leading question.). She did not remember the date that on 11.03.2003, the said two children came for coaching classes at her residence. She was cross examined by the Ld. Addl. PP on behalf of the State. She admitted that she stated to the police that about three years back, when she used to teach children of K.G and First Class, one Avinash took admission in their school and it was informed to her that prior to that admission Avinash was residing at Kolkata. She further admitted that after 1½ year prior to the incident, younger brother of Avinash namely Akash also took admission in her school and he too started taking coaching from her. SC No.205/10 Page 29/99 In her cross examination on behalf of the accused, she admitted it as correct that during the month of March 2003, final exams were going on in the school of Master Avinash and Akash. She did not remember whether she had stated to the police about the date of 11.03.2003. She further replied that she never used to inquire or ask questions about the family affairs of the students.

27. From the said deposition of the said witnesses qua Section 498A IPC, it has come on the surface that there are so material contradictions in their respective depositions particularly with regard to alleged demand of dowry or giving the money, jewellery, sarees etc to her on account of demand of dowry by the accused, that if deposition of one witness is to be relied, the deposition of other witness is completely wiped out and the depositions are very difficult to be reconciled.

28. Another feature that emerged from the said deposition is that in the deposition of almost all the witnesses, the improvements have come to such an extent that the said alleged demand, incidents of beatings, giving of the said articles etc were not found mentioned in their respective previous statements, as narrated above.

29. Regarding material contradictions, for example, the incident of causing fracture to the hand of the deceased by giving beatings to her by the accused, PW1 deposed that about 2½ years prior to the SC No.205/10 Page 30/99 incident of the death of Kamlesh, she was beaten to the extent that her hand was broken and at that time Budh Ram, Snehi Lal, Sarpanch Phool Chand, went along with him and a compromise was arrived at whereas PW4 Pushkar Mal, deposed that after about 2½ years of her marriage, once Kamlesh telephoned him that she was beaten up by accused Satya Narain severally on the ground that she had brought less dowry and she was beaten with some wooden stick as a result of which she sustained fracture in her arm. This portion was not only confronted with his previous statement Ex.PW4/DA where it was not found so recorded, but at the same time, if the said incident occurred after the marriage of Kamlesh, then the time must be somewhere at the middle of the year 1997 but if we rely PW1 about the said incident to have happened 2½ years prior to the death of the deceased, then the incident must have occurred somewhere in the year 2000 or 2001 and the said timings of the alleged incident cannot be reconciled at all. Further, regarding the incident of ISBT where the suitcase containing costly ornaments of the deceased was stolen, as deposed by PW1, accused Satya Narain, one Madan Lal and other persons went to ISBT whereas PW2 Tara Chand altogether wiped out the said incident and did not utter even a single word in his deposition and yet PW3 Rishi Kumar, with whom the deceased Kamlesh was at ISBT when the suitcase was stolen, wiped out the presence of Madan Lal and other persons at the ISBT in his SC No.205/10 Page 31/99 cross examination where he answered that nobody else came to ISBT after hearing about the loss of suitcase.

30. Regarding improvements, PW1 did not mention about the fact of giving Rs.81,000/­ in the Tilak Ceremony in his previous petition filed before the Hon'ble High Court of Delhi nor the incident of breaking the hand of Kamlesh by the accused was found mentioned in his previous complaint Ex.PW1/A nor he mentioned about the suitcase stolen of the deceased at ISBT in his complaint Ex.PW1/A nor it was found mentioned in his previous complaint Ex.PW1/A that after returning from Village Nangal Dargu, the deceased did not wish to go to her in laws house as she was still being harassed over there for dowry. The fact of purchasing three sarees for Kamlesh on 08.03.2003 was also not found mentioned in the complaint Ex.PW1/A nor he gave the cash memo to the police despite it was with him on 08.03.2003 itself. Similarly, PW2 completely wiped out and did not tell anything about purchase of three sarees on 08.03.2003. Similarly, in the deposition of PW5 that Satya Narain had earlier stated that he would also go to village Tapukara but later on he did not turn up along with Kamlesh, was not found recorded in her previous statement Ex.PW5/DA. She further simply denied in her cross examination that she had not stated to the police in her statement about the demand of Rs.10,000/­ including scooter made by the accused persons. PW7 is not at all a witness of the reasons SC No.205/10 Page 32/99 for the alleged beatings given to the deceased by her in laws. Further, PW8 Ms. Manju did know the reason as to why the hand of deceased Kamlesh was broken by accused Satya Narain in the year 2001. Moreover, PW18, not only gave Rs.80,000/­ instead of Rs.81,000/­, as deposed by other witnesses allegedly given at the time of marriage, but he gave altogether a new story that at the time of death of Kamlesh, she along with her husband Satya Narain, was living separately from her in laws and no one else was residing in the said tenanted house. PW18 has another story to tell that at the matrimonial home of the deceased, when he went along with other persons including PW1, they made the accused persons and Kamlesh to understand not to quarrel on petty issues but he nowhere deposed that any demand of dowry was made by the accused for which they had gone to the matrimonial home of the deceased for making the accused understand against the same. PW19 is Prem Prakash who is completely hostile with regard to beatings given to the deceased Kamlesh or any conspiracy to kill the deceased. Again, PW20, the brother of the deceased, not only deposed in his examination in chief so as to give an impression of fulfilling the ingredients of law qua the said offence but his cross examination revealed that his deposition before the court was full of improvements. His claim that his brother had given Rs.2,000/­ or 3,000/­ to deceased sister on number of occasions was not found recorded in his previous SC No.205/10 Page 33/99 statement Ex.PW20/A nor the ill treatment and cruelty committed by accused persons in connection with demand of dowry, as told by the deceased to them, was found recorded in his said previous statement.

31. The prosecution witness PW32 further gave a jolt to the story of alleged cruelty committed by the accused Satya Narain by not accompanying the deceased to the said Kuan Poojan ceremony or not sending the children to the said ceremony along with the deceased when she, being the admitted tutor of the said two children of the deceased, admitted that these were the exam days of the said two children.

32. Thus, the allegations against the accused qua the offence u/s 498A IPC are so vague, general in nature and without any specification that it is very difficult to infer or to believe that the deceased was treated with cruelty on account of demand of dowry and the Ld. Defence Counsel has rightly relied upon the judgment of the Hon'ble Supreme Court in Criminal Appeal No.891/2004, decided on 11.11.2010, titled Dr. Sunil Kumar Shambhu Dayal Gupta and others Vs. State of Maharashtra and the judgment of the Hon'ble Apex Court in Criminal Appeal no.949/2003 titled Neelu Chopra and Anr. Vs. Bharti, decided on 07.10.2009 in this regard and as such, the prosecution has miserably failed to stand on its own legs to prove the said offence against the accused persons. SC No.205/10 Page 34/99

33. Coming to the offence of conspiracy for murder, murder and causing the dead body of the deceased to disappear as a piece of evidence, admittedly there is no eye witness to the occurrence nor the dead body has been recovered so as to establish by way of forensic evidence, as regards the cause of death, as to whether it was homicidal, suicidal, accidental, due to some illness or ailment or otherwise than in natural circumstances.

34. I am conscious of the law laid down by Hon'ble Supreme Court in various judgments that recovery of corpus delicti is not essential for proving and convicting an accused for the offence of murder. Reference can be made to a judgment titled Ram Gulam Chaudhary and others Vs. State of Bihar reported as AIR 2001 Supreme Court 2842 wherein the Hon'ble Supreme Court was dealing with a case where the accused along with some other persons came to the spot variously armed with lathies, bhala and chura and assaulted one Krishna Nand Chaudhary, dragged him into the courtyard of the house and further assaulted him and that when the mother and father tried to save him, they were also assaulted and thereafter the accused took him to a nearby ditch and pushed him down towards and the deceased accused Bijoy Chaudhary was then supposed to have stated that he was still alive and should be killed and on this statement another accused no.9 gave a chura blow on the SC No.205/10 Page 35/99 chest of Krishna Nand Chaudhary which resulted in his death and all those accused thereafter left the place taking away the body of the deceased and it was contended on behalf of the said accused before the Hon'ble Apex Court that corpus delicti had not been found and that there was no proof that Krishna Nand Chaudhary had actually died and that there was no medical evidence of death and the Hon'ble Supreme Court rejected all the said contentions and held that it is not at all necessary for a conviction for murder that the corpus delicti be found and that undoubtedly in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person had died and that accused were the persons who had committed the murder. It was further held that when the accused carried away the body, as to what happened thereafter to Krishna Nand Chaudhary was specially within the knowledge of the accused and the accused had given no explanation as to what they did after they took away the body and that said Krishna Nand Chaudhary had not been since seen alive and in the absence of explanation and considering the fact that the accused were suspecting the boy of their family to have kidnapped and killed by the said Krishna Nand Chaudhary, it was for the accused to have explained as to what they did with him after they took him away and that there was every justification for drawing the inference that they had murdered the said person. It was further held SC No.205/10 Page 36/99 that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death and that the accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference.

35. In another case titled Sevaka Perumal Vs. State of Tamil Nadu reported as AIR 1991 SC 1463, it was held by the Hon'ble Apex Court that if recovery of the dead body is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc and that would afford a complete immunity to the guilty from being punished and the accused would escape even when the offence of murder is proved and that what, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced. In this case, Hon'ble Supreme Court was dealing with the deposition of an approver as an eye witness of the occurrence.

SC No.205/10 Page 37/99

36. From the said law laid down by the Hon'ble Apex Court, the proposition that emerges is that there must be a direct or circumstantial evidence unerringly pointing out towards the accused as the murderer and recovery of dead body may not be there in order to convict him but at the same time, it is not disputed that where such a direct or circumstantial, cogent and reasonable evidence is not available then in the absence of the corpus delicti certainly the court may not be in a position to know the cause of death of the deceased.

37. Judging in the light of the said law laid down by the Hon'ble Apex Court, let me scrutinize the other part of the evidence qua the offence of murder. In this regard, PW1, the father of the deceased, deposed that on 10.03.2003, at about 7.30 p.m, Dinesh took the deceased Kamlesh in proper condition and left her at Mangol Puri with accused Satya Narain and on 12.03.2003 at about 6.30 a.m, the servant of the shop owner namely Jai Prakash came and informed him that there had been a telephone call from Mangol Puri where Kamlesh was married, that Kamlesh had died and thereafter they inquired from Y­Block, Mangol Puri i.e from the in laws house of deceased Kamlesh and came to know that on 11.03.2003, in the evening, Kamlesh had died and her husband, father in law and mother in law had cremated her and that there had been no information by the accused to them (the complainant SC No.205/10 Page 38/99 side) regarding death of Kamlesh knowingly and that he had doubt on the death of Kamlesh and he made a written complaint Ex.PW1/A to this effect. He has further testified that on 11.03.2003 at about 11 a.m, deceased Kamlesh made a telephone call to Net Ram that she was in hale and hearty condition and had come to her in laws house and that Kamlesh died on 11.03.2003 itself and information regarding the incident was not given to them at Prem Nagar though the distance between Mangol Puri and Prem Nagar was only 2 kms and that they only came to know in the morning time on 12.03.2003 about the said incident at 6.30 a.m. and on that day he had lodged the report with the police Ex.PW1/A and that Kamlesh was cremated by the accused persons on the night of 11.03.2003 even without informing them about her demise and as such, he had lodged the said report. He further deposed that on 13.03.2003, accused Satya Narain was arrested vide memos Ex.PW1/B and Ex.PW1/C and accused Jagdish Prasad was arrested vide memos Ex.PW1/D and Ex.PW1/E and that on his complaint police had registered a case only u/s 498A/34 IPC but he was not satisfied with action of the police so he approached the Hon'ble High Court of Delhi and investigation was transferred to Anti Homicide Section of crime branch by a person not below the rank of ACP and thereafter he was put with a leading question by the Ld. Addl. PP regarding SC No.205/10 Page 39/99 role of accused Jagdish Prasad in the incident happened at ISBT and in reply to the same, the witness admitted it as correct that when the incident of theft of jewellery articles and suitcase of deceased Kamlesh at ISBT took place, at that time accused Jagdish Prasad had also asked Kamlesh not to come to her in laws house till the articles are compensated.

38. In his cross examination on behalf of the accused, PW1 replied that the persons who were elder to his daughter Manju, in the said Kuan Poojan ceremony, did not have lunch over there. He further replied that upon receiving information on 12.03.2003, he first of all went to PS Mangol Puri but he did not give any complaint to the police on his first visit to PS Mangol Puri and upon clarification by the court, the witness again stated that he had first of all gone to the house of accused at Mangol Puri and thereafter to PS Mangol Puri. He further replied that he had gone alone to the house of accused but did not reach the house and in the way itself he went to PS Mangol Puri as he had come to know that police had already arrested accused Satya Narain and Jagdish Prasad on the basis of a complaint lodged by his son Tara Chand who had already gone along with his wife to PS Mangol Puri and the complaint Ex.PW1/A was handed over to the police at about 6 or 7 p.m on 12.03.2003. He further replied that at the time of filing of petition before the Hon'ble High Court SC No.205/10 Page 40/99 of Delhi he was aware about the recovery of petticoat of the deceased but the said fact was not mentioned in the petition filed before the Hon'ble High Court of Delhi. He further answered that shop run by him is in the name of Airan Super Store and the said shop was on rent and there was a shop Kapil Medicos near to his shop which was owned by the owner of the said building where his shop existed and that Kapil is the name of son of owner namely Jai Prakash and the servant who gave him the information was working with said Jai Prakash but he did not remember his name. He admitted it as correct that telephone installed at the time of incident at the shop of Kapil Medicos was 5476713. He replied that he himself did not go to cremation ground. He further replied that the fact of talking with one Budh Ram, a resident of the village of accused and who resided at Sultan Puri, gave him the information that Kamlesh had died on 11.03.2003 and she was cremated and no information was given to them (the complainant side) but he had not stated the aforesaid fact of talking with Budh Ram in his complaint Ex.PW1/A. He further replied that when he wrote the complaint Ex.PW1/A, Tara Chand was with him but he did not remember as to whether Tara Chand read over the complaint or not. He further replied that they finally left PS Mangol Puri at about 10 or 11 p.m and Tara Chand was with him at that time and they SC No.205/10 Page 41/99 came to their house at Prem Nagar and stayed there in the night. He further replied that petticoat of Kamlesh was not brought to PS by Tara Chand by the time they remained at the said PS. He further replied that by the time he wrote the complaint Ex.PW1/A, Tara Chand had brought the petticoat and that he had mentioned about the recovery of petticoat in the complaint Ex.PW1/A and he was confronted with the said complaint where it was not found so recorded.

39. PW1 in his further cross examination specifically admitted that at the time of incident no phone was installed either at his house or at his shop and that deceased Kamlesh used to talk to them on the phone installed at Kapil Medicos. He further replied that he had stated in his complaint Ex.PW1/A that information about the incident was given to him by the servant of Jai Prakash and he was confronted with his statement Ex.PW1/A where the name as Jai Prakash was not found mentioned but it was mentioned that servant of the owner of the shop gave him the information. He further replied that he was aware that at the time of incident a phone was installed at the grocery shop of accused Satya Narain. He denied the suggestion that accused had given a call from his said telephone at the phone installed at Kapil Medicos on 11.03.2003 at about 4.15 or 4.30 p.m informing about the incident. He replied that he had earlier gone only once SC No.205/10 Page 42/99 to the house of accused Satya Narain at Y­507, Mangol Puri. He was not aware as to whether Sapna Clinic existed about 3­4 houses away from the said house of accused Satya Narain. He could not admit or deny as to whether any doctor was called from Sapna Clini to see Kamlesh on 11.03.2003 at about 4 or 4.15 p.m as he was not present at that time.

40. PW2 Tara Chand deposed in this regard that on 08.03.2003, Kamlesh came to Delhi with her father and on 10.03.2003, Dinesh left Kamlesh with Satya Narain at about 7.30 p.m and that on 12.03.2003 in the morning, the servant of his shop owner informed him that there was a call from Mangol Puri to the effect that Kamlesh had died and this information was received at 6.30 a.m and they reached Mangol Puri where they came to know that Kamlesh had died on 11.03.2003 and was cremated by accused present in court in the evening of 11.03.2003 itself in a hurried condition and they were not even informed about the death of Kamlesh and her cremation though they were residing very near at Prem Nagar and as such, they had doubt on the death of his sister Kamlesh. He further testified that on 12.03.2003, he along with Net Ram reached cremation ground of Y block, Mangol Puri, where a petticoat of Kamlesh was found which was having some stains and the said petticoat was given on 10.03.2003 by his wife to Kamlesh and SC No.205/10 Page 43/99 Kamlesh worn the same and went to Mangol Puri and that he took the said petticoat to the PS and handed over to the police vide memo Ex.PW2/A in the presence of Net Ram which was sealed with the seal of DP and he identified the petticoat as Ex.P2 and the court observed that there are marks blackish in colour at certain points on the said petticoat but it could not be conclusively opined at that stage as to whether these are blood or stool marks or not.

41. In his cross examination on behalf of the accused, PW2 replied that servant of Kapil Medicos had given the information to his brother Dinesh on 12.03.2003 and that his statement was not recorded by the police of PS Mangol Puri but later on crime branch officials recorded his statement. He answered that he himself did not give any written complaint under his signatures to PS Mangol Puri. A court question was asked from the witness to clarify, as in his examination in chief he mentioned that it was he to whom the servant of the owner of the shop informed about the incident but in his cross examination, he mentioned that it was his brother Dinesh to whom the said information was given by the said servant, as to which of his statement is correct to which he replied that information was given to his brother Dinesh and it is his correct statement and Dinesh immediately thereafter told him about the information within few minutes SC No.205/10 Page 44/99 and Dinesh used to sleep in his shop and that he (the witness) conveyed the information to his father who was present at the other shop which was about one kilometer away or so, on a PCO situated nearby to their said shop and he gave the ring from the phone at Kapil Medicos. He further replied that he did not know the name of the said servant of Kapil Medicos but Jai Prakash is the owner of Kapil Medicos and his servant Pawan Sharma sits at the shop and sometimes Jai Prakash also used to sit and that Jai Prakash had two servants. He further replied that after receiving the information first of all he along with his wife went towards the house of the accused but on the way, upon inquiry from shopkeeper who was known to him, came to know that Kamlesh had died and had already been cremated by the accused on the day and thereafter he went to PS Mangol Puri along with his wife. He was not aware as to where his father had gone after receipt of the said information but when he reached the PS his father was not present there and from the PS, he along with two police officials went to the house of accused Satya Narain but he did not go to the house of accused Jagdish Prasad and he volunteered that other two accused were also present at the house of accused Satya Narain where they stayed only for 2­3 minutes as they brought Satya Narain and Jagdish Prasad along with them to the PS and that they stayed in the PS till evening SC No.205/10 Page 45/99 i.e up to 7 or 8 p.m and that his father reached PS Mangol Puri at about 11 a.m or 12 noon along with other relatives and he was not present with his father when he wrote complaint Ex.PW1/A and from the PS they directly went to their house. He replied that name of his wife is Santosh and besides him, his uncle Net Ram and some neighbours were with him at the cremation ground. He further replied that on 06.03.2003, 08.03.2003 and on 10.03.2003, Kamlesh was wearing saree but he did not remember the colours thereof. He further replied that on 10.03.2003 he left for his shop and had not met the deceased Kamlesh and that on 10.03.2003 when his wife gave the petticoat to Kamlesh, he was not present and he was not aware as to whether his wife had given a new petticoat to Kamlesh or it was an old one and that his wife had told him prior to the recovery of petticoat on 12.03.2003 that Kamlesh had left the house on 10.03.2003 while wearing her petticoat. He was not aware as to whether at the time of death or cremation of Kamesh, she was wearing the same petticoat or not. He replied that cremation ground at Mangol Puri was a big one and around 25­30 dead bodies could be cremated there at the same time. He did not make any inquiry as to how many female bodies were cremated on the day before. He replied that worker at cremation ground merely pointed out the place where the petticoat was lying SC No.205/10 Page 46/99 stating that it was the same which was left by the person who had come to cremate the body of Kamlesh. He was not aware as to clothes of other dead bodies were also lying nearby the place where they were cremated or not. He was not aware as to what IO did with the petticoat. He further replied that he had visited the house of Satya Narain number a times prior to the incident but he was not aware as to whether there existed a Sapna Clinic away from the house of accused or not.

42. PW4 Pushkar Mal deposed that on 12.03.2003, he received a telephone call from accused Satya Narain that Kamlesh had died on 11.03.2003 and that they had cremated her dead body on 11.03.2003 itself in the evening time and he further telephoned about the death at the shop adjoining to the shop of Jagdish Prasad at Prem Nagar since there was no telephone in the shop of Jagdish Prasad (the father of the deceased PW1). He further replied that telephone was received by servant of Jagdish Prasad and he had told him that he (the servant) would inform Jagdish Prasad about it. He suspected that Kamlesh was murdered by accused and that was why they cremated her dead body so hurriedly in the evening time and did not inform any of the relatives from her parents house.

43. In his cross examination, PW4 replied that his statement SC No.205/10 Page 47/99 was recorded by the police officials of crime branch only once. He replied that he had stated in his statement that he used to visit the matrimonial home of Kamlesh but he could not say as to whether police had recorded the same in his statement and he was confronted with his previous statement Ex.PW4/DA where it was not found so recorded. He replied that Kamlesh was living in H.No. Y­502, Mangol Puri, at her matrimonial home and accused Jagdish Prasad and Satya Narain were living in the same house and that accused persons also used to live in H.No. 502, Mangol Puri and sometimes they used to live in H.No.1695, Mangol Puri, also and he had visited H.No.1695 also. He further replied that he had stated to the police that he telephoned to the adjoining shop to the shop of Jagdish Prasad about the death and the servant picked up the phone at that time and he was confronted with his previous statement Ex.PW4/DA where it was not found so recorded. He replied that he received the phone of accused Satya Narain at the phone installed at his shop but he could not tell the number of said telephone nor he could remember the telephone number on which he telephoned to the father of Kamlesh. He had not inquired the name of the servant who had picked up the phone. He further replied that he had told the servant his own name and also that he was speaking from Seema Puri. He replied that he reached the PS at about 12 SC No.205/10 Page 48/99 noon or 1 p.m and in the PS accused Satya Narain and accused Jagdish Prasad were already present and there was no neighbour of Jagdish Prasad, the father of the deceased in the PS. He replied that he did not pay attention as to whether any Sapna Clinic was near the house of accused persons. He further replied that he had not visited at any time the office of any lawyer along with Jagdish Prasad, the father of the deceased. He could not admit or deny the suggestion as to whether Kamlesh had died a natural death or not but he again said that Kamlesh was killed by accused persons as the relatives residing nearby of the deceased were not even called for the cremation.

44. PW5 Santosh, wife of PW2, deposed that on 10.03.2003 in the evening time, her brother in law namely Dinesh took Kamlesh along with him and left her at the matrimonial home and that on 12.03.2003, at about 6 a.m, the servant of the owner of their shop informed them about death of Kamlesh and on hearing the news they immediately reached the matrimonial home of Kamlesh where they came to know that Kamlesh had already been cremated on the previous day and she suspected that Kamlesh had been killed for bringing less dowry, that was why accused persons did not inform them about her death and cremated Kamlesh so hurriedly to conceal the evidence of murder and that accused persons were found present there and told them SC No.205/10 Page 49/99 that they (the accused) cremated the dead body of Kamlesh in the evening time after 7 p.m and that they (the witness) were not informed about the death of Kamlesh although they were merely residing at a distance of about 2 kms only from the matrimonial home of Kamlesh and as per Hindu Rites and Ceremonies, the dead body is not cremated after 7 p.m.

45. In her cross examination, PW5 replied that she had told the police that she came to know about the death of Kamlesh from servant of owner of the shop and she was confronted with her previous statement Ex.PW5/DA where the word servant was not found mentioned. She further told the police that on hearing the news of death, they immediately went to the matrimonial home of Kamlesh and this fact was also not found recorded in her previous statement Ex.PW5/DA. She further replied that the servant had informed to her brother in law Dinesh at the time when he was opening the shop. She replied that she had never visited the matrimonial home of Kamlesh and that her husband had told her that the distance of the matrimonial home of Kamlesh was 2 kms from their house. She replied that name of the employer of servant, who informed regarding death of Kamlesh, was Jai Prakash who was a builder but she did not know the name of the servant.

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46. PW7 Naresh Kumar, at whose place at District Alwar, Rajasthan, Kuan Poojan ceremony of Ms. Manju took place, deposed that on 10.03.2003, he rang up to his in laws house when his father in law told him that Kamlesh had been sent back to her in laws house at Mangol Puri and on 12.03.2003 his father in law rang him up and told him that Kamlesh had since been killed and that he came to Delhi and went to his in laws house at Nangloi but they were not present there so he went to Mangol Puri in search of the house of accused persons as he had never been there earlier. He further deposed that he overheard persons in the locality saying that a lady had been killed and cremated after sunset and that too without informing her parents and other relatives. In his cross examination, he replied that at the relevant time no telephone was installed at his house but it was at his uncle's house in his neighbourhood. He further replied that when Kamlesh had come to Alwar for Kuan Poojan ceremony, she was perfectly OK and was not having any marks of injury on her body. He replied that police officials of crime branch Delhi had visited his village at District Alwar but his statement was not recorded. He never accompanied Delhi Police in respect of the investigation of the present case.

47. PW8 Ms. Manju, wife of Naresh (the PW7) and the younger sister of the deceased, whose Kuan Poojan Ceremony was SC No.205/10 Page 51/99 organized at District Alwar, deposed that on 10.03.2003, when she rang up her parents, they told her that Kamlesh had gone to her matrimonial house and that on 12.03.2003, her parents informed her that Kamlesh had since been killed by her in laws and that they had come to Delhi and gone to her parental house but no one was present there and thereafter they went to PS. In her cross examination, she replied that she had never gone to the house of Kamlesh earlier and that they went to the PS but she did not go inside and no one met her from her parental side over there. She replied that police never recorded her statement nor made any inquiry from her ever.

48. PW10 SI Bhopal Singh deposed that on 08.05.2003, at the instructions of the IO with a letter so as to collect call details of land line phone number 278798 of the month of May 2005, he had gone to Narnaul, Haryana, where he went to Telephone Exchange Narnaul and SDO Sh. Ishwar Singh accordingly provided him call details of the said phone for the requisite period and JTO Sh. Balvinder Kumar furnished him the said information which runs into 11 pages with the forwarding letter by the JTO which he handed over to the IO and same are collectively Ex.PW10/A1 to 12 and he recorded the statement of JTO and SDO. He further deposed that on 15.05.2003, at the direction of the IO, he went to Mangol Puri area to interrogate SC No.205/10 Page 52/99 the doctors in the neighbourhood of Y­507, Mangol Puri and that in all, he found three doctors in the said neighbourhood namely Budh Prakash, T.K. Haldar and Shiv Kumar and he interrogated them as to whether on 11.03.2003, any lady Kamlesh was brought to them for any kind of treatment by her in laws or not to which all of them replied in negative and he recorded their statements to that effect and handed over the same to the IO. He further deposed that on 20.05.2003, at the instructions of the IO, he deposited the exhibits at CFSL, Malviya Nagar, and on that day itself, he also carried one letter from the IO to SGM hospital in order to know as to whether any lady with the name of Kamlesh received any kind of treatment at the hospital on 11.03.2003 or not and Dy. Medical Superintendent Dr. B. Ramchandran, vide his letter dated 22.05.2003, gave his reply to the said letter of the IO that no record of Kamlesh having received for treatment in the hospital on 11.03.2003 was found in the records and the said letter is Ex.PZ1.

49. In his cross examination on behalf of the accused, PW10 replied that when he went to inquire from the doctors in the Mangol Puri area, he was alone at that time and he did not remember as to in what sequence he met the three doctors named above and probably two of them were having their clinics in Y block and one was having his clinic just near to Y block but SC No.205/10 Page 53/99 he did not remember as to which of the two doctors were having their clinics in Y block nor he remembered the names of their clinics. He was not aware as to whether any Sapna Clinic was being run by any doctor in Y block, Mangol Puri, or not.

50. PW11 SI Keshav Mathur deposed that on 10.05.2003, one Ved Prakash, employee of cremation ground Mangol Puri produced the record of the entry of deceased Kamlesh dated 11.03.2003 at Sl.No.4532 at page No.163 and the said register is Ex.PZ2 which was taken into possession by the IO vide Ex.PW11/A.

51. PW12 Dr. Shiv Kumar deposed that he was running a clinic under the name of Usha Pharmacy at Y­944, Mangol Puri, Delhi and no lady by the name of Kamlesh w/o Satya Narain, had come at his clinic in March 2003 or even prior to that for any treatment. However, in his cross examination on behalf of the accused, PW12 admitted that there was a clinic by the name of Sapan Clinic in Y block, Mangol Puri, in the year 2003. He further answered that police never came to his clinic to inquire about this case nor his statement was recorded.

52. PW13 Dr. T.K. Haldar deposed that he was running a clinic by the name of Bengali Clinic at Y­1101, Mangol Puri, and name of which has been changed on the day of deposition as Diya Clinic SC No.205/10 Page 54/99 and he did not know any Kamlesh and in fact he had gone to his native village at West Bengal from January 2003 till first week of April 2003 and no woman by the name of Kamlesh had visited his clinic prior to 2003. However, in his cross examination on behalf of the accused, he was not aware as to whether there was any clinic by the name of Sapna Clinic in his locality in the year 2003 or not.

53. PW14 Ishwar Singh was the SDM of Telegraph Narnaul, who gave the call details of the phone No.278798 and he proved the same as Ex.PW10/A1 to A12 and identified the signatures of JTO Sh. Balvinder Singh.

54. PW16 Inspr. Ved Prakash is the witness of the disclosure statement of the accused Ex.PW16/A and he pointed out the place of occurrence at Y­507 at Mangol Puri, as the place where he committed the murder of his wife Kamlesh vide memo Ex.PW16/B and a site plan of the said place was prepared which is Ex.PW16/C. In his cross examination, PW16 replied that a public witness namely Rakesh Kumar was also present and he joined the investigation with them and that accused Satya Narain had asked for the keys of the premises from somebody at the ground floor but he did not know the name of the said person.

55. PW17 Sanjay is a witness who attended the said Kuan SC No.205/10 Page 55/99 Poojan ceremony at Alwar, Rajasthan and he took the lunch organized there with the sweets and did not suffer any problem after eating the lunch and in his cross examination, he replied that he did not know at to whether his statement was recorded by the police or not which met him at village Tapukara itself where Naresh, PW7, called him over there.

56. PW18 Snehi Lal deposed that in the year 2003 in the month of "Fagun" a telephone call was received from accused Jagdish Prasad at Sant Ashram of Shehvaj Pur and that though he was present over there at that time, but the telephone call was attended by Maharaj Ji Barkhana Ji at telephone No.273026 to the effect that Kamlesh had expired and she was cremated and this information was given to him by said Maharaj Ji and thereafter he made a call at the house of accused persons to verify the information but no one picked up the same and thereafter he rang up to his brother at Seema Puri, Delhi, but he was not present at his house and there was no information at his house about the death of Kamlesh and thereafter he rang up at the house of Budh Ram and Mahesh s/o Madan Lal at Sultan Puri who were also of his village but they too were not having any information regarding death of Kamlesh and later on, Budh Ram, after verifying, gave him a call and informed that Kamlesh had in deed expired and was cremated and he made all the said SC No.205/10 Page 56/99 above telephone calls from STD booth namely Kiran Electronics and as per their custom, if anybody dies in their family, then information is given to all the family members of the deceased before cremating the dead body and cremation is done during day time only and not after sunset but the present accused persons cremated Kamlesh after sunset in a hurry. In his cross examination on behalf of the accused, PW18 admitted that a phone call, prior to the said phone call received in Ashram, was attended to by Sh. Data Ram who is the brother of accused Jagdish Prasad. He further replied that he was not aware of any contact number of Jagdish Prasad, the father of deceased Kamlesh. He admitted that he knew the house of Jagdish Prasad, the father of the deceased. He further admitted that at the time of death of Kamlesh, she along with her husband Satya Narain was living separately from her in laws and at the said house, accused Satya Narain was having his shop on the ground floor and his residence at the first floor. He further admitted that no one else was residing in the said house.

57. PW19 Prem Prakash deposed that he attended the function of Kuan Poojan on 06.03.2003 where deceased Kamlesh was also present and after 5­6 days of the said function, he came to know that Kamlesh had died but he did not know as to how she died. He did not know at what time Naresh, PW7, received news of SC No.205/10 Page 57/99 death of Kamlesh. He further deposed that he came to know that funeral of Kamlesh took place after sunset and that Ms. Manju, PW8, and Naresh, PW7, had both attended the cremation of Kamlesh but he again said that he did not remember properly whether they had gone to attend the last rites of Kamlesh or not. He was declared hostile by the prosecution and was cross examined on behalf of the State by the Ld. Addl. PP in which he replied that on 12.03.2003, he came to know that Kamlesh had died and she was cremated hurriedly after sunset even without informing her parents and other relatives. He replied that he did not know whether her husband, parents in law and uncle of her husband all conspired to kill Kamlesh and thereafter hurriedly cremated her without informing her parents in order to save themselves from crime committed by them and that he did not state so before the police and he was confronted with his previous statement Ex.PW19/A where it was found so recorded.

58. PW20 Dinesh Kumar, the brother of deceased Kamlesh, deposed that on 12.03.2003, they came to know that his sister Kamlesh had expired on 11.03.2003 and this information was passed to them by his Fufaji namely Pushkar Mal who was the mediator in the marriage and none of the accused informed them regarding the death of his sister Kamlesh and that on 11.03.2003 itself, his sister was cremated by the accused without giving any SC No.205/10 Page 58/99 information to him or his family. However, in his cross examination on behalf of accused, he replied that he had not stated in his statement before the police regarding receiving of information of the death of his sister Kamlesh through Pushkar Mal. He further replied that the intimation regarding phone call of Pushkar Mal was given to him by the servant of landlord of his shop and he did not know who picked up the phone of Pushkar Mal nor he inquired from the said servant as to who had picked up the phone. He further replied that at that time, when the servant informed him, he was alone. He had not visited the PS on 12.03.2003. He had never gone to the PS in connection with this case. He did not know the telephone number on which his landlord had received the call of Pushkar Mal.

59. PW21 HC Ashok Kumar is the witness of the seizure of petticoat given by Tara Chand to the IO on 12.03.2003 vide memo Ex.PW2/A and thereafter he along with the complainant Jagdish Prasad went to Y block and accused Jagdish Prasad was arrested and accused Satya Narain was arrested from his house i.e Y­507, Mangol Puri, Delhi, and he is a witness of the arrest memos. He further deposed that on 19.03.2003, they reached the cremation ground Mangol Puri from where some burnt bones of deceased Kamlesh were lifted at the instance of the Pandit Sanjay Kumar vide memo Ex.PW21/A and photocopy pertaining to the SC No.205/10 Page 59/99 cremation of Kamlesh from the relevant register from cremation ground was also seized vide memo Ex.PW21/B and copy of register is Mark 21/A.

60. PW22 Ms. Raj Kumari was a resident of H.No.Y­539, Mangol Puri, Delhi and she deposed that she knew Satya Narain as he was running a grocery shop which is situated after one shop from her shop at the said premises. She further deposed that about 7­8 years back, it was 7 or 8 days before Holi festival, she saw mother of Satya Narain i.e the accused Smt. Shanti Devi present in court, going with a lady who was holding Smt. Shanti Devi by her hand and another lady had also caught hold of Smt. Shanti Devi, who went towards shop of her son Satya Narain and that she (the witness) also went along with them and when they went upstairs, they saw the daughter in law of Smt. Shanti Devi was lying on the floor of the room and the children were weeping and that it was about 4 or 4.30 p.m and the said daughter in law of Smt. Shanti Devi was taken to the doctor and thereafter she went to her shop and later on they came to know that said daughter in law of Smt. Shanti Devi had expired. In her cross examination on behalf of the accused, PW22 admitted it as correct that in March 2003, there used to be a Nursing Home by the name of Sapna Clinic near the house of accused Satya Narain where a Bengali doctor used to operate and that she had seen the SC No.205/10 Page 60/99 said Bengali doctor coming to the house of the accused Satya Narain on the day when the Kamlesh expired.

61. PW23 Smt. Sita was a tenant of the H.No.Y­1695­96, Mangol Puri, Delhi, who deposed that about 5­6 years back, Amma (which the witness addressed for accused Smt. Shanti Devi) present in court called her by ringing her door bell that she was not feeling well and she (the witness) should accompany her (the accused) to her (the accused) house and it was 4 p.m and that she (the witness) accompanied her and after leaving her (the accused) at the house of her daughter in law, she (the witness) went back to her house and that she did not remember the name of the said daughter in law of Amma and that when she left Amma on the first floor house, she saw two children, the daughter in law who was lying on the cot and other family members of Amma in the house and that as per her observation, the said daughter in law was normally sleeping on the cot and she was declared hostile by the prosecution and was cross examined by the Ld. Addl. PP wherein she admitted that her statement was recorded by the police. She denied to have stated before the police that she saw the dead body of the daughter in law of accused Smt. Shanti Devi lying on the cot or that they managed to put the said dead body on a bed sheet on the floor of the house and she was confronted with her previous statement SC No.205/10 Page 61/99 Ex.PW23/A where it was found so recorded. She admitted that at that time Satya Narain was present in the house. She denied the suggestion that accused Jagdish was also present at that time in the house. She replied that she did not state before the police that accused Jagdish and Satya Narain had told about the death of Kamlesh and this fact, on confrontation, was found recorded in her said previous statement. She replied that she did not state before the police that on 16.03.2003, the brother of accused Satya Narain who had come from Kolkata came to her house and asked her to tell the police that Kamlesh had died due to diarrhea and she had stains of the same on her saree or that she was further told to tell the police that there was no dispute between accused Satya Narain and Kamlesh or that she was further told that due to this police would never harass them and she was confronted with her previous statement Ex.PW23/A where the said facts were found so recorded. She did not know if the funeral ceremony of Kamlesh was performed on the same night. She replied that she did not state before the police that accused Satya Narain and his family members had cremated the dead body of Kamlesh without informing her parents and brothers etc. She was again confronted with her said previous statement where it was found so recorded. She admitted that accused Jagdish and Smt. Shanti Devi were her landlords. She admitted that accused SC No.205/10 Page 62/99 Satya Narain with his family was living in another house at a distance of ten minutes walk from the house of accused Jagdish and Smt. Shanti Devi.

62. PW24 Sanjay Kumar Acharya was the Priest of the cremation ground who deposed that in the year 2003, accused Satya Narain present in the court, who was husband of the deceased, came at cremation ground with the dead body of his wife with 2­3 neighbours and that he came to his office at cremation ground and asked for performing the last rites of his wife and then he entered the particulars told by accused Satya Narain about the deceased in his register on which accused Satya Narain had signed and thereafter he checked the face of the deceased and he found no mark of any injury on her face. He further deposed that he inquired from accused about the parents of the deceased about which accused told him that they are resident of a village in Jaipur and they had been duly informed and they would come after sometime and that when he inquired about the brother of the deceased, accused replied that he (the brother of the deceased) was looking after the children of the deceased at home and thereafter the dead body was cremated and the dead body was brought by accused at about 7 or 7.30 p.m and was cremated within 30 or 45 minutes and that on the following day, police came at the cremation ground and made SC No.205/10 Page 63/99 inquiries from from and he handed over the relevant entry in the register as Ex.PW24/A which was taken into possession vide memo Ex.PW21/B. However, in his cross examination on behalf of the accused, PW24 replied that the dead body was accompanied by 30­35 persons approximately and that he had inquired about the parents of the deceased in the presence of 2­3 persons who were not known to him.

63. PW25 Ved Prakash was again a Priest of the cremation ground who deposed that they maintained a register at cremation ground for making entry about the particulars of the dead body after checking the dead body and that they made inquiry about the dead body from the family members of the deceased. He further deposed that about the present case entry was made by Sanjay Kumar, PW24, in the register and that he could not identify the person who had brought the dead body of the present case but it was brought before 8 p.m and the pyre was lit prior to 8 p.m. and the dead body was brought about 15­20 minutes prior to 8 p.m. which was that of a female which was checked by Sh. Sanjay Kumar and that the dead body was accompanied by 30 or 35 persons approximately and that he did not know if the parental side relatives of the said deceased female were accompanying her dead body or not but Sh. Sanjay Kumar made inquiries for the same and that he merely voluntarily served at SC No.205/10 Page 64/99 the said cremation ground and against whatever consideration he received as charity and that police made inquiries from him and he was declared hostile by the prosecution and was cross examined by the Ld. Addl. PP on behalf of the State wherein he replied that he had not stated to the police that name of the deceased was Kamlesh or that particulars of the said deceased were told by accused Satya Narain, husband of the deceased, to Sanjay Kumar on 11.03.2003 in his presence and he was confronted with his previous statement Ex.PW25/A where it was found so recorded. He further replied that he cannot identify accused Satya Narain present in court as the person who brought the said dead body. In his cross examination on behalf of the accused, he replied that in the month of March the cremation is done up to 8 p.m.

64. PW26 Shambhu Prasad deposed that he knew accused Jagdish Prasad as his maternal uncle and his son accused Satya Narain was married to one Kamlesh, daughter of Jagdish Prasad, the complainant, and initially Kamlesh and Satya Narain resided at Village at Haryana but thereafter they shifted to Y block, Mangol Puri, Delhi and the marriage had taken place about 14 or 15 years ago and that on 11.03.2003, he was present in Block No.F­25, Sector 3, Rohini, Delhi at the site of his property dealing business when he received a call at about 5 or SC No.205/10 Page 65/99 5.30 p.m from accused Satya Narain who informed regarding death of his wife Kamlesh and at about 7 or 7.30 p.m, he reached the shop of accused Satya Narain at Y block market, Mangol Puri, Delhi, where he came to know that dead body had already been taken for cremation at Y block cremation ground and he reached the said ground where the cremation of dead body had already taken place and 40 to 45 persons were present there and that he came to know from accused Jagdish Prasad that there was some food poisoning to said Smt. Kamlesh and doctor was also called but the cause of death could not be detected. The witness was put with a question as to whether he saw any parental side relative of the deceased at the cremation ground or otherwise which was objected to by the Ld. Defence Counsel being a leading question which was upheld and he further deposed that he did not remember his earlier mobile phone number and again he was put with a leading question that mobile phone number was 9811163825 which was objected to and the witness replied that this might be his number and thereafter he was cross examined on behalf of the State by the Ld. APP wherein he replied that he had not stated before the police that he had asked accused Jagdish Prasad at cremation ground as to whether he had intimated the family members of the deceased upon which the accused replied that he did not inform them and SC No.205/10 Page 66/99 he was confronted with his previous statement Mark PW26/A where it was found so recorded. He admitted that accused Jagdish Prasad made calls from his mobile at Kolkata to his son and at Ballabhgarh to his son in law and another call to Data Ram at Shahbaz Pur Ashram and another call made by him to some number which he did not recollect. He admitted that father of the deceased Kamlesh was not present at cremation ground. He further replied that he did not know all the persons present at the cremation ground but there were some persons from Mangol Puri, neighbours and known to accused Jagdish. He further replied that no call was made to the family of the deceased from his mobile.

65. PW27 Inspr. Ram Pal Singh was the witness of two photocopies of the two bills in respect of telephone number 278798 from one Jaswant Singh of Village Nangal Chaudhary, District Mahender Garh, Haryana, where the witness had gone along with the IO of the case and IO also seized photocopy of register maintained by Jaswant Singh vide seizure memo Ex.PW27/A and copies of the bills are Mark PW27/A and B and copy of register is Mark PW27/C which was objected to by the Ld. Defence counsel as regards mode of proof. He further deposed that on 17.05.2003, at the direction of the IO, he along with SI Bhopal Singh, reached Y block, Mangol Puri, and recorded the SC No.205/10 Page 67/99 statements of Ganesh Sharma and Megh Singh and on the same day he recorded the statements of witnesses Chander Prakash and Sat Prakash at Prem Nagar.

66. PW28 Rakesh is the witness of the disclosure statement of accused Satya Narain which is already Ex.PW16/A and the witness was an Interior Decorator and in his cross examination on behalf of the accused, he replied that the interior work in the room of the ACP of the crime branch was being done by him through one M/s God Gift Laboratory situated at Kundli Boarder, Delhi, whose owner was Sh. Pramod Sethi and he was a contractor of the said firm but he did not have any receipt etc of his payment received for the said work as much time has lapsed. He did not know the name of that ACP but his cast was Sharma and the age of the ACP may be about 50 years and he was in civil clothes at the time of recording of the disclosure statement and previously the said ACP was posted at Prashant Vihar area who was known to said Sh. Pramod Sethi.

67. PW29 Jaswant Singh deposed that he was running an electronic shop at Kotputli Road, Nangal Chaudhary Village, District Mahender Garh, Haryana and in the year 2002­03 he was running an STD/PCO booth in the said shop and he knew Satish as he was also running a grocery shop just opposite his SC No.205/10 Page 68/99 shop by the name of Diwan Kiryana Store and that he did not know any Snehi Lal and that in the year 2003, some police officials from crime branch Delhi visited his shop and asked for some call details which were made from his PCO for Delhi which he supplied and photocopy of the bills are Ex.PW29/A and Ex.PW29/B and he also furnished the copy of the entry in the register regarding the calls maintained by him which is Ex.PW29/C and the entry in the register Ex.PW29/C was showing account No.126 in the name of Snehi Lal and he volunteered that he did not know personally said Snehi Lal and the said documents were taken into possession by the police vide memo Ex.PW27/A.

68. PW31 Inspr. Dharam Pal was the initial IO of the local police who deposed regarding production of complaint Ex.PW1/A by the complainant Jagdish Prasad at the PS which was marked to him and he made his endorsement Ex.PW15/B on the same and got the FIR registered u/s 498A/34 IPC and he further deposed that during investigation one Tara Chand Aggawal, brother of deceased, produced one petticoat of pink colour belonging to the deceased, which he found at the cremation ground of Mangol Puri where the deceased was cremated and the same was seized vide memo Ex.PW2/A and that on the intervening night between 12th and 13th March, 2003, he arrested SC No.205/10 Page 69/99 accused Jagdish Prasad and accused Satya Narain vide their arrest documents and that on 19.03.2003, he interrogated priest of the said cremation ground Mangol Puri and he seized the photocopy of register of relevant entry with regard to the cremation of the deceased Ex.PW24/A and same was taken into possession vide memo Ex.PW21/B and he also took possession of the remains of the dead body from the said priest and seized the same vide memo Ex.PW21/A and that on 13.04.2003, he arrested accused Shanti Devi and Madan Lal vide their arrest documents and they were released on bail as they were on anticipatory bail and on 23.04.2003, the investigation was transferred from him to SI Mukesh of PS Mangol Puri and he identified the petticoat as Ex.P2 and ashes and bones as Ex.P3. In his cross examination on behalf of the accused, PW31 replied that the complaint Ex.PW1/A was written by complainant Jagdish Prasad in the PS itself and that complainant was accompanied by family members while making the complaint. He admitted that he had got recorded the statements of Master Avinash and Akash (sons of the deceased) u/s 164 Cr.PC before the Magistrate vide his applications Ex.PW31/DA and Ex.PW31/DB and the copy of the statements were collected by him from the concerned Magistrate which are Ex.PW31/DC and Ex.PW31/DD (Ld. Defence Counsel has no objection of reading the said two statements in original, in SC No.205/10 Page 70/99 the evidence of the case accordingly.).

69. PW33 ASI Hari Singh was the MHC(M) who deposed regarding deposit of exhibits and sending the same to FSL Malviya Nagar.

70. PW34 Retd. ACP M.K. Sharma is the IO of the case who deposed regarding the facts and investigation conducted by him as mentioned in the charge sheet reproduced above. However, in his cross examination he admitted that when the investigation was transferred to crime branch, on the initial investigation file, some statements recorded u/s 161 Cr.PC by SI Dharam Pal were on record which included the statement of Pandit Sanjay (PW24). He replied that initial statement of pandit Sanjay was not filed because he was re­examined and the said statement was filed along with the charge sheet. He replied that about 7 or 8 statements of the witnesses recorded u/s 161 Cr.PC by SI Dharam Pal were handed over to crime branch at that time out of which he remembered the name of only Ms. Asha (PW32). He replied that he had not placed any of the said statements of the witnesses recorded by SI Dharam Pal on the record because of the fact of complainant being not satisfied with the said investigation conducted by the local police through SI Dharam Pal and the resulting petition before the Hon'ble High Court of SC No.205/10 Page 71/99 Delhi whereby the case was transferred to the crime branch and it was in this background that the said statements were not placed along with the present charge sheet and the said witnesses were again examined afresh which were placed on record. At this stage, after going through the police file, the witness submitted that statements u/s 161 Cr.PC of the witnesses namely Pandit Sanjay (PW24), Tara Chand (PW2), Net Ram, Akash, Avinash, Ct. Ashok Kumar, Jagdish Prasad (PW1), Ms. Manju (PW8), Gian Chand, Smt. Raj Kumari (PW22), Attar Singh and Pandit Ved Prakash Sharma (PW25) are on the police file. He further deposed that he had wrongly taken the name of said Ms. Asha whose statement was not recorded as such by SI Dharam Pal at that time and the said statements in photocopies are now Ex.PW34/D1 to Ex.PW34/D12. He admitted that said witnesses Tara Chand and Ms. Manju are brother and sister of the deceased. He further admitted that entry No.4516 on page no.163 in register Ex.PW34/B (seized by the said witness) recorded the time as 7.35 p.m and whereas the entry no.4517 recorded the time as 8.15 p.m. He did not remember if he had inquired from complainant or his family members about the phone call on 12.03.2003 in the morning at 6.30 a.m, as mentioned in the complaint Ex.PW1/A. He further replied that he had not re­examined Attar Singh, Ms. Manju, Namo Narain SC No.205/10 Page 72/99 Dubey, Gian Chand, whose earlier statements are Ex.PW34/D12, Ex.PW34/D7 and Ex.PW34/D8 respectively nor they were cited as PWs in the charge sheet.

71. PW35 Israr Babu was the Nodal Officer of M/s Vodafone Essar Mobile Service Ltd. who proved the letter dated 29.05.2003, issued by the then Nodal Officer of the said company and he also identified the call detail reports of phone number 9811163825 for the period from 01.03.2003 to 15.03.2003 and the letter is Ex.PW35/A and call details are Ex.PW35/B1 to B5. However, in his cross examination on behalf of accused, he admitted that print out of call details was not generated in his presence.

72. Now let me turn to the defence evidence wherein the accused Satya Narain, under the permission of the court, himself has appeared as DW1 who deposed that he was married to deceased Kamlesh on 10.12.1994 and at that time he was residing at Y­1695, Mangol Puri, Delhi along with his parents and in the year 2000, he shifted to Y­507, Mangol Puri, as the earlier house was not sufficient which was having one room and the children were growing at the relevant time and that on 10.03.2003, his wife Kamlesh returned back from the function of her sister Ms. Manju at about 6.30 p.m where she had gone on SC No.205/10 Page 73/99 05.03.2003 so he asked as to why she was late to which she answered that she was unwell and was suffering from loose motions and she had brought the medicines with her and that at night, they had a dinner and went to sleep and that in the morning of 11.03.2003, he opened his shop which was beneath his residence and at about 6.30 a.m, his elder son Avinash told him that his mother Kamlesh was suffering from loose motions and not feeling well on which he said that the shop of doctor was closed and he would get the medicines once the shop was opened and thereafter the children went to the school and that at about 10 a.m his wife Kamlesh went to Bengali doctor at Sapna Clinic which was nearby to his house and got medications for herself and children came back from the school at about 11.30 a.m and that around 4 or 4.15 p.m, his son Avinash came down to the shop and informed him that Kamlesh was not feeling well nor responding and that he went upstairs and found that she was unconscious and that he immediately went to the Bengali doctor at Sapna Clinic and called him at his residence and doctor checked and told that Kamlesh had expired and that he informed his father and he also asked the doctor that he should take Kamlesh to SGM hospital but the doctor said that it was of no use as she had expired and that he came down and telephoned to his in laws at Kapil Medicos at phone number 5476713 and the SC No.205/10 Page 74/99 phone was picked up by the servant to whom he informed that Kamlesh had expired and same be informed to her brother Tara Chand so that they should come immediately and thereafter he closed his shop and also the local market got closed and that he gave money to Gian Chand to get the articles for cremation and Attar Singh (since deceased) was also standing there and he told Attar Singh that although he had called his in laws but still they had not arrived, so he should go and inform them and he sent someone to his in laws and they waited till around 5.45 p.m but no one arrived from in laws and so the neighbours asked them (the accused side) that they should cremate the body otherwise it would be late as the sun would set and so they took the body to the cremation ground of Y block and the neighbours and other people, who were around 30 to 40 in number accompanied him and the priest at the cremation ground looked at the body and started the ritual ceremonies and thereafter he lit the pyre of his wife and made entry in the office register and came back to their home. He further testified that on 12.03.2003, Tara Chand came to his house with police officials and took him along with his both sons to the PS where he narrated the whole story to the police and he was arrested by the police and his signatures were taken by the police on many blank papers and thereafter he was released on bail and that on 20.09.2003, he was taken by the SC No.205/10 Page 75/99 police from crime branch in the morning from his house to PS where he was beaten and he had just got operated of Harnea which also started bleeding and he again narrated the story to the police and there 10­12 blank papers were got signed from him and thereafter police officials told Tara Chand that his (Tara Chand's) work was done and he was arrested and that thereafter he was again released on bail and a false case has been framed against him.

73. In his cross examination on behalf of the State by the Ld. Addl. PP, he replied that distance between his house and the house of his in laws was 6 or 7 kms which was situated at Prem Nagar, Sultan Puri and that he used to visit his in laws frequently on functions and other occasions. He admitted that he along with his family was invited by husband of Ms. Manju on the occasion of Kuan Poojan ceremony at Alwar but he neither he nor his children went to attend the said function and he volunteered that his sons were having exams. He did not know about the frequency of loose motions of the deceased as he was not present at home and he himself did not give any medication to her and that she of her own, went to the doctor and took medicines and he did not accompany deceased to the doctor for her said treatment. He further replied that dinner consumed by them was brought by the deceased herself and that he had also SC No.205/10 Page 76/99 consumed one piece of the said sweets brought by her and his children also consumed the sweets and that his parents used to live separately from him and that at the time of incident, his parents were present at their house. He answered that he himself had not informed the parents or other family members of deceased regarding the loose motions and bad condition of the deceased prior to her death but he volunteered that he asked his wife to inform her parents as she was already suffering from loose motions when she returned from her parental home. He answered that he himself personally informed the parents of deceased at number 5476713 of Kapil Medicos from his phone bearing No.27922177 at about 4.15 p.m. He replied that he had talked with the servant of Kapil Medicos who was the owner of the house where the family members of deceased were residing. He replied that Attar Singh told him that he was sending someone to inform the parents of the deceased but he did not send any person for said purpose in his presence. He replied that he asked the servant of said medicos to call the family members of the deceased but they did not come or talk with him on telephone. He admitted that death took place at 4.15 p.m and the dead body was taken for cremation at about 5.15 or 5.30 p.m. He further replied that since his house was small and it was evening time and many public persons had gathered there and SC No.205/10 Page 77/99 that was why he took the dead body for cremation without waiting for the family members of the deceased. He replied that he was not having any mobile phone with him at the time when they reached the cremation ground so he could not inform the family members of the deceased before performing the last rites. He answered that he did not make efforts to arrange mobile phone from anyone present there so that the family members of the deceased could be informed as he was nervous. He admitted that entry in the register in the cremation ground Ex.PW24/A bears his signature at point X which was made after the body was cremated. He replied that Sanjay Kumar, the priest of the cremation ground, did not inquire from him about the parents of the deceased. He could not tell the exact time when the pyre was lit by him on the dead body. He did not know if the father of the deceased was not satisfied with the investigation conducted in the said case by the IO and he preferred a writ petition but he admitted that case was thereafter transferred to crime branch. He did not know if the crime branch had added Section 302/201 IPC also. He admitted that he had sent his elder son Avinash to Kolkata at the house of his elder brother. He replied that he did not take the deceased to any hospital when her condition deteriorated on the day of her death. He did not ask the doctor of Sapna Clinic about any prescription or medicines given by him to SC No.205/10 Page 78/99 the deceased, after the death of the deceased.

74. DW2 Sh. Gian Chand deposed that he knew the accused persons as they had shop in the market and in the year 2003, at about 4 or 4.30 p.m, when he came back to his shop, he found that the nearby shops were closed and that he made inquiry of the same on which he came to know that wife of Satya Narain had expired and that neighbours had gathered near the house of Satya Narain and on reaching there, he found that the information of death was correct and that Satya Narain asked him and Attar Singh to bring the items for cremation of the deceased Kamlesh and that Satya Narain told that though he had called the family members of deceased but as none had appeared so he requested Attar Singh to inform about the death of deceased to her family members and Satya Narain gave them the money for purchasing the cremation items and that he (the witness) along with Attar Singh went for purchasing the same and that after 15­20 minutes, they came back along with the articles and after preparation, body was taken for last rites at about 5 or 5.15 p.m and they reached the cremation ground at about 6 p.m and came back at around 7 or 7.30 p.m. In his cross examination on behalf of the State by Ld. Addl. PP, he replied that he was a junk vendor and at that time he was residing on the upper floor of his shop and that he did not ask from accused SC No.205/10 Page 79/99 Satya Narain as to what was the hurry for cremation of his wife when she died at 4.30 p.m and the body was taken for cremation at 5.15 p.m. He did not have any knowledge as to how deceased Kamlesh died. He did not know as to whether Attar Singh had informed the family members of deceased Kamlesh or not. He replied that they left for purchasing the cremation items at about 4.40 or 4.45 p.m. He had no knowledge if any entry was made in the register regarding the deceased at the cremation ground by anyone or not. He replied that he was a summoned witness. He denied the suggestion that he was deposing at the instance of accused Satya Narain and he volunteered that he had received the summons for the case for today. He replied that he never gave any statement to any official of crime branch or any other authority regarding the facts disclosed by him in his examination in chief.

75. With this evidence on record, which is based on circumstantial evidence, let me reproduce the law of appreciation of circumstantial evidence. "When a case rests on upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

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(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

(5) if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.

(6) onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea."

76. The reference for the said proposition may be given of the judgments of the Hon'ble Supreme Court as AIR 1954 SC 621, AIR 1984 SC 1622, 2008 (3) RCR (Crl.) page 563, 2008(1) RCR (Crl.) 870, 2009 (1) RCR (Crl.) 251.

77. Next question arises under the law as to what is the extent of discharging the burden of proving his defence upon the accused. Is he required to prove his defence "beyond reasonable doubt"? The answer is in negative as he has just to make his defence a probability SC No.205/10 Page 81/99 so as to create a suspicion for raising an inference against the prosecution. The reason for the said requirement is that on the one hand there is a mighty institution like State having all instrumentalities and resources right from police, the investigation agencies, the various powers conferred under Code of Criminal Procedure and so on, at its command to be used against the accused and on the other hand, there is a single individual in the shape of accused to defend himself having no such power or resources at his command and it is in this background that the law strikes a balance between the two unequal parties before it in a criminal case by providing that it is sufficient that if accused puts a dent on the story of the prosecution to avail the benefit of doubt in his favour.

78. With the said proposition of law of circumstantial evidence and liability to discharge his burden by the accused, first circumstance to be discussed is the cause of death of the deceased Kamlesh in the present case. The case of the prosecution is in the form of a disclosure statement of accused Satya Narain Ex.PW16/A wherein it is mentioned that accused Satya Narain throttled or gaged the mouth of deceased Kamlesh with a pillow and his father accused Jagdish Prasad caught hold of both the legs of the deceased, who died after sometime and due to the suffocation, her stool passed due to which her legs and petticoat became dirty. This disclosure statement was admittedly recorded when the accused Satya Narain SC No.205/10 Page 82/99 was in police custody and it was certainly a confession of the accused which is hit by Section 25 & 26 of the Evidence Act and is inadmissible in evidence as such. The said disclosure statement Ex.PW16/A would have been admissible in two circumstances.

79. First is provided u/s 27 of the Evidence Act, if recovery of a distinct fact would have taken place in pursuance of the said disclosure statement. Admittedly there is no recovery of any fact or article at the instance of the accused after the said disclosure statement. Even the alleged pillow, with which the mouth of the deceased was allegedly gaged, was not recovered in the present case. The alleged dirty petticoat was already in the knowledge of the investigating agency, though recovery of the petticoat Ex.P2 is not held by me as proved, as discussed below, even though Ex.P2 is taken as such. Hence, the disclosure statement is not admissible in evidence in this sense.

80. Second is the provision provided u/s 10 of the Evidence Act which deals with things said or done by conspirator in reference to common design. In the present case, there is a charge against all the accused u/s 120B IPC and thus, Section 10 of the Evidence Act, dealing with the evidentiary value of the things said and done by a conspirator becomes applicable. Section 10 of the Evidence Act reads as follows:

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"Things said or done by conspirator in reference to common design. ­ Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

81. The bare reading of the said provision of law go to establish that it is during the subsistence of the conspiracy that anything said or done by a conspirator would have been admissible against all the co­conspirators and not after that and admittedly the said disclosure statement was recorded much after the time when the alleged conspiracy ceased to exist and in this sense also the said disclosure statement is not admissible and thus, prosecution has miserably failed to establish the cause of death and admittedly there is no eye witness who might have seen some facts such as, causing of injuries on the person of the deceased by the accused or throwing the deceased into a well or canal or a river or pushing a deceased from a height and taking away his dead body nor there is any medical or scientific evidence to establish the cause of death and this is how the present case is distinguishable from the facts before the Hon'ble Supreme Court in said two judgments of Ram Gulam Chaudhary and Sevaka Perumal (Supra).

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82. The other cause of death has been put forth by the accused in his defence when he deposed that she died due to loose motions or diarrhea etc. In this regard, he submitted that she was sent to Sapna Clinic in the neighbourhood and the doctor from the said Sapna Clinic also visited the house of the deceased for her check up. This fact that there was a Sapna Clinic nearby the house of the deceased, was denied by the prosecution and a particular official namely PW10 SI Bhopal Singh was deputed to search for all the clinics, hospitals or the doctors in the vicinity or surrounding area of the house of the deceased. PW10 denied that there was Sapna Clinic found by him during his search and he found only three doctors namely Budh Prakash, T.K. Haldar and Shiv Kumar in the area and PW10 interrogated them and recorded their statements to the effect that no lady by the name deceased came to them on 11.03.2003 for any kind of treatment. But when, out of the said three doctors, two doctors namely Dr. Shiv Kumar and Dr. T.K. Haldar appeared as PW12 and PW13 in the witness box, PW13 Dr. Haldar was not aware as to whether there was any clinic by the name of Sapna Clinic in his locality in the year 2003 or not. However, Dr. Shiv Kumar as PW12 categorically admitted that there was a clinic by the name of Sapna Clinic in Y block, Mangol Puri in the year 2003, in his cross examination and he denied that police ever came to his clinic to inquire about this case and he further admitted that his SC No.205/10 Page 85/99 statement was not recorded by the police at any time. Thus, the concerned person from the same field of medicine admitted that there was a Sapna Clinic in the area where the deceased was residing. The said fact was again admitted by a prosecution witness herself who appeared as PW22 namely Smt. Raj Kumari who specifically deposed in her examination in chief that at about 4 or 4.30 p.m, the daughter in law of Amma and she was addressing Amma to accused Smt. Shanti Devi present in court and the daughter in law was admittedly the deceased, was taken to the doctor and in her cross examination she admitted that in March 2003, there used to be a nursing home by the name of Sapna Clinic near the house of accused Satya Narain where a Bengali doctor used to operate and she had seen the said Bengali doctor coming to the house of accused Satya Narain on the date when the Kamlesh expired. Moreover, PW26 Shambhu Prasad, although he was a relative of the accused Jagdish Prasad, was still produced in the witness box on behalf of the prosecution who reached the cremation ground just after the dead body was cremated, as per his deposition and he further deposed that 40 to 45 persons were present there and he came to know from the accused Jagdish Prasad that there was some food poisoning to said Smt. Kamlesh and the doctor was called but the cause of death could not be detected but his said deposition in examination in chief could not be assailed by the prosecution in SC No.205/10 Page 86/99 its cross examination.

83. The said position of facts reflects on the manner in which the investigation was carried out by the crime branch in the present case because from the said admissions of PW12 and PW22, although a clinic by the name of Sapna Clinic was in existence but the police officials deputed to search for the same deliberately followed the theory of pick and choose and collected the alleged evidence which was favourable to the success of the case. Thus, the probability of deceased Kamlesh dying due to some ailment, cannot be ruled out and I am of the considered opinion that the accused has successfully discharged his burden in this regard by putting his defence to the said PW10, PW12 and PW22 and the deposition of PW26 otherwise corroborated the said fact.

84. Next circumstantial evidence was that of not informing the parental side relatives of the deceased at the time of death. The complainant PW1, specifically admitted in his cross examination that at the time of incident no phone was installed either at his house or at his shop and deceased Kamlesh used to talk to them on the phone installed at Kapil Medicos and the number of telephone installed at M/s Kapil Medicos was 5476713 and he has further specifically admitted that Kapil is the name of son of owner of the building namely Jai Prakash and the servant who gave him the SC No.205/10 Page 87/99 information of the death of the deceased was working with said Jai Prakash although he did not remember the name of the said servant. Similarly, PW2, the brother of the deceased deposed in his examination in chief that on 12.03.2003 in the morning the servant of the owner of his shop informed him that there was a call from Mangol Puri to the effect that Kamlesh had died. However, in his cross examination, he differently answered that the servant of M/s Kapil Medicos had given the information to his brother Dinesh on 12.03.2003. He further specifically admitted that Jai Prakash was the owner of Kapil Medicos and his servant Pawan Sharma used to sit at the shop sometimes and at times Jai Prakash also used to sit and Jai Prakash had two servants. Further, PW4 Pushkar Mal also informed about having received the phone regarding the death of Kamlesh from accused Satya Narain which information he passed on to the father of Kamlesh namely PW1 through telephone which was picked up by a servant but he had not inquired about the name of the servant who had picked up the phone and he had told the said servant on phone his name and also that he was speaking from Seema Puri. PW5 Santosh, wife of PW2 Tara Chand, also deposed in her examination in chief that on 12.03.2003 at about 6 a.m, the servant of owner of their shop informed them about the death of Kamlesh although it was an improvement because it was not found so recorded in her previous statement Ex.PW5/DA. She further SC No.205/10 Page 88/99 replied in her cross examination that name of the employer of the servant who informed them about the death of Kamlesh was Jai Prakash who was a builder but she did not know the name of the servant. PW20 Dinesh, another brother of the deceased, although has another story to tell that on 12.03.2003 he came to know with regard to death of his sister Kamlesh from his uncle Pushkar Mal, who was the mediator in the marriage, but in his cross examination, he admitted that intimation regarding the phone call of Pushkar Mal was given to him by the servant of landlord of his shop. He did not know the name of the said servant but the landlord of his shop was Jai Prakash and when it was informed by servant, he was alone. It is very well established from the evidence of the prosecution itself that there was a servant of Jai Prakash, owner of M/s Kapil Medicos which was situated adjoining to the shop of parental side of the deceased. No investigation was carried out to trace the said servant and produce him in the witness box. He was admittedly a definite and living person whose whereabouts could have been ascertained very well and by not producing him in the witness box by the prosecution so as to throw the light regarding the information of the death of the deceased transmitted to the parental side, I am justified in drawing an inference that the said witness was deliberately withheld to suit the case of the prosecution on the same ground on which PW10 SI Bhopal Singh failed to trace out the said Sapna SC No.205/10 Page 89/99 Clinic. However, the said fact has otherwise been established by another prosecution witness himself namely PW19 Prem Prakash who was a relative from the side of Manju's husband (PW8) as he was the nephew of husband of Manju namely Naresh, who specifically deposed that Manju and Naresh had both attended the cremation of Kamlesh but he tried to wriggle out of the same in the next breath that he did not remember properly whether they had gone to attend the last rites of Kamlesh or not and that is why, he further, in his cross examination on behalf of the State, denied any knowledge of the fact that all the accused conspired to kill Kamlesh and thereafter hurriedly cremated her without informing her parents in order to save themselves from crime committed by them and he was confronted by his previous statement Ex.PW19/A where it was found so recorded. So, PW19 further created a dent in the story of the prosecution regarding not informing the parental side relatives of the deceased regarding her death because PW19 positively established that sister and brother in law namely PW8 and PW7 attended the funeral ceremony of the deceased and I am vigilant about the deposition of the accused as DW1 who deposed that none from the parental side of the deceased was present, then in that event PW19 has positively demolished the case of the prosecution qua the said facts.

85. The next circumstance was that the dead body was hurriedly SC No.205/10 Page 90/99 cremated after sunset which was an odd time. This circumstance could not be said to have been established beyond reasonable doubt in view of the fact that entry Ex.PW24/A of the cremation ground register mentions that the deceased was cremated at about 7.20 p.m and reason for death was written as loose motions and the same was signed by accused Satya Narain but at the same time, in entries number 4516 and 4517, the funeral was performed at about 7.35 p.m. and at 8.15 p.m of the respective deceased namely Rojpal Singh and Vinod Thakur and even the priest of the cremation ground PW25 categorically admitted that in the month of March, the cremation is done up to 8 p.m. In the circumstances, there was nothing unusual in the cremation performed of the deceased at 7.20 p.m. Further, regarding the argument that accused Satya Narain mis­represented the facts to the priest at the cremation ground with regard to parents of the deceased residing at a village in Jaipur and that the brother of the deceased was looking after the children of the deceased at home, the case of the prosecution was that the said facts were misrepresented by accused Satya Narain to both the priests i.e PW24 and PW25 but PW25 altogether denied the said facts to have misrepresented by the accused Satya Narain and further deposed that he had not so stated before the police and that was why he was confronted with his previous statement Ex.PW25/A and shifted the burden that the inquiries were made by PW24 regarding parental SC No.205/10 Page 91/99 side relatives of the deceased. Thus, he contradicted whatever was deposed by PW24 with regard to alleged inquiry made by him from accused Satya Narain and even PW24 answered in his cross examination that he had made inquiries in the presence of 2­3 persons whom he did not know. Admittedly the said cremation ground was very big wherein 25 or 30 dead bodies could be cremated at the same time and such kind of inquiry made by every relative of the deceased, as deposed by PW24, is highly improbable in the circumstances of the case and said deposition of PW24 does not inspire confidence as such. Regarding hurriedly taking the body for cremation, it has remained unchallenged in the deposition of DW2 that the whole market of the area was closed due to the death of the deceased and explanation has come that many people had gathered at the house of the accused Satya Narain and in these circumstances also, there are various kinds of pressures of the grief stricken family not to keep the dead body for so long unless and until there are compelling reasons, such as, non availability of any of the relatives of the deceased etc. Thus, even this circumstance the prosecution has miserably failed to establish beyond reasonable doubt.

86. Regarding recovery of the petticoat from the cremation ground by PW2 as a circumstance against the accused, PW2 admittedly identified the said petticoat as the one which was given SC No.205/10 Page 92/99 on 10.03.2003 by his wife to the deceased but the wife of the PW2, when appeared in the witness box as PW5, did not utter even a single word with regard to the said petticoat having been given by her to the deceased on 10.03.2003 nor the petticoat was put to her for identification. Even this petticoat Ex.P2 was never sent for expert's opinion about the stains on the same. It is in these circumstances, it has not been established at all on the record that the said petticoat Ex.P2 was linked to the deceased in any manner.

87. The glaring feature which I noticed in the case apart from the said alleged circumstantial evidence, as produced by the prosecution, is that there is no explanation on behalf of the IO or the prosecution as to why the 35 or 40 persons, who admittedly attended the cremation of the deceased at the said cremation ground, were not booked as abettors of the offence, at least for the offence u/s 120B & 201 of the IPC. The one probable answer would have been that identity of those persons could not be established. If this was so, then at least PW34, IO of the case, who himself disclosed in his cross examination the names of the persons namely Smt. Raj Kumari (PW22), Attar Singh, Ms. Manju w/o Namo Narain Dubey, Gian Chand, whose statements were recorded by the local police also and the complainant was not satisfied with the said investigation conducted by the local police, then the said persons could have been booked at least as the known abettors for the offence but the same SC No.205/10 Page 93/99 was not done. There are other categories of abettors and potential abettor was DW2 Gian Chand, who actively helped in performing the last rites of the deceased and it was also Attar Singh who was an abettor and also actively participated for the disposal of the body and PW23 Smt. Sita, if her statement recorded by PW34, the IO of the case, was correct, she was not booked as an abettor in the case because what she narrated in her statement Ex.PW23/A that she saw the dead body of the deceased lying on a cot and they managed to put the said dead body on a bed sheet on the floor of the house and that at that time, accused Satya Narain and accused Jagdish were also present, who told about death of Kamlesh to her and another son of accused Jagdish Prasad, who had come from Kolkata was present and the said another son of accused Jagdish Prasad came to her house on 16.03.2003 and asked her to tell the police that Kamlesh died due to the diarrhea and she had stains of the same on her saree or to tell the police that there was no dispute between accused Satya Narain and deceased Kamlesh and if she was going to tell these things to the police, she will never be harassed and that accused Satya Narain and his family members had cremated the dead body of the deceased without informing her parents and brothers, although she denied to have made any such statement but she was confronted with her previous statement Ex.PW23/A where it was found so recorded. If this was so, then PW23 Smt. Sita is SC No.205/10 Page 94/99 accused of not informing to the police that dead body of Kamlesh was being cremated without informing her parents and other relatives as she knew this fact very well, but even PW23 was not made an accused of abetment and conspiracy despite clear and cogent evidence against her, if we believe that PW34, the IO of the case, has recorded her statement u/s 161 Cr.PC correctly and truly and without any coercion or force applied to her or without projecting her as a false witness in the case.

88. The reason for my holding so towards the non arrest of persons for abetment and conspiracy is based upon the law of conspiracy as defined u/s 120A of the IPC, which reads as under:

"Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done, ­ (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."

SC No.205/10 Page 95/99

89. The Hon'ble Supreme Court in case titled K. Hasim Vs. State of Tamil Nadu reported as AIR 2005 SC 128 interpreted the said provision of conspiracy as under:

"The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Encouragement and support which co­conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agreed to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra capale of being enforced, if lawful, punishable if for a criminal object or for use of criminal means."

90. Even under the law of conspiracy, one co­conspirator need not know the common object or the other conspirators or the act done by the other conspirators and he may not be knowing even the other conspirators, still anything said or done by one co­conspirator is admissible against all the co­conspirators u/s 10 of the Evidence Act which has been reproduced above and this has been made more clear by the only illustration appended to the said Section 10 of the SC No.205/10 Page 96/99 Evidence Act which reads as follows:

" Illustration

(i) Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the (Government of India).

(ii) The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it."

91. From the said proposition and provision of law, it is clear that those 35 or 40 persons, who were present in the cremation ground, may not be knowing the cause of death or might have taken the death as natural or might not have done any overact, still the very presence in the disposal of the body and on the basis of alleged offence against the three accused in the present case, they were liable not only for offence of abetment but for offence of conspiracy also. But the same was not done in the present case for the reasons best known to the IO.

92. Although it has been vehemently argued by the Ld. Defence SC No.205/10 Page 97/99 Counsel that the statement recorded by the local police Ex.PW34/D3 of Master Akash, Ex.PW34/D4 of Master Avinash, Ex.PW34/D7 of Ms. Manju w/o Namo Narain Dubey, Ex.PW34/D8 of Gian Chand, Ex.PW34/D11 of Smt. Raj Kumari, Ex.PW34/D12 of Sh. Attar Singh, may also be read in evidence as the same have been proved by way of confronting the same in the cross examination of the IO, PW34, and the same have been duly proved and the same are having the status of previous statement under the law. He has further argued that if the complainant was not satisfied with the earlier IO, who recorded the said statements, at least the statements recorded u/s 164 Cr.PC by the judicial Magistrate, copies of which are Ex.PW31/DC and Ex.PW31/DD, may be appreciated as there was no allegation against the judicial Magistrate before the Hon'ble High Court of Delhi in the said writ petition filed by the complainant Jagdish Prasad whereupon the Hon'ble High Court transferred the case.

93. I am not inclined to accept the said contention of the Ld. Defence Counsel in view of the said order of the Hon'ble High Court of Delhi in the said writ petition, as reproduced above, wherein it was an order for investigating the case afresh and this command was not only for the investigating agency i.e. crime branch, but which extends to this court also and this court is bound by that and it is in this background that I have ignored the said previous statements of SC No.205/10 Page 98/99 the said witnesses from my considered opinion for the purpose of this judgment.

94. In view of my said discussion, the prosecution has miserably failed to establish each and every link of the circumstances independently beyond reasonable doubt much less a compete chain of circumstances pointing out towards the guilt of the accused only. A suspicion, howsoever strong, cannot take the place of proof. To sum up, the accused are acquitted of the charges u/s 498A/302/201/34 & 120B IPC. Their PBs and SBs are hereby discharged. The file be consigned to the Record Room. (Announced in the open court on 23.11.2011) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.205/10 Page 99/99