Delhi District Court
State vs . 1. Smt. Badami Devi W/O Shiv Charan, on 7 May, 2012
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0059172006
Sessions Case No. 56/2011
Assigned to Sessions. 16.09.2011
Arguments heard on 25.04.2012
Date of Judgment 07.05.2012
FIR No. 500/2005
State Vs. 1. Smt. Badami Devi w/o Shiv Charan,
2. Rajeshwari @ Raj Shree w/o Om
Prakash,
3. Prem Pal Singh Chauhan s/o Shiv
Charan,
4. Dev Wati w/o Kali Charan,
All r/o F15, G. No.3, Subhash Mohalla,
Bhajanpura, Delhi.
5. Om Prakash s/o Shiv Charan
(discharged)
6. Kalicharan s/o Shiv Charan
(discharged)
Both r/o F15, G. No.2, Subhash
Mohalla, Bhajanpura, Delhi.
Police Station Bhajanpura
Under Section 498A/304B/306/34 IPC
SC No.56/2011
State Vs. Badami Devi and others 1/33
JUDGEMENT
1. Station House Officer of Police Station Bhajanpura had filed a challan vide FIR No.500/2005 dated 01.12.2005 u/s 498A IPC for the prosecution of accused persons namely Smt. Badami Devi, Smt. Rajeshwari @ Rajshree @ Rajwati, Prem Singh Chauhan, Devwati, Kali Charan and Om Prakash in the court of Ld. MM as deceased Smt. Soni @ Meenakshi was married with accused Prem Pal Singh Chauhan on 15.07.2005 and her death had taken place within seven years of her marriage. Accordingly, Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before Sessions Courts and later on this court had received this case by way of transfer.
2. Case of prosecution is that on 01.12.2005 at about 1:52 p.m. a DD No.12A Ex.PW12/A was recorded at police station Bhajanpura regarding ablazing of a woman in Gali No.03, FBlock, Subhash Mohalla, Bhajanpura, Delhi. DD was assigned to SI Vikram Singh to take action into the matter. On receipt of said DD, SI Vikram Singh along with Ct. Sanjeev had reached at Gali No.3 and thereafter, they reached at House No.15 in the same gali, there they came to know that injured had already been removed to GTB Hospital. SI Vikram Singh had inspected the spot i.e. room varandah and kitchen at first floor of H. No.15 in FBlock, Gali No.03, Subhash Mohalla, Bhajanpura, Delhi, and noticed some burnt clothes, kerosene stove, stove pin, some burnt and some unburnt matchsticks and matchbox lying and smell of kerosene was spreading at the spot. SI Vikram Singh had reached to GTB Hospital and collected MLC of injured Smt. Soni Ex.PW2/A with the help of duty constable. Since the period of marriage was less than seven years, SC No.56/2011 State Vs. Badami Devi and others 2/33 SDM of the area was informed by IO. Sh. R.L. Meena, SDM, Seelampur had reached at GTB Hospital and recorded statement of injured Smt. Soni Ex.PW1/A and he had made endorsement Ex.PW12/B upon the same directing to SHO PS Bhajanpura to take action as per law. On the basis of said statement of injured Smt. Soni @ Meenakshi, FIR No.500/2005 u/s 498A IPC Ex.PW3/A was recorded at police station Bhajanpura. During the course of investigation, all accused persons were arrested for the offences punishable u/s 498A/ 304B/ 34 IPC.
3. On 02.12.2005, Duty Officer had informed SI Vikram Singh about the death of injured Smt. Soni in GTB Hospital and he delivered copy of DD No.4A Ex.PW12/E and SI Vikram Singh had informed to SDM about the death of Smt. Soni on phone. SDM had recorded statement of Smt. Sushila, mother of injured Ex.PW12/F and Smt. Rekha, sister of injured Smt. Soni vide Ex.PW9/A.
4. On 05.12.2005, SI Vikram Singh had recorded statement of PW Smt. Sushila and PW Sarmod in connection of identification of dead body of deceased Smt. Soni on the direction of SDM vide Ex.PW12/G and PW12/H respectively. SI Vikram Singh had filled up inquest form 25.35 Ex.PW1/E on the direction and dictation of SDM, SDM filled up request for postmortem Ex.PW1/D. SI Vikram Singh had collected death summary Ex.PW12/I and death certificate Ex.PW12/J and after postmortem, dead body of deceased was released to its legal heirs for cremation against receipt Ex.PW12/L. SC No.56/2011 State Vs. Badami Devi and others 3/33 CHARGE:
5. On the basis of material available on record, Sh. S.C. Malik, the then ld. ASJ framed a charge vide order dated 29.03.2006 against accused persons namely Badami Devi, Rajeshwari @ Rajshree @ Rajwati, Prem Pal Singh Chauhan and Devwati for the offences punishable u/s 498A/304B/34 IPC and alternative charge for the offence u/s 306/34 IPC was also framed to which accused persons did not plead guilty and claimed trial. Accused persons namely Om Prakash and Kalicharan were discharged by my ld. predecessor vide order dated 19.02.2009. PROSECUTION WITNESSES:
6. In order to prove its case prosecution has examined 13 witnesses namely PW1 Sh. L.R. Meena SDM, PW2 Dr. S. Kohli, PW3 SI Krishan Dutt, PW4 SI Ram Kumar, PW5 Ct. Sanjay Kumar, PW6 Lady Ct. Sarda Rani, PW7 Ct. Satpal, PW8 Dr. Pradeep Saini, PW9 Smt. Rekha, PW10 WHC Neija, PW11 Dr. P. Ram, PW12 SI Vikram Singh and PW13 Dr. Arvind Kumar.
7. PW1 Sh. L.R. Meena - SDM. This witness has deposed that on 01.12.2005 IO/SI Vikram Singh of police station Bhajanpura came to his office and thereafter, he alongwith his reader went to GTB Hospital and there Smt. Soni wife of Prem Pal r/o F15, Subhash Mohalla, Gali No.3, Bhajanpura, Delhi had met him in burnt condition and on his dictation statement of Smt. Soni Ex.PW1/A was recorded by his Reader S.K. Arora at GTB Hospital which bears her thumb impression at point X and after recording the statement of Soni, it was forwarded to the SHO police SC No.56/2011 State Vs. Badami Devi and others 4/33 station Bhajanpura for necessary action.
8. This witness has deposed that on 03.12.2005 I.O./SI Vikram Singh came to his office along with Smt. Sushila Devi, mother of deceased Smt. Soni and Rekha sister of the deceased and on that day, he had recorded statement of Smt. Sushila Devi Ex.PW1/C and Smt. Rekha Ex.PW1/C.
9. This witness has further deposed that 05.12.2005 SI Vikram Singh had come to his office and informed him about the death of the deceased and he was accompanied by Smt. Sushila and Suman and they had identified the dead body of Smt. Soni @ Minakshi in the mortuary of GTB Hospital. This witness had prepared inquest papers, his request for postmortem is Ex.PW1/D and death report is Ex.PW1/E and postmortem examination on the body of deceased was conducted by the doctor concerned and after postmortem, on his direction the I.O. had handed over the dead body of the deceased Smt. Soni to Smt. Sushila Devi, mother of deceased.
10.In his cross examination by ld. defence counsel, this witness admits that he did not move any application before the doctor for recording the statement of Smt. Soni (deceased) and he did not give any certificate with regard to mental status of Smt. Soni before or after recording her statement. This witness further admits that photocopy of the statement of the deceased Smt. Soni Ex.PW1/DA does not bear the endorsement to the SHO and it does not bears the stamp or seal and in Ex.PW1/B word Soni was added by him later on and it does not bear his initials. SC No.56/2011
State Vs. Badami Devi and others 5/33
11.PW2 Dr. S. Kohli, CMO, GTB Hospital, Delhi. This witness has proved MLC of patient Soni Ex.PW2/A on behalf of Dr. Ashok Kumar.
12.PW3 SI Krishan Dutt is a formal witness being Duty Officer. This witness has proved carbon copy of FIR vide Ex.PW3/A.
13.PW4 SI Ram Kumar. This witness has deposed that on 23.12.2005 he was posted as SI in DIU North East District and on that day case file was handed over to him for further investigation.
14.PW5 Ct. Sanjay Kumar. This is the witness of arrest of accused persons and seizing. This witness had remained with I.O. during the investigation. In his presence, accused Rajeshwari @ Rajshree and Badami Devi were arrested vide arrest memo Ex.PW5/A and PW5/B respectively and their personal search was conducted by W/HC Neija vide memo Ex.PW5/C and PW5/D respectively. In his presence, I.O. had seized one stove, match box with burnt match sticks and some burnt clothes from the spot, the same were sealed with the seal of VSC and seized vide memo Ex.PW5/E. This witness had identified kerosene stove of green colour vide Ex.PW5/P1, burnt cloth pieces vide Ex.PW5/P2 and match box with burnt matchsticks vide Ex.PW5/P3 which were seized from the spot. SC No.56/2011
State Vs. Badami Devi and others 6/33
15.PW6 Lady Ct. Sarda Rani. This witness had got medically examined accused Devwati from GTB Hospital and accused Devwati was arrested in her presence vide arrest memo Ex.PW6/A. This witness had conducted personal search of accused Devwati vide Ex.PW6/B.
16.In her cross examination by ld. defence counsel, this witness admits that the personal search memo Ex.PW6/B does not bear her signature.
17.PW7 Ct. Satpal. This is the witness of arrest of accused Prem Pal and Dev Wati on 20.12.2005 from House No.F15, Gali No.3, Bhajanpura, Delhi. This witness has proved arrest memo Ex.PW6/A of accused Prem Pal and arrest memo Ex.PW7/A of accused Dev Wati and their personal search memo Ex.PW6/B and Ex.PW7/B respectively. Their personal search were conducted by Lady Ct. Sharda Rani and I.O.
18.PW8 Dr. Pradeep Saini. This witness had proved death summary of deceased vide Ex.PW8/A.
19.PW9 Smt. Rekha, sister of deceased Meenakshi @ Soni is a material witness. This witness has deposed that marriage of her sister was solemnized according to Hindu Rites and Customs with accused Prem Pal Singh Chauhan on 15.07.2005. SC No.56/2011
State Vs. Badami Devi and others 7/33
20.This witness has deposed that on 01.12.2005 at 11:00 p.m. he had received a telephone call of one unknown person that her sister was admitted in GTB Hospital in burnt condition and she along with her husband reached at GTB Hospital at bout 8:00 a.m. on 02.12.2005 and found her lying dead.
21.This witness has further deposed that one neighbour whose name she does not remember had told them that her sister Meenakshi had been caused burnt injuries by accused persons namely Prem Pal, Smt. Badami Devi, Rajeshwari, Dayawati and one Pappu.
22.This witness has further deposed that her sister Smt. Soni @ Meenakshi (deceased) used to inform her on phone that she was being harassed on account of not bringing of sufficient dowry by her aforesaid inlaws. This witness has further deposed that accused persons present in the court used to taunt her sister Meenakshi (deceased) by saying that "tu garib ghar se aayi hai".
23.This witness has further deposed that she along with her husband had visited the matrimonial house of her deceased sister Smt. Soni three times including the occasion of Dussehra and her sister Meenakshi (deceased) had told her on her aforesaid visits that she was being harassed, tortured and taunted on account of not bringing of sufficient dowry by aforesaid accused persons. This witness has proved his statement Ex.PW9/A which was recorded by SDM on 03.12.2005. SC No.56/2011
State Vs. Badami Devi and others 8/33
24.This witness was cross examined by Ld. APP for the State. Her statement has been confronted.
25.In her cross examination by ld. defence counsel, this witness has deposed that she had not told the SDM or the police in her statement that accused present in the court used to taunt her sister by saying 'tu garib ghar se aayi hai'. During her cross examination, statement Ex.PW9/A was shown to this witness by the ld. defence counsel and the same was read over to the witness word by word, witness submits that it is correct that she had not stated to the SDM in her statement that his sister Meenakshi (deceased) used to inform her on phone that she was being harassed on account of not bringing sufficient dowry by her inlaws present in the court. This witness has further deposed that she had not made any complaint to any authorities including police regarding harassment of her sister on account of demand of dowry by the accused persons. Her statement Ex.PW9/A was confronted wherein she had stated that she had told to the SDM in her statement that in the GTB Hospital, it came to the notice through her mother that accused Prem Pal had demanded a sum of Rs.20,000/ from her sister Meenakshi (deceased). This witness has further deposed that her husband had also not made any complaint against the accused persons to any authorities.
26.PW10 WHC Neija. This is the witness of arrest of accused Rajeshwari @ Rajshri and Badami Devi. In her presence on 01.12.2005 accused Rajeshwari @ Rajshree and Badami Devi had been arrested by the I.O. at about 8:30 p.m. from their house SC No.56/2011 State Vs. Badami Devi and others 9/33 i.e. House No. F15, Gali No.03, Subhash Vihar, Delhi. This witness had taken their personal search as per the direction of I.O. This witness has proved arrest papers Ex.PW5/A and Ex.PW5/C of accused Rajeshwari @ Rajshri and Ex.PW5/B and Ex.PW5/D of accused Badami Devi.
27.This witness was cross examined by Ld. APP for the State, as this witness is suppressing the truth on the point of identity of both aforesaid accused persons. In his cross examination, this witness had identified both the aforesaid accused persons on pointing out of ld. APP for the State in the court.
28.PW11 Dr. P. Ram, CMO, GTB Hospital, Delhi. This witness has proved MLC of Smt. Soni Ex.PW2/A on behalf of Dr. Ashok Kumar. This witness has deposed that as per MLC, Smt. Soni w/o Prem Pal was brought in GTB Hospital at about 2:30 p.m. on 01.12.2005 by Smt. Devwati. Alleged history is mentioned as 'burn' and injured was 95 - 100% burnt and patient was fit to make statement at the time of her medical examination.
29.PW12 SI Vikram Singh is a material witness being I.O. This witness on 01.12.2005 at about 02:00 p.m. on receipt of copy of DD No.12A Ex.PW12/A from D.O., along with Ct. Sanjeev had reached at the spot i.e. House No.15, F Block, Gali No.03, Subhash Mohalla, Delhi where they came to know that injured has been shifted to GTB Hospital. This witness had inspected the spot and noticed some burnt clothes, kerosene stove, stove pin, some burnt and some unburnt SC No.56/2011 State Vs. Badami Devi and others 10/33 matchsticks and matchbox lying at the spot. Thereafter, this witness had reached at GTB Hospital and collected MLC of injured Smt. Soni Ex.PW2/A and injured was declared fit on her MLC.
30.This witness had interrogated injured Smt. Soni and it came into his notice that incident had taken place within seven years of her marriage.
31.This witness had informed to SDM, Seelampur, Delhi. Sh. R.L. Meena reached at GTB Hospital and recorded statement of injured Smt. Soni Ex.PW1/A, thereafter, SDM made endorsement addressing to SHO, Police Station Bhajanpura to take further action as per law. This witness had presented the same statement before SHO who made endorsement Ex.PW12/B addressing to D.O. for registration of FIR u/s 498A IPC.
32.This witness had deposed that photographer/Ct. Sanjeev had taken photographs of scene of crime.
33.This witness had seized the articles from the spot i.e. burnt clothes, kerosene stove, stove pin, some burnt and some unburnt matchsticks and matchbox vide seizure memo Ex.PW5/E after converting aforesaid articles into two parcels which were sealed with the seal of VSC.
SC No.56/2011
State Vs. Badami Devi and others 11/33
34.This witness had prepared site plan Ex.PW12/D. This witness had proved FIR Ex.PW3/A on behalf of D.O./ASI Krishan Dutt.
35.This witness had arrested accused persons namely Smt. Badami Devi and Rajshree from the ground floor of their house in presence of lady Ct. Neza vide arrest memo Ex.PW5/B and personal search memo Ex.PW5/D of accused Badami Devi, arrest memo Ex.PW5/A and personal search memo Ex.PW5/C of accused Rajshree @ Rajeshwari. This witness had correctly identified accused Badami Devi and Rajshree @ Rajeshwari present in court.
36.On 02.12.2005, D.O. had informed him about the death of injured Smt. Soni in GTB Hospital and he delivered copy of DD No.4A, Ex.PW12/E and this witness had informed to SDM about the death of Smt. Soni over phone.
37.This witness has further deposed that on 03.12.2005, SDM had recorded statement of Smt. Sushila Devi, mother of injured and Smt. Rekha, sister of injured vide Ex.PW12/F and Ex.PW9/A respectively. This witness had got preserved the dead body in the mortuary as directed by SDM.
38.This witness had assisted SDM in inquest proceeding. Dead body of Smt. Soni was identified by PW Smt. Sushila and PW Sarmod. This witness had recorded statement of aforesaid PWs in connection of identification of dead body on the direction of SDM which are Ex.PW12/G and Ex.PW12/H respectively. This SC No.56/2011 State Vs. Badami Devi and others 12/33 witness had filled up inquest form 25.35 Ex.PW1/E on the direction and dictation of SDM, SDM filled up request for postmortem Ex.PW1/D.
39.This witness had collected death summary Ex.PW12/I and death certificate Ex.PW12/J and also arranged photocopy of statement of Smt. Soni (deceased), statements of Sushila and Rekha, seizure memo of stove etc., site plan and FIR and same were sent to the postmortem conducting doctor. The postmortem examination was conducted by doctor vide P.M. report Ex.PW12/K and dead body was released to its legal heirs for cremation against receipt Ex.PW12/L. This witness had added section 304B IPC in this case after discussion with SHO.
40.During the course of investigation, name of coaccused persons Smt. Devwati and Prem Pal had been disclosed by the PWs in their statements, thereafter, on 20.12.2005 this witness had arrested both aforesaid accused persons in the presence of lady Ct. Sharda and Ct. Satpal vide arrest memo Ex.PW6/A and personal search memo Ex.PW6/B of accused Smt. Devwati, arrest memo Ex.PW7/A and personal search memo Ex.PW7/B of accused Prempal. This witness had also correctly identified these accused persons present in the court. This witness had recorded statements of lady Ct. Sharda and Ct. Satpal.
41.This witness has further deposed that on 24.12.2005, further investigation of this case was transferred to the DIU.
SC No.56/2011
State Vs. Badami Devi and others 13/33
42.This witness had correctly identified kerosene stove of green colour vide Ex.P1 which was seized from the spot.
43.This witness had also correctly identified some burnt cloth pieces, matchbox with burnt matchsticks vide Ex.P2 collectively which had been seized from the spot.
44.In his cross examination by ld. defence counsel, this witness has deposed that he had not recorded the statement of injured in GTB Hospital, however, he had inquired the facts from injured Smt. Soni. This witness has further deposed that he had not inquired from the doctors in GTB Hospital whether they had recorded the statement of injured. This witness has further deposed that he cannot say who was with the injured in GTB Hospital at the time of recording of her statement by the SDM as he was standing outside and injured was not visible to him and SDM had handed over the statement Ex.PW1/A of injured to him after coming outside.
45.PW13 Dr. Arvind Kumar, Assistant Professor, Department of Forensic Medicine, UCMS and GTB Hospital, Delhi. This witness has proved postmortem report of deceased Smt. Soni @ Meenakshi vide Ex.PW12/K and opined that time since death was about 3 to 4 days and cause of death was shock due to antemortem flame burns involving 95% of body surface area.
SC No.56/2011
State Vs. Badami Devi and others 14/33 STATEMENT OF ACCUSED PERSONS U/S 313 CR.P.C.:
46.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded wherein all the accused persons denied all the allegations and evidences and circumstances put to them. They did not prefer to lead any defence evidence.
47.Thereafter, matter was fixed for arguments.
ARGUMENTS:
48.Ld. APP for State argued that it is a dowry death case and charges under section 498A/304B/34 IPC and an alternative charge u/s 306/34 IPC were framed against accused persons namely Badami Devi, Rajeshwari @ Rajshree, Prempal Singh Chauhan and Devwati. Deceased Smt. Soni was married on 15.07.2005 with accused Prem Pal Singh Chauhan and date of death of deceased is 02.12.2005 On the statement of injured Smt. Soni Ex.PW1/A, present case was registered under section 498A IPC against accused persons namely Smt. Badami Devi and Rajeshwari @ Rajshree.
49.Ld. APP for the State further argued that PW1 R.L. Meena, SDM is the witness of recording of dying declaration Ex.PW1/A. Accused Devwati had got admitted deceased in hospital. Accused Prem Pal and Devwati connected by statement of Smt. Sushila Devi.
SC No.56/2011
State Vs. Badami Devi and others 15/33
50.Ld. APP for the State has pointed out towards statement of PW9 Smt. Rekha wherein she has deposed that her sister Smt. Soni @ Meenakshi used to inform her on phone that she was being harassed on account of not bringing of sufficient dowry by her aforesaid inlaws present in court and accused persons used to taunt her sister Meenakshi by saying that "tu garib ghar se aayi hai".
51.Ld. APP for the State has further argued that offence u/s 498A IPC is proved from dying declaration.
52.PW3 Dr. S. Kohli has proved MLC of injured Smt. Soni vide Ex.PW2/A. PW3 SI Krishan Dutt is D.O. PW4 SI Ram Kumar witness of discharged accused persons and part I.O. PW5 Ct. Sanjay Kumar had remained with I.O. during investigation. PW6 Lady Ct. Sarda Rani is the witness of arrest of accused Devwati. PW7 Ct. Satpal is the witness of arrest of accused persons namely Prem Pal and Devwati. PW8 Dr. Pradeep had proved death summary of deceased vide Ex.PW8/A. PW10 W/HC Neija is the witness of arrest of accused persons namely Rajeshwari @ Rajshree and Badami Devi. PW11 Dr. P. Ram has proved MLC of Smt. Soni vide Ex.PW2/A on behalf of Dr. Ashok. PW12 SI Vikram Singh is first I.O. PW13 Dr. Arvind has proved postmortem report.
53.Ld. APP for State submits that prosecution has proved the charges against the accused persons beyond reasonable doubt, hence he has prayed to convict the accused persons for the offence for which they have been charged. SC No.56/2011
State Vs. Badami Devi and others 16/33
54.On the other hand, ld. counsel for the accused persons argued and submitted that deceased was not fit to make statement. Ld. counsel for accused persons pointed out that PW1 Sh. R.L. Meena, SDM in his cross examination has deposed that he had not taken fitness certificate of injured from the doctor on paper on which statement of injured was recorded and that complete statement of injured Ex.PW1/A does not show physical and mental state of injured. PW1 has also deposed that statement of injured does not have any explanation of her MLC to this effect.
55.Dying declaration cannot be termed u/s 32 of evidence Act. Presumption u/s 113B evidence act does not arise.
56.Ld. counsel for accused persons further argued that case is not covered u/s 304B IPC because there is no demand of dowry soon before her death as per her dying declaration. Contents of section 304B IPC is missing for the purpose of section. Contents of Section 107 IPC are also missing. Ld. counsel for accused persons has relied upon the judgment of Hon'ble Supreme Court in case titled "Biswajit Halder @ Babu Halder & Others Vs. State of West Bengal , 2007 (2)JCC95", wherein it has held that :
"There is practically no evidence to show that there was any cruelty or harassment for or in connection with demand of dowry - No finding in this regard - This deficiency in evidence proves fatal for prosecution case - Mere evidence of cruelty and harassment is not SC No.56/2011 State Vs. Badami Devi and others 17/33 sufficient to bring in application under section 304B IPC - Prosecution facts to prove that aspectConviction recorded cannot be maintained Appeal allowed."
57.Ld. counsel for accused persons further argued that conduct of accused persons is not willful to bring case u/s 498A IPC.
58.Ld. counsel for accused persons further argued that statement of PW Sushila Devi before SDM is not corroborated with dying declaration.
59.Ld. counsel for the accused persons argued and submitted that deceased was admitted in the hospital by accused Devwati and if there was any demand of dowry, there should have been a complaint to this effect. None of the family members had brought this fact under the light. Ld. counsel further states that no circumstances has been shown by the prosecution alleging conduct of accused or his any of family members regarding demand of dowry or harassment or torture of deceased.
60.On these grounds, ld. counsel for accused persons has submitted that prosecution has not proved its case against accused persons and prayed for acquittal of accused persons from the charges.
SC No.56/2011
State Vs. Badami Devi and others 18/33
PERUSAL OF RECORD:
61.Arguments heard. Record perused. On perusal of record it is revealed that on 01.12.2005 at about 1:52 p.m. a DD No.12A Ex.PW12/A was recorded at police station Bhajanpura regarding ablazing of a woman in Gali No.03, FBlock, Subhash Mohalla. The said DD was assigned to SI Vikram Singh to take action into the matter. On receipt of said DD, SI Vikram Singh along with Ct. Sanjeev had reached in Gali No.3 and thereafter, they reached at House No.15 in the same gali, there they came to know that injured had already been removed to GTB Hospital. SI Vikram Singh had inspected the spot i.e. room varandah and kitchen at first floor of H. No.15 in FBlock, Gali No.03, Subhash Mohalla and noticed some burnt clothes, kerosene stove, stove pin, some burnt and some unburnt matchsticks and matchbox lying at the spot and smell of kerosene was spreading at the spot. Thereafter, SI Vikram Singh had reached to GTB Hospital and collected MLC of injured Smt. Soni Ex.PW2/A with the help of duty constable. Since the period of marriage was less than seven years, SDM of the area was informed by I.O.
62.On perusal of record, it is further revealed that Sh. R.L. Meena, SDM, Seelampur had reached at GTB Hospital and recorded statement of injured Smt. Soni Ex.PW1/A and made endorsement Ex.PW12/B upon the same directing to SHO PS Bhajanpura to take action as per law. On the basis of said statement of injured, FIR No.500/2005 u/s 498A IPC Ex.PW3/A was recorded at police station Bhajanpura, Delhi. During the course of investigation, all accused persons were arrested for the offences punishable u/s 498A/34 IPC.
SC No.56/2011
State Vs. Badami Devi and others 19/33
63.On perusal of record, it is further revealed that on 02.12.2005, D.O. had informed SI Vikram Singh about the death of injured Smt. Soni in GTB Hospital and he delivered copy of DD No.4A Ex.PW12/E and SI Vikram Singh had informed to SDM about the death of Smt. Soni on phone. SDM had recorded statement of Smt. Sushila, mother of injured Ex.PW12/F and Smt. Rekha, sister of injured vide Ex.PW9/A.
64.On perusal of record, it is further revealed that on 05.12.2005, SI Vikram Singh had recorded statement of PW Smt. Sushila Devi and Smt. Rekha in connection of identification of dead body on the direction of SDM vide Ex.PW12/G and PW12/H respectively.
65.On perusal of record, it is further revealed that SI Vikram Singh had filled up inquest form 25.35 Ex.PW1/E on the direction and dictation of SDM, SDM filled up request for postmortem Ex.PW1/D. SI Vikram Singh had collected death summary Ex.PW12/I and death certificate Ex.PW12/J and after postmortem, dead body of deceased was released to its legal heirs for cremation against receipt Ex.PW12/L.
66.On perusal of record, it is further revealed that I.O. had seized articles from the spot i.e. burnt clothes, kerosene stove, stove pin, some burnt and some unburnt matchsticks and matchbox vide seizure memo Ex.PW5/E after converting aforesaid articles into two parcels which were sealed with the seal of VSC. SC No.56/2011
State Vs. Badami Devi and others 20/33
67.On perusal of record, it is further revealed that PW11 Dr. P. Ram has proved MLC of injured Smt. Soni vide Ex.PW2/A on behalf of Dr. Ashok and deposed that as per MLC patient was fit to make her statement at the time of her medical examination and patient was 95 100 percent burnt.
68.On perusal of record, it is further revealed that postmortem examination was conducted by the PW Dr. Arvind Kumar vide P.M. Report Ex.PW12/K and opined that cause of death was shock due to antemortem flame burns involving 95% of body surface area. After postmortem, the dead body of Smt. Soni was handed over to the relatives of deceased against receipt Ex.PW12/L for cremation. No antemortem injury except burn injury on the body of deceased has been opined by doctors.
69.On perusal of record, it is further revealed that I.O. had arrested accused persons namely Smt. Badami Devi and Rajshree from the ground floor of their house in presence of lady Ct. Neza vide arrest memo Ex.PW5/B and personal search memo Ex.PW5/D of accused Smt. Badami Devi, arrest memo Ex.PW5/A and personal search memo Ex.PW5/C of accused Rajshree @ Rajeshwari @ Rajwati.
70.On perusal of record, it is further revealed that on the statement of PWs, I.O. had arrested accused persons namely Smt. Devwati vide arrest memo Ex.PW6/A and personal search memo Ex.PW6/B, and accused Prem Pal vide arrest memo SC No.56/2011 State Vs. Badami Devi and others 21/33 Ex.PW7/A and personal search memo Ex.PW7/B.
71.Before reaching at any conclusion let the relevant sections i.e. 498A, 304B and 306/34 IPC are being reproduced, which are as under :
306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. For the purposes of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand.
304B. Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall he called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation : For the purpose of this subsection, 'dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2)Whoever commits dowry death shall be punished with SC No.56/2011 State Vs. Badami Devi and others 22/33 imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Section 113B Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation. For the purpose of this section "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).
72.Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reached a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.
SC No.56/2011
State Vs. Badami Devi and others 23/33
73.Hon'ble Supreme court in "Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116" has laid down the parameters for arriving at an opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence, stating:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made :
'19.....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion.' (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence." SC No.56/2011
State Vs. Badami Devi and others 24/33
74.As per the definition of `dowry death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". The presumption shall be raised only on proof of the following essentials :
The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
29. Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
75.As into the facts of present case, wherein present case was registered on the statement/dying declaration of injured Smt. Soni @ Meenakshi (deceased) Ex.PW1/A and her dying declaration is corroborated with medical evidence. It is relevant to mention here the dying declaration of deceased Ex.PW1/A wherein she had stated that she had ablazed herself due to harassment of accused persons namely Badami Devi and Rajwati. This document was recorded by Executive Magistrate during the course of investigation.
SC No.56/2011
State Vs. Badami Devi and others 25/33
76.It is also relevant to note that statement of deceased was recorded by SDM in the GTB Hospital. In view of the matter any possibility for making any tutored statement is ruled out as there was no person other than SDM at the hospital inside the room at time of recording of her dying declaration.
77.Under Sub section (1) of section 32 of the Evidence Act, any statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, would constitute relevant facts as a result thereof, the Court is satisfied that the statement made by deceased is admissible.
78.Dying declaration is material document for the purpose of present case. Hon'ble Supreme Court in case "AIR 1958 SC22: 1958 Cr LJ 106" had laid down following tests for truthfulness of dying declaration :
Dying declaration - truthfulness - tests:
(1) Declaration to a Magistrate preferable to oral testimony; (2) opportunity of dying man for observation; (3) capacity to remember remained unimpaired; (4)statement consistent throughout if several opportunities of declaration he had;
(5) early statement;
SC No.56/2011
State Vs. Badami Devi and others 26/33
(6) no tutoring.
79.As dying declaration was made by deceased voluntarily, dying declaration cannot be rejected if certificate has not been obtained from doctor before recording dying declaration.
80.Constitution bench of Hon'ble Supreme Court in case Laxman v State (2002) 6 SCC 710 wherein overruling its earlier judgment in Laxmi v Om Prakash (2001) 6 SCC 118, it is held that a dying declaration which does not contain a certificate of doctor cannot be rejected on the sole ground so long as the person recording it was aware of the fact as of the condition of the declarant was in a fit mental condition to make the declaration.
81.On perusal of dying declaration, it reveals that same was made voluntarily to SDM and no one was present there except SDM when SDM had recorded the statement. Hence, tutoring of dying declaration is ruled out.
82.Hon'ble Supreme Court in case titled as "State Vs. Kanak Singh, (2003)1 SCC 73, wherein it has been observed that :
"If the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in convicting the accused taking the dying declaration as the primary basis SC No.56/2011 State Vs. Badami Devi and others 27/33 of conviction."
83.As into the facts of present case, wherein present case was registered on the statement/dying declaration of injured Smt. Soni. Ex.PW1/A and her dying declaration is corroborated with medical evidence. It is relevant to mention here the dying declaration of deceased Ex.PW1/A wherein she had stated that she had ablazed herself due to harassment of accused persons namely Badami Devi and Rajwati. This document was recorded by Executive Magistrate during the course of investigation.
84.It is also relevant to note that statement of deceased was recorded by SDM in the GTB Hospital. The issue of any possibility for making any tutored statement is ruled out as there was no person other than SDM at the hospital inside the room at time of recording of her dying declaration.
85.In the light of the above tests, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only piece of untested evidence and must, like any other evidence, satisfied the court that what is stated therein is unalloyed truth and that is absolutely safe to act upon it even no fact of any complaint to any authority regarding demand of dowry or cruelty by accused persons have been brought on record by prosecution. SC No.56/2011
State Vs. Badami Devi and others 28/33
86.As in the present case, there is no existence of proximate and livelink between the fact of cruelty based on dowry demand and concerned death. Further there is no material to show that dying declaration was result or product of imagination, tutoring or prompting. On the contrary same appear to have been made by the deceased voluntarily.
87.From the facts of case of prosecution and considering the dying declaration wherein no allegation against the accused Prem Pal and Smt. Dev Wati have been leveled regarding cruelty or harassment for or in connection of demand of dowry by accused persons namely Prem Pal Singh Chauhan and Smt. DevWati.
88.After taking into consideration, all above discussion, this court is satisfied that dying declaration of deceased is true and free from any effort to enduce the deceased to make false statement.
89.Since PW9 Smt. Rekha, sister of deceased in his cross examination has deposed that deceased had never told her any fact of cruelty or harassment on account of demand of dowry by the accused persons. In order to bring the case under section 304B IPC it was necessary for prosecution to prove death soon before death deceased was subjected to cruelty or harassment on account on or for in connection of demand of dowry of. It is absent in the facts of present case. Since no facts covering the section 304B IPC could be brought on record against accused SC No.56/2011 State Vs. Badami Devi and others 29/33 persons and after relying on dying declaration of deceased no where it has been discussed that either of accused persons had caused cruelty or harassment to her for or in connection of demand of dowry soon before her death.
90.Since from the perusal of dying declaration wherein no where it has been suggested that accused persons had caused any cruelty for or in connection of demand of dowry soon before her death and moreover from the testimony of PW9 Smt. Rekha who is the sister of deceased she had also admitted in her cross examination that deceased had never told her any fact of cruelty or harassment on account of demand of dowry by the accused persons namely Smt. Badami Devi, Rajeshwari @ Rajshree @ Rajwati, Prem Pal Singh Chauhan and Dev Wati. At this stage after considering facts and circumstances available on judicial record, this court comes to the conclusion that prosecution has been failed to prove the guilt of accused persons u/s 304B IPC beyond reasonable doubt. Hence, this court acquits all the accused persons namely Smt. Badami Devi, Rajeshwari @ Rajshree @ Rajwati, Prempal Singh Chauhan and Devwati from the charges u/s 304B/34 IPC by giving them benefit of doubt.
91.As far as section 306 IPC is concerned, no evidence forthcoming to show that husband or his relative either aided or instigated the deceased to commit suicide. After perusing the dying declaration of deceased no direct evidence could come on record against accused persons revealing involvement of accused persons for SC No.56/2011 State Vs. Badami Devi and others 30/33 abating to commit suicide by deceased. Since public prosecution witness PW9 Smt. Rekha, sister of deceased has been declared hostile and has not supported the case of prosecution. Even in her cross examination by ld. APP for the State, she could not deposed against any of accused persons regarding abatement by accused persons rather she has deposed that deceased had not told any fact of cruelty or harassment on account of demand of dowry by the the accused persons, hence presumption u/s 113A evidence act does not arise. Accordingly, charges of section 306/34 IPC cannot be said to be proved. Hence, in the absence of sufficient evidence against the accused persons, this court acquits accused persons namely Badami Devi, Rajeshwari @ Rajshree @ Rajwati, Prempal Singh Chauhan and Devwati from the charges u/s 306/34 IPC by giving them benefit of doubt.
92.As facts into the present case, deceased Smt. Soni @ Meenakshi in her dying declaration before SDM has categorically stated that she had poured kerosene oil on herself and set herself on fire due to being disturbed from the taunting of her motherinlaw, Smt. Badami Devi and Jethani Rajwati and she was not being given food by them. From the reply of bail application dated 15.02.2007, it is revealed that Rajeshwari @ Rajshree is also called as Rajwati. In her dying declaration, deceased had held Smt. Badami Devi and Raheshwari @ Rajshree @ Rajwati only responsible for ablazing herself.
SC No.56/2011
State Vs. Badami Devi and others 31/33
93.From the dying declaration the fact that "meri saas beechwali jethani dono tang karte thai. Taaney dete thai ki mujha kaam karna nahi aata. Mujha doodh nahi dete thai aur na hee roti khane ko dete thai". From these words inference can be drawn that there was repeated cruelty by accused persons namely Smt. Badami Devi and Rajwati @ Rajeshwari @ Rajshree and same is covered by explanation of section 498A IPC.
94.Hon'ble Supreme Court in case "Sakatar Singh and Others Vs. State of Haryana, 2004 J.T. 147 wherein it has held that :
"Prosecution must prove that the victim was subjected to cruelty and harassment which fall under explanation to Sec. 498A IPC."
95.Since dying declaration is reliable document and same had been made before SDM in absence of any other persons and same cannot be said to be tutored and dying declaration can be basis for conviction of accused persons. After considering the facts of case and contents of dying declaration, in the opinion of this court ingredients of section 498A IPC have been fulfilled against accused persons namely Smt. Badami Devi and Rajeshwari @ Rajshree. Hence, on the basis of dying declaration, this court held guilty accused persons namely Smt. Badami Devi and Rajeshwari @ Rajshree @ Rajwati for the offence u/s 498A/34 IPC and acquits the accused persons namely Prempal Singh Chauhan and Devwati from the charges u/s 498A/34 IPC by giving them benefit of doubt. SC No.56/2011
State Vs. Badami Devi and others 32/33
96.In terms of Section 437 (A) Cr. P.C. accused persons namely Prempal Singh
Chauhan and Devwati are directed to execute bail bond in sum of Rs.20,000/ each with one surety each in the like amount for the period of six months. PRONOUNCED IN THE OPEN COURT ON THIS 07.05.2012 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI.
SC No.56/2011
State Vs. Badami Devi and others 33/33
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 01 : North East /
KARKARDOOMA COURTS: DELHI.
FIR No. 500/2005
State Vs. 1. Smt. Badami Devi w/o Sh. Shiv Charan
2. Rajeshwari @ Raj Shree @ Rajwati w/o Om
Prakash
All r/o F 15, Gali No.3, Subhash Mohalla,
Bhajanpura, Delhi.
Police Station Bhajanpura
Convicted u/s 498A/34 IPC
ORDER ON THE POINT OF SENTENCE
07.05.2012
Pre: Ld. APP for the state.
Convicts namely Smt. Badami Devi and Rajeshwari @ Raj Shree @ Rajwati are on bail.
Sh. Sandeep Singh, proxy for Sh. Rajpal Singh counsel for convicts. Ld. APP for State submits that since the offence has been proved against the convicts namely Smt. Badami Devi and Rajeshwari @ Raj Shree @ Rajwati under section 498A/34 IPC. Ld. APP for the State further submits that they must be sentenced according to provisions of law to teach a lesson to such uncivilized persons. On this ground he has prayed for maximum sentence to the convicts.
On other hand, Ld. counsel for convict submits that they are very poor person and there is no previous criminal antecedents against them. Ld. counsel for convict SC No.56/2011 State Vs. Badami Devi and others 34/33 further submits that convict Badami Devi is about 70 years and convict Rajwati @ Rajshree @ Rajeshwari is aged about 40 years and they had been in JC for about one year, eleven months and two days. Ld. counsel for convicts further submits that convicts would not repeat such type of offence in future and they will live peacefully in the society. Ld. counsel for convicts has requested for lenient view and requested to release the convicts for the sentence already undergone.
Arguments heard. Record perused. On perusal of record, it is revealed that since convicts had been in JC for about one year, eleven months and two days and convict Smt. Badami Devi is aged about 70 years and convict Rajwati @ Rajeshwari @ Rajshree is aged about 38 years. Since both the convicts had suffered period of judicial custody for about one year, eleven months and two days which are sufficient for their jail imprisonment. Accordingly, in view of this court, ends of justice will meet if convicts be released for the period already undergone and fine of Rs.1000/ each in default R.I. for one month. Fine paid.
Accordingly, convicts namely Smt. Badami Devi and Rajwati @ Rajeshwari @ Rajshree are hereby released after considering period of already undergone and payment of fine. Orders accordingly.
In terms of section 437 A Cr.P.C. convicts namely Smt. Badami Devi and Rajeshwari @ Rajshree @ Rajwati are directed to execute bail bond in sum of Rs.10,000/ each with one surety each in the like amount for the period of six months.
File be consigned to record room.
PRONOUNCED IN THE OPEN COURT SC No.56/2011 State Vs. Badami Devi and others 35/33 ON THIS 07.05.2012 (RAMESH KUMAR - II) ASJ01/N.E. KKD COURTS/DELHI. SC No.56/2011 State Vs. Badami Devi and others 36/33