Delhi District Court
State vs 1. Prashant Rathi, on 30 August, 2014
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL SESSIONS
JUDGE; FTC : E COURT: SHAHDARA: KARKARDOOMA COURT:
DELHI.
SESSIONS CASE No. 101/09
FIR No. 216/02
U/S: 304-B/498-A/34/406 IPC
P.S: Shakar Pur
State Versus 1. Prashant Rathi,
S/o Sh. Ashok Rathi,
R/o P-IV-2, Yamuna Colony,
Chakrata Road, Dehradun,
Uttranchal
Also at:
38, Guru Angad Nagar,
Laxmi Nagar, Delhi.
2. Ashok Rathi,
S/o Sh. H.S. Rathi,
R/o P-IV-2, Yamuna Colony,
Chakrata Road, Dehradun,
Uttranchal
3. Smt. Aruna Rathi,
W/o Sh. Ashok Rathi,
R/o P-IV-2, Yamuna Colony,
Chakrata Road, Dehradun,
Uttranchal
FIR No. 216/02 1 of page 49
4. Prachi Rathi,
D/o Sh. Ashok Rathi,
R/o P-IV-2, Yamuna Colony,
Chakrata Road, Dehradun,
Uttranchal
Date of Institution : 13.11.2009
Date of Arguments : 31.05.2014
Date of Judgment : 30.08.2014
JUDGMENT
1. Prosecution case, in brief, is that on 29.05.2002 at about 11.10 pm, an information was received at Police Station Shakar Pur from Walia Nursing Home vide DD No. 28-A that Poonam Rathi, wife of Prashant Rathi was brought dead. On receipt of the said information, SI Lekh Singh reached Walia Nursing Home and collected the MLC of Poonam Rathi who was declared "brought dead" by the doctor. SI Lekh Singh passed the information to SDM Sh. Kamal Dogra. On 30.05.2002, SDM recorded the statement of Sh. Brij Bhushan Verma, father of the deceased wherein he stated that his daughter Poonam had got married with Prashant Rathi on 11.02.2001 but after 7-8 months of the marriage, Prashant Rathi started torturing her by saying that she does not know cooking and also does not know English and was not upto the standard of their family. He also started pressurizing Poonam to bring money. He therefore gave Rs. 1000/-, Rs. 2000/- and Rs. 5000/- at different intervals. Prashant Rathi used to abuse and beat Poonam on her failure to bring money. The father in law, mother in law and Nanad of Poonam did not like that Poonam should meet her FIR No. 216/02 2 of page 49 family. He further stated that he came to know that Poonam was pregnant and that her husband, father in law and mother in law wanted her to abort. Poonam refused to abort the child due to which they were harassing her. Prashant Rathi started harassing Poonam for not bringing money and therefore in March 2002, he gave Rs. 20,000/- by way of draft and in May 2002, he gave Rs. 30,000/- by way of another draft. On 25.05.2002, he was told by his daughter on telephone that her condition was bad and that no one was taking care of her. On 29.05.2002 night at about 10.30 pm, Prashant informed him on telephone that Poonam wants to talk to her mother. Poonam told him that she was sweating and was unable to even move. On hearing this, he told Prashant to take her to some good hospital or doctor but Prashant replied that he had already shown her to doctor and cannot take her to doctor everyday and then switched off the phone. On 29.05.2002 at about 12.00 midnight, Ashok Rathi, father of Prashant Rathi telephonically informed him that Poonam was admitted in Walia Nursing Home and asked him to come to Delhi immediately but on going to the hospital, he found Poonam lying dead. He stated that Poonam was killed because she refused to abort the child and had not brought dowry and that Prashant Rathi, her mother in law Aruna Rathi and Nanad Prachi Rathi are responsible for her death. He stated that his daughter was also harassed because she was unable to learn computer. On the statement of Brij Bhushan Verma, FIR was recorded under Section 498-A/304-B/34 IPC. During investigation, Prashant Rathi was arrested. Brij Bhushan gave a supplementary statement wherein he stated that Ashok Rathi was also responsible for the death of his daughter Poonam. Accused Ashok Rathi, Aruna Rathi and Prachi Rathi could not be arrested. Proceedings under Section 82/83 Cr. PC were initiated against them. The viscera was sent to FIR No. 216/02 3 of page 49 FSL Malviya Nagar for opinion. Charge sheet was filed in court under Section 498-A/304-B/406/34/316 IPC and under Section 6 of Dowry Prohibition Act against accused Prashant Rathi. After obtaining viscera report dated 26.08.2002 and 17.09.2002, the same were filed in court with supplementary charge sheet. Thereafter, opinion was sought from the doctor regarding the cause of death but doctor did not give any definite opinion regarding the cause of death. In the meanwhile, Ashok Rathi, Aruna Rathi and Prachi Rathi were granted anticipatory bail by the court. They were formally arrested. Supplementary charge sheet was filed against them under Section 498-A/304-B/34 IPC.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charges under Section 498-A/304-B/406/34 and under Section 316 IPC were framed against accused Prashant Rathi to which he pleaded not guilty. Charges under Section 498-A/304-B/406/34 IPC were framed against accused Ashok Rathi, Aruna Rathi & Prachi Rathi to which they also pleaded not guilty.
3. In order to prove its case, prosecution examined 18 witnesses. PW-1 is Dr. K. Goel. He had conducted the postmortem on the body of the deceased Smt. Poonam Rathi and prepared the detailed postmortem report Exbt. PW-1/A. He stated that blood and viscera was preserved for chemical analysis and final opinion regarding the cause of death was kept pending. He further stated that on 20.11.2012, IO SI Madan Meena submitted an application along with chemical analysis reports from FSL Malviya Nagar dated 26.08.2002 and 17.09.2002. The second report showed the presence of Organo Phosphorus Insecticide. He further stated FIR No. 216/02 4 of page 49 that the FSL result did not point out any specific poison and both the reports of different dates were contradictory and therefore no definite opinion regarding cause of death can be given. He gave his subsequent opinion vide Exbt. PW-1/B. PW-2 is Dr. Mahdulika Sharma, Senior Scientific Officer from CFSL. She had received the viscera for chemical examination. On chemical examination, she found the presence of Organo Phosphorus Insecticide. She proved her report dated 26.08.2002 and 17.09.2002 as Exbt. PW-2/A and Exbt. PW-2/B respectively. With regard to the report dated 26.08.2002, she stated that there was a typographic mistake in the report that Exbt. 1-A and 1-B gave negative test and that later on the same was corrected vide her letter/report dated 17.09.2002 Exbt. PW-2/B. She also produced the photocopy of the office copy of report dated 26.08.2002 in which correction in respect of the finding was carried out and the same is Exbt. PW-2/C. PW-3 is Sh. Brij Bhushan. He is the father of the victim Poonam and is the complainant in this case. He proved the statement dated 30.05.2002 made to the SDM as Exbt. PW-3/C. He stated that he made another statement before the SDM which is Exbt. PW-3/D. He stated that on 01.06.2002, he gave statement to the police in which he stated that on 30.05.2002 he was mentally disturbed due to the death of his daughter and therefore had not mentioned the name of Ashok Rathi.
PW-4 is Alok Kumar. Deceased Poonam was the daughter of his maternal uncle Brij Bhushan Verma. He stated that after marriage with accused Prashant Rathi, Poonam was living at Shakar Pur, Delhi with her husband and Nanad Prachi. He further stated that he came to know that his cousin was harassed by her in-laws i.e. mother in law, father in law, Nanad FIR No. 216/02 5 of page 49 and husband. He further stated that in the year 2001 on the day of Raksha Bandhan, he went to the house of Poonam at her house at Shakar Pur but he was not allowed to enter the house by accused Prachi and therefore he returned back to his house. The sweets which he had brought were thrown away by accused Prachi in his presence. He further stated that Poonam expired on 29.05.2002 as she was killed by the accused persons and he came to know about the harassment of his sister through his maternal uncle. He further stated that once he met Poonam in the house of his maternal uncle 2-3 months prior to Raksha Bandhan in the year 2001 and she told him about her harassment by the accused.
PW-5 is ASI Amrit Lal, Duty Officer. He had recorded the FIR Exbt. PW-5/A. PW-6 is Smt. Harbiri Verma. She is the mother of deceased Poonam. She deposed that her daughter Poonam got married with accused Prashant Rathi on 11.02.2001 at Meerut. Prior to Phera ceremony, accused Prashant Rathi, Aruna Rathi, Prachi Rathi and Ashok Rathi made demand of Rs. 2 lacs cash. They somehow arranged Rs. 1 lac before Phera ceremony and gave it to the accused persons. She stated that for about 3-4 months after marriage, Poonam was kept well by the accused but thereafter they started harassing her and compelled her to bring balance Rs. 1 lac. Accused further told her that they were unable to meet their expenses and that accused Prashant Rathi was unemployed and was not working anywhere and they wanted their son to be settled. She further stated that her daughter was regularly harassed on account of non-fulfillment of demand of Rs. 1 lac. They further told her that if her parents were not in a position to arrange the balance money, they may sell their house to arrange the money. She further stated that her daughter was FIR No. 216/02 6 of page 49 beaten on several occasions by the accused persons. She stated that the condition of Poonam became worst after she became pregnant and she was being pressurized to terminate her pregnancy but she refused as she was not willing to abort her first child upon which she was confined in a room and was not provided any food. She stated that her daughter sent her a letter dated 17.03.2000 narrating all the incidents of her harassment and once she had also informed her through telephone that her father in law had made a call from Dehradun and told her "Jise tum bulana chahti ho bula lo, dekhta hoon kaun abortion karane se rokta hai" and she further told her to come immediately if she wants to save her. She further stated that she, her husband, Dal Singh and R.S. Rana came to the house of Poonam where she was being pressurized and beaten. At this, they took Poonam with them to Meerut on the same night. Poonam was taken to a lady doctor Abha Sharma for treatment. On 29.05.2002, her husband attended a telephone call of accused Prashant Rathi who told him that Poonam wants to talk to him. Her husband then talked with Poonam who told him that she was suffering from pain all over her body and she was not in a position to get up from the bed. At about 12.00 midnight on the same day, they again received a call from accused Ashok Rathi informing that Poonam was admitted in Walia Nursing Home and her B.P. was very low. On getting this information, she along with her brother and husband immediately left for Delhi in the car of her brother. On reaching Walia Nursing Home, it was told to them that her daughter was brought dead at the hospital. Thereafter, they went to PS Shakar Pur and on reaching there, they found accused Ashok Rathi, Aruna Rathi and Prashant Rathi in the police station and on seeing them, they immediately left the police station in their Maruti car. They were informed by the police that their statements would be recorded FIR No. 216/02 7 of page 49 at SDM office. The condition of her husband was not good due to the incident and he was taken to his house by one of his students. After his condition became normal, they went to SDM Office where they saw the accused Ashok Rathi, Aruna Rathi and Prashant Rathi already sitting and talking to SDM. Her husband gave statement to the SDM.
PW-7 is Constable Aman Singh . He took the body of Poonam to Subzi Mandi Mortuary from Walia Nursing Home. He stated that on 30.05.2002, SDM Preet Vihar went inside the mortuary and after postmortem, SDM handed over the sealed pullanda containing viscera of the deceased to SI Lekh Raj and the same was seized vide memo Exbt. PW-7/A. IO then gave rukka to Duty Officer for the registration of the FIR. PW-7 is also the witness to the arrest of accused Prashant Rathi.
PW-8 is Dal Singh. He deposed that he used to do social service in a marriage bureau at Shastri Nagar, Meerut and through the said bureau, the marriage proposal between Poonam and Prashant Rathi materialized and the marriage took place on 11.02.2001 which was solemnized in a very good manner by Brij Bhushan. He stated that after marriage, he came to know from Brij Bhushan Verma that the family of Prashant Rathi was demanding Rs. 2 lacs more in dowry. He further stated that on 13.03.2002, Brij Bhushan called him to his house whereupon he went to his house where R.S. Rana, retired Principal, was already sitting there. Brij Bhushan told him that his daughter Poonam was being harassed, tortured and beaten by her in-laws and asked him to accompany them to Delhi at the house of Prashant Rathi. He further stated that the same day evening, he along with R.S. Rana and Brij Bhushan Verma came to Delhi and went to the house of Prashant Rathi and Poonam. Poonam started weeping and told them that no one loves her and Prashant and his FIR No. 216/02 8 of page 49 family only love money and that at that time, Ashok Rathi, Prachi Rathi and maternal grandmother of Prashant Rathi were present in the house. Accused Prashant Rathi, Ashok Rathi, grandmother of Prashant Rathi demanded Rs. 2 lacs as dowry stating that this amount was not paid to them at the time of Phera ceremony. He further stated that Brij Bhushan Verma decided to take Poonam with him but accused refused to send Poonam with them but when told that they will initiate legal action against them, they agreed to send Poonam. Same day, Poonam was brought to Meerut.
PW-9 is SI Madan Lal. He took up the investigation of this case on 12.07.2002. He recorded the supplementary statement of Brij Bhushan. On 28.07.2002, he went to Dehradun in the office of Ashok Rathi where he seized certain documents vide memo Exbt. PW-9/A. On 31.07.2002, he sent the viscera to FSL, Malviya Nagar and on 16.08.2002, he recorded the statements of other witnesses. On 26.08.2002, he collected the FSL result regarding viscera which is Exbt. PW-2/A. He stated that the said report was produced before Dr. K. Goel, Subzi Mandi Mortuary for obtaining the opinion regarding the cause of death but the doctor told him that the report was incomplete and therefore he again went to FSL, Malviya Nagar and made a written request for giving a complete report and on the said request, report dated 17.09.2002 was given to him which is Exbt. PW-2/B. He again went to Subzi Mandi Mortuary for getting opinion regarding the cause of death and on the basis of this report, the doctor gave the opinion.
PW-10 is Sudhir Sharma, driver of car of Har Mohan. He deposed that after every 15-20 days, Har Mohan used to send him to Shakar Pur, Delhi to the matrimonial house of his sister Poonam to deliver eatables in the car. Poonam and her Nanad used to meet him in the house.
FIR No. 216/02 9 of page 49 PW-11 is Dr. Vipin from Walia Nursing Home. He had conducted the medical examination of Poonam Rathi and declared her brought dead vide MLC Exbt. PW-11/A. PW-12 is Vinay Kumar, cousin of Poonam. He deposed that Poonam started living in Shakar Pur with her husband Prashant Rathi and sister in law Prachi. He stated that he used to visit the house of Poonam in Shakar Pur but 15-20 days prior to the death of Poonam, they shifted the house from Shakar Pur to Guru Angad Nagar. He further stated that on 29.05.2002, he visited the house of Poonam. Poonam and her sister in law Prachi were present in the house. He noticed that Poonam was little bit nervous and was not feeling well but her condition was not such bad that she could die.
PW-13 is Sh. Kamal Dogra, the then SDM Preet Vihar. He had recorded the statement of Sh. Brij Bhushan, father of the deceased and sent the statement to SHO PS Shakar Pur for taking appropriate action vide his endorsement Exbt. PW-13/A. He then prepared the death report Exbt. PW-13/DD. He had recorded the statements of relatives of the deceased regarding the identification of body and requested M.S. Civil Hospital to find out the cause of death of the deceased. He further stated that on 04.06.2010, Brij Bhushan again came to his office and requested him that he wants to make another statement in this case. The same was recorded and sent to SHO PS Shakar Pur for taking appropriate action.
PW-14 is Inspector Lekh Raj. He is the Investigating Officer of this case. On 29.05.2002 on receipt of DD No. 28-A, he along with Constable Aman Singh reached Walia Nursing Home where Poonam Rathi was already declared "brought dead" by the doctor. He then passed the information to SDM Preet Vihar. The body was transferred to Subzi Mandi FIR No. 216/02 10 of page 49 Mortuary. He stated that next day, along with parents and in-laws of the deceased, he reached SDM Office where the statement of father of the deceased was recorded by the SDM. He stated that SDM conducted the proceedings under Section 176 Cr. PC and got conducted the postmortem of the body. He had also seized the viscera box, sample seal and collected postmortem report and handed over the body of the deceased to his parents. He had prepared the Rukka Exbt. PW-14/A on the basis of which FIR was recorded. He then interrogation the accused Prashant Rathi who told him that he was not having good relations with Poonam and that they often used to have quarrel and due to this reason, she had eaten something. After interrogation, accused Prashant Rathi was arrested vide arrest memo Exbt. PW-7/B. On 04.06.2002, the name of Ashok Rathi was added in the list of accused on the directions of the SDM. On 06.06.2002, Brij Bhushan gave him some documents regarding dowry demand made by the accused which were seized vide memo Exbt. PW-3/A. PW-15 is Smt. Neerja Kumar, Branch Manager, PNB. She stated that the demand drafts Mark D & E were issued from her branch.
PW-16 is HC Manoj Kumar. On 31.07.2002, he had deposited the viscera of the deceased at FSL Malviya Nagar.
PW-18 is retired SI Jaipal Singh. He is the second IO of this case. He had filed the charge sheet in court.
4. Statements of accused were recorded under Section 313 Cr. PC wherein they stated that they were innocent.
5. In their defence, accused examined DW-1 Prem Singh. He was the driver of Ashok Rathi since 2001 to 2003-04, while he was working as FIR No. 216/02 11 of page 49 Superintending Engineer. He stated that the wife and daughter of Ashok Rathi were residing at his official residence in Yamuna Colony, Dehradun.
6. DW-2 is Shashank Chaudhary. He deposed that accused Prashant Rathi is his cousin being the son of his foofa Ashok Rathi. He stated that accused Prashant Rathi got married with Poonam who is daughter of his Mausa Brij Bhushan Verma. He had attended their wedding on 11.02.01 at Meerut. He stated that the phera ceremony was not held up or delayed on account of any dowry demand. According to him Poonam started living at her house in Meerut because of her studies and after completing Graduation she and Prashant started living at Laxmi Nagar. He further stated that accused Prachi was not living in the said house and was living with her parents at their official residence in Dehradoon. He stated that he attended the first wedding Anniversary of Poonam and Prashant at Indiana Restaurant, Meerut in the year 2002 and the said function was attended by family members of both the sides. He further stated that on the occasion of Holi in March 2002, he came to know that Poonam was pregnant and therefore god bharai ceremony was performed on 24.04.02 at the residence of his foofa at Meerut which was attended by the family members of both the sides. On the occasion of Holi and god-bharai ceremony, he took photographs from his camera. He stated that both families shared good relations with each other. He further stated that Poonam shifted to her parents house in Meerut in January 2002 as she was not feeling well. On his visits at the house of his mausa, he found that the condition of Poonam was getting deteriorated. His mausa did not disclose her exact condition to him or to the family members of accused FIR No. 216/02 12 of page 49 Prashant Rathi. He produced the CDs of marriage and the photographs taken on the occasion of Holi and God Bharai ceremony. He also produced the original letter dated 20.01.01 written by the complainant Brij Bhushan Verma to Ashok Rathi in connection with the marriage proposal of accused Prachi, which is Ex.DW2/E. According to him Poonam remained with her parents till her death in Meerut. He stated that father of deceased told him in May 2002 that Poonam shall have to be taken to Delhi for further treatment as per doctors advice.
7. Arguments have been heard from the Ld.APP assisted by Ld. Counsel of the complainant as also from the Ld. Counsels of accused. In order to hold a person guilty u/s 304-B IPC the following essentials must be satisfied:-
(i) Death of a woman must have been caused by burns or bodily injury or otherwise then under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, a woman must have been subjected to cruelty or harassment by her husband or by the relatives of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
8. PW-3 Brij Bhushan Verma and PW-6 Smt. Harbiri Verma deposed that Poonam had got married with Prashant Rathi on 11.02.01 at Meerut FIR No. 216/02 13 of page 49 They deposed that on receipt of information about their daughter being admitted in Walia Nursing Home, they reached Walia Nursing Home where they came to know that Poonam was declared brought dead. PW-11 Dr. Vipin deposed that on 29.05.02 after examination, he declared Poonam Rathi brought dead vide MLC Ex.PW11/A. The accused have not challenged the fact that marriage between Prashant Rathi and Poonam took place on 11.02.2001 and the factum of her death on 29.05.02. In fact they admitted these facts in their statements u/s 313 Cr. P.C. Thus it is proved that deceased Poonam Rathi had died within 7 years of her marriage with accused Prashant Rathi. The Ld. Defence Counsels have however argued that the doctor who conducted the postmortem did not give the opinion regarding the cause of death of Poonam and therefore it is not proved that she died otherwise than under normal circumstances.
9. The Ld. Counsels have argued that as per MLC Ex.PW11/A and the postmortem report Ex.PW1/A the deceased was not having any external injury mark on her body. It has been submitted that as per the postmortem report Ex.Pw1/A the deceased was having Left Ventricular Hypertrophy which condition occurs when there is a thickening of myocardium (muscle) of the left ventricle of the heart and in such cases there is a risk of cardiac arrest. It is also stated that Left Ventricular Hypertrophy is a hereditary disorder. It has been submitted that even the elder sister of the deceased had died due to some unknown disease and the deceased was also suffering from the hereditary disorder for which she was receiving treatment In Meerut and therefore it is a case of natural death.
10. The Ld. APP arguing on behalf of the State has submitted that FIR No. 216/02 14 of page 49 after conducting the postmortem, doctor had preserved the viscera for chemical analysis. The viscera was sent to FSL Malviya Nagar. Dr. Madhulika Sharma (PW-2) Senior Scientific Officer-cum- Ex. Officio Chemical Examiner submitted a report Ex.PW2/A dated 26.08.02 but the same contained a typographic mistake which was later on rectified by Dr. Madhulika Sharma vide her letter/report dated 17.09.02 Ex.PW2/B. It is stated that the letter/report Ex.PW2/B proves the presence of Organo Phosphorus Insecticide in the viscera of the deceased and therefore it is a case of unnatural death.
11. The Ld. Defence counsels have argued that as per FSL report Ex.PW2/A the exhibits gave negative test for Organo Phosphorus Insecticide. It has been submitted that there was no occasion with the Investigating Officer to seek further report from FSL after receiving the report Ex.Pw2/A. It is also argued that the report Ex.PW2/B dated 17.09.02 was not given in sealed cover and was not accompanied by the forwarding letter of the Director FSL. It is also stated that office copy of the report dated 26.08.02 was not handed over to the IO during investigation and was produced for the first time in court. It is thus argued that the report dated 17.09.02 is a manipulated document and cannot be relied upon.
12. The Ld. APP has argued that when IO submitted the report Ex.PW2/A before Dr. K. Goyal (PW-1) for opinion regarding the cause of death, he told him that the report was not complete and therefore IO approached the FSL for giving the complete report and then it was realized that there was typographical mistake in the report Ex.PW2/A and thereupon the clarification was issued by Dr. Madhulika Sharma vide Ex.Pw2/B .
FIR No. 216/02 15 of page 49 However the Ld. Defence counsels have argued that Dr. K. Goyal had not deposed that the report was presented before him on 17.09.02 or that he had informed the IO that it was not complete. It is submitted that prosecution has not produced any application by which the opinion of the doctor with regard to the cause of death was sought. It is thus argued that IO in connivance with the parents of the deceased has got prepared the false report Ex.PW2/B. It has also been argued that Organo Phosphorus Insecticides are in multiple but the FSL result does not indicate the group of Organo Phosphorus Insecticide. It is stated that in case of Organo Phosphorus Insecticide poisoning the affected person may smell of garlic or petrol and if the poisonous symptoms are severe, it may result in pin point pupils, confusion and agitation, convulsions, copious excess secretion and depression etc. It is stated that the MLC and the postmortem report do not suggest any of the aforesaid symptoms and in fact the postmortem report proves dilated pupils and not pinpoint pupils. It is thus argued that it is not a case of Organo Phosphorus Insecticide poisoning and therefore prosecution has failed to prove that the deceased had died otherwise than under normal circumstance.
13. PW-9 SI Madan Lal deposed that on 31.07.02 the viscera was sent to FSL Malviya Nagar and on 26.08.02 he collected the FSL result Ex.PW2/A from FSL and produced the same before doctor K. Goyal for opinion regarding the cause of death but on perusal of the said report doctor told him that it was an incomplete report and therefore he again went to FSL Malviya Nagar and gave a written request Ex.PW7/D for giving a complete report and on the said request the report dated 17.09.02 was given to him which is Ex.PW2/B. In cross examination PW-9 stated that FIR No. 216/02 16 of page 49 the FSL result dated 26.08.02 was taken to Dr. K. Goyal for opinion without any forwarding letter from the SHO or any other authority. According to him there was no necessity for any forwarding letter. He further stated that Dr. K. Goyal did not give opinion in writing in respect of FSL report dated 26.08.02. He stated that for the first time he went to Dr. K. Goyal only on 17.09.02 and that Dr. Goyal had not given him anything in writing on 17.09.02 after seeing the report but informed him verbally. In further cross examination he stated that he went to FSL Malviya Nagar on 17.09.02. He met Director who asked him to submit a written request to FSL. In his request letter to FSL submitted on 17.09.02, he wrote that instructions had been given by Dr. Goyal verbally and not in writing. He further stated in cross examination that FSL report dated 17.09.02 was handed over to him personally but did not remember whether the same was given in a sealed cover or not. PW-2 Dr. Madhulika Sharma also deposed that on 17.09.02 SI Madan Meena gave a letter dated 17.09.02 to Director FSL for further clarification and the letter was marked to her by the Director and while submitting the clarification it came to her knowledge that the correction which she had made in the office copy was inadvertently left in the main copy. She stated that she accepts that it was a typographic mistake and the correction was inadvertently left in the main copy. PW-2 was extensively cross examined by the defence counsels. In the said cross examination she stated that all the reports in FSL are always forwarded by the Director through forwarding letters but clarified that the second report Ex.PW2/B is not actually a report but a clarification of the previous report and therefore no separate forwarding letter was required and the reply was submitted through main file. She stated that she had not sent anything directly and that even Ex.PW2/B was routed through the Director. She also FIR No. 216/02 17 of page 49 did not remember whether the clarification Ex.Pw2/B was handed over to SI Madan Meena in a sealed condition or not but stated that generally the report/explanation are handed over in sealed cover only. She stated that as per practice in her office, after the report is prepared and sent in the Office of Director with the original record, after approval of the director, the same is received in the office whereupon the office gives a report in a sealed cover to the concerned person.
The relevant portion of the report dated 26.08.02 Ex.PW2/A reads as under:-
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Packet - „1‟ : One wooden box sealed with the seals of "KLS DELHI AAS HOSPITAL", SUBZI MANDIMOARTUARY" labeled as PMR No.835 dated 30.05.2002 viscera of Poonam Rathi. It is found to contain exhibits 1A, 1B &1C Exhibit-„1A‟: Stomach and piece of small intestine with contents kept in a plastic jar.
Exhibit-„1B‟ : Pieces of liver, spleen and kidney kept in a plastic jar.
Exhibit-„1C‟ : Empty glass bottle with stains stated to be blood.
RESULTS OF EXAMINATION On chemical examination, (i) Exhibits „1A‟ & „1B‟ gave negative tests Organophosphorus Insecticide.
(ii) Exhibit „1C‟ gave negative tests for chemical poisons.
Note: Remnants of the exhibits have been sealed with the seal of MS FSL DELHI.
The office copy of the report dated 26.08.02 Ex.PW2/C shows that the word indicating as "Negative" in the result of examination has been scored off and "Positive" is written with ink pen and the same is duly initialed by PW-2 Dr. Madhulika Sharma. Letter dated 17.09.02 of Dr. Madhulika Ex.PW2/B clarifies that Ex.1A and Ex.1B gave "Positive test" for Organo Phosphorus Insecticide. In order to judge whether there was any FIR No. 216/02 18 of page 49 bona fide typographic mistake in the report Ex.PW2/A or that later on manipulation was done in office copy Ex.Pw2/C, the answer to the following question given by PW-2 Dr. Madhulika Sharma would be most relevant;- Q. Changing the report from "Negative" to "Positive" was important issue and that should not have been suppressed?
Ans. I have not changed the report. If the report is supposed to be negative then my result of examination will not be in two stages then it will be in one line i.e. Ex.1A, Ex.1B and Ex.1C gave Negative test for any poison.
14. On perusal of the report Ex.PW2/A, it may be seen that the result of examination is given in two parts. Sr. No. 1 indicates that Ex.1A & Ex.1B gave "Negative" test while Sr. NO. 2 indicates that Ex.1C gave "Negative" test for chemical poison. I agree with the answer given by PW-2 that if all the exhibits gave "Negative test" for chemical poison she would have given one line result that Ex.1A, Ex.1B & Ex.1C gave "Negative" test for any poison and would not have mentioned separately for exhibits 1A, 1B and 1C. In my view the aforesaid answer given by PW-2 sets the controversy at rest and conclusively proves that there was a typographic mistake in the report Ex.PW2/A. Though the said mistake was rectified in the office copy but inadvertently no such correction was incorporated in the main copy and therefore under these circumstances PW-2 had issued a letter/clarification dated 17.09.02. Defence has failed to prove that Dr. Madhulika Sharma had any motive for giving false report and therefore FSL report dated 17.09.2002 cannot be seen with suspicion merely because it was delivered without covering letter of Director FSL and in an unsealed condition.
15. The next question for consideration is as to what prompted the IO to FIR No. 216/02 19 of page 49 approach the FSL second time after obtaining the report Ex.PW2/A? Dr. K.Goyal deposed that the Organo Phosphorus Insecticides are multiple and the FSL result did not point out the specific poison (which compound of Organo Phosphorus Insecticide). Thus according to PW-1 the report was not complete. Though Dr. K. Goyal is silent in his testimony about the fact that he told so to the IO on seeing the report dated 26.08.02 when the same was presented before him but in this regard the statement of SI Madan Lal (PW-9) cannot be disbelieved much more for the reason that no manipulation has been found in the FSL report.
16. The defence has not put any question to Dr. K.Goyal as to whether any symptom of Organo Phosphorus Insecticide poisoning were found by him on the body of the deceased. Report dated 26.08.02 and the clarification dated 17.09.02 were placed before doctor for opinion. In my view, it was inappropriate on his part not to give any opinion with regard to the cause of death on the basis of the clarification dated 17.09.02 from the FSL. In fact he should have left it to the Court to decide about the genuineness or otherwise of the FSL result and should have given his opinion with regard to the cause of death relying upon the letter of FSL dated 17.09.02. Be as it may though the doctor did not give any opinion but the viscera report proves that it was a case of Organo Phosphorus Insecticide poisoning. The particular group of Insecticide has not been identified but still the report is sufficient to prove that it was a case of death which occurred otherwise than under normal circumstances.
17. The learned counsels of accused have argued that the name of Ashok Rathi is not mentioned in the statement of the father of the deceased FIR No. 216/02 20 of page 49 dated 30.05.2002 and his name was introduced for the first time in the second statement dated 04.06.2002 as an afterthought. It is argued that the allegations of dowry related harassment are vague and no demand was ever made for dowry. It is submitted that only deceased was living with accused Prashant Rathi in Delhi and rest of the family was residing in Dehradun and that complainant has deliberately deposed that unmarried sister Prachi Rathi was living in the house of accused Prashant Rathi with a view to falsely implicate her. It is submitted that letter dated 17.03.2002 is a forged letter, inasmuch as, the said letter was produced before the IO for the first time on 12.07.2002 and the original letter was not produced before the IO and was produced for the first time in court during the testimony of PW-3. It is stated that the handwriting of Poonam Rathi was not given for comparison with the writing on the letter dated 17.03.2002. It is further submitted that the alleged letter of the deceased also proves that there was no harassment on account of dowry demand. The learned counsels have also argued that the photographs of the first marriage anniversary and Godh Bharai prove that both the families were happy and enjoying cordial relationship and there was no dispute amongst them and therefore the allegations made after the death of the deceased are an afterthought and motivated.
18. The learned Additional PP assisted by the learned counsel of the complainant, however, has argued that prosecution witnesses, in particular, PW-3 Brij Bhushan and PW-6 Smt. Harbiri have proved that deceased was subjected to harassment on account of dowry demand and to compel her to terminate the pregnancy due to which she committed FIR No. 216/02 21 of page 49 suicide. It has been submitted that despite lengthy cross examination of the witnesses, nothing material has come out on record which can help the accused. With regard to letter dated 17.03.2002, it has been argued that original letter has been produced in court by the father of the deceased and he is the best person to identify the writing on the letter and therefore the letter cannot be disbelieved merely because the admitted handwriting of the victim was not produced for comparison.
19. Admittedly, no complaint regarding dowry demand or harassment was made either by the victim or by her parents to the police during her lifetime. Exbt. PW-3/C dated 30.05.2002 is the first statement given by Sh. Brij Bhushan Verma before the SDM after the death of his daughter. He is the only relative of the deceased whose statement was recorded by the SDM. The said statement is silent about any demand prior to the marriage or even at the time of marriage. As per the said statement, the allegation of harassment on account of demand is only against accused Prashant Rathi. There is no allegation of any dowry related harassment against accused Ashok Rathi, Aruna Rathi and Prachi Rathi. The only allegation against them are that they were harassing her to pressurize her to abort the child and for this reason, they did not like that Poonam should meet her parents. Brij Bhushan Verma only suspected that his son in law Prashant Rathi, mother in law Aruna Rathi and Nanad Prachi Rathi were responsible for her death. After putting his signatures on the aforesaid statement, Brij Bhushan Verma further stated that his daughter was unable to learn computer and this was also the reason for her harassment. He further stated that except this, he has nothing further to say. PW-3 again visited the SDM office on 04.06.2002 and made request FIR No. 216/02 22 of page 49 for getting his statement recorded on the premise that on 30.05.2002, he was mentally tense because of his daughter‟s death and in the said statement for the first time, he stated that Ashok Rathi was also responsible for the death of Poonam as he used to harass Poonam for getting her abortion done. Brij Bhushan Verma gave a statement under Section 161 Cr. PC before the police on 04.06.2002 which is verbatim of the statement made before the SDM on the same day. He gave yet another statement dated 12.07.2002 under Section 161 Cr. PC stating therein that Prashant Rathi, his father Ashok Rathi, mother Aruna Rathi and sister Prachi Rathi were harassing his daughter and did not provide her food and taunted her that she does not know the cooking. In the said statement, he also stated that accused persons asked her to bring cash and a Maruti car from her parents and in this regard, his daughter Poonam wrote a letter dated 17.03.2002 to him.
20. Let me now analyse the statement made by Brij Bhushan Verma in court in the light of the statements made before the SDM and the police. While appearing as PW-3, he deposed that his daughter Poonam got married with accused Prashant Rathi on 11.02.2001. After marriage, her daughter started living in Meerut in her matrimonial home. She stayed there for about 4-5 days. Since she was studying in B.A. Final Year and had to appear in the final exams in the month of March-April 2001, she came to her parents‟ house at Meerut to appear in her final year examination. She remained with him till April 2001. Thereafter, accused Prashant took her to a rented one room set at Laxmi Nagar where they lived till June 2001. Thereafter, they shifted to another rented house in Shakar Pur. Accused Prachi started living with his daughter in the said FIR No. 216/02 23 of page 49 house. The difference between them started arising because Prachi did not like the simple culture of his daughter and used to taunt her as "backward." She poisoned the mind of accused Prashant and they both started harassing his daughter. He further deposed that accused Prashant was earning Rs. 5000/- - 6000/- per month which were not sufficient for them and therefore he supported them financially and also used to send grocery items to them. He had also arranged utensils for them. He deposed that because of tortures of accused Prashant and Prachi, in the month of December 2001, he took his daughter to Meerut but after 10-15 days, Ashok Rathi took her back to her matrimonial home in Delhi assuring him that they will keep her well and she would not be harassed any more. Despite this, the behaviour of accused persons remained the same and in the last week of January 2002, his daughter told him on telephone that she was not feeling secured in the company of accused Prashant Rathi while living with them in Delhi and therefore he took her to his house. On the occasion of the first wedding anniversary, she asked him to leave her at her house at Delhi and therefore on her request, his wife dropped her at her house in Delhi. By that time, his daughter was pregnant. This fact came to his notice in the month of March 2002. When the accused persons came to know about the same, they started pressurizing her to go for abortion, particularly accused Ashok. He stated that his daughter was not willing to terminate his pregnancy. On 17.03.2002, accused Ashok came to Delhi and pressurized her for abortion and on refusal, accused Ashok hurled abuses in filthy language to his daughter. She wrote a letter Exbt. PW-3/B to him narrating the whole incident. Accused Ashok Rathi had severely beaten his daughter on refusal for abortion. She somehow managed to rescue herself from the clutches of the accused persons and made FIR No. 216/02 24 of page 49 telephone call to him and informed about the incident. She also told him "Yeh Mujhe Zinda Nahin Chhodenge, Isliye Mujhe Turant Le Jao". On receiving this information, he along with his wife Harbiri, Dal Singh, (mediator of the marriage) and R.S. Rana came to the house of his daughter and on his enquiry as to what was going on, accused Ashok became infuriated and asked him as to why he was interfering. He took his daughter to Meerut and got her checked from Dr. Abha Sharma. PW-3 produced the copies of medical treatment record which were seized by the police vide memo Exbt. PW-3/A. He further deposed that in the month of May, accused Ashok came to take his daughter assuring that they will not harass her and keep her well but he refused. Accused pressurized him through other persons to send his daughter to her matrimonial home. Thereafter on 20.05.2002, he dropped his daughter at her matrimonial home with some gifts including a folding bed. He stated that on 23.05.2002, the birthday of accused Prachi was celebrated in which his daughter prepared food for 30 guests. On 29.05.2002, he received a telephone call of accused Prashant Rathi that Poonam wants to talk with her mother. He talked to his daughter who told him that she was sweating, shivering and could not get up and was not in a position to move. He then asked Prashant as to why Poonam was not being taken to the doctor upon which he informed him that he got her checked up a day before yesterday and cannot get her treated everyday. At about 12.00 midnight, he received a telephone call from accused Ashok that the B.P. of his daughter has gone down and she was admitted in Walia Hospital. On receipt of this information, he came to Delhi in the car of his brother in law Mahender Singh and reached Walia Hospital where he was informed that Poonam was brought dead at the hospital. He stated that he went to the office of FIR No. 216/02 25 of page 49 SDM and narrated him the incident and his statement Exbt. PW-3/C was recorded by the SDM. He further stated that next day i.e. 04.06.2002, he gave yet another statement to the SDM which is Exbt. PW-3/D. He further deposed that at the time of marriage of his daughter, Rs. 1 lakh was given to Ashok Rathi on his demand as he was saying "Phere Tabhi Honge Jab Do Lakh Rupaye Milenge." He handed over the list of dowry articles to the police which was seized vide memo Exbt. PW-3/A. He further stated that he had handed over two bank drafts Mark D & E to accused Prashant. He stated that in his supplementary statement, he stated that accused Ashok Rathi, Aruna Rathi, Prashant Rathi and Prachi Rathi had tortured his daughter.
21. PW-3 was declared hostile and was cross examined by the learned Additional PP and in the said cross examination, he admitted that on 12.07.2002, he had told the police that accused Prashant Rathi, Aruna Rathi, Ashok Rathi and Prachi Rathi used to harass his daughter and even she was not provided food and all of them used to taunt her that she does not know how to cook food. He admitted that he had also stated in the said statement that accused persons also asked his daughter to bring money and one Maruti car from her parents and that as per his capacity, he used to give money to accused persons time to time.
22. A perusal of the testimony of PW-3 Brij Bhushan reveals that there are only two specific instances of dowry related harassment of Poonam Rathi by accused Ashok Rathi, Aruna Rathi and Prachi Rathi. The first instance pertains to demand raised at the time of Phera ceremony. According to him, at the time of Phera ceremony, accused Ashok Rathi FIR No. 216/02 26 of page 49 made demand of Rs 1 lakh. No such allegation has been made by PW-3 in either of the statements made before the SDM or before the police. The learned Additional PP has argued that the said allegation finds corroboration from the testimony of PW-6 Harbiri Verma. As per the testimony of PW-6 Harbiri Verma, all the accused persons namely Prashant Rathi, Aruna Rathi, Ashok Rathi and Prachi Rathi had made demand prior to Phera ceremony and the demand was for Rs. 2 lacs cash and not Rs. 1 lakh as stated by PW-3. Thus, the testimony of PW-3 Brij Bhushan Verma not only contains material improvement but is also in contradiction with the testimony of PW-6 Harbiri Verma with regard to the amount of cash demanded and the name of accused who demanded the same. PW-3 met the prosecution case for the first time before the court and therefore such version lacks credence and is liable to be discarded. In taking this view, I am supported by the judgment of Hon‟ble Supreme Court in the case of State represented by Inspector of Police, Tamil Nadu Vs. Sait @ Krishna Kumar (2008) 5 SCC 440. PW-8 Dal Singh is the mediator of marriage between Prashant Rathi and Poonam. He deposed that he had attended the marriage. He is silent about the demand of Rs. 1 lakh - 2 lakhs made by the accused persons at the time of phera ceremony. Thus, there is no corroboration of the fact that any such demand was made either by accused Ashok Rathi or by other accused at the time of phera ceremony.
23. The second instance with regard to the dowry demand against all the accused is that they asked Poonam Rathi to bring money and Maruti car from her parents but the said evidence is by way of affirmation of suggestion made in cross examination conducted by the learned Additional FIR No. 216/02 27 of page 49 PP. Even such an averment is vague, inasmuch as, it is not specified when and where such a demand was made by the accused persons. It is not specified as to how much cash was demanded. If any such demand was made, then PW-3 would have stated so in his statement before the SDM. His wife Harbiri Verma would have also deposed about the same. There is not even a whisper of such allegation in the testimony of PW-6 and therefore the same is also not corroborated.
24. If the prosecution case is to be believed, the deceased during her lifetime sent a letter dated 17.03.2002 Exbt. PW-3/B to her parents from her matrimonial home. Though, the accused persons are challenging the authenticity and genuineness of the said letter, it may be seen that in the letter Exbt. PW-3/B, there is no reference of any demand of dowry by the accused nor is there any reference of harassment on account of dowry. Had there been any such demand by the accused, the deceased would have certainly commented about the same in the said letter. This creates serious doubt about the veracity of version of PW-3 and PW-6 regarding the harassment of the deceased by her husband and other accused persons on account of dowry demand. In a similar case bearing title Shailender Vs. State of NCT of Delhi Criminal Appeal No. 295/2009 and Braham Singh and Anr. Vs. State Criminal Revision No. 296/2009, relying on two personal notes of the deceased, Hon‟ble High Court held that ocular version of witnesses cannot be preferred as against the personal notes of the deceased wherein there is no mention of demand of dowry by the appellants or harassment of the deceased by them on account of demand of dowry. Appellants were acquitted by the Hon‟ble High Court.
FIR No. 216/02 28 of page 49
25. In Sunil Bajaj Vs. State of M.P. reported in (2009) 9 SCC 417, Supreme Court preferred to place reliance on the letters written by the deceased to her parents soon before her death as against the vague and inconsistent statements of her parents and brother. In the said case also, no reference was made by the deceased regarding her harassment on account of demand of dowry in her letters; whereas brother and parents made statements regarding harassment of deceased on account of dowry. In Para 10 of the judgment, it was observed as under:-
"As can be seen from this document on which much reliance is placed by both the Courts, there is absolutely nothing to indicate about the demand of dowry and there is not even a whisper about the same. If Suman was pressed by her husband to get money and if that was the cause for her sadness or difficulty, she could not have missed to write about the same, that too having written about the bad work of appellant and his bringing girls to the house. With this evidence on record it is clear that -
(i) There is no evidence of demand of dowry or subjecting Suman to cruelty for, or in connection with dowry other than general, vague and inconsistent statements of interested and motivated witnesses PWs 4, 5 and 6, being the parents and brother of Suman;
(ii) Not a single member, neighbour or a relative of parties either at Bhopal or at Saharanpur has come FIR No. 216/02 29 of page 49 forward to speak about subjecting Suman to cruelty by the appellant in relation to demand of dowry;
(iii) It is the evidence of PWs 4, 5 and 6 that Suman had telephoned on 27.08.1995, a day earlier to her death; PW-4, mother of Suman had talked on telephone in the house of neighbour; Suman told her that she was very much disturbed on account of two girls brought to her house who beat her; at that time also Suman did not tell her mother PW-4 about demand of an amount of Rs. 20,000/- by the appellant; neither the neighbour, in whose house PW-
4 received the telephone call, was examined nor any document was produced such as the telephone bill etc to show that at least there was a call on that day at that time from the telephone number from which Suman talked to her mother PW-4 on telephone number in the house of neighbour; Suman talking on telephone with PW-4 on that day itself is not proved;
(iv) It has come in the evidence of these witnesses that the appellant and his family members were well placed financially and the parents of Suman have big family, were not that comfortable financially;
(v) There was no demand of dowry at the time of marriage in 1991. Two children were born to them.
There was no complaint of demand of dowry even in the letter Exbt. PW-D/3 dated 09.03.1995 written by FIR No. 216/02 30 of page 49 Suman to her father and brother. Similarly, no mention was made about demand of dowry in her letter Exbt. PW-P/9, said to have been written soon before her death.
(vi) There is no evidence as to how father of Suman arranged money of Rs. 20,000/- or 10,000/-;
(vii)PW-4 did not tell PW-5 after receiving telephone call from Suman on 27.08.1995 that any amount was demanded by the appellant. Even so PW-5 states that he had carried with him Rs. 10,000/-. The High Court says that oral evidence of these witnesses PWs 4, 5 and 6 is inconsistent with Exbt. P/9. As already noticed above, in Exbt. P/9 there is nothing to show about demand of dowry/amount;
(viii) There are material contradictions and serious omissions in the statements of PWs 4, 5 & 6, as can be seen from their evidence;
(ix) The conduct of the appellant bringing girls of bad character to his house and those girls troubling Suman appear to be the cause of her misery. From the evidence brought on record that Suman was subjected to mental cruelty on account of the same is clear but there is nothing to establish that this mental cruelty was for and in connection with demand of dowry; may be Suman could not withstand and tolerate conduct of her husband of being in the company of other girls of bad character and may be FIR No. 216/02 31 of page 49 on account of the same, she has put an end to her life;
(x) PWs 4, 5 & 6, on account of Suman having died of burns obviously, were angry against the appellant and had every reason to involve the appellant for the offence under Section 304-B IPC."
26. PW-3 Brij Bhushan Verma had also deposed that accused Prashant Rathi was earning Rs. 5000/- - 6000/- per month but the said amount was not sufficient for them and therefore he used to support them financially and used to send even grocery items to them and arranged utensils for them. PW-3 also deposed that he had given money to Prashant Rathi by way of two bank drafts which are Mark D & E. PW-3 has not stated that the grocery items and demand drafts were given on the demand made by Prashant. The demand draft Mark D is in the name of Ravish Computers Pvt. Ltd. which was later on changed to the name of Prashant Rathi. The demand draft Mark E of Rs. 20,000/- is in the name of Prashant Rathi. PW-15 has proved that the demand drafts were issued from Sector- 2, Shastri Nagar branch, Meerut of PNB but no document has been brought on record to show that the amount of the draft was transferred to the account of Prashant Rathi. Assuming for the sake of arguments that PW-3 used to render financial help by sending grocery items and arranging utensils to accused Prashant Rathi and he rendered financial help by giving him two drafts of Rs. 20,000/- and Rs. 3,000/- on two different occasions without any demand from the side of the accused, the same would not fall within the definition of "dowry" as provided in Section 2 of the Dowry Prohibition Act. In the case of Appasaheb and Anr. Vs. State of FIR No. 216/02 32 of page 49 Maharashtra AIR 2007 Supreme Court 763 (1), the Hon‟ble Court held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses cannot be termed as a demand for dowry as the said word is normally understood. The Hon‟ble Court held that being a penal provision, the word "Dowry" has to be strictly construed. The present case rather stands on a better footing, inasmuch as, there is no averment in the testimony of PW-3 that grocery items, utensils and drafts were given pursuant to any demand from accused Prashant Rathi and therefore the financial help rendered by PW-3 on account of weak financial condition of accused cannot be regarded as "meeting the dowry demand of accused."
27. PW-6 Harbiri Verma did not give any statement before the SDM, though being present there. She gave her statement under Section 161 Cr. PC before the IO on 06.06.2002 and 12.07.2002 which is also the day when the statements of PW-3 were recorded by the IO. PW-6 deposed that at the time of phera ceremony, all the accused persons demanded cash of Rs. 2 lakhs and that they arranged Rs. 1 lakh. However, the said statement does not find corroboration from the testimony of PW-3 as according to him, only Ashok Rathi made the demand and that too of Rs. 1 lakh. As discussed above, PW-3 had not stated about the demand of money before phera ceremony in his statement before the SDM or in his statement given to IO under Section 161 Cr. PC. PW-6 deposed that after 3-4 months of the marriage, accused persons started harassing her daughter and compelled her to bring the balance amount of Rs. 1 lakh as they told her that they were unable to meet their expenses and accused Prashant Rathi was unemployed and was not working anywhere and they FIR No. 216/02 33 of page 49 wanted to settle him. However, in the testimony of PW-3, there is no whisper of any such allegation. In fact, there is contradiction in the testimonies of two witnesses, inasmuch as, PW-3 stated that Prashant Rathi was earning Rs. 5000/- - 6000/- per month but PW-6 stated that he was unemployed and was not earning anything. PW-6 stated that accused persons told her daughter that if her parents were not in a position to arrange the balance money, then they may sell their house to arrange the money. This fact also does not find any corroboration from the testimony of PW-3, who is silent about the same. The testimony of Harbiri Verma shows that the demand after marriage was in fact in continuation of demand at the time of marriage which was partially met. The allegation with regard to the demand at the time of marriage has been found to be doubtful. The version of Harbiri with regard to dowry related harassment is not corroborated by her husband. There are notable improvements in her testimony to rope in all the accused persons.
28. The other witnesses relied upon by the prosecution to prove the harassment on account of dowry demand are Alok Kumar (PW-
4), Dal Singh (PW-8), Sudhir Sharma (PW-10) and Vinay Kumar (PW-12).
29. PW-8 Dal Singh had attended the marriage of accused Prashant Rathi but there is no whisper of allegation in his testimony with regard to the demand of Rs. 2 lakhs or Rs. 1 lakh as the case may be at the time of phera ceremony. Thus, his testimony contradicts the testimonies of PW-3 and PW-6. PW-8 Dal Singh deposed that after marriage, he came to know from Brij Bhushan that the family of the boy was demanding Rs. 2 lakhs more in dowry. In cross examination, he stated FIR No. 216/02 34 of page 49 that he had stated this fact in his statement before the police but he was confronted with his statement under Section 161 Cr. PC Exbt. PW-8/DA, where this fact is not so recorded. Another statement of significance made by him is that on 13.03.2002 when he along with Brij Bhushan and R.S. Rana went to the house of Prashant and Poonam in Delhi, there Poonam told them that Prashant and his family only love money but this fact is not corroborated by PW-3 Brij Bhushan Verma, inasmuch as, he is silent as to if Poonam stated anything like this to them. In cross examination, PW-8 could not tell the address of the house of Prashant. He could not tell whether it was a single storey house or a four storeyed house. He could not tell if there were other tenants also residing in the same premises or not. He could not tell if the landlord of the house was living in the same complex. Though in examination in chief he claims having gone to the house of accused Prashant Rathi with the father of the deceased but in cross examination he affirms the suggestion that he was not aware of anything with regard to this case prior to 06.06.2002. According to PW-8, the grandmother of Prashant was also present in the house on 17.03.2002 when they reached there, which fact contradicts the testimonies of the parents of the deceased who do not talk about the grandmother of Prashant Rathi being present on 17.03.2002. According to PW-8, Prashant Rathi, Aruna Rathi, Prachi Rathi and grandmother of Prashant demanded Rs. 1 lakh as dowry stating that this amount was not paid to them at the time of phera ceremony. This is the version only of PW-8 and not what the parents of the deceased had witnessed because according to them, the only issue was the termination of pregnancy. The testimony of PW-8 that after marriage he came to know from Brij Bhushan that the family of the boy was demanding Rs. 2 lakhs more in dowry is also an improvement as FIR No. 216/02 35 of page 49 he made no such statement before the IO. Thus, the testimony of PW-8 contains vital improvements and omissions and is not consistent with the statements made by the parents of the deceased and is therefore not reliable.
30. According to PW-10 Sudhir Sharma, after every 15-20 days, his employer Harmohan used to send him to Shakar Pur to deliver eatables in the car from Meerut. It has not come in the evidence of PW-3 or PW-6 that the eatables were being sent to the house of Poonam after every 15-20 days. In cross examination, he stated that the articles which he had brought for the last time to the house of Poonam, comprised of dal, sugar, refined oil and soap etc. It is improbable that the aforesaid goods, which were not of much value, would have been sent every 15-20 days in car from Meerut thus incurring a lot of expenditure on petrol in transportation of goods from Meerut to Shakar Pur. PW-10 stated in cross examination that he visited the house of Poonam about 1 - 1 ½ months prior to her death. It is also improbable since Poonam was admittedly in Meerut from 17.03.2002 till 20.05.2002. Thus, the testimony of PW-10 is also of no help in establishing the dowry demand.
31. The only statement of significance in the testimony of PW-12 is that on 29.05.2002, he had visited the house of Poonam where Poonam and her sister in law Prachi were present in the house. He noticed that Poonam was a little bit nervous and was not feeling well but her condition was not such bad that she could die. In cross examination, he admitted that he had not stated this fact in his statement before the IO and therefore the same is a marked improvement from the statement made before the IO and FIR No. 216/02 36 of page 49 therefore cannot be relied upon. Another surprising fact to note is that the visit of PW-12 to the house of Poonam was not known to her parents and they are totally silent in their statements as also in their testimonies in court in this regard. His version that he found Poonam to be nervous is absent in his statement under Section 161 Cr. PC. He accepted having not stated to the police that Poonam was not feeling well and that her condition was not such bad that she could die. The inference therefore is that PW-12 never came and met Poonam in Delhi on 29.05.2002 and he is a planted witness.
32. If PW-4 Alok Kumar is to be believed, he had visited the house of his maternal uncle 2-3 months prior to Raksha Bandhan in the year 2001 when Poonam told him about her harassment by the accused persons. Raksha Bandhan usually falls within the month of August meaning thereby that PW-4 met Poonam sometimes in May/June 2001 i.e. within a period of 3-4 months after the marriage of Poonam. It appears that PW-4 has lied, inasmuch as, according to the parents of the deceased, the relationship was cordial for 7-8 months after marriage. Applying the same reasoning, it appears most unlikely that in August 2001 while the relations were cordial, Prachi would have thrown away the sweets brought by PW-4 on the occasion of Rakhi.
33. Section 113-B of Indian Evidence Act, 1872 reads as under:-
"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 FIR No. 216/02 37 of page 49 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 purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).
34. In the case of Kamesh Panjiyar alias Kamlesh Panjiyar Vs. State of Bihar AIR 2005 supreme Court 785 (1), the Hon‟ble Supreme Court held that a conjoint reading of Section 113-B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the „death occurring otherwise than in normal circumstances.‟ The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression „soon before‟ is not defined. A reference to expression „soon before‟ used in Section 114 illustration (a) of the Evidence Act is relevant. It lays down that the court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term „soon before‟ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the FIR No. 216/02 38 of page 49 expression „soon before‟ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
35. In the case of Satvir Singh Vs. State of Punjab (2001) 8 SCC 633, the Hon‟ble Court held that it is not enough that harassment or cruelty was caused to the woman with a demand for dowry at sometime, if Section 304-B is to be invoked. But it should have happened "soon before her death." The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval which elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon FIR No. 216/02 39 of page 49 before her death."
36. On co-relation of the testimonies of PW-3, PW-6 an PW-8, it is found that there are inconsistencies , contradictions and vital improvements with regard to the allegation of harassment on account of dowry demand and it does not stand proved that there was any dowry demand "soon before her death" or that Poonam was subjected to cruelty because of the said demands and the non-fulfillment thereof. As such, offence under Section 304-B IPC does not stand proved against any of the accused persons.
37. It is a settled law that Section 304-B IPC and Section 498-A IPC cannot be held to be mutually inclusive as these provisions deal with the two distinct offences, though cruelty is common essential to both the Sections. Since the demand of dowry and deceased being subjected to cruelty in this regard prior to or after marriage and even soon before the death has been completely ruled out, the court has now to examine whether the prosecution has been able to prove any other form of harassment so as to attract Section 498-A IPC.
38. The learned Additional PP has argued that there is sufficient evidence to prove that deceased was subjected to harassment with a view to pressurize her to terminate her pregnancy. The learned Additional PP strongly relies on the letter dated 17.03.2002 of the deceased in this regard. The learned defence counsels have argued that no complaint was FIR No. 216/02 40 of page 49 made either to the police or any other authority regarding any harassment allegedly meted out to Poonam. She was never taken to any doctor for any check up regarding any form of torture or harassment caused to her by her in-laws. On none of the occasions when Poonam went to consult the doctor, she gave any history of physical torture inflicted upon her by her in- laws. It is also submitted that letter dated 17.03.2002 was not produced before the SDM. The original letter was not produced before the police during investigation and only the photocopy of the same was handed over to the police after several months and the original letter saw the light of the day only at the time of trial. It is further submitted that the place from where the letter was posted is not Delhi. No specimen handwriting or signatures of deceased Poonam were made available by her parents to enable the prosecution to determine as to whether the said letter was allegedly written, signed or sent by Poonam and therefore prosecution has failed to prove that the alleged letter was written and sent by Poonam. It is argued that the parents of the deceased being conscious of the fact that the allegations made by them to nail the accused under Section 304-B IPC were false and would be unable to stand the test of judicial scrutiny, created this piece of evidence to somehow get the accused persons roped in for the offence under Section 498-A IPC. It has also been argued that ever since 17.03.2002 when Poonam was taken to her parents house, she remained in Meerut and never returned back at her matrimonial home. It is further stated that the mother of the deceased categorically deposed that her daughter Poonam was continuously under treatment at Meerut since January 2002 for 4-5 months. However in order to cover up the fact that Poonam was at her parental home on 29.05.2002 and had been brought to Delhi by her parents at Walia Nusring Home, a story has been concocted FIR No. 216/02 41 of page 49 by her parents that she was brought back at her matrimonial home at Delhi on 20.05.2002. It is submitted that Prachi‟s birthday was celebrated in Meerut on 23.05.2002 and the same was attended by the parents of Poonam but PW-3 deliberately deposed that the birthday celebrations were of the previous year i.e. of 23.05.2001. It is further submitted that PW-3 talks of celebration of Prachi‟s birthday on 23.05.2002 in his examination in chief but remains silent as to where it was celebrated. It has been further stated that PW-3 had the audacity to deny the photographs of Godh Bharai of Poonam and gave it a colour of ring ceremony. It is argued that the photographs of Godh Bharai ceremony proves that accused were happy on coming to know about the pregnancy of Poonam and therefore the question of harassing her for terminating her pregnancy does not arise.
39. PW-3 Brij Bhushan in his examination in chief has deposed that in the month of May, accused Ashok came to him to take back his daughter assuring him that they will not harass her and will keep her well but he refused. Thereafter he was again pressurized by accused Ashok through the persons known to him to send his daughter to matrimonial home and hence on 20.05.2002, he dropped his daughter at her matrimonial home.
40. PW-11 Dr. Vipin from Walia Nursing Home has proved the MLC of Poonam Rathi as Exbt. PW-11/A. Following note has been made by the doctor in the MLC:-
"Patient brought to the emergency by Mr. Prashant Rathi (husband) at 11.00 pm. History received from husband."
FIR No. 216/02 42 of page 49 The learned defence counsels have submitted that the original record of Walia Nursing Home pertaining to the MLC has not been produced and that the said note on the MLC has been recorded at the instance of the parents of the deceased. However, the defence plea is not acceptable, inasmuch as, the MLC Exbt. PW-11/A is the original MLC placed on record and there is no reason to disbelieve the endorsement made by the doctor on the MLC. No suggestion has been given to Dr. Vipin (PW-11) that the aforesaid endorsement in the MLC has been made at the behest of the parents of the deceased. Therefore, on the basis of the MLC, it is proved that on 29.05.2002, deceased was brought to Walia Nursing Home by none else but accused Prashant Rathi and thus it stands proved that on 29.05.2002, Poonam was at her matrimonial home in Delhi and therefore the testimony of PW-3 that he had left Poonam in Delhi on 20.05.2002 cannot be disbelieved.
41. Admittedly, PW-3 had not given the copy of letter dated 17.03.2002 to the SDM. Admittedly, the original letter Exbt. PW-3/B was not handed over to the IO during investigation. It is also correct that the admitted handwriting of Poonam was also not given for comparison. PW-3 offered explanation for not giving the original letter to the IO. According to him, he had no faith in SI Labh Singh. The learned defence counsels have argued that 17.03.2002 was Sunday and therefore no letter could have been posted on that day. This submission of the learned defence counsels is also not acceptable as the letters can be posted even on Sundays. The defence has taken the plea that though the letter was posted from Delhi but the envelop bears the stamp of Shastri Nagar, Meerut Post Office.
FIR No. 216/02 43 of page 49
42. If a letter is posted from Delhi to Meerut, it should bear the stamps of the post office of the area from which it is posted as also the post office of the area of the sendee. The envelop Exbt. PW-9/DX1 in which the letter dated 17.03.2002 Exbt. PW-3/B was sent by post, bears two stamps on the front, one stamp is of LLPM Medical College which is stated to be situated in Meerut. The other stamp is however not legible. There is also a dull impression of the stamp on the backside of envelop Exbt. PW-9/DX1, which is also not legible. There is a possibility that one of the said two impressions may be of the some post office from Delhi from where the letter was dispatched and therefore the statements made by PW-3 and PW-6 that they received the letter Exbt. PW-3/B from their daughter cannot be disbelieved merely because of the reason that the envelop does not bear the stamp of Delhi Post Office.
43. In cross examination, PW-9 SI Madan Lal Meena stated that Brij Bhushan did not give any handwriting of Poonam. Thus, the letter Exbt. PW-3/B has not been sent to FSL and there is no confirmation of the handwriting from expert. In the case of Ajay Kumar Yadav Vs. State 2013 (2) JCC 912, appellant had contested the letters of the deceased on the ground that they were not sent to FSL expert for verification of the handwriting of the deceased. The letters were exhibited by the father of the deceased. He had identified that the suicide note was in the handwriting of his daughter and was duly signed by her. The Hon‟ble High Court held that since the handwriting and signatures were identified by her family members who were acquainted with the handwriting of the deceased, it was not essential to get the same examined by a forensic expert. In the present FIR No. 216/02 44 of page 49 case also, it is the father of the deceased who produced the copy of letter (Exbt. PW-3/B) before police and also produced the original letter before the court claiming the same to have been sent by his daughter by post and therefore under these circumstances the failure of the police to get the letter examined by forensic expert is not fatal to the prosecution case.
44. PW-3 has categorically deposed that ever since the fact of the pregnancy of Poonam came to the knowledge of the accused persons in March 2002, they started pressurizing her for abortion, particularly Ashok but his daughter was not willing to terminate her pregnancy. He has also deposed that on 17.03.2002, accused Ashok came to Delhi and pressurized his daughter for abortion and on refusal, he hurled abuses in filthy language to his daughter Poonam. PW-6 Harbiri Verma has also deposed that her daughter was being pressurized to terminate her pregnancy but she refused as she was not willing to abort her first child. A perusal of the letter Exbt. PW-3/B also reveals that there was tension at the matrimonial home of Poonam because she was being pressurized for abortion so much so she was not feeling secured there. However, in the said letter, there is no specific allegation against accused Prachi. Even as per the statement of Brij Bhushan Verma Exbt. PW-3/C, only the husband, father in law and mother in law wanted to terminate her pregnancy. He did not believe Prachi to be responsible for the harassment suffered by her for termination of pregnancy. Merely because Prachi was staying with Prashant Rathi and Poonam in Delhi does not make her automatically liable. In the case of Bhola Ram Vs. State of Punjab 2014 (1) Criminal Court Cases 001 (SC), the Hon‟ble Apex Court in a case under Section 498-A/304-B IPC held that merely because the family members were living FIR No. 216/02 45 of page 49 together with the deceased, it does not lead to any conclusion that each of the family members were involved in demanding dowry and also behaving in cruel or humiliating manner towards the deceased. It was further held that every member of the family may not be fully and equally guilty and the degree of involvement may differ. Prachi therefore gets the benefit of doubt. However, on the basis of the testimonies of PW-3 and PW-6 corroborated by the letter of the deceased Exbt. PW-3/B, in my view, prosecution has been able to prove that Poonam was being subjected to physical and mental cruelty in order to pressurize her to terminate her pregnancy.
45. In her statement Exbt. PW-3/C, Brij Bhushan Verma did not state that Ashok Rathi was also responsible for the death of his daughter. But the same is not fatal, inasmuch as, he has specifically stated that the husband, mother in law and father in law wanted Poonam to abort and therefore the omission of name of Ashok Rathi in the last line of the statement is of no consequence.
46. The medical record Mark B-1 to B-9 shows that Poonam was suffering from muscular degeneration of her both eyes for which she was receiving the treatment at Meerut. She was also receiving treatment from the doctor with regard to her pregnancy. The report Exbt. P-3 only provisionally suggests the possibility that Poonam was suffering from HIV-I or HIV-II infection but it had to be verified by a confirmatory test before pronouncing her "positive" case of HIV-I or HIV-II infection. There is no evidence which may confirm that Poonam was suffering from HIV infection.
The postmortem report also does not prove so. The medical FIR No. 216/02 46 of page 49
prescriptions/documents do not prove that Poonam was suffering from any such ailment due to which she got so depressed that she decided to end her life.
47. The defence is relying on some photographs to prove cordial relationship between both the families. The learned counsels have argued that the photographs Exbt. PW-3/D-1 to D-4 were taken on the occasion of birthday of Prachi on 23.05.2002 but PW-3 stated that those photographs pertain to her birthday dated 23.05.2001. Similarly with regard to the photographs Exbt. D/F-15 to 23, they are claimed to have been taken at the time of first marriage anniversary but when confronted with those photographs, PW-3 stated that those photographs pertain to the ring ceremony which took place in his house and the engagement ceremony which took place in Alexander Club prior to the marriage. Thus, on the basis of the photographs, it is not proved that the same were taken on the occasion immediately prior to the death of the victim and therefore the photographs do not prove the innocence of the accused in any manner.
48. The deceased had admittedly died within seven years of her marriage and therefore the presumption under Section 113-A of the Evidence Act also arises against the accused that suicide by deceased was abetted by them. Section 113-A of Evidence Act, 1872 reads as under:-
"When the question is whether the commission of suicide by a woman had been abetted by her husband or any FIR No. 216/02 47 of page 49 relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative or her husband has subjected her to cruelty, the court may presume, having regard to all other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband.
Explanation- For the purposes of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860)."
49. A bare reading of Section 113-A of Evidence Act shows that to attract the applicability of Section 113-A, it must be shown that (i) the woman has committed suicide (ii) such suicide has been committed within the period of seven years from the date of her marriage (iii) husband or relatives who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband.
50. It stands proved from the evidence that deceased Poonam committed suicide within a period of seven years of her marriage and FIR No. 216/02 48 of page 49 accused Prashant Rathi, Ashok Rathi and Aruna Rathi subjected her to cruelty in order to pressurize her to terminate her pregnancy for which Poonam was not ready and therefore she could not tolerate such cruelty and on account of the same, she put an end to her life and therefore presumption can safely be drawn that accused Prashant Rathi, Ashok Rathi and Aruna had abetted the commission of suicide by Poonam and therefore they are liable to be convicted under Section 306 IPC.
51. Prosecution has not led any evidence to prove the entrustment of the articles of Istridhan with the accused persons or their misappropriation by them and therefore charge under Section 406 IPC is not proved. There is also no evidence to hold the accused guilty for the charge under Section 316 IPC.
52. Hence, in view my aforesaid discussion, I am of the opinion that prosecution has been able to prove the charges under Section 498- A/306/34 IPC against accused Prashant Rathi, Ashok Rathi and Aruna Rathi but accused Prachi Rathi is given the benefit of doubt. I therefore convict the accused Prashant Rathi, Ashok Rathi and Aruna Rathi under Section 498-A/306/34 IPC but acquit the accused Prachi Rathi.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:FTC/E-COURT/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 30.08.2014.
FIR No. 216/02 49 of page 49