Delhi District Court
State vs 1. Smt Pushpa Devi on 30 April, 2013
IN THE COURT OF Sh. K.S. Pal: ASJ: KKD COURTS: DELHI
S.C. No: 196/2006
State Versus 1. Smt Pushpa Devi
w/o Ashok Sharma
r/o 29/68, Gali no 11,
Vishwas Nagar, Shahdara,
Delhi.
2. Shri Ashok Kumar Sharma
s/o Shri P.M. Sharma
r/o 29/68, Gali no 11,
Vishwas Nagar, Shahdara, Delhi.
3. Shri Deepak Sharma
s/o Shri Ashok Sharma
r/o 29/68, Gali no 11,
Vishwas Nagar, Shahdara, Delhi.
4. Shri Rajiv Mishra
s/o Shri R.A. Mishra
r/o A-37/1, East Krishna Nagar,
Delhi.
5. Jyoti Mishra
w/o Shri Rajeev
r/o A-37/1, East Krishna Nagar,
Delhi.
6. Shri Nihal Chand
s/o Shri Laxman Dass
r/o 9/33, Bazar Gali,
Vishwash Nagar, Shahdara
Delhi.
7. Smt Sita Devi
w/o Shri Nihal Chand
SC No.: 196/2006 page 1 of 18
r/o 9/33, Bazar Gali,
Vishwash Nagar, Shahdara
Delhi.
FIR No: 130/2004
P.S.: Farash Bazar
U/s. 498-A/406/307/34 IPC
Date of institution of charge sheet
before ld MM 19.05.2005
Date of committal before this court 27.05.2006
Date on which the judgment was reserved 26.04.2013
Date on which judgment has been delivered: 30.04.2013
JUDGMENT
1. All the seven accused persons namely - Smt Pushpa Devi, Ashok Kumar Sharma; Deepak Sharma; Rajiv Mishra, Jyoti Mishra; Nihal Chand and Sita Devi were arrested by the police of PS Farash Bazar in case bearing FIR No.: 130/04 and have been challaned to the Court for facing the trial for the offences punishable u/s. 498-A/406/307/34 IPC with the allegations that complainant - Rohini @ Dolly was married with accused Deepak on 23.01.1999 according to Hindu rites and customs and after her marriage complainant started living in her matrimonial home at House No. 29/68, Gali no 11, Vishwas Nagar, Shahdara, Delhi. It is alleged that after about 1½ months of her marriage, all the accused persons in furtherance of their common intention started harassing and torturing the complainant on account of illegal demands of money. Since those illegal demands of money could not be fulfilled, as such complainant was harassed, tortured and beaten on various occasions and even her dowry articles were thrown out of her matrimonial home and complainant was forced to live in rented accommodation with her husband but her harassment and torture on account of illegal demands of money continued and her dowry articles including her jewellary articles kept by accused persons SC No.: 196/2006 page 2 of 18 could not be returned and on 08.04.2004, all the accused persons except accused Ashok Kumar Sharma (father in-law) in furtherance of their common intention attempted to kill the complainant by pouring kerosene on her and by throwing burning match stick on her, but somehow she managed to escape by running into gali from the first floor of her matrimonial home. Police was informed vide DD no. 34 A dated 08.04.2004 and police reached there and statement of the complainant - Ex. PW 2/A was recorded on the basis of which ruqqa was sent for getting the case registered on the basis of which present FIR has been registered. After completion of investigation, challan was filed in the court for trial of these accused persons for the alleged offences.
2. Copies were supplied to the accused persons in the court of ld MM concerned as per Sec. 207 CrPC and then case was committed to the court of Sessions and on allocation, this case was assigned to this court.
3. Charges for the offences punishable under Section 498-A/406/34 IPC were framed against all the seven accused persons and charge for the offence punishable under section 307/34 IPC was also framed against all the accused persons except accused Ashok Kumar to which all the accused persons pleaded not guilty and claimed trial.
4. In order to prove the guilt of the accused persons for the alleged offences, prosecution has examined as many as fourteen witnesses in support of this case namely PW 1 - Shri Sohan Lal Sharma; PW 2- Ms Dolly @ Rohini, the complainant; PW 3 - Dr Sharad Vyas; PW 4 - Shri Baldhari; PW 5 - Dr. S.S. Bhagat; PW 6 - Ram Niwas; PW 7 - HC Vikram Singh; PW 8 - ASI Jag Saran; PW 9 -HC (W) Rajesh; PW 10 -Smt Krishna Devi; PW 11- Inspt. Shobha; PW 12 - ASI Khrushid; PW 13 - ASI Jai Pal Singh and PW 14 -SI Birender, IO of the case.
5. PW 1 - Shri Sohan Lal Sharma; PW 2 - Ms Rohini @ Dolly and PW 10 - Smt Krishna Devi are the material witnesses of the prosecution and these SC No.: 196/2006 page 3 of 18 witnesses deposed about the harassment, torture and beating on complainant by accused persons in order to meet their unlawful demands of money as well as dowry demands on various occasions as well as an attempt to kill the complainant (PW 2) by all the accused persons except accused Ashok Kumar by pouring kerosene on her and throwing burning match stick as a result of which she was medically examined in Dr Hedgwar Arogya Sansthan Hospital and Garg Hospital.
6. PW 1 - Sohan Lal Sharma, father of the complainant PW 2 - Rohini @ Dolly, deposed about the marriage of his daughter with accused Deepak on 23.01.1999 according to Hindu rites and customs by giving dowry items as per his capacity as well as demands of rupees one lac, two lac and five lac on different dates by accused Ashok Kumar Sharma and Deepak Sharma as well as giving of rupees one lac by him to accused Ashok Kumar (father in-law of complainant). This witness also deposed that after about six-seven months of marriage of his daughter, she was thrown out of her matrimonial home by throwing her dowry articles in the gali and thereafter his daughter was also harassed, tortured and beaten by accused persons. This witness also deposed that her daughter while staying at her parental house delivered a male child in St. Stiphen Hospital and all expenses for the same were borne by him further deposing that none of the accused had come even to see the newly born baby. This witness also deposed that he was informed about the incident of 08.04.2004 regarding the pouring kerosene on his daughter by all the accused persons in their attempt to kill her by throwing a burning match stick but somehow she managed to save herself by running and police was informed and his daughter was taken to PS Farash Bazar fromwhere she was taken to Dr Hedgwar Arogyay Sansthan Hospital and then to Garg Hospital for her treatment. This witness also deposed about the handing over of the clothes i.e. kurta, salwar and chunni of his daughter to the police which were seized vide SC No.: 196/2006 page 4 of 18 memo Ex. PW 1/A. This witness also proved the arrest memos of accused persons - Sita Devi, Pushpa Devi and Ms Jyoti as Ex. PW 1/B to D and their personal search memos as Ex. PW 1/E to G respectively bearing his signatures.
7. PW 2 - Ms Rohini @ Dolly is the complainant of this case and she deposed about her marriage with accused Deepak Sharma on 23.01.1999 according to Hindu rites and customs, her harassment and torture by the accused persons by making demands of money, turning her out of matrimonial home by throwing away her dowry articles and living with her husband at rented premises in Kaushambi, Jhilmil and Shakarpur and demands of rupees one, two and five lac and also payment of rupees one lac to accused Ashok Kumar (father in-law) by her father. Moreover, this witness also deposed about the incident of 08.04.2004 regarding pouring kerosene on her by accused persons except accused Ashok Kumar and try to kill her by throwing a burning match stick. This witness also deposed about reaching of the police at the spot, recording of her statement by the police and taking her to Dr Hedgwar Arogaya Sansthan Hospital where she was given treatment and thereafter her treatment in Garg Hospital.
8. PW 10 - Smt Krishna Devi is the mother of the complainant and she is a material witness. This witness also deposed on the same lines as PW 1 & PW 2 have deposed.
9. PW 3 - Dr Sharad Vyas proved the MLC of Rohini @ Dolly as Ex. PW 3/A prepared at Dr Hedgwar Arogya Sansthan.
10. PW 4 - Baldhari Yadav is a public witness but this witness turned hostile and he did not support the prosecution story and as such, this witness was cross examined by ld Addl PP for the State with the permission of the court.
11. PW 5 - Dr. S.S. Bhagat, Surgeon, Garg Hospital, proved the OPD card/slip of Smt Rohini @ Dolly regarding her treatment as Ex. PW 5/A at Garg SC No.: 196/2006 page 5 of 18 Hospital.
12. PW 6 - Ram Niwas is also a public witness but this witness too turned hostile and he did not support the prosecution story and as such, this witness was cross examined by ld Addl PP for the State with the permission of the court.
13. PW 7 - HC Vikram Singh accompanied the SI Birender to the spot on receipt of DD no. 34 A dated 08.04.2004 where statement of Ms Rohini @ Dolly was recorded and thereafter she was taken to Dr Hedgwar Arogya Sansthan for her treatment. This witness also deposed that SI Birender Singh prepared the ruqqa and same was got sent to the PS for getting the case registered, on the basis of which FIR of this case was registered.
14. PW 8 - ASI Jag Saran is formal IO of this case as investigations of this case were entrusted to him for the time being and later on he handed over the file for further investigations.
15. PW 9 - Head Const (W) Rajesh is a witness to the arrest of accused persons Sita Devi; Pushpa Devi and Ms Jyoti vide memos Ex. PW 1/B to Ex. PW 1/D and their personal search were also conducted vide memo Ex. PW 1/E to G respectively.
16. PW 11- Inspt. Shobha Chabra reached the spot on the day of alleged incident and filled up Form with report as Ex. PW 11/A and submitted her report to DCP (East).
17. PW 12- ASI Khursid Ali is also a formal witness who only attended a date before Hon'ble High Court of Delhi in a bail matter in respect of this case.
18. PW 13 - ASI Jaipal Singh investigated the case partially and he formally arrested the accused persons.
19. PW 14 - SI Birender is the main Investigating Officer of the case. This witness deposed about his reaching at the spot on receipt of DD no. 34 A dated 08.04.2004 and then recording the statement of complainant as Ex. PW 2/A;
SC No.: 196/2006 page 6 of 18 preparing the ruqqa and getting the FIR registered. This witness also seized the articles during investigations of this case including clothes of the complainant vide memo Ex. PW 1/A. This witness also proved the site plan - Ex. PW 14/A prepared by him in this case.
20. Statement of each of the accused persons under Section 313 CrPC has been recorded in order to give each of them an opportunity to explain the circumstances appearing in evidence against them. All these accused persons have denied the case of prosecution in toto except the factum of marriage between complainant and accused Deepak. All accused persons pleaded their innocence by submitting that no such crime was ever committed by them and even no demand of money was ever made by them. Even, all accused persons also denied the occurrence of alleged incident dated 08.04.2004. None of the accused opted to lead evidence in his defence.
21. I have heard ld Addl PP for the State duly assisted by ld counsel for the complainant and ld counsel for the accused persons. I have carefully perused the record as well as written arguments placed on record.
22. During the course of arguments, ld Addl PP for the State duly assisted by ld counsel for the complainant submitted that guilt of the accused persons for the alleged offences has been proved against all the accused persons beyond all reasonable doubts and testimony of PW 1 (Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant) and PW 10 - Smt Krishna Devi (mother of the complainant) are reliable and trustworthy and their evidence can not be disbelieved/discarded merely on the ground of minor contradictions and inconsistencies pointed by ld counsel for the accused persons. Even, it is also submitted that the incident/occurrence dated 08.04.2004 regarding the pouring of kerosene on the complainant by the accused persons and throwing a burning match stick in order to their attempt to kill the complainant has also been proved on record and from the perusal of the OPD slip Ex. PW 5/A of SC No.: 196/2006 page 7 of 18 Garg Hospital coupled with the testimony of PW 5 - Dr S.S. Bhagat, Sr Surgeon, it is established on record that the complainant had sustained grievous injuries due to reaction of kerosene. It is also submitted that to prove an offence punishable under Sec. 307 IPC, it is not essential that bodily injuries should have been there, if some overt act accompanied with the intention/knowledge has been done. Reliance has been placed in this respect on the case reported as State of MP Vs Kashi Ram & Ors [AIR 2009 SC 1642]; Sachin Jana & Anr Vs State of West Bengal [ 2008 Crl LJ 1596]; R. Prakash v State of Karnataka [AIR 2004 Supreme Court 1812] and State of Maharashtra V Balram Bama Patil & Ors [1983 Supreme Court 305].
23. Ld counsel for the accused persons, on the other hand, vehemently contended that the evidence of PW 1 -(Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant) and PW 10 - Smt Krishna Devi (mother of the complainant) is not reliable and trustworthy at all in view of the improvements and embellishments made by these witnesses while deposing before this court in comparison to their statements recorded under Sec. 161 CrPC. It is also submitted that these material witnesses have given different versions on the material points as such by whom the alleged kerosene wet clothes were handed over to the IO and time when the PW 1 - Sohan Lal Sharma and PW 10 - Smt Krishna Devi reached the spot after the alleged incident of 08.04.2004. It is also submitted that MLC/OPD card - Ex. PW 5/A prepared in Garg Hospital is a fabricated and manipulated document and it is not reliable and trustworthy as the MLC Ex. PW 3/A prepared at Dr Hedgwar Arogya Sansthan does not mention such injuries and no external injuries were found on the body of the complainant at the time of the preparation of said MLC. It is also submitted that allegations of harassment and torture on complainant by the accused persons on the ground of dowry demands are vague and unspecific further submitting that articles given by the complainant SC No.: 196/2006 page 8 of 18 party as prevailing customs do not fall within the ambit of dowry articles. It is also submitted that during their cross examination PW 1 -(Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant) and PW 10 - Smt Krishna Devi (mother of the complainant) can not give the specific date when the payment of rupees one lac was given to Ashok Kumar (father in-law of complainant) as well as demand of Rs. one, two and five lac. Even, it is also submitted that guilt of the accused persons for the offence punishable under Sec. 406 IPC could also not be proved on record by the prosecution. It is also submitted that the story of alleged incident dated 08.04.2004 regarding the pouring of kerosene on the complainant and throwing a burning match stick on her with intention to kill her is concocted and fabricated only with a view to implicate the accused persons falsely in this case and this story has been falsified from the cross examination of PW 1 -(Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant) and PW 10 - Smt Krishna Devi (mother of the complainant) who deposed differently about the alleged story. In support of his submissions, ld counsel for the accused persons has placed reliance on the cases reported as S. Gopal Reddy Vs. State of Andhra Pradesh [1997 MLR 438]; Reema Aggarwal Vs Anupam & Ors [2004 (1) CAR (SC) 97]; Sukhbir Jain & Anr Vs State [1994 (1) CC Cases 609 (HC)]; Anil Kumar Vs State of Punjab [2000 (4) Crimes 283 (SC)]; Rohstash Vs State of Haryana [2012 III AD (Crl) (SC) 365; Bhupender @ Kale Vs State [2012 (7) LRC 24 (Del)]; Neelu Chopra & Anr Vs Bharati [2010 (1) RCR (Criminal) 115]; State of NCT of Delhi Vs Rakesh & Ors [2012 (3) C.C. Cases (HC) 344]; Shiv Kumar Vs State [2012 (2) JCC 1083]; Geeta Mehrotra & Anr Vs State of UP & Anr [(2012) 10 Supreme Court Cases 741]; Kailash Gour & Ors Vs State of Assam [2012 (1) LRC 81 (SC)] and Vinod Chaturvedi Vs State of MP [1989 CC Cases 49 (SC)] in support of his submissions.
SC No.: 196/2006 page 9 of 18
24. I have bestowed my careful consideration to the rival submissions made by ld Addl PP for the State duly assisted by ld counsel for the complainant as well as ld counsel for the accused persons in the light of the facts and circumstances of the case, evidence and materials adduced on record during trial of this case as well as cases relied upon by them in support of their respective submissions.
25. The first and foremost question that arises for consideration in the present case is whether the prosecution has succeeded in proving the guilt of the accused persons for the offences punishable under Sec. 498-A/406/34 IPC.
26. During the course of arguments, ld counsel for the accused persons vehemently contended that the evidence of PW 1 -(Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant) and PW 10 - Smt Krishna Devi (mother of the complainant) who are material witnesses in this case is not reliable and trustworthy as these witnesses have made material improvements and embellishments in their depositions before the court as compared to their statements recorded under Sec. 161 CrPC as well as their failure to specify the alleged instances of harassment, torture and beating of the complainant (PW 2- Rohini @ Dolly) on ground and in connection with dowry demands and these allegations of harassment and torture are vague, general in nature, unspecific and bald and in support of this contention reliance has been placed on the cases reported as Sukhbir Jain & Anr Vs State (supra); Anil Kumar Vs State of Punjab (supra); Rohstash Vs State of Haryana (supra); Bhupender @ Kale Vs State (supra); Neelu Chopra & Anr Vs Bharati (supra); State of NCT of Delhi Vs Rakesh & Ors (supra) and Shiv Kumar Vs State (supra).
27. A careful scrutiny and analysis of the evidence of PW 1 -(Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant) and PW 10 -
SC No.: 196/2006 page 10 of 18 Smt Krishna Devi (mother of the complainant) reveals that these material witnesses have made material improvements and embellishments in their deposition before this court in comparison with their statements recorded under Section 161 CrPC and that is why these witnesses have been thoroughly cross examined and confronted with their respective statements recorded under Sec. 161 CrPC by ld counsel for the accused persons. These witnesses could not give the specific dates when rupees one lac was given to accused Ashok Sharma and Deepak Sharma and when the demands of rupees one lac, two lac and five lac were made by the accused persons. Even, these material witnesses could not give the specific dates and instances when the complainant (PW 2) was physically assaulted, harassed and beaten by the accused persons due to non fulfillment of their demands for money. Even, these material witnesses have not deposed consistently on some material points/allegations as to when and where and to whom rupees one lac was given and whether there was any dowry demand prior to the marriage. PW 10 - Smt Krishna Devi, mother of the complainant stated in her examination in-chief that her husband Sohan Lal Sharma (PW 1) along with their daughter (PW 2) had gone to the matrimonial home of complainant to pay rupees one lac to accused Ashok Sharma but PW 1 - Sohan Lal Sharma, on the other hand, has not stated that his daughter (PW 2- Rohini @) Dolly) had also accompanied him to the house of accused persons. PW 2 - Rohini @ Dolly, on the other hand, stated during her cross examination that rupees one lac was given by her father Sohan Lal Sharma to her father in-law - Ashok Sharma when later had come to her parental house. On the point of dowry demands prior to the marriage, PW 1 - (Sohan Lal- father of the complainant) and PW 2 - Rohini @ Dolly (complainant) stated that there was no dowry demand prior to the marriage but PW 10 - Smt Krishna Devi (mother of the complainant) stated that there was demand of dowry even prior to the marriage. Even, PW 1 - Sohan Lal Sharma SC No.: 196/2006 page 11 of 18 and PW 10 - Smt Krishna Devi have also deposed differently as to how and when they had received the information about the incident dated 08.04.2004n and when they had reached the spot. PW 10 - Smt Krishna Devi stated that on 08.04.2004 at about 9.30 p.m. she was informed by someone on phone about this incident and then she along with children and some neighbours reached PS Farash Bazar as her husband had already reached the spot but during her cross examination she stated that she was accompanied by her samadhi (Now deceased) and his children namely Vivek and Golu. PW 1 -Sohan Lal Sharma, during his cross examination, however, stated that he was informed by some inhabitant of the gali of the accused persons at about 7-8 p.m. and thereafter he along with his wife and son - Ranjit reached there within 15-20 minutes.
28. I have also carefully gone through the aforesaid cases relied upon by ld counsel for the accused persons regarding the unreliability of the testimony of these material witnesses on the grounds of improvements and embellishments during their deposition before the court, contradictions and inconsistencies pointed out in the evidence of these witnesses as well as non substantiating the vague, bald and unspecific allegations of harassment, torture of complainant and I find force in the submissions made by ld counsel for the accused persons that the evidence of these material witnesses is not reliable and trustworthy so as to hold the accused persons guilty for the offence punishable under Sec. 498-A/34 IPC.
29. As regards the offence punishable under Sec. 406/34 IPC, I am, however, of the view that prosecution has also failed to prove the guilt of accused persons for this offence punishable under Sec. 406 IPC because the essential ingredients to constitute the offence punishable under Sec. 406 IPC have been lacking in this case because PW 2 - Rohini @ Dolly being the complainant has neither made a clear and specific allegations regarding the entrustment of the dowry articles to a particular accused as well as their refusal SC No.: 196/2006 page 12 of 18 to those articles despite her demands in her statement Ex. PW 2/A nor she deposed so during her deposition before the court as PW 2. Mere general and vague allegations are not sufficient to hold the accused persons guilty for the offence punishable under Sec. 406 IPC. In this respect, reference can be made to the case reported as Sukhbir Chand Jain Vs State (supra) which has also been relied upon by the ld counsel for the accused persons in support of this contention. Even, the written complaint/statement dated 16.07.2004 duly signed by complainant and given by her during investigation of this case and proved on record as Ex. PW 2/B is not admissible in evidence and in this respect, reference can be made to the case reported as Vinod Chaturvedi Vs State of MP (supra) a case duly relied upon by ld defence counsel.
30. Now, coming to the question about the proving of guilt of accused persons for the offence punishable under Sec. 307/34 IPC. I have carefully perused and scrutinised the testimonies of PW 1 -(Sohan Lal- father of the complainant); PW 2 - Rohini @ Dolly (complainant); PW 3 - Dr Sharad Vyas; PW 4 - Baldhari Yadav; PW 5 - Dr S.S. Bhagat; PW 6 - Ram Niwas; PW 10 - Smt Krishna Devi (mother of the complainant) and PW 14 - SI Birender. During the course of arguments, ld defence counsel submitted that the alleged incident of 08.04.2004 regarding pouring the kerosene upon the complainant by all the accused persons except accused Ashok Sharma in an attempt to kill the complainant by throwing a burning match stick upon her is a manipulated and concocted story created by the complainant along with her parents to implicate the accused persons falsely and this alleged incident of 08.04.2004 is not believeable and trustworthy at all in view of the contradictions/inconsistencies in the evidence of the PW 1- Sohan Lal Sharma; PW 2 - Rohini @ Dolly and PW 10 - Smt Krishna Devi regarding the timing of this incident as well as their reaching at the spot and also the MLC Ex. PW 3/A of the complainant prepared at Dr Hedgwar Arogyay Sansthan. It is also submitted that the testimony of SC No.: 196/2006 page 13 of 18 PW 5 - Dr S.S. Bhagat coupled with OPD card/slip Ex. PW 5/A of complainant is not reliable and trustworthy and in the OPD card/slip nature of injuries given is also not reliable and trustworthy in view of the MLC Ex. PW 3/A coupled with the testimony of PW 3 - Dr. Sharad Vyas. A careful perusal of the testimony of PW 1 - Sohan Lal Sharma and PW 10 - Smt Krishna Devi reveals that both these witnesses have deposed inconsistently regarding the time when they received the information regarding this incident of 08.04.2004 as well as their reaching at the spot and also about the handing over the clothes of the complainant to police. While PW 10 - Smt Krishna Devi stated that on 08.04.2004 at about 9.30 p.m. she was informed by someone on telephone about this incident and she along with her children and some neighbours reached at PS Farash Bazar as her husband had already reached the spot but during cross examination, this witness namely PW 10 - Smt Krishna Devi stated that she was accompanied by her Samadhi (now deceased) and his children namely Vivek and Golu. PW 1 -Shri Sohan Lal, on the other hand, stated during his cross examination that he was informed about this incident of 08.04.2004 by one of the habitants of the gali of the accused persons at about 7/8 p.m. and thereafter he along with his wife and son Ranjeet reached the spot within 15-20 minutes. Similarly, PW 1 - Shri Sohan Lal in his examination in- chief stated that clothes of her daughter were handed over to the police by him but during his cross examination he stated that clothes were not handed over by him personally and these might have been given to the IO by his daughter. PW 10 - Smt Krishna Devi, on the other hand, deposed that clothes of her daughter were given to him by her daughter while PW 14 - SI Birender (IO of the case) stated that clothes were given to him by father of the complainant and these were seized vide memo Ex. PW 1/A. Even, PW 14 - SI Birender, during his cross examination, admitted that these clothes were not sent by him to FSL for obtaining FSL report. PW 2 - Smt Rohini @ Dolly during her cross SC No.: 196/2006 page 14 of 18 examination stated that accused Rajiv Mishra had come to her house on 08.04.2004 at about 9/9.15 p.m. on his motor cycle and she left with Rajiv Mishra on his motor cycle to her matrimonial home and when she reached at first floor of her matrimonial home, she was dragged by her mother in-law and all the accused persons caught her and kerosene was poured on her and burning match stick was thrown on her but somehow she managed to escape and came down in the gali crying bachao - bachao. It is thus apparent that PW 1 - Sohan Lal Sharma; PW 2- Rohini @ Dolly and PW 10 - Smt Krishna Devi have deposed differently about the timing of this alleged incident; regarding information received by PW 1 - Sohan Lal Sharma and PW 10 - Smt Krishna Devi and their reaching at the spot. Such material contradictions/inconsistencies in the testimonies of PW 1- Sohan Lal Sharma and PW 10- Smt Krishna Devi do not inspire confidence about the truthfulness of the incident dated 08.04.2004. Further, it is apparent on record that complainant was medically examined by a doctor at Dr Hedgwar Hospital around 11.45 p.m. on 08.04.2004 with the alleged history of pouring kerosene by her in-laws vide MLC Ex. PW 3/A prepared by Dr Sharad Vyas (PW 3) and during cross examination PW 3 - Dr Sharad Vyas admitted that there was no external injuries on the person of complainant when she was medically examined in the said hospital and strangely, complainant Smt Rohini @ Dolly was taken to Garg Hospital on 09.04.2004 and she was examined vide OPD card/slip - Ex. PW 5/A by Dr S.S. Bhagat (PW 5) who during his cross examination admitted that the nature of injuries has not been mentioned in Ex. PW 5/A and as such, said card/slip - Ex. PW 5/A is not reliable and trustworthy in view of the MLC Ex. PW 3/A prepared on 08.04.2004 at about 11.45 p.m. showing no external injuries were there. PW 1 - Shri Sohan Lal Sharma and PW 2 - Smt Rohini @ Dolly during their cross examination have deposed that complainant as well as her son were medically treated several times previously SC No.: 196/2006 page 15 of 18 too in said hospital and as such, possibility of fabricating Ex. PW 5/A can not be ruled out in view of the previous relations of PW 1- Sohan Lal and PW 2 - Smt Rohini @ Dolly with the doctors and staff of Garg Hospital. Here it is pertinent to refer the testimony of Baldhari Yadav (PW 4) and Ram Niwas (PW 6). Both these witnesses, being the independent witnesses to this incident dated 08.04.2004, turned hostile and as such, both these witnesses were cross examined by ld Addl P.P. and during their cross examination, Baldhari Yadav (PW 4), in his examination in-chief stated that on the alleged date of occurrence he was present at his shop and then Smt Dolly along with two other persons came from the side of main road and she entered into her matrimonial home while those two accompanied persons went away and thereafter Smt Rohini @ Dolly came from matrimonial home crying - bachao bachao and during his cross examination PW 4 stated that this incident had taken place at about 8 p.m. PW 6 - Ram Niwas in his examination in-chief stated that on 08.04.2004 he was standing at the shop of Baldhari Yadav (PW 4) and at about 8.30/9 p.m., four-five persons including two ladies entered from gali no. 1 and one lady went upstairs and after about two minutes, she came from the said house crying - Bachao Bachao. No doubt both these witnesses have turned hostile and as such they were cross examined by ld Addl PP for the State but the evidence of hostile witnesses cannot be discarded in toto and evidence of hostile witness, if found, reliable and trustworthy by other corroborative evidence and materials can also be considered by the court. From the evidence of both these witnesses namely PW 4 - Baldhari Yadav and PW 6 - Ram Niwas, it is evident that complainant Rohini @ Dolly was accompanied by four- five persons including one lady when she had gone upstairs alone to her matrimonial home on 08.04.2004 and complainant had not reached at her matrimonial home on 08.04.2004 on any motor cycle with accused Rajiv and this fact casts a shadow of doubt about the truthfulness of this alleged incident SC No.: 196/2006 page 16 of 18 of pouring kerosene on the complainant and throwing a burning match stick on her by accused persons. Rather, these facts and circumstances support the submission of accused persons that story of alleged occurrence dated 08.04.2004 regarding the pouring kerosene upon the complainant by accused persons and throwing a burning match stick on her, is a fabricated, concocted and self created by the complainant and her parental family members in order to implicate the accused persons falsely in this case. Even, the alleged occurrence dated 08.04.2004 is also falsified from the contradictions/inconsistencies on material points in the testimonies of PW 1 - Shri Sohan Lal Sharma; PW 2- Rohini @ Dolly and PW 10 - Smt Krishna Devi regarding the timing of receiving the information regarding this incident as well as their reaching at the spot. Further, the fact that after the discharge of complainant from Dr Hedgwar Arogya Sansthan after her medical examination vide MLC Ex. PW 3/A, complainant on the next date i.e. 09.04.2004 was taken to Garg Hospital by her parents where she was treated vide OPD slip/card Ex. PW 5/A wherein injuries have been specified while as per MLC Ex. PW 3/A, no external injuries were found on the body of complainant. In view of these facts and circumstances, the possibility of implicating the accused persons falsely on the basis of this alleged incident dated 08.04.2004 coupled with the OPD slip - Ex. PW 5/A can not be ruled out. In fact, the alleged incident of occurrence dated 08.04.2004 has been rendered doubtful and unbelieveable.
31. In view of my above discussion coupled with the reasons given as well as well settled proposition of law that if on the basis of evidence and materials on record, two views are possible one in favour of the accused persons and the other in favour of the prosecution, then the view in favour of the accused persons should be taken by the court. Since the story of alleged incident dated 08.04.2004 has been rendered doubtful and suspicious and as such, benefit of doubt has to be given to the accused persons. Accordingly, all accused persons SC No.: 196/2006 page 17 of 18 are hereby acquitted of the charged offences framed against them by giving benefit of doubt.
File be consigned to RR.
Announced in the open Court (K.S. Pal)
on 30.04.2013 Addl. Sessions Judge:
KKD Courts: Delhi.
SC No.: 196/2006 page 18 of 18