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Delhi District Court

State vs Kailash @ Bittoo Etc on 12 October, 2011

       IN THE COURT OF SH.SURESH CHAND RAJAN
    ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
              (New Delhi & South East District)
           PATIALA HOUSE COURTS, NEW DELHI

SC No.51/10
FIR No.271/05
U/s 498A/304B/302/34 IPC
PS Mandir Marg

State 

Vs.

1. Kailash @ Bittoo s/o Sh Subhash  
2. Subhash s/o Shri Chand
3. Rajbala w/o Sh Subhash
4. Lalita w/o Late Sh. Rakesh Kumar
5. Kasturi Devi @ Chhoti Devi w/o Late Sh. Masih Charan
                                                                                     ........ Accused

Challan filed on : 04.10.2005
Received by Fast Track Court on:28.10.2010
Reserved for Order on : 17.09.2011
Date of Pronouncement : 12.10.2011

JUDGMENT

Briefly stated the facts of the prosecution case are that on 10.07.05 on receipt of DD no.2A copy of which is Ex.PW15/A, ASI Gopi Ram along with Ct. Jai Pal reached at H.No. 279, Block 85 Lady Harding Hospital where deceased Jyoti was found lying dead inside the room on the bed. On inspection blue marks were found on the neck of the deceased and parents of the deceased expressed suspicion on the State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 1 of 58 death of deceased. SHO, SDM and Crime team were informed and they reached at the spot. SDM conducted the proceedings u/s 175 Cr.PC and recorded the statement of Ganga Bishan Ex.PW7/B in which he has alleged that he solemnized the marriage of his daughter Jyoti @ Binu on 27.11.2001 with Kailash s/o Subhash r/o H.No.279 Block­85 Gole Market, New Delhi. His daughter had no issue for 3­4 years. She had stayed at her parental home for about one month and went back just before 15 days to her matrimonial home. She was healthy. On Saturday, in the intervening night of 09/10.05.2005, maternal grand mother/Nani called up that Jyoti is serious and she asked them to come soon. They reached there at about 3.15 a.m. His daughter was lying on the ground and her body was covered with white sheet. On enquiry from Subhash and Kailash, no satisfactory reply was given. On asking the younger brother of Kailash he disclosed that when he came to his sister in law at about 12.30 a.m to eat, she was lying dead. On inspection of the body, he found some marks on the neck and her face was having pimples. They suspect something wrong and requested the police to get the post mortem done in order to establish the reason for death. The in­laws of Jyoti used to harass her because of no issue. He made call to his daughter prior to 3­4 days just to know her welfare and at that time she started weeping and uttered 'papa mere ghar per na aana'. She did not disclose any reason. She thought it to be a petty problem and did not State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 2 of 58 pay heed to it. His daughter did not told him about any demand for dowry. On this statement as well as after consideration of other statements of relatives of deceased and post mortem report, IO Insp.Ram Kishan made his endorsement Ex.PW24/A and got the case registered vide FIR no. 271/05. Thereafter investigation was conducted and accused persons were arrested. After completion of the investigation, challan u/s 498A/304B/302/34 IPC has been filed in the court.

2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 27.10.05.

3. The charge against accused Subhash, Rajbala, Lalita and Kasturi Devi was framed u/s 498A/304B IPC and accused Kailash @Bittoo has been charged u/s 498A/302 IPC on 27.04.2006 by Sh. SK Kaushik, Ld. ASJ to which accused persons pleaded not guilty and claimed trial. However, thereafter charge was amended on 21.7.2011 and alternative charge u/s 302 IPC was framed against accused Subhash, Rajbala, Lalita and Kasturi Devi.

4. The prosecution in all has examined as many as 24 witnesses.

State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 3 of 58

5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case at the instance of one Sharma Devi who is a practicing lawyer. The accused persons did not opt to lead defence evidnce. Thereafter the case was fixed for final arguments.

6. I have heard the Ld.counsel for the accused persons as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.

7. In view of the arguments advanced by the Ld.APP and Ld.counsel on behalf of the accused persons, I have perused the testimonies of all the PWS.

8. PW1 Smt. Sheela is the mother of deceased Jyoti @ Meenu and PW2 Pritam is the brother of deceased.

9. PW3 Jailar Prasad has deposed that he removed Jyoti to hospital in his TSR.

10. PW4 Bhagwati has deposed that Jyoti was her niece. She State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 4 of 58 was married to Kailash. She has stated that he had suspicion that she was murdered by her in laws. Her statement Ex.PW4/A was recorded by the SDM.

11. PW5 HC Raj Singh has deposed that he recorded the FIR no.271/05 copy of which is Ex.Pw5/A. He sent special report of Area Magistrate and Sr. Police officers.

12. PW6 Smt. Neetu is the sister of deceased Jyoti @ Meenu and PW7 Ganga Bishan is the complainant and father of deceased. He identified the dead body vide Ex.Pw4/A. His statement was recorded by the SDM which is Ex.PW7/B. He has stated that police seized the chunni of deceased vide memo Ex.Pw7/C. He has stated that accused was arrested vide memo Ex.PW7/E and he pointed out the place of occurrence vide memo Ex.Pw7/G. He further stated that accused Subhash was arrested vide memo Ex.PW7/H and his personal search was conducted vide memo Ex.PW7/J. Accused Rajbala was arrested vide memo Ex.PW7/K and her personal search was conducted vide memo Ex.PW7/l. Accused Lalita was arrested vide memo Ex.PW7/M and her personal search was conducted vide memo Ex.Pw7/N. He identified the chunni Ex.P1 which was got recovered by the accused.

13. PW8 Dr. Yashika has deposed that she examined Jyoti and State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 5 of 58 prepared her MLC Ex.PW8/A.

14. PW9 Dr. Nidhi Gupta has stated that she was not working as Casualty Medical officer on 21.7.05. She was declared hostile by the prosecution and cross examined by the Ld. APP for the State but she denied having made statement Ex.PW9/A to the police.

15. PW10 Dr. Bharat Verma has stated that he was posted as PG Student at the time of post mortem conducted by Dr. Sumit Seth on the dead body of deceased Jyoti @ Meenu. The post mortem report is Ex.PW10/A.

16. PW11 Nouratan Singh has deposed that he was working on his van no. DL 6CE 1995 which he used to ply from Kalawati Hospital. On information regarding death of Jyoti he went to the house where he did not meet Subhash Prakash or his family members but the lady was lying dead there. Nobody made request to him for using his van to take the dead body. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State.

17. PW12 Devender Singh has deposed that on 28.1.05 he was blessed with a son. Due to ill heath his son was got admitted in Kalawati Hospital and they remained there for 2/3 days. He met Jyoti State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 6 of 58 @ Meenu in the hospital who was his sister in law(saali). She told him that she was being harassed by her in laws on pretext of not giving birth to child and she also talked to her on telephone and she again repeated the same allegations against the accused persons.

18. PW13 Sharma Devi has deposed that deceased Meenu was his cousin (uncle's daughter). Her statement Ex.PW13/A was recorded by the SDM on 11.07.05.

19. PW14 Ct. Roop Chand has deposed that has deposed that he reached the mortuary of Lady Harding Hospital and had taken eight photographs of the dead body. The photographs are Ex.PW14/A1 to A8 and negatives are Ex.PWA9 to A16.

20. PW15 ASI Gopi Ram has deposed that on 10.7.05 on receipt of DD no.2A copy of which is Ex.PW15/A, he alongwith Ct. Jai Pal reached at H.No. 279 Block 85 Lady harding Hospital, Near Water Tank and found that deceased Jyoti was lying dead inside the room on the bed. On inspection he found blue marks on the neck of deceased on both sides on the neck. SDM, Crime team reached at the spot. On the direction of SDM, he had taken the dead body to Lady Harding Hospital where it was preserved and after post mortem the dead body was handed over to the father of deceased. He collected the State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 7 of 58 PM report and handed over to SDM. SDM recorded the statements of relatives and he handed over the same to Insp. Ram Kishan. He has further stated that on the basis of report of SDM, Insp. Ram Kishan had prepared the rukka and sent through Ct. Ravinder for registration of the case. IO made enquiry from neighbourer and arrested accused Kailash vide memo Ex.PW7/A and his personal search was conducted vide memo Ex.PW7/F. His disclosure statement was recorded which is Ex.PW7/D. AT the instance of accused one chunni was got recovered which was used to commit the murder of deceased. Some hairs of deceased were also found in the chunni. The hairs and chunni were sealed and seized vide memo Ex.PW7/C. Accused pointed out towards the bed where murder was committed. The pointing out memo Ex.PW7/G. He has further stated that remaining accused were also arrested vide arrest memo Ex.PW7/H of accused Subhash, Ex.Pw7/K of accused Rajbala, Ex.PW7/M of accused Lalita and their personal search were conducted vide memo Ex.PW7/L,N,and J. The disclosure statements of accused Rajbala is Ex.Pw15/B, Lalita is Ex.PW15/C and Subhash is Ex.PW15/D. He has further stated that IO prepared the site plan at the instance of Ganga Bishan. He identified the chunni Ex.P1.

21. PW16 Insp.Dinesh Kumar has deposed that he reached at the spot and saw a dead body of lady lying on the floor. He inspected the scene of crime and prepared his report which is Ex.PW16/A. State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 8 of 58

22. PW17 Ct. Ravinder Kumar has deposed that on 11.07.05 Insp. Ram Kishan had visited SDM Office and rukka was handed over to him by Insp. Ram Kishan at SDM office for registration of the case. He got the case registered.

23. PW18 Ct. Virender has deposed that he collected the sealed parcel on 24.8.05 from MHCM and deposited the same with FSL, Rohini

24. PW19 Ct. Madan Pal has deposed that he delivered the copies of FIR to Ld.MM and other senior Police officers.

25. PW20 HC Ishwar Singh is the MHCM who made entries in register no.19 of Malkhana regarding depositing of case property. The entries are Ex.PW20/A&B. On 24.8.05 he sent the viscera petty to FSL for examination.

26. PW21 SI Ravi Kant has deposed that accused Kailash was interrogated and he confessed about his involvement in this case. Accused had pointed out towards washing machine and took a chunni from the washing machine and produced to IO. Some scalp hears were found inside the chunni. Chunni was wearing stretch marks. It was State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 9 of 58 seized vide memo Ex.PW7/C. Accused Kailash pointed out towards the place of incident. The pointing out memo is Ex.PW7/G. Accused Kailash was arrested vide memo Ex.Pw7/E and his disclosure statement Ex.Pw7/D was recorded. He has further deposed about arrest of remaining accused and their personal search. He has further stated that on 29.08.05 accused Kasturi Devi was formally arrested vide arrest memo Ex.Pw21/A. He identified the chunni as Ex.P1.

27. PW22 ASI Pramod Tyagi has deposed that he went to the spot on 10.7.05 where dead body of a woman named Jyoti was lying on the floor. He took 10 photographs of the spot. The photographs are Ex.PW22/A1 to A8 and Ex.PW1/DB. The negatives are colly.Ex.PW22/A9.

28. PW23 S.K.Sachdeva is the then SDM who reached in mortuary of Lady harding Medical College and conducted inquest proceedings Ex.PW23/A. Dead body was identified by Kailash vide statement Ex.PW23/B. He moved an application for conducting post mortem which is Ex.PW23/C. He has further deposed that on 11.07.05 he recorded the statement of Bhagwati, Sharma Devi, Devender Signh, Sheela Devi, Ganga Bishan which are Ex.PW4/A, Ex.PW13/A, Ex.PW23/D and Ex.PW1/DA and Ex.PW7/B respectively. He directed SHO vide direction Ex.PW23/E for necessary action. State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 10 of 58

29. PW24 Insp. Ram Kishan has deposed that on 10.7.05 on receipt of DD no.2 Ex.PW15/A he reached at the spot and inspected the dead body. There was ligature mark at her neck. He informed the SDM since marriage was solemnized within seven years. He informed the crime team. On 11.07.05 he received the direction from SDM alongwith statement of father of deceased, made his endorsement Ex.Pw24/A and got the case registered. He prepared the site plan Ex.PW24/B. He arrested accused Kailash vide memo Ex.Pw7/E and conducted his personal search vide memo Ex.PW7/F. His disclosure statement Ex.PW7/D was recorded. He has further deposed that accused took to his bathroom and and got recovered a chunni from open space of bathroom. Some hairs of the deceased were wrapped in the chunni. It was taken into possession vide memo Ex.Pw7/C. The pointing out memo Ex.Pw7/G.He has further deposed about arrest of other co accused Rajbala, Lalita and Subhash and recording of their disclosure statements. The disclosure statement of Rajbala is Ex.Pw15/B and of accused Lalita is Ex.PW15/C. The disclosure statement of Subhash is Ex.PW15/D. He has further stated that accused Kasturi was arrested vide memo Ex.Pw21/A. On 13.09.05 he moved application for taking subsequent opinion to autopsy surgeon vide application Ex.Pw24/C. The opinion was received on 16.09.05 which is Ex.PW24/D. He sent the exhibits to FSL. He got prepared the State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 11 of 58 scaled site plan which is Ex.PW24/E. He collected the FSL report which is Ex.PW24/F. He identified the chunni Ex.P1.

30. In the overall analysis of the testimonies of all the PWS it is revealed that PW1 Sheela is the mother, PW2 Pritam is the brother, PW6 Neetu is the sister and PW7 Ganga Bishan is the father of deceased. Further deceased Jyoti was niece of PW4 Bhagwati and cousin (uncle's daughter) of PW13 Sharma Devi. These witnesses including PW23 S.K.Sachdeva, the then SDM are the main star witnesses of the prosecution. PW1,2,6,7 and PW4&13 are the near relatives of deceased Jyoti @ Meenu. Before discussing their deposition made in the court and to bring home the guilt of the accused persons u/s 498A/304B IPC it is necessary to discuss the relevant provisions. Section 304B relates to dowry death. The same was introduced in the Indian Penal Code and it reads as under:­ Sec.304 B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demands for dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. For the purpose of this sub section dowry shall have the same meaning as in section 2 of the dowry prohibition Act 1961. 'Whoever commits dowry death shall be punished with State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 12 of 58 imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life'.

And if the ingredients of section 304B have been completed then the presumption u/s 113 B in the Indian Evidence Act is required. Section 113 B Presumption as to dowry death ­ when the question whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry, the court shall presume that such person had caused the dowry death.

In a case of dowry death cruelty on part of husband towards his wife by prosecution has to be proved beyond reasonable doubt and section 113 B of Evidence Act does not alter this requirement of stick proof.

Section 498 A IPC reads as under:­ 'Husband or relatives of husband of a woman subjecting her to cruelty - Whoever being the husband or the relative of the husband or a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall be liable to fine'.

There is explanation for the purpose of this section cruelty means:­

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical ) of the woman or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 13 of 58

31. From the conjoint reading of section 304B of the IPC and Sec. 113B of the Indian Evidence Act it is apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Sec.304B of IPC. The ingredients of the aforementioned provisions are :­

1. That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal;

2. Such death occurs within 7 years from the date of her marriage

3. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband

4. Such cruelty or harassment should be for or in connection with demand of dowry and

5. Such cruelty and harassment was made soon before her death.

32. In the normal circumstances though cruelty at any time after marriage may cause depression in the mind of the victim, the cruelty and harassment envisaged in section 304B is to be seen before the death of a woman and it is the duty of the court to scrutinize the evidence carefully because cases are not rare in which occasionally there is demand and then the atmosphere becomes calm and quiet and then again there is demand. Where a wife dies in the house of the husband within the short span of seven years of her marriage, it is of considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confined within the four walls of the house. However, the courts are to be vigilant to scrutinize the evidence regarding the harassment and torture carefully if the witnesses are relatives of the deceased and relations between them and State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 14 of 58 her in laws are strained for any reason whatsoever it might be.

33. Urge for living is a natural phenomenon in mankind. A person would not embrace death unless there is some psychological trouble or mental agony or such circumstances that the person committing suicide may think that the life he or she is living is more miserable than the pangs and agony of death. The power of tolerance would vary from person to person. Some persons try to make the life easy by tolerance while others even on petty points bring an end to their life.

34. Reverting back to the testimonies of witnesses, firstly I would consider the testimonies of the witnesses adduced by the prosecution who are related to deceased Jyoti @ Meenu. PW1 Smt. Sheela has deposed that her daughter Jyoti was married to Kailash about four years back and after marriage she could not conceive and she was got treated at Kalkaji. Before 7 days of her death Jyoti telephone her and stated that accused Kailash was not interested for his check up with private doctor and was interested for check up in govt. hospital.She went to the house of her daughter where her in­law except Kailash were present. They did not allow to sit her daughter with her. Kailash came and she asked him as to why he is not interested for his check up. He did not pay attention to her words. State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 15 of 58 Thereafter she came back to her house. Her daughter Jyoti did not make any complaint with her about the misbehaviour of her in­laws. She used to tell about the same to her elder daughter Her elder daughter told her after death of Jyoti that Jyoti asked not to disclose about the behaviour of accused persons due to her illness. Their family is a joint family and family members of her jeth are residing in the same house. In cross examination she denied the suggestion that she got treatment of her daughter and bear all the expenses. Her statement was recorded at the house of accused persons. Her statement was also recorded in SDM Office. At that time her jeth's daughter Sarma Devi, Advocate and her son were present. She does not know the name of the doctor where the treatment was taken in Kalkaji. Mother in law of her daughter had taken her to Kalkaji for treatment however she used to pay the treatment expenses. She admitted that she had given Rs. 1200/­ to Kailash for his test. She denied that she had gone to the house of accused to take money. She admitted that when she was leaving her daughter's house, her daughter started weeping. She denied that her daughter was sentimental and used to week on petty matters being miserable and unable to smile and feel hopeless for future. When she reached in the hospital Kailash told her that Jyoti has died due to heart failure. She saw the photograph Ex.PW1/DB and in that photograph clothe of yellow colour was lying over the dead body of her daughter. She denied that yellow colour cloth lying on the dead State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 16 of 58 body is a chunni and not a chadar. Sharma Devi came in the hospital in the morning who informed the police. The dead body was received by her and her husband vide receipt Ex.PW1/DC. It is correct that his daughter was healthy and healthier than Kailash. Her statement was recorded after 3rd day of the death of her daughter at the house of accused Kailash. She received one pair kundan, one pair anklet, two bichwa and one nose pin in the hospital before post mortem. She denied the suggestion that she received the wearing jewellery of her daughter. Her daughter used to tell all the things to Sarma Devi. After death of her daughter, Sarma Devi told this fact.

35. Pw2 Pritam is the brother of deceased and he has deposed that Jyoti told him that her month in law Rajbala, her father in law, Subhash and sister in law (Nand) Lalita and grand mother in law used to torture her for not bringing the sufficient dowry . His sister told her harassment whenever he used to visit at her house at the time of festivals. He did not disclose this to his parents as it was asked by the accused. When Jyoti could not conceive and her inlaws and grand mother in law started taunting her and sometimes they gave beatings to her. On the intervening night of 9th and 10th July at about 2.30 a.m grand mother in law (naniya saas) informed on telephone which was received by mother, that condition of Jyoti was not good. They went there. He found dead body of Jyoti lying on the ground. He noticed State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 17 of 58 some ligature marks on her neck. He suspected that Jyoti was murdered by her in laws for not bringing sufficient dowry and for not conceiving. In cross examination he has denied the suggestion that Jyoti did not tell him about harassment and taunting by her in laws. She denied that nania saas did not inform them on telephone. He denied the suggestion that he did not go to the house of his sister. He admitted that his statement was recorded by the Police on 26.7.05. He did not make any complaint to the police, his elder sister made complaint to the police but he does not know when she lodged the complaint. He denied the Sarma Devi is not residing with them. They got treated Jyoti for not conceiving and his other sister accompanied with her to doctor. No treatment of his sister for thyroid was going on nor his sister informed about this. He denied the suggestion that his sister Jyoti was short tempered and used to weep on petty matters.

36. PW4 Smt. Bhagwati has deposed that Jyoti (deceased)was her niece and married to Kailash. She was mediator in the marriage. After marriage she was not having visiting terms at her house. Jyoti used to meet her outside her house. Jyoti told her that her husband, mother in law, father in law, grand mother in law, and her sister in law used to harass her for not conceiving and they used to beat her. In the night of 09.07.2005 at about 3.30 a.m she heard some noise of beating. There persons came to her house and they told her that Meenu had State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 18 of 58 suffered heart attack. She went to her house and found Jyoti lying on the ground and a chadar was covered on her dead body. She noticed some marks on the neck of Jyoti. She had suspicion that Jyoti was murdered. Her statement is Ex.PW4/A. In cross examination she has denied the suggestion that Jyoti used to meet her outside her house. She denied the Jyoti did not tell her about harassment and beatings given to her. She admitted that back door of her house remain closed. One can reach the house of Jyoti from her house within two minutes. On that day she was sleeping in the court yard and house of accused is about 20 yards from her house. She denied that distance from the house of Jyoti and the her house was about 500 yards. Mahesh, Manoj and one third person came to inform about the heart attack of Meenu@Jyoti. She denied that she did not hear any noise of weeping.Jyoti told her about the harassment two days prior to her death. Sarma Devi reached there at about 7 or 8 a.m. Jyoti did not tell her who got her treated. After marriage of Jyoti she had no visiting terms in the house of her brother Ganga Bishan, father of deceased. As she was not happy with this relation (marriage of Kailash and Jyoti), therefore she had no visiting terms with both families.

37. PW6 Smt.Neeti is the sister of deceased Jyoti and she has stated that her sister whenever visited her house she used to tell that her inlaws taunts her for not conceiving. They got her checked up State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 19 of 58 from Dr. Kanta, Kalkaji. Her inlaws also used to take her. She was told that the husband of Jyoti was not ready for the test. All the expenses were borne by them. Her sister told her that the inlaws used to beat her many times and she had no respect in her inlaws house. They also used to taunt for not bringing sufficient dowry articles. She also told that dowry articles have not been given as per their standard. She received phone on 10.7.2005 that Jyoti had died. In cross examination she has stated that her sister never telephoned her from her in laws house. She used to telephone her. She denied that she never talked to Jyoti. Her parents sent Rs.2000/­ through her brother for treatment of her sister. She did not state this fact in her statement to the police. Sarma Devi telephone her about the death of Jyoti from her parents house.

38. PW7 Ganga Bishan has deposed that she married Jyoti to Kailash on 27.11.2001. She could not conceive after marriage ever after 2/3 years. Her check up was got done. Jyoti stayed with them for about one month before death and thereafter gone to her house. In the intervening night of 9th July and 10th July 2005 at about 2.30 a.m his daughter's grand mother in law telephoned and informed that Jyoti is serious and asked them to reach there. Thereafter they reached there and found Jyoti lying on the floor. On enquiry accused Kailash told them that Jyoti had died due to minor heart attack and Kailash told that State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 20 of 58 she had pain in her chest but could not reply satisfactorily. Younger brother of Kailash told that when he came at 12.30 am he found her dead. He saw the face of Jyoti. On her neck some marks were present. On enquiry from the mother in law she replied that these are the marks of mangal shutra. Jyoti did not complaint to him regarding the behaviour of her inlaws. He identified the dead body vide statement Ex.Pw4/A. On 11.7.05 his statement was recorded by the SDM which is Ex.Pw7/B. Before death he had telephonic talk with Jyoti and she started weeping and told not to come in the house of her in­laws. He thought it a minor issue and not paid heed. Police interrogated the accused Kailash and recorded his disclosure statement and thereafter accused got seized chuni Ex.PW7/C. He has further deposed about arrest of accused persons, conducting their personal search and recording of disclosure statements. On showing chunni he has stated that it is not the same chunni (witness again opened the chunni and after unfolding it completely stated that at the time of seizure of the same, the chunni contained scalp hairs and these are still present in the chunni). He has seen chunni Ex.P1. It is the same which was got recovered by accused from washing machine. In cross examination he has stated that at the time of his statement, his wife, his sister and daughter Neetu and niece Sarma Devi were present and there statements were also recorded. SHO also recorded his statement in the PS. During the stay of his daughter Jyoti for one month, his other State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 21 of 58 daughter Neetu and Sarma Devi also visited his house. He has made improvement that accused Kailash told him that Jyoti has suffered minor heart attack and Subhash told that she had pain in her chest. He has also made improvement that when her mother in law was asked about marks on her neck, she replied that it was mark of mangal shuter. He denied the suggestion that he called up his daughter and demanded some money form her to which she replied not to come to her house for taking money. His statement was recorded thrice. First by SDM, then SHO and thereafter at the time of arrest of accused. When he reached at the matrimonial house, the dead body was covered with white cloth. His daughter never told him regarding harassing her on account of dowry. He admitted that she did not tell him about any harassment on account of dowry because she was never harassed for dowry. He was never told by his daughter about problem in her married life. His wife did not tell him that his daughter was being harassed by her in laws during the lifetime of his daughter but after her death his wife told him about this fact. The call regarding information of death was attended by his elder bhabi. He used to visit the matrimonial house of his daughter off and on but he does not recollect how many times. He admitted that maternal grand mother of accused Kailash was not staying with the family of the accused. He denied that maternal grand mother has been roped at the instance of somebody. He met the doctor but did not tell him about the marks State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 22 of 58 which he had notice on the dead body. He denied that he did not tell about the marks as there was no such marks. The police had seized a dupatta which was taken out from a washing machine at the instance of accused. There are 5/6 rooms in the house of Kailash. Tenants were also residing there. He did not make any enquiry from those tenants regarding his daughter. At the time of recovery of chunni, SHO was accompanied by 5/6 other police staff including two women police staff. He was present when the disclosure statement of accused Kailash was recorded. He denied that the case was initiated at the instance of Sarma Devi who is his niece.

39. PW13 Sarma Devi has deposed that deceased Meenu is her cousin. Her marriage was solemnized with Kailash on 27.11.2001. After marriage she used to inform her that her husband, mother/father in law and sister in law and maternal mother in law used to harass her. Deceased was not having any child after marriage and that is why they tortured and taunted her and told that "sabko bahuho ke bachhe ho gaye hai, tere khu nhai hua'. They also taunted the deceased that low quality dowry articles were given in the marriage of Meenu by her parents. She has further stated that in the month of May 2005 she came at her parental house and deceased also came and she told her that in laws beaten and tortured her regarding that she was not having any children. She advised Meenu for treatment of fertility problem at State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 23 of 58 Kalkaji. In the night of 10.7.05 at about 2.30 a.m, telephone information was received through maternal mother in law of deceased at their house that condition of Meenu was serious and sent her parents immediately. Thereafter they went there. She also reached at 6 a.m at her in­laws house. Her family members were also present there. They told her that Meenu was expired due to heart attack. When she saw the dead body of Meenu, she found some marks on the neck of deceased on both sides. The marks were like a bluish mark on her neck. After enquiry they found that they were not giving satisfactory answer regarding the death of deceased. On 11.07.05 her statement Ex.PW13/A was recorded by the SDM. On 26.7.05 her supplementary statement was recorded by the IO. She told the IO that her cousin used to tell her that her husband, mother in law, father in law, sister in law and maternal mother in law taunted her for less dowry. Deceased Meenu also told her that she does not disclosed to her parents about the incident of beating and demand of dowry otherwise her parents will worry about her. In cross examination she has stated that the expenses in the marriage were around Rs.3.00 lac to Rs.4.00 lac. All the necessary things like TV,Bed, Cooler, Fridge etc were given in the marriage. Accused maternal mother in law namely Kasturi Devi used to visit on weekly basis at the matrimonial house. She cannot give the specific date when she visited at the matrimonial house of deceased. In the month of May, 2005 when she was at her maternal home, the State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 24 of 58 deceased first told her about the cruelty upon her regarding dowry. She admitted that from 2001 to May 2005, deceased never told her about cruelty on account of dowry. VOL. However, she used to tell her that her husband would leave her. She admitted that giving and taking dowry is an offence. When the deceased told her about cruelty on account of dowry in May, 2005 she did not have any talk in this regard with inlaws. She admitted that neither the deceased Meenu nor her family members ever made any complaint regarding demand of dowry to the police. Deceased made complaint to her regarding beatings in May 2005. She did not make any complaint to the police in this regard. In her statement to SDM, she had not stated anything about dowry. She had told to IO in this regard when her statement was recorded. She was confronted with her statement Ex.PW13/DA wherein the fact of dowry is not mentioned. She admitted that there was no demand of dowry that is why it is not mentioned in the statement to SDM and to IO. Again on court query, witness submitted that demand of dowry was there as stated by the deceased to her. She denied that it was not a case of cruelty or harassment on account of dowry nor it is a case of murder or dowry death. She denied that this case had been made against the accused persons after due planning by her.

40. PW23 Sh SK Sachdeva, the then SDM has recorded the State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 25 of 58 statements of PW1,2,4,6,7 & 13. PW23 has not been cross examined by the Ld. Defence counsel. I have given my thoughtful consideration on the statement of complainant PW7 Ganga Bishan Ex.PW7/A recorded by SDM and on the basis of which the present case FIR was registered on the direction of SDM. It is necessary to reproduce the same.

Statement of Sh. Ganga Bishan s/o Sh Bachua Ram, R/o Gali no.1 H.No. A/15, Brahmpuri, Delhi­53 'Aaj Dinak 11.07.05 ko vyan karta hun.Maine apni beti Jyoti @Beenu ki shadi 27.11.2001 Sh Kailash s/o Subhash r/o H.No.279 Block 85 Gol Market se ki thi. Pichchle 3­4 varshon me beti ki koi santan nahi thi. Meri beti lagbhaj ek maas mere ghar par rehkar kareeb 15 din pehle sasural vapas aai thi. Vah bilkul swasth thi. Shanivar Dinak 9.7.05 ko aadhi Raat valki 10.7.05 ko pratah 2.30 a.m ke lagbhag ladke ko nani ne phone kiya ki Jyoti ko tabiyat bahul kharab hai. Ishliye hame jaldi aane ke liye kaha. Hum turant wahan gaye aur lagbhag 3.15 per unke ghar Gol market pahunche. Ladki jameen par padi thi. Sharir safed chaddar se dhaka tha. Kailash va Subhash se Puchchtachch karne per koi santoshjanak javab nahi mila. Kailash ke chchote bhai se puchne per pata laga ki jab wah apni bhabi ke pas lagbhag 12.30 aya khane ke liye to pata laga ki vah dead thi. Ladki ke sharir ko dekha to sharir ke gardan par nishan the aur chehre par dane dane ho rahe the. Ishse hame shak hua aur hamne police se request kee, ki ladki ke sharir ko jalane se pahle janch karae jaye. Beti ko unke sasural waley bacha na hone ke karan tane dete the. Kuch din pahle jab meri ladki ghar se sasural wapas gai to uska haal janne ke liye 3­4 din maine apni ladki ko phone kiya to wah rone lag gae aur kehne lagi papa mere ghar per na aana. Karan nahi bataya. Aur maine socha bachon me chhota chhota man mutav ho gaya hoga aur adhik dhyan nahin diya. Dahej ke bare mai hame ladki ne shikayat nahi ki.

sd/­ Ganga Bishan State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 26 of 58

41. Firstly I have considered the evidence for the charge framed u/s 498A/304B/34 IPC. Taking into consideration the deposition made in the court and above statement of PW7 Ganga Bishan, it is revealed that PW7 has not made any allegation against the accused persons for demand of dowry. He has specifically stated that his daughter Jyoti did not complaint him about the behaviour of her inlaws. He has stated that before the death Jyoti had stayed at their house for about one month and thereafter she had gone to the house of her in laws with Kailash. In his statement he has not made any allegation for harassment on account of demand of dowry soon before death. Perusal of his cross examination revealed that he has made it clear that his daughter never told him that her in ­laws were harassing her on account of dowry. He admitted the suggestion of Ld. Defence counsel that she did not tell him about any harassment on account of dowry because she was never harassed for dowry. Admission of PW7 Ganga Bishan in this respect makes it clear that there was no demand of dowry at any point of time and deceased Jyoti was neither harassed nor treated with cruelty by the accused persons on account of demand for dowry. However, I have also considered the evidence of mother, brother, sister and other relatives of deceased.

42. Pw1 Sheela is the mother of deceased. On perusal of her statement, she has stated that she went to the house of Kailash and at State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 27 of 58 that time her daughter was preparing meal and her mother in law Rajbala, her grand mother in law and one Tai of Bittoo were present in the house. At that time Kailash was not there. They did not allow her daughter to sit with her. This cannot be treated as demand for dowry. Further she has stated that her daughter Jyoti did not make any complaint with her about the misbehaviour of his in laws. Her daughter used to tell about the behaviour of accused persons to her elder daughter. She admitted in cross examination that her daughter was healthier than Kailash. In cross examination she has further stated that her daughter used to tell all the things to Sarma Devi. PW1 Sheila who is the mother of deceased has also not levelled any allegation against the accused persons for demand of dowry or that her daughter was subjected to harassment and cruelty soon before her death.

43. PW2 Pritam is the brother of deceased. He has stated that his sister complained to him that her in­law, i.e. father in law, mother in law, sister in law(nanad) and grand mother in law used to torture her for not bringing the sufficient dowry and taunting her for not bringing dowry articles. His sister told him about her harassment whenever she used to visit at her in­laws house at the time of festivals. She asked him not to disclosed to parents. He has further alleged that after one or two years of marriage Jyoti when could not conceive her husband gave beatings to her. Alleged beatings cannot be treated as State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 28 of 58 beatings given for demand of dowry. PW2 made allegation that his sister was tortured and taunted for not bringing dowry articles. He has not stated as to which articles were demanded made by the accused persons. He has also not stated as to how the accused persons used to taunt the deceased and what were those taunts on account of demand of dowry. Further PW1 Sheila and PW7 Ganga Bishan who are mother and father have given contradictory statements as they have not levelled any such allegation for demand of dowry or taunt by the accused persons meted out to deceased Jyoti. It has come in the evidence of PW1 that her deceased daughter Jyoti used to tell each and every thing to her elder daughter and Sarma Devi. So, I have perused their testimonies.

44. PW6 Neetu is the elder sister and PW13 Sarma Devi is also the cousin sister of deceased Jyoti @ Meenu. Pw6 Neetu has stated that her sister Jyoti told her that her in­laws used to taunt her for not conceiving. They have got her checked up from Dr.Kanta. She has been told by the deceased that her husband used to beat her many times. Her other inlaws also used to beat her. PW6 did not specify on what account accused Kailash and his relatives used to beat deceased. Further no complaint regarding such beatings has been brought on file. PW6 has further alleged that her inlaws including mother in law, father in law, Nanad and grand mother in law used to taunt her for not State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 29 of 58 bringing sufficient dowry articles and used ask her that dowry articles were not given as per their standard. PW6 also did not specify as to which articles in dowry were demand by the accused persons or what all demands were made by them. No date and time of alleged demand of dowry has been stated by PW6. PW13 Sarma Devi is the cousin sister of deceased Jyoti. She has stated that deceased was not having any child after marriage that's why her inlaws tortured and taunted her and also told taht 'sabko bahuo ke bacche ho gaye hai, tere khu nahi hua'. They also used to taunt that low quality of articles were given in the marriage. The mother in law and sister in law of deceased also tortured and harassed her to bring the money from her parents house. The version of PW6 that in laws tortured and taunted her that she could not conceive cannot be treated as harassment on account of demand of dowry. She has not made clear as to how much money was demanded by the accused persons from the deceased. I have considered her cross examination also. She has stated that in the month of May 2005 when she was at her maternal home, the deceased was first told her about the cruelty upon her regarding dowry. She admitted that from 2001 to May 2005 deceased never told her about cruelty on account of dowry. The marriage of deceased was solemnized in the year 2001 and she expired on 9/10.7.2005. It has been admitted by PW13 Sarma Devi that deceased never told her about cruelty on account of dowry from 2001 to May 2005. It is State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 30 of 58 crystal clear that from 2001 i.e. the day of marriage till May 2005 there was no demand of dowry and therefore not disclosed to any of the relatives by deceased Jyoti. Allegedly the demand was raised thereafter. But none of the witnesses could state as to which dowry articles were demanded by the accused persons. PW13 has stated in cross examination that in her statement to SDM, she had not stated anything about dowry. She admitted that there was no demand of dowry that is why it is not mentioned in the statement to the SDM and to the IO. By admitting this suggestion of the Ld. Defence counsel, it is crystal clear that there was no demand for dowry at any time by the accused persons. Pw13 Sarma Devi is an Advocate by profession and if she had come to know about any such demand or beatings, it was incumbent upon her to lodge proper complaint in this respect or to disclose the same to the parents of deceased or to talk to the in­laws and husband of deceased. But she could not bring on record any such complaint or disclosed about the same to the parents of deceased. PW4 Bhagwati has also stated that Jyoti used to tell her that her in laws used to beat her. She has not stated any reason as to why they used to beat her. Pw4 has not stated about any harassment or cruelty on account of demand of dowry while she is the mediator in the marriage and even residing in the locality at two minutes walking distance where deceased Jyoti was residing in her matrimonial house with the accused persons.

State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 31 of 58

45. Considering the above discussions and testimonies of the relatives it has come in evidence of all the PWS that deceased Jyoti could not conceive after marriage. PW13 as well as other PWS including PW12 Devender Singh have alleged that she used to be taunt on this ground by the accused persons. This taunt cannot be considered as taunt for demand for dowry. Other allegations regarding demand of dowry by these witnesses cannot be taken into account because no article has been specified by any of the witness. From the testimonies of these witness it is revealed that they have clearly admitted in cross examination or even stated in their examination in chief that there was no demand of dowry or harassment in that account meted to deceased Jyoti. This makes emphatically clear that there was no demand of dowry from the side of accused persons. PW1,2,6,7 and 13 have stated that Jyoti remained at the house of PW1,2,7 for about one month before he came back to her matrimonial house. They have even not alleged that during this period, Jyoti had disclosed something to them regarding demand of dowry. PWS have not deposed as to what articles or how much cash was demanded by the accused persons. So, their testimonies do not reveal any demand for dowry of particular articles. In view of the deposition of star witnesses of the prosecution, I have also considered some case law and would like to mention the same for just decision of the case. In case law Sunil State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 32 of 58 Bajaj Vs. State of MP, 2001 (2) JCC (SC) 262 it is stated in head note:­ 'Section 304B­ It is pleaded that last letter of deceased did not mention any allegation of dowry demand - The letter of deceased does not speak of any demand of dowry and there is totally absence of demand of dowry and so sec.498A of IPC is not at all attracted - Thus the necessary ingredients of the offence of sec.304B of IPC is absent and so the conviction and sentence of the appellant cannot sustain and so the appellant is acquitted of the conviction u/s 304B IPC. It is further stated that : Both the courts below concurrently committed the appellant - But out of so many witnesses of the neighbour none could say that there was a dowry death and the deceased was soon before her death was subjected to demand of dowry which was necessary ingredient of the offence u/s 498A of IPC committed by the husband or by any of the family members or near relatives'.

In case law Baljeet Singh & Anr Vs. State of Haryana, 2004(1) JCC 627 it is stated in headnote that :

'Evidence Act. 1872 - Sec.113B­ Presumption­ Dowry death - Against accused persons to be drawn provided the prosecution establishes that soon before her death if the woman was subjected to cruelty or harassment within 7 years of marriage'.

'Dowry death - Onus of proof­ Preliminary facts - Proof of - Onus lies upon the prosecution - High Court erroneously shifted the burden upon the accused - About the date of marriage - Prosecution is required to prove that death occurred within 7 days of marriage - PW4 father of the deceased was not creditworthy - So were other related PW5 - Prosecution failed to discharge its initial onus of proof - PW5 the mother stated that the deceased was depressed - This indicated that woman committed suicide in a state of depression - Hence conviction is set aside and appeal is allowed'.

In case Law Raman Kumar Vs. State of Punjab, 2009(3) JCC 1840 State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 33 of 58 it is stated in head note that :

'Sec. 304B - Evidence Act, 1872 - Sec. 113B - Dowry Death - No incidence of demand of dowry or cruelty or harassment 'soon before death' - Letter relied on shows demand of articles by her parents by her own and not on the behalf of appellant - Improvements in the statements of prosecution witnesses - Prosecution squarely failed to establish accusations against appellant - Appeal allowed - Conviction set aside'.

In case law Harjit Singh Vs. State of Punjab, (2006) 1 SCC 463 it is stated in head note that :

'Sec. 304B - Dowry death - soon before the death, deceased was subjected to cruelty or harassment by her husband for or in connection with demand of dowry - Once this is established, a legal fiction is created under section 304B IPC whereby such death would be called dowry death - On facts held, ingredients of Sec.304B IPC r/ sec. 113 B Evidnce Act not satisfied'.

In case law Tarsen Singh Vs. State of Punjab, 2009 (1) JCC 372 it is stated in head note that:­ 'One of the essential ingredients amongst others, is that the woman must have been 'soon before her death' subjected to cruelty or harassment for, or in connection with the demand for dowry - Nothing on record to show that any demand of dowry was made soon before her death­ The cause of action appears to be an ego problem on the part of the appellant, namely the deceased had not been coming to her matrimonial home - Conviction u/s 304B not proved'.

In case Law Durga Prasad & Anr Vs. State of M.P, 2010 (3) JCC 1852 it is stated in head note that:­ 'Sec. 304B - Dowry death­ In order to hold an accused guilty of an offence of dowry death - it has to be shown that apart State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 34 of 58 from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of marriage - It has also to be shown that soon before her death she was subjected to cruelty and harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry'.

'Sec. 304B - In order to bring home a conviction u/s 304B, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim - But that such treatment was in connection with the demand for dowry'.

46. Considering the above discussion, to prove the case u/s 304B IPC these ingredients have to be proved (i) unnatural death (ii) within 7 years of marriage and (iii) soon before death she was subjected to cruelty or harassment by her husband or relative of her husband (iv) such cruelty must be in connection with demand of dowry (v) such cruelty is shown to have been meted to the woman soon before her death. In this case the death occurred as a strangulation by ligature material. The MLC is Ex.PW8/A wherein it has been mentioned that bluish marks seen around neck on both sides.

The death of deceased Jyoti @Meenu took place within 7 years of marriage and it was unnatural death. So, two ingredients has been proved by the prosecution. Now it is necessary to find out as to whether the deceased was being harassed soon before her death by subjecting her to cruelty and demand of dowry. It is now well settled in view of a catena of decisions of Hon'ble Apex Court that what State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 35 of 58 would constitute 'soon before her death' depends upon the facts and circumstances of the case. In this case PW1 Sheila, PW2 Pritam, Pw4 Bhagwati, PW6 Neetu, PW7 Ganga Bishan and PW13 Sarma Devi who is an Advocate are silent on this aspect. They have not deposed that they had received any call from Jyoti @ Meenu soon before her death alleging demand for dowry or before her death she has ever made any such complaint for demand of any specific article/cash by the accused persons. On the other hand these witnesses have clearly admitted that there was no demand for dowry by the accused persons in this case. It has come in evidence that she used to be taunted for not bearing the child. The version of above PWS cannot be termed as harassment for demand of dowry. So, there is no evidence for harassment on account of demand of dowry soon before death in this case. In my view there is no evidence available on file in this case that deceased Jyoti @ Meenu was subjected to cruelty or harassment on account of demand of dowry. There is no indication that there was any cruelty or harassment meted out soon before the death of Jyoti. Hence, ingredients of Sec.498A/304B IPC are not complete in this case.

47. In this case alternative charge has also been framed against the accused persons for the commission of offence punishable u/s 302 IPC. I have also perused the testimonies of other official witnesses as State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 36 of 58 well as relatives of deceased again. It is revealed that in this case no one had seen the accused persons killing the deceased. Therefore this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujarat, 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof ­it has been indicated by this court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710­11, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:­ '10. (1) the circumstances from which an inference of guilty is sought to State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 37 of 58 be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

48. In the present case in hand, deceased Jyoti was found dead at the house of her in ­laws in the night time. The accused persons have not taken any defence that they were not present at the house there. So, it is crystal clear that they are present at the house at the time of incident. There is no evidence on record which suggest that deceased Jyoti was found hanging. PW1,2,4,6 & 7 who are the relatives of deceased have stated that they asked the brother of accused Kailash about the incident and he replied that when he came to house, he found Jyoti lying dead. PW15ASI Gopi Ram and PW24 Insp. Ram Kishan have stated that they reached at the spot and found Jyoti lying dead and PW15 has stated that he found blue marks on the neck of deceased on both sides on the neck and PW24 has stated that he found ligature mark on her neck. PW10 Dr. Bharat Verma who was with Dr. Sumit Sethi at the time of post mortem has clearly stated in cross examination that this is not a case of hanging due to larynx and trachea State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 38 of 58 was found NAD (nothing abnormal detected). So, PW10 testified that deceased Jyoti did not hang.

49. The present case was registered when strangulation marks were noticed on the neck of deceased Jyoti. The medical evidence in this case is very significant to establish the charge u/s 302 IPC. PW8 Dr. Yashika has prepared the MLC Ex.PW8/A of deceased Jyoti @ Minu. She has stated that bluish marks were seen around neck on both sides. In cross examination she has admitted that she did not notice any ligature mark on the back or front of the neck. She has noted bluish marks only on the sides below the ears. Pw9 Dr. Nidhi Gupta has stated that she was posted in Lady Harding Hospital as CMO since Jan 2005 to June 2005. She has been declared hostile and cross examined by the Ld. APP for the State. Her statement Ex.WP9/A has been read over to her which she denied having made the same to the police. She did not stated that on 9/10.7.05 at about 2 a.m two persons brought a fat lady aged about 20­22 years. She did not stated to the police that to confirm about the death she called the person who deal in ECG. After checking the other patients, when she returned back, both the persons who had brought the fat lady, had left alongwith the dead body of a lady. Those persons were referring themselves a members of the hospital. She did not stated that she had prepared any medical papers at that time. She denied that she is under the pressure State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 39 of 58 of staff members. PW10 Dr. Bharat Verma, Sr.Resident has deposed that post mortem of Jyoti was conducted by his senior Dr. Sumit Seth. The post mortem report is Ex.PW10/A.I have also perused the said report. On external examination following injuries were found:­

1.A ligature mark is present over the neck, dark brown in colour. The ligature mark is on length 36 cm starting from point 3 cm below right mastoid process, placed 5 cm from angle or right jaw, 6.5 cm from chin and 5 cm from the angle of left jaw till a point 1 cm below left mastoid process. The ligature marks ends on the left side 18 cm from the mid line. The width of ligature mark is 3 cm. The ligature mark is not present over the back of neck, it is transversely placed over the front of the neck.

2. A scratch abrasion crecent shaped is present over the 9th intercorel space over the right side, 7 cm from the midline.

3. A bruise of size 3x1 cm is present over the right supra­scapuler region. Tongue was found caught between teeth. Bruising is present over the subcutaneous tissues corresponding below the ligature mark, other neck structures intact. The cause of death has been mentioned as asphyxia as a result of strangulation by ligature material. All injuries are antemortem in nature and fresh in duration. Injury no.1 is sufficient to cause death in ordinary course of nature. I have also perused the cross examination of PW10 Dr.Bharat Verma. He has stated that he has signed the post mortem report on the finding given by Dr. Sumit Seth and he has not conducted the postmortem. He was attached with the forensic Department on the day of most mortem. He was in mortuary when Dr. Sumit Seth conducted the post mortem. He State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 40 of 58 cannot say how many post mortem were conducted by Dr. Sumit Sethi on that day. Dr. Seth had conducted the post mortem report and he only signed the PM report. When Dr. Seth asked him to sign, he signed on the post mortem report. He cannot say who has signed Ex.PW7/A at point B. He cannot say who signed on Ex.PW10/DA and Ex.PW10/DB. He admitted that Modi's Jurisprudence is a authentic book on medical science. He agree with the findings of Mr. Modi described in the book. He agreed with the finding of Dr. Modi regarding ligature marks and he stressed on word usually and stated that it refers to general conditions, not always, each and every case could be different in certain findings. He agreed that in case of hanging, the entire neck would not be involved and ligature will absent where the knot is tied with the hanging object. He has stated that usually, in cases of hanging, the ligature mark is incomplete. He agreed that in case of strangulation, ligature marks will be horizontal and in case of hanging, it will be oblique as per Modi's Medical Jurisprudence and not completely encircling the neck. He has further answered that usually the ligature marks would be below thairoid cartilages in case of strangulation and above thairoid cartilages in case of hanging. He has further stated in cross examination that as per the post mortem findings of Dr. Seth, the ligature marks is not present over the entire neck. He has further answered in positive that in case a person is lying face down, and a person sitting on his back, and State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 41 of 58 strangulate, the ligature mark would be present on whole of the neck and particularly back of the neck also. He has further answered in positive that where there was no ligature mark on the back of the neck, there is possibility that this is a case of hanging. He has further answered that in this case the larynx and trachea was found NAD (nothing abnormal detected). In this case, he does not agree that this is the case of hanging due to larynx and trachea was found NAD. He agreed that in case of strangulation the larynx and trachea were congested.

50. Ld. Defence counsel has argued that deceased Jyoti has hanged herself in the house with wooden balli. However, there is no evidence on record which shows as to who has brought down the deceased from there. It has been submitted by the Ld. Counsel that accused Kailash has taken her to the hospital where she was declared dead. In this case it is necessary to know about common differences between hanging and strangulation.

HANGING STRANGULATION

1.Suicidal usually 1. Homicidal usually

2.No signs of struggle 2. Signs of struggle State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 42 of 58

3.Ligature found in position, 3. Ligature may not be with the above thyroid cartilage, body but when found completely incomplete, directed obliquely encircles the neck horizontally upwards with a gap indicating below thyroid cartilage. There position of the knot with no may be more than one turn of damage to the skin in the gap ligature and there is always some damage to the skin underneath

4.Abrasions and bruises round 4.Abrasions and bruises round above the ligature mark rare about the ligature mark common

5.Dissection of ligature mark 5.Dissection of the ligature mark reveals a dry and glistening white reveals ecchymosed subcutaneous band of subcutaneous areolar areolar tissue tissue

6. Neck usually stretched 6.Neck not stretched

7.Fracture of hyoid rare 7. Fracture of the hyoid not rare

8.Fracture of the larynx and 8.Fracture of the larynx and trachea rare trachea common

9. Injury to the carotid arteries 9.Injury to carotid arteries only in cases with a long drop common

10.Injury to the muscles of the 10.Injury to the muscles of the neck rare neck common

11.Fracture dislocation of the 11.Fracture dislocation of the cervical vertebrae common in cervical vertebrae rare judicial hanging

12.Saliva running out of the angle 12.Saliva may not have escaped of the mouth vertically down from the mouth but if so, usually along the neck and front of chest blood tingled and may not be and abdomen vertically down

13.External signs of asphyxia not 13. External signs of asphyxia well marked if death is due to well marked.

vagal inhibition State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 43 of 58 14 Face usually pale 14.Face congested with marked petechiac

15.Bleeding from the nose mouth 15.Bleeding from the nose, mouth and ears very rare and ears common

16. Emphysematous patches on 16.Emphysematous patches on the lung may be present the lung common.

51. In view of the above table on hanging and strangulation, I have again perused the post mortem report and medical evidence. In the present case the ligature marks were not present at the back of the neck, it was transversely placed over the front of the neck and cause of death has been opined by strangulation. But PW10 Dr.Bharat Verma has himself admitted in cross examination that entire neck would not be involved in case of hanging and ligature will be absent where the knot is tied with the hanging object. PW10 further admitted that in hanging the ligature is always oblique which is also the case here that there was no ligature mark at the back of the neck of deceased. From these admissions of PW10 it seems that the present case is a case of hanging and not of strangulation because there was no ligature marks seen on the back of the neck.

52. On perusal of the photographs of deceased Jyoti @Meenu it is revealed that she was heavier that accused Kailash @ Bittu. But there is no sign of struggle on the body of deceased had been detected State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 44 of 58 by the doctor while there should have been signs of struggle in strangulation which is missing in this case. This also suggest that it is a case of hanging. The larynx and trachea was found NAD (nothing abnormal detected) which again show that this is a case of hanging and not strangulation because fracture of larynx and trachea is common in case of strangulation. Referred to Modi's Jurisprudence Book page 199. In hanging the bleeding from the nose, mouth and ears is very rare. In the present case there is no evidence that bleedings from these organs were detected or not. It seems that there was no bleeding and hence not mentioned and it further seems that this was the case of hanging. It is the case of the prosecution that accused Kailash had sat at the back of deceased Jyoti and then strangulated her. In this respect ld. Defence counsel has put the following question to PW10 Dr. Bharat Verma.

Q In a case where a person is lying face down, and a person sitting on his back, and strangulate, the ligature mark would be present on whole of the neck and particularly back of the neck also. What have you to say?

A Yes. The ligature mark should be there encircling the whole neck in most of the conditions. It is correct that in this case the entire neck is not involved.

53. The answer of PW10 Dr. Bharat Verma to the above question of Ld. Defence counsel has falsified the case of the prosecution with respect that the accused sat on deceased's back and then strangulated her when her face was downward because in that State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 45 of 58 case also the ligature marks should have been encircling the neck which is not in the present case. Two more questions are reproduced for just decision of the case.

Q In a case where there was no ligature mark on the back of the neck, there is possibility that this is a case of hanging. What have you to say?

           A                Yes.

           Q              I put it to you that in case of strangulation, ligature 

mark will be horizontal and in case of hanging, it will be oblique as per Modi's Jurisprudence, 21st Edition, page 190 and 191. Photocopy of which is Ex.PW10/DD and Ex.Pw10/DE. What have you to say?

A I agree.

54. Considering the answers to the above question, it it crystal clear that the present case is a case of hanging and not strangulation. Dr. Sumit Seth had conducted the post mortem in the present case and PW10 Dr. Bharat Verma was PG student at that time. Dr. Sumit Seth has not appeared in the court to prove the Post Mortem Report. However, Dr. Bharat Verma was attached to the Forensic Department at the relevant time has been examined and he has stated in cross examination that he was in the mortuary when Dr. Sumit Seth conducted the post mortem examination. He only signed the post mortem report. He has put his signatures and date on the post mortem report when Dr. Seth asked him to sign. From the version of PW10 it seems that he was not present and accompanying Dr. Sumit Seth at the State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 46 of 58 time of post mortem and he only signed it thereafter. However, he has been examined by the prosecution and his cross examination revealed that the present case was the case of hanging and not strangulation though Dr. Sumit had opined the cause of death as asphyxia as a result of strangulation by ligature material. Pw10 has admitted that asphyxia could be the result of hanging or strangulation. PW8 Dr. Yashika who had seen Jyoti @ Minu and prepared her MLC Ex.PW8/A has specifically stated in her cross examination that it is correct that she did not notice any ligature mark on the back or front of the neck. She noted bluish marks only on the sides below the ears. The medical evidence in the present case do not support the case to be a case of strangulation.

55. Ld. Defence counsel has submitted that no recovery has been effected on the disclosure statements of accused Subhash, Rajabala and Lalita. I have perused the said disclosure statements Ex.PW15/D, Ex.PW15/B, Ex.Pw15/C. In the said disclosure statements they have only stated that Jyoti could not bear the child despite considerable time has lapsed after marriage and they used to state to Jyoti on this account. Nothing about murder or harassing Jyoti on account of dowry has been mentioned. No recovery has been effected on the said disclosure statements. So, these statements are inadmissible in evidence.

State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 47 of 58

56. I have perused the disclosure statement of accused Kailash @ Bitu which is Ex.PW7/D. On the basis of this disclosure statement one chunni was allegedly recovered from the washing machine with which Jyoti was strangulated. It has come in the evidence that some hairs were wrapped in the chunni. PW7 Ganga Bishan(father of deceased), PW15 ASI Gopi Ram, PW21 SI Ravi Kant and PW24 Insp. Ram Kishan are the witnesses with regarding to recovery of chunni. PW7 Ganga Bishan has stated that accused Kailash has stated that he had killed Jyoti and he got recovered a chunni from inside the washing machine. The chunni was of light yellow colour and it has come scalp hair of his daughter. It was seized vide memo Ex.Pw7/C. PW15 ASI Gopi Ram has stated that accused Kailash got recovered chunni with some hairs with which he had committed the murder of deceased. Accused also pointed out the bed where he committed the murder of deceased. The pointing out memo is Ex.PW7/G. In the present case the place of incident was already in the knowledge of police. However, Pw15 has not stated from where the alleged chunni was recovered. In cross examination he has stated that he cannot tell whether the chunni and the bunch of hair recovered were sent to FSL or not. PW21 SI Ravi Kant has stated that accused had pointed out towards the washing machine and took out a chunni from it and produced the the IO. Some hairs were found inside the chunni and the said chunni was wearing State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 48 of 58 stretch marks. PW24 Insp. Ram Kishan who is the IO of this case has stated that in pursuance of the disclosure statement, accused took to his bathroom and got recovered a chunni from the open space of bathroom. Some hairs were wrapped on the chunni. In cross examination he has stated that the chunni of the deceased was of yellow colour. The chunni was recovered from the open space situated near the gate of the back portion of the house. In consideration of the evidence regarding recovery of chunni Pw7 and PW21 have stated that the chunni was recovered from the washing machine. PW15 did not depose anything in this respect. But PW24 Insp. Ram Kishan who is the IO of this case has in examination in chief that accused got the chunni recovered from the open space in bathroom. In cross examination PW24 has stated that the chunni was recovered from the open space situated near the gate of back portion of the house. Pw24 has himself made contradictory statement regarding recovery of chunni as first he has stated that it was recovered from bathroom in the open space and thereafter in cross examination he has stated it was recovered from the back portion of the house from near the gate. PW7,21 and 24 have made contradictory statements in respect of recovery of chunni. The place of recovery of chunni is therefore could not be proved by the prosecution.

57. PW15 ASI Gopi Ram, PW21 SI Ravi Kant and PW24 Insp. State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 49 of 58 Ram Kishan have identified the chunni in the court. PW7 Ganga Bishan who is the father of the deceased at the time of identification has firstly stated that it is not the same chunni. He again opened the chunni and stated that at the time of seizure it was containing scalp hairs and these are still present in the chunni and then he identified it as the same which was got recovered by accused Kailash @ Bittu. At the first instance Pw7 could not identify the chunni of his daughter which was seized in his presence. No other independent public witness from the locality of deceased has been joined by the IO at the time of seizure of the said chunni. Alleged washing machine from where the chunni was recovered has also not been seized by the police. So, recovery of chunni is doubtful and prosecution could not prove this circumstance of recovery of chunni in this case. In this respect reliance can be placed on 2003 Supreme Court Cases (Cri) 1149, Salim Akhtar @ Mota Vs. State of U.P.in which it is stated in headnote 'A' that :­ 'Terrorist and Disruptive Activities (Prevention) Act, 1987 - S.5­ Recovery of a polythene bag containing a pistol, cartridges, a bomb and RDX at the instance of accused - appellant - Recovery from an open place accessible to all and everyone - Conviction u/s 5 - Propriety - Pistol alleged to have been recovered not sealed and its "number" or "make" etc. to fix its identity not mentioned in the recovery memo or FIR - No effort made by police to get any independent public witnesses at the time of alleged recovery - The only public witness (a photographer) examined was not only intimate but was also obliged to the police party - Held, Sec. 27 of Evidence Act what was admissible was the place from where the said polythene bag was allegedly recovery - The fact that some terrorist organization State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 50 of 58 had given the pistol and other articles to the appellant or its use, held, not admissible - since the recovery was made from an open place accessible to all and everyone, held, it was not possible to hold that the appellant was in possession of articles alleged to have been recovered from him - Hence conviction and sentence of appellant set aside - Evidence Act, 1872, Sec.27 - Criminal Trial - Possession of incriminating article - Recovery of incriminating articles from an open place accessible to all - Inference of possession, held doubtful'. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that :­ "When genuine attempts has not been made to join public witnesses - One is constrained to observe that in case of suppression and mis­statement of fact, it is difficult to believe the official witnesses".

58. The prosecution has obtained the subsequent opinion regarding ligature material in this case. I have perused the said opinion Ex.PW24/D. The subsequent opinion has been given by PW10. I have against perused the testimony of PW10. It is revealed that he has not stated anything about giving of subsequent opinion. It has been opined by Dr. Bharat Verma that strangulation could be possible from the chunni examined by him. I have gone through the subsequent opinion. The chunni which was produced in the court was of light yellow colour which is also mentioned in the seizure memo. But subsequent opinion was given by Dr. Bharat Verma after examination of light brown coloured chunni. So, it is crystal clear that Dr. Bharat Verma has not examined the yellow colour chunni which is the alleged weapon of offence/ligature material in the present case. The State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 51 of 58 prosecution could not prove this circumstance also.

59. It has come in evidence that some hairs were wrapped in the recovered chunni. The prosecution did not seize the hairs of deceased in this case. The hairs wrapped in chunni has also not been sent to FSL for comparison with the hairs of deceased. The prosecution has failed to connect the accused by way of this circumstances also. In case law Padala Veera Reddy Vs. State of Andhra Pradesh, 1989 Supp (2) S.C.C 706 it is stated in head note that :­ 'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8. 'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.

It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 26­27) that :­ 'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 52 of 58 of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.

60. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. It has only come in the disclosure statement that Jyoti used to ask him to live separately and she used to say that they are not getting her proper treatment while as per the statements of her relatives that they used to get her treated from Doctor in Kalkaji. The parents and relatives of deceased have even not stated as to why Jyoti State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 53 of 58 @ Meenu was murdered by the accused. They have even not stated that Jyoti had ever told them that she wanted to live separately from her in­laws or about any quarrel between accused Kailash @ Bittoo and herself. Jyoti had no issue but she was also under treatment. There is no evidence on record which suggest motive to kill Jyoti. It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that :­ 'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete go­by given to this statement by informant in his examination in court - Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.

In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote :­ 'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302

- Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.

61. The onus to prove case u/s 302 IPC is on the prosecution. But in the present case prosecution could not discharge its onus by leading cogent and reliable evidence. Suicide committed by living State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 54 of 58 human beings for various reasons. There is no presumption that every suicide committed by married woman in her in law's house or at her parents, house has to be because she was suffering harassment at the hands of her husband or her in­laws. Some commits suicide because of frustration of not achieving the desired goals. In this case it has come in evidence that deceased Jyoti was not bearing child since her marriage while five years had already lapsed. It may be that deceased was depressed because of not bearing the child. It is well settled law that men may speak lie but circumstances do not.

62. In view of the above overall analysis of the testimonies of the witnesses and in brief whatever allegations have been levelled by PW1,2,4,6,7,12 and 13 regarding demand of dowry does not inspire confidence. The important ingredient of 'soon before death' is missing. The circumstances also does not connect the accused persons with the present case incident. So, in this case ingredients of section 304B IPC are absent and there is no allegation for soon before death of harassing for demand of dowry from deceased Jyoti @Meenu because whatever allegations have been made in the statements recorded before the court and recorded by the SDM does not inspire confidence. So, I am of the opinion that Jyoti @Meenu was not maltreated soon before her death or even at any time after marriage by the accused persons.

State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 55 of 58

63. In view of my above discussions and considering the case laws discussed above, this case does not fall under the category of section 304B IPC and no presumption can be taken against the accused persons u/s 113 B of Indian Evidence Act. The prosecution has failed to bring home the guilt of the accused u/s 498A/304B/34 IPC.

64. Realities of truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. There is a long mental distance between 'may be true' and 'must be true' and this basic and this golden rule only helps to maintain the vital distinction between 'conjectures' and 'sure conclusions' to be arrived at on the touch stone of a dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case as well as State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 56 of 58 quality and credibility of the evidence brought on record.

65. As far as charge u/s 302 IPC is concerned, no one had seen accused killing deceased Jyoti @ Meenu. The Medical evidence did not support that it is a case of strangulation. The place of recovery of chunni is doubtful. The alleged washing machine has also not been recovered. Subsequent opinion has been given on some light brown colour chunni while infact light yellow colour chunni was alleged recovered. The hairs found on the chunni has not been send to FSL for examination and comparison with the hairs of deceased. So, the prosecution could not form a chain of circumstances while it is well settled law that in a case of circumstantial evidence each and every chain of circumstances has to be established by the prosecution by leading cogent and reliable evidence pointing the guilt of accused. But in the present case the prosecution could not form a chain of circumstances.

66. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that :­ "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 57 of 58 than from the conviction of an innocent".

67. In over all analysis of the testimonies of the witnesses, this case does not fall under the category of 304B IPC and I also did not find any evidence against the accused persons for the commission of offence punishable u/s 498A IPC. The prosecution also could not form the chain of circumstances to establish the charge u/s 302 IPC. So, I am of the considered view that the prosecution has failed to prove its case against the accused persons. In such circumstances, the accused persons are entitled to be given the benefit of doubt. I, therefore give the benefit of doubt to accused persons and I therefore, hereby acquit accused Kailash for the commission of offence punishable u/s 498A/302 IPC and accused Subhash, Rajbala, Lalita and Kasturi Devi are also acquitted for the commission of offence punishable u/s 498A/304B IPC as well as from alternative charge u/s 302/34 IPC. Accused Subhash, Rajbala, Lalita and Kasturi Devi are on bail. Their bail bonds are cancelled and sureties are discharged. Accused Kailash @ Bittoo is in JC. He be released from the jail forthwith if not required in any other case. File be consigned to record room. Announced in the open Court on 12.10.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court­New Delhi and South East District) NEW DELHI State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 58 of 58 State Vs.Kailash @ Bittoo etc FIR no.271/05 Page No. 59 of 58