Delhi District Court
State vs . Balwan Singh & Ors Page 1 Of 32 on 28 May, 2019
IN THE COURT OF JITENDRA KUMAR MISHRA,
SPECIAL JUDGE (NDPS), NORTH DISTRICT, ROHINI
COURTS, DELHI.
SC No. 57853/16
FIR No. 29/11
U/s. 498A/304B/34 IPC
P.S. Kanjhawla
State
Vs.
1. Balwan Singh
S/o Sh. Rahipat
R/o VPO Madina Gindhran
PS: Meham, Distt. Rohtak
Haryana
2. Gyan Prakash
S/o Sh. Balwan Singh
R/o House No 103, back of Nirmal hospital
VPO Kanjhawla, Delhi.
Permanent address: VPO, Madina Gindhran, PS
Meham, Distt. Rohtak, Haryana.
3. Ram Rati
W/o Sh. Balwan Singh
VPO, Madina Gindhran, PS
Meham, Distt. Rohtak, Haryana.(since expired and
proceedings against her have been abated)
4. Vijay Prateek
S/o Sh. Balwan Singh
R/o VPO, Madina Gindhran, PS
Meham, Distt. Rohtak, Haryana.
............... Accused persons.
State vs. Balwan Singh & ors Page 1 of 32
(FIR No. 29/11 PS Kanjhawala)
Date of institution : 10.05.2012
Date of arguments : 09.05.2019
Date of judgment : 28.05.2019
(More than Seven Years old case)
JUDGMENT :
1. Accused persons were arrested by the Police officials of Police Station Kanjhawala and were challaned to the court for trial for commission of the offence punishable U/s 498A/304B/34 IPC.
2. Prosecution story, as unfolded from the perusal of the charge-sheet is that accused Gyan Prakash, Vijay Prateek, Balwan Singh and Ramrati being husband, elder brother in law, father in law and mother in law of deceased Kavita respectively were sent by police of PS Kanjhawla to face trial for offence punishable U/s 498A/304B/34 IPC on the allegations that on 09.10.2011 dead body of a lady and male child were found on railway line Ghevra. They were identified as Kavita W/o Sh. Gyan Prakash and child as Shanu @ Utkarsh. The parents of the deceased came to the police post and got their statements recorded. They stated that their daughter was married on 16.01.2015 with accused Gyan Prakash s/o Sh. Balwan Singh and her daughter was harassed for dowry and was killed and thrown on the railway line. The post mortem of the dead bodies were got conducted and as per the post mortem reports the cause of death is due State vs. Balwan Singh & ors Page 2 of 32 (FIR No. 29/11 PS Kanjhawala) to combined effect of cruise-embroil damage, haemorrhagic and shock consequent upon force impact which is fatal and ante mortem injuries were found on the dead bodies. The subsequent opinion was asked from the doctor whether death in the case was suicidal or the dead bodies put up on the tracks to project as run over by train and whether the death of both persons was due to run over by the train or otherwise. The concerned doctor gave opinion and stated that injuries are possible by run over by the train.
The statements of father, mother and brother of deceased were recorded by SDM. The mother of the deceased stated that her daughter was tortured for bringing less dowry. When she gave birth to a child, her in laws demanded car and when they did not get it, her husband, mother in law, father in law and elder brother in law started beating her. She suspects that they had killed her daughter and thrown dead body. She further stated that her son in law accused wanted to take house in Bahadurgarh(Haryana) and for that purpose, her husband and parents demanded Rs. 10 lacs from them and when they could not meet their demand, they threatened them to kill. They earlier said that daughter is also having right in the father's property and asked her to bring Rs.10 lacs and car. Their daughter had come to them on 03.10.2011 in Dushera Holiday and told that her in laws had demanded Rs. 10 lacs. In the meantime, parents of the deceased lady received telephonic call of her husband who asked her 'apne baap ko kamar kas lene ke liye bolo' and State vs. Balwan Singh & ors Page 3 of 32 (FIR No. 29/11 PS Kanjhawala) one day before the incident her husband had called her on telephone at about 2 pm and her son Vinit had left her at Sonepat Bus stand.
3. The matter was further investigated by the police Statements of the witnesses were recorded. After completing investigation and conducting other necessary formalities, charge-sheet was filed in the court. Offence u/s 498A/304B/34 IPC was stated to be made out against the accused persons.
4. After supplying copies of documents to the accused persons U/s 207 Cr.P.C., ld. Metropolitan Magistrate committed the present case to the Court of Sessions.
5. Vide order dated 30.08.2012, charge U/s 498A/304B/34 IPC and in the alternative charge U/s 302 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
6. Trial proceeded and during the course of trial, prosecution in order to substantiate its case against the accused persons, examined forty four witnesses.
7. After conclusion of prosecution evidence, statement of accused persons were recorded under Section 313 Cr.P.C wherein all the incriminating evidence, which had come on record during trial against the accused persons, was State vs. Balwan Singh & ors Page 4 of 32 (FIR No. 29/11 PS Kanjhawala) put to them to which they stated that this is a false case registered against them. They had treated deceased Kavita with all respect in her life. They stated that they wanted to lead DE. In support of their case, accused persons examined DW-1 Sh Ram Niwas.
DW-1 Sh. Ram Niwas deposed before the court that he knew the family of complainant and accused as they were his relative and he persuaded both the families for the marriage of deceased with accused Gyan Prakash. DW 1 further deposed that there was no quarrel between the families but all in her married life deceased only complained that accused Gyan Prakash was not handsome as she was. He further persuaded Kavita to behave in a good manner. DW
-1 further deposed that in the marriage, there was no exchange of dowry, though, on an instance, father of deceased Kavita offered a ring to accused Balwan, however, he denied that. DW-1 further deposed that in the lifetime of deceased Kavita, she never complained to DW-1 or her family members regarding the behaviour or any demand by the accused persons.
He was cross-examined by ld. Addl. PP.
8. I have heard Sh. J. S. Malik, ld. Addl. PP for the State and Sh. Rakesh Chahar, ld. Counsel for accused persons. I have also perused the material on record.
State vs. Balwan Singh & ors Page 5 of 32(FIR No. 29/11 PS Kanjhawala)
9. Ld. Counsel for accused persons has contended that there are glaring contradictions in the statements of witnesses examined by the prosecution. Ld. Defence Counsel further submitted that accused persons have been falsely implicated in this case and are innocent. Accused persons have taken the defence that they have been falsely implicated in this case at the instance of parents of deceased.
10. Per contra, ld. Addl. PP for State has contended that there is not an iota of doubt in coming to the conclusion that accused persons have committed the offence, and, hence, they are liable to be convicted in this case.
11. Firstly, let the depositions made by witnesses be discussed herein:
i) PW-1 is Smt. Dharam Kaur. She deposed as per the lines of the prosecution. She proved her statement Ex.
PW 1/A. She had given the documents bearing the handwriting of her daughter Kavita to the police and same were seized by the police vide seizure memo Ex PW 1/B. The documents have been proved as Ex. PW 1/C, Ex.PW 1/D and Ex. PW 1/E.
ii) PW-2 is Sh. Ranbir Singh. He is father of the deceased. He deposed on the same lines as deposed by PW- 1 and supported the case of prosecution.
State vs. Balwan Singh & ors Page 6 of 32(FIR No. 29/11 PS Kanjhawala)
iii) PW-3 ASI Umesh Kumar. He proved the copy of FIR as Ex. PW 3/A and endorsement on the rukka as Ex. PW3/B. Copy of DD no 3 A has been proved as Ex. PW 3/C and copy of DD no. 4A has been proved as Ex. PW 3/D.
iv) PW-4 Sh. Vineet Kumar is the brother of deceased. He only supported the prosecution case with regard to identification of dead body of his sister and nephew. However, on some material aspects, he has not supported the prosecution case.
v) PW-5 Sh. Jitender Kumar is a formal witness. He deposed that on 09.10.2011 at about 6:44 pm driver Sh. Sant Kumar of Train number 54033 had informed him that one lady along with her child had committed suicide at pole No. 21/9 and the said lady and child had expired. He further proved the copy of original train signal register and the original Abormal register as Ex. PW 5/A and Ex. PW 5/B.
vi) PW-6 Sh. Sant Kumar is the driver of the train under which the deceased had committed suicide. He proved the copy of GTR as Ex. PW 6/A and its seizure memo as Ex. PW 6/B.
vii) PW-7 Sh. Veer Bhan deposed that he was on duty as a Guard at Train number 54033, UP Passenger train. On that day when the train started from old Delhi Railway station State vs. Balwan Singh & ors Page 7 of 32 (FIR No. 29/11 PS Kanjhawala) and reached near Electric pole No. 21/25 and kilometer pole No. 21/9, driver Sant Kumar informed him on walky talkie that some one came under the train and the driver stopped the train. PW -7 got down from the train and inspected the railway track and found that one lady along with her child was under
the last coach of the said train and on checking they were found dead. PW-7 further deposed that he made a phone call to Station Master of Ghewra Railway Station and also informed him in writing. PW-7 further proved the copy of message memo and Rough General as Ex. PW 7/A and Ex. PW 7/B and seizure memo of Message memo and Rough General as Ex. PW 7/C.
viii) PW-8 is Brahm Pal Singh. He is a formal witness.
He deposed that IO of this case had informed to the Vice Principal namely Sh. Vijay Pal Singh regarding arrest of accused Gyan Prakash in the present FIR and he made an enquiry from the IO regarding judicial custody of Gian Prakash vide letter Ex. PW 8/A.
ix) PW-9 HC Ajay deposed that he was posted as CIPA operator PS Sarai Rohilla Railway Station on the relevant day. On production of rukka before him by the IO, he prepared the FIR on computer system in the police station. PW-9 further proved the certificate U/s 65B of Indian Evidence Act as Ex. PW 9/1.
State vs. Balwan Singh & ors Page 8 of 32(FIR No. 29/11 PS Kanjhawala)
x) PW-10 Ct. Ramakant is the witness who obtained inquest papers of the present case from MHC(R) vide Road Certificate No. 29/21. He also obtained some articles from MHC(M) i.e. one raksine purse containing Micromax mobile, one charger, ladies watch and Rs.460, sample seal of AAAGJ CMO, Mortuary, Subzi Mandi along with one pulanda said to contain blood sample bearing similar seal. He brought all such articles to PS Kanjhawala vide RC no. 63/21.
PW 10 further deposed that on 26.12.2011 he took the sample seal and the blood sample pulanda from MHC(M) PS Kanjhawala vide RC no: 200/21 for being deposited in FSL Rohini. PW 10 also went to PS Sarai Rohilla Railway station and obtained a pullanda said to contain viscera from the MHC(M) vide RC no. 65/21 and took all said articles to FSL Rohini. He deposited the pullandas there.
xi) PW-11 Dr. Bina proved MLC no. 1068 dated 16.01.2012 and MLC no. 1088 dated 17.01.2012 in respect of accused Gyan Prakash as Ex. PW 11/1 and Ex. PW 11/2 respectively.
xii) PW-12 HC Rajbir Singh deposed regarding depositing of articles in malkhana of PS Kanjhawalwa vide entry No. 1981 of malkhana register and proved the copy of said entry as Ex. PW 12/1. PW 12 further deposed that on 26.12.2011 one sample seal had been sent to FSL Rohini through Ct. Ramakant vide RC no. 200/21. He proved the State vs. Balwan Singh & ors Page 9 of 32 (FIR No. 29/11 PS Kanjhawala) copy of said RC as Ex. PW 12/2.
xiii) PW-13 Ct. Dinesh deposed that on 11.10.2011 he was handed over copy of FIR by Inspector Rajesh Kumar for being delivered to ld. Ilaka MM and other senior officials. Accordingly, PW-13 had gone to their residences and had delivered copies of FIR to ld. MM, Joint CP, DCP and ACP.
xiv) PW-14 Inspector Manohar Lal deposed regarding reaching at the spot along with other officials and proved the scaled site plan as Ex. PW 14/1.
xv) PW-15 Smt. Saroj is the relative of the accused persons. She did not support the case of the prosecution and she denied all the suggestions to the contrary.
Xvi) PW-16 Smt. Premlata was dropped by ld Addl.PP submitting that her testimony was inconsequential in nature.
Xvii) PW-17 Smt. Rajwati is also a relative of accused persons. She has not stated anything which could have supported the case of the prosecution.
Xviii) PW-18 Smt. Nirmala is the neighbourer of the accused persons. However, she has not supported the case of the prosecution. She denied all the allegations which were put to her in contrary.
State vs. Balwan Singh & ors Page 10 of 32(FIR No. 29/11 PS Kanjhawala) Xix) PW-19 Dr. Ashitesh Bajwa proved the post mortem report no. 1841/11 in respect of dead body of Kavita as Ex. PW 19/1 and post mortem report No. 1842/11 in respect of Shonu @ Utkarsh as Ex. PW 19/2. Cause of death in this case as opined by him was combined effect of cranio cerebral damage and hemorrhage and shock consequent upon heavy blunt trauma which was necessarily fatal.
xx) PW-20 Ct. Satpal proved the copy of DD No. 15PS Kishan Ganj Railway dated 09.10.2011 as Ex. PW 20/1.
xxi) PW-21 Smt. Anita Dhankhar is the jethani of the deceased. She deposed in her testimony that Kavita used to remain perturbed (pareshan). She had further deposed that Kavita had told her that her husband Gyan Prakash, her jeth Sh. Vijay and their mother-in-law and father-in-law used to harass her. She told her that she used to be harassed on account of dowry and there used to be physical beatings given to her. She had also told her that once there was an attempt to burn her alive but she somehow saved herself and had gone to house of neighbours from where she went to her paternal house and had remained there for about six months. None from her matrimonial home had gone to bring her back during that period. She further told her that after some talks she was brought back in her in-laws' house but used to be harassed even thereafter. She further told that husband of State vs. Balwan Singh & ors Page 11 of 32 (FIR No. 29/11 PS Kanjhawala) PW 21 Sh. Vijay and their father-in-law had an evil eye upon her. Subsequently, as Gian Prakash used to serve in Delhi, Kavita was sent to Kanjhawala, Delhi. Kavita also told PW-21 that whenever Gian Prakash returned after meeting his parents, he used to beat her.
PW-21 further deposed that her in-laws had looked for some house in Bahadurgarh and as informed by Kavita, she was being pressurized to bring Rs.10 lacs from her parents for purchasing the house for Rs.22 lacs. Kavita was very much pareshan on this account and used to ask her as to from where her parents could get the said amount. She further stated that there used to be other talks between Kavita and herself. PW-21 further deposed that from her talks with PW-21, it never appeared that she could ever commit suicide.
xxii) PW-22 Sh. Ajeet Singh Dabas is only a formal witness and has deposed that being neighbour, Gian Prakash used to come to his house occasionally. He never had any occasion to learn about any quarrel between Gian Prakash and his wife and they had cordial relations. During cross- examination by ld. Addl. PP, PW 22 admitted that he accompanied Gyan Prakash to Ghewra Phatak where death of wife of Gyan Prakash and child had occurred.
xxiii) PW-23 Ct. Jarnail Singh deposed that on 17.01.2012 one accused Gian Prakash had been taken out from the lockup. He was then taken by PW-23 to SGM State vs. Balwan Singh & ors Page 12 of 32 (FIR No. 29/11 PS Kanjhawala) hospital. He was got medically examined there. He was then produced before ld. MM and remanded to JC.
xxiv) PW-24 Inspector Ramesh Chander is the initial IO of the case. He deposed that he remained IO of this case till 12.01.2012. It is further deposed by PW-24 that he had recorded statement of some witnesses. He also obtained PM report of the deceased Kavita and her son Satvik and also obtained subsequent opinion of doctor concerned in that regard.
xxv) PW-25 lady Ct. Suman Kumari was dropped vide separate statement of ld. Addl. PP since she was the witness of arrest and search of accused Ramrati who had since expired.
xxvi) PW-26 Ct. Sandeep Kumar is the witness who had taken a viscera box from malkhana PS Sarai Rohilla and had deposited the same in FSL Rohini. PW-26 had also taken one paper containing sample seal. After depositing the same in FSL, he had brought back the receipt and deposited it in malkhana PS Sarai Rohilla.
xxvii) PW-27 Ct. Rajesh Kumar deposed that on 09-10- 2011 while he was posted in PS Sarai Rohilla PP Kishan Ganj, he received a telephone call from SI Rajender who informed him that a dead body was lying on railway track State vs. Balwan Singh & ors Page 13 of 32 (FIR No. 29/11 PS Kanjhawala) between Ghewra and Mundka. At that time he was present at Nangloi Railway Station. He left for the said spot while SI Rajender came there from PP Kishan Ganj with an ambulance. He saw dead body of a lady and of a child lying on railway track near electric pole 21/8/9. It was on the line going towards Rohtak i.e. "upline". SI Rajender took photographs of the spot.
Thereafter, PW-27 along with SI Rajender took both the dead bodies to Subzi Mandi Mortuary. About a month and a half thereafter, police from PS Kanjhawala had called up PS Kishan Ganj and on receipt of information in that regard he reached the spot at railway track. Site plan was prepared at his instance.
Xxviii) PW-28 Sh. Sumit Kumar and PW-29 Kuldeep Kumar are the witnesses who have been dropped by ld. APP stating that their testimony is not material for decision of the case.
xxix) PW-30 Ct. Ram Karan deposed that in the month of January, 2012 accused Gian Prakash was in his custody and in PS Kanjhawala. He was taken out from the lockup by Inspector Sanjay Kumar and thereafter he accompanied Inspector Sanjay and the accused along with other police staff to house of the accused in Kanjhawala where accused had taken them.
During house search, a calender of the year 2008 State vs. Balwan Singh & ors Page 14 of 32 (FIR No. 29/11 PS Kanjhawala) was recovered from the house. It had a picture of Lord Krishna. Some words about character of Kavita were found written on back side of the calender. Her character was demeaned in those words. Bad words were also mentioned about her parents. The said calender was then seized vide memo Ex.PW30/1 which bears his signature at point mark X. xxx) PW-31 Sh. Santosh Kumar, Assistant Value Added Tax Officer, Department of Sales Tax, deposed that on 10-10- 11 while he was posted as Executive Magistrate (Sadar Bazar), District North. PW-31 further deposed that in the morning of 10-10-11 while he was at his home, he received a telephone call from Sarai Rohilla, Railway Station to the effect that a lady and a child had met with an accident. He was requested to reach Subzi Mandi Mortuary. He accordingly went there.
On reaching there he was informed that the accident in fact had taken place in the evening of 09-10-11. He had got conducted post mortem there. Inquest papers i.e. "brief facts" which is Ex.PW31/1 and Death Report Ex.PW31/2 bear his signatures at points mark X. He then returned to his office.
PW-31 recorded statements of Dharam Kaur, Ranvir Singh, and Vineet in his office. The statements Ex. PW31/3 (Ex.PW1/A), Ex.PW31/4 (Ex.PW2/A) and Ex.PW4/A (respectively) all bear his signatures at points Mark X. He made his endorsement Ex.PW31/3A on statement Ex.PW31/3 State vs. Balwan Singh & ors Page 15 of 32 (FIR No. 29/11 PS Kanjhawala) for issuing direction for taking necessary action as per Law.
Xxxi) PW-32 ASI Kewalanand deposed that on 10.10.11 while he was posted as MHC(M) in the PS Sarai Rohilla, SI Rajender Singh deposited in the malkhana one sealed viscera box, one sealed sample and two sample seals of AAAGH Subzi Mandi Mortuary. PW-32 further deposed that SI Rajender Singh also deposited with malkhana one ladies purse along with its contents. The same had been deposited in respect of DD No.15 PP Kishan Ganj in malkhana vide entry No. 492 of malkhana register. Copy thereof has been proved as Ex.PW32/1. PW 32 further deposed that SI Rajender Singh also deposited in malkhana one sealed viscera box along with sample seal of AAAGH Subzi Mandi Mortuary in respect of DD No.15A vide entry No. 493 of malkhana register. Copy thereof has been proved as Ex.PW32/2. On 09-12-11, Viscera box said to be in respect of deceased Kavita along with sample seal had been sent to FSL Rohini through Ct. Sandeep Kumar vide RC No.62/21/11. Copy thereof has been proved as Ex.PW32/3. After depositing the pullanda in FSL Ct. Sandeep deposited with him the receipt. Copy thereof has been proved as Ex.PW32/4. On 15-12-11 the remaining pullandas had been sent to PS Kanjhawala through Ct. Ramakant vide Road Certificate no.63/21/11. Copy thereof has been proved as Ex. PW32/5. Receipt in that respect was deposited back in the malkhana. Copy of receipt is Mark P32/A. State vs. Balwan Singh & ors Page 16 of 32 (FIR No. 29/11 PS Kanjhawala) xxxii) PW-33 Israr Babu, Alternate Nodal Officer, Vodafone Mobiles Services Ltd had brought the summoned record i.e. Details with respect to mobile phone No. 9991323833. PW-33 further deposed that as per their record, the said mobile phone was issued to Smt. Rajpati w/o Sh. Satyawan r/o House no.1302,VPO-Madina, Tehsil-Meham, District-Rohtak, Haryana. Certified copy of prepaid customer information form has been proved as Ex.PW33/1.
Certified copy of CDR's qua aforesaid number for the period from 07.10.2011 to 09.10.2011 has been proved as Ex.PW33/2. Call location chart in that regard has been proved as Ex.PW33/3.
Certificate u/s 65B of the Indian Evidence Act regarding the correctness of CDR has been proved as Ex.PW33/4.
xxxiii) PW-34 Inspector Sanjay Kumar deposed that on 13.01.2012, investigation of the present case had been assigned to him. He collected the case file from MHC(M) and carefully perused the case file. Along with the file, there was surrender cum bail application on behalf of one of the accused namely Gyan Prakash. PW 34 further deposed that on 16.01.2012, accused Gyan Prakash surrendered before the court. PW-34 had attended the court and accused Gyan Prakash was arrested in the present case after obtaining permission from the court. Arrest memo and personal search State vs. Balwan Singh & ors Page 17 of 32 (FIR No. 29/11 PS Kanjhawala) memo of accused Gyan Prakash have been proved as Ex. PW 34/1 and Ex. PW 34/2 respectively. During interrogation, accused Gyan Prakash made a disclosure statement which has been proved as Ex. PW 34/3. PW-34 further deposed that he had moved an application before the court and had obtained one day PC remand of accused Gyan Prakash. He was got medically examined at SGM hospital. Thereafter, accused Gyan Prakash had led him to his rented accommodation at village Kanjawala and from room therein, from an iron almirah, one calender of year 2008 was recovered. Calender was having photos of some God and Goddess and on the back side of the calender some abusive language had been written with respect to deceased Kavita with a brown colour pencil. On interrogation, accused Gyan Prakash disclosed that the writing on the back side of calender was of his deceased' wife Kavita. But he did not disclose as to when the said writing had been written. The said calender had been seized vide seizure memo Ex. PW 30/1 and the said calender has been proved as Ex. P1.
Accused was produced before the court and was sent to JC. On 17.01.2012, bail applications of Balwan Singh and Ram Rati were fixed for hearing. On 17.01.2012 itself, one suspect Neeraj had joined the investigation and he had made enquiries from him. On 19.01.2012, bail application of accused Balwan Singh and Ram Rati were again fixed for hearing. He attended the court and the Court was pleased to grant anticipatory bail to both the accused. On 20.01.2012, he State vs. Balwan Singh & ors Page 18 of 32 (FIR No. 29/11 PS Kanjhawala) had received specimen handwriting of deceased Kavita from her father Ranbir Singh. He had also recorded supplementary statement of Smt. Dharam Kaur, mother of deceased Kavita. PW 34 further deposed that on 21.01.2012, bail application of accused Vijay Pratik was fixed for hearing and he had attended the concerned court. The Court was pleased to grant anticipatory bail to accused Vijay Pratik. On 23.01.2012, suspect Neeraj Kumar again joined investigation and he made enquiries from him. On 28.01.2012, PW 34 had telephonically asked accused Vijay Pratik to join the investigation and called him to appear before him on 2.02.2012 along with his parents. On 31.01.2012, exhibits of this case had been sent to FSL through ASI Rajendra Singh. On 3.02.2012, requisite information had been sent to Govt. Boys Senior Secondary School, Village Mubarakpur Dabas, Delhi regarding arrest of accused Gyan Prakash in this case as accused Gyan Prakash was then posted in that particular school. On 05.02.2012, accused Vijay Prateek was again asked to join the investigation and he was also asked to produce some documents. PW-34 further deposed that on 11.02.2012, accused Vijay Prateek, Balwan Singh(both correctly identified) and Smt. Ram Rati(not present in court today) had joined investigation. PW-34 had made interrogation from all the three accused persons and had formally arrested all the three accused persons. Arrest memo and personal search memo of accused Vijay Prateek are Ex. PW 34/4 and Ex. PW 34/5 respectively.
State vs. Balwan Singh & ors Page 19 of 32(FIR No. 29/11 PS Kanjhawala) Arrest memo and personal search memo of accused Balwan Singh have been proved as Ex. PW 34/6 and Ex. PW 34/7 respectively. Arrest memo and personal search memo of accused Ram Rati have been proved as Ex. PW 34/8 and Ex. PW 34/9 respectively. It is further deposed by PW 34 that accused Vijay Prateek had handed over two CDs stating that those were CDs of his marriage and marriage of his brother Gyan Prakash. The said CDs had been seized vide seizure memo now Ex. PW 34/10. On 13.02.2012 bail application of accused Gyan Prakash was dismissed by the concerned court. On 14.02.2012, he had sent a request letter to FSL Rohini, requesting for expediting result of viscera of deceased Kavita and Shanu.
PW-34 further deposed that on 21.02.2012, MHC(M) had also sent a request letter to FSL, Rohini for expediting the analysis of samples and for providing FSL Report. On 22.02.2012, he had called draftsman SI Manohar Lal to Police station and had also requested SI Rajender Singh and Inspector Ramesh Kumar to accompany draftsman to the place of occurrence. SI Rajender Singh had reached the Police Station on 23.02.2012. SI Manohar Lal was also called by him at PS on that day and he along with SI Manohar Lal and SI Rajender Singh reached at the place of occurrence. SI Manohar Lal took rough notes of the place of occurrence at instance of SI Rajendra Singh. PW-34 recorded statements of SI Rajender Singh and SI Manohar Lal U/s 161 Cr. PC. On 26.02.2012, Smt. Anita Dhankar wife of accused State vs. Balwan Singh & ors Page 20 of 32 (FIR No. 29/11 PS Kanjhawala) Vijay Prateek was examined and her statement was recorded U/s 161 Cr. PC. During investigation, he collected scaled site plan from SI Manohar Lal.
On 01.03.2012, he again sent a request letter to FSL Rohini for expediting the analysis of exhibits and for preparing FSL report. On 21.03.2012, he again sent requisite information to GBSS, village Mubarkakpur Dabas regarding arrest of accused Gyan Prakash and on that day itself, he again wrote a letter to FSL officials for expediting the FSL result. On 06.04.2012, suspect Neeraj Kumar had joined the investigation and he had made enquiries from him. Thereafter, he concluded the investigation, prepared the charge-sheet and had filed the same in the Court.
xxxiv) PW-35 SI Naresh Kumar is a formal witness who had collected the case file of the present FIR and carried the same to PS Kanjhawala vide Road Certificate No. 28/21/11. He had handed over the present case file to MHCR PS Kanjhawala.
xxxv) PW-36 Inspector Rajesh Kumar deposed that on the intervening night of 10./11.10.2011 SI Rajender Singh handed over to him report of Executive Magistrate along with carbon copies of statements of mother, father and brother of deceased Kavita. After discussing the matter with the senior officials, he made endorsement Ex.PW36/1 on the statement of Smt. Dharam Kaur, the mother of deceased and produced State vs. Balwan Singh & ors Page 21 of 32 (FIR No. 29/11 PS Kanjhawala) the same to duty officer and present case was got registered. PW 36 further deposed that on 15.11.2011 he had collected the post mortem examination report of deceased Kavita through SI Rajendra singh. He further deposed that on 09.12.2011 viscera of deceased Kavita in a sealed condition had been sent to FSL, Rohini, through Ct. Sandeep Kumar vide RC no. 62/21.
xxxvi) PW-37 Ct Yogender is the witness of arrest and personal search of accused namely Smt. Ramrati, Vijay Prateek and Balwan Singh.
xxxvii) PW-38 Retired SI Rajender Singh deposed regarding proceedings which took place after the incident occurred. PW-38 further proved the seizure memo Ex. PW 38/1 bearing his signatures at point A. Sankshipt halat mrig prepared by him has been proved as Ex. PW-38/2. Form 25.35 filled by him with respect to deceased Kavita has been proved as Ex. PW 3/2, Photographs of the spot and of dead bodies have been proved as Ex. PW 38/A (1 to 9), copies of DD no. 19PP and 2 PP have been proved as Ex. PW 38/9 and Ex. PW 38/10.
xxxviii) PW-39 Sh. Vinod Kumar, Nodal Officer, MTNL proved the certified copy of agreement form for trump pre- paid cellular mobile connection as Ex. PW 39/1, certified copies of CDRs with respect to aforesaid mobile numbers for State vs. Balwan Singh & ors Page 22 of 32 (FIR No. 29/11 PS Kanjhawala) the period from 07.10.2011 to 09.10.2011 as Ex PW 39/2 and certified copy of location chart as Ex. PW 39/3. Certificate U/s 65B of Indian Evidence Act with respect to CDRs has been proved as Ex. PW 39/4.
xxxix) PW 40 Ms Ashu Goyal proved FSL Report No. FSL 2012/P-3031/PHY-123/12 dated 14.05.2012 as Ex.PW 40/1.
XL) PW-41 Sh. Virender Singh, Assistant Director(documents) proved the FSL report No. FSL 2012/D- 0708 dated 31.08.2012 as Ex. PW 41/1.
XLI) PW-42 Sh. Yogesh Tripathi, Alternate Nodal Officer proved the CDR with respect to mobile number 9315319789 for the period from 07.10.2011 to 09.10.2011 as Ex. PW 42/1 and certificate U/s 65 B of Indian Evidence Act has been proved as Ex. PW 42/2.
XLII) PW-43 Sh. Shishir Malhothra, Nodal Officer, Aircel Ltd, Delhi Service Area, Office at NTC Building proved reply to the notice U/s 91 Cr. PC from the IO as Ex PW 43/1, certified copy of the CAF has been proved as Ex. PW 43/2, certified copies of identity proof i.e. copy of Voter Election card of Jasveer Singh as Ex. PW 43/3.
XLIII) PW-44 ASI Pramod Kumar is the second IO of the State vs. Balwan Singh & ors Page 23 of 32 (FIR No. 29/11 PS Kanjhawala) case. He proved the disclosure statement of accused Gyan Prakash as Ex. PW 34/3. Accused Gyan Prakash was got medically examined at SGM hospital, Mangolpuri Delhi. Accused Gyan Prakash was taken to PS Kanjhawla police station and was put in lock up.
DW-1 Sh. Ram Niwas deposed in favour of accused persons and deposed that in the marriage, there was no exchange of dowry, though, on an instance, father of deceased Kavita offered a ring to accused Balwan, however, he denied that also. He also deposed that in the lifetime of deceased Kavita, she never complained to him or his family members regarding the behaviour or any demand by the accused persons.
Written submissions on behalf of accused persons filed wherein it is submitted that to prove the allegations of dowry and harassment, the prosecution examined PW-1, PW- 2 and PW-4, the parents and brother of the deceased along with one witness PW 21. None of the witnesses proved any demand of dowry or harassment. Their statements are contradictory and do not inspire confidence. He further relied upon the testimonies of PW-1 and PW-2 and submitted that no allegations of demand of dowry either against the in-laws or against the husband has been proved. It is further submitted that on 09.10.2011, deceased left the house in a happy mood. It is further submitted that deceased was in constant touch with some other person namely Neeraj who was repeatedly interrogated by the different IOs. She State vs. Balwan Singh & ors Page 24 of 32 (FIR No. 29/11 PS Kanjhawala) immediately prior to her death was in conversation with Neeraj for about half an hour and record also reflects that there was daily conversation between both of them. It is further submitted that in the totality of circumstances, prosecution has failed to prove the ingredients of Section 304B/498A IPC.
APPRECIATION OF EVIDENCE.
A) PW-1 during her testimony deposed that her daughter told her that accused persons were saying that her daughter should serve fresh cooked meal to accused Vijay Pratik(her jeth), whenever he comes to the house. She further deposed that accused Vijay Pratik used to come late in the night and his wife was not living with him due to some matrimonial dispute. The deceased had refused to do so by saying that she would serve the food cooked along with other family members.
During cross-examination of PW 1, she further deposed that she had the knowledge that her daughter Kavita had started suffering from fits after she gave birth to her son. PW 1 admitted that her daughter was also got treated for the fits, from Jaipur Golden Hospital in 2009. She clarified that she was not having any fit for about one year prior to the date of incident in this case, however, her treatment was going on. During cross-examination, she denied the suggestion that her daughter had become unconscious due to fits and not due to pressure on her mind as deposed by her in her examination in chief.
State vs. Balwan Singh & ors Page 25 of 32(FIR No. 29/11 PS Kanjhawala) PW-1 during cross-examination also deposed that accused Gyan Prakash and deceased Kavita were residing separately from others for the last two years prior to the incident. During that period of two years, they did not receive any demand from the family of accused Gyan Prakash. They did not receive any complaint from their daughter also in this regard. She also deposed that she did not give any money to deceased Kavita when she visited them last time prior to her death. She also deposed that she went happily from their house at that time. She also deposed that at that time also, she did not make any complaint to her about her in laws as well as her husband.
During cross-examination a suggestion was given to PW 1 that deceased was suffering from fits or mirgi since the age of 13 years. The suggestion was denied but it was deposed that she was never treated for her illness prior to or after the marriage. PW 1 also deposed that she had started suffering from fits after she gave birth to the child.
B) During cross-examination, PW-2 deposed that further education was pursued by Kavita at her matrimonial home. She admitted that Kavita was not well and she was suffering from fits. She was treated at Rohtak and later on she was got treated by her husband Gyan Prakash at Delhi. She also admitted that she was under
medical treatment at AIIMS prior to her death. He also admitted that the deceased wanted to live at Delhi with her State vs. Balwan Singh & ors Page 26 of 32 (FIR No. 29/11 PS Kanjhawala) husband. He also admitted that with the mutual understanding of both the families, Kavita along with her husband shifted to Delhi. PW- 2 also deposed that his daughter never complained them about her in laws or husband as and when they visited her at Delhi. PW 2 also deposed that on 09.10.2011 when Kavita left them, she was happy and in the evening around 6 o'clock, she informed her mother that she has reached comfortably to Delhi and she would make a call again after half an hour after reaching at home. PW-2 further deposed that it is possible that death of Kavita occurred due to an accident.
C) During cross-examination, PW-4 denied the suggestion put by ld. APP, that since they could not meet the aforesaid demand of Rs. 10 lacs, all the accused persons in furtherance of their common intention had committed her murder or that they threw her body on the Railway Track and he had stated so before the SDM/Executive Magistrate. He is brother of deceased. If there was any torture or harassment meted out to the deceased, PW-4(the real brother of deceased) must have told the court about such incident. But he had not uttered a single word or instance against the accused and rather denied the suggestion put to him that they did not meet the aforesaid demand of Rs. 10 lacs, all accused persons in furtherance of their common intention had committed murder of his sister Kavita and after committing her murder they had thrown her body on the Railway track and State vs. Balwan Singh & ors Page 27 of 32 (FIR No. 29/11 PS Kanjhawala) had stated so before the SDM/Executive Magistrate.
D) PW 15 is a public witness. During her testimony, PW 15 Saroj deposed that she never came to know about any matrimonial dispute in their family. During her cross- examination by ld. Addl. PP, she admitted that on 09.10.2011, Gian Prakash had informed her that Kavita and her son had died on the Railway track having come under the train.
E) PW-17 and PW 18 are also public witnesses. They have also not supported the case of the prosecution at all.
F) PW-22 is another public witness. During his testimony, PW 22 deposed that he never had any occasion to learn about any quarrel between Gian Prakash and his wife and they had cordial relations. There is no reason to disbelieve his testimony as he was a neighbourer. If any cruelty or harassment had been caused to the deceased, PW- 22 must have been aware of the said fact.
G) PW-21 who is daughter in law of accused no. 1 during cross-examination deposed that her husband had filed a divorce petition and litigation in that regard is pending before Hon'ble High Court. She admitted that she has given statement dated 04.11.2006 in the court of Sh. A. K. Jain, ADJ, Rohtak in HMA Case No. 60/05. She further admitted that only Rs. 1 was given as shagun at the time of State vs. Balwan Singh & ors Page 28 of 32 (FIR No. 29/11 PS Kanjhawala) marriage. She further deposed that she had not filed any complaint against her husband or in-laws regarding dowry demand and DV Act as she wanted to settle in her matrimonial home. PW-21 further deposed that she was willing to stay with her husband but he was not willing to stay with her. She further deposed that she came in contact with Kavita for the first time around 2010 when she had called her. She further deposed that Kavita had called her up and subsequently Kavita used to call her. She also deposed that she has no idea as to when Gian Prakash shifted to Delhi. During an earlier suggestion she admitted that she told in her statement that Kavita used to remain pareshan (worried) on account of dowry demand. This appears to be vague allegation as at one side she is deposing that she did not know when Gian Prakash shifted to Delhi and on the other hand, she is alleging that Kavita used to remain pareshan on account of dowry demand. It appears that she had no talks with Kavita after shifting to Delhi. It is admitted case of the prosecution that accused Gian Prakash along with deceased Kavita had shifted to Delhi two years prior to the incident. Had she been aware of her shifting to Delhi, she would have known under what circumstances Kavita was living, whether there was any demand of dowry or not or whether any ill treatment has been meted out to her. She can very well stated to be a tutored witness inasmuch as she did not know about the shifting of accused along with Kavita to Delhi. She also admitted that she had not mentioned in her statement to State vs. Balwan Singh & ors Page 29 of 32 (FIR No. 29/11 PS Kanjhawala) police that total consideration of the house which accused wanted to purchase was Rs 22 lacs. Thus, from this piece of evidence, it appears that it was an after thought on the part of PW 21 as if such demand had ever been made by the accused as alleged by her in examination in chief, she would have immediately told this fact to the police. Hence, it appears that she is only a planted witness.
H) PW-34 Inspector Sanjay Kumar during cross- examination admitted that during investigation it transpired that Neeraj and deceased Kavita used to occasionally talk with each other. PW 34 admitted that even on the date of incident, there was a telephonic contact between deceased Kavita and Neeraj Kumar and it was last call on the mobile of deceased which was continued for about 15/20 minutes. During cross-examination, PW-34 admitted that Neeraj Kumar was called by him in his office and he had made interrogations from him. However, no statement of Neeraj Kumar has been brought before the Court. Why this witness has not been brought before the Court. This is a big question mark which remained unanswered by the prosecution. If IO had interrogated Neeraj, then, he must have confronted this fact from Neeraj Kumar and also about the contents of the talks which took place. However, details of those talks have not been brought by the IO before this Court. Even Neeraj Kumar has also not been brought as a witness before this Court to bring the truth.
State vs. Balwan Singh & ors Page 30 of 32(FIR No. 29/11 PS Kanjhawala) CONLUSION:-
This Court is of the considered view that prosecution is not able to prove any demand of dowry soon before death in view of testimony of PW-1, PW-2 and PW-4 who are mother, father and brother of the deceased. Further, during testimony of PW-1 it is revealed that deceased was suffering from fits and she was got treated by accused no. 2 as it is admitted case of PW-1 that she was got admitted for fits in Jaipur Golden hospital and also in AIIMS. It is also admitted case of PW 2 that further education was pursued by the deceased at her matrimonial home. In view of the fact that she was got treated for her illness in her matrimonial home and she also pursued her education at her matrimonial home. Moreover, no neighbour or any other public witness has deposed against any of the accused for any maltreatment or harassment to the deceased.
Thus, prosecution is not able to prove its case against any of accused under section 498A or 304B IPC. No evidence has been brought which proves the involvement of any of the accused in the murder of the deceased as the deceased had died at the railway track i.e. outside her matrimonial home and not even a single witness has deposed that they had seen any of the accused with deceased prior to her death. Rather the entire story of the prosecution case comes in doubt in view of the testimony of PW-34 as a big question remained unanswered by the prosecution why the prosecution has not got examined Neeraj. Therefore, all the accused persons are State vs. Balwan Singh & ors Page 31 of 32 (FIR No. 29/11 PS Kanjhawala) given benefit of doubt and are acquitted with respect to the offences punishable U/s 498A/304B/302/34 IPC.
ANNOUNCED IN THE OPEN COURT
ON THIS 28TH DAY OF MAY, 2019
JITENDRA Digitally signed by
JITENDRA KUMAR
KUMAR MISHRA
Date: 2019.06.20
MISHRA 13:49:00 +0530
(Jitendra Kumar Mishra)
ASJ/Special Judge (NDPS), North,
Rohini Courts, Delhi.
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